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+0,1119446,1,1,"Defendant James M. Thorne challenges the constitutionality of the Persistent Offender Accountability Act, commonly known as the three strikes and you're out law. We find the law to be constitutional. In November 1993, the voters of the state of Washington were asked in Initiative 593 to decide the question: Shall criminals who are convicted of most serious offenses on three occasions be sentenced to life in prison without parole? Seventy-six percent of the voters of this state answered yes to this question. Initiative 593, titled the Persistent Offender Accountability Act, amended sections of the Sentencing Reform Act of 1981(SRA). RCW 9.94A. The new law added the following language to RCW 9.94A.120(4): A persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, notwithstanding the maximum sentence under any other law. Initiative 593 defined the terms persistent offender and most serious offense. A persistent offender is an offender who: (a) Has been convicted in this state of any felony considered a most serious offense; and (b) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted. RCW 9.94A.030(27). Most serious offense means any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended: (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony; (b) Assault in the second degree; (c) Assault of a child in the second degree; (d) Child molestation in the second degree; (e) Controlled substance homicide; (f) Extortion in the first degree; (g) Incest when committed against a child under age fourteen; (h) Indecent liberties; (i) Kidnapping in the second degree; (j) Leading organized crime; (k) Manslaughter in the first degree; (l) Manslaughter in the second degree; (m) Promoting prostitution in the first degree; (n) Rape in the third degree; (o) Robbery in the second degree; (p) Sexual exploitation; (q) Vehicular assault; (r) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner; (s) Any other class B felony offense with a finding of sexual motivation, as sexual motivation is defined under this section; (t) Any other felony with a deadly weapon verdict under RCW 9.94A.125; (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection. RCW 9.94A.030(23). The law does not include juvenile offenses in the definition of most serious offense. RCW 9.94A.030(23), (25), (27). The voters pamphlet explained that most serious crimes essentially consist of all class A felonies and all class B felonies involving harm or threats of harm to persons. 1993 Official Voters Pamphlet at 5 (2d ed.). Under the new law, the Governor may pardon or grant clemency to an offender, but the legislature recommends that an offender with a life sentence not be released until the offender has reached the age of 60 years old and is judged no longer a threat to society. The law mandates that the Governor provide twice yearly reports on any offender who has been released through executive action. RCW 9.94A.394. Three strikes and you're out is the popular term used to describe recidivist legislation that calls for the incarceration of a criminal for life upon a third felony conviction. Many other states have enacted three strikes types of legislation. See Robert Heglin, Note, A Flurry of Recidivist Legislation Means: Three Strikes and You're Out, 20 J. of Legis. 213 (1994); Mark W. Owens, California's Three Strikes Law: Desperate Times Require Desperate Measures—But Will It Work?, 26 Pac. L.J. 881 (1995); James Austin, Ph.D., Three Strikes and You're Out: The Likely Consequences on the Courts, Prisons, and Crime in California and Washington State, 14 St. Louis U. Pub.L.Rev. 239 (1994). The federal violent crime control and law enforcement act of 1994 also has a three strikes section. 18 U.S.C. § 3559(c) (1994). The reason underlying the enactment of so many recidivist laws appears to be the heightened fear of increased violent crime and the public outrage caused by such crime. See Owens, supra, at 883-84; Peter J. Benekos & Alida V. Merlo, Three Strikes and You're Out: The Political Sentencing Game, 59 Fed. Probation 3 (Mar.1995); Daniel W. Stiller, Note, Initiative 593: Washington's Voters Go Down Swinging, 30 Gonz. L.Rev. 433, 438 (1994-95).",facts
+1,2170675,1,1,"Under two separate issues, Defendant challenges the sufficiency of the evidence. He points out alleged inconsistencies in the victim's statements with respect to her description of her assailant and with respect to what she had done prior to going to bed on the night of the attack both as related by her to the police and as testified to by her at the juvenile waiver hearing and at trial. He also notes that the victim had identified a photograph of someone other than himself as depicting her assailant. Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. (citation omitted). In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses. (citation omitted). Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. The uncorroborated testimony of the victim is sufficient to sustain a Rape conviction. Geisleman v. State, (1980) Ind., 410 N.E.2d 1293, 1295. Defendant's contentions challenge the weight of the evidence and in effect ask us to discredit the victim. Haskett v. State, (1979) Ind., 395 N.E.2d 229, 231. The victim unequivocally identified Defendant as the man who entered her home without her permission and thereafter used a knife to compel her to engage in vaginal and anal intercourse. The evidence is sufficient to support the convictions.",issues
+2,6220958,1,1,"Signal 88, LLC, filed a contract action against Lyconic, L.L.C., in the district court for Douglas County. The district court ordered the dispute to be submitted to arbitration. After the arbitrator rendered a decision, pursuant to Neb. Rev. Stat. § 25-2612 (Reissue 2016), Lyconic moved the district court to confirm the arbitrator’s award. Eventually, the court entered judgment on the award. On appeal, the Nebraska Court of Appeals found the award to be ambiguous, vacated the judgment, and remanded the matter to the district court with directions to remand the matter to the arbitrator for clarification. 1 Lyconic petitioned for further review. For reasons we explain, we find merit to the petition for further review. The Court of Appeals’ decision is reversed, and the matter is remanded with directions.",introduction
+3,883300,1,2,"Did the District Court abuse its discretion when it entered and refused to set aside appellant's default? Our review standard of a trial court's refusal to set aside a default is that no great abuse of discretion need be shown to warrant reversal, and our review is on a case-by-case basis. Lords, 688 P.2d at 294. Policy favors that a litigated case should be decided on its merits, and judgments by default are not favored. In re the Marriage of Whiting (1993), 259 Mont. 180, 854 P.2d 343. The burden of proof is on the one seeking to set aside the default. Siewing v. Pearson Co. (1987), 226 Mont. 458, 461, 736 P.2d 120, 122. An entry of default may be set aside by showing good cause; default judgment may be set aside pursuant to Rule 60(b), M.R.Civ.P. Rule 55(c), M.R.Civ.P. Good cause is shown by: the defendant proceeded with diligence to set aside the default judgment; the defendant's excusable neglect; the judgment will be injurious to the defendant if allowed to stand; and the defendant has a meritorious defense to the plaintiff's cause of action. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 786. Rule 60(b)(1), M.R.Civ.P., allows a default judgment to be set aside due to mistake, inadvertence, surprise, or excusable neglect. After reviewing the record and applying the above analysis, we determine that the District Court abused its discretion when it failed to grant the motion to set aside the default. Appellant proceeded with diligence after the District Court entered the June 11, 1993, judgment by default by retaining an attorney and filing a motion to set aside the default on June 23, 1993. In order to set aside default, an appellant must demonstrate excusable neglect. Respondent argues that appellant was sufficiently warned by letter several times that she would proceed as necessary if he did not answer. Respondent does not direct us to the record, and the only reference to the letter in the record was in the transcript of the August 11, 1993, hearing where respondent's attorney stated to the court that she sent a letter to appellant in December 1992 informing him that she would proceed as necessary if he failed to respond. The letter dated December 1992 was not entered as evidence nor filed with the District Court, and is not within the record. Those papers and exhibits filed in the district court are part of the record on appeal. Rule 9, M.R.App.P. A party's mere reference to certain documents does not bring them within the record. 4 C.J.S. Appeal and Error § 456 (1993). Because the documents are not in the record, we cannot review them on appeal. Appellant contends that the District Court erred by not finding excusable neglect because his case is similar to In re Marriage of Broere (1994), [263 Mont. 207], 867 P.2d 1092, 51 St. Rep. 17, where the appellant, acting pro se in the dissolution case, was affirmatively misled by the respondent's attorney that his telefaxed response had been filed. Appellant argues that the present case is analogous to Broere because respondent's attorney repeatedly communicated to him that nothing could happen in the dissolution proceedings until he filed a formal response. On May 1, 1992, respondent's attorney wrote to appellant, stating in pertinent part: Dear Mr. Martin: It will be necessary for you to file a formal response with the Court in this matter so that I can request that a trial date be set. The Court will not set a trial date unless the case is at issue, which requires that the Respondent file a Response. I would appreciate your filing your Response by May 15, 1992, so that we can proceed with this matter. Thank you. [Emphasis added]. On May 19, 1992, appellant answered the letter, and received the following reply from respondent's attorney: Dear Mr. Martin: In response to your letter of May 19, 1992, in this matter, I must repeat my request that you file a formal Response with the Court so that we can proceed with this matter. I cannot request a Court date until you have done so, and while I am hopeful that a trial will not be necessary, I do not want to further delay getting a date from the Court. ... The process will be infinitely cheaper, easier and quicker if you will cooperate with Rex Boller. If you choose not to do so, we will have to obtain the necessary information from you through formal means, such as interrogatories, requests for production... . This is not intended as a threat, but simply to make clear that we intend to proceed with a valuation of all property, and will do so formally if necessary. ... The extent to which the process becomes adversarial depends upon whether or not you and Carol cooperate to the fullest extent of your ability. [Emphasis added]. Threats to proceed formally if necessary would be clear to an attorney trained in the law. Those untrained in the law are often misled and get entire different meanings from conversations than one trained in the legal field. Broere, 867 P.2d at 1094 (citing Waggoner v. Glacier Colony of Hutterites (1953), 127 Mont. 140, 148, 258 P.2d 1162, 1166). In Broere, after receiving appellant's telefaxed letter responding to the petition of dissolution, the respondent's attorney mistakenly sent the appellant a note of issue stating that his response had been filed. A few days later default was granted and respondent's motion to set aside the default was denied. This Court held that the district court abused its discretion by not setting aside the default because the appellant was affirmatively, though innocently, misled by the respondent's attorney that his response had been filed. Broere, 867 P.2d at 1094. Similarly, in the present case appellant was misled by respondent's attorney who communicated to him that the matter would not proceed in court until he filed his formal response, and then entered default during a two week period when appellant was out of town. Prior to the default, appellant communicated to both respondent and her attorney his objections to respondent's division of marital assets, and also communicated his desire to settle the matter without court intervention. See Whiting, 854 P.2d at 346 (finding that appellant's default was unwillful by her attempts to resolve the dissolution issues for weeks prior to the default). Moreover, the judgment will be injurious to appellant if allowed to stand because the record reveals that a portion of the assets awarded were corporate assets, part of which appellant argues are required in the operation of the business, which further indicates that appellant has a meritorious defense to the property distribution. Respondent argues that she would be prejudiced if this Court set aside the default because it would violate the interests of justice that require finality of the case. However, respondent waited 17 months before attempting to put appellant in default which shows a lack of urgency to finalize matters. In contrast, the harm to appellant is great by having the default entered against him without any possibility of presenting his arguments. We hold that the District Court abused its discretion by not setting aside the default and the denial of the District Court is reversed.",issues
+4,4520116,1,3,"Gomez argues that his conviction must be overturned because the State introduced insufficient evidence that he was served with the order affirming the ex parte protection order. Gomez’ argument rests on two propositions: (1) that personal service of the protection order is an essential element of the crime of which he was convicted and (2) that the record contains insufficient evidence of such personal service. As we will explain, we generally agree with Gomez on the former proposition but disagree on the latter. - 226 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 Elements of Offense. Gomez was charged with and convicted of violating Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2018). That subsection provides as follows: Any person who knowingly violates a protection order issued pursuant to this section or section 42-931 after service or notice as described in subsection (2) of section 42-926 shall be guilty of a Class I misdemeanor, except that any person convicted of violating such order who has a prior conviction for violating a protection order shall be guilty of a Class IV felony. [2] In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019). Accordingly, to determine the elements of a crime, we look to the text of the operative statute. Id. Section 42-924(4) makes the knowing violation of certain protection orders a crime. By its terms, the statute requires proof of the following: (1) service or notice as described in Neb. Rev. Stat. § 42-926(2) (Reissue 2016) and (2) a subsequent knowing violation of a qualifying protection order. Because the crime can be established with proof of either service or the notice described in § 42-926(2), it is not technically accurate to describe service alone as an essential element of the crime. We do read the statute, however, to make either service or the notice described in § 42-926(2) an essential element. This reading of § 42-924(4) is consistent with our decision in State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011). In Graff, we interpreted substantively similar language in a statute governing harassment protection orders to allow for a criminal conviction upon a showing that a defendant knowingly violated a protection order after service. See Neb. Rev. Stat. § 28-311.09(4) (Reissue 2008). We also concluded in Graff that personal service was required because the statute governing service of harassment protection orders required it. See § 28-311.09(9)(a). Similar - 227 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 language requires personal service of domestic abuse protection orders. See § 42-926(1). Following our reasoning in Graff, we conclude that in cases alleging a violation of § 42-924(4), in which the defendant does not receive the notice described in § 42-926(2), the State must demonstrate that the defendant was personally served with the protection order. Sufficiency of Evidence of Personal Service. While we agree with Gomez that the State was required to demonstrate that he was personally served with the order affirming the ex parte protection order, we cannot agree that there was insufficient evidence of such service. According to Gomez, the only way the State could demonstrate the requisite personal service was through a service return. He also contends that in the service return, the officer must specifically certify that he or she served the protection order. He asserts that the service return offered into evidence by the State is deficient in this respect because it refers generally to a cover sheet with attachments rather than to a protection order. In support of his argument that the State must prove serv­ice in this particular way, Gomez relies on language in § 42-926(1) providing that once a domestic abuse protection order is issued, the clerk of the court is to give it to the sheriff’s office and that upon receipt, the sheriff’s office “shall forthwith serve the protection order upon the respondent and file its return thereon with the clerk of the court which issued the protection order within fourteen days of the issuance of the protection order.” Because the service return here does not refer specifically to service of a protection order, Gomez claims that the sheriff’s office did not “file its return thereon,” as provided in § 42-926. Gomez’ reliance on the provisions in § 42-926 regarding the return of service is misplaced. As discussed above, § 42-924(4) allows a defendant to be convicted if he or she - 228 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 knowingly violates a domestic abuse protection order after service of the protection order. Gomez is essentially asking us to make punctilious compliance with the service return provisions of § 42-926(1) an essential element of the crime defined in § 42-924(4). But because § 42-924(4) says nothing about the return of service, such an interpretation would run counter to our practice of strictly construing penal statutes and not supplying missing words or sentences to make clear that which is indefinite, or to supply that which is not there. See State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016). We note that it is far from anomalous to permit a party to prove service of civil process even if the process server fails to comply with statutory direction regarding the service return. Both a Nebraska civil procedure statute and the Federal Rules of Civil Procedure provide that the failure to make proof of service or delay in doing so does not affect the validity of the service. See, Neb. Rev. Stat. § 25-507.01 (Reissue 2016); Fed. R. Civ. P. 4(l)(3). Such provisions “prevent[] a defendant who has been properly served from attacking the validity of service on the technical ground of the process server’s failure to make return in timely fashion, or because the return is deficient in some way.” 4B Charles Alan Wright et al., Federal Practice and Procedure § 1130 at 210-11 (4th ed. 2015). The fact that § 42-924(4) allows a defendant to be convicted of violating a domestic abuse protection order upon a showing of service, as opposed to proper return of service, serves the same function here. This leaves only the question of whether there was sufficient evidence that Gomez was served with the order affirming the ex parte protection order. On this question, we do not hesitate to find that there was. The face of the cover sheet indicates that the sheriff’s office was instructed to serve the order affirming the ex parte protection order and the ex parte protection order. Dodge testified that he met Gomez at a local hospital and that he provided Gomez with the attachments to the cover sheet in exhibit 4, i.e., the order affirming the - 229 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GOMEZ Cite as 305 Neb. 222 ex parte protection order and the ex parte protection order. Dodge also testified that he signed the service return indicating he served the cover sheet and attachments on Gomez at a hospital on January 4, 2018. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that Gomez was served with the order affirming the ex parte protection order.",analysis
+5,6344689,1,5,"We affirm the decision of the district court. Affirmed. Funke, J., not participating.",conclusion
+6,1104877,1,2,"Before discussing the issue presented, we first address our jurisdiction. The House and Speaker Rubio have filed in this Court a petition for writ of quo warranto. The Governor contends that this Court lacks jurisdiction because the House does not seek either to remove him from office or to enjoin the future exercise of his authority. We conclude, however, that these are not the only grounds for issuing such a writ. The Florida Constitution authorizes this Court to issue writs of quo warranto to state officers and state agencies. Art. V, § 3(b)(8), Fla. Const. The term quo warranto means by what authority. This writ historically has been used to determine whether a state officer or agency has improperly exercised a power or right derived from the State. See Martinez v. Martinez, 545 So.2d 1338, 1339 (Fla.1989); see also art. V, § 3(b)(8), Fla. Const. Here, the Governor is a state officer. The House challenges the Governor's authority to unilaterally execute the Compact on the State's behalf. The Governor argues that because he already has signed the Compact, quo warranto relief is inappropriate. But the writ is not so limited. In fact, petitions for the writ historically have been filed after a public official has acted. See, e.g., Chiles v. Phelps, 714 So.2d 453, 455 (Fla.1998) (holding that the Legislature and its officers exceeded their authority in overriding the Governor's veto); State ex rel. Butterworth v. Kenny, 714 So.2d 404, 406 (Fla. 1998) (issuing the writ after the Capital Collateral Regional Counsel had filed a federal civil rights suit, concluding that it had no authority to file it). The Governor's execution of the Compact does not defeat our jurisdiction. The concurring-in-result-only opinion expresses concern that by considering a more narrow issue than the Governor's authority to execute IGRA compacts in general—that is, whether the Governor has the authority to bind the State to a compact that violates Florida law—we are expanding our quo warranto jurisdiction to include issues normally reserved for declaratory judgment actions. In prior quo warranto cases, however, we have considered separation-of-powers arguments normally reviewed in the context of declaratory judgments, such as whether the Governor's action has usurped the Legislature's power, where the functions of government would be adversely affected absent an immediate determination by this Court. Phelps, 714 So.2d at 457; see also Martinez, 545 So.2d at 1339 (holding quo warranto appropriate to test the governor's power to call special sessions); Orange County v. City of Orlando, 327 So.2d 7 (Fla.1976) (holding that the legality of city's actions regarding annexation ordinances can be inquired into through quo warranto). In this case, the Secretary has approved the Compact and, absent an immediate judicial resolution, it will be given effect. In fact, according to news reports, the Tribe already has begun offering blackjack and other games at the Seminole Hard Rock Hotel and Casino. See Amy Driscoll, Casino Gambling: Amid glitz, blackjack's in the cards, The Miami Herald, June 23, 2008, at B1. Thus, if indeed the Governor has exceeded his constitutional authority, a compact that violates Florida law will, nevertheless, become effective in seven casinos located on tribal lands located in the state. As in Phelps, therefore, the importance and immediacy of the issue justifies our deciding this matter now rather than transferring it for resolution in a declaratory judgment action.",jurisdiction
+7,1235265,1,1,"The commissioner in chancery, who heard all the evidence in the case except that presented during the ore tenus hearing before the trial court on January 19, 1979, concluded that the wife was not guilty of marital misconduct and was therefore not guilty of adultery. The additional evidence heard by the court only involved the course of conduct with the attorney who had originally represented the husband and was allowed to withdraw from the case by decree of the court within six months after the litigation was commenced. The trial court rejected the conclusions of the commissioner and adjudged that the wife's infidelity had been proven. In First National Bank of Martinsville, etc. v. Cobler, 215 Va. 852, 854, 213 S.E.2d 800, 802 (1975), we said: Our standard of review under these circumstances should be kept clearly in mind, as the facts are considered .... The chancellor has disapproved the report of the commissioner in chancery, therefore, we must review the evidence and ascertain whether, under a correct application of the law, the evidence supports the findings of the commissioner or the conclusions of the trial court. [Citations omitted.] Cf. Higgins v. Higgins, 205 Va. 324, 328, 136 S.E.2d 793, 796 (1964). Earlier, in Colbert v. Colbert, 162 Va. 393, 400, 174 S.E. 660, 662 (1934), we stated these basic guidelines: To establish the charge of adultery the evidence must be full and satisfactory — the judicial mind must be convinced affirmatively. The proof should be strict, satisfactory and conclusive. [Citations omitted.] The testimony of a hired detective, in cases of this nature, should be carefully scrutinized and acted on with great caution.... Later, in Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d 437, 439 (1948), we quoted with approval: A charge of adultery is one of a criminal offense and especially and uniquely damaging to the reputation of the party charged. The general and widely recognized presumption of innocence must be indulged against it, and, while it is not required to be proved beyond a reasonable doubt, as in a criminal proceeding, the evidence must be at least clear and positive and convincing. Raising a considerable or even strong suspicion of guilt is not enough. [Citation omitted.] Both of these holdings were reiterated more recently in Painter v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975). While we agree that the behavior of the wife in the case at hand, when read in connection with all other evidence in the record, creates suspicion as to her guilt on the specific dates in issue, we do not believe the evidence amounts to clear, positive and convincing proof. It creates grave suspicion as to the intimacy .... Yet when measured by the rules of human conduct and experience as of this day and time, it is not inconsistent with freedom from actual guilt. Haskins, 188 Va. at 531, 50 S.E.2d at 440. We therefore hold that the trial court erred in its finding of adultery on the part of the wife as the evidence was insufficient to support the conclusion.",sufficiency of the evidence
+8,867387,2,1,"¶ 7 We invited the parties to address whether this Court's jurisdiction over this appeal is exclusive or concurrent with that of the court of appeals. When jurisdiction is concurrent and an appeal is initially filed with this Court, our long-established practice has been to transfer the case to the court of appeals. Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380, 382, 825 P.2d 1, 3 (1992); Ariz. Podiatry Ass'n v. Dir. of Ins., 101 Ariz. 544, 549, 422 P.2d 108, 113 (1966). In election matters, when there is concurrent appellate jurisdiction, [i]n the ordinary course, appeals . . . should be to the court of appeals. If special circumstances exist that require that this Court hear the appeal directly, a motion for transfer may be filed under ARCAP 19. Hancock v. Bisnar, 212 Ariz. 344, 346 n. 3 ¶ 7, 132 P.3d 283, 285 n. 3 (2006). ¶ 8 Section 19-121.03(B) provides that in actions challenging the certification of signatures for a ballot measure [e]ither party may appeal to the supreme court within ten calendar days after judgment. Another statute, however, more generally affords appellate jurisdiction to the court of appeals in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death has actually been imposed. A.R.S. § 12-120.21(A)(1) (2003); see also id. § 12-2101(B) (2003) (allowing appeals to court of appeals from final judgments entered in superior court). Thus, the issue is whether § 19-121.03(B) gives this Court jurisdiction exclusive of that which otherwise exists in the court of appeals under its general jurisdictional statutes. ¶ 9 We dealt with a similar issue in Perini. There we held that this Court and the court of appeals have concurrent jurisdiction over referendum appeals under A.R.S. § 19-122(C). 170 Ariz. at 382, 825 P.2d at 3. In actions challenging the legal sufficiency of ballot measures, § 19-122(C), which has not been amended since 1992, provides that [e]ither party may appeal to the supreme court within ten days after judgment. We held that this language, which predated the creation of the court of appeals in 1964, did not give this Court exclusive jurisdiction, [i]n light of the broad appellate jurisdiction vested in the court of appeals. Perini, 170 Ariz. at 382, 825 P.2d at 3 (citing Ariz. Podiatry, 101 Ariz. at 547, 422 P.2d at 111). Absent any expressed intent to give this Court exclusive jurisdiction, we did not interpret the statutes vesting appellate jurisdiction in this Court as limiting the jurisdiction that A.R.S. §§ 12-120.21(A)(1) and -2101 separately vest in the court of appeals. See id. ¶ 10 This case involves A.R.S. § 19-121.03(B), which addresses challenges to the certification of ballot measure petition signatures. Much like the statute involved in Perini, it provides that [e]ither party may appeal [the superior court's decision] to the supreme court within ten calendar days after judgment. Id. Section 19-121.03(B), however, was enacted after the legislature created the court of appeals. [1] Nonetheless, as in Perini, the constitutional and statutory grants of jurisdiction indicate that this Court and the court of appeals have concurrent appellate jurisdiction. See 170 Ariz. at 382, 825 P.2d at 3; see also Ariz. Podiatry, 101 Ariz. at 547, 422 P.2d at 111. ¶ 11 As we explained in Arizona Podiatry, [i]t has long been a general rule of law that a grant of jurisdiction to one court does not, in the absence of an express provision to that effect, imply that the jurisdiction is to be exclusively vested in that court. 101 Ariz. at 548, 422 P.2d at 112. Thus, unless the legislature has made clear that our jurisdiction is exclusive, our appellate jurisdiction is concurrent with that of the court of appeals. ¶ 12 There are very few instances in which this Court has been granted exclusive jurisdiction. The first is over causes between counties. Ariz. Const. art. 6, § 5(2) (providing for original and exclusive jurisdiction in this Court over such matters). We also have exclusive jurisdiction over death penalty appeals, as A.R.S. § 12-120.21(A)(1) specifically exempts those cases from the jurisdiction of the court of appeals. Finally, in the context of candidate nomination petition challenges, the legislature has specifically provided that the superior court's decision shall be appealable only to the supreme court. A.R.S. § 16-351(A) (2006) (emphasis added). Because § 19-121.03(B) does not similarly provide an express grant of exclusive jurisdiction to this Court, we do not infer one. See Ariz. Podiatry, 101 Ariz. at 548, 422 P.2d at 112. ¶ 13 Consequently, we hold that we have concurrent jurisdiction with the court of appeals over appeals taken under § 19-121.03(B). We further reiterate the rule set forth in Perini that [a]lthough we have concurrent jurisdiction with the court of appeals[,] . . . a party should file any future action [pursuant to § 19-121.03(B) ] in the court of appeals. 170 Ariz. at 382, 825 P.2d at 3. ¶ 14 Under the particular circumstances of this case, however, we will exercise our jurisdiction to decide this appeal. Each side urges us to do so, and we have not previously held that our jurisdiction over this type of appeal is concurrent rather than exclusive. It is also important that the parties obtain a timely determination whether the proposed initiative will be on the ballot for the next city election. Finally, this case presents an issue of general importance because at least one other city allows the supplementation of petition signatures after a determination of insufficiency. See Tucson City Code § 12-59.",jurisdiction
+9,1090851,1,1,"¶ 2. The following statement of facts is taken from this Court's opinion on Russell's appeal from his second death sentence: On July 18, 1989, while an inmate at the State Penitentiary in Parchman, Russell removed the 16 by 10 bottom air vent in his cell door, crawled through the space, and managed to secrete himself behind the stairwell pillar on the lower level of the unit in which he was housed. Russell, armed with a shank, (homemade knife) waited in ambush for Corrections Officer Cotton. Russell's patience was rewarded at approximately 6:50 p.m. when Officer Cotton entered Zone 3 in which Russell was hiding. Cotton, unaware of Russell's presence, attempted to lock the door between Zone 2 and Zone 3. While Cotton's back was turned, Russell rushed Cotton and proceeded to stab him with the shank. Officer Cotton, surprised by Russell's attack, attempted to escape by using a plastic food tray to repulse Russell's assault. Nonetheless, Russell followed Cotton, stabbed him in the back, and then held Cotton down with his knee and continued to stab him. During the attack, Russell's attention was momentarily drawn away by another guard allowing Cotton the opportunity to retreat into the guard control tower. Upon reaching the safety of the guard tower, Officer Cotton called for and received medical help. Cotton was first taken to the Parchman emergency room and subsequently transferred to the Bolivar County Hospital where he died as a result of internal bleeding. Russell, 607 So.2d at 1109-10. Subsequently, Russell was indicted and convicted for killing a peace officer acting in his official capacity as a Correctional Officer of the Mississippi State Penitentiary in violation of Miss.Code Ann. § 97-3-19(2)(a). At trial, Russell took the stand and testified that he stabbed Officer Cotton because Cotton had taken twenty dollars from him in order to buy yeast for Russell. Evidently, Russell was going to use the yeast to make an alcoholic drink. However, according to Russell's testimony, Cotton never delivered the yeast, nor did he return Russell's twenty dollars. The jury, after hearing overwhelming evidence as to Russell's guilt, returned a guilty verdict. After finding Russell guilty of capital murder, the jury sentenced Russell to death. On appeal, this Court affirmed the jury's determination of Russell's guilt, but reversed his death sentence as Russell, indicted as a habitual offender, was not allowed a habitual offender hearing before the penalty phase of his trial. See Turner v. State, 573 So.2d 657 (Miss.1990). On Russell's resentencing, the venire and subsequent sentencing jury were drawn from Montgomery County Mississippi. However, for security reasons and the ease and convenience of transporting witnesses into court from Parchman, the trial was held in Sunflower County. The second jury, after hearing evidence of the murder and all of the evidence that would tend to establish mitigating factors and aggravating factors, sentenced Russell to death. Specifically, the jury found the following aggravating factors: (1) The capital offense was committed by a person under a sentence of imprisonment; and (2) The Defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Likewise, the jury found that there were insufficient mitigating circumstance [sic] to outweigh the aggravating circumstance(s). Russell, 670 So.2d at 820.",facts
+10,4584659,1,1,"An arbitration award rejected Robert H. Cinatl’s fraud-inthe-inducement claim seeking to rescind his contract to purchase an orthodontics practice. After the district court declined to vacate the arbitrator’s award, the court confirmed it. Cinatl appeals. Because the refusal to vacate the award remained interlocutory until the award was confirmed, we consider but reject Cinatl’s challenge to the first order. We conclude the court properly confirmed the award. Finding no merit to Cinatl’s other arguments, we affirm the court’s judgment.",introduction
+11,859699,1,2,"¶8. This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Mount v. Mount, 624 So. 2d 1001, 1004 (Miss. 1993); Bowers Window and Door Co., Inc. v. Dearman, 549 So. 2d 1309 (Miss. 1989)(citing Bullard v. Morris, 547 So. 2d 789, 791 (Miss. 1989); Gibson v. Manuel, 534 So. 2d 199, 204 (Miss. 1988); Johnson v. Hinds County, 524 So. 2d 947, 956 (Miss. 1988); Bell v. City of Bay St. Louis, 467 So. 2d 657, 661 (Miss. 1985); Culbreath v. Johnson, 427 So. 2d 705, 707-708 (Miss. 1983). DISCUSSION OF LAW ¶9. The crux of this case is the interpretation of two paragraphs found in the separation agreement. The text of paragraph VI(1)(d) of the agreement provides that: The husband will pay unto his Wife, or will provide, that his employer or retirement benefits program administrator will pay unto said Wife, one-half (1/2) of his monthly retirement benefits that have acrued as of the date of this agreement and will hereafter accrue until retirement, upon the retirement of the Husband from Union Camp Corporation, his employer, or any successor employer, said one-half (1/2) of retirement payment to be made monthly and to continue until his wife remairries, or dies, whichever occurs first. The Husband further agrees to continue to contribute to his retirement fund with his employer at the same level he has contributed for the past twelve (12) months prior to the execution of this agreement. The Husband also agrees to furnish documentation to the Wife of his annual statement of earnings with said retirement account of Union Camp Corportation, or successor employer, and hereby further authorizes his employer and/or his employer's retirement fund to give acces to the Wife of any and all information concerning said retirement fund account and to execute any documents necessary to properly vest the Wife's interest in said retirement fund. . . . ¶10. The text of paragraph VI(1)(e) of the agreement provides: The Husband will also pay to the Wife one-half (1/2) of any and all retirement funds of any description, as they become available at retirement, to include individual retirement accounts (I.R.A.). Husband agrees to furnish Wife documentation concerning any of these accounts. . . . ¶11. Joan argues that Ronald failed to provide information concerning the Savings and Investment Plan, a 401-K account, and that the paragraphs above cover such an account. She maintains Ronald is required to convey to her one-half interest in this account at retirement. ¶12. The Holloman's intent in the execution of the property settlement agreement was to insure Joan's continuous alimony upon Ronald's retirement. From a complete reading of the settlement agreement, it would be difficult not to say that the intentions of the parties was to provide for permanent support and maintenance for Joan, whether Ronald was employed or retired. This Court, in Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987), stated, It has long been the law in Mississippi that in construing particular provisions in a contract, a court will look to the document as a whole. Id. Here, the Hollomans have expressed their clear intent from a fair reading of the settlement agreement as a whole. Examination of the two paragraphs in question and the specific words utilized therein, clearly show the intent to be that Joan receive one-half of Ronald's retirement benefits, whether in one account or more, and regardless of the name attached to the account. This Court, in Newell v. Hinton, 556 So. 2d 1037 (Miss. 1990), citing Roberts v. Roberts, 381 So. 2d 1333, 1335 (Miss. 1980), stated: Intent of the parties is crucial in contract interpretation. Of course, it must be understood that the words employed in a contract are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy. Newell, 556 So. 2d at 1042. ¶13. According to paragraph VI. 1. d. of the property settlement agreement, Ronald's employer's savings and investment plan constituted a retirement benefit. By any stretch of the imagination, the plan was a retirement fund of which Ronald had promised to pay one half of any and all retirement funds of any description, as they become available at retirement. . . . as contemplated by paragraph VI. 1. e. This Court finds that this one phrase, of any description alone is broad enough and sufficient to include the retirement 401-K savings plan. The chancellor erred in not finding that the Savings and Investment Plan was a retirement fund under this phrase from paragraph VI.1.e. of the property settlement agreement. ¶14. Joan attempted within two months of the divorce to establish her rights to Ronald's retirements accounts. She was advised that a Qualified Domestic Relations Order (QDRO) was necessary. Ronald only advised her of Union Camp Corporation, his employer's, retirement income plan. The QDRO was accordingly prepared, submitted to the lower court and executed on May 3, 1992. ¶15. Subsequent to the entry of the court's order, Joan discovered the plan did not contain all of Ronald's total assets accumulated toward retirement during the marriage. In fact, only $16,000 was contained in the retirement plan about which Ronald had actually told Joan. However, unbeknownst to Joan, Ronald also had a 401-K account called a Savings and Investment Plan. This account had a value of $209,000 at the end of 1993. The settlement agreement clearly covered this plan. Ronald's withholding of this vital information was in direct contradiction of the agreement. Joan's attempt to have a revised QDRO order entered incorporating the 401-K plan in conformity with the settlement agreement was opposed by Ronald. The chancellor found that Joan's request for modification failed for want of specificity and denied her requested relief. ¶16. The chancellor found that the disputed retirement fund was not referred to by that name by the administering company, but rather, the company referred to it as a savings and investment plan. Such reliance upon the mere name of the account is obviously misplaced. This Court must look to the document as a whole, examining the nature of the account, its purpose and use, as being more important as a determining factor of whether the account actually is a retirement account. Ronald's employer's description of the plan clearly indicated that the purpose of the plan was to encourage investment for retirement. Additionally, Joan's expert witness, Eddie Powell, an attorney with a master's degree in taxation, testified that the savings plan was a retirement account under federal law. He testified that there are two types of employee benefits, welfare and pension. Pension benefits concern payments that an employee accrues and receives at retirement. He further testified that there are two basic types of plans, benefit plans and defined contribution plans, the former funded solely by the employer and the latter including employee contributions. ¶17. ERISA explains what kind of plan the savings and investment plan is under federal law. A defined contribution plan is a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account, any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant's account. Powell testified that Ronald's savings and investment plan was a defined contribution plan as defined by ERISA. Ronald offered no proof regarding specifics of what a retirement account consists. The chancellor was thus required to rely on Joan's sole expert testimony. ¶18. Union Camp Corporation's own literature in explaining the Savings and Investment Plan, stated, The government permits before tax savings to encourage you to put money aside for retirement. Retirement was lited as the first reason for taking a payout of the benefits. ¶19. Ronald even answered in discovery that he used the savings plan to defer income for retirement purposes, though admittedly he claimed it was not his sole purpose. The admission by Ronald that he used the savings and investment plan for retirement purposes destroys his entire argument that such a plan is not a retirement plan. Ronald's admission alone warrants the reversal of this case, because it established that he did have a retirement purpose in the plan. ¶20. Ronald's Savings and Investment Plan was a retirement account by any definition of the term, including Ronald's own definition. The lack of the specific name of that account within the settlement agreement is of no consequence. The language of paragraph VI. 1.d. was clear that this account was contributing Ronald's earnings for deferment until retirement. When this Court considers all of this evidence, there can be no question that reversal is required. We hold that the chancellor erred in ruling that Joan's claim failed for lack of specificity in the settlement agreement. ¶21. This Court has recognized systematic contributions for a self-employed ERISA plan as a retirement plan enabling the chancellor to determine division of property. Draper v. Draper, 627",standard of review
+12,2055714,1,4,"Immediately after Donald Griffin, a patron of the tavern who was present at the time of the Robbery, was sworn as a witness in the State's case-in-chief, Crenshaw's defense counsel objected based on the fact that I tried to depose this man on at least two occasions, and he never appeared. I now find myself confronted with a witness that despite my best efforts, I have not had the opportunity to investigate or hear what he has to say. Defendant contends that he, too, was deprived of the opportunity to depose witness Griffin and that he should have been granted adequate time, following a mid-trial deposition, to investigate the witness and his story. Defendant argues that in the absence of such time to prepare, witness Griffin should not have been permitted to testify at trial. The record discloses that Defendant did not specifically move for a continuance nor object to the Court's permitting Griffin to testify: Trial Court: All Right, there is no motion for a continuance    [H]aving had an opportunity to depose the witness, the Court will now allow him to testify. Mr. Olson [defendant's counsel], do you have anything you wish to say? Mr. Olson: Nothing I wish to add. He didn't give me anything I didn't already have. Defendant, therefore, acquiesced in the court's ruling. Furthermore, he has not shown how he was harmed by the ruling allowing witness Griffin to testify. We find no reversible error. The judgment of the trial court is affirmed. GIVAN, C.J., and DeBRULER, HUNTER and PIVARNIK, JJ., concur.",issues
+13,2775038,1,4,"We suspend Eslick’s license to practice law with no possibility of reinstatement for thirty days from the date this opinion is filed. The suspension applies to “all facets of the ordinary law practice.” Iowa Ct. R. 35.13(3). Unless the Board files an objection, Eslick will be automatically reinstated after the thirty-day-suspension period on condition that all costs have been paid. See id. r. 35.13(2). Eslick must also notify all clients of the suspension as required by Iowa Court Rule 35.23. Costs are assessed against Eslick pursuant to Iowa Court Rule 35.27(1). LICENSE SUSPENDED.",conclusion
+14,4225210,1,3,"¶40 In evaluating Breitzman's ineffective assistance of counsel claim, we consider three acts——or failures to act——of Breitzman's trial counsel: (A) trial counsel's failure to move for dismissal of count five for disorderly conduct on free speech grounds; (B) trial counsel's failure to present opening remarks consistent with Breitzman's anticipated testimony; and (C) trial counsel's failure to object to testimony regarding other uncharged conduct. ¶41 As to the first, we conclude that trial counsel's failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman's constitutional right to free speech was not deficient performance, and thus not ineffective assistance of counsel, because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law. ¶42 As to the second, we conclude that trial counsel's theory of reasonable parental discipline, as presented in opening remarks, was not deficient performance, and thus not ineffective assistance of counsel, because it reflected trial counsel's reasonable expectations, which were rationally based 22 No. 2015AP1610-CR on discussions with Breitzman, and it was part of a reasonable trial strategy. ¶43 As to the third, we conclude that trial counsel's failure to object to testimony regarding uncharged conduct was not deficient performance, and thus not ineffective assistance of counsel, because declining to object was part of a reasonable trial strategy. ¶44 Because we conclude that trial counsel's performance was not deficient, we need not address whether, in the context of ineffective assistance of counsel, there was prejudice to Breitzman, and we decline to do so. ¶45 Thus, we affirm the decision of the court of appeals.
+To Move For Dismissal Of The Disorderly Conduct Count On Free Speech Grounds. ¶46 We consider first whether trial counsel's failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman's constitutional right to free speech constituted ineffective assistance of counsel. ¶47 Breitzman argues that the failure to raise a free speech claim was ineffective assistance because the disorderly conduct charge was based on the content of Breitzman's speech in the privacy of her home, which did not fall within one of the narrow categories of unprotected speech. The State argues that the failure to raise a free speech claim was not ineffective assistance because Breitzman has not demonstrated that, as a 23 No. 2015AP1610-CR matter of settled law, she had a right to engage in profane conduct that tends to cause or provoke a disturbance.18 ¶48 We conclude that trial counsel's failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman's constitutional right to free speech was not deficient performance, and thus not ineffective assistance of counsel, because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law. ¶49 At the outset, we note that, for trial counsel's performance to have been deficient, Breitzman would need to demonstrate that counsel failed to raise an issue of settled law. [F]ailure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer's services 'outside the wide range of professionally competent assistance' sufficient to satisfy the Sixth Amendment. Lemberger, 374 Wis. 2d 617, ¶18 (quoting Basham v. United States, 811 F.3d 1026, 1029 (8th Cir. 2016)). Rather, ineffective assistance of counsel cases should be limited to situations where the law or duty is clear . . . . Id., ¶33 (quoting State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994)). Thus, we turn to the question of whether the 18 We note that Wis. Stat. § 947.01(1) is not limited to public places: Whoever, in a public or private place . . . . Thus, the fact that Breitzman was in the privacy of her home does not necessarily affect our analysis. 24 No. 2015AP1610-CR law is clear that profane conduct that tends to cause or provoke a disturbance is protected as free speech. It is not. ¶50 An individual is guaranteed the right to free speech under Article I, Section 3 of the Wisconsin Constitution, which states in relevant part that [e]very person may freely speak . . . his sentiments on all subjects, being responsible for the abuse of that right . . . . The same right is guaranteed under the First Amendment of the United States Constitution, which states in relevant part that Congress shall make no law . . . abridging the freedom of speech. Despite the differences in language between these two provisions, we have found no differences in the freedoms that they guarantee. State v. Robert T., 2008 WI App 22, ¶6, 307 Wis. 2d 488, 746 N.W.2d 564. ¶51 The First Amendment case law applicable to profanity and disorderly conduct finds root in Chaplinsky v. New Hampshire, which held: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words——those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. . . . [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its 25 No. 2015AP1610-CR punishment as a criminal act would raise no question under that instrument. 315 U.S. 568, 571-72 (1942) (footnotes omitted) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)). ¶52 In a series of cases post-Chaplinsky, this court upheld Wis. Stat. § 947.01 against numerous free speech challenges. In State v. Zwicker we held that § 947.01 (196768)19 did not violate defendants' free speech rights because [i]t rarely has been suggested that the constitutional freedom for speech . . . extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. 41 Wis. 2d 497, 513, 164 N.W.2d 512 (1969). In State v. Maker we again upheld § 947.01 (1967-68), noting that any challenge to the disorderly conduct statute based on words spoken or conduct engaged in must balance the right to maintain the public peace with the imperative to protect constitutionally assured personal freedoms. 48 Wis. 2d 612, 615, 180 N.W.2d 707 (1970). In State v. Werstein we upheld § 947.01 (1971-72) once again, emphasizing that [i]t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation; convictions for being 'otherwise disorderly' result[] from the inappropriateness of specific conduct because of the circumstances involved, namely, where demeanor could be deemed 19 The operative language of subsection (1) of the statute, which is at issue here, has not changed substantially since these cases were decided. 26 No. 2015AP1610-CR abusive or disturbing in the eyes of reasonable persons. 60 Wis. 2d 668, 672-74, 211 N.W.2d 437 (1973); see also State v. Becker, 51 Wis. 2d 659, 664-65, 188 N.W.2d 449 (1971); State v. Givens, 28 Wis. 2d 109, 121-22, 135 N.W.2d 780 (1965). ¶53 The United States Supreme Court, however, soon after issuing Chaplinsky, narrowed its holding. See Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In Terminiello, the Court held that freedom of speech, though not absolute . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Id. But see Roth v. United States, 354 U.S. 476, 482-83 (1957) ([At the time of ratification] all of [the] States made either blasphemy or profanity, or both, statutory crimes. . . . In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.).20 20 In response, Breitzman cites to Duncan v. United States, 48 F.2d 128 (9th Cir. 1931), for the proposition that [t]he question of what constitutes profane language . . . is usually dealt with as a branch of the common-law offense of blasphemy. Presumably, Breitzman cites this case to undermine the constitutionality of a statute which regulates speech rooted in archaic norms of propriety. We do not address this issue here, however, as Breitzman has not raised a claim that her speech was not profane, or that the statute is facially unconstitutional or unconstitutional as-applied to her; her claim here is limited to whether defense counsel was ineffective for failing to make such a challenge. 27 No. 2015AP1610-CR ¶54 Similarly, while we need not adopt any of the following tests for the purposes of our review today, we note that our more recent case law could be read to restrict statutory regulation of speech to the well-defined categories of unprotected speech: fighting words,21 speech that incites others into imminent lawless action,22 obscenity,23 libel and defamatory speech,24 and true threats25.26 See State v. Douglas D., 2001 WI 47, ¶17, 243 Wis. 2d 204, 626 N.W.2d 725; State v. A.S., 2001 WI 48, ¶16, 243 Wis. 2d 173, 626 N.W.2d 712 ([The defendant's] speech can be prosecuted only if [it] is one of the limited 21 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 22 See Brandenburg v. Ohio, 395 U.S. 444 (1969). 23 See Miller v. California, 413 U.S. 15 (1973). 24 See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 25 See Watts v. United States, 394 U.S. 705 (1969). 26 See also United States v. Alvarez, 567 U.S. 709, 717 (2012) (adding speech integral to criminal conduct, child pornography, fraud, and speech presenting some grave and imminent threat the government has the power to prevent as other content-based restrictions that have been permitted). With regard to content-based restrictions, Breitzman also cites Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004) for the proposition that the Constitution demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality. We express no opinion here, however, as to the constitutionality of Wis. Stat. § 947.01 with regard to whether it is a content-based restriction or otherwise, because Breitzman has not made a facial or as-applied challenge to the statute; her claim here is limited to whether defense counsel was ineffective for failing to make such a challenge. 28 No. 2015AP1610-CR categories of speech that fall outside the protections of the First Amendment.); cf. Douglas D., 243 Wis. 2d 204, ¶24, (noting that Wis. Stat. § 947.01 is a recognition of the fact that in some circumstances words carry with them proscribable nonspeech elements, i.e., conduct); State v. Schwebke, 2002 WI 55, ¶¶29-31, 253 Wis. 2d 1, 644 N.W.2d 666 (holding that the disorderly conduct statute does not only apply to public disruptions). The depth and breadth of these restrictions on free speech are not so settled in Wisconsin law that counsel's performance could be deemed deficient in this case. ¶55 Additionally, the United States Supreme Court has rejected any balancing test that may be inferred from its historical descriptions of unprotected categories of speech as being of such slight social value . . . that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. See United States v. Stevens, 559 U.S. 460, 470 (2010) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 383 (1992) (quoting Chaplinsky, 315 U.S. at 572)); see also Brown v. Entm't Merch. Ass'n, 564 U.S. 786, 792 (2011); cf. Brown, 564 U.S. at 792 (quoting Stevens, 559 U.S. at 472) ('Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.'). ¶56 This body of case law does not promulgate a clear standard as to whether a charge under Wis. Stat. § 947.01, based on profane conduct that tends to cause or provoke a disturbance, violates the constitutional right to free speech. And, because 29 No. 2015AP1610-CR Breitzman does not raise a facial or as-applied challenge to the disorderly conduct statute,27 we are confined to considering the narrower issue of whether the law was so well settled that counsel's performance was legally deficient. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (An appellate court should decide cases on the narrowest possible grounds.). In that regard, trial counsel was not ineffective for not moving to dismiss the disorderly conduct charge, because doing so would have required that there be a resolution of an unsettled question of law. See Lemberger, 374 Wis. 2d 617, ¶18. ¶57 We recognize, however, that the use of profanity alone is not enough to sustain a charge for disorderly conduct. A charge for disorderly conduct has two elements: first, that the defendant engage[d] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct; second, that the defendant's conduct tends to cause or provoke a disturbance. See Wis. Stat. § 947.01(1). Profanity alone might satisfy the first element, but it does not likely satisfy the second element. Thus, it is not profanity alone that is being regulated by the statute. ¶58 We also note that the charge against Breitzman was not just that she engaged in profane conduct, but that she did engage in profane conduct, under circumstances in which 27 See supra ¶5, n.4. 30 No. 2015AP1610-CR such conduct tended to cause a disturbance . . . .28 To be clear, the crime of disorderly conduct under Wis. Stat. § 947.01 requires more than profane speech alone. See Cohen v. California, 403 U.S. 15, 22 (1971) (holding that wearing a jacket bearing the words Fuck the Draft did not disturb the peace where the words were the only conduct, in part because there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it). But, as is clear from the testimony here, Breitzman was not charged with disorderly conduct solely because she swore at her son in the privacy of her home; rather she was charged and convicted of disorderly conduct because her profane conduct was that which, under the circumstances presented, tended to cause or provoke a disturbance. See Werstein, 60 Wis. 2d at 673-74 ([C]onvictions for being 'otherwise disorderly' result[] from the inappropriateness of specific conduct because of the circumstances involved, namely where demeanor could be deemed abusive or disturbing in the eyes of reasonable persons). ¶59 Here, the jury heard evidence of other occasions where Breitzman called J.K. a fuck face, retard, and piece of shit——and on two of the five occasions charged, this profanity was punctuated by physical abuse. Conviction on count one, for 28 Additionally, we note that the State could have charged Breitzman with more than profane conduct, as it is one of many options under the statute. Had the State done so, Breitzman acknowledged at oral argument that the constitutional question here would not be in issue. 31 No. 2015AP1610-CR physical abuse, was supported by testimony that Breitzman struck J.K. on the side of the head when he was not sweeping right or fast enough, calling him a piece of shit and the dog of the house. Conviction on count two, also for physical abuse, was supported by testimony that Breitzman came into J.K.'s room and struck him in the face when he would not get out of bed, calling him a fuck face and a retard. ¶60 The jury also heard testimony from J.K.'s best friend about the impact this had on J.K., who went from always happy and nice to more stressed out and tired and just more sad.29 A situation need not escalate to violence for the reasonable person to determine that the profanity tended to cause or provoke a disturbance.30 Simply stated, were this case about profanity alone, isolated from the context and conduct out of which the charge arose, and had Breitzman made a constitutional challenge to the validity of the statute vis-à-vis profanity alone, we might be confronted with the need to resolve a free speech argument. But that is just not this case; rather 29 Additionally, J.K. testified that these interactions with his mother made him feel worthless, often making him cry, ultimately causing him to report this home situation to his counselor at school and to the police. 30 It is not necessary that an actual disturbance must have been committed from the defendant's conduct. The law requires only that the conduct be of the type that tends to cause or provoke a disturbance under the circumstances as they then existed. You must consider not only the nature of the conduct, but also the circumstances surrounding that conduct. What is proper under one set of circumstances may be improper under other circumstances. See Wis JI——Criminal 1900 (2016). 32 No. 2015AP1610-CR Breitzman's conduct, because [of] the circumstances involved, could rightfully be deemed abusive or disturbing in the eyes of reasonable persons. Werstein, 60 Wis. 2d at 673-74. ¶61 In sum, Breitzman has failed to demonstrate that counsel's performance was deficient because the law in this area is unsettled. Additionally, Breitzman's conduct was more than just profanity, and the law does not support the notion that, because Breitzman engaged in profane conduct, she is to be protected from prosecution regardless of the fact that the circumstances tended to cause or provoke a disturbance. Thus, her trial counsel's performance did not fall below the objective standard of reasonableness.
+To Present Opening Remarks Consistent With Breitzman's Anticipated Testimony. ¶62 We consider second the issue of whether defense counsel's theory of reasonable parental discipline at trial constituted ineffective assistance of counsel in light of Breitzman's denial that she struck J.K. on the two charged occasions. ¶63 Breitzman argues that it was inconsistent to argue in opening remarks that striking J.K. was reasonable parental discipline where she planned to testify that she did not strike J.K. on the two charged occasions, and that, but for this inconsistency, the jury would have been presented with a more straightforward credibility comparison. The State argues that Breitzman's counsel's theory of reasonable parental discipline, 33 No. 2015AP1610-CR as presented in the opening remarks, was not ineffective assistance because it was short, vague, and struck a careful balance between Breitzman's plan to deny that she struck J.K. on the two charged occasions and trial counsel's reasonable anticipation that the uncharged incident in the car would likely arise during testimony; moreover, Breitzman agreed with this strategy and any unfair prejudice was addressed by the circuit court's jury instruction that attorney arguments are not evidence. ¶64 We conclude that defense counsel's theory of reasonable parental discipline, as presented in opening remarks, was not deficient performance, and thus not ineffective assistance of counsel, because it reflected trial counsel's reasonable expectations, which were rationally based on discussions with Breitzman, and it was part of a reasonable trial strategy. ¶65 At the outset, we note that, for trial counsel's performance to have been deficient, Breitzman would need to overcome the strong presumption of reasonableness of her defense counsel's trial strategy by demonstrating that counsel's incorporation of the reasonable parental discipline defense was irrational or based on caprice. Trial strategy is afforded the presumption of constitutional adequacy. See, e.g., Balliette 336 Wis. 2d 358, ¶26; State v. Maloney, 2005 WI 74, ¶43, 281 Wis. 2d 595, 698 N.W.2d 583. Reviewing courts should be 'highly deferential' to counsel's strategic decisions and make 'every effort . . . to eliminate the distorting effects of 34 No. 2015AP1610-CR hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' See Domke, 337 Wis. 2d 268, ¶36 (quoting Carter, 324 Wis. 2d 640, ¶22). This court will not second-guess a reasonable trial strategy, [unless] it was based on an irrational trial tactic or based upon caprice rather than upon judgment. Id., ¶49. In fact, where a lower court determines that counsel had a reasonable trial strategy, the strategy is virtually unassailable in an ineffective assistance of counsel analysis. State v. Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d 557, 685 N.W.2d 620. Thus, we turn to the question of whether trial counsel's defense theory of reasonable parental discipline was an irrational trial tactic or based on caprice. It was not. ¶66 The parties focus their arguments on defense counsel's opening remarks, which discussed the jury instruction for reasonable parental discipline and framed the issue as whether [Breitzman] is a criminal or just a struggling parent[.] I believe the evidence will show that she is not a criminal . . . . ¶67 Trial counsel testified at the Machner hearing that he pursued the reasonable parental discipline theory in part because of his concern about the credibility battle that would play out at trial. He also testified that he discussed the reasonable parental discipline theory with Breitzman, and Breitzman testified that she agreed to it. Trial counsel did not specifically recall whether Breitzman had categorically 35 No. 2015AP1610-CR denied striking J.K. on the two charged occasions, but did recall that it was important to Breitzman to bring up the uncharged incident in the car to explain J.K.'s level of animosity toward his mother such that he would falsely accuse her of abuse and neglect.31 ¶68 Given this testimony, defense counsel's decision to incorporate the theory of reasonable parental discipline in his opening remarks was not ineffective assistance. First, [i]n light of the not uncommon practice of lawyers to argue inconsistent theories, we cannot say that the decision [to do so] deprive[s a defendant] of the right to constitutionally effective assistance, irrespective of whether we or the trial court view that strategy as the best. State v. Marks, 2010 WI App 172, ¶17, 330 Wis. 2d 693, 794 N.W.2d 547; see also Brown v. Dixon, 891 F.2d 490, 494–95 (4th Cir. 1989) (holding that it was not ineffective assistance of counsel where the defense theory was that Brown either did not commit the murders or did so while drunk because the use of inconsistent defenses was objectively reasonable under prevailing professional norms). ¶69 Second, trial counsel's decision was based on a discussion with Breitzman about her relationship with J.K. and the evidence that she expected and wanted to come out at trial; 31 At the Machner hearing, defense counsel testified that [s]he also told me that she believed that [the car incident] was part of the . . . animus [] he had against her to try to create these other issues such as when he was injured lifting dumbbells and claimed she had struck him, et cetera. 36 No. 2015AP1610-CR therefore, it was not based on caprice. Nor was it irrational: the record reflects that the State pled a number of other acts in its criminal complaint, including the uncharged incident in the car; that Breitzman in fact wanted this other act to come in to establish J.K.'s motive to lie; and that Breitzman never unequivocally told trial counsel that she intended to deny striking J.K. on the two charged occasions.32 Thus, it was rational for her trial counsel to formulate a strategy and argue a theory of defense with the expectation that some other acts would come out at trial. Such a strategy had to account for the possibility that Breitzman's credibility would be undermined by evidence of other acts, and giving the jury an alternate ground for acquittal in the event that they had doubts about Breitzman's credibility and questions about the other acts was a reasonable means of accommodating such contingency. ¶70 Additionally, there are many aspects of a trial which make its outcome uncertain and we cannot let our judgment of trial strategy be clouded by the clarity of hindsight. See, e.g., Domke, 337 Wis. 2d 268, ¶36 (Reviewing courts should . . . make every effort to eliminate the distorting 32 In this regard, we note that the circuit court found that defense counsel's testimony at the Machner hearing was credible. In light of Breitzman's bias, both from hindsight and as an interested party, we cannot hold that such a finding was clearly erroneous. See State v. Shata, 2015 WI 74, ¶31, 364 Wis. 2d 63, 868 N.W.2d 93 ([T]his court will not exclude the circuit court's articulated assessments of credibility and demeanor, unless they are clearly erroneous.). 37 No. 2015AP1610-CR effects of hindsight.) We have concluded here that defense counsel's decision to argue the reasonable parental discipline defense in his opening remarks was not ineffective based on the record. We note that the record also reflects that Breitzman's trial counsel adjusted his strategy based on the development of evidence at trial: after Breitzman's testimony concluded, her trial counsel adjusted course, successfully advocating for the inclusion of reasonable parental discipline as a therapeutic instruction for other acts and limiting his discussion of reasonable parental discipline during closing argument to the other acts.33 These adjustments were appropriate. ¶71 In sum, Breitzman has failed to demonstrate that her trial counsel's performance was deficient because pursuing a theory of reasonable parental discipline was rationally based on counsel's discussions with Breitzman and his expectations for what evidence would come out at trial. Additionally, when trial 33 After testimony concluded on day two, and before testimony began on day three, the circuit court conferred with the parties outside the presence of the jury regarding jury instructions. The court expressed concern that there was not enough evidence to give the reasonable parental discipline instruction because Breitzman was denying striking J.K. on the two charged occasions. The State agreed. Defense counsel argued that the instruction was appropriate because the State had introduced other acts, namely the uncharged incident in the car, which entitled Breitzman to assert the reasonable parental discipline defense. The court ultimately agreed to incorporate part of the jury instruction for the reasonable parental discipline defense, see Wis JI——Criminal 950 (2014), as a therapeutic instruction responsive to other acts. See infra ¶78. 38 No. 2015AP1610-CR did not proceed in accordance with counsel's expectations, he adjusted course and the court's limiting instructions——discussed below——appropriately addressed any potential juror confusion. Thus, trial counsel's performance did not fall below the objective standard of reasonableness. C. Trial Counsel Was Not Deficient For Failing To Object To Testimony Regarding Other Uncharged Conduct. ¶72 We consider third the related issue of whether trial counsel's failure to object to testimony regarding other uncharged conduct constituted ineffective assistance of counsel. ¶73 Breitzman argues that the failure to object to testimony about acts other than those underlying the charges was ineffective assistance because the testimony was inadmissible other acts evidence under Wis. Stat. § 904.04 and, but for admission, the jury would have been presented with a more straightforward credibility comparison. The State argues that the failure to object was not ineffective assistance because allowing this testimony was a reasonable means of accomplishing trial counsel's strategy to undermine J.K.'s credibility by depicting him as a rebellious teenager who was making grandiose allegations; moreover, Breitzman agreed with this strategy. ¶74 We conclude that trial counsel's failure to object to testimony regarding uncharged conduct was not deficient performance, and thus not ineffective assistance of counsel, because declining to object was part of a reasonable trial strategy. 39 No. 2015AP1610-CR ¶75 At the outset, we note that this is again a question of trial strategy, and, as such, that Breitzman must overcome the strong presumption of reasonableness afforded to trial counsel's decisions regarding trial strategy; for trial counsel's performance to have been deficient, Breitzman would need to demonstrate that counsel's decision not to object to other acts was inconsistent with a reasonable trial strategy, that is, that it was irrational or based on caprice. As noted above, trial strategy is afforded the presumption of constitutional adequacy. See, e.g., Balliette 336 Wis. 2d 358, ¶26; Maloney, 281 Wis. 2d 595, ¶43. Reviewing courts should be highly deferential to counsel's strategic decisions and make every effort 'to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.' See Domke, 337 Wis. 2d 268, ¶36 (quoting Carter, 324 Wis. 2d 640, ¶22). This court will not second-guess a reasonable trial strategy, [unless] it was based on an irrational trial tactic or based upon caprice rather than upon judgment. Id., ¶49. In fact, where a lower court determines that counsel had a reasonable trial strategy, the strategy is virtually unassailable in an ineffective assistance of counsel analysis. Maloney, 275 Wis. 2d 557, ¶23. Thus, we turn to the question of whether trial counsel's failure to object to otheracts evidence was an irrational trial tactic or based on caprice. It was not. 40 No. 2015AP1610-CR ¶76 Here, the trial strategy was to demonstrate that J.K. was making false and grandiose allegations against Breitzman. As a part of this strategy, trial counsel did not object to other acts involving slapping, failing to provide medical care, and/or profanity, because he intended for that evidence to undermine J.K.'s credibility and cast Breitzman as a single parent doing the best she could with a rebellious teenager. In other words, the testimony as to other acts was central to the defense's strategy for bolstering Breitzman's credibility, and its theory of reasonable parental discipline, because, for the defense to be successful, the jury needed to understand the context of the relationship between Breitzman and J.K. so as to appropriately assess credibility and determine culpability. Thus, failing to object to other acts testimony was not deficient performance because it was rational in light of trial counsel's strategy and theory. ¶77 In general, it can be quite effective for a defendant to say 'I did this and I did that, but I did not do what the State has charged me with,' because it tends to establish a defendant's credibility. But, there are many aspects of a trial which make its outcome uncertain and we cannot let our judgment of trial strategy be clouded by the clarity of hindsight. See, e.g., Domke, 337 Wis. 2d 268, ¶36 (Reviewing courts should . . . make every effort to eliminate the distorting effects of hindsight.). Furthermore, Breitzman agreed to the defense theory of reasonable parental discipline and [a]n accused cannot follow one course of strategy at the time of 41 No. 2015AP1610-CR trial and if that turns out to be unsatisfactory complain [she] should be discharged or have a new trial. Cross v. State, 45 Wis. 2d 593, 605, 173 N.W.2d 589 (1970). Thus, Breitzman cannot now complain just because a strategy that was reasonable at the outset turned out to be unsuccessful. ¶78 Additionally, the circuit court gave jury instructions that limited any unfair prejudice that may have resulted from the other acts testimony. With regard to other acts, the court instructed as follows: Evidence has been presented regarding other conduct of the defendant for which the defendant is not on trial. . . . If you find that this conduct did occur, you should consider it only on the issues of intent and context or background. You may not consider this evidence to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character with respect to the offense charged in this case. The evidence was received by [sic] the issues of intent, that is, whether the defendant acted with the state of mind that is required for the offense charged, and to prove context or background that is to provide a more complete presentation of the evidence related to the offense charged. With regard to the uncharged incident in the car, the court additionally instructed as follows: As to [the] striking of [J.K.] with the back of the hand in the car, discipline of a child is an issue. The law allows a person responsible for the child's welfare to use reasonable force to discipline that child. Reasonable force is that force which a reasonable person would believe is necessary. Whether a reasonable person would have believed that the amount of force used was necessary and not 42 No. 2015AP1610-CR excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under circumstances that existed at the time of the alleged offense. These limiting instructions were sufficient to address any unfair prejudice that may have resulted from the other acts testimony, and in fact bolstered Breitzman's defense regarding reasonable parental discipline. See State v. Marinez, 2011 WI 12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399 (We presume that juries comply with properly given limiting and cautionary instructions, and thus consider this an effective means to reduce the risk of unfair prejudice to the party opposing admission of other[-]acts evidence.). ¶79 In sum, Breitzman has failed to demonstrate that counsel's performance was deficient because admission of other acts testimony was central to a reasonable defense theory and strategy. Additionally, any unfair prejudice was appropriately addressed by limiting instructions from the court. Thus, defense counsel's performance did not fall below the objective standard of reasonableness. D. We Need Not Consider Prejudice Because Trial Counsel Was Not Deficient. ¶80 To succeed on an ineffective assistance of counsel claim, a petitioner must establish both that counsel's performance was deficient and that the deficient performance was prejudicial. See Strickland, 466 U.S. at 687. 43 No. 2015AP1610-CR ¶81 Where the petitioner fails to satisfy either prong of the ineffective assistance of counsel analysis we need not consider the other. See Strickland, 466 U.S. at 697. Because we conclude that Breitzman has not established that trial counsel's performance was deficient, we need not address whether, in the context of ineffective assistance of counsel, the alleged errors individually or cumulatively prejudiced Breitzman, and we decline to do so.",analysis
+15,4424226,1,5,"[3] The Court of Appeals denied McEwen’s motion for rehearing, basing its denial on Capitol Construction v. Skinner.10 No doubt relying on prior decisions of this court, the court did not consider whether § 25-1329 affected the time for appeal from the March judgment. And neither party argued that question to the Court of Appeals. But that matters not. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.11 If an alternative basis supported jurisdiction, the Court of Appeals was bound to apply it unless it was foreclosed by existing precedent from this court.12 Here, the Court of Appeals quite reasonably concluded that Capitol Construction dictated that it lacked jurisdiction of McEwen’s appeal. 1. McEwen’s Primary A rgument On further review, McEwen relies primarily on the same argument he presented to the Court of Appeals in support of 8 State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d 903 (2018). 9 In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014). 10 Capital Construction, supra note 3. 11 Becher v. Becher, 302 Neb. 720, 925 N.W.2d 67 (2019). 12 See State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009). - 559 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 rehearing there—that the district court’s order overruling his alternative motion to vacate was itself a final, appealable order under Capitol Construction. [4] Before turning to that argument, we note that on further review, McEwen has abandoned his argument based on his motion for new trial. The Court of Appeals rejected that argument, and in McEwen’s brief in support of his petition for further review, he neither assigns error nor presents argument addressing the motion for new trial. It is well established that a petition for further review and supporting memorandum brief must specifically set forth and discuss any error assigned to the Court of Appeals.13 Therefore, we do not consider it. Regarding McEwen’s motion to vacate, both his argument and the Court of Appeals’ summary disposition rely upon our decision in Capitol Construction, which we first summarize and then apply. (a) Capitol Construction Capitol Construction was an appeal from county court to district court, where the district court dismissed the appeal for lack of progression after the defendants, who brought the appeal, failed to reply to a progression letter.14 But the progression letter was sent only to the defendants’ trial counsel, who failed to either respond or forward the notice to appellate counsel. Within 10 days of the dismissal, the defendants, through their appellate counsel, filed a motion to reinstate the appeal. The district court denied the motion, and the defendants appealed to the Court of Appeals. This appeal was filed more than 30 days after the dismissal, but within 30 days of the denial of their motion to reinstate. Before the Court of Appeals, the defendants sought review of the district court’s denial of their motion to reinstate. The 13 See State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013). 14 Capitol Construction, supra note 3. - 560 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 Court of Appeals dismissed the appeal as untimely,15 and we granted further review. [5] In analyzing the jurisdictional question, we first reiterated our holding in State v. Hausmann,16 that a district court sitting as an appellate court has the same power to reconsider its orders, both inherently and under § 25-2001, as it does when it is a court of original jurisdiction.17 We then said that “an order denying a motion to vacate or modify a final order is itself a final, appealable order.”18 But we reasoned the Court of Appeals had jurisdiction, because “[the] later order [was] based upon grounds that [made] it independently final and appealable and the merits of that order [were] the issue raised on appeal.”19 Although it was not necessary to our decision in Capitol Construction, we observed that the Court of Appeals did not have jurisdiction to consider an appeal challenging the merits of the earlier, progressionbased dismissal order. We then recited the familiar proposition that a motion for reconsideration does not toll the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.20 (b) Not Independently Final and Appealable Accepting for the moment the reasoning of Capitol Construction to the extent that that decision implicitly relied on Goodman, Timmerman, and Hausmann regarding § 25-1329, McEwen’s argument overlooked an important distinction: There 15 Capitol Construction v. Skinner, 17 Neb. App. 662, 769 N.W.2d 792 (2009), reversed, Capitol Construction, supra note 3. 16 Hausmann, supra note 12. 17 Capitol Construction, supra note 3. 18 Id. at 423, 778 N.W.2d at 725. 19 Id. at 425, 778 N.W.2d at 726. 20 See, e.g., Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000). - 561 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 was no independent basis for appeal from McEwen’s alternative motion to vacate. Although the district court acknowledged a factual misstatement, it did not modify its judgment. There was no intervening new matter, as there was in Capitol Construction. On appeal to the Court of Appeals, McEwen’s attack ran only to the March judgment. As he stated in his original brief, “The errors assigned relate to [McEwen’s] rights under Section 17.3 of the [collective bargaining agreement].”21 The May order was not based upon grounds that made it independently final and appealable, and the merits of that order were not the issue raised on appeal. 2. Motions to A lter or A mend in A ppeals It follows that unless McEwen’s alternative motion to vacate qualified as a motion to alter or amend a judgment pursuant to § 25-1329, his motion did not terminate the time for taking an appeal from the March judgment and his appeal from the May order could not circumvent the outcome that followed. Until we requested supplemental briefing, McEwen took the position that § 25-1329 did not apply. Now, his position has shifted. Before turning to the specific question that we posed to the parties, we briefly recall the development of a motion to alter or amend a judgment created in 2000,22 which is codified as § 25-1329, and our case law determining that it does not apply to an appellate decision of a district court acting as an intermediate court of appeals. (a) State v. Bellamy In State v. Bellamy,23 we acknowledged a statute had been amended to provide that the running of the time for filing a 21 Brief for appellant at 18. 22 See 2000 Neb. Laws, L.B. 921, § 7. 23 State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002). - 562 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 notice of appeal would be terminated not only by a timely motion for new trial 24 or by a timely motion to set aside a verdict or judgment,25 but, also, by a timely motion to alter or amend a judgment under § 25-1329. This amendment 26 occurred in the same legislation that introduced a motion to alter or amend a judgment into Nebraska’s civil procedure statutes. [6,7] Two important lessons from Bellamy suggest that McEwen’s motion might qualify as a motion to alter or amend. First, a determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title.27 This remains true.28 Thus, it matters not that McEwen’s motion was titled as an alternative motion to vacate. Second, in order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under § 25-1329, and must seek substantive alteration of the judgment.29 McEwen’s alternative motion to vacate was filed within 10 days of, and sought substantive alteration of, the March judgment. Thus, his motion seemingly met both of the Bellamy criteria. In Bellamy, we implicitly recognized that § 25-1329 was modeled on Fed. R. Civ. P. 59(e) as it then existed.30 We cited numerous federal cases holding that a motion for reconsideration, if filed within 10 days of the entry of judgment, is the functional equivalent of a motion to alter or amend a judgment brought pursuant to rule 59(e). 24 See Neb. Rev. Stat. § 25-1144.01 (Reissue 2016). 25 See Neb. Rev. Stat. § 25-1315.02 (Reissue 2016). 26 See 2000 Neb. Laws, L.B. 921, § 15. 27 See Bellamy, supra note 23. 28 See Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). 29 See Bellamy, supra note 23. 30 28 U.S.C. app. rule 59(e) (2000). - 563 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 But in Bellamy, we did not address whether § 25-1329 applies to a district court’s review of a judgment or final order of a lower court or tribunal. Nor did we examine, given that § 25-1329 was modeled on a federal rule which might have prompted us to consider federal interpretive decisions,31 whether rule 59(e) has been applied in cases where a federal district court reviews the decision of a federal agency. (b) Inapplicable to Appeals We were soon forced to confront whether § 25-1329 applies where an appeal is taken to the district court. In several cases, we determined that it did not. We briefly summarize those decisions. (i) Statutory Appeal From Municipal Tribunal Goodman v. City of Omaha 32 was the first case to determine whether § 25-1329 applied to a district court’s hearing an appeal. The plaintiff appealed an Omaha Zoning Board of Appeals decision, pursuant to Neb. Rev. Stat. § 14-413 (Reissue 1997). The district court affirmed the board’s decision. The plaintiff moved for a new trial and moved to alter or amend the judgment. The district court denied both motions. After the plaintiff perfected an appeal to this court, we dismissed the appeal for lack of jurisdiction. We said, “The present case concerns an appeal from a zoning board of appeals to the district court.”33 We explained that decisions of a zoning board of appeals were reviewable by a 31 See, e.g., Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (2016); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012); Bailey v. Lund-Ross Constr. Co., 265 Neb. 539, 657 N.W.2d 916 (2003) (federal cases construing federal civil procedural rules may be used for guidance in construing equivalent Nebraska civil procedural rules). 32 Goodman, supra note 4. 33 Id. at 543, 742 N.W.2d at 29 (emphasis supplied). - 564 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 district court pursuant to two specific statutes,34 but that the scope of the district court’s review was limited to the legality or illegality of the board’s decision.35 We relied upon an earlier decision characterizing the district court’s role under this statute as an appellate court.36 We then determined that the district court had functioned as an “intermediate appellate court of appeals, and not as a trial court.”37 Having determined that the district court was functioning as an intermediate court of appeals, we then explained that the district court’s order “was not a judgment, but, rather, was an appellate decision reviewing the judgment rendered by the Board.”38 We relied upon the statutory definition of a judgment as “the final determination of the rights of the parties in an action”39 and our description of a “judgment” in Strunk v. Chromy-Strunk as “a court’s final consideration and determination of the respective rights and obligations of the parties to an action as those rights and obligations presently exist.” 40 The outcome in Goodman was clear. We held that because the district court was acting as an intermediate court of appeals and not as a trial court, a motion to alter or amend was inappropriate and would not terminate the time for filing an appeal. (ii) APA Appeals Timmerman v. Neth 41 extended our decision in Goodman to a district court’s judicial review of an agency’s decision under 34 See § 14-413 and Neb. Rev. Stat. § 14-414 (Reissue 1997). 35 See Goodman, supra note 4. 36 Id. (citing Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996)). 37 Goodman, supra note 4, 274 Neb. at 543, 742 N.W.2d at 30. 38 Id. at 544, 742 N.W.2d at 30. 39 Neb. Rev. Stat. § 25-1301(1) (Reissue 2016). 40 Strunk v. Chromy-Strunk, 270 Neb. 917, 929, 708 N.W.2d 821, 834 (2006). 41 Timmerman, supra note 5. - 565 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 the Administrative Procedure Act (APA).42 There, the plaintiff appealed pursuant to the APA and the district court affirmed the agency’s decision. The plaintiff then moved to alter or amend the judgment. The district court overruled the motion, and the plaintiff appealed to the Court of Appeals. While this appeal was taken within 30 days of the district court’s order overruling the motion to alter or amend, it was filed more than 30 days after the district court’s order affirming the agency decision. Citing our decision in Goodman, the Court of Appeals summarily dismissed the appeal as filed out of time. We granted further review. In Timmerman, we adhered to our reasoning in Goodman. We held that because the district court was functioning as an intermediate court of appeals, the plaintiff’s motion to alter or amend the judgment did not toll the time for perfecting an appeal.43 We rejected the plaintiff’s argument that language in the APA, which referred to the district court’s decision in an APA appeal as a “judgment,” 44 and language in the underlying license revocation statute,45 which also used the word “judgment,” called for a different outcome. We explained that “the word ‘judgment’ refers to different things in different contexts, and is often used generally to refer to the result of any kind of judicial decisionmaking process.” 46 We reiterated our “specific holding that a ‘judgment,’ for purposes of § 25-1329, does not include an appellate decision of a district court.” 47 We later applied the same reasoning in a purported APA appeal.48 Although we ultimately determined that there had not 42 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006). 43 See Timmerman, supra note 5. 44 § 84-918(1). 45 Neb. Rev. Stat. § 60-498.04 (Reissue 2004). 46 Timmerman, supra note 5, 276 Neb. at 589, 755 N.W.2d at 801. 47 Id. 48 See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d 687 (2016). - 566 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 been a final agency decision, our opinion did not question the reasoning from Goodman and Timmerman. (iii) Appeals From County Court We have articulated equivalent reasoning in connection with an appeal from a county court to a district court, which was then appealed to a higher appellate court. In State v. Hausmann,49 we held that while an intermediate appellate court still has jurisdiction over an appeal, it has the inherent power to vacate or modify a final judgment or order. But in so doing, we emphasized that “in the absence of an applicable rule to the contrary, a motion asking the [district] court to exercise that inherent power does not toll the time for taking an appeal.”50 We explained that a party can move the court to vacate or modify a final order, but that if the court does not grant the motion, a notice of appeal must be filed within 30 days of the entry of the earlier final order if the party intends to appeal it.51 To the extent that our reasoning applied to a motion seeking substantive alteration of the district court judgment and filed within 10 days of its entry, we implicitly followed Goodman and Timmerman. 3. Petitions in Error We now turn to the question which prompted us to grant further review. Before examining the parties’ arguments, we recall the history of error proceedings in Nebraska and principles of law that flowed from the respective origins of error proceedings and appeals. (a) History The writ of error is not of statutory origin, but is derived from the common law.52 In contrast, the remedy or procedure 49 Hausmann, supra note 12. 50 Id. at 827, 765 N.W.2d at 225. 51 Id. 52 4 C.J.S. Appeal and Error § 29 (2019). - 567 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 by appeal is of civil-law origin and was introduced therefrom into courts of equity and admiralty.53 A common-law right of appeal does not exist.54 Our earliest statutes, including those governing petitions in error, stem from the Ohio Code of Civil Procedure.55 In 1858, the Territorial Legislature copied most of the Nebraska Code of Civil Procedure from Ohio’s code.56 It was not until Nebraska received statehood that the Legislature replaced actions at law and suits in equity with the civil action and specified that judgments and final orders in civil actions could be reviewed only by appeal.57 In 1871, the Legislature changed its mind and returned to error proceedings as the method for reviewing judgments and final orders in civil actions. But in 1873, the Legislature began to shift review of district court judgments in equitable and civil actions to appeals.58 The methods also changed in criminal cases, although it was not until 1982 that the writ of error was eliminated.59 Although, in 1905, error proceedings ceased to be a means for this court’s review of civil district court judgments and final orders, error proceedings in the district court to review judgments and final orders of courts and tribunals inferior in jurisdiction to the district court lived on.60 In 1974, the Legislature eliminated the petition in error as a method of obtaining district court review of county court judgments.61 53 Id., § 41. 54 Id. 55 See John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 56 See id. 57 See id. 58 See id. 59 See id. 60 See In re Estate of Berg, 139 Neb. 99, 296 N.W. 460 (1941). 61 Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997). - 568 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 But petitions in error continue as a means of judicial review of the judgments and final orders of tribunals exercising judicial functions and inferior in jurisdiction to the district court.62 And that issue provides the basis for the proceeding now before us. From this history, one can readily perceive that the Legislature did not treat error proceedings and appeals interchangeably. This history delineates two separate and distinct avenues for judicial review. And our case law supports that perception. (b) Error Proceedings Clearly Distinct From Appeals [8] Over 120 years ago, we said that a clear distinction exists in this state between proceedings by petition in error and an appeal.63 It was only a few years later when we explained that one cannot be denied his or her right of review in the appellate courts and that proceedings in error are always resorted to where no other method is pointed out or provided for.64 This principle remains vital and effective. Where no other method of appeal is provided, one may obtain judicial review by proceedings in error under §§ 25-1901 to 25-1908.65 The right of appeal in this state is purely statutory; unless the statute provides for an appeal from the decision of a quasi-judicial tribunal, such right does not exist.66 [9,10] The respective proceedings differ in nature. “The proceeding by petition in error is substantially an independent action, in which the plaintiff, as the moving party, controls 62 See § 25-1901. 63 See Western Cornice & Mfg. Works v. Leavenworth, 52 Neb. 418, 72 N.W. 592 (1897). 64 See Dodge County v. Acom, 72 Neb. 71, 100 N.W. 136 (1904). 65 See Moore v. Black, 220 Neb. 122, 368 N.W.2d 488 (1985). 66 From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953). See, also, Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). - 569 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 both the pleading and the process of the court.” 67 A petition in error in the district court to review a judgment or final order of an inferior tribunal is in its nature an independent proceeding having for its purpose the removal of the record from an inferior to a superior tribunal to determine if the judgment or final order entered is in accordance with the law.68 It is in the nature of a new action in that a petition in error is required to be filed, and a summons is required to be issued upon the written praecipe of the petitioner in error.69 The term “appeal” is a process of civil-law origin and removes the cause entirely, subjecting the facts as well as the law to a review and retrial.70 An error proceeding is distinct and independent, while the appeal is a mere continuation of the same cause in another court.71 The dispositions of each also differ. When judgment of reversal is entered in the error proceeding, that proceeding is at an end. When rendered on appeal, the same cause is still pending and undisposed of. But when, on appeal, the judgment of reversal also remands the cause for further proceedings in the inferior tribunal, it is manifest that the cause is fully disposed of so far as the district court is concerned.72 We have said that the subjects of review on petition in error and an appeal are so distinctively different and dissimilar that the provisions of the statute relating to each question cannot be taken together and construed as if they were one law and effect given to every provision.73 67 Polk v. Covell, 43 Neb. 884, 890, 62 N.W. 240, 242 (1895). 68 See Dovel v. School Dist. No. 23, 166 Neb. 548, 90 N.W.2d 58 (1958). 69 See id. (emphasis supplied). 70 Consolidated Credit Corporation v. Berger, 141 Neb. 598, 4 N.W.2d 571 (1942). 71 See Ribble v. Furmin, 69 Neb. 38, 94 N.W. 967 (1903). 72 Id. at 43, 94 N.W. at 969. 73 Consolidated Credit Corporation, supra note 70. - 570 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 We acknowledge that our case law has not always spoken consistently. In Hooper Telephone Co. v. Nebraska Telephone Co.,74 we stated that the word “‘appeal’” is a word of “general application in the law. Ordinarily [it] refer[s] to the removal of proceedings from one court or tribunal to another for review.” And in McClellan v. Board of Equal. of Douglas Cty.,75 we observed that it is now common for our court to refer to an “‘appeal by petition in error,’” citing six cases using this imprecise description. [11-13] Ultimately, it is the Legislature’s intention in enacting § 25-1329 that matters. Statutory language is to be given its plain and ordinary meaning.76 When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.77 An appellate court must look to a statute’s purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.78 In our effort to determine the Legislature’s intent regarding § 25-1329, we sought the parties’ assistance. We turn to their arguments. (c) Parties’ Arguments McEwen first argues, essentially, that an error proceeding under §§ 25-1901 to 25-1908 is a type of original civil action under Neb. Rev. Stat. § 25-101 (Reissue 2016) which abolished the distinctions between actions at law and suits in equity and substituted one form of action, called a civil action. 74 Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 255, 147 N.W. 674, 678 (1914). 75 McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 591, 748 N.W.2d 66, 74 (2008). 76 Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 (2019). 77 State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). 78 Id. - 571 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 Viewing a petition in error as an original civil action, he reasons that it results in a judgment within the meaning of both §§ 25-1301(1) and 25-1329. Backing away slightly, he suggests that there is no reason to believe the Legislature did not intend the term “judgment” in § 25-1329 to include a decision by a court or judge in a petition in error. He urges that we abandon Goodman and subsequent case law, characterizing Goodman as “not entirely consistent” with legislative intent.79 And he characterizes our existing jurisprudence in “appealing orders of judicial review from a district court” as a “procedural minefield.” 80 NSCS relies upon our statement in McClellan that the distinction between the two methods of review “has largely been to distinguish the method of perfecting each or to explain each method’s peculiar rules of joinder of parties.” 81 It urges that we read §§ 25-1329, 25-1301, and 25-1901 in pari materia with Neb. Rev. Stat. § 25-1931 (Reissue 2016). It observes that both §§ 25-1901 and 25-1931 (which specifies the time for commencing a proceeding under § 25-1901) address steps taken after a judgment is rendered or a final order is made, in contrast to § 25-1329, which contemplates an action to be taken after the entry of a judgment. These differences, it argues, suggest ambiguity in the statutes. It would resolve the ambiguity by looking to legislative history, which shows that prior to 1999, § 25-1931 used “rendition” to describe the action taken by the inferior tribunal; that in 1999, the word “rendition” was changed to “entry”; and that in 2000, it was changed back to “rendition.” 82 This, it argues, shows that the Legislature has “made the ‘rendition’ of the decision . . . the starting time for commencing the review process in the case 79 Supplemental brief for appellant at 6. 80 Id. at 7. 81 McClellan, supra note 75, 275 Neb. at 590, 748 N.W.2d at 73. 82 See, § 25-1931 (Reissue 1995); 1999 Neb. Laws, L.B. 43, § 12; 2000 Neb. Laws, L.B. 921, § 16. - 572 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 of petition in error proceedings, but the ‘entry’ of the decision . . . the starting time for commencing the review process in other proceedings.” 83 It then argues that because § 25-1329 uses the word “entry,” this statute does not apply to decisions rendered by the district court in petition in error proceedings. NSCS also suggests that the Legislature has acquiesced in our decisions. (d) Applicable to Judgments on Petitions in Error For well over 100 years, we have referred to a district court’s decision disposing of a petition in error under §§ 25-1901 to 25-1908 as a “judgment.” 84 And as recited above, we have described an error proceeding as substantially an independent action,85 in its nature an independent proceeding,86 in the nature of a new action,87 and distinct and independent.88 It is true that the scope of review in an error proceeding is limited.89 But the limited scope of review does not affect the nature of the proceeding or detract from its significance to the parties. 83 Supplemental brief for appellee at 6. 84 See, e.g., Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb. 422, 908 N.W.2d 661 (2018); Thomas v. Lincoln Public Schools, 228 Neb. 11, 421 N.W.2d 8 (1988); Anania v. City of Omaha, 170 Neb. 160, 102 N.W.2d 49 (1960); Dovel, supra note 68; Olsen v. Grosshans, 160 Neb. 543, 71 N.W.2d 90 (1955); Consolidated Credit Corporation, supra note 70; Ribble, supra note 71; Bennett v. Otto, 68 Neb. 652, 94 N.W. 807 (1903); Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522 (1899); Tootle, Hosea & Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886); Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237 (1880). 85 Polk, supra note 67. 86 Dovel, supra note 68. 87 Id. 88 Ribble, supra note 71. 89 See Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997) (court is to determine whether tribunal acted within its juris­ diction and whether decision rendered is supported by sufficient relevant evidence). - 573 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 [14] Our decisions using this terminology and describing an error proceeding’s nature shaped the Legislature’s crafting of the language in § 25-1329. In determining the meaning of a statute, the applicable rule is that when the Legislature enacts a law affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowledge of the preexisting legislation and the decisions of the Nebraska Supreme Court construing and applying that legislation.90 And in this instance, NSCS cites to legislative history demonstrating the Legislature’s familiarity with the subject. Thus, we are confident the Legislature understood that an error proceeding in the district court is distinct and independent from an appeal. From the amendments to § 25-1931, NSCS reasons that because the “rendition of the judgment” 91 by the “tribunal, board, or officer exercising judicial functions and inferior in jurisdiction to the district court” 92 starts the time for commencement of an error proceeding in the district court, this somehow means that the judgment of the district court at the conclusion of the error proceeding is not “entered” within the meaning of § 25-1329. We disagree. An appeal from the district court’s disposition of the proceeding is governed by § 25-1912, which uses both the term “rendered” and the term “entry” to establish time limits on appeals and specifically contemplates termination of the appeal time by a timely motion to alter or amend a judgment. Thus, the proper contrast is between §§ 25-1931 and 25-1912, which shows that the Legislature understood the difference between commencing an error proceeding in district court and commencing an appeal to the Court of Appeals from a district court’s judgment in an error proceeding. Rather than supporting NSCS’ position, this contrast supports applying § 25-1329. 90 White v. State, 248 Neb. 977, 540 N.W.2d 354 (1995). 91 See § 25-1931. 92 See § 25-1901. - 574 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 [15] Because § 25-1329 was modeled on a federal rule, we look to federal decisions for guidance. As noted above, § 25-1329, when first adopted, was identical to a federal rule of civil procedure. We have frequently said that because the Nebraska Court Rules of Pleading in Civil Cases are modeled after the Federal Rules of Civil Procedure, we may look to federal decisions for guidance in interpreting the Nebraska rules.93 We have interpreted a Nebraska criminal procedure statute using federal decisions, because the statute was patterned on a federal rule of criminal procedure.94 We now articulate an equivalent principle: In interpreting a Nebraska civil procedure statute modeled upon a federal rule of civil procedure, we may look to federal decisions for guidance. Rule 59(e) has been applied in numerous proceedings before federal district courts reviewing final agency decisions.95 Thus, where a federal district court reviews an agency decision and enters a judgment, and a party files a timely motion under rule 59(e), the time for appeal runs from the date of entry of the court’s disposing of the motion.96 Because the Legislature modeled § 25-1329 on a federal rule that applied to federal district courts, including proceedings where the federal court reviewed an agency decision, this suggests that it 93 E.g., Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d 821 (2018). 94 See State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016). 95 See, Maxmed Healthcare, Inc. v. Price, 860 F.3d 335 (5th Cir. 2017) (Departmental Appeals Board Medicare Appeals Council decision); Bass v. U.S. Dept. of Agriculture, 211 F.3d 959 (5th Cir. 2000) (Farm Service Agency decision); Ashley v. Commissioner, Social Security Administration, 707 Fed. Appx. 939 (11th Cir. 2017) (Commissioner of Social Security Administration decision); Leak v. Runyon, No. 95-1392, 1996 WL 386609 (4th Cir. July 11, 1996) (unpublished disposition listed in table of “Decisions Without Published Opinions” at 91 F.3d 131 (4th Cir. 1996)) (U.S. Postal Service decision). 96 See Fed. R. App. P. 4(a)(4). - 575 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 intended § 25-1329 to apply to error proceedings commenced in a Nebraska district court. [16,17] And this leads us to the purpose of the statute, which is obvious: The purpose of § 25-1329, like many other provisions of Nebraska law, is to save parties from the delay and expense associated with unnecessary appeals, which can often be avoided by providing every reasonable opportunity for a lower court to correct its own mistakes. As we have said before, no court is required to persist in error, and, if a court concludes that a former ruling was wrong, the court may correct it at any time while the case is still in the court’s control.97 Section 25-1329 enables a district court in an error proceeding, a court which is no less susceptible of error than any other, to give thoughtful consideration to an assertion that it has made a mistake, without prejudicing the rights of the party making the assertion. And it encourages a party to do so in good faith, knowing that its right to appeal will not be lost because of continued running of the time for appeal. We look to the purpose of § 25-1329 and give it a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. [18] While we agree, as NSCS reminds us, that where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent,98 the presumption fails here for three reasons. First, and most important, we have not previously construed the application of § 25-1329 specifically to an error proceeding under §§ 25-1901 to 25-1908. Second, given the presumption that the Legislature is familiar with our case law regarding error proceedings, including our characterization of the clear distinction between a petition in error and an appeal 97 See Pinnacle Enters. v. City of Papillion, 302 Neb. 297, 923 N.W.2d 372 (2019). 98 See State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018). - 576 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 and our repeated use of the term “judgment” to describe a district court’s decision disposing of a petition in error, the Legislature might well have not understood our decisions in Goodman, Timmerman, and Hausmann as bearing on petitions in error. Finally, NSCS’ argument in brief mainly relies on decisions that predate the enactment of § 25-1329. The only amendment to date, adopted in 2004, added a “springing” effect to the terminating motions identified in § 25-1912(3),99 and was no doubt prompted by our decision in Macke v. Pierce 100 regarding a motion for new trial. [19,20] We conclude that a judgment entered by a district court at the conclusion of an error proceeding pursuant to §§ 25-1901 to 25-1908 is a “judgment” within the meaning of § 25-1329. It naturally follows that a motion to alter or amend a judgment, which motion seeks a substantive alteration of a judgment entered by a district court disposing of a petition in error and which motion is filed within 10 days of the entry of the judgment, will terminate the time for running of appeal pursuant to § 25-1912(3). Consequently, we must reverse the Court of Appeals’ summary dismissal. 4. Clearing “Procedural Minefield” We now turn to McEwen’s request that, to use his metaphor, we clear the “procedural minefield.”101 This is not something that we undertake lightly. Prior to our decision today, an anomalous situation already existed. Where a district court acted as a trial court and entered a judgment, a timely motion to alter or amend the judgment terminated the time for taking an appeal.102 A similar statute 99 See 2004 Neb. Laws, L.B. 1207, §§ 3 to 5. 100 Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002) (superseded by statute as stated in Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015)). 101 Supplemental brief for appellant at 7. 102 See § 25-1912(3) (Reissue 2016). - 577 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 accomplished the same result regarding a county court judgment.103 For both this court and the Court of Appeals, our appellate rules,104 which are consistent with statutory procedures governing such appeals,105 enabled us to entertain motions for rehearing without jeopardizing a party’s ability to pursue any subsequent appeals which might be available. Only where a district court acted as an intermediate appellate court did a party filing a motion to alter or amend a judgment do so at his or her peril. But after today’s decision, without reassessing Goodman, Timmerman, and Hausmann, the procedural minefield would still exist, with boundaries less clear than before. In the generic or colloquial sense, some “appeals” to the district court would be subject to § 25-1329, while others would not. Not only is legislative acquiescence a legitimate concern, we must also consider the doctrine of stare decisis. [21-23] We have said that while the doctrine of stare decisis is entitled to great weight, it is grounded in the public policy that the law should be stable, fostering both equality and predictability of treatment.106 And we have recognized that overruling precedent is justified when the purpose is to eliminate inconsistency.107 Thus, we said that remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a more recently decided case inconsistent with the decisions that came before it.108 As the U.S. Supreme Court has identified, some of the relevant factors in deciding whether to adhere to the principle of stare decisis include workability, the antiquity of the precedent, whether the 103 See Neb. Rev. Stat. § 25-2729(3) (Reissue 2016). 104 See § 2-102(F)(1) and Neb. Ct. R. App. P. § 2-113 (rev. 2012). 105 See Neb. Rev. Stat. §§ 25-1924 and 25-1926 (Reissue 2016). 106 See Heckman, supra note 66. 107 See id. 108 Id. - 578 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 decision was well reasoned, whether experience has revealed the precedent’s shortcomings, and the reliance interests at stake.109 The Court explained that “reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions.”110 Here, reconciling our case law with the purpose of the statute would eliminate the inconsistency in application of § 25-1329 and best achieve the obvious purpose of the statute. Not only would we eliminate inconsistency in the treatment of appeals versus error proceedings, we would also harmonize the opportunity for “rehearing” at all levels of Nebraska’s court system. This would foster equality and enhance predictability. Turning to the factors identified by the U.S. Supreme Court, we conclude that all weigh in favor of corrective action. Maintaining a single area carved out from the application of § 25-1329 has proved unworkable: It promoted a procedural trap for parties and their counsel and, in its area of operation, defeated the statutory purpose. Regarding antiquity of the precedent, the earliest decision, in Goodman, dates back only to 2007. While the rationale may have appeared sound at the time Goodman was decided, inconsistency with other statutory language quickly became apparent. The Timmerman court acknowledged as much.111 And the language in Neb. Rev. Stat. § 25-2733 (Reissue 2016) directly contradicts the core holding of Goodman in the context of appeals from county court to district court. Section 25-2733(1) specifies that on appeal from the county court, the district court shall “render a judgment which may affirm, affirm but modify, or reverse the judgment or final order of the county court” and 109 See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). 110 Id., 558 U.S. at 365. 111 See Timmerman, supra note 5. - 579 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McEWEN v. NEBRASKA STATE COLLEGE SYS. Cite as 303 Neb. 552 that if the district court reverses, “it may enter judgment in accordance with its findings or remand the case . . . for further proceedings consistent with the judgment of the district court.” (Emphasis supplied.) Section 25-2733(3) specifies that the “judgment of the district court shall vacate the judgment in the county court” and that “interest on the amount of the judgment in the district court . . . shall run from the date of entry of the [county court] judgment.” (Emphasis supplied.) This language already existed in § 25-2733 in 2000, when § 25-1329 was added to our statutes, and although § 25-2733 was amended in the same legislation,112 the references to a “judgment” in the district court on appeal from the county court remained unchanged. An unspoken premise in Goodman was that a proceeding followed by an appeal (or a series of appeals) results in one, and only one, judgment. We conclude that the language of our appeals statutes, read together, refutes that premise. In short, experience has revealed our precedent’s shortcomings. And neither party identifies, nor can we discern, any reliance interests that would be affected. [24] We therefore overrule our decision in Goodman 113 and cases directly 114 or inferentially 115 relying upon it to the extent they hold that § 25-1329 does not apply to a judgment of a district court acting as an intermediate appellate court.",analysis
+16,6320875,1,5,"For the reasons set forth above, the final order of the circuit court entered on October 27, 2020, is reversed, and this case is remanded to the circuit court for entry of an order dismissing this action for lack of standing. Reversed and remanded with directions. 5 Having found that Mr. Pavone lacks standing to bring this action, we will not address the merits of his appeal. 13",conclusion
+17,1166113,1,5,"At the conclusion of the state's case in chief appellant moved for judgment of acquittal. A motion for judgment of acquittal puts into issue sufficiency of the evidence. Crim.R. 29(a). The motion was denied. On appeal from denial of a motion for acquittal, this court must view the evidence and the inferences to be drawn therefrom in a light most favorable to the state. DeSacia v. State, 469 P.2d 369, 371 (Alaska 1970) (footnote omitted). The trial judge, when ruling upon this motion, must view the evidence in the same manner. Bush v. State, 397 P.2d 616 (Alaska 1964). Then: If he determines that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt ... he must submit the case to the jury. Id. at 618. Viewing the evidence adduced at trial in a light most favorable to the state, we cannot find that the trial court erred in denying the motion for judgment of acquittal and allowing the case to go to the jury. The state established that appellant lived at the address where the stolen carpets were found, that he knew that the carpets were there and that he knew they were stolen. The evidence indicated that appellant's truck was used in the theft of the carpets. Other testimony, if believed and taken in a light most favorable to the state, indicated that appellant had attempted to sell the carpets and that he had speculated on his chances of being convicted for his part in the theft of the carpets. Under these circumstances we find that it was proper for the trial court to submit it to the jury. Fair minded men in the exercise of reasonable judgment could differ on whether guilt had been established beyond a reasonable doubt under the evidence just summarized. In such circumstances, the denial of the motion for acquittal was proper. Affirmed.",sufficiency of the evidence
+18,1924405,1,6,"The defendant next contends that the trial justice erroneously denied his motion for a new trial on the robbery count because, he argues, the evidence adduced at trial was insufficient to establish beyond a reasonable doubt that he stole money or property from Koch's person, an essential element of robbery. In ruling on a motion for a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, the trial justice acts as a thirteenth juror and exercises independent judgment on the credibility of witnesses and on the weight of the evidence. State v. Stansell, 909 A.2d 505, 511 (R.I.2006) (quoting State v. Davis, 877 A.2d 642, 646 (R.I.2005)). When the trial justice has articulated a sufficient rationale for his or her decision to deny a defendant's motion for a new trial, that decision will be given great weight. Arroyo, 844 A.2d at 173 (quoting State v. Ramirez, 786 A.2d 368, 372-73 (R.I.2001)). In this case, after hearing Stone's argument and noting that there was no direct evidence that defendant took the $100 bill discovered at the scene, the trial justice found that there was ample circumstantial evidence that Stone took the money from Koch's shirt. The $100 bill was found in the area where the struggle occurred, outside the rear entrance to Capriccio's, and loose money was found throughout the restaurant. Noting that the $100 bill was found in the vicinity of other materials belonging to this defendant, including his backpack, the trial justice found that the jury could properly draw an inference that defendant took the money after he shot Koch. It is well established that [i]nferences and presumptions are a staple of our adversary system of factfinding. State v. Ventre, 910 A.2d 190, 198 n. 5 (R.I.2006). This Court previously has held that the test for determining whether circumstantial evidence meets the burden of proof in a criminal trial is whether the evidence constitutes proof beyond a reasonable doubt or if it raises merely a conjecture or suspicion of guilt. State v. Kaba, 798 A.2d 383, 393 (R.I.2002). Under this test, it is possible for the state to prove guilt by a process of logical deduction, reasoning from an established circumstantial fact through a series of inferences to the ultimate conclusion of guilt. Id. (quoting State v. Caruolo, 524 A.2d 575, 581-82 (R.I.1987)). In arguing for a new trial, defendant asserts that the state utilized an impermissible pyramiding of inferences to establish the elements of first-degree robbery. We are satisfied that in finding that the state produced ample circumstantial evidence to support a conviction for first-degree robbery, the trial justice appropriately exercised his independent judgment; he did not overlook or misconceive material evidence, and he was not clearly wrong. We are of the opinion that the state established defendant's guilt beyond a reasonable doubt by a process of logical deduction, reasoning from an established circumstantial fact and did not merely raise[] a suspicion or conjecture of guilt. Kaba, 798 A.2d at 393.",sufficiency of the evidence
+19,2632849,1,1,"[¶2] Husband provides the following issues for our review: I. Did the District Court err when it valued [Husband's] expectancy interest in the Humphrey Family Limited Partnership at $578,000.00 and found that the interest should be taken into consideration in the division of property? II. Did the District Court err when it found that the Humphrey Family Limited Partnership was marital property, even though the Partnership was organized by [Husband's] father as an estate planning device?",issues
+20,2635267,1,3,"We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion. GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, and CORRIGAN, JJ., concur. DISSENTING OPINION BY MORENO, J. Law often is a complicated business, but that is not always the case. Sometimes the Legislature enacts a statute in simple language that can be easily applied. Unlike the majority, I think this is such a case. The majority concludes that the juvenile in this case committed grand theft from the person despite the fact that the stolen cell phone was taken from the ground, not from the person of the victim. I agree with the Court of Appeal that the juvenile committed an attempted robbery and petty theft, but did not commit a grand theft from the person of the victim. Penal Code section 487, subdivision (c) states that theft is grand theft When the property is taken from the person of another. This court has applied this statute by its terms for more than 100 years. People v. McElroy (1897) 116 Cal. 583, 48 P. 718, held that the defendant did not commit grand theft from the person by taking money from the pocket of the victim's pants, which the victim had removed and was using as a pillow. We held this was not grand theft from the person because the garment from which the money was taken was not at the time on the person of [the victim]. . . . ( Id at p. 586, 48 P. 718.) The statute was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands. ( Ibid. ) The majority attempts to distinguish McElroy on the basis that, in the present case, the cell phone was in the victim's pocket when defendant assaulted him, relying upon the fact that the victim did not voluntarily lay the phone aside but rather dropped it as he fled. The majority concludes that McElroy does not answer the question posed in the present case and relies instead on other authority. (Maj. opn., ante, 55 Cal.Rptr.3d at p. 526, 152 P.3d at pp. 1102-1103.) But our seminal decision in McElroy cannot be so easily dismissed. If we examine the reasoning of our decision in McElroy, it is clear that the fact that the victim in the present case did not voluntarily lay the phone aside is a distinction without a difference. We observed in McElroy that one reason that theft from the person is treated as a much graver and more heinous offense than ordinary or common theft is because of the greater liability of endangering the person or life of the victim. ( People v. McElroy, supra, 116 Cal. 583, 584, 48 P. 718.) After reviewing cases that had required that the stolen property had actually been on the person of the victim when it was taken, we stated: In view of these authorities and the origin of the statute, we think its obvious purpose was to protect persons and property against the approach of the pick-pocket, the purse-snatcher, the jewel abstracter, and other thieves of like character who obtain property by similar means of stealth or fraud, and that it was in contemplation that the property shall at the time be in some way actually upon or attached to the person . . .; that it was not intended to include property removed from the person and laid aside. . . . ( Id at p. 586, 48 P. 718, italics added.) This reasoning applies equally whether the victim has voluntarily laid aside the property, or dropped it accidentally while fleeing. Once the property no longer is attached to the person of the victim, the theft does not entail the type of increased danger to the person or life of the victim that this statute was designed to address. As the facts of this case demonstrate, neither does such a crime involve stealth or fraud like that employed by a pickpocket or purse snatcher. Although the facts in McElroy are not identical to those in the present case, the decision in that case remains controlling. We said in no uncertain terms that the statute means what it says, stating: the requirement of this offense is that [the property] shall be `taken from the person. ' ( People v. McElroy, supra, 116 Cal. 583, 586, 48 P. 718, italics in original.) The cell phone in the present case was not taken from the person of the victim, so the statute does not apply. It is as simple as that. One Court of Appeal decision ruled that facts similar to those in the present case constituted a theft from the person, but the majority acknowledges that this case was wrongly decided. ( In re Eduardo D. (2000) 81 Cal.App.4th 545, 97 Cal.Rptr.2d 38.) Eduardo D. accosted the victim in that case and punched him in the face, starting a fist fight. The victim eventually managed to pull away and fled, leaving behind his baseball cap and backpack. As he ran away, the victim saw Eduardo D. take the cap and backpack. The Court of Appeal ruled that the juvenile committed a theft from the person of the victim because the victim did not gladly and of his own free accord remove his backpack and cap, place them on the ground, and relinquish possession of these items. Rather, it was as the direct result of the minor's assault on [the victim] that the cap and backpack were removed or fell to the ground. ( Id. at p. 548, 97 Cal.Rptr.2d 38.) The majority correctly disapproves the decision in Eduardo D. but does so for the wrong reason, stating: Because a crime requires a union of act and intent, under the Eduardo D. facts, if the perpetrator had no intent to steal while the property was still on the victim's person, the perpetrator committed an assault followed by a theft, not a grand theft from the person. (Maj. opn., ante, 55 Cal.Rptr.3d at p. 529, 152 P.3d at p. 1105.) Eduardo D was wrongly decided not because of a lack of union of act and intent, but rather because Eduardo E., like the juvenile in the present case, took the victim's property from the ground, not from the person of the victim. Until the present case, Eduardo D. was the only published decision to hold that a theft from the person had occurred when the victim had not been in physical contact with the property when it was taken. (See, e.g., People v. Huggins (1997) 51 Cal.App.4th 1654, 60 Cal.Rptr.2d 177 [property touching the victim's foot]; In re George B. (1991) 228 Cal.App.3d 1088, 279 Cal.Rptr. 388 [property being carried in shopping cart pushed by the victim]; cf. People v. Williams (1992) 9 Cal.App.4th 1465, 12 Cal.Rptr.2d 243 [no grand theft from the person where purse was stolen from passenger seat of vehicle and the victim was not touching the purse].) As we held in McElroy, grand theft includes theft from the person of the victim because taking property that is physically connected to the victim increases the danger to the victim and thus warrants greater punishment. ( People v. McElroy, supra, 116 Cal. 583, 584, 48 P. 718.) Therefore, the statute did not apply in Eduardo D., and does not apply in the present case, because the property was not actually taken from the person of the victim. Rather than be guided by our decision in McElroy, the majority relies upon two decisions by the Court of Appeal, which I believe are distinguishable. In People v. Carroll (1912) 20 Cal.App. 41,128 P. 4, the defendant and two accomplices accosted the victim as he attempted to board a train; one accomplice blocked the victim's path while the other pushed him from behind, allowing the defendant to approach the victim. The victim heard the defendant say `I have got it' and the victim found his pants pocket had been turned inside out and his wallet was missing. ( Id at p. 43, 128 P. 4.) The defendant argued on appeal that the trial court erred in refusing to instruct the jury on petty theft because the wallet may have fallen to the ground before the defendant took it. The court held: In the case here the evidence leaves no rational inference that defendant picked up the purse from the ground and, even if he did so, the evidence shows that it could not have dropped to the ground but for the maneuvers of these men who were on the spot with the design to rob him. If the purse dropped, which is a mere surmise or possibility unsupported by any evidence, and it was caused to drop by these men in their effort to commit the larceny, it was in point of law and common sense a taking from the person.... The condition of [the victim]'s pocket when he put his hand down to it showed that it had been pulled out, which must have been done by the defendant. [The victim]'s testimony was that the defendant stood at his side and back of him when he said to his confederates, `I have got it'. . . We do not think the evidence showed that there was a reasonable probability or a reasonable possibility that the defendant picked up the purse from the ground or that it came out of [the victim]'s pocket otherwise than through defendant's agency. ( Id at p. 46, 128 P. 4, italics added.) Thus, Carroll involved a garden-variety pickpocket. The defendant in Carroll took the wallet from the victim's pocket either by seizing the wallet directly or turning the victim's pocket inside out. This is precisely the type of situation at which the statute was aimed, and differs markedly from the circumstances in the present case. The decision in People v. Smith (1968) 268 Cal.App.2d 117, 73 Cal.Rptr. 859, upon which the majority also relies, similarly involves facts that are very different from those in the present case. In Smith, Glasco, defendant and [the victim] became involved in an argument; . . . Glasco grabbed [the victim] by the pants and a struggle involving all three persons ensued; while Glasco and defendant were 'scuffling' with [the victim] both of them were trying to get their hands into [the victim's] pocket; in the struggle [the victim's] wallet fell to the street and his pants were torn off of him; Glasco picked up the wallet and pants and, accompanied by defendant, carried them to the rear of a nearby hotel. Shortly thereafter the police arrived. . . . The back pockets of the pants had been torn down and the wallet was empty. ( Id at pp. 118-119, 73 Cal. Rptr. 859.) The Court of Appeal held this was grand theft from the person, explaining that a witness saw Glasco and defendant put their hands in [the victim ]'s pockets, [the victim's] wallet and pants fall to the street, Glasco pick them up and with defendant run to the rear of the hotel. It cannot fairly be denied that both wallet and pants were taken from the person of defendant, even though Glasco picked them up from the street; clearly it was because of the conduct of defendant and Glasco in scuffling with [the victim], getting into his pockets and pulling on his pants, that the wallet and the pants fell to the street where Glasco immediately took possession of them, ending the struggle, and accompanied by defendant, ran away. ( Id at p. 120, 73 Cal.Rptr. 859, italics added.) In Smith, therefore, the defendant reached into the victim's pocket and either removed the wallet, or ripped the pocket, causing the wallet to fall to the ground, where the defendant's accomplice could pick it up. The majority broadly characterizes Carroll and Smith as cases in which defendant first attempted to take the property from the person but the property became separated before he gained possession. (Maj. opn., ante, 55 Cal.Rptr.3d at p. 527, 152 P.3d at pp. 1103-1104.) This characterization is accurate, but it ignores the more important point that in both Carroll and Smith the defendant physically removed the property from the victim's person. The defendants in both Carroll and Smith, therefore, stole property from the person of the victim. The present case is very different from Carroll and Smith. The juvenile in the present case did not reach into the victim's pocket. Rather, he simply caused the victim to run, which in turn presumably caused the cell phone to fall from the victim's pocket to the ground where the juvenile's accomplice could pick it up. In both Carroll and Smith the defendant took the property from the victim's person by reaching into the victim's pocket Here, the juvenile took the property from the ground, not from the victim's person. In concluding that the juvenile in the present case committed grand theft from the person when his accomplice picked up the victim's cell phone from the ground, the majority expands the statutory phrase taken from the person of another beyond its commonsense meaning as well as its historical bounds. Under the majority's interpretation, a grand theft from the person will occur whenever a thief wrongly cause[s] the [stolen property] to become separated from the person of the victim. (Maj. opn., ante, 55 Cal.Rptr.3d at pp. 529-530, 152 P.3d at pp. 1105-1106.) In my view, this is an unwarranted expansion of the scope of the statute. I prefer to apply the statute according to its plain, apparent meaning. If property is physically connected to the victim's person when the thief takes it, it is theft from the person. If not, it is not.",conclusion
+21,1843338,1,2,"We first consider our jurisdiction to hear this appeal. Ordinarily, we have no jurisdiction over a case where no final judgment has been entered, unless permission has been obtained to appeal from an interlocutory order. Johnson v. Iowa State Highway Comm'n, 257 Iowa 810, 812, 134 N.W.2d 916, 917 (1965). In the case before us on appeal, the district court never entered a final order dismissing the claims of the plaintiffs to this appeal. Instead, the case was concluded in district court through a variety of voluntary dismissals filed by the plaintiffs as a result of various settlements between the parties. Yet, dismissals filed by the parties are not considered to be final orders for the purposes of appeal. Ahls v. Sherwood/Div. of Harsco Corp., 473 N.W.2d 619, 622 (Iowa 1991). Consequently, Keota claims we have no jurisdiction. We have previously adopted the doctrine of pragmatic finality to govern appeals where the record reveals the claims before the district court were fully concluded without a final order or judgment entered. Id. at 622-23. We think this doctrine applies to render the plaintiffs' appeal timely in this case. The appeal in this case is from an order that did not dispose of the entire case. When this summary judgment order was entered, the plaintiffs had the right to request an interlocutory appeal or wait to appeal once the entire case was completed. Iowa Rule of Appellate Procedure 6.5(3) provides: Notwithstanding these rules, an order disposing of an action as to fewer than all parties to the suit, even if their interests are severable, or finally disposing of fewer than all the issues in the suit, even if the issues are severable, may be appealed within the time for an appeal from the order, judgment, or decree finally disposing of the action as to remaining parties or issues. In lieu of seeking interlocutory review, the plaintiffs in this case chose to wait until the conclusion of the case. Yet, the existence of a final judgment in this case became clouded because the claims of the parties were either settled or rendered moot in piecemeal fashion. Ultimately, the trial scheduled by the district court was not needed, and the various dismissals filed by the parties made it unnecessary for the court to bring the case to a conclusion by entering a final judgment. Clearly, these circumstances are the types that fall within the pragmatic finality doctrine. The vast number of parties and claims, however, made it difficult to pinpoint a pragmatic final judgment under the doctrine, which Keota seizes upon in an effort to reject its application. Notwithstanding the complexity of the settlement process, the important inquiry under Ahls is for the record to provide sufficient assurance that the case was fully concluded and that there were no remaining issues to be tried by the district court. See Ahls, 473 N.W.2d at 622-23. In this case, the key event in this inquiry is the date the last remaining claim against a party was dismissed. Applying the Ahls standards, we are satisfied that the pragmatic finality for appeal purposes occurred when Maytag was dismissed. Id. The notice of appeal was filed within thirty days from this event. The order granting summary judgment was timely appealed and we deny the motion to dismiss.",jurisdiction
+22,864335,1,1,"¶5. It is not clear whether the trial court granted Sara Lee’s motion to dismiss or motion for summary judgment. The final judgment indicates that the “plaintiff has not asserted any cause of action which is recognized by Mississippi law.” There is no indication that this judgment is based upon Miss. R. Civ. P. 12(b)(6), 12(c), or 56. “The standard of review for all three are similar in that the non-moving party is favored in the review of the facts.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209 (Miss. 2001). Because a motion to dismiss under Miss. R. Civ. P. 12(b)(6) raises an issue of law, this Court will review such motions de novo. Id. at 1210 (¶7). A motion for judgment on the pleadings under Miss. R. Civ. P. 12(c) serves a similar function to Rule 12(b)(6) which we also review de novo. Id. (¶8). As to the review of a trial court’s granting of a motion for summary judgment under Rule 56, we employ a de novo standard of review and the motion should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 1209 (¶6) (citations omitted). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss. 1983) and its progeny. If a trial judge is confronted with a Rule 12(c) motion to dismiss and considers matters outside the pleadings en route to ruling on that motion, the motion shall be treated as a Rule 56 motion. See Miss. R. Civ. P. 12(c).",standard of review
+23,2742965,2,2,"Jurisdiction of Florida District Courts of Appeal The Florida Constitution provides district courts with the authority to hear appeals from trial court final orders and to review interlocutory orders of trial courts as provided by the procedural rules. Art. V, § 4(b)(1), Fla. Const. The constitution also allows district courts to issue writs of certiorari “necessary to the complete exercise of its jurisdiction.” Art. V, § 4(b)(3), Fla. Const. 2. State v. Harris, 136 So. 2d 633 (Fla. 1962). 3. State v. Wilson, 483 So. 2d 23 (Fla. 2d DCA 1985). -5- Florida Rule of Appellate Procedure 9.030 (b)(1)-(3) more fully outlines the appellate and certiorari jurisdiction of our district courts of appeal and provides: (b) Jurisdiction of District Courts of Appeal. (1) Appeal Jurisdiction. District courts of appeal shall review, by appeal (A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court, including county court final orders declaring invalid a state statute or provision of the state constitution; (B) non-final orders of circuit courts as prescribed by rule 9.130; (C) administrative action if provided by general law. (2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review (A) non-final orders of lower tribunals other than as prescribed by rule 9.130; (B) final orders of circuit courts acting in their review capacity. (3) Original Jurisdiction. District courts of appeal may issue writs of mandamus, prohibition, quo warranto, and common law certiorari, and all writs necessary to the complete exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habeas corpus returnable before the court or any judge thereof, or before any circuit judge within the territorial jurisdiction of the court. Fla. R. App. P. 9.030 (b)(1)-(3) (footnotes omitted). The jurisdictional dispute before the Second District centered on the parties’ disagreement over how to -6- reconcile subsections (b)(2)(A) and (b)(3) of Florida Rule of Appellate Procedure 9.030. LaFave argued that because subsection (b)(2)(A) explicitly limits the certiorari jurisdiction of district courts to review non-final orders entered by lower courts, the reference to the original jurisdiction of the district courts to issue writs of certiorari is also limited to cases involving non-final orders. The State, however, argued that such a reading would render the two subsections redundant and does not reflect the true meaning of the rules. Instead, the State argued that subsection (b)(3) provides a district court with original jurisdiction to issue a writ of certiorari, in accordance with its duty to review decisions of lower courts, with no requirement that the order be a non-final one. The district court did not explicitly agree with either jurisdictional argument, but nonetheless found that it had jurisdiction to hear the case. We find that the jurisprudence of this Court does not support the district court’s jurisdictional analysis and we, therefore, quash the decision of the district court. The State’s Right to Petition for Common Law Certiorari In 1962, this Court granted jurisdiction in State v. Harris, 136 So. 2d 633 (Fla. 1962), where the State petitioned this Court for a writ of certiorari based on an alleged conflict of decisions, after the district court reversed the defendant’s conviction. Id. at 634. This Court questioned “whether the [S]tate has the right to seek certiorari from a decision of a district court in which that court in a criminal -7- case rules adversely to the [S]tate and favorably to an accused,” and ordered the parties to file supplemental briefs. Id. This Court determined that section 924.07 restricted the State from directly appealing to this Court following an adverse decision of a district court in a criminal proceeding, but that section 924.07 did not limit the State’s right to seek certiorari review in this Court. Id. at 634-35. In 1985, this Court decided three cases which implicated the State’s right to petition a district court for certiorari review: State v. C.C., 476 So. 2d 144 (Fla. 1985); State v. G.P., 476 So. 2d 1272 (Fla. 1985); and Jones v. State, 477 So. 2d 566 (Fla. 1985). In C.C., the district court consolidated four appeals brought by the State, all involving juvenile defendants, but in various postures when the State sought appellate review. 476 So. 2d at 144. The district court dismissed all appeals by the State, reasoning that the State does not have a constitutional right to appeal, only statutory appellate rights. State v. C.C., 449 So. 2d 280, 280 (Fla. 3d DCA 1983). The district court further noted its determination that article V, section 4(b)(1) of the Florida Constitution “permits interlocutory review only in cases in which appeal may be taken as a matter of right.” Id. On review, this Court approved the decision of the district court, finding no constitutional right for the State to appeal adverse final orders of a circuit court, including in juvenile cases, and also determining that section 924.07, Florida Statutes (1981), which provided the State the right to appeal certain adverse -8- criminal dispositions, does not apply to juvenile proceedings. C.C., 476 So. 2d at 145. This Court’s holding in State v. G.P., 476 So. 2d 1272 (Fla. 1985), was another decision based on an opinion from the Third District, where the State sought review of an adverse decision and had been denied relief by the district court. The district court determined that because the State had no statutory right under section 39.14, Florida Statutes (1981), to appeal an order dismissing a delinquency petition based on a violation of the juvenile’s constitutional right to speedy trial, “it also has no right to have a juvenile order reviewed by writ of certiorari.” G.P., 476 So. 2d at 1273 (citing State v. G.P., 429 So. 2d 786 (Fla. 3d DCA 1983)). In a very brief opinion, this Court approved the district court’s",jurisdiction
+24,1666665,1,2,"Several issues presented by appellant challenge the constitutionality of Act No. 594, Acts of Alabama, 1977, under § 45 of the Alabama Constitution of 1901. Those issues are dealt with here in a consolidated fashion: Whether the Act is unconstitutional under § 45 of the Alabama Constitution of 1901 because the title to the Act is deceptive in that it fails to disclose the retroactive features of the Act, whether the act itself violates § 45 in its entirety, and whether § 45 is violated because of the lack of an accurate synopsis and fiscal note on the Act. The Alabama Constitution of 1901 provides in Article IV at § 45: The style of the laws of this state shall be: Be it enacted by the legislature of Alabama, which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length. Alabama Constitution of 1901, Art. IV, § 45 (emphasis added). This Court has interpreted § 45 as imposing the requirement that where an act is intended to have retroactive application, the title of the act must fairly and reasonably indicat[e] that the act is retrospective. Lindsay v. United States Savings and Loan Association, 120 Ala. 156, 24 So. 171 (1897); See Gayle v. Edwards, 261 Ala. 84, 72 So.2d 848 (1954). The purpose of § 45 is to prevent fraud upon the legislature and the people of this state, and the test for whether a statute violates § 45 gives effect to those purposes. The question to be addressed in determining the constitutionality of an act under § 45 is: Whether the title of the act is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment. Pillans v. Hancock, 203 Ala. 570, 84 So. 757 (1919); Opinion of The Justices, 294 Ala. 571, 319 So.2d 699 (1975). To the extent that the three-year carryback provision has retrospective application to the conditional income tax obligation, we hold that the retroactive feature of the Act is fairly and reasonably indicated in the title of the Act by the word carryback. The connotation of the word carryback should be familiar to those with a passing acquaintance with the field of taxation. Loss carrybacks for financial institutions have been authorized since 1955. Act No. 568, Acts of Alabama, 1955 (now Code 1975, § 40-16-1(2)k). The early version of § 172 of the Internal Revenue Code of 1954, which authorizes loss carrybacks, has been part of the federal income tax law since 1918. Applying the test enunciated above to the title of Act 594, we hold that the word carryback, which has long been part of our tax system, is sufficient to indicate any retrospective application of the Act, and the title is not so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment. Finally, appellant challenges the constitutionality of the Act based upon violation of the House and Senate Rules, lack of an accurate synopsis or fiscal note. The Rules of the House of Representatives and Senate of the State of Alabama are not a part of the Constitution of Alabama of 1901 and thus do not furnish a basis upon which to challenge the constitutionality of Act 594, Acts of Alabama, 1977. AFFIRMED. MADDOX, ALMON, SHORES and BEATTY, JJ., concur. FAULKNER, J., with whom BLOODWORTH, JONES and EMBRY, JJ., join, dissents.",issues
+25,2638560,1,8,"[¶ 20] For those reasons indicated above, we hold that no material questions of fact existed in this case and that the Trust, as a matter of law, was entitled to summary judgment. We, therefore, affirm the district court's ruling granting summary judgment in favor of the Trust.",conclusion
+26,4539252,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+27,2005668,1,2,"
+Prohibition is a discretionary writ that lies only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). The general rule is that, if a court is entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court. State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 169 (Mo. banc 1999).
+The leading Missouri case addressing conflicts of interest that may arise when an attorney represents both a criminal defendant and a prosecution witness in the same case is Ciarelli v. State, 441 S.W.2d 695 (Mo.1969). Ciarelli was accused of receiving golf equipment stolen from a country club by Victor Osborne and another. While Ciarelli and Osborne were originally represented by different counsel, due to illness Ciarelli's prior attorney withdrew and attorney Robert Harrington represented Ciarelli at trial. Either Harrington or one of his partners also represented Osborne. Osborne gave testimony adverse to Ciarelli as a witness for the state at the trial. Ciarelli was convicted. On appeal, Ciarelli argued that Harrington's representation of both him and a prosecution witness created an actual conflict of interest and that conflict in turn denied him his Sixth Amendment right to counsel. This Court agreed with defendant that: It has been ruled in numerous federal cases that a defendant in a criminal trial is denied his constitutional right to counsel if his attorney represents conflicting interests without his knowledge and assent. Id., 441 S.W.2d at 697. This Court then held that, given this Sixth Amendment right to counsel, An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests. Id. As this Court noted, recognition that a conflict of interest exists does not end the inquiry, for a conflict of interest may in many circumstances be waived. The waiver must be knowing, of course, for, [t]here can be no doubt that, insofar as this problem [of a conflict of interest] is concerned, the fact that an attorney is of the defendant's own choosing is of no significance, absent knowledgeable consent of the accused. Id. at 697. But, Ciarelli found that defendant had gone to trial aware of the conflict and had knowingly waived it. It also found that Ciarelli's counsel in fact did effectively represent him, conducting a vigorous defense and attempting to impeach Osborne. It therefore rejected the after-the-fact attempt to void the guilty verdict based on the conflict of interest. Nineteen years later, the United States Supreme Court elucidated the basis on which a waiver of an actual or potential conflict of interest should be accepted or rejected in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), still the leading United States Supreme Court case on the issue of an attorney's conflict of interest in the case of dual representation. Wheat was charged in a complex federal drug case. A co-defendant represented by attorney Eugene Iredale was acquitted on one charge and obtained a favorable plea arrangement on another, although that agreement was not yet final. Apparently impressed, defendant Wheat moved to be allowed to dismiss his counsel and retain Iredale. The prosecutor noted that the co-defendant who had pleaded guilty was likely to be a prosecution witness in Wheat's trial, and that if this occurred, or if the co-defendant withdrew his plea and himself went to trial, attorney Iredale's joint representation of them would create a conflict of interest. The trial judge denied the motion, noting that it was made very shortly before trial was to begin. The Ninth Circuit affirmed, and the Supreme Court granted certiorari to address when a district court may override a defendant's waiver of his attorney's conflict of interest. Wheat, 486 U.S. at 158, 108 S.Ct. 1692. The Supreme Court began by explaining that the Sixth Amendment secures the right to effective assistance of counsel in order to ensure that criminal defendants receive a fair trial, and that for this reason: [W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. Wheat, 486 U.S. at 159, 108 S.Ct. 1692. From this it determined that: While `permitting a single attorney to represent codefendants ... is not per se violative of constitutional guarantees of effective assistance of counsel,' Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426, ... (1978), a court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant separate counsel.... As we said in Holloway : Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.... [A] conflict may ... prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. 435 U.S. at 489-490, 98 S.Ct. 1173. Wheat, 486 U.S. at 159-60, 108 S.Ct. 1692 (quoting Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). The Court noted that Fed. R.Civ.P. 44(c) reflects these constitutional principles, [1] but also stated that, Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.... Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation. Wheat, 486 U.S. at 160, 108 S.Ct. 1692. Applying these principles, Wheat stated that a court may reject a waiver in the face of an actual conflict of interest. Because it is often difficult to predict prior to trial whether an actual conflict will arise, however, the Court also stated that: The district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. Wheat, 486 U.S. at 163, 108 S.Ct. 1692. Wheat found that the trial court had not exceeded the latitude allowed it in refusing to accept the waiver in that case.
+The principles explicated in Ciarelli and Wheat govern here. Applying these principles, this Court concludes that the trial judge in this case also did not exceed the latitude given her under the Sixth Amendment in refusing to accept Adrian's purported waiver of the conflict of interest. As set out in detail supra, the record shows that: (1) the State has said on the record that Adrian's father, Kevin, will be a key prosecution witness, giving testimony essential to its case; (2) it appears Kevin's testimony at trial will track that which he gave at the deposition at which he was represented by Muegler; (3) for the reasons set out in detail below, that testimony will be adverse to Adrian's interests unless its credibility is undermined; (4) the record to date does not indicate an alibi for Adrian's father, Kevin, during the time of the murder; but rather shows that he claims to have been working alone in a room he rented at a nearby hotel and did not answer his pager when called; (5) yet, Adrian says there is no conflict of interest and therefore nothing to waive because he believes his dad will tell the truth, and (6) Muegler says that Kevin's testimony goes only to uncontested issues or is favorable and he does not see a conflict of interest or a serious potential for one. In these circumstances, although Muegler avers he will not represent Kevin when the latter is called to testify at trial, the potential for a serious conflict of interest arising at that time, because of the need to impeach or throw suspicion on Kevin, or otherwise, is great. If this occurs during trial, a mistrial would result, for Muegler would be forced to withdraw rather than impeach his own former client, and Adrian would require new counsel be retained or appointed for him. It was to avoid this likelihood that the trial court rejected Adrian's purported waiver and disqualified Muegler. She did not abuse her discretion in so holding. In so holding this Court recognizes that this issue is being raised by the prosecutor, whose role as the party adverse to defendant makes him an unlikely protector. Indeed, the state admits its concern is to avoid a claim of ineffective assistance after trial, not to act to protect Adrian's interests. Where, as here, however, defense counsel does not believe that a real or potential conflict of interest exists, then someone other than defense counsel would almost have to be the one to raise it. And, it should not be forgotten that, under our law, the prosecutor has a duty to serve justice, not just win the case. State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995). Nonetheless, the fact that the prosecutor is not acting for or representing defendant's interests highlights the importance of defendant receiving the advice of independent counsel before agreeing to a waiver and of the key role the court must play as neutral fact-finder and decisionmaker in sorting out the issues raised by the conflict of interest claim. In so holding, this Court also strongly emphasizes the need to accord an accused the right to select his or her own counsel. In most cases, this will include the right to make a knowing waiver of a potential conflict of interest, particularly where the potential conflict involves representation of a witness prior to the case in question, representation of a peripheral witness, or a conflict that arose due to the conduct of someone other than defendant and his counsel. But, this Court rejects the suggestion that, in all but the rarest cases, once a defendant says that he waives any conflict, the court's involvement must end. To the contrary, where the conflict of interest is an actual one, or the potential for a conflict of interest at trial is a serious one, such as is the case here, then such a waiver, ... does not necessarily resolve the matter, for the trial court has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver. United States v. Stewart, 185 F.3d 112, 122 (3d Cir.1999), cert. denied, 528 U.S. 1063, 120 S.Ct. 618, 145 L.Ed.2d 512 (1999), quoting, United States v. Moscony, 927 F.2d 742, 749 (3d Cir.1991). The best way for the trial court to fulfill its role would be for the court to timely hold a hearing on the issue of the conflict, either on its own motion or on motion of one of the parties, prior to the advent of the dual representation, or as soon thereafter as the conflict or potential conflict comes to the attention of counsel or the court. [2] At the hearing counsel could present the facts regarding the conflict and defendant's desire to waive it, and counsel and the court could question defendant and other relevant persons about the purported waiver, much as occurs when a defendant indicates he or she wants to waive the right to counsel at trial but has not signed a written waiver as set out in section 600.051, RSMo 2000. See, e.g., May v. State, 718 S.W.2d 495 (Mo. banc 1986); State v. White, 44 S.W.3d 838 (Mo.App. W.D.2001). Appointment of a public defender to give independent advice on this issue would be appropriate if the defendant qualifies for such appointment. If not, then the court should recommend to defendant that he or she seek the advice of other independent counsel. The court should consider whether such counsel was available in considering the knowing nature of the waiver, and it is all the more important to have such counsel when the defendant is a juvenile. The court can then make the determination whether to accept the waiver under the principles set out herein. Here, of course, no such inquiry occurred prior to the waiver. Rather, as discussed below, the dual representation occurred before the conflict was even explained to or a waiver sought from either client, and no independent counsel was appointed or consulted. This is particularly of concern here, for the record makes it evident that the potential for a serious conflict of interest at trial is high. While Adrian's father, Kevin, has not been charged with a crime, Adrian, a juvenile at the time of the crime and a minor at the time of the deposition, has been accused of the crime of killing his mother. Adrian's father has been listed as a witness for the State because he gave a statement shortly after the murder, and again stated at his deposition, facts that demonstrate conflict between Adrian and his parents, a belief that Adrian could be violent, access by Adrian to weapons, and lack of veracity on the part of Adrian. Clearly, a defense counsel would normally want to discredit as much of this testimony as possible. In addition, because Kevin was in a hotel room, unseen by others, during the murder, and failed to return numerous pages that night, a potential defense strategy might well be to turn suspicion toward Kevin himself. Yet, inasmuch as Kevin is at least a former client of Muegler, cross-examination by Muegler on these issues would be impossible, and Adrian would thus be denied these lines of defense. Muegler nonetheless states that he sees no actual or serious potential for a conflict of interest. From this one would presume that he does not foresee relying on such defenses at Adrian's trial. Although it is unclear how Muegler can fully and effectively defend Adrian without using such defenses, this Court does not need to reach the state's claim that he is engaging in this dual representation in order to set up a later claim of ineffective assistance of counsel. Whether he is taking this position for that reason, or because Adrian said he would never want to discredit or cast suspicion on his father, or whether he has yet some other motivation, is not dispositive. Assuming that Muegler in good faith believes that he can represent Adrian effectively at trial despite his pre-trial representation of both Adrian and Adrian's father, he simply cannot now know what strategies may ultimately be in Adrian's best interests at the trial. For, as the Third Circuit noted in Stewart : [N]otwithstanding an attorney's pretrial assurances otherwise, a defendant's trial strategy is not fixed. Thus, if an attorney has been unsuccessful in bringing out the necessary points in support of a contemplated defense, the attorney may change his strategy to provide the defendant with the best possible defense. Accordingly, the district court could not accept Stewart's assurances that he would not pursue an alternate strategy at trial. In fact, by so doing, the court would have been opening the door for a manufactured mistrial or a possible ineffective assistance of counsel claim on appeal. 185 F.3d at 122. Muegler cannot know what defenses he will ultimately decide he must use at trial and cannot reject any such defenses out-of-hand before trial because they would be distasteful to his client or because, before trial, other approaches appear to be preferable. This concern is rendered all the more serious here because of the fact that the other person whom Muegler has represented, whom the State says will be one of its key witnesses, necessary for it to make its case, and upon whom the defense might potentially want to throw suspicion, is Adrian's own father, Kevin. He is paying for Adrian's defense, and stands in a fiduciary relationship with Adrian, who was a juvenile at the time of the crime and a minor at the time of the deposition of his father (although he is now 18 and is being tried as an adult). In other words, the two people to whom Adrian could look for counsel and advice as to whether to waive the conflict were his father, the alternate potential suspect who offered deposition testimony detrimental to Adrian's defense, and his attorney, Muegler, who also represents Adrian's father and who is being paid by Adrian's father to represent Adrian. [3] Further, Adrian's testimony at the hearing below makes it clear that he did not waive the potential conflict, nor was its existence explained to him in a way he could remotely understand, prior to the deposition, and Kevin likewise testified it was not explained to him prior to his deposition. Indeed, even by the time of the hearing, Adrian did not appear to understand the nature of the potential conflict, for he testified that he had no trouble with Muegler representing both him and his father because he was sure his father would tell the truth. Adrian's belief in his father's honesty does not necessarily bear any relevance to whether that honest testimony is adverse to him, however. Adrian's lack of understanding of the potential adversity of his father's testimony may in part have been caused by his counsel's own stated belief that Kevin's testimony is not adverse to Adrian, for Muegler stated at the hearing below that if the Court goes through the Kevin Kinder deposition ... the Court will note that Kevin Kinder did not testify to any fact which was adverse to the interest of this defendant, Adrian Kinder. This Court's reading of the deposition leads it to the opposite conclusion, however; it is potentially devastating to Adrian, and at trial is likely, as the state anticipates, to be a key part of the state's case. Counsel for Adrian suggests that Rule 4-1.7, a part of the Rules of Professional Conduct nonetheless leaves it to the attorney to decide whether the attorney can reasonably represent both clients. [4] But, while this rule is intended to address many of the same concerns that are addressed by the Sixth Amendment principles discussed here, the rule is addressed only to the attorney's ethical obligations to his or her client. It runs parallel to, rather than supplants, a trial judge's obligation to protect defendant's Sixth Amendment rights by rejecting an invalid waiver. Counsel for Adrian also suggests that the problems with the waiver that have been identified resulted because the hearing held below did not sufficiently focus on why Adrian should be allowed to waive the potential conflict, and that a new hearing would satisfy the concerns here raised. While this approach might be adequate in another case, it is inadequate on these facts. Any lack of in-depth inquiry at the hearing below into whether the potential conflict was one that could be waived was not due to a failure to inquire into this issue, but was due to Adrian and Muegler's insistence that there was no conflict or potential conflict and, therefore, there was nothing to waive. If the defendant denies there is a conflict, and denies even understanding what a conflict is, it is impossible to question him at length about whether requirements for waiver of that conflict have been met. The court below was also entitled to consider the fact that Adrian's lack of understanding appears to have resulted from Muegler's apparent failure to explain to Adrian, even by the time of the hearing below (much less prior to the deposition), exactly what constitutes a conflict of interest. For, on the numerous occasions that the State tried to inquire into whether Adrian thought a conflict of interest existed or could be waived, Adrian repeatedly indicated he just did not understand what was meant by a conflict of interest. As noted, he finally tried to reassure the court that he believed his father would tell the truth and, thus, there was no problem with the dual representation. But, this just underscored his lack of understanding that his father might be truthful yet his interests and Adrian's might still conflict. This reinforces the importance of ensuring that a client, particularly one who, like Adrian, was a minor at the time of the deposition, be told of the potential for conflict and receive independent advice as to it prior to counsel undertaking dual representation. For these reasons, even had Adrian been asked to give, and been capable of giving a knowing waiver prior to the deposition (an issue the trial court was not timely asked to pass upon), review of the transcript of the hearing that was ultimately held convinces the Court that the trial judge did not abuse her discretion in determining that the after-the-fact attempt to explain the conflict and obtain a waiver was inadequate and in refusing to accept the waiver. The preliminary writ of prohibition is quashed. LIMBAUGH, C.J., WOLFF, BENTON, STITH, PRICE, TEITELMAN, JJ. and LOWENSTEIN, Sp.J., concur. WHITE, J. not participating.",analysis
+28,2163041,1,5,"Defendant argues that inasmuch as the jury found her guilty but mentally ill, it was improper for the trial court to sentence her to more than the presumptive sentence of forty years for the crime of murder. She questions taking the very facts of the case which most strongly relate to and which clearly only came about because of her mental illness and turn[ing] them into aggravating factors instead of mitigating ones. (Brief of Appellant, p. 82). The trial court listed as aggravating factors the following: (1) it was the most brutal and gruesome homicide the court had personally seen; (2) the Defendant planned to kill her daughter and had a motive of revenge; (3) the victim was young; (4) the Defendant had shown no remorse for her action; (5) the Defendant needed long term commitment to a mental health or penal facility; (6) a lesser sentence would depreciate the seriousness of the crime; and (7) while the Defendant might have had troubles, she had failed to seek help. From these circumstances, the court determined that a sentence of sixty (60) years would be appropriate. However, in view of the mitigating factors that Defendant had no previous record and that the jury had found her to be mentally ill the court was persuaded to impose only a fifty (50) year sentence. It is within the discretion of the trial court to determine whether the presumptive sentence for a crime will be increased or decreased because of aggravating or mitigating circumstances. Gaunt v. State, (1983) Ind., 457 N.E.2d 211, 216. The sentence here imposed by the court is within the statutory bounds; therefore, we will alter the sentence only if it is manifestly unreasonable. Id.; Bryan v. State, (1982) Ind., 438 N.E.2d 709, 719. A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed. Ind.R.App.Rev.Sen. 2(2). In view of the nature of the offense and the offender, we cannot say that the sentence is manifestly unreasonable.",issues
+29,6348663,1,5,"[6-8] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 6 For an appellate 1 Schlake v. Schlake, 294 Neb. 755, 885 N.W.2d 15 (2016). 2 Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020). 3 Id. 4 Id. 5 Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 378 (2021), disapproved on other grounds, Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022). 6 Schlake, supra note 1. - 639 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. 7 Although partial summary judgments are usually considered interlocutory and must ordinarily dispose of the whole merits of the case to be considered final, partition actions are unique in that the action has two distinct stages: first, the title determination and, second, the division of the real estate, i.e., the “partition.” 8 The seminal case on the issue of the appealability of orders in a partition action is Peterson v. Damoude. 9 In that case, we explained that the appealability of orders in partition actions depends on the nature of the controversy resolved and that such orders can be arranged into three classes: (1) Where there is no controversy as to the ownership of the property in common and the right of partition, but the controversy is as to something relating to the partition, as whether the property can be equitably divided or must be sold, one party contending that it can be equitably divided and asking for a distinct portion of the property, and the other party contending that it cannot be equitably divided and asking that the whole property be sold, or some similar controversy in regard to the partition itself. When that is the case, the partition alone is the subject of litigation, and of course is not final until the partition is made. (2) The second class is where there is the same issue as above indicated as to the method of partition, and at the same time a distinct issue as to the title and ownership of the property. In such cases the parties would have a right to have their title first tried and determined, and, if that was done, the order thereon would be a final 7 Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004). 8 Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 825 (2017). 9 Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847 (1914). - 640 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 order, . . . but if the matter is tried to the court, and the parties do not ask that their title be first determined, and there is no indication that the court proceeded first to determine the title, the parties should be held to have waived their right to appeal before the partition is completed. (3) The third class is where everything depends upon the title and the nature of the title, and where, when that question is determined, the whole thing is determined. In such case there can be no doubt . . . that, when that question is determined, such determination is a final order, within the meaning of the statute, and is appealable. 10 [9-11] Put differently, when the dispute in a partition action is over the partition itself rather than ownership or title, there is no final, appealable order until the partition is made. 11 When a partition action involves a dispute over ownership or title as well as a dispute over the method of partition, the parties have a right to have title determined first, and, if they elect to do so, an order resolving only the title dispute is a final, appealable order. 12 When the only issue in a partition action depends on ownership and the nature of the title, an order determining that issue is a final, appealable order. 13 In Peterson, the petition alleged that a decedent’s will disposed of certain real estate, prayed that the court construe the will “‘with reference to the right of the plaintiffs to have partition and division of said premises,’” and asked the court to quiet title in the plaintiffs. 14 On appeal, this court recognized that the “sole matter contested was the construction and effect of the will; there being no contest as to the partition if the 10 Id. at 471, 145 N.W. at 848, citing Sewell v. Whiton, 85 Neb. 478, 123 N.W. 1042 (1909). 11 Schlake, supra note 1. 12 Id. 13 Id. 14 Peterson, supra note 9, 95 Neb. at 472, 145 N.W. at 848. - 641 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 will is construed as the plaintiffs contend.” 15 Thus, because the order construing the will determined the whole controversy, we determined that the case fell within the third class and concluded that the district court’s order was final. Then, in Beck v. Trapp, 16 another partition case, the district court found, in part, that the plaintiffs were the owners of the land and quieted their title to the same. The court also determined the respective interests of the defendants and directed that the lands be partitioned. Subsequently, the appointed referee reported that partition could not be made without prejudice to the owners. Accordingly, the land was sold. On appeal, we determined that the case came within the third Peterson class, because “[t]he decree settling the question of title in the case at bar ‘determined the whole controversy.’ . . .” 17 In making this determination, we recognized that the real controversy in the action was the issue of title and that the partition prayed for was only incidental, because “[i]f the plaintiffs did not succeed in establishing their title, they would have no right to partition.” 18 We have consistently applied the three classes set out in Peterson to determine when and under what circumstances orders in partition actions are final and appealable, and we conclude it is applicable here as well. As an initial matter, we first note that this case does not fall into either the first or second Peterson class, because the parties do not contest the method of partition. Barbara’s complaint asserts that a sale of the Home is necessary because the Home is not susceptible to a partition in kind. Appellants generally deny this allegation in their answer, but fail to assert what they believe is the appropriate method of partition. Further, in his deposition, Smith appeared to concede that if the Home is subject to a 15 Id. 16 Beck v. Trapp, 103 Neb. 832, 174 N.W. 610 (1919). 17 Id. at 835, 174 N.W. at 611. 18 Id. at 834, 174 N.W. at 610. - 642 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 partition, the appropriate method would be a referee sale of the Home. The real controversy in this case is the issue of title, and the partition is incidental to the issue of title. If Barbara does not succeed in establishing her title, she has no right to partition. If Barbara does succeed in establishing her title, the parties seem to agree that a referee’s sale is appropriate. Accordingly, this brings the case within the third Peterson class, because the order settling the question of title “determined the whole controversy,” and, as such, we find that the district court’s order is final and appealable. Summary Judgment Appellants assert that there exist genuine disputes of material fact concerning the parties’ respective titles to the Home and that therefore, summary judgment was not appropriate. Upon our review of the record, we agree. [12] Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. 19 The evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits. 20 Before we consider whether Barbara’s motion for summary judgment should have been entered, we must first consider the possible implications of Appellants’ failure to file an evidence index and an annotated statement of disputed facts, as required by § 6-1526 in opposition to the motion. At the summary judgment hearing, Appellants offered, and the court received, several exhibits into evidence. Appellants also made certain arguments in support of their opposition to summary 19 Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021). 20 Bohling, supra note 2. - 643 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 judgment. Barbara contends that Appellants’ evidence and arguments made in opposition to her summary judgment motion should be disregarded because Appellants failed to comply with § 6-1526. We disagree. [13] In a recent case, we identified three reasons for § 6-1526, namely, to benefit the parties by making their claims as to disputed and undisputed facts clear and precise, to serve the courts by exposing the precise claims of the parties, and to focus the parties and the court on the specific factual contentions. 21 We noted, however, that in the context of § 6-1526, trial courts should have some discretion to adapt procedures to the needs of a particular case, and an appellate court will not intervene except where the discretion is abused. 22 Here, the issues and facts raised and contested by Appellants were made clear by their “Evidence of Frivolous in Support of Motion and Notice for Dismissal” and “Evidence Index in Support of Their Motion to Dismiss Without Prejudice.” As such, we find no abuse of discretion in the court’s allowing Appellants to proceed with offering evidence notwithstanding their failure to comply with the summary judgment rule. But, we caution that trial courts should not condone a party’s failure to follow § 6-1526 merely because the party finds it inconvenient or unfamiliar. 23 Instead, courts should set deadlines in compliance with the rule and require parties to submit necessary materials. 24 Now turning to the appropriateness of granting summary judgment, we note that the method of partition was never in question and we discern no genuine issue of material fact regarding that issue. We therefore focus our analysis on whether the district court erred in granting summary 21 Id. 22 Id. 23 Id. 24 Id. - 644 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 judgment in favor of Barbara on the contested issue of title, specifically whether Donald forgave the Loan. As noted, it is undisputed that the $25,000 Donald paid toward the purchase price of the Home was a loan and that upon repayment of the Loan, Donald would relinquish his ownership interest in the Home, leaving Smith as the sole owner. Thus, if the allegation that Donald forgave the Loan is true, it would necessarily follow that Smith is the sole owner of the Home and that Barbara does not have a right to partition. Despite Barbara’s argument that the Loan was not forgiven, the evidence adduced at the summary judgment hearing demonstrated that Donald may have made an affirmative representation to Appellants that he would forgive the remaining balance on the Loan. At the hearing, transcripts from both Smith’s and Prosolow’s depositions were received into evidence. According to Smith’s deposition, Donald forgave the loan in June or July 2018. This was corroborated by Prosolow, who testified that sometime in July 2018, she overheard Donald tell Smith that “as long as you take care of [Barbara], that’s all I want, then the loan is forgiven and you’ll have the truck so that you can take care of her.” Thus, there is a genuine dispute as to whether Donald forgave the loan. Moreover, the district court itself seemed to recognize this factual dispute when it declined to grant summary judgment on Barbara’s claim for unpaid rent, because it recognized that “there [was] conflicting evidence on this issue,” because “[a] reasonable mind could conclude that, although Smith initially agreed to repay the Loan in full, it was later forgiven and Smith is no longer obligated to repay it.” As such, summary judgment on the partition action was improper. [14] We further acknowledge that in the summary judgment context, a fact is material only if it would affect the outcome of the case. 25 Thus, we find it important to address the district court’s findings that even if the Loan was forgiven, 25 Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014). - 645 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 Donald retained his ownership interest in the Home because there is no evidence that he ever relinquished his ownership interest. [15,16] It is a well-settled principle that a court of equity will consider the purpose and not the form, and that the particular form or words of a conveyance are unimportant if the intention of the parties can be ascertained. 26 Additionally, Neb. Rev. Stat. § 76-251 (Reissue 2018) states in part that “[e]very deed conveying real estate, which, by any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” Generally, a deed of real estate, absolute in form, may be shown by parol to have been intended by the parties to it as security for a debt or loan, and as between such parties, at least, the instrument will be construed to be a mortgage. 27 Here, there is evidence that the special warranty deed was intended by the parties to be security for a loan, as evidenced by the loan agreement, record of payments, and the testimony of the parties. If the finder of fact determined such was true, the deed could be construed as a mortgage, and the finder of fact could then conclude that Donald’s purported forgiveness of the Loan operated as a relinquishment of his ownership interest in the Home. As such, the question of whether the Loan was forgiven is a material issue of fact as it affects the determination of title and the outcome of the partition claim. Therefore, the district court erred in granting summary judgment in favor of Barbara on the issue of partition. Smith’s Counterclaim Appellants argue the district court erred in granting summary judgment in favor of Barbara on Smith’s counterclaim, wherein he alleged that Barbara had been unjustly enriched 26 Koehn v. Koehn, 164 Neb. 169, 81 N.W.2d 900 (1957). 27 Id. - 646 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 because the value of work he performed exceeded the amount he was paid. However, Appellants neither assigned nor sufficiently argued this error in their brief. It is a well-settled principle that to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 28 However, an appellate court may, at its discretion, notice a plain error not assigned. 29 Here, we choose to review for plain error, but find none. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. 30 [17] Though the record reflects that Smith agreed to work at various hourly wages, and that the Humphreys paid him what he was owed, Smith nevertheless argued that he should have been paid more based on what a contractor would charge for the same work. Unjust enrichment claims are viable only in limited circumstances, and the terms of an enforceable agreement normally displace any claim of unjust enrichment within their reach. 31 Though contract claims supersede unjust enrichment claims, a plaintiff is permitted to allege both, and when a plaintiff elects to do so, a court should address the contract claim first. 32 We agree with the district court that as a matter of law, Smith is precluded from asserting an unjust enrichment claim, because it is undisputed that Smith agreed to work at an hourly wage and that the Humphreys paid him all amounts due under that agreement. Accordingly, we conclude the district court did not commit plain error in granting summary judgment in favor of Barbara on Smith’s counterclaim. 28 Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019). 29 In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995). 30 Great Northern Ins. Co., supra note 5. 31 DH-1, LLC v. City of Falls City, 305 Neb. 23, 938 N.W.2d 319 (2020). 32 Id. - 647 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports HUMPHREY v. SMITH Cite as 311 Neb. 632 Barbara’s Unjust Enrichment Claim [18] In her brief, Barbara argues the court erred in denying her motion for summary judgment with respect to her unjust enrichment claim. In particular, Barbara contends that Appellants have been unjustly enriched by residing in the Home without paying rent. However, Barbara has not filed a cross-appeal, and, generally, an appellee may not question a portion of a judgment at issue on appeal unless the appellee properly raises the issue by filing a cross-appeal. 33 Moreover, the denial of a motion for summary judgment is typically an interlocutory order rather than a final order and thus not immediately appealable. 34 Accordingly, we decline to consider this argument.",jurisdiction
+30,2445690,1,2,"Before we may decide whether the judicial proceedings privilege applies to the filing of a mechanic's lien and whether it extends to filings made by the party in interest ( i.e., not an attorney), we must first determine whether this court has jurisdiction, pursuant to the collateral order doctrine, to hear the appeal of the denial of appellant's motion for summary judgment. We conclude that we do not have jurisdiction over the interlocutory ruling denying the privilege in this case. This court has jurisdiction to hear appeals from final orders and judgments of the Superior Court. See D.C.Code § 11-721(a)(1) (2001). A final order has been defined as one that resolves the case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered. In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C.1993) (en banc) (quoting McBryde v. Metro. Life Ins. Co., 221 A.2d 718, 720 (D.C.1966)). The denial of a motion for summary judgment is typically not appealable because it contemplates further proceedings in the trial court and necessarily leaves issues to be resolved. See Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339 (D.C.2001). Under the collateral order doctrine, however, a ruling such as the denial of a motion to dismiss may be appealable if it has `a final and irreparable effect on important rights of the parties.' Id. (quoting Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith v. Beards, 680 A.2d 419, 425 (D.C.1996)); see Stein v. United States, 532 A.2d 641, 643 (D.C.1987) (adopting Supreme Court's collateral order doctrine, which recognized a `small class' of appealable, albeit non-final, orders, as set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). For this court to have jurisdiction to review a non-final order pursuant to the collateral order doctrine, the ruling must satisfy three requirements: (1) it must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment. Id. at 339-40 (citing Bible Way, 680 A.2d at 425-26). We have said that [t]he denial of a motion that asserts an immunity from being sued is the kind of ruling that is commonly found to meet the requirements of the collateral order doctrine and thus [to] be immediately appealable.... Id. at 340 (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), [2] and Mitchell v. Forsyth, 472 U.S. 511, 525-29, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) [3] ). Since our opinion in Finkelstein, Thompson & Loughran, the Supreme Court, in Will v. Hallock , has emphasized that the collateral order doctrine is modest in scope and described the conditions required for its application as stringent. 546 U.S. 345, 349-50, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Specifically with respect to the third requirement, the Court cautioned that not mere avoidance of a trial, but avoidance of a trial that would impair a substantial public interest is required before an appellate court invokes jurisdiction on the ground that an order is otherwise `effectively' unreviewable if review is to be left until later. Id. at 353, 126 S.Ct. 952. In Will, the Court held that the trial court's refusal to apply the judgment bar of the Federal Tort Claims Act to dismiss a Bivens action did not meet this standard and was thus not appealable under the collateral order doctrine. 546 U.S. at 353-54, 126 S.Ct. 952. We examine the three requirements for appealability under the collateral order doctrine in light of the Court's further guidance in Will, and consider whether denial of the judicial proceedings privilege serves a sufficiently important public interest to merit expedited appellate evaluation and, possibly, vindication. We conclude that it does not and that we therefore lack jurisdiction to hear this interlocutory appeal. The first requirement of the collateral order doctrine, whether the trial court's ruling conclusively decides a disputed legal issue, is easily met in this case. The applicability of the judicial proceedings privilege to the filing of a mechanic's lien is an issue of law that the parties dispute, and the trial court conclusively determined that the privilege does not apply to the filing of a mechanic's lien by a party, thus subjecting McNair to further litigation. See Finkelstein, Thompson & Loughran, 774 A.2d at 340 ([I]n denying the motion to dismiss ... the trial court conclusively determined (by rejecting) their claim of immunity.) (quotations omitted). As to the second requirement, whether the ruling appealed is separate from the merits of the action, because the effect of the judicial proceedings privilege, if applicable, would be to render the allegedly defamatory filing absolutely privileged, it acts as a complete bar to the claims of fraud and slander of title. See McBride v. Pizza Hut, Inc., 658 A.2d 205, 207-08 (D.C.1995) (letter to opposing counsel in response to threatened lawsuit is absolutely privileged); Arneja v. Gildar, 541 A.2d 621, 623 (D.C.1988) (same). Thus, whether the privilege can be asserted for the filing of a mechanic's lien is a legal question distinct from the issues raised by the underlying complaint. See Finkelstein, Thompson & Loughran, 774 A.2d at 340 ([T]he issue of immunity from having to defend against... [a] defamation claim is separate from the merits of that claim.). Thus, the first two requirements of a collateral order are satisfied. The third factor to be analyzed in the collateral order doctrine is whether the ruling would be effectively unreviewable if appellate review is deferred until there is a final judgment in the trial court. Denial of immunity in its various forms has been considered the embodiment of a ruling that is unreviewable from a final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action. Mitchell, 472 U.S. at 525, 105 S.Ct. 2806; see also Finkelstein, Thompson & Loughran, 774 A.2d at 341 ([T]he trial court's denial of appellants' absolute immunity claim is effectively unreviewable on appeal from a final judgment, because by then the purported `entitlement not to stand trial or face the other burdens of litigation' would be lost irretrievably.). The Supreme Court has warned, however, that [o]ne must be careful not to play word games with the concept of a `right not to be tried,' Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), for virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a `right not to stand trial.' Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Our precedents establish that the judicial proceedings privilege we recognize in the District of Columbia entails the right to be free from suit. We said in Finkelstein, Thompson & Loughran, the judicial proceedings privilege is more than a defense to liability, [it] is intended to afford an attorney absolute immunity from actions in defamation for communications related to judicial proceedings. 774 A.2d at 340 (quoting Arneja, 541 A.2d at 623). We concluded there that denial of an asserted privilege based on pre-trial communications with prospective clients would be reviewed on an interlocutory basis under the collateral order doctrine. The Supreme Court's subsequent decision in Will, however, sharpened the threshold analysis for applying the collateral order doctrine by requiring that some particular value of a high order must be marshaled in support of the interest in avoiding trial. 546 U.S. at 352, 126 S.Ct. 952. That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is `effectively' unreviewable if review is to be left until later. Id. at 353, 126 S.Ct. 952. Although Will affirmed that orders rejecting absolute immunity are immediately appealable, id. at 350, 126 S.Ct. 952, it did so with reference to Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), which involved a presidential claim of immunity from suit. [4] The Court described the instances in which it had recognized that interlocutory appeals were proper, noting the substantial public interest in each case: honoring the separation of powers [in Nixon ], preserving the efficiency of government and the initiative of its officials [in Mitchell, 472 U.S. at 530, 105 S.Ct. 2806], respecting a State's dignitary interests [in an Eleventh Amendment challenge in Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)], and mitigating the government's advantage over the individual [with regard to the double jeopardy bar in Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)]. Will, 546 U.S. at 352, 126 S.Ct. 952. Following Will, the Fifth Circuit in Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164 (5th Cir.2009), identified another public interest worthy of protection on interlocutory appeal, that of enforcing a statute that aim[s] to curb the chilling effect of meritless tort suits on the exercise of First Amendment rights. ... Id. at 180. In Henry, the court considered Louisiana's anti-SLAPP (strategic lawsuits against public participation) statute, which was designed to bring an early end to meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances, noting that in enacting the statute, the Louisiana legislature had declare[d] that it is in the public interest to encourage continued participation in matters of public significance.... Id. at 169. [5] The Sixth Circuit also has recognized another important public interest worthy of interlocutory review, in the context of a criminal trial. In Moldowan v. City of Warren, 578 F.3d 351 (6th Cir.2009), the court held that denials of claims of qualified immunity for official actions and absolute testimonial immunity by public officials are appealable on an interlocutory basis because [e]xposing police officers and forensic investigators to suit based on testimony they deliver as part of their official duties and on behalf of the state undoubtedly implicates their ability to exercise their discretion and potentially inhibits them from performing their duties. Id. at 372. The court held that the public also had an interest that meets Will's stringent test in preventing witness intimidation and self-censorship, expos[ing] victims of crimes who testify in criminal proceedings to suit [that may] creat[e] a substantial disincentive for victims to come forward to identify their attackers, and threats to the effective administration of the criminal justice system. Id. at 373. Therefore, denial of claims of privilege asserted by both the law enforcement officers and the victim were immediately reviewable on appeal under the collateral order doctrine. We conclude that when compared with the examples noted by the Court in Will and the interests at issue in Henry and Moldowan, the judicial proceedings privilege asserted in this case does not protect a substantial public interest of the high order required by Will. The absolute immunity accorded to valid claims of judicial proceedings privilege reflects a judgment that the need for completely free speech for litigants is dominant, and that this freedom is not to be endangered by subjecting parties to the burden of defending their motives in subsequent slander litigation, or to the risk that juries may misapprehend those motives. Finkelstein, Thompson & Loughran, 774 A.2d at 340 ( quoting Brown v. Collins, 131 U.S.App. D.C. 68, 72, 402 F.2d 209, 213 (1968)). But not all claims of absolute immunity supported by public policy are of the high order established in Will, 546 U.S. at 352, 126 S.Ct. 952. The Sixth Circuit Court of Appeals in Kelly v. Great Seneca Fin. Corp., 447 F.3d 944 (6th Cir.2006), held that advocacy immunity, which confers a type of immunity similar to our judicial proceedings privilege, does not involve the type of public interest warranting interlocutory review required by Will. Id. at 949. In deciding not to address the merits of the case for lack of jurisdiction, the court held that denial of a claim of advocacy immunity is not immediately appealable because the interest it furthers, preserving the integrity of the judicial process, and the free and unfettered administration of justice, is not of a high order comparable to the interests identified in Will. Id. at 950. The Kelly court noted that the origins of advocacy immunity trace back to English common law, which provided private attorneys with absolute immunity from liability for damages. 447 F.3d at 949-50 (Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding).... (quoting Burns v. Reed, 500 U.S. 478, 489-90, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991))). Similarly, the immunity conferred to attorneys under the judicial proceedings privilege is absolute rather than qualified in order to protect the important interest in unburdened access to the courts. See Finkelstein, Thompson & Loughran, 774 A.2d at 340. As noted by the RESTATEMENT (SECOND) OF TORTS § 586 (1977), the judicial proceedings privilege must afford absolute immunity to lawyers because [this privilege] is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. Id. cmt. a. [6] Moreover, we have noted that the judicial proceedings privilege, beyond a defense to liability, is intended to afford an attorney absolute immunity from actions in defamation for communications related to judicial proceedings, that is, an entitlement not to stand trial or face the other burdens of litigation. Finkelstein, Thompson & Loughran, 774 A.2d at 340 (second quote from Mitchell, 472 U.S. at 526, 105 S.Ct. 2806). In Kelly, the court assumed that immunity from suit and not only from liability is also a purpose of advocacy immunity. 447 F.3d at 950. In this regard, the advocacy and judicial proceedings privileges are qualitatively different from the judgment bar of the Federal Tort Claims Act that the Court considered in Will. As the Court explained, the closer analogy to the [FTCA] judgment bar ... is not immunity but the defense of claim preclusion or res judicata.  Will, 546 U.S. at 354, 126 S.Ct. 952. Valid claims of res judicata can be effectively vindicated on appeal from final judgment, whereas the right to be immune from suit will be lost if the defendant must endure trial before the claim of immunity can be vindicated. No matter how absolute or preemptive of suit the privilege may be, however, the interest in immunizing conduct in litigation in order to provide private litigants (and their attorneys) full and unburdened access to the courts does not compare with the public interests identified by the Court in Will in safeguarding constitutional separation of powers, preserving the ability of officials to carry out their public duties, ensuring the sovereign rights of states under the Eleventh Amendment, and protecting due process rights of criminal defendants. Nor does the interest protected by the judicial proceedings privilege approximate the public's interest in the full exercise of First Amendment rights to free speech and to petition for redress of grievances concerning matters of public significance, Henry, 566 F.3d at 180, or the public's need to safeguard against witness intimidation and other tactics that can cripple the criminal justice system. Moldowan, 578 F.3d at 371. As the Kelly court expressed, where a claim of judicial proceedings privilege has been denied, [t]he resolution of a trial court's error following a final order will not cause lawyers to act less zealously, the administration of justice to come to a grinding halt, or judicial integrity to erode. 447 F.3d at 950. In Moldowan the Sixth Circuit distinguished its Kelly decision because the balance of interests ... differs dramatically, 578 F.3d at 371: Moldowan involved public officials who had testified at trial, and who might be constrained in the exercise of discretion or diverted from their public duties if they had to defend themselves in court, id. at 371-72, [7] whereas in Kelly the defendants asserting absolute immunity in connection with a debt collection case were private individuals [who] will appear as witnesses, at most, only a few times in their lives. Id. at 371. (quoting Kelly, 447 F.3d at 949). [8] More recently, in Mohawk Indus., Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), the Supreme Court refused to qualify denial of claims of attorney-client privilege as collateral orders subject to interlocutory appeal. In addressing the third Cohen prong, the Court emphasized, whether a right is `adequately vindicable' or `effectively reviewable,' simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement. Id. at 605 (quoting Digital Equip. Corp., 511 U.S. at 878-79, 114 S.Ct. 1992 (1994)). The Court explained that [t]he crucial question ... is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders. Id. at 606. [9] In reaching the conclusion that the attorney-client privilege — one of the oldest recognized privileges for confidential communications, id. — did not meet that standard, the Court considered that post-judgment appeals would generally suffice to vindicate a valid claim of privilege wrongfully denied because in such cases an adverse judgment would be vacated and a new trial ordered without admission of the privileged material. Id. at 606-07. Similarly, at least part of the interest sought to be protected by the judicial proceedings privilege-immunity from liability — can be vindicated by a post-final order reversal of a judgment. As in the case of attorney-client privilege, where the privilege also preserves the confidentiality of attorney-client communications and not only shields them from use in litigation, there is an interest in freedom from suit (and not only liability) that the judicial proceedings privilege seeks to protect. That added protection afforded by the privilege, however, is not a goal in itself but a means of removing a potential disincentive to seeking judicial recourse. Finkelstein, Thompson & Loughran, 774 A.2d at 340. As did the Court in Mohawk and the Sixth Circuit in Kelly, we think that deferring appellate review of claims of the judicial proceedings privilege as a class will not meaningfully reduce the ex ante incentives for litigants (or counsel) to seek judicial recourse for their claims. Mohawk, 130 S.Ct. at 607. As the privilege is absolute, not qualified, and well established in our jurisdiction, we would anticipate few cases where the conduct of litigants and counsel will be influenced by the small risk that the law will be misapplied. Id. And in the few cases where there might be a new controlling question of law, there is an alternative means of immediate appellate review, as the trial court may certify the issue if the requirements of D.C.Code § 11-721(d) (2001) are satisfied. See Mohawk, 130 S.Ct. at 607 (referring to availability of equivalent certification procedure under federal Rule 54(b)). [10] In sum, we conclude that although the trial court's denial of McNair's claim of privilege satisfies the first two prongs of the collateral order rule set out in Cohen because it (1) conclusively determined a disputed question of law and (2) resolved an issue that is separate from the merits of the case, it failed to satisfy the final Cohen question, (3) whether it is effectively unreviewable on appeal for purposes of the collateral order rule. Denial of the judicial proceedings privilege does not implicate a substantial public interest of a high order on a par with those noted by the Supreme Court in Will, [11] nor does it satisfy the functional assessment in Mohawk, because deferring review until final judgment [will not] so imperil[] the interest as to justify the cost of allowing immediate appeal. . . . 130 S.Ct. at 606. [12] Therefore, bearing in mind that these conditions are stringent, Will, 546 U.S. at 346, 126 S.Ct. 952, the court's denial of summary judgment based on the asserted judicial proceedings privilege for the filing of a mechanic's lien is not appealable on an interlocutory basis under the collateral order doctrine. We recognize that our decision today overrules part of our opinion in Finkelstein, Thompson & Loughran, where we held that denial of a claim of judicial proceedings privilege by an attorney was an immediately appealable collateral order. 774 A.2d at 340. But Will and Mohawk have significantly refined the analytical framework we applied in Finkelstein to the exception for collateral orders from the jurisdictional requirement of a final order before appeal may be taken. See D.C.Code § 11-721(a)(1) (2001). Having adopted the Supreme Court's collateral order exception to the equivalent jurisdictional requirement of federal appellate courts, see Stein, 532 A.2d at 643; see also 28 U.S.C. § 1291 (2006), we follow the Court's evolving standards with respect to its proper application. As we have observed: This court will not lightly deem one of its decisions to have been implicitly overruled and thus stripped of its precedential authority. We do not believe, however, that M.A.P. v. Ryan [285 A.2d 310 (D.C.1971)], obliges us to follow, inflexibly, a ruling whose philosophical basis has been substantially undermined by subsequent Supreme Court decisions, Frendak [ v. United States, 408 A.2d 364, 379 n. 27 (D.C.1979)]; see also Abney v. Untied States, 616 A.2d 856, 861 (D.C.1992), or by our own supervening rulings en banc. Lee v. United States, 668 A.2d 822, 828 (D.C.1995). Here, the legal basis for [ Finkelstein ] has, in our view, been `substantially undermined' by [ Will and Mohawk ]. Id. Because we conclude that we lack jurisdiction to entertain, on an interlocutory basis, the claim that the trial judge erroneously denied the asserted judicial proceedings privilege, the case is remanded for further proceedings. So ordered.",jurisdiction
+31,2083536,2,2,"In a related argument, defendant argues that the evidence presented by the State was not sufficient to support a verdict of first degree murder. Defendant argues that the evidence in this case could support only a verdict of involuntary manslaughter, not first degree murder. If the evidence presented at trial was insufficient to support first degree murder, the conviction should be reversed outright and the State would be barred from again prosecuting defendant for first degree murder. Where the State has failed to provide sufficient evidence, it will not be given a second opportunity to gather additional evidence, based on principles of double jeopardy. See Burks v. United States, 437 U.S. 1,10-11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1, 9-10 (1978); People v. Taylor, 76 Ill.2d 289, 309, 29 Ill.Dec. 103, 391 N.E.2d 366 (1979). Accordingly, defendant argues that we should not remand this cause for a new trial but should reduce the first degree murder conviction to involuntary manslaughter. When a defendant challenges the sufficiency of the evidence presented at trial, this court will not retry the defendant. Brackett, 117 Ill.2d at 176, 109 Ill.Dec. 809, 510 N.E.2d 877. `[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Emphasis in original.) People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); see also People v. Campbell, 146 Ill.2d 363, 374, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992). Whether a defendant is guilty of first degree murder or involuntary manslaughter is ordinarily a question for the trier of fact. People v. Bartall, 98 Ill.2d 294, 307, 74 Ill.Dec. 557, 456 N.E.2d 59 (1983). As stated, inferences as to defendant's mental state are a matter particularly within the province of the jury. There was evidence supporting first degree murder. An eyewitness testified that she saw defendant kick the victim three times while he was lying motionless on the ground, once in the head. Dr. Jones testified that the victim had two bruises on his back and one on his head. After considering the credibility of these and other witnesses, a jury could reasonably infer that defendant acted with the knowledge that his acts created a strong probability of death or great bodily harm. An individual who kills another by punching and kicking can be convicted of first degree murder if he acts with the requisite mental state. After viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of first degree murder beyond a reasonable doubt. The ultimate determination of defendant's guilt as to any offense must be made by the trier of fact at a new trial.",sufficiency of the evidence
+32,2598624,1,3,"The judgment of the district court is reversed. Costs on appeal, but not attorney fees, are awarded to the respondents. Chief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.",conclusion
+33,886328,1,1,"¶ 2 The Galassis are descendants of Carlo and Winifred Galassi, who, along with Ron Thornberry, in 1964 purchased a 40-acre parcel of real property in north Lincoln County near Fortine. Thomas Galassi acquired an interest in the property from his father, Carlo, and subsequently moved his family there in 1995. The 40-acre parcel was never developed prior to Thomas' occupation. The Galassis' property is completely surrounded by the Whispering Pines Subdivision (Subdivision) which was developed in the early 1970's. ¶ 3 The Subdivision consists of approximately 127 five-acre parcels and includes numerous roads throughout providing access to the individual lots. Whitetail Meadow Road, the road at issue in this case, traverses the Galassi property from north to south and provides the only year round access to several lots within the Subdivision as well as United States National Forest land. ¶ 4 In 1996, the Lincoln County Commissioners notified the Galassis that Whitetail Meadow Road was a county road known as RP 81. On January 28, 1999, the Galassis petitioned Lincoln County to abandon Whitetail Meadow Road as a county road. When the County refused to abandon the road, the Galassis initiated this quiet title action, including a claim for injunctive relief seeking to bar public access to that part of the road that crosses their property. ¶ 5 On September 25, 2001, the Nineteenth Judicial District Court, Lincoln County, denied the claim for injunctive relief and on July 25, 2002, the District Court held a non-jury trial to determine whether Whitetail Meadow Road was private property or a county road. On July 29, 2002, the District Court issued it Findings of Fact, Conclusions of Law and Judgment determining that Whitetail Meadow Road was a public county road. ¶ 6 The District Court relied on extensive evidence in reaching its conclusion that Whitetail Meadow Road and RP 81 were one and the same; namely, the petition and associated documents filed with the Lincoln County Clerk and Recorder in 1914 and 1915; the testimony of numerous persons familiar with the history of the area and road in question; and the fact that the road, as a whole, comported with the legal description as described in RP 81.",facts
+34,1832275,1,3,"The right to contest an election is only conferred by statute, and contestants must strictly comply with the provisions of the statute in order to confer jurisdiction. Bauman v. Maple Valley Cmty. Sch. Dist., 649 N.W.2d 9, 13 (Iowa 2002) (When a statute prescribes a procedure for review, that procedure must be strictly followed to confer jurisdiction.). Thus, contestants are limited to the scheme provided by the legislature. This procedure includes proceedings before the contest court, as well as appeals to district court. See de Koning v. Mellema, 534 N.W.2d 391, 394 (Iowa 1995) (The rule is quite generally recognized that to initiate special proceedings, such as election contest proceedings, the statutory provisions necessary to confer jurisdiction must be strictly complied with by the contestants.). There are numerous statutory procedures that must be followed to convene a contest court in a disputed election. See id. at 394-95 (describing the procedure outlined in Iowa Code chapters 57 and 62). These procedures are largely unique to the election process, and they are generally not supplemented by our rules of civil procedure applicable to courts. Bauman, 649 N.W.2d at 15-16 (declining to apply the Iowa rules of civil procedure to election contests). Yet, when it comes to the judicial review process following a decision by a contest court, Iowa Code section 62.20 is the only statutory provision that provides for an appeal of contest court decisions regarding public measure elections. See Iowa Code § 62.20. Moreover, section 62.20 is noticeably generic, and untenanted by directions beyond the procedures for a bond to stay execution of the contest court judgment. See id. The statute simply permits a party against whom judgment [was] rendered [to] appeal within twenty days to the district court. Id. The district court is then required to hear the appeal in equity and determine anew all questions arising in the case. Id. The school district takes the position that the appeal is a carefully regulated process that must be strictly followed to confer jurisdiction on the district court. It offers the detailed procedures under our court rules applicable to appeals to supplement the vagueness under the statute, beginning with the fundamental requirement of the filing of a notice of appeal with the court that rendered the judgment. See Iowa R.App. P. 6.6 (An appeal . . . is taken and perfected by filing a notice with the clerk of the court where the order, judgment, or decree was entered. . . .). While this approach offers some appeal, it does not find support from the language of the statute. In the same way as we strive to uphold those legislative requirements written into the statute through strict compliance, we must not defeat the legislative process by imposing requirements where none exist. See, e.g., Eysink v. Bd. of Supervisors, 229 Iowa 1240, 1244, 296 N.W. 376, 378 (1941) (This court has no power to write into the statute words which are not there.). For that reason, we have refused to supplement the statutory requirements governing election contests with the procedural requirements applicable to courts of law. See Bauman, 649 N.W.2d at 15-16 (refusing to apply the Iowa rules of civil procedure to election contests, except where the rules have been expressly endorsed). Moreover, the issue we confront is only whether the district court acquired jurisdiction to decide the controversy based on the procedure employed by Taylor. [3] It is clear that Taylor invoked the jurisdiction of the district court for the purpose of appealing the decision of the contest court. Taylor did not commence an independent action to dispute the results of the election. Instead, he properly commenced the action through a contest court, and his petition in district court indicated he was pursuing the matter as an appeal pursuant to section 62.20, and in doing so he asked the court to reverse the decision of the contest court. Under the circumstances, we find the filing of this petition was sufficient to meet the statutory requirements for making an appeal.",jurisdiction
+35,1163314,1,3,"The dispositive issue is whether Allen's failure to comply with the notice provision of the claims act deprived the district court of jurisdiction over this action. Wyoming adheres to the doctrine of sovereign immunity which immunizes a sovereign from suit without its express consent. Ruppenthal v. State, 849 P.2d 1316, 1320 (Wyo.1993). We have long held that WYO. CONST. art. 1, § 8 requires explicit legislative authorization before a suit can be maintained against the state. Vigil v. Ruettgers, 887 P.2d 521, 524 (Wyo.1994). The claims act upholds sovereign immunity except in certain enumerated instances. WYO.STAT. § 1-39-104 (1988). A prerequisite in pursuing a claim against the state or its officers is compliance with the notice requirement of the claims act. Ruppenthal, 849 P.2d at 1320. The claims act's provisions apply to contract or tort claims brought against a sheriff and a board of county commissioners. Weston County Hosp. v. Westates Const. Co., 841 P.2d 841, 848 (Wyo.1992); Vigil, 887 P.2d at 524; Veile v. Bd. of County Commissioners of Washakie Cty., 860 P.2d 1174, 1177 (Wyo.1993). Although Allen seeks tort and contract damages, he contends they arise from violations of WYO.STAT. § 18-3-611 and that that statute gives rise to an independent right of action. Asserting that WYO.STAT. § 1-39-119 of the claims act excludes employment-related disputes from the reach of the claims act, he concludes that he is not required to comply with the notice provisions set out in WYO.STAT. § 1-39-113. Section 119 states: The provisions of this act shall not affect any provision of law, regulation or agreement governing employer-employee relationships. WYO.STAT. § 1-39-119 (1988). In his view, this section permits actions against the state which do not activate the claims act and, therefore, do not trigger the claims act's notice provisions. In Bd. of Trustees of Univ. of Wyoming v. Bell, 662 P.2d 410 (Wyo.1983), this Court held that WYO.STAT. § 1-39-119 does not serve to except claims which have their genesis in tort even though they arise out of an employment relationship. Bell, 662 P.2d at 414. If the tort action is brought, and it does arise out of the employment relationship, we conclude that the claims procedure of this statute must be followed. Bell, 662 P.2d at 415. When Bell was decided, the language of the act referred only to tort, and Bell did not extend this rule to contract claims. Bell, 662 P.2d at 414. Since then, the legislature changed the claims act's language by adding the sentence, The claims procedures of W.S. 1-39-113 apply to contractual claims against governmental entities. 1988 Wyo.Sess.Laws Ch. 45 § 1. Accordingly, we augment Bell's rule to also include contract actions brought that arise out of the employment relationship and hold that a claim for damages based either in contract or tort against the state must proceed, if at all, in accordance with Wyoming's Governmental Claims Act. Allen's amended complaint requested a declaratory judgment that WYO.STAT. § 18-3-611 provided for a private cause of action sounding in either contract or tort and requested money damages for five claims sounding in either tort or contract. Under our rule just announced, the action required compliance with the notice provision of the claims act. Allen did not comply with the claims act's notice requirements. [T]he failure to file a claim under [the claims act] results in a district court having no jurisdiction over an action which is brought if the complaint fails to allege the filing of the claim pursuant to statute. Bell, 662 P.2d at 415. In Amrein v. Wyoming Livestock Bd., 851 P.2d 769 (Wyo.1993), this Court expanded upon the Bell rule and held that, in order to invoke the jurisdiction of the district court, the complaint must contain an allegation stating the date the claim was filed to demonstrate the filing of the claim within two years of the date of the alleged act, error or omission or, alternatively, the statutory ground for the late discovery of the alleged act, error or omission. Amrein, 851 P.2d at 771. The plaintiff's failure to state the jurisdiction of the court with specificity will result in dismissal without prejudice. Amrein, 851 P.2d at 771. Allen was discharged in 1991 and cannot possibly present a claim within the requisite two-year statute of limitations. We, therefore, affirm the order granting summary judgment on this basis as to all appellees on all claims. Boyd v. Nation, 909 P.2d 323, 326 (Wyo.1996). Affirmed.",jurisdiction
+36,1887659,1,5,"¶ 11. Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court's grant or denial of summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996) ( quoting Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss. 1992); Clark v. Moore Mem'l United Methodist Church, 538 So.2d 760, 762 (Miss.1989)). I. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN RULING THAT EMPLOYMENT RECORDS MAINTAINED BY THE DEPARTMENT REFLECTING THE ACCRUED COMPENSATION TIME OF ITS EMPLOYEES ARE SUBJECT TO DISCLOSURE UNDER THE MISSISSIPPI PUBLIC RECORDS ACT? II. WHETHER THE CHANCELLOR ERRED IN FAILING TO CONSIDER THAT THE DEPARTMENT COMPLIED WITH THE ASSOCIATION'S RECORDS REQUEST IN A REASONABLE MANNER WHICH SATISFIED ANY OBLIGATION IMPOSED BY THE PUBLIC RECORDS ACT TO DISCLOSE THE INFORMATION SOUGHT BY THE ASSOCIATION? ¶ 12. Since the Department's first two issues have overlapping analyses, the Court will consider these two assignments of error together. ¶ 13. The Department first asserts that the requested list of comp time for its public employees is exempt from disclosure under the provisions of Miss.Code Ann. § 25-1-100 which provides that [p]ersonnel records ... in the possession of a public body, ... shall be exempt from the provisions of the Mississippi Public Records Act of 1983. Miss.Code Ann. § 25-1-100(1) (1999). The Department contends that any documents and/or records which reflect the accumulated comp time of the Department's employees constitute personnel records within the meaning of § 25-1-100, and such information is, therefore, exempt from the provisions of the Public Records Act. ¶ 14. It is true that there are no Mississippi cases addressing whether comp time records maintained pursuant to the Fair Labor Standards Act (hereinafter FLSA) are subject to disclosure as public records. Furthermore, there are no Mississippi cases construing the scope of the personnel records exception in the present context. Thus, the Department urges this Court to rely on a handful of Attorney General's opinions to support its position that the exemptions to disclosure somehow control over the broad, general disclosure requirements of the Act. However, this is simply not in conformity with long-established legal principles dealing with interpreting such statutory language. ¶ 15. The Act declares the public policy of the State of Mississippi to be that: ... public records shall be available for inspection by any person unless otherwise provided by this chapter; furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records.... Miss.Code Ann. § 25-61-2 (1999). ¶ 16. The Act defines public records to include: ... all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body. Miss.Code Ann. § 25-61-3(b) (1999). ¶ 17. Finally, Miss.Code Ann. § 25-61-5(1) specifically provides for public access to records: Except as otherwise provided by sections 25-61-9 and 25-61-11, all public records are hereby declared to be public property, and any person shall have the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body in accordance with reasonable written procedures adopted by the public body concerning cost, time, place and method of access, and public notice of the procedures shall be given by the public body, or, in the event that a public body has not adopted such written procedures, the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided within one (1) working day after a written request for a public record is made. Miss.Code Ann. § 25-61-5(1) (1999). ¶ 18. The intent of the Legislature is manifestly clear from these provisions: public records which do not fall into a carefully defined exception provided by law are entirely open to access by the general public. With regard to the creation of narrow exceptions to this broad public policy, the Legislature provided that: The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter. Miss.Code Ann. § 25-61-11 (1999). ¶ 19. One specific exemption which was furnished in the Act when it was passed in 1983 is found under Miss.Code Ann. § 25-1-100 (1999), which provides that certain personnel records are exempt: (1) Personnel records and applications for employment in the possession of a public body, as defined by paragraph (a) of § 25-61-3, except those which may be released to the person who made the application or with the prior written consent of the person who made the application, shall be exempt from the provisions of the Mississippi Public Records Act of 1983. (2) Test questions and answers in the possession of a public body, as defined by paragraph (a) of § 25-61-3, which are to be used in employment examinations, shall be exempt from the provisions of the Mississippi Public Records Act of 1983. (3) Letters of recommendation in the possession of a public body, as defined by paragraph (a) of § 25-61-3, respecting any application for employment, shall be exempt from the provisions of the Mississippi Public Records Act of 1983. (4) Documents relating to contract authorization under § 25-9-120 shall not be exempt from the provisions of Mississippi Public Records Act of 1983. ¶ 20. In denying the Association's public record request, the Department relied upon this statute as the reason that the comp time information, and all information with regard to a public employee's compensation, salary, leave time, etc., were exempt from the disclosure. However, it is difficult to find any support for this position when one compares the broad, general provisions of the Act with the narrow exceptions of § 25-1-100. Section 25-61-11 dictates that any exemption to the Act must be specifically enumerated; yet, § 25-1-100 does not explicitly exempt from disclosure an employee's salary or accrued comp time record. This appraisal of the Act and § 25-1-100 is supported by the general rules governing statutory construction: While there are some cases in which exceptions are liberally construed, particularly with respect to statutes subject to a strict construction, ordinarily a strict or narrow construction is applied to statutory exceptions to the operation of laws. Thus, in the resolution of ambiguities, courts favor a general provision over an exception, and one seeking to be excluded from the operation of the statute must establish that the exception embraces him. These rules are particularly applicable where the statute promotes the public welfare, or where, in general, the law itself is entitled to a liberal construction.... . . . . Statutes granting exemptions from their general operation must be strictly construed, and any doubt must be resolved against the one asserting the exemption. 73 Am.Jur.2d Statutes § 313, at 463-64 (1974) (footnotes omitted). ¶ 21. It is also important to note that this Court has held that courts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature. Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994). Thus, if a statute is not ambiguous, the court should simply apply the statute according to its plain meaning.... City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). The ultimate goal of the court is to discern and give effect to the legislative intent. Id. This Court has also stated that an exception must appear in the language the legislature employed. Mississippi Ins. Guar. Ass'n v. Vaughn, 529 So.2d 540, 542 (Miss.1988). An exception cannot be created by construction. In State v. Heard, 246 Miss. 774, 151 So.2d 417 (1963), the Court said: An exception cannot be created by construction, when none is necessary to effectuate the legislative intention. Ordinarily, an exception must appear plainly from the express words or necessary intendment of the statute. Where no exception in positive words is made, the presumption is the legislature intended to make none. 246 Miss. at 781, 151 So.2d at 420. Accord, Roberts v. Mississippi Republican State Executive Comm., 465 So.2d 1050, 1053 (Miss.1985) (Public Records Act case). Therefore, based upon the foregoing, it is obvious to this Court that the Department's reliance upon § 25-1-100 to withhold disclosure of the requested information is improper because no such specifically worded exemption exists. ¶ 22. The Department attempts to support its first issue with opinions of the Mississippi Attorney General dealing with the Act and its exceptions. In this regard, the Department analogized its position with those situations set forth in the opinions. While acknowledging that a public employee's gross salary information is subject to disclosure, the Department cites one Attorney General opinion to support its claim that the public is not entitled to access employment records and/or documents which reflect personal employment information such as the net salary information or exemptions of a public employee. Miss. A.G. Op. # 93-0900 to J.K. Stringer, Jr. (March 23, 1994). It further contends that the public is not entitled to access the home addresses and/or telephone numbers of public employees and documents and/or records reflecting a public employee's pension and/or medical benefits. Id. (citing Miss. A.G. Op. 84-1015 to N.F. Smith (July 2, 1984) and Miss. A.G. Op. 92-0688 to Dr. Milton Walker (September 2, 1992)). The Department concluded its argument by stating that accumulated comp time is personal information which, like tax and/or benefit information, should not be unnecessarily divulged to the public without careful scrutiny. ¶ 23. However, these opinions are in fact of no support to the Department. What the Department fails to point out is that there are specific, narrowly drawn exceptions to the general provisions of the Act pertaining to the information held to be exempt by the Attorney General. For example, Miss.Code Ann. § 27-3-77 (1999), specifically provides that information in the possession of a public body concerning a person's individual tax payment or status, shall be exempt from disclosure under the Act: Records in the possession of a public body, as defined by paragraph (a) of section 25-61-3 which would disclose information about a person's individual tax payment or status, shall be exempt from the provisions of the Mississippi Public Records Act of 1983. This statute was the basis of the Attorney General's opinion in Stringer. Turning to the Department's next analogy, Miss.Code Ann. § 25-11-119(3) (1999), sets forth that the Board of Trustees of the Public Employees' Retirement System of Mississippi (and only this agency) shall not disclose the name, address or contents of any individual member records without the prior written consent of the individual to whom the record pertains. For this reason the Attorney General held in the Walker opinion that: The 1985 amendment to the statute made it clear the 1) all books, accounts, and records would be kept in the general office of the board and were public records, except for individual member records, and 2) that the system shall not disclose the name, address or contents of any individual member records without the prior written consent of the individual to whom the record pertains. It would appear the clear intent of the above statutory changes to the Retirement Law to make the name, address and contents of member records privileged or confidential information which was not subject to the Mississippi Public Records Act. Miss. A.G. Op. 92-0688 to Milton Walker (September 2, 1992) at 2 (denying request for a printed list of the names and addresses of all retired teachers and school employees). ¶ 24. Furthermore, the Department is completely wrong concerning any alleged exemption pertaining to the disclosure of current employees' names and addresses. Miss. A.G. Op. To Singletary (June 10, 1987) at 1. ¶ 25. Indeed, in these opinions, the Attorney General made certain that the exemptions to the Act remained within the narrow parameters of the given statutory exception. For example, the Attorney General made it clear in the Walker opinion that all other records held by the Retirement System Board were public records falling under the disclosure provisions of the Act. In the other opinions cited by the Department, the Attorney General has drawn clear boundaries around the exempt material and squarely asserted that other public information for which no specific exemption exists, such as an individual public employee's name and gross salary, is subject to disclosure. This follows the general rules of statutory construction. Vaughn, 529 So.2d at 542. ¶ 26. In this regard, it is interesting to note the Department's argument with regard to the A.G. Op. # 92-0379 to Richard A. Oakes (May 20, 1992). It contends that the situation dealt with in Oakes, a request for leave time records of public school teachers, is distinguishable from its current situation because the public's right to know how many times a public employee misses work arguably outweighs that employee's privacy interests in keeping such information confidential. The Department further argues that comp time is different because it is earned, and as such depends on the personal work habits of the individual public employee. However, this argument is flawed. Both situations, leave time and comp time, deal with the work habits of an employee and are earned by the employee. The Department's argument also ignores the fact that sick leave time is also accumulated by a public employee based upon the number of days worked, just as comp time is. In fact, it was the Department which made this connection between the two types of leave time in Polles' letter denying the request of the Association: However, it is our understanding that Pursuant [sic] to Section 25-1-100 of the Mississippi Code of 1972, as amended, personnel records, including accumulated annual sick leave information as well as accumulated comp time, are exempt from the provisions of the Mississippi Public Records Act. (emphasis added). In this letter, Polles regarded leave time and comp time in the same category of records that should be exempt. He and the Department now assert that leave information should be disclosed. Thus, it would follow that an employee's comp time is also a public record which should be disclosed. Therefore, the Department's first assignment of error is without merit. ¶ 27. The Department next asserts that, even if the accumulated comp time records are public records subject to disclosure, it complied with the Association's request in a manner which balances the interests at stake in this dispute, the public's right to access public information versus the right of the Department's employees to have personal employment information kept private. It should be noted that the Department makes this argument without citing any supporting authority that these employees have a privacy interest in this information. Although it is true that Mississippi has no case law on this issue, many other jurisdictions throughout the country have reached a completely contrary rule of law that public employees do not enjoy such a privacy right or, if they do, this right is outweighed by the public's right to know the details of their government, how it functions, and how the public's tax dollars are being spent. ¶ 28. In a case whose facts mirror those addressed in the Oakes Attorney General opinion, the Massachusetts Supreme Judicial Court, in Brogan v. School Committee of Westport, 401 Mass. 306, 516 N.E.2d 159 (1987), considered the question of the right of access to public school committee's employees' attendance and absentee records. The school committee provided summaries of the absentee records and the records themselves but with all employee names deleted. Following receipt of this, the plaintiffs pressed their demands for unexpurgated records, contending that such were public records subject to disclosure under the Massachusetts Public Records Law, Mass. Gen. Laws ch. 66 § 10 (Michie/Law Co-op.1986). The committee refused to make any further disclosures, contending that their requested records fell under the exemption for personnel and medical files or information. Brogan, 516 N.E.2d at 160. In construing the committee's argument, the Massachusetts Supreme Judicial Court agreed that personnel and medical files or information `are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.' Id. ( quoting Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 446 N.E.2d 1051 (1983)). However, the Court found that the plaintiffs: ... seek information only as to the names of the school committee's employees, and the dates and generic classification, e.g., sick day, personal day, etc., of their absences. These are not `intimate details' of a `highly personal' nature, the kind of private facts that the Legislature intended to exempt from mandatory disclosure. The [plaintiffs] have not requested any information of a personal nature, such as the medical reason for a given absence or the details of family emergencies, nor does the record indicate that any of the absentee records involved such information. 516 N.E.2d at 160 (citations omitted)(emphasis added). ¶ 29. A case arising out of New York also deals specifically with the issue of the requesting parties' entitlement to accrued leave time or absentee records. In Buffalo News v. Buffalo Mun. Hous. Auth., 163 A.D.2d 830, 558 N.Y.S.2d 364 (1990), a newspaper made a request pursuant to New York's Freedom of Information Law, N.Y. Pub. Off. Law § 84 et seq., for public employee payroll and disciplinary records. This request was denied by the governmental agency on the grounds that the information fell under the exemption protecting material which, if disclosed, would constitute an unwarranted invasion of personal privacy under the Public Officers Law, § 89(2)(b)(iv). The New York Supreme Court, Appellate Division, disagreed, asserting that statutory exemptions are to be narrowly interpreted and that the burden lies upon the agency to show that the requested material falls squarely within the statutory exemption. Id. at 365. The court then made the following pronouncements: First, records regarding the days worked, leave taken with or without pay, and leave accrued by employees are by their very nature relevant to the day-to-day operations of the agency. Second, respondent has failed to establish how the release of these records would result in economic or personal hardship to the subject party. The possibility that these records can be used to discover other financial information is patently insufficient.... Id. See also Capital Newspapers Div. v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665, 667 (1986) (stating that exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within an exemption). ¶ 30. In State ex rel. Petty v. Wurst, 49 Ohio App.3d 59, 550 N.E.2d 214 (1989), a private citizen had made a request under the Ohio Public Records Act, Ohio Rev. Code Ann. § 149.43, for payroll records of county employees, including name, classification or job title, salary rate and total compensation of each and every employee paid from general funds as of those dates. Wurst, 550 N.E.2d at 215. The county provided certain information, but refused to surrender any information related to total compensation for individual employees, contending that such was exempt under Ohio law since it would constitute an invasion of the employees' privacy. An action was then brought by the private citizen for this claimed exempt information. In construing the citizen's request in the context of the Ohio Public Records Act, the Ohio Court of Appeals first declared that: public policy requires a liberal construction of the provisions defining public records and a strict construction of the exceptions. Any doubt must be resolved in favor of disclosure. Wurst at 216. (citations omitted). ¶ 31. Turning to the county's ground for objecting to the disclosure, the court defined an invasion of privacy as occurring `when disclosure would subject a person to embarrassment, harassment, physical danger, disgrace, or loss of employment or friends.' Id. ( quoting Kilroy v. National Labor Relations Bd., 633 F.Supp. 136, 143 (S.D.Ohio 1985), aff'd, 823 F.2d 553 (6th Cir.1987)). With this established, the court held that [s]uch consequences are unlikely to result, at least to any measurable extent, from the disclosure of a county employee's name, classification or job title, salary rate and gross salary and, therefore, this concern could not outweigh the public's right to know. 550 N.E.2d at 216. Noting that the information had been found to be subject to disclosure in other contexts, the court concluded that the information sought by the private citizen is a matter of public record and must be disclosed as a matter of law. Id. at 217. ¶ 32. What emerges from these cases are the following principles: (1) there is to be a liberal construction of the general disclosure provisions of a public records act, whereas a standard of strict construction is to be applied to the exceptions to disclosure; (2) any doubt concerning disclosure should be resolved in favor of disclosure; (3) compensation information on public employees, such as gross salary and accrued leave time, is subject to disclosure; and (4) such disclosure does not violate a public employee's right to privacy. These guidelines leave little doubt that the information sought by the Association is public and does not fall under any specific, narrowly construed exemption to the Act. Furthermore, this Court must keep in mind the broad public policy goals at work in this case, as set forth in the Act itself and found in the case law construing such statutes. There is no argument that accrued comp time can be paid out of the public treasury, and that this forms a part of the public employee's compensation benefits. Therefore, the chancery court did not err in finding that the Association was entitled to the information requested by it. As stated previously, the Department's first assignment of error is without merit. ¶ 33. Furthermore, based upon this persuasive authority and the plain meaning of the Act itself, there was no justification for the Department's assertion that it somehow met a balancing of interests. As such, this Court finds that the Department's second assignment of error is also without merit. ¶ 34. It is also important to note that the Association's request was narrowly drawn. It did not seek the underlying personnel records concerning the reasons that comp time was accumulated by a particular employee, nor the reasons a particular employee used or did not use his or her comp time. Rather, the Association sought only a list of the Department employees with each individual's comp time as of July 1, 1996. Thus, even assuming that some privacy interest was at stake, there was no possible intrusion into that area by the Association's request. For this reason as well, the Department's second assignment of error is without merit.",standard of review
+37,2117722,1,1,"Individual petitioners are the parents and natural guardians of children attending the elementary schools in Racine county operated by the corporate petitioners. Corporate petitioners are churches, each being a separate corporation (except that Concordia Lutheran school is an association affiliated with three Missouri Synod Lutheran churches, to wit: Holy Cross Lutheran church, Grace Lutheran church, and Faith Lutheran church). Each corporate petitioner operates as part of its corporate structure an elementary school located within the boundaries of the Unified School District No. 1 of Racine county. Each corporate petitioner is affiliated with either the Roman Catholic church or the Missouri Synod Lutheran church. Respondent William C. Kahl is the state superintendent of public instruction of the state of Wisconsin, the state official responsible for the administration of the school laws of the state of Wisconsin. Respondent Unified School District No. 1 of Racine county is a municipal body corporate created by law to govern the public school district, vested with the powers and responsibilities statutorily delegated to operate the public school system within the boundaries of such district. The transportation of school children to and from school is governed by ch. 121, Stats., subchapter II. Portions of said subchapter relevant to this action are secs. 121.51 (4) and 121.54 (2) (b) 1 as enacted and amended by the Laws of 1969, providing: 121.51 (4) `Attendance area' is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap. 121.54 (2) (b) 1. Except as provided in sub. (1), the school board of each district operating high school grades shall provide transportation to and from the school he attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from his residence if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route. The respondent school district set proposed criteria for attendance areas that it would approve. These were: (1) No attendance area of a religious denominational school could overlap the attendance area of another school affiliated with the same denomination; (2) no attendance area could contain islands; (3) each attendance area must be compact, consisting of contiguous territory with boundaries; and (4) each private school to which pupils are to be bused must be located within the physical boundaries of its attendance area. (With the exception of two Wisconsin Synod Lutheran schools, St. John's in Caledonia and Trinity Lutheran in Caledonia, none of the private schools have requested the state superintendent to act pursuant to sec. 121.51 (4), Stats.) The respondent school district has approximately 32,000 pupils. It operates nineteen grade schools, four junior high schools, and three senior high schools. As of March 17, 1971, the school district was transporting 5,759 junior and senior high school students, 4,769 elementary school pupils, and 2,583 private school students. Its total budget for the fiscal year 1971 is approximately $26,000,000, exclusive of federal government grants. Of this amount, $1,000,000 is budgeted for the transportation of students. The number of children bused by the school district to private schools affiliated with the same religious denomination is 1,379. The number of children not being bused to such schools because they do not reside within the attendance area of the private school they attend is 576. Each of the individual petitioners is the parent or natural guardian of a child who is attending but not being transported to one of the petitioning private schools who would be transported except that such child lives outside the attendance area established for the school he attends. ROBERT W. HANSEN, J. This action for declaratory judgment is an attack upon the constitutionality of the 1969 amendment to the school transportation statute providing for the transportation at public expense of students to and from private schools—on an attendance area basis. The attendance area concept is no newcomer to the educational scene in Wisconsin. [] Long before transportation to schools, public or private, was provided at public expense, the approach of area-based public school districts was the rule. One of the statutory responsibilities of local public school boards involved the often troublesome and frequently controversial assignment of establishing school attendance district lines and boundaries. Exceptions were made by reason of overcrowding of particular schools or individual or special situations, but proximity was the measuring stick used. While parents and school administrators often disagreed as to what the attendance area boundaries ought to be, there was acceptance of the general neighborhood school approach that sought to assign pupils to the nearest available public school. Before busing at public expense came along, cold winters alone made eminently reasonable minimizing the time and distance involved in walking to and from school, elementary or high school. The coming of the automobile, the merger of school districts, expanded parental expectations, greater concern for health and safety of school children, and other factors combined to bring about an expansion of home-to-school and back again busing at public expense of public school pupils. Additionally, there came the development of specialized schools, such as those in Milwaukee for educational development of physically handicapped and retarded children, with special arrangements made for transporting such children, with special problems to specialized schools. But the concept of an attendance area-based public school system continued, with exceptions made for reasons established and accepted as reasonable. When the United States Supreme Court upheld as constitutional a New Jersey statute allowing reimbursement to parents for expenses incurred in busing their children to private and parochial schools, [1] the way was cleared for providing similar transportation at public expense to children attending private schools. A state level constitutional roadblock in this state to providing public financed transportation to nonpublic school children [2] was removed when the people of Wisconsin amended their constitution to provide: Art. I, sec. 23 Transportation of school children. Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning. It then being clear that neither the state nor federal constitution prohibited the state from providing for the safety and welfare of children by providing for the transportation of children to and from public and private schools, the legislature amended the existing statutes for public school transportation to provide transportation of children to parochial and private schools. [3] Transportation was to be furnished on a reasonably uniform basis to children attending either public or private schools. [4] In 1969 the legislature amended the school transportation statutes to add two sections that are challenged by this action. [5] Basically, the 1969 amendment provided that district school boards shall provide transportation to and from the school he attends for elementary and high school students in private schools located 2 miles or more from his residence if such private school is a school within whose attendance area the pupil resides (emphasis supplied) and if the private school is within the school district or not more than five miles beyond the district boundaries. [6] Generally defining the term attendance area, the 1969 amendment provided: `Attendance area' is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. [7] Anticipating the type of problems encountered in determining attendance area boundaries in public school systems, the legislature provided: If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. [8] Then was added this sentence: The attendance areas of private schools affiliated with the same religious denomination shall not overlap. [9] Petitioners read this reference to schools affiliated with the same religious denomination as providing that, only as to religiously affiliated schools, is there any provision against overlapping. The suggested construction of the statute is that it authorizes overlapping of attendance areas established for private, nonreligiously affiliated schools, and bans overlapping only as to attendance areas established for private, religiously affiliated schools. If such construction is given to the section challenged (sec. 121.51 (4), Stats.), there is an apparent constitutional infirmity. Under the test: What are the purposes and the primary effect of the enactment? [10] the conclusion could not be avoided that the result would be a restriction placed upon children attending religious schools and not be placed upon those attending private, secular schools. Religious affiliation would be the sole basis of the classification. [11] Where the purpose of the transportation statute is that of providing for the safety and welfare of school children, such classification solely on the basis of religious sponsorship would not be germane or reasonably related to the purpose of the statute. Religious considerations are no more than incidental to the public purpose served by providing school children transportation. [12] They are, if anything, less germane to a restriction placed upon it. However, where the statute provides that ... there shall be reasonable uniformity in the transportation furnished ... pupils whether they attend public or private schools (sec. 121.54 (1), Stats.), and where the attendance area is defined as the geographic area designated by the governing body of a private school as the area from which its pupils attend (emphasis supplied) (sec. 121.51 (4)), it is clear that the intent, effect and result is to establish an area or proximity basis as the general rule for determining which schools pupils are to be assigned to, public, private or parochial. In such establishment of an attendance area approach, there is no authorization of overlapping boundary lines, and no reason to read such into the statute. We read the statute as not authorizing or permitting overlapping in attendance area boundary lines as to all private schools affiliated or operated by a single sponsoring group, whether such school operating agency or corporation is secular or religious. If there were any doubt as to this being the correct construction of the statute, we would recall and use the statutory construction rule that, given two alternative constructions of a statute, preference is to be given to the one that saves the statute from being struck down as unconstitutional. [13] We do not think that rule is needed to find no authority in the statute for establishing overlapping attendance areas as to any affiliated schools, secular or religious. Given this interpretation, unless the sentence: The attendance areas of private schools affiliated with the same religious denomination shall not overlap, is to be deemed mere surplusage, what does it add? It adds no special restrictive ban on overlapping. Such restriction is inherent in the whole concept of attendance areas. What the sentence adds is to make affiliated with the same religious denomination the test of affiliation in a single school system rather than operation by a single agency or set of trustees or religious order within a particular religious denomination. It means that, if the Franciscan Order of the Roman Catholic church operates a school in the northern part of the Racine district, and the Jesuit Order operates a school in the southern part of the district, they are to be considered, along with diocesan schools, as part of the Catholic school system of Racine because all are affiliated with the same religious denomination. It means that, and nothing more. We do not conclude that the public policy represented by such definition of affiliation in a single system is the best public policy. We do not even need to find it to be good public policy. We need only to find that the definition provided in the statute is in the field of public policy, not reaching constitutional dimensions or invading constitutional assurances. Public policy is for the legislature to establish, with courts not expected nor permitted to substitute their reaction to the alternatives available for the conclusion reached by the legislative branch of government. While what came as a challenge to the constitutionality of a statute comes then to be a question of statutory construction, it is to be made clear that we do not rule, directly or indirectly, on the criteria as suggested by the Racine unified district school board to the affected and involved private school systems in the district. If that were the issue presented, we would dismiss the petition on the grounds that the petitioners had not exhausted their administrative remedies under the statute, [14] and were premature in seeking judicial review before attendance areas had been established in the manner the statute provides. The statute anticipates disagreement between the public school district boards and the private school administrations and provides that the state superintendent of public instruction shall make a final determination of the attendance area boundaries. This does not cut off the right of recourse and review by the courts, but it makes seeking such determination by the state superintendent a prerequisite to securing judicial review as to compliance with the statute and constitution of the attendance areas thus determined. Insofar as the suggested criteria provide against overlapping of attendance areas in any system of affiliated private schools, such general statement can be viewed as no more than the result intended and provided for by the statute. As to the other suggested criteria relating to islands, requiring areas to consist only of contiguous territory, and providing that each school must be located within the physical boundaries of its attendance area, we do not pass judgment upon them in this declaratory judgment challenge to the statute. We do note the statutory guideline that there shall be reasonable uniformity in the transportation furnished ... pupils whether they attend public or private schools. (Sec. 121.54 (1), Stats.) With this legislatively established lighthouse to mark the shores, the school district, the private school administrations, and the state superintendent should be able to steer without running aground on statutory or constitutional reefs. [15] By the Court. —Secs. 121.51 (4) and 121.54 (2) (b) 1, Stats., of the school transportation chapter are constitutional. HALLOWS, C. J. ( dissenting ). In order to save the constitutionality of secs. 121.51 (4) and 121.54 (2) (b) 1, Stats., which were created by ch. 154, Laws of 1969, to save public funds, the majority has given a construction to these statutes beyond the breaking point and has construed them to mean exactly the opposite of what the legislature plainly said and intended. The last sentence in sec. 121.51 (4) clearly states, The attendance areas of private schools affiliated with the same religious denomination shall not overlap. The majority admits if this means what it says, the section is in constitutional difficulty because the classification for bus service, which object is the safety and welfare of children, rests upon the nongermane and unreasonably related basis of religious consideration. The majority finds a legislative intent to establish an area or a proximity basis for determining which school pupils are to be assigned whether public, private, or parochial schools. This idea went out of style with segregation. Moreover, sec. 121.54 (2) (b) 1, Stats., does not require public and private nonreligious affiliated schools to have attendance areas which do not overlap. Two private unrelated nonsectarian schools have the whole district as their attendance area, while the individual Lutheran and Catholic schools are restricted to smaller attendance areas. The record shows there are overlapping in both the public and nonaffiliated private schools. In one instance, four public elementary schools are in one attendance area. While 576 students attending private-affiliated schools are not now bused, they were bused prior to the enactment of sec. 121.54 (2) (b) 1. These children represent about 30 percent of the students attending the Missouri Synod Lutheran, Wisconsin Synod Lutheran, and Roman Catholic elementary schools of their choice. The majority attempts to save these sections by reading the statute to mean not private schools affiliated with the same religious denomination but all private schools affiliated or operated by a single sponsoring group whether such school operating agency or corporation is secular or religious. Thus the plain language the same religious denomination now becomes a single operating group and religious is read out of the classification. But the constitutionality is not saved, because under this interpretation there remains a distinction between private operating groups and the public schools and the classification is not germane to—safety and welfare of children. If it is intended by the expanded language of the majority to include public schools, then public authorities will be required to make separate attendance areas for Franksville, Hood Creek, Bartlett, and Trautwein schools which now share the same attendance area, stop overlapping by administrative decree in special cases, and prohibit busing of children to other areas to eliminate segregation. From the records and exhibits showing these sections at work in practice, it is clear that they discriminate against sectarian private schools when compared to secular private schools and to public schools and this solely on the basis of religious affiliations. These statutes restricting the benefits of school busing are contrary to State ex rel. Knudsen v. Board of Education (1969), 43 Wis. 2d 58, 168 N. W. 2d 295, wherein we stated, page 70, It is apparently the rationale of the school board that its obligation is satisfied if it provides transportation of a Catholic child to a Catholic school. We do not conceive that its duty is so limited. The right is vested in the constitution for the child to go to whatever school he desires, provided that choice is the nearest available private school which the pupil may reasonably choose to attend. It is not for the school board to determine that the education which a child and his parents may wish is as well served by one school as another even though those schools practice a common religious doctrine. The attendance zones in this case are unreasonable and arbitrary and based on a religious classification. If there are to be attendance zones, let them apply to public, private, and religiously affiliated schools alike, but the legislature must say so, which secs. 121.54 (2) (b) 1 and 121.51 (4), Stats., do not. We cannot take clear and unambiguous language and under the guise of construction or interpretation change what the legislature has said. I respectfully dissent. I think these sections are unconstitutional.",facts
+38,1250813,1,2,"Appellant grew up on the 71 Ranch located near Elko, Nevada, where her father worked as a ranch manager. All the cattle on the 71 Ranch belonged to the ranch owner except for two Holstein heifers which a former ranch employee's sister owned. In March of 1993, Appellant received a Nevada brand certificate which allowed her to use the Slant 8 Arrow brand. Appellant's father branded the two Holstein heifers with Appellant's brand. In the spring of 1993, Appellant's parents purchased the Owl Creek Angus Ranch located in Hot Springs County, Wyoming. On June 26, 1993, the two Holstein heifers, along with some other cattle, were shipped from the 71 Ranch in Nevada to the Wyoming ranch. Appellant signed the brand inspection certificate [1] in Nevada, representing that she owned the cattle. Once the cattle arrived at the Wyoming ranch, they were branded with Appellant's father's J Lazy S brand. On February 7, 1994, Appellant shipped another fifteen head of cattle which bore the Slant 8 Arrow brand from Nevada to herself at the Wyoming ranch. She was present in Nevada when the cattle were inspected, and she again signed the required brand inspection certificate, certifying that she was the owner of the cattle. Upon realizing that the Holstein heifers were missing, the brother of the heifers' owner reported that fact to the district brand inspector. The heifers were eventually returned. Since they had been branded with the Slant 8 Arrow and J Lazy S brands, the Nevada livestock investigators became suspicious of the configuration of the various brands and asked a Wyoming livestock investigator to check the cattle which had been shipped from Nevada to the Wyoming ranch. The inspection of the Wyoming ranch supported the Nevada livestock investigators' concerns, and a search warrant was obtained. The search revealed that the 71 Ranch's 7 Lazy S brand had been converted to the Slant 8 Arrow brand on the cattle kept at the Wyoming ranch. An information was filed, charging Appellant with two counts of unlawfully receiving and/or concealing stolen property as defined in § 6-3-403(a)(i) and with one count of conspiracy to unlawfully receive and/or conceal stolen property as defined by § 6-3-403(a)(i) and WYO.STAT. § 6-1-303(a) (1983). A jury trial was held during which Appellant moved at the close of the State's case for a judgment of acquittal. The trial court granted the motion with respect to the conspiracy charge, but it denied the motion as to the other charges. Appellant did not present any evidence, and the case went to the jury. The jury convicted Appellant of the two counts of receiving and/or concealing stolen property pursuant to § 6-3-403(a). Appellant renewed her motion for a judgment of acquittal, and the trial court once again denied her motion. Appellant appeals from the denial of her original and renewed motions for a judgment of acquittal.",facts
+39,2580997,1,5,"In conclusion, this Court affirms the district court on grounds different than those used by the district court. Fisher failed to make a preliminary showing that he was entitled to a Franks hearing; therefore, the district court's error in conducting the July 26, 2001, ex parte, in-camera hearing was harmless because Fisher had no right to the hearing. Also, the state was not required to cross appeal the July 2, 2001, order because the state was not seeking affirmative relief. Chief Justice TROUT and Justices SCHROEDER, EISMANN, and BURDICK concur.",conclusion
+40,1855579,1,1,"¶ 1. The issue before the Court is whether the decision of the Mississippi Public Employees Retirement System (PERS) to terminate the disability benefits of Mrs. Jerry Fulce was supported by substantial evidence, notwithstanding that she had previously been receiving said benefits for several years, and that she continues to receive Social Security disability benefits. Mrs. Fulce also contends that a conflict of interest exists within the PERS Disability Appeals Committee and that she was not sufficiently notified of her right to the assistance of counsel while before the Committee.",introduction
+41,6335726,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+42,1983669,1,2,"Relator claims that the evidence, viewed in the light most favorable to the Department, fails to support the finding that claimant was discharged for reasons other than misconduct. The burden of proving disqualification from benefits under Minn. St. 268.09 is on the employer. Johnson v. Ford Motor Co., 289 Minn. 388, 403, 184 N.W.2d 786, 796 (1971); Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 209 N.W.2d 397 (1973). In addition, as conceded by relator, the findings must be viewed in a light most favorable to the decision below and must be sustained where there is evidence reasonably tending to sustain them. Kantor v. Honeywell, Inc., 286 Minn. 29, 175 N.W.2d 188 (1970); Lewis v. Minneapolis Moline, Inc., 288 Minn. 432, 181 N.W.2d 701 (1970). In the present case, there is sufficient evidence to support the determination of the appeal tribunal even if the disputed documents are considered. Affirmed.",sufficiency of the evidence
+43,1118319,1,1,"For ease of reference, the parties are identified: Appellants: State of Wyoming, the G.A. Brown Testamentary Trust, the LeClair Irrigation District, the Midvale Irrigation District, the Riverton Valley Irrigation District, and a group of individual and business entities who are irrigators affected by the adjudication (hereinafter referred to collectively as appellants or by individual name, as circumstances require). Appellees: United States, in its role as trustee for the Indian Tribes and as holder of various reserved water rights for national forest lands and other purposes, and the Shoshone and Arapaho Tribes (hereinafter referred to as the United States and the Tribes). The Wyoming Wildlife Federation and the National Wildlife Federation appeared as amici with the Tribes. Based upon the original decrees, the Indian Tribes sought to commit a portion of their reserved water rights to an instream flow on three critical stretches of the Big Wind River for the purposes of fishery enhancement, groundwater recharge, benefit to downstream irrigators and other benefits. The Tribes continued to commit their historic water for the agricultural and domestic purposes for which it had been traditionally used. They requested use of future water for instream flow purposes. The Tribes presented their Tribal Permit to the state engineer for enforcement in April of 1990, but the state engineer considered the Tribes' right to commit any portion of their waters to instream flow a gray area and, rather than enforcing the permit to the letter, he attempted to balance the rights of the appellants with the request for the instream flow. The state engineer was able to provide all irrigators with sufficient water during the pertinent time period, but was not able to fulfill the Tribes' instream flow demand. However, at least a portion of the instream flow was achieved at all times and, after the middle of July 1990, it was maintained at approximately the levels requested by the Tribes. Because the state engineer did not strictly enforce their instream flow permit or recognize their right to commit a portion of their adjudicated water to an instream flow, the Tribes petitioned the district court for enforcement. As we made clear in Big Horn I, the district court is the proper source of their remedy as provided by the decree itself. A special master was appointed to hear all evidence and he reported to the district court. The district court essentially adopted the special master's report and decreed that the Tribes may change their reserved water right to instream flow without regard to Wyoming state water law. The Tribes had also requested that the state engineer be replaced as the water master on the reservation and the district court granted that relief by appointing the Tribes' Water Resources Agency as the administrator of all surface waters on the reservation, both Indian and non-Indian alike. The appellants challenge both rulings.",introduction
+44,1058826,1,6,"The defendant argues that the evidence was not sufficient to support a conviction for conspiracy because there was no evidence of any agreement between Hutchinson and himself, an overt act, or of the 300 grams of cocaine. We agree with the Court of Criminal Appeals that the proof presented at trial supports each of the elements necessary for a conviction. Although an accused is originally cloaked with a presumption of innocence, a jury verdict of guilty removes that presumption and replaces it with one of guilt, shifting the burden of proof to the defendant to demonstrate the insufficiency of the convicting evidence. State v. Dellinger, 79 S.W.3d 458, 489 (Tenn.2002); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). On appeal, we must determine whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.App. P. 13(e); State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). In making this decision, we are to accord the State the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom. Tuggle, 639 S.W.2d at 914. As such, we are precluded from re-weighing or reconsidering the evidence, State v. Morgan, 929 S.W.2d 380, 383 (Tenn.Crim.App.1996), nor may we substitute our own inferences for those drawn by the trier of fact from circumstantial evidence, State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990). To sustain a conviction for conspiracy, the State is required to prove that two (2) or more people, each having the culpable mental state required for the offense which is the object of the conspiracy and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage in conduct which constitutes such offense. Tenn.Code Ann. § 39-12-103(a) (2003). No person may be convicted of conspiracy to commit an offense unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by the person or by another with whom the person conspired. Tenn.Code Ann. § 39-12-103(d) (2003). The offense alleged to have been the object of the conspiracy was the sale of 300 grams or more of a substance containing cocaine ... in violation of Tennessee Code Annotated § [ ]XX-XX-XXX. We find that the Court of Criminal Appeals accurately summarized the evidence that supports the findings by the trier of fact: The sharing of vehicles and financial responsibility therefor between these two individuals suggest involvement in each other's affairs. In addition, the trash pulls... revealed mail belonging to the defendant and to Hutchinson intermingled in each other's garbage. These pulls also led to the discovery of an empty box of baggies...; latex gloves ...; Inositol ...; and, in some of the otherwise empty bags, cocaine residue. Beyond this, the police discovered the defendant essentially surrounded by evidence of drug dealing upon executing a search warrant at Hutchinson's residence. Baggies of cocaine were in plain sight throughout the room; electric scales ... were discovered near the defendant; a box of rubber gloves and hundreds of dollars were also located in his vicinity; etc. Moreover, two officers testified that, upon entering, they saw loose cocaine flying through the air coming from the defendant's direction. In fact, one officer stated that he had seen the defendant throw the bag of cocaine. According to yet another officer the defendant stated, while being booked, that he had been trying to knock cocaine off of the table when the officers came into the home. As previously noted, testing revealed that two hundred ninety-four grams of cocaine had been seized at the scene. Officer Danny Eddings' testimony indicated that quite a bit of the cocaine spilled on the carpet had not been recovered. The period of time involved in the indictment would have also included the residue above-referenced, cocaine involved in one or two sales Hutchinson acknowledged making earlier on the day of the arrest, etc. The defendant contends that the only act he was charged with engaging in was possession, and that this was not an overt act in furtherance of the conspiracy. The acts of maintaining a structure for the storing, repackaging, and safekeeping of cocaine and possessing more than twenty-six grams of cocaine were both alleged in the indictment, and constitute actions committed in furtherance of the alleged conspiracy. Even if it were Hutchinson alone who maintained the structure, this is not fatal to the State's case, because the conspiracy statute provides that the requisite overt act may be done by the applicable defendant or by another with whom the person conspired. Tenn.Code Ann. § 39-12-103(d) (2003). The record contains sufficient proof supporting both alleged overt acts. As to whether there was an agreement between the parties, our courts have long held: To prove a conspiracy, it is not necessary that the State show a formal agreement between the parties to do the unlawful act, but a mutual implied understanding is sufficient, although not manifested by any formal words, or by a written agreement. The unlawful confederation may be established by circumstantial evidence and the conduct of the parties in the execution of the criminal enterprise. Randolph v. State, 570 S.W.2d 869, 871 (Tenn.Crim.App.1978); see also State v. Pike, 978 S.W.2d 904, 915-16 (Tenn.1998). Viewing the evidence in the light most favorable to the State, we conclude that the jury could reasonably infer from the aforementioned facts the existence of an agreement between Hutchinson and the defendant to sell cocaine. Finally, as to the amount of cocaine that the State alleges the defendant conspired to sell, it is true that the total amount of substance tested by TBI was 294 grams. However, the record contains evidence regarding one or two cocaine sales made by Hutchinson on the morning of the arrest, cocaine residue found in the trash pulls, and quite a bit of loose cocaine left on the floor resulting from the tossing of a bag of cocaine as the search began. From such proof, the jury could reasonably infer that the defendant and Hutchinson had conspired to sell three hundred grams or more of cocaine during the months covered by the indictment on which the defendant was tried. Thus viewing the evidence in the light most favorable to and resolving all conflicts in the favor of the State, we find sufficient proof to support each element of the conspiracy.",sufficiency of the evidence
+45,6344719,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+46,2151017,1,1,"Defendant was convicted over his claim that he acted in self defense. The homicide occurred in the parking lot of a tavern, where the decedent, Wardell Marble, and several other men were drinking and visiting in the late afternoon. The defendant testified that when he approached, Wardell and others were gathered in a circle. Nearby was an 18 or 19 year old youth named Grundy, whom the defendant believed was a cousin to Wardell. Defendant was active in youth programs, thought that Grundy did not belong there and lectured him briefly. Defendant then approached the group and spoke to them. Wardell called him Finch, and defendant corrected him and started to walk away. Wardell looked directly at the defendant, while whispering to Grundy, came out of the group and towards defendant. At the same time, the others in the group started to spread out, as if to surround the defendant. As Wardell moved towards the defendant he said, French, I don't like you no way. I ought to kick   . Defendant knew the members of the group to be wineheads and junkies and was convinced that they were going to jump him. He tried to reason with Wardell, as he continued to back away, but Wardell and the others continued towards him. Defendant had been target shooting and had a 22 cal. target pistol, which he drew, as he backed away, hoping to deter the attack. Wardell had something in his hand but placed it on top of a parked automobile. He reached into his trouser pocket with his right hand and rushed towards the defendant. Defendant knew that Wardell carried a knife, was in fear of his life and decided to shoot the defendant in the leg. Instead, however, he backed into a parked automobile at that moment, which knocked him off balance, and he accidentally fired high, hitting Wardell in the heart. Defendant's account of the incident was diametrically opposed to the testimony of the State's witnesses in almost every particular. Nevertheless, it was substantial probative evidence which entitled him to an acquittal, if it raised a reasonable doubt in the minds of the jurors. Accordingly, the defendant was entitled to have the jury properly instructed upon the law of self defense. The doctrine of lawful self defense has many facets and understandably the matter of instructing juries thereon has been troublesome. Although the precise instruction to which a defendant may be entitled may vary with the circumstances of the case, the general instruction that has been repeatedly approved and is favored by this Court as an embodiment of the pertinent principles is as follows: The Court further instructs you that one person may kill another under such circumstances that the homicide or killing constitute no crime, but is justified by the law. This is known as the law or doctrine of self-defense and may be, and is thus stated for your guidance. Whoever, being himself without fault and in a place where he has a right to be, so far as his assailant is concerned, is assaulted, he may, without retreating, repel force by force; and he need not believe that his safety requires him to kill his adversary in order to give him a right to make use of force for that purpose. When from the act of his assailant, he believes, and has reasonable ground to believe, that he is in danger of losing his life or receiving great bodily harm from his adversary the right to defend himself from such danger or apprehended danger may be exercised by him; and he may use it to any extent which is reasonably necessary, and, if his assailant is killed as a result of the reasonable defense of himself, he is excusable in the eyes of the law. The question of the existence of such danger, the necessity or apparent necessity, as well as the amount of force necessary to employ to resist the attack can only be determined from the standpoint of the defendant at the time and under all the then existing circumstances. Ordinarily one exercising the right to self-defense is required to act upon the instant and without time to deliberate and investigate and under such circumstances a danger which exists only in appearance, is as real and imminent to him as if it were actual. A person in the exercise of the right of self-defense must act honestly and conscientiously. When all danger and all apparent danger of the loss of life, or of receiving great bodily harm, from the assault of his assailant is at an end and passed, then the right to use force is at an end and should cease. The person exercising the right of self-defense must honestly believe, and have reasonable ground to believe, when he makes use of force to protect himself from an assailant, that at the time he uses the force it is then necessary to do so to protect his life, or to protect his person from great bodily harm. One who is in no apparent danger, and who apprehends no danger and who has no reasonable ground for such apprehension cannot kill another and successfully interpose the defense of self-defense. Martin v. State (1973) 260 Ind. 490, 296 N.E.2d 793. The defendant tendered three brief instructions, all of which were on self-defense and all of which were refused. The court acknowledged that they were correct statements of the law but declined to give them because he regarded the court's preliminary instruction No. 15 and its proposed final instruction No. 29 to be sufficient. Those instructions were as follows: COURT'S PRELIMINARY INSTRUCTION NO. 15 It is the law that one seeking to avail himself of the right of self defense must be himself without fault, and if the evidence shows beyond a reasonable doubt that a defendant himself provoked the attack or brought upon himself the necessity which he sets up in his own defense, or voluntarily put himself in the way of an altercation, or sought a conflict, he is thereby deprived of the right of self defense unless he in good faith made an effort to retreat or abandon the conflict in some manner. COURT'S FINAL INSTRUCTION NO. 29 A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person in the commission of a forcible felony. We will not set forth the defendant's requested instructions, as we do not regard them as models. We find, however, that the court's instructions were deficient in at least five particulars included in our preferred instructions and in at least three particulars covered by those tendered and refused. To the extent that the court's instructions fell short of our preferred one and the deficiencies were not supplied by the tendered instructions, the defendant has no cause to complain. A failure to instruct is not subject to appellate review unless a proper request has been made; and, error cannot be addressed to a correct but incomplete instruction, if instructions have not been requested upon the omitted points. Flowers v. State (1957) 236 Ind. 151, 168, 139 N.E.2d 185; Wilson v. State (1953) 232 Ind. 365, 367, 111 N.E.2d 709. However, three principles included in our preferred instruction but omitted from the court's instructions were embodied in the instructions tendered. We do not regard the omission, in this case, of the proviso that one claiming the right to defend himself must be in a place where he has a right to be as error, because we do not see how the defendant could have been thereby harmed. The omission tended to broaden rather than to limit the right. But we cannot say that the other two omissions were harmless error. At no point in the instructions given was the jury informed that in the exercise of the right, a defender may repel force by force reasonably necessary and that he will not be accountable for an error in judgment as to the amount of force necessary, provided he acted honestly. Neither did the court's instructions apprize the jury that the existence of the danger, the necessity or apparent necessity, as well as the amount of force required to resist the attack can only be determined from the standpoint of the defendant, at the time and under the then existing circumstances. In view of these omissions, we cannot say that the jury had the requisite information to enable it to make a proper application of the law to the facts. The substance of the omitted instructions was applicable to the testimony of the defendant, if believed, and we cannot say that these omissions, notwithstanding defendant's timely request, did not deny the defendant of the benefit of reasonable doubt. It should also be noted that the court's instruction advised of the necessity for one who was the attacker or provoker of an altercation to first retreat before he may become entitled to defend himself. This is a correct statement, but, where the evidence is in conflict upon the question of who was the aggressor, fairness seems to demand that it be balanced with an advisement that one who is not the aggressor is not required to retreat. And while, as stated, no instruction was given advising that the necessity for and the reasonableness of the force employed can only be determined from the standpoint of the defender, the court did instruct that a person is justified in using deadly force only if he reasonably believes it to be necessary. Again, the statement is correct, but without a counter-balancing statement may be misleading. Altogether, the instructions, as given, without the inclusion of those tendered, tend to depreciate the defendant's defense. For this reason, we reverse the judgment of the trial court and remand the cause to the trial court with instructions to grant the defendant a new trial.",issues
+47,1652455,1,4,"¶ 12. Holly complains that Hearing Officer Mason erred in his ruling, because he applied an improper standard of review. In his order dismissing Holly's appeal, Hearing Officer Mason stated: The Appealing Party has the burden of proving that the action taken by the agency is without merit, in error or is arbitrary or capricious. it [sic] is the opinion of the Hearing Officer that the Appealing Party has failed to sustain this burden. Further if the agency has acted in accordance with the published policies, rule [sic] and regulations of the State Personnel Board, and if the personnel action taken by the agency is allowed under the said policies, rules and regulations, the Employee Appeals Board shall not alter the action taken. Section 25-9-127, governing appeals to the EAB, requires the appealing party to furnish evidence that the reasons stated in the notice of dismissal or action adversely affecting his compensation or employment status are not true or are not sufficient grounds for the action taken. Miss.Code Ann. § 25-9-127(1) (1994). No employee of any state agency may be dismissed unless there is good cause and after written notice and hearing. Miss. Code Ann. § 25-9-127 (Supp.1990). Employees affected by adverse decisions may appeal to the Employee Appeals Board (EAB) for de novo hearing, then to circuit court for judicial review on the record, and finally to this Court. Miss.Code Ann. §§ 25-9-131 and 25-9-132 (Supp.1990). Review by the circuit court is limited to determinations of whether the EAB's actions are supported by substantial evidence, are arbitrary or capricious, or are in violation of some statutory or constitutional right of the employee. Miss.Code Ann. § 25-9-131 (Supp.1990). Hood v. Miss. Dep't of Wildlife Conservation, 571 So.2d 263, 267 (Miss.1990). ¶ 13. As the MDOC points out in its brief, the standard of review applied by Hearing Officer Mason is synonymous with that set out in § 25-9-127(1). Black's Law Dictionary defines the term arbitrary and capricious as [c]haracterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or law or without determining principle. Black's Law Dictionary 105 (6th ed. 1990). Merits is defined as ... [t]he substance, elements, or grounds of a cause of action or defense. Id. at 989-90. Common sense tells us that the term in error has the same meaning as not true. The standard applied by Hearing Officer Mason, therefore, is synonymous with the statutory standard of review requiring Holly to prove that the MDOC's reasons for terminating him were not true or insufficient grounds for termination. We find no merit in this assignment of error.",standard of review
+48,2630419,1,4,"Before proceeding, we pause to clarify what is not being addressed or decided in this opinion. In its responsive brief, the State argues that a petition for writ of habeas corpus was improper in this case, suggesting that McCracken was required to first raise the immunity issue in the criminal proceeding through a motion to dismiss. The generalized argument further suggests that by failing to timely file a motion to dismiss in the criminal proceeding, McCracken waived his right to claim the statutory immunity. Initially, we note that no record of the criminal proceedings was included in the record on appeal. Therefore, we would have to take on faith that the issue was not raised in that proceeding. More importantly, however, the State challenged the propriety of employing a K.S.A. 60-1501 petition in the district court, through its motion for judgment on the pleadings and motion to dissolve the writ. The State argued, inter alia, that the petition was an impermissible collateral attack on the criminal court's probable cause determination. The district court denied the motions, specifically making findings adverse to the State's arguments, and subsequently refusing to reconsider its ruling. The State did not cross-appeal on those adverse rulings, and, therefore, we are precluded from considering the issue in this appeal. See K.S.A. 60-2103(h); Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005). At oral argument, the State made the new argument that we can review the issue by characterizing it as a question of jurisdiction, given that an appellate court is always permitted to consider jurisdiction. See State v. Wendler, 280 Kan. 753, Syl. ¶ 1, 126 P.3d 1124 (2006) (appellate court has duty to question jurisdiction on own initiative). We decline the invitation. The district court had jurisdiction of the parties and of the subject matter. Indeed, even the State, in its motion for judgment on the pleadings, agreed that habeas corpus is an appropriate vehicle to challenge a trial court's pretrial denial of a claim of statutory immunity from criminal prosecution. Therefore, we decline to review the denial of the State's motions and do not opine on the timing or prerequisites for a petition for writ of habeas corpus in these circumstances. Likewise, we have not been presented with any challenge to K.S.A. 21-3219. Therefore, we do not offer any opinion on the statute's provisions or the burden of proof anomalies which it might create. We narrowly restrict our decision today to a determination of whether McCracken met his burden of proving, by a preponderance of the evidence, that he was justified in using deadly force against Parker, Carothers, and Lane under K.S.A. 21-3211, K.S.A. 21-3212, or K.S.A. 21-3213.",issues
+49,887939,1,1,"¶3 The City and the Local 521 International Association of Fire Fighters, on behalf of the Firefighters, entered into a collective bargaining agreement with regard to employeremployee relations, wages, hours and other conditions of employment, and to provide a means of resolving grievances. The agreement was renewed every two or three years. 3 ¶4 The agreement in effect prior to July 1, 1995 (the pre-1995 agreement) provided the following pay formula: a. Hourly rate is based on 2,080 hours per year. To determine this figure, annual base salary will be divided by 2,080 hours. b. Formula for Regular Monthly Salary: Twenty-six (26) times the last full regular pay, (base pay plus longevity plus holiday pay) divided by twelve (12) equals regular monthly salary. (26 x 1 frp./12 = rms) c. Regular paydays will be every other Friday. The salary schedule attached to the pre-1995 agreement set forth a base salary dependent on a firefighter’s position. For example, the base salary listed for a Firefighter 1 position for 1994-1995 was $2,069.79, which was then used to calculate a firefighter’s regular monthly salary. ¶5 The agreement that went into effect on July 1, 1995 (the post-1995 agreement) provided the following pay formula: a. Annual base salary is equal to 2080 hours x hourly base rate of pay listed on the attached Salary Schedule. Hourly base rate is base pay plus special certification pay. b. Regular payday will be every other Friday. The salary schedule attached to the post-1995 agreement set forth a base hourly salary. In this case, a Firefighter 1, in 1995-1996, received the base pay of $12.5624 per hour, plus special certification pay of $0.1731 per hour if eligible. ¶6 The Firefighters’ work schedule set forth in both pre-1995 and post-1995 agreements was as follows: The work schedule shall be a 27-day total work cycle consisting of seven (7) consecutive work shifts of twenty-four (24) hours on duty and fortyeight (48) hours off duty, immediately followed by six (6) consecutive days off. 4 Based on this work schedule, the Firefighters worked approximately 2,272 hours per year. When the Firefighters were paid every other Friday, the pay stub reflected that they were paid for forty hours per week, regardless of whether they worked more or less than forty hours per week. Although schedules were kept, which would indicate the number of hours worked by the Firefighters, the actual number of hours worked was not sent to the payroll department. This resulted in the Firefighters being paid for only 2,080 hours each year, rather than the 2,272 hours the Firefighters worked each year while on the 27day work schedule. ¶7 Seventeen Firefighters filed a complaint alleging that the City failed to properly account for or pay the Firefighters for all hours worked and for earned leave time. They claimed that pursuant to Article XII, Section 2(2) of the Montana Constitution, the City was liable for its failure to pay for or account for hours worked in excess of eight hours per day. Further, they alleged the City’s failure to pay wages entitled the Firefighters to a penalty. The Firefighters requested that a class be certified and a common fund be established. ¶8 The Firefighters filed a motion for partial summary judgment. They argued that they had a constitutional right to be paid for every hour they worked in excess of an eight-hour day, and that this right could not be waived or bargained away. They did not argue that they were entitled to overtime for those hours worked, but that the hours were unpaid “straight time.” The Firefighters did not base their claim on any violations of the Fair Labor Standards Act (FLSA). Further, the Firefighters claimed, in addition to straight time, the City failed to properly account for and pay sick and vacation leave time. 5 The City responded that the eight-hour work day provision in the Montana Constitution had no application in this case in light of §§ 39-4-107 and 39-3-406, MCA, which provide that the eight-hour day does not apply to firefighters working under an established collective bargaining agreement. The City noted that the Firefighters did not allege a violation of any terms of the collective bargaining agreement. The City then filed its own motion requesting summary judgment on all of the Firefighters’ issues. ¶9 The District Court rejected the Firefighters’ claims that they were entitled to unpaid wages pursuant to Article XII, Section 2, of the Montana Constitution. Instead, the court compared the pre- and post-1995 collective bargaining agreements and determined the matter based on a breach of contract theory. The court found that the pre1995 agreement was an annual wage contract and the post-1995 agreement was an hourly wage contract. Thus, the pre-1995 agreement provided the exact wage to be paid for the year regardless of the number of hours worked. The post-1995 agreement, on the other hand, required that the Firefighters be paid for each hour worked. Accordingly, the Firefighters were entitled to unpaid straight time from 1995 forward. The court determined that the issue of leave time could be worked out under the agreements as well—that the Firefighters’ “leave time should be credited and debited at the same rate.” ¶10 The court certified the matter as a class action and defined the class as all past and present firefighters of the City of Billings who work or worked under the 27-day work schedule. The complaint was amended to include dozens more firefighters. ¶11 A bench trial was held on May 3 and 4, 2005, to determine damages. Based on the court’s prior conclusion that the post-1995 agreement was an hourly wage contract, the 6 court found at trial that the Firefighters worked approximately 2,272 hours per year but were paid for only 2,080 hours per year, and thus concluded they were entitled to recover for wages and benefits associated with the unpaid hours. The court further concluded that the City did not breach its duty to maintain proper payroll records, and that the records were not falsified or intentionally misleading. The court assessed a penalty against the City in the amount of 8.45 percent of the unpaid wages. After a hearing on the amount of attorney fees and costs, the court awarded $625,000 in attorney fees to the Firefighters, declining to award the full one-third contingency fee the Firefighters requested. The court awarded $3,972.98 in costs, although the Firefighters requested $60,154.72. The City appeals the order granting the Firefighters’ motion for partial summary judgment and from the court’s judgment awarding damages in the amount of $3,075,590.30, an 8.45 percent penalty in the amount of $253,000, and the abovementioned attorney fees, and costs. The Firefighters cross-appeal the amount of damages for unpaid wages and leave time, and the amount of the penalty, attorney fees and costs. Other facts will be discussed below as necessary.",facts
+50,2570424,1,5,"Gershater argues that the testimony before the hearing panel was contradictory, vague, and insufficient to support the findings of fact by the hearing panel. Specifically, Gershater points to the testimony of Vleisides and of Donnelly regarding their legal representation of her during the Anderson litigation. Vleisides testified that he never filed an amended petition; Donnelly testified that an amended petition was filed. Although the testimony on this minor and insignificant point is contradictory, none of the testimony in question affects whether Gershater violated KRPC 3.3(a)(1), 8.4(d), 8.4(g), or Supreme Court Rules 207(b) and 211(b). The evidence supporting the findings of the hearing panel on these issues is uncontroverted, clear, and convincing. Gershater's argument on this issue is without merit.",sufficiency of the evidence
+51,1990233,1,1,"Has the State waived its claim to reimbursement or is it estopped by delay and laches to prosecute its claim? The claim is in the nature of an account for goods and services rendered. The defendant frankly concedes that the Statute of Limitations could not be successfully raised in defense in this case against the sovereign. If the defendant relies upon laches, that defense is available only where the action is brought to enforce an equitable claim or right. In the instant case the claim is not of that nature. Even if that were not so, the defendant would still be precluded by the fact that the State of Maine is in the exercise of its police power in institution alizing the criminally insane and furnishing them with board and care. While thus engaged in a governmental function, the sovereign is not vulnerable to a charge of laches. In State v. Josefsberg, (1957) 275 Wis. 142, 81 N.W.2d 735, 741, 63 A.L.R.2d 1071, the court was satisfied that the great weight of authority supports this view. See cases noted under 19 Am.Jur. 342, Sec. 495 and 30 C.J.S. Equity § 114, p. 526. If the defendant relies upon the doctrine of equitable estoppel, the facts disclose no change of position on the part of the defendant. Furthermore, the facts relied on to establish an equitable estoppel must be such as to have caused the party asserting them to have changed his position in reliance thereon and to his injury. Inhabitants of Town of Milo v. Milo Water Company, 131 Me. 372, 379, 163 A. 163, 166. Moreover the defense of equitable estoppel is not available against the State when it is engaged in the exercise of sovereign powers. See Inhabitants of Town of Milo v. Milo Water Company, supra. We are satisfied that the Business Manager was without authority to waive any portion of the claim in the discharge of his public duty and if the letter of December 11, 1959 may fairly be construed as an attempted waiver of any sums legally collectible, it may not be given that effect.",issues
+52,2057074,2,2,"[¶ 11] Garrison also challenges the sufficiency of the evidence that the transfer was in the ordinary course of business. Because section 3579(6)(B) is an affirmative defense, York Obstetrics had the burden of proving the defense at trial. See ABN AMRO Mortgage Group v. Willis, 2003 ME 98, ¶ 5, 829 A.2d 527, 529; see also U.F.T.A. § 8, cmt. 1 (1984). [5] [¶ 12] Generally, sufficiency of the evidence challenges by a party who did not bear the burden of proof at trial are resolved by clear error review. See generally Pratt v. Spaulding, 2003 ME 56, ¶ 10, 822 A.2d 1183, 1186; cf. Westleigh v. Conger, 2000 ME 134, ¶ 12, 755 A.2d 518, 520. We therefore examine the record, and the reasonable inferences that may be drawn from the record, in the light most favorable to the trial court's judgment to determine if the facts are supported by competent evidence. See id. The meaning and weight given to the exhibits and testimony of the witnesses by the fact-finder must be upheld unless clearly erroneous. Jenkins, Inc. v. Walsh Bros., Inc., 2002 ME 168, ¶ 7, 810 A.2d 929, 933. [6] [¶ 13] Viewed in the light most favorable to the court's judgment, the record evidence establishes that York Obstetrics regularly paid Wagright rent in a timely manner until it encountered business difficulty. Garrison itself introduced evidence that Wagright acquired the condominium in 1999 and that York Obstetrics has occupied the premises since then as a tenant. Wagright and York Obstetrics had a longstanding landlord/tenant relationship prior to the onset of financial difficulties in 2002-2003. [¶ 14] Although the record could support the opposite conclusion, the evidence was sufficient for the court to conclude that York Obstetrics has met its burden of proof and persuasion as to its affirmative defense. Because it is the factfinder that must consider the weight and significance of evidence, we defer to the Superior Court's determinations regarding the weight and significance of the evidence in this case. See Dombkowski v. Ferland, 2006 ME 24, ¶ 28, 893 A.2d 599, 606 (quotation marks omitted); see also Eaton v. Town of Wells, 2000 ME 176, ¶ 29, 760 A.2d 232, 243; Jenkins, 2002 ME 168, ¶ 7, 810 A.2d at 933. The court could reasonably conclude that the payments of rent that are the subject of this action were made within the ordinary course of York Obstetrics's business, even though the timing of the payments was unique because they were late. The entry is: Judgment affirmed.",sufficiency of the evidence
+53,2638977,1,3,"{14} We first address Defendant's claim that there was insufficient evidence to support his conviction for depraved mind murder. Under a sufficiency of evidence analysis, we must determine whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We must view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict. Id. It is this Court's duty on review to determine whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992).",sufficiency of the evidence
+54,2452798,1,4,"[¶ 18] We find no abuse of discretion or violation of K.C.'s due process rights in her disposition after the revocation of her probation. Although it is better practice for a juvenile court to provide a record of its reasoning in making a particular disposition, it is not necessary as long as the terms of the disposition are within the statutory sanction scheme. In this case, no written justification for K.C.'s placement at the Wyoming Girls' School was necessary because placement at the Wyoming Girls' School is a disposition available at all sanction levels. [¶ 19] The juvenile court's consideration of K.C.'s statement to the MDT that she would not follow the rules at the Hemry Home did not violate K.C.'s right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution. The statement was considered only in the dispositional phase of the delinquency proceedings. [¶ 20] Finally, there was no violation of W.R.Cr.P. 11 because the rule does not apply to juvenile delinquency proceedings. Finding no error as alleged by K.C. on appeal, the district court's placement of K.C. at the Wyoming Girls' School is affirmed.",conclusion
+55,2853522,1,1,"Helen Wilson is an elderly woman residing at the Palmer Pioneer home. Helen previously lived in her own house but was unable to manage her medications and nutrition independently. Her son and grandson lived with her but were unable or unwilling to help. After Adult Protective Services received several reports of harm, a temporary emergency guardian was appointed for Helen; the guardian placed her in an assisted living facility and then in the Pioneer Home. Despite her limited financial means, Helen continues to support her son and grandson, who remain in her house. Helen appeals the appointment of a partial public guardian and full conservator. We affirm.",introduction
+56,2090688,1,7,"We have not previously addressed the issue of whether the overruling of a motion to dismiss criminal charges on speedy trial grounds is a final, appealable order where the statutory right to a speedy trial is derived from §§ 29-3801 to 29-3809. However, we have held that an appeal could be taken from such an order where the asserted right is based upon the Nebraska speedy trial act, §§ 29-1207 and 29-1208, reasoning that a ruling on a motion for absolute discharge based upon an accused criminal's nonfrivolous claim that his or her speedy trial rights were violated is a ruling affecting a substantial right made during a special proceeding and is therefore final and appealable. State v. Gibbs, 253 Neb. 241, 245, 570 N.W.2d 326, 330 (1997). See, also, State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). In State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997), we applied the same reasoning in holding that an order denying a motion to dismiss based upon the alleged denial of an accused's speedy trial rights under the interstate Agreement on Detainers, Neb.Rev.Stat. § 29-759 (Reissue 1995), was a final, appealable order. For the same reasons, we conclude that the denial of a speedy trial claim governed by §§ 29-3801 to 29-3809 is a final, appealable order.",jurisdiction
+57,4259836,1,5,"Neither the order granting consent to adoption nor the order staying the custody proceedings pending further order of the court present a final, appealable order. Accordingly, we dismiss Jennifer’s appeal for lack of jurisdiction. A ppeal dismissed. Wright, J., not participating. 67 See § 25-1902.",conclusion
+58,4671752,1,4,"[1] The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires the appellate court to reach its conclusion independent from the trial court; however, when the determination rests on factual findings, the trial court’s decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. 1 [2] In determining whether a defendant’s waiver of counsel was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard of review. 2 [3] Whether a defendant could and, in fact, did waive his or her right to attend all stages of his or her trial presents a question of law. 3 [4] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 4 [5] In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, 1 State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997). 2 State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009), overruled in part on other grounds, State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018). 3 State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011). 4 State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020). - 669 - Nebraska Supreme Court Advance Sheets 308 Nebraska Reports STATE v. WARLICK Cite as 308 Neb. 656 not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. 5",standard of review
+59,2763450,1,1,"McManus failed to state a claim for tortious discharge because he did not allege that he was terminated for externally reporting illegal activity or for refusing to participate in illegal activity. Thus, the district court did not err in dismissing his claim. Therefore, we ORDER the judgment of the district court AFFIRMED. J. J. Parraguirr,e J. Saitta cc: Hon. David A. Hardy, District Judge Wm. Patterson Cashill, Settlement Judge Cavanaugh-Bill Law Offices, LLC Laxalt & Nomura, Ltd./Reno Washoe District Court Clerk 5 SinceMcManus concedes that he participated in the illegal activity, we do not address whether he alleged a reasonable belief that the activity was illegal. Furthermore, we do not address whether issue preclusion prevents McManus from stating a tortious discharge claim. SUPREME COURT OF NEVADA 5 (0) 1947A el>",conclusion
+60,2634086,1,2,"¶ 12 The dispositive issue here is the meaning and application of the time requirement in subsection 43(B) of Title 85 of the Oklahoma Statutes for the diligent prosecution of a claim against the Fund. Construction of statutory language is a pure issue of law that stands before us for de novo review. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-1123. Our review of the workers' compensation court's legal rulings is plenary, independent and non-deferential. Id.",standard of review
+61,2600162,1,1,"[¶ 2] Ludwig sets forth the following issues: 1. Where the evidence presented at hearing was limited by agreement of the parties to a single issue, can the [OAH] base [its] decision to deny permanent partial disability benefits on a different issue? 2. If the issue is the adequacy of the claimant's job search, as framed by the pleadings, are the [State's] rules concerning compliance with [Wyo. Stat. § 27-14-405(h) ] an attempt to legislate or amend or, alternatively, construe the statute? 3. If the [OAH] improperly applied W.S. XX-XX-XXX(h) to deny permanent partial disability benefits to the claimant, is there otherwise substantial evidence in the record to conclude the claimant was not entitled to these benefits?",issues
+62,4536007,1,2,"[1,2] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.2 In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.3 [3] The interpretation of an insurance policy presents a question of law that an appellate court decides independently of the trial court.4",standard of review
+63,4414343,1,4,"The commission is empowered to adopt and promulgate rules and regulations to carry out the Nebraska Liquor Control Act,11 including provisions covering any and all details which 6 Leon V. v. Nebraska Dept. of Health & Human Servs., 302 Neb. 81, 921 N.W.2d 584 (2019). 7 Id. 8 Id. 9 Betty L. Green Living Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d 551 (2018). 10 Leon V., supra note 6. 11 Neb. Rev. Stat. §§ 53-101 to 53-1,122 (Reissue 2010 & Cum. Supp. 2018). - 63 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 are necessary or convenient to the enforcement of the intent, purpose, and requirements of the act.12 McManus does not dispute that as a licensee, it is subject to the rules and regulations of the act, including the disturbance rule. McManus instead contends that the district court erred when it agreed with the commission that the disturbance occurred when McManus hosted the event. It argues this is contrary to the plain reading of the regulation, because the regulation is designed to terminate disturbances that are occurring from continuing. It argues that nothing in the regulation places a duty on a licensee to take action against something that might or could happen. We agree. [6,7] For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute.13 Indeed, we have often said that properly adopted and filed regulations have the effect of statutory law.14 [8,9] Absent a statutory or regulatory indication to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning.15 A rule is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous.16 Neither party argued that the disturbance rule is ambiguous. We agree that its plain and ordinary meaning controls our decision. [10] A court will construe regulations relating to the same subject matter together to maintain a consistent and sensible scheme.17 Consequently, we read § 019.01F, which includes its subparagraphs, §§ 019.01F1 to 019.01F4, to determine the 12 See DLH, Inc. v. Nebraska Liquor Control Comm., 266 Neb. 361, 665 N.W.2d 629 (2003). 13 Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015). 14 See, e.g., Leon V., supra note 6. 15 In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d 670 (2017). 16 Prokop v. Lower Loup NRD, 302 Neb. 10, 921 N.W.2d 375 (2019). 17 Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002). - 64 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 meaning of the disturbance rule as a whole. In discussing the rule, reference to § 019.01F will generally refer to the entire rule. But when quoting the rule, we will use a specific paragraph to enable a reader to easily locate our quotation. By its plain language, § 019.01F dictates that no licensee shall allow any unreasonable disturbance to continue. The commission argues that the regulation also prohibits a licensee from allowing a disturbance to occur. Logically, in order for a disturbance to continue, it must first occur. But as we explain, under the plain language of the regulation, a licensee does not violate the disturbance rule until a disturb­ ance has occurred. [11] First and foremost, the first section of the disturbance rule compels this reading. It states that “[n]o licensee . . . shall allow any unreasonable disturbance; as such term is defined hereunder, to continue without taking the steps, as set forth hereunder, within a licensed premise or in adjacent related outdoor areas.”18 When quoting from this language, the district court decision simply omitted the words “to continue.” Given that we treat a regulation like a statute,19 a settled principle of statutory interpretation20 dictates this rule: A court must attempt to give effect to all parts of a regulation, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. The district court’s reading disregarded this principle. A plain reading of § 019.01F2 supports our conclusion. It requires the licensee and those who act for the licensee to “take such action as is reasonably necessary to terminate the disturbance.”21 “Terminate” means “[t]o bring to an end, put 18 § 019.01F. 19 See Melanie M., supra note 13. 20 See Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 (2019). 21 § 019.01F2 (emphasis supplied). - 65 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 an end to, cause to cease.”22 It seems evident that one cannot “terminate” something that has not occurred. Section 019.01F3 reinforces this understanding. “In the event efforts taken in accordance with [§ 019.01F2] are not successful . . . , th[e]n in such event, such person shall immediately contact law enforcement personnel to assist in properly handling the disturbance.”23 Efforts cannot be either successful or unsuccessful until a disturbance has occurred and the licensee or its representative has attempted some “action . . . to terminate the disturbance.”24 And how, a reader of the regulation might reasonably ask, is one to request assistance from law enforcement in “properly handling the disturbance” until after a disturbance has commenced.25 [12] Finally, § 019.01F4 provides a safe harbor for licensees which have “conformed” to the disturbance rule. It states in part, “A licensee who has conformed with the procedure as set forth in this section shall be deemed to have not permitted a disturbance to occur and continue.”26 Another rule of statutory construction27 leads to this rule: In determining the meaning of regulatory language, its ordinary and grammatical construction is to be followed, unless an intent appears to the contrary or unless, by following such construction, the intended effect of the provisions would apparently be impaired. Under the interpretation urged by the commission, one would expect § 019.01F4 to read “occur or continue,” but it does not. The plain and ordinary meaning of “and,” in this context, means that a disturbance has both “occur[red]” and “continue[d].” 22 “Terminate,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/199426 (last visited Apr. 19, 2019). 23 § 019.01F3. 24 § 019.01F2. 25 See § 019.01F3. 26 § 019.01F4 (emphasis supplied). 27 See Patterson, supra note 20. - 66 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 [13] Within the disturbance rule, the word “occur” appears only in § 019.01F4. Under the commission’s interpretation, one would expect it to appear in § 019.01F. But it does not. As used in § 019.01F4, we understand it to support the ordinary and plain language of § 019.01F. Similarly, §§ 019.01F2 and 019.01F3 support the plain language of § 019.01F by requiring licensees to take reasonable action to terminate a disturbance. Again, logically, in order to terminate a disturbance, it must occur and continue. We hold that under § 019.01F, a licensee cannot be sanctioned for a violation unless the licensee has allowed an unreasonable disturbance to continue. The State agreed with McManus that merely hosting an event is not a violation of § 019.01F. However, it contends that McManus violated the disturbance rule when [McManus] agree[d] to host the event by opening its doors to a third party promotor and the promotor’s security team over which [McManus] had no control, with knowledge that prior events by the same promotor had resulted in an “all call” for LPD, with no clear plan and adequate security tailored to the nature of the event and size of the expected “standing room only” crowd.28 The district court reasoned that McManus “violated the dis­ turbance rule when it disregarded the security concerns expressed to it by law enforcement and proceeded with the event that placed the safety of the public at risk.” Both interpretations relied upon the phrase “other activity which may endanger”29 to craft a preventative interpretation of “other activity.” This interpretation inconsistently read into the regulation a preventative consideration that does not appear within the explicit language of the regulation. Under the plain language, a “disturbance” applies a present temporal meaning.30 The rule utilizes the present tense 28 Brief for appellee at 10. 29 § 019.01F1. 30 See id. - 67 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 when defining disturbance and does not place any conditional language on the existence of the disturbance. For example, a disturbance shall mean any brawl which may endanger others or any fight which may endanger others. It would fly in the face of the plain and ordinary language to read all other disturbances as occurring in the present and “other activity which may endanger” as preventative or precognitive. Effectively, the district court’s interpretation placed the proverbial cart before the horse when it placed the conditional language on the dis­ turbance and not the consequences. Moreover, the nonexhaustive list of examples of a “disturb­ ance” in § 019.01F1—such as drug dealing, intoxicated individuals, soliciting prostitution, and physical contact between customers and employees or agents—further illustrates dis­ turbances happening in the present. The list utilizes the present, present participle, and past tense to define disturbance. It does not place any conditional language on the existence of the disturbance. [14] A licensee’s hosting an event with awareness of a potential disturbance will not be considered a disturbance. Unlike the several other examples of disturbances listed above, hosting an event, in and of itself (at least under the disturb­ ance rule as now written), does not put others in potential danger. Some other activity must occur, like the brawl that broke out, to place others in danger for it to be considered a disturbance under the existing language. In this case, the disturbance did not occur until 1:55 a.m., when the brawl took place. At that point, LPD officers were immediately involved. Therefore, under § 019.01F, in order for “other activity” to be a dis­turbance, the dangerous activity itself must arise and be of such a nature that may place others in danger. Under the plain and ordinary meaning of the disturbance rule, McManus did not have to take reasonable action to terminate the disturbance until 1:55 a.m., when it occurred, at which point the duty under § 019.01F to “[not] allow any unreasonable disturbance . . . to continue” sprang into effect. - 68 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports McMANUS ENTERS. v. NEBRASKA LIQUOR CONTROL COMM. Cite as 303 Neb. 56 Because the district court found that McManus did not take reasonable action before the disturbance occurred, its interpretation was inconsistent with the plain language of § 019.01F. Accordingly, the district court’s interpretation did not conform to the law, and we reverse. Our holding does not preclude the commission from promulgating a preventative rule for disturbances. The problem is, the current rule simply does not do so.",analysis
+64,2402231,1,16,"For the foregoing reasons, we affirm in part and reverse in part. Concerning the peer-review privilege, we affirm the order of the Superior Court with respect to all the documents, save document numbered 138, at least portions of which we hold to be privileged. We also affirm the order with respect to the records of the board of medical licensure and discipline. Concerning the attorney-client privilege and the Confidentiality of Health Care Information Act, we quash the order and remand for a record determination of which documents, if any, fall within the attorney-client privilege, an in camera inspection, and, where appropriate, redaction of any records found to be personally identifiable confidential health-care information. The case is remanded to the Superior Court for proceedings not inconsistent with this opinion.",conclusion
+65,1829489,1,1,"Charles Johns was indicted on August 25, 1988, in Pearl River County for the sale of cocaine in violation of Miss. Code Ann. § 41-29-139(a)(1) and (b)(1) (1972, as amended), a schedule II controlled substance under Miss. Code Ann. § 41-29-115(A)(a)(4), and as a second and subsequent offender under section 41-29-147. [1] After a jury trial, he was convicted and sentenced to twenty-seven (27) years in the custody of the Mississippi Department of Corrections (MDC). Due to the convicted accomplice's testimony concerning her conviction on the same offense, and the ineffective assistance rendered by trial counsel, this Court reverses the conviction and remands for a new trial.
+",introduction
+66,4188124,1,1,"In her first assignment of error, Latika claims that her procedural due process rights were violated by the unreasonable delay of more than 8 months between the issuance of the ex parte order for immediate temporary custody and that of the protective custody order, sometimes referred to as the “detention order.” Although Latika’s objections to the process tended to focus on the initial removal of Carmelo, the court recognized on the record that the duration of the proceedings had been prolonged. We find merit to Latika’s assignment of error claiming a denial of due process. [4-6] The proper starting point for legal analysis when the State involves itself in family relations is always the - 813 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports IN RE INTEREST OF CARMELO G. Cite as 296 Neb. 805 fundamental constitutional rights of a parent. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014). The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014), citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). The fundamental liberty interest of natural parents in the care, custody, and management of their child is afforded due process protection. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007); In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). Such due process rights include the right to be free from an unreasonable delay in providing a parent a meaningful hearing after the entry of an ex parte temporary custody order. See In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). We have previously described the three-stage analysis employed for a claim that one is being deprived of a liberty interest without due process of law. See, Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013); In re Interest of R.G., supra. We have undertaken that analysis. [7,8] Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2014) allows the State to take a juvenile into custody without a warrant or order of the court when it appears the juvenile “is seriously endangered in his or her surroundings and immediate removal appears to be necessary for the juvenile’s protection.” However, the parent retains a liberty interest in the continuous custody of his or her child. In re Interest of Mainor T. & Estela T., supra. An ex parte order authorizing temporary custody with DHHS is permitted because of its short duration and the requirement of further action by the State before custody can be continued. Id. See, also, In re Interest of R.G., supra. But “the State may not, in exercising its parens patriae interest, unreasonably delay in notifying a parent that the State has taken emergency action regarding that parent’s child - 814 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports IN RE INTEREST OF CARMELO G. Cite as 296 Neb. 805 nor unreasonably delay in providing the parent a meaningful hearing.” In re Interest of R.G., 238 Neb. at 419, 470 N.W.2d at 790 (emphasis supplied). Therefore, following the issuance of an ex parte order for temporary immediate custody, “[a] prompt detention hearing is required in order to protect the parent against the risk of an erroneous deprivation of his or her parental interests.” In re Interest of Mainor T. & Estela T., 267 Neb. at 246, 674 N.W.2d at 456. See, also, In re Interest of R.G., supra. In the present case, the State filed its petition on January 5, 2016, and on that same day, the juvenile court filed the ex parte order for immediate custody. DHHS took custody of Carmelo. The State moved for Carmelo’s continued detention. The protective custody hearing was set for January 12, which was 7 days after the filing of the ex parte order. The judge then recused himself, and the protective custody hearing was rescheduled for January 21. The hearing began on January 21, which was 16 days following the entry of the ex parte order. Receipt of evidence could not be completed in the time allotted for the hearing, and this hearing and several subsequent hearings were continued. Hearings were held on February 10 and 24, March 10, May 13, and August 2. The hearing concluded on August 2. The juvenile court filed its protective custody order on September 19, which was more than 8 months after the ex parte order for immediate custody was filed. Latika argues that the more than 8-month delay between the entry of the ex parte order and that of the protective custody order was unreasonable and violated her due process rights. In contrast, Carmelo’s guardian ad litem and the State contend that the delay between the issuance of the ex parte order and that of the protective custody order was not unreasonable, because Latika received notice for each of the hearings and received services and visitation with Carmelo during this period of time. The guardian ad litem and the State also assert that “the elapsed time was for the purpose of providing - 815 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports IN RE INTEREST OF CARMELO G. Cite as 296 Neb. 805 [Latika] a meaningful opportunity to be heard.” Brief for appellee guardian ad litem at 14. We disagree with the argument of the guardian ad litem and the State to the effect that the period of delay was a benefit to Latika and Carmelo. Instead, we determine that the more than 8-month delay between the entry of the ex parte order and that of the protective custody order was unreasonable and resulted in a violation of Latika’s procedural due process rights. As stated above, an ex parte order authorizing temporary custody with DHHS is permitted because of its short duration, and a prompt detention hearing is required in order to protect the parent against the risk of an erroneous deprivation of his or her parental interests. See In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). In In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998), we recognized that parents have due process rights to be free from an unreasonable delay in providing the parents a meaningful hearing after an ex parte order for immediate custody is filed. In In re Interest of R.G., we concluded that the mother’s due process rights were not violated by a 14-day delay between the entry of an ex parte order and that of a detention order when she was given an opportunity to be heard at the detention hearing and was allowed to visit her children in the interim. We cautioned, however, that “the 14 days elapsing between the entry of the ex parte order and the hearing poise the procedures employed in this case on the brink of unreasonableness.” Id. at 423, 470 N.W.2d at 792. In this case, the detention hearing commenced on January 21, 2016, which was 16 days after the ex parte order was filed. This is 2 days more than the time that elapsed between the entry of the ex parte order and the hearing in In re Interest of R.G., and in that case, we cautioned that the 14-day period left the procedures employed “on the brink of unreasonableness.” 238 Neb. at 423, 420 N.W.2d at 792. The protective custody - 816 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports IN RE INTEREST OF CARMELO G. Cite as 296 Neb. 805 hearing in this case was continued over a period of several months, until it finally concluded on August 2. Thereafter, the juvenile court filed its protective custody order on September 19, which was more than 8 months after the ex parte order was filed. The allowance of such an ex parte temporary action is a reasonable reaction to a perceived emergency situation. See In re Interest of R.G., supra. However, in exercising its parens patriae interest and taking such ex parte temporary action, the State may not unreasonably delay in providing the parent a meaningful hearing. See id. This is because a parent has a liberty interest in raising his or her child, a concept which encompasses the child’s custody, care, and control. See Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014). The more than 8-month delay in this case between the filing of the ex parte order and that of the protective custody order is too long a duration and results in interference with Latika’s liberty interest in raising Carmelo. This court is well aware of the many challenges involved in scheduling and completing evidentiary hearings in jurisdictions with crowded dockets, including the reality that lawyers are sometimes unable to complete their evidence in the time allotted and continuances are necessary. But despite these challenges, we have recognized that the juvenile court is responsible for managing its docket. That responsibility includes providing prompt detention hearings on an ex parte protective custody order, and in this case, we cannot find that the protective custody hearing was initiated or resolved promptly. The delay in this case was unreasonable, and Latika’s procedural due process rights were violated because of this unreasonable delay. We note that the parties did not directly object to the continuances of the hearing. However, this does not impact our analysis. In In re Interest of D.M.B., 240 Neb. 349, 355-56, 481 N.W.2d 905, 911 (1992), we stated that “[a] delay of 8 months between the time a child is ‘temporarily’ taken from the child’s parent until the child and parent are given the - 817 - Nebraska Supreme Court A dvance Sheets 296 Nebraska R eports IN RE INTEREST OF CARMELO G. Cite as 296 Neb. 805 evidentiary safeguards of an adjudication hearing cannot be condoned, even when, as here, the parties agreed to repeated continuances.” (Emphasis supplied.) We similarly agree in the instant case that the 8-month delay between the issuance of the ex parte order and that of the protective custody order cannot be condoned, even though the parties did not object to the repeated continuances of the protective custody hearing. We determine that Latika’s procedural due process rights were violated. Therefore, we vacate the September 19, 2016, order of the juvenile court and remand the cause for further proceedings. [9] Because our determination of Latika’s first assignment of error is dispositive, we do not reach her second assignment of error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Medicine Creek v. Middle Republican NRD, ante p. 1, 892 N.W.2d 74 (2017).",analysis
+67,1243073,1,3,"Did the District Court err in requiring Lee to post a $60,000 supersedeas bond? The District Court granted to Lee a stay of execution pending appeal as to the unlawful detainer judgment and the matter of possession of the property involved. In connection with the stay, the District Court required Lee to post a supersedeas bond in the amount of $60,000. The District Court based the bond amount on the estate's loss of interest on the sale price agreed to by the third party. The court figured a reasonable rate of return of eight percent over a four-year period. The court also took into consideration costs the estate would incur on appeal and the damage the estate would suffer from the delay caused by appeal as it must maintain the property without reimbursement from any source when, without this proceeding, the property would be in the possession of the third party buyer who would bear such costs. Lee contends the court erred in calculating the bond amount. According to the court's calculations, eight percent interest on the agreed upon sale price of $165,000 for four years is $52,000. Lee maintains that this amount should be deducted from the supersedeas bond because it was improper for the court to presume the sale to the third party would come to fruition. Lee stresses that a buy/sell agreement is merely an agreement to agree and therefore speculative. We review a district court's order setting the amount of a supersedeas bond to determine whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason. Safeco Ins. Co. v. Lovely Agency (1985), 215 Mont. 420, 426, 697 P.2d 1354, 1358. Previously, Lee asked this Court to exercise supervisory control and reduce the amount of supersedeas bond Lee was required to post. In our order of September 18, 1995, we determined there was no compelling reason why we should reduce the amount of Lee's supersedeas bond. The purpose of a supersedeas bond as a condition for staying enforcement and execution on a judgment is to secure the rights of the judgment creditor during the appeal process. Safeco, 697 P.2d at 1358 (citing Poulsen v. Treasure State Industries, Inc. (1979), 183 Mont. 439, 442, 600 P.2d 206, 208). The only event preventing the closing of the sale to the third party was Lee's possession of the property. The District Court calculated the amount of interest the estate lost from its inability to reinvest any sale proceeds, the cost of taxes, and appeal expenses. We conclude now as we did then — there was a reasonable basis for the amount of the bond that the court established. Therefore, the District Court did not err in requiring Lee to post a $60,000 supersedeas bond. We affirm. TURNAGE, C.J., and GRAY, and NELSON, JJ., concur.",issues
+68,1628715,1,12,"For the above reasons, we affirm Jackson's convictions for first-degree murder and kidnapping and his death sentence for the murder of Pallis Paulk. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.",conclusion
+69,2134248,1,1,"On February 2, 1994, George T. Terry, a Georgia resident, saw a newspaper advertisement in the Atlanta Journal-Constitution for employment as a truck driver with Heartland Express, Inc., an Iowa company headquartered in Coralville, Iowa. In responding to the advertisement, Terry called the Heartland terminal in Forest Park, Georgia. Later, Terry filled out an application at this terminal and turned it into an employee at the terminal, who told Terry that he would forward the application to Coralville for approval. As instructed, Terry called this employee two days later and was told he was hired. As a truck driver for Heartland, Terry covered a number of states, including Iowa. He picked up and dropped loads in Iowa three to four times per month. Some months, Terry did not come into Iowa at all. Terry took dispatch orders out of Coralville three to seven times per week, sent completed logs to Iowa, and received his pay from Iowa. On October 4, 1995, Terry was driving for Heartland in Louisiana. When he tried to lock the double doors of his semi-trailer in hurricane winds, the right door came loose, striking him in the forehead. The blow knocked him unconscious. Later, with some difficulty stemming from dizziness and nausea, Terry drove to Memphis, Tennessee. On October 6, he returned to Atlanta, Georgia, where he saw a doctor on October 11. The doctor determined that Terry had suffered a brain injury. Within days of the injury, Heartland filed an Iowa First Report of Injury. In December 1995, Heartland filed an Iowa First Supplemental Claim Activity Report and began paying weekly benefits.",facts
+70,1873411,1,2,"
+[W]rits of prohibition ... are extraordinary in nature, and the courts of this Commonwealth `have always been cautious and conservative both in entertaining petitions for and in granting such relief.' Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky.2007) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). This Court has said that [extraordinary writs are disfavored, but may be appropriate when a lower court is acting without jurisdiction or acting erroneously within its jurisdiction. Buckley v. Wilson, 177 S.W.3d 778, 780 (Ky.2005). The issue here is not whether the circuit court had jurisdiction to rule on the constitutionality of KRS 218A.202(6) or to enter a discovery order; it clearly did. Indeed, the Cabinet does not allege lack of jurisdiction. Rather, this case falls under the second class of writs, and so the question is whether the court acted erroneously within its jurisdiction by allowing discovery of the materials. To effectuate the policy of granting writs in only extraordinary circumstances, a petitioner claiming that the trial court is acting erroneously within its jurisdiction must show that great and irreparable harm will result, and that there would be no adequate remedy by appeal. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). This test determines whether the remedy of a writ is even available, and only if a petitioner satisfies this test will we turn to the merits. Bender, 343 S.W.2d at 801. In applying this threshold test, the petitioner's allegations are assumed to be true. Thus, the Court assumes here that the statute creates a privilege, and that the circuit court's order breaches that privilege. Applying the test to these facts, [t]here is no adequate remedy by appeal because privileged information cannot be recalled once it has been disclosed. St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky.2005); accord Bender, 343 S.W.2d at 802 (Once the information is furnished it cannot be recalled.... The injury suffered by petitioners, assuming their adversaries have no right to this disclosure under the Civil Rules, will be complete upon compliance with the order and such injury could not thereafter be rectified .... Petitioners have no other adequate remedy.). As to the second requirement, however, a breach of privilege is usually an insufficient showing of harm, at least under the strict terms of the standard, because the breach is not a ruinous injury. St. Luke Hosps., 160 S.W.3d at 775; accord Bender, 343 S.W.2d at 802. Nevertheless, [w]e have previously held that extraordinary relief is warranted to prevent disclosure of privileged documents. St. Luke Hosps., 160 S.W.3d at 775; accord McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky.1992); Bender, 343 S.W.2d at 802-03. This Court has done so under a narrow exception to the harm requirement, namely, the certain special cases exception where the writ can be granted in the absence of a showing of specific great and irreparable injury ... provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration. Bender, 343 S.W.2d at 801. The violation of a privilege is such a case. Id. at 802 (stating, regarding a privilege, that in a certain class of cases, of which this is one, the showing of such grievous injury is not an absolute necessity); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004) (noting that a writ is proper to stop the breaching [of] a tightly guarded privilege). Thus, because the Cabinet has alleged that the circuit court's order will violate a privilege, a writ of prohibition is available as a remedy. Having established that the remedy is available, in part by concluding that the certain special cases exception to the harm requirement applies, this Court may now turn to the merits of the issues presented. Bender, 343 S.W.2d at 802.
+The issue presented by the Cabinet is whether, in light of KRS 218A.202(6), a trial court can order discovery of a KASPER report in a civil case. The Cabinet argues that the statute creates a privilege which bars such discovery. Warner argues that the statute is void as a violation of the separation of powers doctrine in the Kentucky Constitution because it affects practice and procedure of the Court of Justice, and that the statute does not create a privilege. Before addressing these arguments, it is worth noting that, under the civil rules, privileged material is not subject to discovery, regardless of the source of the privilege. CR 26.02(1) says that a trial court shall allow discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. (Emphasis added.) The rule, by its own terms, does not permit discovery of privileged matters. KRE 501 says that privileges can be granted by the Constitution, rules promulgated by this Court, or by statute. Thus, Kentucky rules allow for the creation of statutory privileges. To the extent that the KASPER statute creates a privilege, there is no conflict with the rules. The circuit court erred in finding such a conflict. This, of course, does not resolve the issue, because the statute could still violate the constitution or not actually create a privilege. Turning to those issues, this Court concludes that the legislature has the power to create privileges, both under our rules and as part of its inherent power to enact substantive law, and that the statute indeed creates a privilege. Kentucky evidentiary rules recognize the ability of the legislature to control their contents, presumably including privileges, limited only by section 116 of the Kentucky Constitution. For example, this Court must report rule amendments to the legislature, which may then disapprove the rules or by inaction allow them to become effective. KRE 1102(a). In addition, the legislature may amend any proposal reported by the Supreme Court, and it may adopt amendments or additions to the Kentucky Rules of Evidence not reported to them. KRE 1102(b). More importantly, the legislature has the inherent power to create privileges, as part of its power to enact substantive law. In fact, it has exercised this power many times outside of the Rules of Evidence. [1] The Kentucky Constitution specifically articulates the doctrine of separation of powers, see Ky. Const. §§ 27-28, under which the legislature has the exclusive authority to enact substantive law, see Ky. Const. § 29; Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408, 422 & n. 68 (Ky.2005), whereas this Court has the exclusive authority to enact rules of practice and procedure for the Court of Justice, see Ky. Const. § 116; Elk Horn, 163 S.W.3d at 423 & n. 69. It follows, therefore, that if the privilege conferred by the KASPER statute is substantive law rather than a rule of practice or procedure, it does not violate the separation of powers doctrine. The way the Kentucky Rules of Evidence were enacted avoided determining whether privileges are substantive or procedural. The rules were passed by the legislature, see 1990 Ky. Acts ch. 88; 1992 Ky. Acts ch. 324, and this Court adopted them to the extent that they may have constituted a rule of practice or procedure, see Order, Kentucky Supreme Court, May 12, 1992 (on file with the Clerk of the Court). This Court characterized the adoption of the rules as a joint effort, Mullins v. Commonwealth, 956 S.W.2d 210, 211 (Ky.1997), a polite fiction which recognized that some parts of the rules fell within the sole purview of the legislature (substantive law), whereas others fell within the sole purview of this Court (practice and procedure), but avoided fighting over which was which. This was valuable because deciding which branch has the power to pass a given rule is rarely easy, see generally Robert G. Lawson, Modifying the Kentucky Rules of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 525 (2000), and is an issue of constitutional magnitude, see Ky. Const. § 28 (forbidding any branch from exercis[ing] any power properly belonging to either of the others). Because of this polite fiction, this Court has rarely needed to speak authoritatively on the subject. Doing so in this case, however, is necessary. Privileges are ultimately substantive law, at least those that apply outside the courtroom. Although the bulk of our evidence rules are indeed procedural, fall within the exclusive rulemaking authority of the Kentucky Supreme Court, and may not be amended by independent action of the General Assembly, Lawson, supra, at 572, privileges are not normal evidentiary rules. They are unique. Id. at 576. In separating evidence law into substance and procedure, the best scholars draw a distinction between rules that predominantly foster accuracy in fact-finding and rules that predominantly foster other objectives. They classify the latter as substantive and place privileges in that category. Id. at 580. The disclosure restrictions in the KASPER statute fall into this second category: they foster objectives other than fact-finding, namely, protecting privacy given the confidential and sensitive nature of the records; limiting the effort and expense of providing discovery at will that can be obtained from other sources; and fostering the legislative purpose of collecting drug prescription data to use to combat doctor shopping, and thus to ultimately combat drug abuse and addiction. The statutory restriction on disclosure of KASPER records fosters these objectives, and it obviously applies outside of the courtroom, unlike a rule of practice or procedure would. It has long been assumed that the legislature has the power to create privileges. In fact, [t]he General Assembly has exercised authority over privileges rules for at least several decades. Lawson, supra, at 580. When Kentucky reformed its evidence law, various privileges—including the spousal privilege, the religious privilege, and the psychiatrist-patient privilege—were creatures of statute, and their validity is not in doubt. Id. The fact that most pre-Rules privileges existed in statutes indicates legislative authority to make privileges. Robert G. Lawson, Kentucky Evidence Law Handbook § 5.00[2], at 330 (4th ed. 2004). Although it is true that the Court rightfully la[ys] claim to exclusive authority over matters of `practice and procedure' under the Kentucky Constitution, it is quite notable that the court has had hundreds of opportunities to claim exclusive authority over privileges and has never made even a slight movement in that direction. Id. The Court has addressed this issue in only a few cases, but they all show respect for the legislature's power to make privileges. The first case was Mullins v. Commonwealth, 956 S.W.2d 210 (Ky.1997). In Mullins, the Court addressed whether the legislature unconstitutionally encroached on the Court's rulemaking power by creating an exception to the spousal privilege in child abuse cases. This Court upheld the statute, stating: We find no constitutional or procedural fault with the legislation. Id. at 211. Although the Court did not directly say that privileges were substantive law, its decision and observations seem to chart a course toward the position and recognize a most substantial role for the General Assembly in the definition of evidentiary privileges. Lawson, Modifying the Kentucky Rules of Evidence, supra, at 580. Since Mullins, this Court has continued to recognize the validity of statutory privileges. The next case after Mullins, Sisters of Charity Health Systems., Inc. v. Raikes, 984 S.W.2d 464, 468 (Ky.1998), concerned a privilege for peer review material in medical malpractice suits. This Court upheld the privilege, but decided that because the statute was enacted before the Rules of Evidence, the case did not raise the issue of whether a statutory privilege enacted after the effective date of the KRE violates the Court's rule making authority under KRE 1102. Id. at 468 n. 3. However, the timing is irrelevant; the exclusive power of this Court over rules of practice and procedure has long been recognized, even before the 1976 Judicial Article. Either the statutory privilege encroached on this Court's exclusive power or it did not. In Raikes the Court concluded that it did not. The matter was clarified in Manns v. Commonwealth, 80 S.W.3d 439 (Ky.2002). In Manns, the Court discussed a statutory provision creating a privilege for juvenile records. Id. at 444. The Court noted that [t]he confidentiality afforded to juvenile records was created by the legislature, KRS 610.340(1), not the judiciary, id., but did not strike down the provision. However, in the same case, the Court struck down another statutory provision, which mandated that trial courts admit certain impeachment evidence, because that law purported to amend a rule which was procedural in the purest sense. Id. at 446. The Manns case thus follows the scholarly consensus: rules that predominantly foster accuracy in fact-finding by affecting what happens inside a courtroom (such as mandatory admissibility of impeachment evidence) are procedural and within the exclusive authority of the Court; however, those that predominantly foster other objectives and have an out-of-court effect (such as keeping juvenile records confidential due to privacy concerns) are substantive and within the power of the legislature. Lawson, Modifying the Kentucky Rules of Evidence, supra, at 580. Given that the KASPER statute fosters a similar privacy objective and has a similar out-of-court effect to the statute as in Manns, that case supports the holding here that the statutory grant of privilege in KASPER is substantive and does not encroach on the Court's powers over practice and procedure. This Court disagrees with the Court of Appeals that the legislature showed no intent to create a privilege when it prohibited disclosure of KASPER records. The essence of a privilege is to prohibit disclosure, and thus also discovery. The privileges in the Kentucky Rules of Evidence, with the exception of the husband-wife privilege, refer to the [g]eneral rule of privilege, which is defined as the right to refuse to disclose and to prevent any other person from disclosing the privileged information. [2] KRE 503(b), 505(b), 506(b), 507(b); see also KRE 508(a). This is precisely what the KASPER statute does: it expressly prohibits [disclosure to any person or entity ... unless specifically authorized by this section, including disclosure in the context of a civil action where the disclosure is sought either for the purpose of discovery or for evidence. KRS 218A.202(6). Although the intent of the legislature certainly would have been more perfectly expressed if the statute specifically described the prohibition on disclosure as a privilege, this Court does not generally require statutes to use magic words. See, e.g., Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 166-67 & n. 41 (Ky.2009). This Court cannot meaningfully distinguish this grant of privilege from many others the courts have long recognized and applied in civil cases, including the clergy-penitent privilege, KRE 505; the counselor-client privilege, KRE 506; and the psychotherapist-patient privilege, KRE 507—in addition to the many other statutory privileges. The KASPER statute prohibits disclosure and discovery, just as any privilege would. This Court also disagrees with the Court of Appeals that the exceptions to the prohibition on disclosure raise doubts about the legislature's intent to create a privilege. Most privileges in the rules of evidence also include exceptions. See KRE 503(d) (listing five exceptions to the attorney-client privilege); KRE 506(d) (listing two exceptions to the counselor-client privilege); KRE 507(d) (listing three exceptions to the psychotherapist-patient privilege). Likewise, almost all statutory privileges include exceptions. [3] These privileges should not be cast aside simply because they are not absolute by their own terms. Likewise, it is no answer that KASPER cannot invoke a privilege because the right to refuse to disclose is held by the Commonwealth, not the person whose privacy is at stake. Our evidentiary rules include the confidential informant privilege, which is exercised not by the informant who seeks to keep his identity secret, but by the public entity to which the information was furnished. KRE 508(b). This privilege, like all the others except the spousal privilege, refers to the general rule of privilege, indicating that this privilege is the same as the others. Indeed, this Court has never doubted the validity of the confidential informant privilege on this basis. The exceptions in the statute are rather limited and do not undermine the general prohibition on disclosure. For example, a pharmacist may receive a record only on a certification that it will be used for the purpose of providing medical or pharmaceutical treatment to a bona fide current patient. KRS 218A.202(6)(e). As another example, peace officers may receive a record only if they are engaged in a bona fide specific investigation involving a designated person, KRS 218A.202(6)(b), and they can only share records with other peace officers if the recipients could get the records on their own, and even then only if both officers document who received the records and when. Id. Subsection (12) of the statute leaves no doubt that the legislature wanted the disclosure prohibitions to be taken seriously. Under that subsection, any intentional, unauthorized disclosure is a Class D felony for the first offense and Class C for each subsequent offense. (That a violation of the statute's disclosure prohibition is a criminal offense further underscores the statute's substantive nature.) In short, the legislature's intent to create a privilege in the statute is clear enough, and it obviously found the privilege to be important. The only way to conclude that the legislature did not have the power to make a privilege here is if it is unconstitutional. As discussed above, the privilege is constitutional under the separation of powers doctrine because it is an enactment of substantive law. However, as this Court has recently held, the privilege may be unconstitutional as applied in some criminal cases. Cabinet v. Bartlett, 311 S.W.3d 224 (Ky.2010). This is because no statute can defeat a criminal defendant's constitutional rights to exculpatory evidence or to confront witnesses against him. See generally Commonwealth v. Barroso, 122 S.W.3d 554, 558-63 (Ky.2003). To summarize Bartlett, to the extent that the statute purports to prohibit the government from disclosing potentially exculpatory information in a criminal case, it would violate a criminal defendant's rights under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and Section 11 of the Kentucky Constitution. Bartlett, 311 S.W.3d at 226-28. These constitutional rights must be vigorously protected by courts. However, as noted above, this applies only to certain discovery in criminal cases, and it does not require striking the entire statute down as unconstitutional. As to civil matters, there is a lesser constitutional protection. Procedural due process in a civil case generally requires only notice, an opportunity to be heard and to present evidence, an impartial tribunal, and a decision on the record for appeal. See generally Goldberg v. Kelly, 397 U.S. 254, 267-71, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). There is no due process right to get all possible evidence in the civil context, which has long been shown by the use of evidentiary privileges, first at common law, then as codified by rule or statute. Consequently, unlike in the criminal context, no constitutional bar precludes courts from applying the KASPER privilege in civil disputes such as this one. In fact, if this Court were to ignore the statutory restrictions in KASPER, this Court would itself violate the separation of powers doctrine by ignoring a valid statutory grant of privilege, which is within the legislature's purview. Last, it is worth noting that even if this Court were to find that KRS 218A.202 infringed on this Court's exclusive authority to promulgate rules of practice and procedure, the statute would nevertheless be entitled to comity. It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature. Ex parte Farley, 570 S.W.2d 617, 624 (Ky. 1978). Thus this Court accepts reasonable encroachments on our powers via the rule of comity. Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky.1987). Any alleged encroachment here would be reasonable. Despite the statute, parties to civil suits may still get information about a person's prescription drug history from more direct sources: physicians who prescribe drugs, pharmacists who dispense them, or from the drug recipient. What they cannot do is get the more convenient compilation of records the Cabinet has. The statute does not ultimately prevent a civil litigant from getting discovery of drug histories, nor does it ultimately prevent a court from deciding to admit the histories into evidence. This is reasonable. As a final note, this Court must make it clear, however, that such information as that which falls under the KASPER privilege is no different than any other privileged material when it comes to the court's power and ability to obtain that material. The court always has the inherent authority to review any act of the legislature for constitutionality, and the content of materials or data produced based on a statute to determine whether an exception to a privilege applies. Here, however, there is no question that the material at issue is the very report made privileged by the statute, and as the parties admit, no exception applies. Thus there is no need for an in camera review in this case.",analysis
+71,3163488,1,2,"[¶5.] “Questions of law concerning statutory construction are reviewed de novo.” In re West W. River Elec. Ass’n, Inc., 2004 S.D. 11, ¶ 14, 675 N.W.2d 222, 226 (citing Goetz v. State, 2001 S.D. 138, ¶ 8, 636 N.W.2d 675, 678). No deference is given to the legal conclusions of the parole board or the circuit court. See id. (quoting In re Nw. Pub. Serv. Co., 1997 S.D. 35, ¶ 13, 560 N.W.2d 925, 927).",standard of review
+72,1284866,1,1,"The threshold issue in this appeal is whether MEQC had jurisdiction over the CPA/UPA application for the designation of a corridor that CPA/UPA filed with MEQC on April 8, 1975. If, as appellants contend, MEQC did not have jurisdiction over the application, then this court would have to vacate the judgment of the district court panel and direct CPA/UPA to begin bargaining with the individual counties and municipalities through which it seeks to construct its HVTL, as it was in the process of doing at the time it voluntarily submitted its project to the jurisdiction of the PPSA. The statutory basis of appellants' claim that MEQC lacked jurisdiction over the routing of the HVTL is Minn.St. 1976, § 116C.67, the savings clause of the PPSA. Section 116C.67 provides in part: The provisions of sections 116C.51 to 116C.69 shall not apply to    high voltage transmission lines, the construction of which will commence prior to July 1, 1974; provided, however, that within 90 days following the date of enactment, the affected utility shall file with the council a written statement identifying such transmission lines, their planned location, and the estimated date for commencement of construction. CPA/UPA initially availed itself of the savings clause and documented its reasons for being exempted from the PPSA. All the parties agree that when MEQC granted their request on the ground that they had demonstrated that construction had begun prior to the July 1, 1974, deadline, it lost jurisdiction over the siting of the HVTL. The question is whether, once having lost jurisdiction over the project, such jurisdiction could be regained. The district court panel held that because § 116C.67 was a grandfather clause, it furnished the utilities with a special privilege, which they could, and did, relinquish and that the MEQC was acting properly when it accepted jurisdiction over the siting of the HVTL. Because this conclusion is based on legal rather than factual considerations, the reviewing court is not bound by the decision of the agency and need not defer to agency expertise. Minn.St. 15.0425. See, N. L. R. B. v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839, 849 (1965). Moreover, as this court noted in Reserve Mining Co. v. Herbst, Minn., 256 N.W.2d 808, 822 (1977), We are of the opinion that in reviewing the decisions of administrative agencies this court performs essentially the same function as the district court and is governed by the same scope of review. Accordingly, the usual rule requiring deference to trial court decisions does not apply. Thus, the fact that the district court panel held that MEQC had jurisdiction over the HVTL application is not binding on this court, which can independently review the evidence and come to its own conclusion. Both respondents MEQC/MEA and CPA/UPA label § 116C.67 as a grandfather clause. [23] All cases construing grandfather clauses share one thought in common —namely, that it is unfair to penalize the regulated party for something begun prior to the enactment of the statute. Thus, it would be unfair to penalize CPA/UPA for starting construction of the HVTL prior to the enactment of the PPSA, and the savings clause was probably included to preclude such a result. What makes this case different from all others in which savings clauses have been construed by the courts is that here the party to be regulated is asking for regulation. In all the reported cases, the appellant is fighting to get or retain his exemption; never has a heretofore-exempt party sought to relinquish being excluded from the burdensome regulations enacted by the legislature. [24] For this reason, the existing case law on the subject of grandfather clauses becomes largely irrelevant. Another way of conceptualizing the issue is in jurisdictional terms. Appellants argue that the legislature specifically limited MEQC's subject-matter jurisdiction to those HVTLs whose construction was to begin after July 1, 1974. Under this theory, once MEQC decided that CPA/UPA had begun construction on the HVTL prior to that date, it had no jurisdiction over it. [25] CPA/UPA responds by alleging that the savings clause defines not subject-matter jurisdiction but rather personal jurisdiction of MEQC. Since the subject matter of the PPSA is the siting of electric generating plants and HVTLs in Minnesota, and CPA/UPA plan to construct a HVTL in Minnesota, MEQC has subject-matter jurisdiction over questions surrounding its construction. The distinction is an important one because subject-matter, unlike personal, jurisdiction cannot be conferred by consent of the parties. Huhn v. Foley Bros. Inc., 221 Minn. 279, 286, 22 N.W.2d 3, 8 (1946). Thus, if the court were to decide that the savings clause defined the subject-matter jurisdiction of the PPSA, MEQC was acting ultra vires by accepting CPA/UPA's application of April 8, 1975. [26] The savings clause can also be viewed in terms of the PPSA's retroactive or prospective application. From this perspective, the question becomes whether the legislature intended to regulate only construction begun after July 1, 1974, or that begun prior to July 1, 1974, as well. Minn.St. 645.21 provides that [n]o law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature. [27] Appellants contend that by accepting CPA/UPA's application MEQC was applying the statute retroactively. In response, it is argued that as of May 24, 1973, MEQC acquired jurisdiction over all siting decisions. Thus, when it decided to accept jurisdiction on April 8, 1975, it was only applying the statute prospectively. From the preceding discussion it becomes obvious that the parties are assuming their conclusions by labeling the savings clause as a grandfather clause or speaking of personal as opposed to subject matter jurisdiction or of retroactive as opposed to prospective application. The question must be resolved, not by applying labels, but by determining what the legislature intended to accomplish with this section of the PPSA. By enacting the PPSA, the legislature sought to ensure that the future siting of power plants and transmission lines would be carried out in an orderly fashion according to a rational design, rather than haphazardly, and possibly unnecessarily, at the whim of individual public utilities whose decisions might fail to consider or comport with the public interest. Minn.St. 1976, §§ 116C.55 to 116C.60. The two crucial concepts that permeate the entire act are that the process should be orderly and that there should be public participation in all stages of agency decision-making. It seems obvious that the legislature intended the savings clause to protect public utilities whose projects had already begun from being overly burdened by the new statute. Recognizing that such projects often took many years to complete, the legislature did not wish to impose conditions on the utilities for which they had been unable to plan. It is also possible that the legislature thought that such a moratorium would allow the state to develop its guidelines and standards without seeking to utilize the process immediately. Since the legislature probably did not expect a utility to seek to be regulated if it had an option, whether the legislature intended to permit utilities first to claim exemption from the operation of the PPSA and then later to submit to its procedures is not at all clear. In our effort to ascertain its likely intent, had it considered the question, we have been guided by the twin legislative goals of ensuring the orderliness of the decision-making process and providing the opportunity for public participation therein. Appellants contend that the administrative process, as it unfolded in this case, was neither orderly nor oriented toward meaningful public participation. Their position is expressed in the FACT brief as follows: The Act may be a pragmatic way to site long power lines and large power plants. However, the way in which the PPSA was applied in this case to a very delicate local situation defied the Act's objective to promote local and state cooperation. The inflammatory nature of this case may be due in part to the magnitude of the HVTL, but it may also be due to the fact that the process was yanked from the local level by the power companies which belatedly seized upon new legislation to circumvent the local political process. Because of the history of this case, the reliance of the citizens on the process which existed at the local level, and the intent of the legislature not to force the new legislation on pending projects, remand to the counties to finish their proceedings appears to be the alternative most likely to resolve the existing distrust and ill will. Respondents argue, in response to appellants' claims, (1) that the restrictions placed on the project by local county boards were not justified either in fact or in law and would have been corrected by available legal process; and (2) that the utilities submitted to the authority of MEQC to protect the project from future attack on the ground that they were improperly evading the restraints imposed upon them by the adoption of the PPSA. It must be acknowledged that, even after reflection, ascertainment of legislative intent is difficult. Although the legislative goals of orderliness and public participation could have been better achieved had the administrative procedures been fully developed prior to MEQC's decision to accept jurisdiction over the routing of this HVTL, centralized decision-making is more orderly than numerous duplicative local actions, and all interested citizens were given an opportunity to be heard in the public hearings conducted at each stage of the process. After long and serious deliberation, we have decided that the legislature would have intended MEQC to have jurisdiction based on our residual conviction that the legislature would have preferred the PPSA to apply to the fullest extent reasonably possible. Therefore, the legislature must have intended to permit the utilities to waive the exception it had carved out in their favor, even though exemption had previously been claimed and granted.",jurisdiction
+73,4557494,1,1,"Ronald L. Lauhead was charged with five counts of first degree sexual assault of a child and five counts of child abuse. Before trial, he requested a competency evaluation pursuant to Neb. Rev. Stat. § 29-1823 (Reissue 2016). Lauhead was initially evaluated at the Lincoln Regional Center (the LRC) and found to be incompetent to stand trial. The district court ordered him to continue treatment at the LRC until his competency to stand trial could be restored. Lauhead was subsequently reevaluated by two doctors. Both doctors found Lauhead to be competent and recommended that he be provided accommodations. The district court found Lauhead competent to stand trial. Lauhead, subsequently, waived his right to a jury trial, and a bench trial based upon stipulated facts was held on the amended charges of one count of attempted first degree sexual assault of a child and one count of child abuse. Lauhead was found guilty and sentenced to incarceration for terms of 20 to 22 years and 3 years, respectively, to be served concurrently. Lauhead appeals.",introduction
+74,2058953,1,3,"For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court of St. Clair County is affirmed. Appellate court judgment reversed; circuit court judgment affirmed.",conclusion
+75,2646417,1,4,"A. The Director may employ a baseline methodology as a starting point for considering material injury. On judicial review, the district court held that “[t]he Director did not abuse discretion or act outside his authority in utilizing a ‘minimum full supply’ or ‘reasonable in-season demand’ baseline for determining material injury.” The court described the Director’s methodology as follows: 10 In determining material injury to senior rights the Director considered a “baseline” quantity independent of the decreed or licensed quantity. The baseline quantity represented the amount of water predicted from natural flow and storage needed to meet in-season irrigation requirements and reasonable-carryover. The Director then determined material injury based on shortfalls to the predicted baseline as opposed to the decreed or licensed quantities. The district court next responded to the Coalition’s allegations that the Director’s methodology was improper. On first impression it would appear that the use of such a baseline constitutes a re-adjudication of a decreed or licensed water right. As stated by the Hearing Officer “[t]he logic of [the Coalition] in objecting to the Director’s use of a minimum full supply is difficult to avoid.” However, on closer examination the use of baseline is a necessary result of the Director implementing the conditions imposed by the [Rules] with respect to regulating junior rights to protect senior storage rights. Put differently, senior right holders are authorized to divert and store up to the full decreed or licensed quantities of their storage rights, but in times of shortage juniors will only be regulated or required to provide mitigation subject to the material injury factors set forth in [Rule] 042. Rule 042 of the [Rules] lists a number of factors the Director is to consider in determining material injury to senior rights. [Rule] 042.01a-h. As this Court concluded previously, the total combined decreed quantity of the natural flow and storage rights can exceed the amount of water necessary to satisfy in-season demands plus reasonable carry-over. Simply put, pursuant to these factors a finding of material injury requires more than shortfalls to the decreed or licensed quantity of the senior right. Although the [Rules] do not expressly provide for the use of a “baseline” or other methodology, the Hearing Officer concluded that: “Whether one starts at the full amount of the licensed or decreed right and works down when the full amount is not needed or starts at base and works up according to need, the end results should be the same.” Ultimately the Hearing Officer determined that the use of a baseline estimate to represent predicted in-season irrigation needs was acceptable provided the baseline was adjustable to account for weather variations and that the process satisfied certain other enumerated conditions. This Court affirms the reasoning of the Hearing Officer on this issue. (citations to record omitted). On appeal, the Coalition asserts that the district court erred in affirming the Director’s baseline methodology. The Coalition argues that any methodology founded upon the prediction of the minimum amount of water actually necessary to satisfy a senior water right holder’s irrigation and storage needs is contrary to the doctrine of prior appropriation as established by Idaho constitutional, statutory, and case law. A decreed or licensed water right, contends the Coalition, creates a presumption that the full extent of the right has already been defined by its beneficial use. The Coalition further argues that junior water right holders bear the burden of 11 proving any defenses against the seniors’ rights. In effect, the Coalition asserts, the Director’s methodology created a de facto defense for junior water right holders and forces senior water right holders to re-prove their decreed or licensed rights. The Groundwater Appropriators, Department and the City advance a variety of responsive arguments. 1. The propriety of a baseline methodology is properly before the Court. To begin, the Groundwater Appropriators and Department each contend that this issue is moot because the Director’s final order described a modified methodology referred to as “reasonable in-season demand” rather than “minimum full supply.” In a similar vein, the Groundwater Appropriators also argue that, although the Coalition frames its argument on appeal as a challenge to any methodology that incorporates a predictive baseline analysis of senior water rights holders’ needs, the Coalition’s request for judicial review and the present appeal are specifically limited to the Director’s minimum full supply methodology and a ruling from this Court beyond that narrow scope would constitute an impermissible advisory opinion. They contend that the propriety of the Director’s modified methodology is not properly before this Court on appeal because it was created subsequent to the district court’s order on petition for judicial review and is currently subject to judicial review by the district court. These arguments are based upon the premise that the district court’s judicial review was limited to the Director’s original iteration of the minimum full supply methodology. As noted earlier, this Court may only consider those issues raised before the district court. Clear Springs Foods, Inc., 150 Idaho at 797, 252 P.3d at 78. It is true that the Director entered his final order regarding the modified methodology more than eight months after the court’s entry of its order on petition for judicial review. Since the district court did not review this final methodology order, the findings of fact that shape that methodology and any modifications to the methodology are not properly before this Court. However, the district court did not merely address the minimum full supply methodology. Rather, it adopted the hearing officer’s conclusion that “the use of a baseline estimate to represent predicted in-season irrigation needs was acceptable provided the baseline was adjustable to account for weather variations and that the process satisfied certain other enumerated conditions.” Thus, the district court reviewed, as a matter of law, the propriety of predicting material injury based upon shortfalls to a chosen baseline quantum of senior water rights holders’ in-season irrigation and reasonable carryover needs. As previously stated, the 12 nuances of the final methodology order are not properly before this Court. 6 Id. However, given the legal issue that the district court decided, we may determine whether and for what purposes a baseline methodology is consistent with Idaho law. The Court’s consideration and resolution of this question will resolve a real and substantial controversy; therefore, the issue is not moot and an opinion resolving the matter will not be advisory. See Fenn v. Noah, 142 Idaho 775, 779, 133 P.3d 1240, 1244 (2006); State v. Rhoades, 119 Idaho 594, 597-98, 809 P.2d 455, 458-59 (1991). 2. The Director may, consistent with Idaho law, employ a baseline methodology for management of water resources and as a starting point in administration proceedings. Although the parties direct their briefing primarily to the issue of utilization of the baseline methodology in the context of determining a water call, as recognized by the hearing officer and district court, the baseline is used also as a predictive tool in preparing the Director’s pre-season plan for allocation of water. That is, the Director has used it both for management of the resource and in determining material injury in the context of a water call. With regard to the usage of the baseline in the management context, the Director is required to observe the wellestablished legal principles of Idaho’s prior appropriation doctrine. Additionally, when utilizing the baseline in the administration context, the Director must abide by established evidentiary standards, presumptions, and burdens of proof. It bears mentioning at this point that this is not a water rights case. By virtue of the Snake River Basin Adjudication, the water rights involved in this proceeding are well known and established. This is a water management case wherein the management authority and discretion of the Director are at issue. However, both management and administration must be conducted in accordance with the basic tenets of the prior appropriation doctrine. The prior appropriation doctrine is comprised of two bedrock principles―that the first appropriator in time is the first in right and that water must be placed to a beneficial use. Article XV, section 3 of the Idaho Constitution provides that “[t]he right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied . . . . Priority of appropriation shall give the better right as between those using the water . . . .” These two doctrines encouraged settlers to divert surface water from its natural course and put it to 6 Woven throughout the parties’ briefing on appeal are attacks upon the sufficiency of the evidence supporting the findings of the Director and the district court. The challenged findings are central to the final iteration of the Director’s methodology for determining material injury. Since the district court’s order on petition for judicial review, which this Court now reviews on appeal, did not address the Director’s final order on methodology, the factual basis underlying the final methodology order is not properly before this Court at this time. 13 beneficial use, thus leading to the development of Idaho’s arid landscape. Pocatello v. State, 145 Idaho 497, 502, 180 P.3d 1048, 1053 (2008). This Court long ago held that prior appropriation also governs interests in groundwater. Bower v. Moorman, 27 Idaho 162, 181, 147 P. 496, 502 (1915) (citing Le Quime v. Chambers, 15 Idaho, 405, 98 P. 415 (1908)). The concept that beneficial use acts as a measure and limit upon the extent of a water right is a consistent theme in Idaho water law. E.g., I.C. § 42-220 (“neither [a] licensee nor anyone claiming a right under [a] decree, shall at any time be entitled to the use of more water than can be beneficially applied on the lands for the benefit of which such right may have been confirmed.”) AFRD #2, 143 Idaho 862, 880, 154 P.3d 433, 451 (2007) (“Neither the Idaho Constitution, nor statutes, permit irrigation districts and individual water right holders to waste water or unnecessarily hoard it without putting it to some beneficial use.”); Wash. State Sugar Co. v. Goodrich, 27 Idaho 26, 44, 147 P. 1073, 1079 (1915) (“It is the settled law of this state that no person can, by virtue of a prior appropriation, claim or hold more water than is necessary for the purpose of the appropriation, and the amount of water necessary for the purpose of irrigation of the lands in question and the condition of the land to be irrigated should be taken into consideration.”); Conant v. Jones, 3 Idaho (3 Hasb.) 606, 612-13, 32 P. 250, 251 (1893) (prior appropriator may ultimately claim entirety of his original appropriation, but he is only entitled to the amount of water he actually puts to beneficial use during the time it takes him to prepare his land for cultivation). This case illustrates the tension between the first in time and beneficial use aspects of the prior appropriation doctrine. In the context of developing a water allocation plan for an upcoming irrigation season, the Idaho Legislature has authorized the Director “to adopt rules and regulations for the distribution of water from the streams, rivers, lakes, ground water, and other natural water resources as shall be necessary to carry out the laws in accordance with the priorities of the rights of the users thereof.” I.C. § 42-603. The Director has done so in the Conjunctive Management Rules (CM Rules), which were approved by the Legislature and became effective on October 7, 1994. 7 In AFRD #2, after discussing and upholding the CM 7 Existing law was incorporated into the CM Rules, as noted by the Court in AFRD #2: CM Rule 20.02 provides that: “[T]hese rules acknowledge all elements of the prior appropriation doctrine as established by Idaho law.” “Idaho law,” as defined by CM Rule 10.12, means “[T]he constitution, statutes, administrative rules and case law of Idaho.” Thus, the Rules incorporate Idaho law by reference and to the extent the Constitution, statutes and case law have identified the 14 Rules, this Court recognized the critical role of the Director in managing the water resource to accommodate both the first in time and beneficial use aspects: “Somewhere between the absolute right to use a decreed water right and an obligation not to waste it and to protect the public’s interest in this valuable commodity, lies an area for the exercise of direction by the Director.” AFRD #2, 143 Idaho at 880, 154 P.3d at 451. The authority of the Director to prepare and implement a water allocation plan as part of his management responsibility has not been challenged by any party in this proceeding, perhaps in recognition of the fact that an interconnected system of ground and surface water as complicated as the Snake River Basin, with as many variables, moving parts, and imponderables that present themselves during any particular irrigation season, simply cannot be managed without a great deal of prior analysis and planning toward determining the proper apportionment of water to and among the various water right holders according to their priority. The use of a baseline methodology in this context is, therefore, not inconsistent with Idaho law. The more difficult issue lies in the use of a baseline in the administration context. In this case, the Director used the baseline methodology, both as a starting point for consideration of the Coalition’s call for administration and in determining the issue of material injury. The hearing officer approved the Director’s methodology on both counts and the district court affirmed. The hearing officer reasoned that (1) it is presumed that a senior water right holder is entitled to its decreed or licensed amount of water; (2) a senior water right holder that alleges material injury must do so under oath, along with a description of its water right and the facts upon which it bases its allegation; and (3) the Coalition provided evidence of its material injury. The hearing officer next expressly recognized that “[t]he process utilized in this case deviated from that anticipated by the Supreme Court” in AFRD #2, because the burden did not shift to the junior ground water users to show a defense to the Coalition’s delivery call. 8 The hearing officer then quoted the Director’s testimony that the Director believed that the initial burden of determining the extent of material injury should not rest with junior water rights holders, but rather with proper presumptions, burdens of proof, evidentiary standards and time parameters, those are a part of the CM Rules. 143 Idaho at 873, 154 P.3d at 444. 8 The hearing officer also pointed out that the “Director did not have the benefit of AFRD #2 when [the Coalition] made its request for administration in this case.” 15 IDWR. The Director reasoned that, like the senior water right holders, the junior right holders possessed decreed rights such that he: didn’t think it was appropriate to say, okay, prove that you’re not causing any injury . . . . ... And so in developing this May 2nd Order, I tried to develop a process under which the State would take the initial burden of making these determinations . . . . ... And during that hearing process either side of this . . . could have and probably would have brought forward information about why 1995 was or wasn’t a good year to use for the minimum full supply. And certainly, in that process I would have been open to considering other methodologies, other criteria. But I thought it was important that the State take the first step to try to bring some resolution to this. The idea was that doing it this way might bring the two sides closer together. Although, with these statements, the Director expressly rejected the concept of placing the burden of proof upon junior water right holders, the hearing officer held that the Director’s methodology “makes sense and is consistent with the construction of the Conjunctive Management Rules,” although the methodology failed to anticipate the allocation of the burden of proof we articulated in AFRD #2. Recognizing the Director’s authority and responsibility to investigate claims when delivery calls are made, the hearing officer reasoned that “[w]hether the Director approached the case applying the legal burdens established in AFRD #2 or not, the Director had the authority and the responsibility to develop the facts upon which a well-informed decision could be made and to make a decision from the best information developed.” Although the hearing officer stated that “[the Groundwater Users] and [the City] have the burden of establishing defenses to [the Coalition’s] claims,” it concluded that “[t]he parties may rely on facts developed by the Director,” and affirmed application of the Director’s baseline methodology. In evaluating the Director’s use of the baseline in considering and determining the issue of material injury, and whether that procedure transgressed provisions of Idaho law, it is appropriate to look for guidance to AFRD #2. There, we stated: CM Rule 42 lists factors “the Director may consider in determining whether the holders of water rights are suffering material injury and using water efficiently and without waste. . . .” IDAPA 37.03.11.42.01 Such factors include the system, diversion, and conveyance efficiency, the method of irrigation water application and alternate reasonable means of diversion. Id. American Falls argues the Director is not authorized to consider such factors before administering water rights; rather, the Director is “required to deliver the full quantity of decreed 16 senior water rights according to their priority” rather than partake in this reevaluation. . . . Clearly, even as acknowledged by the district court, the Director may consider factors such as those listed above in water rights administration. Specifically, the Director “has the duty and authority” to consider circumstances when the water user is not irrigating the full number of acres decreed under the water right. If this Court were to rule the Director lacks the power in a delivery call to evaluate whether the senior is putting the water to beneficial use, we would be ignoring the constitutional requirement that priority over water be extended only to those using the water. 143 Idaho at 876, 154 P.3d at 447. We went on to note that the Director has discretionary authority in a water management case that is not available to him in a water rights case: “[r]easonableness is not an element of a water right; thus, evaluation of whether a diversion is reasonable in the administration context should not be deemed a re-adjudication.” Id. at 877, 154 P.3d at 448. While recognizing the Director’s authority to evaluate the issue of beneficial use in the administration context, we stated: While there is no question that some information is relevant and necessary to the Director’s determination of how best to respond to a delivery call, the burden is not on the senior water rights holder to re-prove an adjudicated right. The presumption under Idaho law is that the senior is entitled to his decreed water right, but there certainly may be some post-adjudication factors which are relevant to determination of how much water is actually needed. The Rules may not be applied in such a way as to force the senior to demonstrate an entitlement to the water in the first place; that is presumed by the filing of a petition containing information about the decreed right. The Rules do give the Director the tools by which to determine “how the various ground and surface water sources are interconnected, and how, when, where and to what extent the diversion and use of water from one source impacts [others]. Once the initial determination is made that material injury is occurring or will occur, the junior then bears the burden of proving that the call would be futile[,] or to challenge, in some other constitutionally permissible way, the senior’s call. Id. at 878, 154 P.3d at 449. Thus, any determination of a delivery call requires application of established evidentiary standards, legal presumptions and burdens of proof. Based on the foregoing, we conclude as follows: 1. The Director may develop and implement a pre-season management plan for allocation of water resources that employs a baseline methodology, which methodology must comport in all respects with the requirements of Idaho’s prior 17 appropriation doctrine, be made available in advance of the applicable irrigation season, and be promptly updated to take into account changing conditions. 2. A senior right holder may initiate a delivery call based on allegations that specified provisions of the management plan will cause it material injury. The baseline serves as the focal point of such delivery call. The party making the call shall specify the respects in which the management plan results in injury to the party. While factual evidence supporting the plan may be considered along with other evidence in making a determination with regard to the call, the plan by itself shall have no determinative role. 3. Junior right holders affected by the delivery call may respond thereto, and shall bear the burden of proving by clear and convincing evidence that the call would be futile or is otherwise unfounded. A determination of the call shall be made by the Director in a timely and expeditious manner, based on the evidence in the record and the applicable presumptions and burdens of proof. B. The Conjunctive Management Rules require that out-of-priority diversions only be permitted pursuant to a properly enacted mitigation plan. The Coalition and the City dispute whether the Director timely administered the delivery call. The district court held that the Director abused his discretion because he failed to require mitigation of material injury to reasonable carry-over storage in the season in which the injury occurs. In effect, the City completely disregards the holding of the district court, relying instead upon this Court’s statement in AFRD #2 that a strict schedule cannot be imposed upon the delivery call process due to the complexity of the factual determinations inherent to the process. 143 Idaho at 875, 144 P.3d at 446. However, the issue considered by the district court in this case was narrower than that before this Court in AFRD #2. Here, the district court assessed whether the Director’s “wait and see” approach to mitigating material injury to carry-over storage rights complied with the Conjunctive Management Rules. Based on the plain language of Rule 43, the district court concluded that the Director’s approach was contrary to the Rule’s requirement that the mitigation plan contain contingency provisions to protect senior rights in the event that mitigation water becomes unavailable. Rule 42 provides that determination of material injury must account for the fact that: 18 [T]he holder of a surface water storage right shall be entitled to maintain a reasonable amount of carry-over storage to assure water supplies for future dry years. In determining a reasonable amount of carry-over storage water, the Director shall consider the average annual rate of fill of storage reservoirs and the average annual carry-over for prior comparable water conditions and the projected water supply for the system. IDAPA 37.03.11.042.01.g. (emphasis added). Rule 40 provides that once the Director makes a determination of material injury, the Director shall: a. Regulate the diversion and use of water in accordance with the priorities of rights of the various surface or ground water users whose rights are included within the district, provided, that regulation of junior-priority ground water diversion and use where the material injury is delayed or long range may, by order of the Director, be phased-in over not more than a five-year (5) period to lessen the economic impact of immediate and complete curtailment; or b. Allow out-of-priority diversion of water by junior-priority ground water users pursuant to a mitigation plan that has been approved by the Director. IDAPA 37.03.11.040.01.a,b (emphasis added). In other words, when the Director responds to a delivery call regarding diversions occurring within an area having a common ground water supply in an organized water district, the Director shall either regulate and curtail the diversions causing injury or approve a mitigation plan that permits out-of-priority diversion. Id. Nothing in the Director’s order suggests that he intended a phased-in mode of curtailment, and therefore the option to permit out-of-priority diversion pursuant to a mitigation plan is the applicable provision in the instant case. Where a mitigation plan is the response to material injury, the Rules provide that the Director must consider several factors to determine whether the proposed plan “will prevent injury to senior rights,” including: Whether the mitigation plan provides replacement water supplies or other appropriate compensation to the senior-priority water right when needed during a time of shortage even if the effect of pumping is spread over many years and will continue for years after pumping is curtailed. A mitigation plan may allow for multiseason accounting of ground water withdrawals and provide for replacement water to take advantage of variability in seasonal water supply. The mitigation plan must include contingency provisions to assure protection of the seniorpriority right in the event the mitigation water source becomes unavailable. IDAPA 37.03.11.043.03.c (emphasis added). As the district court held, this language is unambiguous. Thus, while the Rules permit a mitigation plan to “wait and see” how much water is necessary to protect against material injury, they require that such plan identify prospective 19 means by which water will be provided in order to prevent material injury. As the district court stated, the system established by the Director causes . . . the prior appropriation doctrine [to be] turned upside down. Therefore, unless assurances are in place that carry-over shortfalls will be replaced if the reservoirs do not fill, the risk of shortage ultimately falls on the senior. As such, the very purpose of the carry-over component of the storage right – insurance against risk of future shortage – is effectively defeated. We affirm the district court’s holding that the Director abused his discretion by failing to approve a mitigation plan that provided contingency plans by which junior water right holders would ensure that material injury would not occur to the seniors’ carry-over storage rights. C. The Coalition failed to preserve its right to appeal the district court’s failure to order the Director to issue a single final order. The Director adopted the hearing officer’s conclusion that refinements to the methodology for determining material injury were necessary, but did not include those refinements in his final order of September 5, 2008, which is the order from which the parties sought judicial review. Instead, the Director stated that he would “issue a separate, final order before the end of 2008 detailing his approach for predicting material injury to reasonable inseason demand and reasonable carryover for the 2009 irrigation season.” In its July 24, 2009, order on petition for judicial review, the district court held that by issuing separate final orders, the Director acted contrary to I.C. §§ 67-5244, 67-5246, and 67-5248, as well as IDWR Administrative Rules 720 and 740, and thus abused his discretion. 9 The district court observed that “the issuance of separate ‘Final Orders’ undermines the efficacy of the entire delivery call process, including the process of judicial review. Such a process requires certainty and definiteness as to the Final Order issued, so that any review of the Final Order can be complete 9 The relevant portions of these statutes and rules are as follows: I.C. § 67-5244(2)(a) provides that the agency head shall “issue a final order in writing within fifty-six (56) days of the receipt of the final briefs or oral argument, whichever is later, unless the period is waived or extended with the written consent of all parties or for good cause shown.” I.C. § 67-5246(2) provides that “[i]f the presiding officer issued a recommended order, the agency head shall issue a final order following review of that recommended order.” I.C. § 67-5248 provides that “[a]n order must be in writing and shall include: (a) A reasoned statement in support of the decision. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts of record supporting the findings.” IDAPA 37.01.01.720.02.c provides that “[t]he agency head or designee will issue a final order within fiftysix (56) days of receipt of the written briefs or oral argument, whichever is later, unless waived by the parties or for good cause shown.” Finally, IDAPA 37.01.01.740.02.c provides that “[p]ursuant to Sections 67-5270 and 67-5272, Idaho Code, any party aggrieved by this final order or orders previously issued in this case may appeal this final order and all previously issued orders in this case to district court . . . .” 20 and timely.” Nonetheless, finding no appropriate remedy to be available, the court did not order any specific form of relief. On August 14, 2009, the City filed a petition for rehearing requesting clarification as to the opportunity for a hearing with regard to the Director’s approval of a mitigation plan. On that same date, the Groundwater Appropriators also filed a petition for rehearing requesting, in relevant part, that the district court order the Director to issue a single final order as to all issues. On November 6, 2009, the Coalition submitted a response to the petitions for rehearing and argued that the best approach “consistent with the requirements of judicial review under Idaho’s APA, [was] to presume the Director will issue a new final order consistent with this Court’s order,” and address any insufficiencies once the Director’s order was available for review. On March 4, 2010, the court entered an order staying the decision on petitions for rehearing, pending issuance by the Director of a revised final order. The court issued this order based upon Department’s representations that it could issue an order containing the modified material injury methodology based upon existing evidence in the record. The district court ordered that it would “hold in abeyance any final decision on rehearing until such an order is issued and the time periods for filing a motion for reconsideration and petition for judicial review of the new order have expired.” The Director entered his final order regarding the methodology on April 7, 2010. The record does not demonstrate that the Coalition raised any complaints regarding the content of the final order within the time for appeal. See I.C. § 67-5273(2) (final order must be appealed within twenty-eight days of its service). The district court resumed its proceedings on rehearing and entered an order on August 23, 2010. On appeal, the party asserting error with regard to the separate final orders is the Coalition. However, the Coalition has failed to preserve the issue by failing to object before the district court. D. This Court’s decision in A & B Irr. Dist. v. Idaho Dep’t of Water Resources, 153 Idaho 500, 284 P.3d 225 (2012), decided the evidentiary standard applicable to determinations of material injury. In its Memorandum and Order on Petition for Judicial Review, the district court held that “clear and convincing” was the proper evidentiary standard to determine material injury in a delivery call. The City and the Groundwater Appropriators both contend that the application of 21 the higher evidentiary standard is not supported by Idaho law. We recently rejected this claim in A & B Irr. Dist. v. Idaho Dep’t of Water Resources, 153 Idaho 500, 284 P.3d 225 (2012), stating: It is Idaho’s longstanding rule that proof of “no injury” by a junior appropriator in a water delivery call must be by clear and convincing evidence. Once a decree is presented to an administrating agency or court, all changes to that decree, permanent or temporary, must be supported by clear and convincing evidence. Id. at 524, 284 P.3d at 249. We see no reason to deviate from this decision. Accordingly, the decision of the district court is affirmed on this issue.",analysis
+76,2600229,1,2,"¶ 5 Constitutional challenges to statutes present questions of law, which we review for correctness. Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 10, 73 P.3d 334; I.M.L. v. State, 2002 UT 110, ¶ 8, 61 P.3d 1038.",standard of review
+77,3008299,1,1,"Irene Arancibia underwent laparoscopic hernia surgery at Parkland Memorial Hospital on September 4, 2003. The procedure was performed by two resident physicians, Drs. Curtis and Yau , and attended by Dr. Watson, an assistant professor of surgery in the gastrointestinal/endocrine division, Department of Surgery, at U.T. Southwestern in Dallas. Arancibia was discharged later that day. Two days later, she presented to Parkland’s emergency room with severe abdominal pain. Emergency surgery revealed that, during the hernia repair, her bowel had been perforated in two places, leading to acute peritonitis with sepsis. She died the following day. Her family initially sued the operating physicians but later nonsuited them, naming Southwestern and Parkland in their stead. Southwestern moved to dismiss the case, contending that the trial court lacked jurisdiction because the Arancibias failed to provide timely notice of their claim. The trial court denied the plea, and the court of appeals affirmed. 244 S.W.3d 455, 462. We granted the petition for review, 52 Tex. Sup. Ct. J. 910, 911 (June 26, 2009), and now affirm.",facts
+78,1649313,1,2,"Zwygart received his license to practice as a certified public accountant (C.P.A.) in the State of Nebraska in the 1970's. In 1997, two lawsuits were filed against him in the district court for Madison County alleging fraudulent acts and violation of duties as a corporate officer. The lawsuits involved two closely held corporations which owned and operated four liquor stores. Zwygart was a shareholder and officer of the corporations and maintained the books and records for the corporations. On September 1, 1998, the district court found that Zwygart had perpetrated a fraud on a former shareholder and had violated his fiduciary duty to another shareholder as a result of his fraudulent act. The district court entered judgment against Zwygart in the consolidated cases, and this court affirmed the judgment in a memorandum opinion on September 18, 2002. Fauss v. Norfolk Avenue Liquor Mart, 264 Neb. xxi (Nos.S-01-696, S-01-697, Sept. 18, 2002). On February 14, 2003, the Board filed a formal complaint against Zwygart under Neb.Rev.Stat. § 1-137 (Reissue 1997). Section 1-137 provides that the Board may suspend, revoke, or censure a licensee for cause, including (2) Dishonesty, fraud, or gross negligence in the practice of public accountancy and (4) Violation of a rule of professional conduct adopted and promulgated by the board under the authority granted by the act. The complaint asserted that Zwygart violated the Board's rules and regulations which prohibit, inter alia, committing an act that reflects adversely on a licensee's fitness to engage in the practice of public advocacy. 288 Neb. Admin. Code, ch. 5, § 007.01 (1999). An amended complaint filed on May 16, 2003, alleged that two lawsuits were filed against Zwygart and that Zwygart was found to have perpetuated a fraud on a former shareholder and violated his fiduciary duty to another shareholder. The complaint further alleged: The facts related to the conduct of [Zwygart] with respect to [the shareholders] and other business entities are set forth in detail in the opinion of the District Court of Madison County, Nebraska and in the opinion of the Supreme Court ... and are incorporated herein by reference. Additionally, [Zwygart] was engaged in business relationships with [the shareholders] and related business entities and [Zwygart] performed professional services for both of those individuals and for each of the related business entities. In his capacity as a CPA, [Zwygart] performed professional services for those individuals and the various business entities required and included the use of his accounting or auditing skills including, but not limited to, the preparation of financial statements and one or more kinds of management advisory or consulting services, the preparation of tax returns, and the furnishing of advice on tax matters. [Zwygart] also kept the corporate and business records for said business entities and prepared the necessary documents for filing with regulatory authorities which included the Nebraska Secretary of State and the Nebraska Liquor Control Commission. The conduct of [Zwygart] was not limited to [Zwygart's] activities as a shareholder in one or more of the business entities. [Zwygart] utilized his knowledge gained as the CPA for said individuals and business entities to further his interests as a stockholder in the business entities and [Zwygart] utilized information gained from income tax returns prepared for [one shareholder] to further [Zwygart's] interests as a shareholder. Furthermore, [Zwygart] disclosed confidential tax and financial information of [one shareholder] obtained in the course of performing professional services without the consent of [the shareholder]. On July 16, 2003, a formal hearing was held on the Board's complaint against Zwygart, and on September 5, the hearing officer issued his findings of fact and conclusions of law. The hearing officer found that the record contained sufficient evidence to support a finding that the acts committed by Zwygart reflected adversely on his fitness to engage in the practice of public accountancy and that Zwygart had violated § 1-137(2) and (4) and the Board's rules and regulations. On September 15, the Board adopted the hearing officer's findings, and entered an order revoking Zwygart's C.P.A. certificate and permit to practice and assessed to Zwygart the costs of the proceedings, which included the fees and expenses of the Board's prosecutor and hearing officer. On September 16, 2003, the Board vacated its September 15 order and scheduled an additional hearing for November 5 on the matter of attorney fees and other expenses. On November 6, the Board issued a second order. In this order, the Board again adopted the hearing officer's findings, and found that pursuant to Neb.Rev.Stat. § 1-148(8) (Reissue 1997), it was authorized to assess to Zwygart the costs of the proceedings. The Board also ordered the revocation of Zwygart's C.P.A. certificate and permit to practice and ordered Zwygart to pay the costs of the proceedings, including the fees and expenses of the Board's prosecutor and hearing officer. Zwygart petitioned for review of the Board's decision in the district court for Lancaster County. In an order dated May 4, 2004, the district court stated: [Zwygart] has failed to establish that substantial rights of [Zwygart] were prejudiced by the Board as required by Neb.Rev.Stat. § 84-917. There is no showing that the decision violates constitutional provisions, exceeds statutory authority or agency jurisdiction, was made upon unlawful procedure, was affected by other error of law, was unsupported by competent material and substantial evidence, or was arbitrary or capricious. The language employed by the district court is nearly identical to Neb.Rev.Stat. § 84-917(6)(a) (Reissue 1999), which sets forth the standard of review for petitions filed in the district before July 1, 1989. For appeals after that date, the district court's standard of review is de novo on the record, and the term substantial rights is no longer utilized as a basis of determining if the petition may have been prejudicial because of the agency decision. § 84-917(6)(b). Following the district court's decision, Zwygart perfected this timely appeal, which we moved to our docket pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1105(3) (Reissue 1995).",facts
+79,1394080,1,1,"The pertinent facts of this case began in 1988 when a parcel of land was divided for sale. The appellants herein, the LeFevers, purchased a 4.22 acre tract of land which was landlocked. [1] For purposes of ingress and egress to a public road, the LeFevers were granted an express easement across an abutting 14.33 acre-tract of land that was purchased by Fred Orr. The easement was 20 feet wide and described with particularity in the deed to Mr. Orr's property. A few years later, at the request of Mr. Orr, the LeFevers agreed to relocate the easement. Pursuant to the relocation agreement Mr. Orr hired a surveyor to lay out the new easement and a lawyer to draft two deeds, one to extinguish the original easement and one to create a new easement at the location agreed upon by the parties. The deed extinguishing the original easement was a quit-claim deed acknowledged and recorded on February 6, 1990, wherein the LeFevers released all of their right, title, and interest in and to the original easement to Mr. Orr. A second deed to the LeFevers creating a new easement at a different location was never recorded. Because the deed creating the new easement was not recorded, the record title showed that there was no easement to the 4.22 acres, thus land locking the parcel. Mr. Orr and Mr. LeFever both thought there was an easement across the 14.33 acres. The fact that there was no deed for the new easement was not discovered until several years later when litigation was instituted concerning the location of the LeFevers' easement across the 14.33 acre tract. By deed dated and recorded on February 6, 1990, Fred Orr conveyed all of his right, title, and interest to the 14.33 acre tract to Robert L. and Hermina P. Dunker. The deed conveyed from Mr. Orr to the Dunkers continued to reserve the original easement released by the LeFevers in the February 6, 1990, quit-claim deed. In March of 2000, the Dunkers conveyed all right, title, and interest in the 14.33 acres to appellee herein, Thomas Firriolo. The deed conveyed by the Dunkers to Mr. Firriolo continued to reserve the original easement previously released by the LeFevers and provided that the conveyance was made expressly subject to a 20 foot wide right-of-way for ingress and egress to the 4.22 acre tract owned by the LeFevers and contained the description of the original easement. Mr. Firriolo subsequently sued the LeFevers in the Circuit Court of Morgan County to enforce an alleged new agreement between Mr. Firriolo and the LeFevers regarding the relocation of the LeFever's original easement, reserved in Mr. Firriolo's deed, across the 14.33 acre parcel. [2] This suit was dismissed by the circuit court after the LeFevers and Mr. Firriolo reached a settlement agreement. This agreement was set forth in the circuit court's dismissal order of December 16, 2003. The terms of the agreement were as follows: 1. That this matter shall be dismissed. 2. That the Plaintiff, Thomas Firriolo, shall this day pay unto the Defendants the sum of $9,500.00 to purchase the 4.22 acres owned by the Defendants, Evan and Beth LeFever which adjoin the property of the Plaintiff situate in Timber Ridge District, Morgan County, West Virginia. The parties acknowledge that such payment has been made this day. 3. The Defendants, Evan and Beth LeFever, shall this day execute a general warranty deed for the 4.22 acres subject of this agreement, conveying same to the Plaintiff, Thomas Firriolo. The parties to this agreement acknowledge that has been done this day. 4. The parties further agree that the Plaintiff, Thomas Firriolo shall have a period of up to two (2) years to sell the subject 4.22 acres by private sale, with or without a realtor. If Mr. Firriolo has not found a purchaser within such two (2) year period, (i.e. by September 15, 2005), then the LeFevers may repurchase the subject property for $9,500.00. 5. Upon obtaining a contract for the purchase of the 4.22 acres, the Plaintiff, Thomas Firriolo, shall immediately communicate such contract to the Defendants, Evan and Beth LeFever, by United States, Certified Mail, and the Defendants shall have thirty (30) days from the receipt of such communication of the terms of the contract to approve or disapprove of the sale, in writing. Should the Defendants, Evan and Beth LeFever fail to respond to such notice within thirty (30) days of their receipt of such notice then it shall be deemed that they approve of the terms of the proposed contract. 6. Should the Defendants, Evan and Beth LeFever, approve of such sale, the matter shall proceed to closing. Following the closing of such transaction, the parties shall split equally the cost of any real estate sales commission. Thereafter, the Defendants shall be entitled to any net proceeds from the sale that exceed $9,500.00. 7. Should the Defendants, Evan and Beth LeFever disapprove of such sale, the Plaintiff, Thomas Firriolo, may at his option (a) require the Defendants, Evan and Beth LeFever, to purchase back the 4.22 acres for the sum of $9,500.00 or (b) proceed to obtaining another buyer, as long as such is done within the contemplated two (2) year period of this settlement agreement. 8. The parties agree that both parties may seek redress and pursue enforcement of this agreement before the Circuit Court of Morgan County, West Virginia, should the terms of this agreement not be followed. Pursuant to the agreement, by deed dated September 11, 2003, the LeFevers conveyed all right, title, and interest in and to the 4.22 acres to Mr. Firriolo by fee simple general warranty deed with no reservation or exceptions. Mr. Firriolo now owned record title to both the 14.33 acre tract and the 4.22 acre tract which was subject to the parties' unrecorded settlement agreement. On October 21, 2003, Mr. Firriolo executed and delivered a deed in fee simple conveying all right, title, and interest in and to the 14.33 acre parcel to Anne Chiapella. This deed continued to reserve and was expressly made subject to the original 20-foot-wide easement serving the 4.22 acre tract conveyed to the LeFevers in the October 31, 1988, deed. In connection with the purchase of the 14.33 acre parcel, Ms. Chiapella purchased a title insurance policy from First American Title Insurance of America. The title policy specifically excepted the original 20-foot-wide easement from coverage. During Ms. Chiapella's negotiation to purchase the 14.33 acre tract, John Frye, appellee herein and a companion of Ms. Chiapella's, attempted to purchase the 4.22 acre tract from Mr. Firriolo. Mr. Firriolo drafted a contract for sale of the 4.22 acre tract to Mr. Frye which indicated that the sale was contingent upon Seller being able to obtain a release of that certain right of first refusal granted unto Evan LeFever and Beth LeFever concerning the subject property. Ms. Chiapella purchased the 14.33 acres with the expectation that she would also eventually own the 4.22 acre parcel. However, the sale of the 4.22 acre tract to Mr. Frye was not completed because the LeFevers did not approve of the sale. In October 2005, the LeFevers filed a motion pursuant to Rule 70 of the West Virginia Rules of Civil Procedure in the suit between Mr. Firriolo and the LeFevers containing the settlement agreement. They requested that the circuit court appoint a commissioner as a substitute for Mr. Firriolo to reconvey to them the deed to the 4.22 acres. The reason for the LeFevers' motion was Mr. Firriolo's refusal to reconvey the 4.22 acre parcel upon the expiration of the settlement agreement. [3] Shortly thereafter, it was discovered that the 1990 quit claim deed was recorded in which the LeFevers released the express easement across the 14.33 acre parcel for the benefit of the 4.22 acre parcel, but that a second deed creating a new easement in a different location on the 14.33 acre parcel was never recorded. There is no evidence as to whether this deed was executed or lost. It is undisputed that a second deed with a new easement was to have been executed and recorded. Thereafter, First American filed an action for declaratory judgment on November 7, 2005, in which it sought a declaration that there were no valid easements encumbering the 14.33 acre parcel now owned by Ms. Chiapella. [4] As a result of the discovery that no deed was recorded granting the LeFevers a new express easement in 1990, Mr. Firriolo filed a motion in the circuit court to reform his September 11, 2003, settlement agreement with the LeFevers. The basis for this motion was a mistake of fact and alleged fraud on the part of the LeFevers. [5] According to Mr. Firriolo, the LeFevers falsely represented to him that an easement existed over the 14.33 acre tract when the LeFevers knew that they had released the easement. By order dated November 26, 2007, the circuit court ruled on Mr. Firriolo's motion to have the settlement agreement reformed. The court found as follows in pertinent part: 1. The lawsuit was predicated on a mutual mistake of fact in that both parties acted under the belief that an express right of way over the 14.33 acre tract existed as to the 4.22 Acre Parcel of real estate. 2. Mr. LeFever was not the title owner of the 4.22 acre tract at the time Mr. Firriolo and Mr. LeFever were discussing the right of way through Mr. Firriolo's barn, although he believed that he was at the time and therefore, the Court finds that fraud was not committed on Mr. LeFever's part in that regard. 3. The contract between Mr. Firriolo and Mr. LeFever[] should be reformed in order to properly exercise the equitable authority of the Court in this matter. 4. Based on the evidence presented at this juncture, the Court finds that no fraud or inequitable conduct occurred between the Plaintiff and Defendants Evan and Beth LeFever as far as the original transaction is concerned. 5. Legal title to the 4.22 acre tract is vested in Thomas Firriolo who shall, convey the parcel to John Frye [6] upon the tender from Dr. Frye of the sum of $26,000, in cash or its equivalent within thirty (30) days of this date. Should Dr. Frye purchase the 4.22 acre tract from Mr. Firriolo, the first $9,500 of the purchase price shall go to Mr. Firriolo and the balance to the LeFevers. (Footnote added). Subsequently, by order dated April 30, 2008, the circuit court granted summary judgment on behalf of First American in its declaratory judgment action. The court made the following conclusions of law in relevant part: 20. The February 6, 1990 Quit Claim Deed from Evan LeFever to Fred Orr extinguished the Original Easement. 21. Because no subsequent easement was recorded and there has been no judicial determination that a subsequent easement by necessity or any other easement was created, there was no easement servicing the 4.22 Acre Tract at the time Ms. Chiapella purchased the 14.33 Acre Tract. 22. As of September 11, 2003, Defendant Firriolo owned both the 14.33 and 4.22 Acre Tracts in Fee Simple as evidenced by the respective deeds. 23. In West Virginia, the doctrine of merger provides that when the owner of a dominant estate acquires the fee simple title to the servient estate, an easement appurtenant to the dominant estate is extinguished. 24. Furthermore, the law of West Virginia establishes that no owner can use one part of his or her estate adversely to another part of his estate. 25. Even assuming, arguendo, that the Original Easement or any other easement existed after February 6, 1990, which the Court has concluded was not the case, the 14.33 Acre Tract and 4.22 Acre Tract merged under the ownership of Thomas Firriolo and, therefore, any easement in existence was extinguished pursuant to the doctrine of merger as of September 11, 2003. 26. At the time Chiapella purchased the 14.33 Acre Tract, there were no easements across the 14.33 Acre Tract to the 4.22 Acre Tract. 27. [Omitted by the circuit court.] 28. On September 11, 2003, the date Firriolo became the owner of the 4.22 acre tract, there were no valid easements effecting [sic] either the 4.22 acre tract or the 14.33 acre tract as a result of [the] LeFevers' February 6, 1990 Quit Claim Deed. The instant appeal involves the challenge by the LeFevers to the November 26, 2007, order of the circuit court, in case number 34714, and their challenge to the April 30, 2008, order of the circuit court, in case number 34705. This Court consolidated the two cases for consideration and decision.",facts
+80,883354,1,3,"Did the District Court abuse its discretion in ordering the appellant to sign a wage assignment in the amount of $500.00 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support and current child support? Mr. Hunt's final argument is that the Child Support Enforcement Division is the sole party allowed to enforce the court's decree and, therefore, the court abused its discretion in ordering him to assign wages in the amount of $500 per month over and above all amounts collected by the Child Support Enforcement Division. This argument is without merit. According to § 40-4-209, MCA, the District Court had authority to execute a security or other guarantee for the payment of child support delinquencies which are in amounts equal to the total of six months support payments. We hold the District Court did not abuse its discretion in ordering the assignment of Mr. Hunt's wages. Affirmed in part, reversed in part and remanded for recalculation of child support without the $1,800 retirement contribution exclusion from Mrs. Hunt's income. HARRISON, TRIEWEILER, HUNT and NELSON, JJ., concur.",issues
+81,2561940,1,4,"Rost concedes that [a]ny attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the jurisdiction of the Supreme Court and the authority hereinafter established by these Rules. Supreme Court Rule 201(a) (2008 Kan. Ct. R. Annot. 261). He does not deny that he was admitted to practice law in this state in 1966. However, he crafts an argument, based upon the provisions of Supreme Court Rules 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307), that he ceased to be admitted to practice law when he registered as a retired attorney. Specifically, Rost points to the provision in Rule 208(a) which permits an attorney to register as active; inactive; retired; or disabled due to mental or physical disabilities, and the following requirement that [o]nly attorneys registered as active may practice law in Kansas. 2008 Kan. Ct. R. Annot. 307. Likewise, Rost notes that Rule 208(f)(1) declares that [a]n attorney who has registered as retired, ... shall not be eligible to practice law in this state. 2008 Kan. Ct. R. Annot. 308. He then argues that because an attorney registered as retired is not permitted to practice law, such an attorney is not admitted to practice law within the meaning of the jurisdictional provisions of Rule 201(a). We disagree with the suggestion that an attorney loses his or her hard-earned status as an admitted Kansas attorney simply by registering as anything other than active. First, Rost ignores that our Rules Relating to Admission of Attorneys are set forth in Rules 701 through 710, inclusive (2008 Kan. Ct. R. Annot. 705-726). Most applicants for admission are governed by Rule 704 (2008 Kan. Ct. R. Annot. 710), entitled Admission to the Bar Upon Written Examination. Those applicants must demonstrate that they are of good moral character, possessed of the requisite general education, and otherwise qualified to be examined, prior to taking a written examination to demonstrate their knowledge of the law. Rule 704(c) (2008 Kan. Ct. R. Annot. 711). Then, if an applicant successfully passes the bar examination, the Supreme Court issues an order of admission, which becomes effective upon the taking of an oath. Only after successfully clearing the hurdles to obtain admission to the Kansas bar, via Kansas Supreme Court order, is an attorney subject to Rule 208's requirement to annually register with the Clerk of the Appellate Court. Apparently, Rost overlooks the first sentence of Rule 208(a), which specifies that [a]ll attorneys ... admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, ... register with the Clerk of the Appellate Courts.... (Emphasis added.) 2008 Kan. Ct. R. Annot. 307. Such language contemplates that there is a distinction between initially obtaining an order of admission from the Kansas Supreme Court and registering a status with the Clerk of the Appellate Court which provides a current eligibility to actively practice law. Moreover, an attorney's unilateral action does not rescind the Supreme Court's order of admission. For instance, when an attorney voluntarily surrenders his or her license to practice law, the Supreme Court responds with an order of disbarment which directs that the attorney's name be stricken from the roll of attorneys admitted to practice in this state. See Supreme Court Rule 217 (2008 Kan. Ct. R. Annot. 343). Rule 208 does not require a Supreme Court order to permit an attorney to register on retired status with the Clerk of the Appellate Court and that act does not affect the order admitting the attorney to practice law in this state or effect a removal of the attorney's name from the roll of admitted attorneys. Just as telling, Rule 208(f)(1) does not require a retired attorney to comply with the provisions of Rules 701 et seq., relating to the admission of attorneys, in order to be reinstated to active status. Accordingly, we hold that an attorney who has been admitted to practice law in the state of Kansas by order of the Supreme Court, but who has registered with the Clerk of the Appellate Courts as being on retired status, remains subject to the Kansas Rules of Professional Conduct and subject to the enforcement of those rules by the Supreme Court and its designees.",jurisdiction
+82,886904,1,3,"¶17 Whether Appellants have standing to bring a legal malpractice action against Respondents. ¶18 Appellants contend that the District Court's orders should be reversed and remanded because the court's rationale on this issue is unclear. In their motion for summary judgment, Respondents did not raise any issues as to Appellants' standing to bring this action. Rather, the standing issue was raised by the District Court at the close of the hearing on the motion for summary judgment, based on an inquiry to Respondents' counsel regarding the existence of a fiduciary relationship between Lacosta and Appellants. ¶19 With regard to the Estate of Stanley L. Watkins (the Estate), Lacosta admits that Stanley was a client. Because the Estate stands in the shoes of the decedent, it is considered to be in privity with the attorney, and the personal representative has standing to prosecute a malpractice claim. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner (Fla. 1993), 612 So.2d 1378, 1380. ¶20 A fact issue exists as to whether the Trust is a client or a nonclient beneficiary. The Trust may be considered a client based upon the legal services provided by Lacosta to the Trust and its Trustees, services which involved Trust assets and transactions. Because Lacosta did not raise the issue of standing in her motion for summary judgment, she presented no facts as to whether the Trust was or was not a client. And, in its order, the District Court failed to cite to any cases and made no conclusions as to whether a duty exists to nonclients, or the extent of that duty if it does exist. However, [t]he courts agree that the existence of the attorney-client relationship, the contractual scope of duty, the causation of damages and the extent of damages usually are issues for the trier of fact . . . . A common factual dispute is whether there was an attorney-client relationship. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, Vol. 5, § 33.11 (5th ed. 2000) (hereafter, Mallen ). ¶21 Steve claims standing as a nonclient beneficiary of the estate plan. The duty owed to a nonclient beneficiary is a matter of first impression in Montana. See Rhode v. Adams, 1998 MT 73, ¶¶ 12-13, 288 Mont. 278, ¶¶ 12-13, 957 P.2d 1124, ¶¶ 12-13. However, the majority rule in other jurisdictions supports standing in cases involving actions by named beneficiaries against drafting attorneys. Cf., Blair v. Ing (Haw. 2001), 21 P.3d 452; Mallen, Vol. 4, § 32.4 (Despite statements that strict privity is the prevailing or majority rule, just the opposite is true of actions brought by beneficiaries of wills. A duty to a third party is implied because that is the mutual intent of the attorney and client.) ¶22 Moreover, a finding of duty is consistent with existing Montana law. This Court has noted that a multi-factor balancing test adopted in other jurisdictions may be appropriate in deciding the duty owed by attorneys to nonclients in estate planning. Rhode, ¶ 17. Additionally, we have recognized liability to nonclients in other professional contexts. See, e.g., Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784 (accounting firm liable to nonclient); Jim's Excavating Serv. v. HKM Assoc. (1994), 265 Mont. 494, 878 P.2d 248 (professional engineer liable to nonclient); Turner v. Kerin & Assoc. (1997), 283 Mont. 117, 938 P.2d 1368 (professional engineer liable to nonclient). ¶23 Accordingly, we hold that the Estate does have standing to bring a legal malpractice action against Respondents. We further hold that whether the Trust and Steve have standing to bring a legal malpractice action against Respondents is a factual issue that must be determined at trial, thus precluding summary judgment.",issues
+83,2230873,1,2,"The underlying claim made by the defendant —that his sentence is illegal and void—is based on the fact that his prior convictions for burglary both occurred on January 17, 1995. The habitual-offender statute defines a habitual offender as any person convicted of a class `C' or a class `D' felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. . . . Id. § 902.8. The State does not challenge the defendant's claim that under our case law, each offense must be complete as to a conviction and sentencing before commission of the next in order to qualify for the enhancement of penalty under a habitual offender statute. State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005). Clearly, the defendant's prior burglary convictions do not qualify as two prior convictions under this rule. The issue in this appeal, then, is not whether the defendant is a habitual offender. Based on the record before us, he is not. The issue we must address on appeal is whether the defendant can challenge his habitual-offender status for the first time on appeal. If he can, we must then decide whether, upon remand, the prosecution can introduce evidence of other prior felony convictions in support of its allegation the defendant is a habitual offender.",issues
+84,2343208,1,7,"Jones next presents several claims of prosecutorial misconduct, none of which is properly before this Court. First, he alleges that the prosecutor committed misconduct when he smeared defendant by implied associations during cross-examination of a witness. (Brief of Jones at 28). However, Jones has waived review of this claim because he failed to raise it in his PCRA Petition in violation of Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Next, Jones brings claims that are waived because they were previously litigated that the prosecutor committed misconduct: (1) in the form of the questions he asked during trial (Brief of Jones at 24-30), see Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 940 (1992); (2) by improperly cross-examining two alibi witnesses (Brief of Jones at 28-30), see Jones, 610 A.2d at 941; (3) by introducing a tape of television news coverage of the crime (Brief of Jones at 30-31), see Jones, 610 A.2d at 942; (4) by improperly rebutting his alibi defense (Brief of Jones at 31), see Jones, 610 A.2d at 942-43; and (5) during his closing argument (Brief of Jones at 32-39), see Jones, 610 A.2d at 943-44. Additionally, Jones adds a one-sentence allegation that the prosecutor committed misconduct by attempting to introduce inadmissible evidence. (Brief of Jones 30). Jones fails to offer any context for this assertion and provides no legal support for it. He has therefore failed to establish the merits of this claim. Absent such a showing, he has not demonstrated ineffective assistance of counsel. See Hall, supra. Finally, Jones beseeches this Court to view the prosecutor as a career offender, citing several cases where he asserts that the prosecutor's performance amounted to misconduct. (Brief of Jones at 41). This attack concerning how the prosecutor conducted the other cases is irrelevant and not cognizable. No further review is warranted.",issues
+85,2690659,1,1,"{¶ 22} Pursuant to R.C. 1701.82 and 1705.39, statutes governing mergers in Ohio, assets pass to a surviving entity by operation of law. It has been understood for more than a century that contracts are subordinate to statutes and that the latter also determine the effect of merger contracts and their mode of discharge. The agreements here automatically vested in Acordia of Ohio, L.L.C., without reversion or impairment, because they are assets that passed by operation of law, and Acordia of Ohio, L.L.C., can enforce the noncompete agreements as if it were a signatory to them. Because the surviving entity in a merger acquires the right to enforce a noncompete agreement entered into by a constituent entity by operation of law, neither assignment nor consent is necessary to effectuate that result. {¶ 23} In my view, it is not necessary to direct the trial court to determine the reasonableness of the noncompete agreements; although a trial court has the obligation to review a noncompete agreement for reasonableness, that issue has not been presented as a proposition of law, nor is it otherwise briefed or at issue before the court. Accordingly, I concur in the judgment to reverse the judgment of the court of appeals and to remand this matter for further proceedings consistent with this opinion. LUNDBERG STRATTON, J., concurs in the foregoing opinion. __________________ 10 January Term, 2012 PFEIFER, J., dissenting. {¶ 24} This case has been properly decided three separate times. The trial court had it right, the court of appeals had it right, and this court had it right the first time. I did not vote to accept jurisdiction, did not vote to reconsider the case, and remain convinced that this court should not have accepted jurisdiction or granted reconsideration. Even though I believe that this case is being incorrectly decided, the good news is that on remand, the lower courts are likely to reach the same sensible conclusions that they reached when they first encountered this case. {¶ 25} The common law and judicial policy have long disfavored noncompete agreements. Starting with Dyer’s Case, Y.B. 2 Henry 5, fol. 5, pl. 26 (C.P.1414), noncompete agreements were prohibited. Since the early 18th century, however, many jurisdictions have allowed noncompete agreements to be enforced when they are reasonable. Mitchel v. Reynolds, 1 P.Wms. 181, 24 Eng.Rep. 347 (Q.B.1711); Harlan M. Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625, 630 (1960). The Supreme Court of the United States stated: It is a well-settled rule of law that an agreement in general restraint of trade is illegal and void; but an agreement which operates merely in partial restraint of trade is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint imposed must not be larger than is required for the necessary protection of the party with whom the contract is made. Oregon Steam Navigation Co. v. Winsor, 87 U.S. 64, 66-67, 20 Wall. 64, 22 L.Ed. 315 (1873). 11 SUPREME COURT OF OHIO {¶ 26} Noncompete agreements remain in disfavor and tend to be strictly construed against the employer. Columbia Ribbon & Carbon Mfg. Co., Inc. v. A– 1–A Corp., 42 N.Y.2d 496, 499, 398 N.Y.S.2d 1004, 369 N.E.2d 4 (1977); Grant v. Carotek, Inc., 737 F.2d 410, 411-412 (4th Cir.1984) (applying Virginia law). “In Minnesota, employment noncompete agreements ‘are looked upon with disfavor, cautiously considered, and carefully scrutinized.’ ” Kallok v. Medtronic, Inc., 573 N.W.2d 356, 361 (Minn.1998), quoting Bennett v. Storz Broadcasting, 270 Minn. 525, 533, 134 N.W.2d 892 (1965). In certain respects, noncompete agreements are similar to indentured servitude. See Blake at 632 (common law disfavor of noncompete agreements was aimed at preventing employers from violating the underlying precepts of the apprenticeship system). In most respects, noncompete agreements are inimical to the free-enterprise system. {¶ 27} The policy considerations that affect whether a particular noncompete agreement is reasonable and enforceable are explained by Michael J. Garrison and John T. Wendt: As a matter of public policy, courts have traditionally looked upon agreements not to compete with disfavor. Such restrictions on employees were prohibited under the early English common law; however, over time, the common law prohibition against noncompete agreements loosened. The courts recognized that such agreements can be legitimate if they serve business interests other than the restriction of free trade. Thus, agreements not to compete ancillary to an employment relationship have been permitted, subject to a reasonableness requirement. The common law reasonableness approach is an attempt to balance the conflicting interests of employers and employees as well as the societal interests in open and fair competition. 12 January Term, 2012 Employers have a legitimate interest in preventing unfair competition through the misappropriation of business assets by former employees. On the other hand, employees have a countervailing interest in their own mobility and marketability. Society has interests in maintaining free and fair competition and in fostering a marketplace environment that encourages new ventures and innovation. There is a complementary public interest in preventing employers from using their superior bargaining position to unduly restrict labor markets. Given these competing interests, the common law approach allows employee noncompete agreements but imposes significant limits on restrictive covenants to assure that they are not overly burdensome to employees and harmful to the marketplace. Under the common law approach, the employer must demonstrate a legitimate commercial reason for any agreement not to compete to ensure that the agreement is not a naked attempt to restrict free competition. Merely preventing competition from a former employee is not a sufficient justification for a noncompete agreement, even if the employee received training or acquired knowledge of a particular trade during his employment. Employees are entitled to use the general skills and knowledge acquired during their employment in competition with their former employer. An employer must demonstrate “special circumstances” that make the agreement necessary to prevent some form of unfair competition. Traditionally, the courts recognized two primary interests as legitimate justifications for a noncompete agreement: the 13 SUPREME COURT OF OHIO employer’s interests in protecting the goodwill of the business and in protecting its trade secrets. (Footnotes omitted.) Garrison & Wendt, The Evolving Law of Employee Noncompete Agreements: Recent Trends and an Alternative Policy Approach, 45 Am.Bus.L.J. 107, 114-116 (2008). {¶ 28} In Ohio, “[a] covenant not to compete which imposes reasonable restrictions upon an employee will be enforced to the extent necessary to protect an employer's legitimate interests.    [Such a] covenant is reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious to the public.” Rogers v. Runfola & Assoc., Inc., 57 Ohio St.3d 5, 8, 565 N.E.2d 540 (1991), quoting Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544, paragraphs one and two of the syllabus. {¶ 29} In this case, the noncompete agreement is an undue infringement on free enterprise. The agreement unfairly protects the employer from competition from its former employees. The employer’s trade secrets and customer list are already legitimately protected; the noncompete agreement does not protect them further. The principal purposes undergirding the enforcement of a noncompete agreement, both generally and in Ohio, are not applicable. Under the circumstances of this case, I conclude that the noncompete agreement is unreasonable and, therefore, that it should not be enforced. I would so conclude now, based on the record before us, without remanding the case. 14 January Term, 2012 {¶ 30} In Dyer’s Case, Y.B. 2 Henry 5, fol. 5, pl. 26, the court concluded that the noncompete agreement “is void because the condition is against the common law, and by God, if the plaintiff were present he should rot in gaeol till he paid a fine to the King.” That was justice. __________________ Katz, Teller, Brant & Hild, James F. McCarthy III, and Laura Hinegardner, for appellant. Denlinger, Rosenthal & Greenberg, L.P.A., and Mark E. Lutz, for appellees. Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, John B. Nalbandian, and Ryan M. Bednarczuk, urging reconsideration for amici curiae Ohio Chamber of Commerce and Ohio Chemistry Technology Council. Beckman Weil Shepardson, L.L.C., and Peter L. Cassady, urging reconsideration for amici curiae USI Holdings Corporation and USI Midwest, Inc. Keating Muething & Klekamp and Robert E. Coletti, urging reconsideration for amicus curiae Cintas Corporation. Michelle Lafferty, urging reconsideration for amicus curiae Hylant Group, Inc. Manley Burke, L.P.A., and Timothy Burke, urging reconsideration for amici curiae Sean K. Mangan and John A. Barrett Jr. ______________________ 15",conclusion
+86,1782182,1,4,"The actions of a county freeholder board under § 79-458 sound in equity. [1] On appeal from an equity action, an appellate court resolves questions of law and fact independently of the trial court's determinations. [2]",standard of review
+87,2622030,1,2,"¶ 9 In his supplemental brief, Quismundo concedes that the proper remedy at trial should have been dismissal without prejudice. [2] He asks this court to so order now. Supp'l Br. of Pet'r at 7, 13. Likewise, the State concedes that because the first amended information was constitutionally defective, the proper remedy at trial should have been dismissal without prejudice. But for a variety of reasons discussed below, the State argues that the trial court properly allowed the State to reopen its case and amend the insufficient information. We disagree. ¶ 10 Under our state constitution, it is a constitutionally mandated rule that all essential elements of a charged crime must be included in the charging document. Vangerpen, 125 Wash.2d at 788, 888 P.2d 1177. The essential elements rule recognizes a defendant's article [I], section 22 ... right to demand the nature and cause of the accusation against him or her. Id. at 789, 888 P.2d 1177. In a criminal case, once the prosecution has rested, it may not amend an insufficient information. In State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987), this court held that an information may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same crime or a lesser included offense. Any other amendment is deemed to be a violation of the defendant's article [I], section 22 ... right to demand the nature and cause of the accusation against him or her. Id. Instead, the proper remedy is dismissal of the charge without prejudice. Id. at 792-93, 888 P.2d 1177. Moreover, where an information is deemed insufficient in such a context, the defendant need not show prejudice to effect dismissal; the insufficiency alone is enough to warrant dismissal. Id. at 790, 888 P.2d 1177. ¶ 11 The trial court here should have dismissed the charges against Quismundo without prejudice once the insufficiency of the first amended information was revealed; on this point the parties agree. Supp'l Br. of Pet'r at 13; Supp'l Br. of Resp't at 5. The question now is whether its failure to do so was an abuse of discretion warranting reversal of Quismundo's conviction. ¶ 12 A court abuses its discretion when an order is manifestly unreasonable or based on untenable grounds. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993). A discretionary decision is based `on untenable grounds' or made `for untenable reasons' if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.  State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (emphasis added) (quoting State v. Rundquist, 79 Wash.App. 786, 793, 905 P.2d 922 (1995)). Indeed, a court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law. Fisons, 122 Wash.2d at 339, 858 P.2d 1054. ¶ 13 Here, the trial court based its ruling on an erroneous view of the law and therefore abused its discretion. The trial court believed that it could dismiss without prejudice to the State only if Quismundo showed that the insufficient information prejudiced him. RP at 90-91. This is incorrect under Pelkey and Vangerpen. Pelkey, 109 Wash.2d at 491, 745 P.2d 854; Vangerpen, 125 Wash.2d at 790, 888 P.2d 1177. Moreover, the remedy the trial court selected was unavailable under Vangerpen. We have repeatedly and recently held that the remedy for an insufficient charging document is reversal and dismissal of charges without prejudice to the State's ability to refile charges, Vangerpen, 125 Wash.2d at 792-93, 888 P.2d 1177, not midtrial amendment and refiling. We hold the trial court abused its discretion in ordering the remedy it did. To hold otherwise would invite erosion of the clear rule in Pelkey and Vangerpen. [3] ¶ 14 The State argues, and the Court of Appeals agreed, that because Quismundo himself requested an erroneous remedy—dismissal with prejudice—the trial court did not abuse its discretion in rejecting that remedy. Supp'l Br. of Resp't at 10-11; Quismundo, 2007 WL 959893 at , 2007 Wash. App. LEXIS 576, at . The question is not whether the trial court properly refused dismissal with prejudice, however, but whether it abused its discretion in allowing amendment of the insufficient charging document after the State had rested its case. The abuse of discretion standard does not allow us to excuse an order based on an erroneous view of the law because the trial court considered and rejected an equally erroneous argument. [4] ¶ 15 Finally, the State appears to argue that Quismundo invited the error himself by going forward with his trial on the second amended information and cannot now ask for dismissal without prejudice. Supp'l Br. of Resp't at 10-11. But at the point at which Quismundo withdrew his continuance request, the trial court had already erred and Quismundo's actions at that point have no bearing on the posture of this case. ¶ 16 A trial court's obligation to follow the law remains the same regardless of the arguments raised by the parties before it. Although Quismundo erroneously requested the wrong remedy for the insufficient charging document, under Pelkey and Vangerpen the trial court was precluded from allowing a midtrial amendment of the charges and was required to dismiss the charges without prejudice.",analysis
+88,2463577,1,2,"[¶ 3] Appellant, as personal representative of the decedent's estate, initiated a wrongful death action against the Hospital and Dr. Darnell upon filing a complaint in the Johnson County District Court. According to the complaint, on August 20, 2006, at 1:40 a.m., Mr. Pickett was taken to the Hospital's emergency room after complaining of back, side, and groin pain. Dr. Darnell, the treating physician and an employee of the Hospital, diagnosed Mr. Pickett with a kidney stone. After observing Mr. Pickett for approximately 12 hours, Dr. Darnell discharged him from the Hospital. Later that evening, Mr. Pickett's wife called 911 after finding him unconscious in their bathroom. When the ambulance arrived, Mr. Pickett was pale and unresponsive. The personnel on duty at the Hospital were unable to resuscitate Mr. Pickett, and he was pronounced dead at 8:20 p.m. An autopsy determined that he did not have a kidney stone but that a leaking abdominal aortic aneurysm had caused his death. [¶ 4] On February 4, 2008, Appellant presented a notice of claim to the Hospital. The notice of claim was timely filed and satisfied all the requirements set forth in Wyo. Stat. Ann. § 1-39-113(b) as to the contents of a notice of governmental claim. The claim was also signed and sworn to under penalty of perjury in compliance with Article 16, § 7 of the Wyoming Constitution. [¶ 5] On April 25, 2008, Appellant filed suit against the Hospital and Dr. Darnell within the two-year statute of limitations for a wrongful death action set forth in Wyo. Stat. Ann. § 1-38-102. Appellant's complaint stated that [a]ll conditions precedent to the bringing of this action have been performed or have occurred, including the processing to completion of an application for review of claim before the Wyoming Medical Review Panel, and the presentation and filing of this claim to and with the Johnson County Hospital District. The Hospital and Dr. Darnell answered and asserted affirmative defenses. At that time, neither the Hospital nor Dr. Darnell claimed that Appellant's complaint was insufficient to invoke the court's jurisdiction. The court held a scheduling conference on August 4, 2008, and set trial for the week of August 24, 2009. [¶ 6] On July 28, 2009, approximately 15 months after the case commenced, and after the statutes of limitations for a wrongful death action and for a governmental claim had expired, Appellees asserted that the complaint was insufficient to invoke subject matter jurisdiction and that the action should be dismissed. Appellees filed a joint motion for judgment on the pleadings arguing the complaint was deficient because it failed to allege the date on which the notice of claim had been presented to the Hospital and failed to allege that the claim complied with the signature and certification requirements of the Wyoming Constitution, as required by Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004) ( Beaulieu II ). Appellant moved for leave to amend the complaint to allege compliance with the WGCA and Wyoming Constitution. Appellant attached a proposed amended complaint to the motion. The district court determined that it was without subject matter jurisdiction to grant Appellant leave to amend the defective complaint and dismissed the action with prejudice because the statute of limitations had expired. This appeal followed.",facts
+89,2606799,1,1,"I concur with the holding of the majority that the court had jurisdiction of Ford. In this connection the record discloses that from the outset Ford resisted and continues to resist the action here on the ground that as a non-qualified foreign corporation it was not subject to the jurisdiction of the court. The contention presents an important question and in disposing of the matter we first turn to pertinent portions of the record. It appears from the record that the only service of process made upon Ford was personal service of summons upon E.F. Nieman, one of its employees, while the said Nieman was in attendance at the opening of a new Ford agency at Evanston, Wyoming. A timely motion to quash the return of service of summons was filed by Ford on the ground that it is a foreign corporation; owns no property in Wyoming; has not and does not now transact business within this state; and has no agent, officer, or other person here upon whom process can be served. Attached to the said motion is the affidavit of Nieman, which in substance recites that he is employed by Ford as General Field Manager of the Salt Lake District Sales Office and his assigned duties are promotion of sales of the products of Ford, including therein arrangement for and the handling of relations with independent Ford dealers of Ford products within his district; also, that he is not an officer of Ford and has no duties in connection with claims against Ford. Counter-affidavits were filed by plaintiff, which in substance set forth that Evanston, Wyoming, is within the area of which Nieman has charge and that on the date in question Nieman was in attendance and carrying out his duties at the grand opening of Aaron Brothers Ford Service, a newly-authorized dealer of Ford products at Evanston, Wyoming. Also present was an assistant to Nieman. Public announcement of the event was made by both Ford and Aaron Brothers. The matter was submitted on said affidavits and after hearing argument thereon the trial court denied the motion. Our task in reviewing the action so taken by the trial court is made difficult by the paucity of the evidence relating to the activities of Ford in this state. This for the reason that mere service of summons upon Nieman within the state did not in and of itself confer jurisdiction upon the trial court. See Long v. Victor Products Corporation, 8 Cir., 297 F.2d 577, 581; Easterling v. Cooper Motors, Inc., D.C.N.C., 26 F.R.D. 1, 2; West Pub. Co. v. Superior Court of City and County of San Francisco, 20 Cal.2d 720, 128 P.2d 777, certiorari denied 317 U.S. 700, 63 S.Ct. 524, 87 L.Ed. 559; and Minty v. Draper & Company, Inc., D.C. Wyo., 57 F.2d 551, 553. To validate the service it must also appear that Ford, as a foreign corporation, was at the time of service engaging in activities within the state sufficient to make it amenable to jurisdiction of the court from which the process issued. The problem presented is in two parts. It must first be ascertained whether or not applicable state law means to encompass the challenged service. If this can be answered in the affirmative, then the further question presented is whether or not the state law as applied to the circumstances of the case offends the due process clause of the Federal Constitution. See Lone Star Motor Import, Inc., v. Citroen Cars Corp., 5 Cir., 288 F.2d 69, 72. As has often been said, each case must depend upon its own facts (International Harvester Company v. Commonwealth of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 945, 58 L.Ed. 1479), and the burden rests upon the plaintiff to establish that Ford was doing business in the state at the time service of process was made. See Confidential, Inc. v. Superior Court In and For Los Angeles County, 157 Cal. App.2d 75, 320 P.2d 546, 549; and Kesler v. Schetky Equipment Corporation, D.C.Cal., 200 F. Supp. 678, 679. In our approach we prefer first to discuss the limitations of the Federal Constitution laid upon state jurisdiction over a foreign corporation. A myriad of cases and treatises deal with the subject matter (for example see 25 U.Chi.L.Rev. 569; 73 Harv. L.Rev. 909; and 44 Iowa L.Rev. 249); but extensively to review the material would unduly extend this opinion. Suffice it to say that a great evolution in the law has occurred between Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, and the most recent case from the United States Supreme Court of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, rehearing denied 358 U.S. 858, 79 S.Ct. 10, 3 L.Ed.2d 92. The evolution had its genesis in the classic case of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 159, 160, 90 L.Ed. 95. It would therefore seem appropriate to set forth some of the pronouncements of that case. In the course of the opinion it is said: Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' [Citations.]       It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. [Citations.] Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. [Citations.] But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. [Citations.] Clearly old concepts were swept away. A new era dawned for permissive reach of in personam jurisdiction by the courts of the states. However, one difficulty with the case is that although it speaks of requisite contacts, ties or relations, and sets forth the factors that were said to establish minimal contacts for purposes of the case, it furnished little guide as to how the interplay of those or other factors might rationally be utilized in reaching a sound result under other circumstances. Appellee suggests that McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, reduced the necessities to activities of a single transaction, but we hardly think this is tenable. In the first instance, it has been said that it did nothing more than to uphold a California statute similar to our own non-resident motor vehicle statute. See Kesler v. Schetky Equipment Corporation, supra. But if McGee v. International Life Insurance Co., supra, did intimate a trend for abolition of state lines in the matter, it was soon dispelled by the more recent case of Hanson v. Denckla, supra. In this case it was said at 78 S.Ct. 1238:    But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the `minimal contacts' with that State that are a prerequisite to its exercise of power over him.    In any event, it seems clear to us that under the pronouncements made there emerges the general rule that so long as the activities of a foreign corporation are sufficiently qualitative in nature and extent reasonably to show minimal contacts with the state and state law on the subject is justly construed and applied to reach those activities for jurisdictional purposes under traditional notions of fair play and substantial justice, all demands of due process are satisfied. With the foregoing concepts in mind, we return to the record made of Ford's activities here. Aided by those matters of which we take judicial notice, it is reasonable to conclude that Ford entered into a dealer relationship with Aaron Brothers of Evanston, Wyoming, for promotion and sale of its products in Wyoming; that such arrangement for all intents and purposes was a continuing one; that the arrangement so made was in keeping with the state-wide practice of Ford for promotion and sale of its products in Wyoming through such dealers; by such arrangement Ford hopes to obtain and does obtain substantial benefits, financial and otherwise; that in pursuit of its business it sends agents and employees into the state to aid and assist its authorized dealers and we would be blinded to actualities to suppose that the activities shown at Evanston, Wyoming, were sporadic and isolated instances of the aggressive marketing practices of Ford in Wyoming; and lastly Ford and its agents and employees while here are protected by the laws of Wyoming. In conjunction therewith and in disposing of Ford's contention, we have also considered other pertinent factors, such as: the interest of this state in providing a forum for its residents; the relative availability of evidence; the relative burden of defense and prosecution in Wyoming rather than at some other place; the ease of access to some alternative forum; and the extent to which the cause of action arises out of Ford's local activities. In view of the foregoing and in view of the broadened concept of in personam jurisdiction of the state under the due process clause of the Federal Constitution, it seems clear that the record here was ample to permit the trial court to find and conclude, as it did, that the activities of Ford in this state were, in nature and extent, sufficient to satisfy federal requirements with respect to the matter. This brings us then to a consideration of the applicable law of Wyoming. The statute involved, § 17-44, W.S. 1957, and now superseded by Ch. 85, § 105, S.L. of Wyoming, 1961, provided in essence That whenever any foreign corporation transacts business in this state without first qualifying, it shall be amenable to lawful process issuing out of a state court in any action or proceedings against said foreign corporation growing out of the transaction of any business in this state. With respect to the jurisdictional question, Ford contends that it was not in fact transacting business here within the meaning of the statute and that under any circumstance plaintiff has failed to meet the burden of proof necessary to sustain jurisdiction. In disposing of the contention it is necessary first to consider just what was intended as the criteria necessary to establish the transaction of business for purposes of the statute. In this we are not aided by legislative definition, and previous decisions of this court are not particularly helpful. In State ex rel. Eaton v. Hirst, 53 Wyo. 163, 79 P.2d 489, 496; Chittim v. Belle Fourche Bentonite Products Co., 60 Wyo. 235, 149 P.2d 142, 148; and Creamery Package Manufacturing Co. v. Cheyenne Ice Cream Co., 55 Wyo. 277, 100 P.2d 116, 122, we had occasion to consider the activities that go to establish doing business under the non-suit statute. In Creamery Package Manufacturing Co. v. State Board of Equalization, 62 Wyo. 265, 166 P.2d 952, 955, we considered the matter under the Sales and Use Tax Act. But tests applied for purposes of a penal regulatory statute or taxation statutes are of little assistance to the problem of enforcing civil process. See Jarrard Motors Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So.2d 309. Obviously the statute had for its purpose, whenever possible, the furnishing of a local forum to residents of this state who had a grievance against a non-qualified foreign corporation growing out of its business activities here. It seems apparent also that to accomplish its purpose the legislature purposely prescribed a broad standard in order that the statute might receive a reasonable interpretation in keeping with advancements in the law relating thereto and developments in the field of commercial enterprise. In applying the statute such matters are of prime importance. Hoffmeister v. McIntosh, Wyo., 361 P.2d 678, rehearing denied Wyo., 364 P.2d 823. Also, no citation of authority is necessary to support the proposition that the statute, being remedial, is entitled to a liberal interpretation. Actually, the term transacts business is not susceptible to determination by application of any hard and fast rule and it is not possible for us to supply a ready formula dispositive of the many complexities that are presented in dealing with the question. It seems clear, however, that the term would not embrace casual, isolated, or sporadic transactions of limited duration and extent but beyond that the matter must be determined largely according to the facts of each individual case. 20 C.J.S. Corporations § 1920a, p. 151; International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 159, 90 L.Ed. 95. We are cited to many cases in the briefs of counsel to sustain their respective positions and certain it is that divergent results have been reached. However, in view of what has already been said, a lengthy discussion of the cases so cited would seem to serve no particular purpose. It is enough to say that such authorities and others have been reviewed and in this regard we think cases such as Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 346 P.2d 409; Regie Nationale des Usines Renault, Billancourt (Seine), France, v. Superior Court In and For Sacramento County, Cal. App., 25 Cal. Rptr. 530, 531; Amphicar Corp. of America v. Gregstad Distributing Corp., Fla.App., 138 So.2d 383, 384, 385; Lone Star Motor Import, Inc. v. Citroen Cars Corp., 5 Cir., 288 F.2d 69, 72; and Jarrard Motors, Inc. v. Jackson Auto & Supply Co., supra, are illustrative of activities that can reasonably be said to constitute the transaction of business within a state. Of course, Ford's activities here as above related differ to some extent from the activities shown in the foregoing cases but nevertheless there is substantial similarity in many respects. Were we to conclude that the statute before us was so restrictive that it failed to impose jurisdiction over a foreign corporation that engages here in activities of the quality and extent shown on the part of Ford, we think we would do violence to the plain intent and purpose of the statute. In fact, we find nothing in the statute that indicates a purpose other than to assert jurisdiction over a non-qualified corporation to the extent authorized by the due process clause. For the reasons stated we agree with the trial court that a reasonable and just interpretation of the statute, when applied to Ford's activities within this state, brought Ford within its reach for jurisdictional purposes and inasmuch as plaintiff's complaint was based upon a local incident growing out of those activities, the trial court was fully warranted in asserting its jurisdiction. Ford further insists that even though we conclude that it was subject to the jurisdiction of the trial court, it was never properly served with summons. The contention is bottomed upon the further provisions of § 17-44, W.S. 1957, that relate to service of process. In substance the statute provides under circumstances here that service may be made by leaving a copy of the summons with the secretary of state and the mailing of a notice of such service and copy of the process by registered mail to the defendant corporation or that service of process may be made by delivery thereof to the corporation outside the state. The foregoing statute was enacted in the year 1929. Subsequent to that time we adopted Wyoming Rules of Civil Procedure and Rule 4(d) (4) thereof provides in part: Upon a corporation, by delivery of copies to any officer, manager, general agent, or agent for process. If no such officer, manager or agent can be found in the county in which the action is brought such copies may be delivered to any agent or employee found in such county.    It will be noticed that this substantially departs from Rule 4(d) (3) of the Federal Rules, from which our rules were taken. The return here shows that there was no officer, manager, general agent, or agent for process found in Wyoming and that as a consequence service was made on Nieman, an agent or employee who was found in Uinta County. With respect to Nieman, the trial court on the evidence before it was entitled to find and apparently did find that even though Nieman was not authorized by Ford to accept service, his position of responsibility was such that the process served upon him reasonably afforded opportunity to Ford to defend in the action. We think the method of service set forth in the statute is not exclusive and that the method provided by our rules must be considered in conjunction with and cumulative of the method of service upon non-qualified foreign corporations. Toedman v. Nooter Corporation, 180 Kan. 703, 308 P.2d 138, 143. Ford relies principally upon Fletcher, Cyclopedia of Corporations (Perm.Ed.), and upon Goodman v. Leitman, 20 Misc.2d 549, 194 N.Y.S.2d 561, but those authorities do not seem apropos. As we pointed out, the provision of the rules is cumulative and therefore may be utilized and such alternative method apparently was not present or considered in the authorities cited. Due process requires only that the representative served be a responsible representative of the foreign corporation. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 418, 96 L.Ed. 485, rehearing denied 343 U.S. 917, 72 S.Ct. 645, 96 L.Ed. 1332.",jurisdiction
+90,1632036,3,1,"¶ 17. The standard of review for a post-trial motion is abuse of discretion. Howell v. State, 860 So.2d 704, 764 (Miss. 2003). In the recent case of Bush v. State, 895 So.2d 836, 843 (Miss.2005), we discussed the standard which applies in a challenge to a verdict based on the sufficiency of the evidence: In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows `beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.' However, this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence `point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,' the proper remedy is for the appellate court to reverse and render[, i.e. reverse and discharge]. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, `having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,' the evidence will be deemed to have been sufficient. ¶ 18. In order to convict Warren Dilworth of the murder of Dennis Watford, the State was required to prove beyond a reasonable doubt that Warren Dilworth: (1) killed Dennis Watford; (2) without authority of law; and (3) with deliberate design to effect his death. Miss.Code Ann. § 97-3-19(1)(a) (Rev.2002). In the alternative, the State was required to prove beyond a reasonable doubt that: (1) Warren Dilworth was present at the commission of Watford's murder; and (2) aided, counseled, or encouraged Frank Owens in (a) killing Dennis Watford; (b) without authority of law; and (c) with deliberate design to effect his death. See Miss.Code Ann. § 97-3-19(1)(a) (Rev.2002); Swinford, 653 So.2d at 915. ¶ 19. Owens testified Warren Dilworth joined him in attempting to retrieve the crack cocaine from Watford and purposed to do violence to him when he found him. He also testified Warren Dilworth drove the car to the Vietnamese Catholic Church parking lot, pulled a gun out from under the passenger's seat, and shot Watford as he was fleeing. Viewing the evidence in the light most favorable to the State, this testimony alone provided sufficient evidence with which a rational person could have found the State proved Warren Dilworth committed all of the elements of murder. This argument is without merit.",sufficiency of the evidence
+91,2317473,1,9,"Gilmore claims that he was convicted on the basis of insufficient circumstantial evidence. He contends that the State must prove by direct evidence that [Gilmore] was in or near the apartment of the decedent at the time of her death, and failing to prove this, the trial court was without sufficient evidence, circumstantial or direct, to connect [him] with any assault upon the decedent.    Appellant's reasonable explanation of his possession of the identified items should have been accorded the greater weight when balanced against the record of proceedings in this case, and an acquittal of murder and robbery should have been found by the trial court. We find relevant much of what was said by Judge Orth for the Court of Special Appeals in Nichols v. State, 5 Md. App. 340, 247 A.2d 722 (1968), where he said: The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.       In considering the evidence the lower court was guided by established rules of law. Proof of guilt beyond all doubt has never been required. Young v. State, 4 Md. App. 286. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent with innocence be negatived. Hayette v. State, 199 Md. 140, 144. The lower court could weigh the evidence and determine the credibility of the witnesses. Roeder v. State, 4 Md. App. 705; Gibson v. State, 4 Md. App. 222. It was under no obligation to believe the appellant's denials or explanations. Eley v. State, 4 Md. App. 230; Tillery v. State, 3 Md. App. 142. It could weigh the alibi testimony and was not required to accept its truthfulness. Logan v. State, 1 Md. App. 213. And if we assume that the evidence against the appellant was solely circumstantial, such assumption would not change the result. The lower court could have properly found that the circumstances, taken together, were inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence. `[C]ircumstantial evidence need not be such that no possible theory other than guilt can stand   . It is not necessary that the circumstantial evidence exclude every possibility of the defendant's innocence, or produce an absolute certainty in the minds of the jurors. The rule does not require the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt.' 3 Wharton's Criminal Evidence (12th Ed. 1955) § 980, p. 477. While it must afford the basis for an inference of guilt beyond a reasonable doubt, it is not necessary that each circumstance, standing alone, be sufficient to establish guilt, but the circumstances are to be considered collectively. 1 Underhill's Criminal Evidence (5th Ed. 1956) § 17, p. 23 and p. 25. Id. at 350-51. (Emphasis in original.) As Judge (later Chief Judge) Henderson said for the Court in Breeding v. State, 220 Md. 193, 198, 151 A.2d 743 (1959), We think the [trier] of fact could properly draw the inference, from all the circumstances of the case, that she met her death at his hands, and that the killing was premeditated and with malice aforethought.",sufficiency of the evidence
+92,1476693,2,6,"Williams challenges the sufficiency of the evidence for one of his convictions of first degree child abuse. Count III of the indictment charged Williams with penetrating H.T.'s mouth with his penis between on or about April 1, 1999, and February 3, 2000. [4] Williams' contention is that the prosecution failed to introduce any evidence as to when the offense occurred. This court reviews the evidence in the light most favorable to sustaining the convictions, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence. White v. United States, 714 A.2d 115, 118 (D.C.1998) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C.1987)). We will not reverse the jury verdict unless Williams establishes that the government presented `no evidence' upon which a reasonable mind could find guilt beyond a reasonable doubt. Mihas v. United States, 618 A.2d 197, 200 (D.C.1992) (citation omitted). Rather than make an argument as to the sufficiency of the evidence for the elements of the offense, Williams essentially argues that the government constructively amended the indictment or impermissibly varied therefrom by failing to prove a fact asserted in the indictment. Jones v. United States, 716 A.2d 160, 166 (D.C.1998) (citation omitted). [W]hen an indictment charges that the offense occurred `on or about' a certain date, as it did here, a defendant is on notice that a particular date is not critical. The evidence will conform to the indictment in such circumstances if it establishes that the offense was committed on a date reasonably close to the one alleged. Id. (emphasis in original) (quoting Ingram v. United States, 592 A.2d 992, 1007 (D.C.1991)). As an initial matter, we note that it is difficult for child witnesses to identify exact times, dates, and locations. See, e.g., Pace v. United States, 705 A.2d 673, 677 (D.C.1998); Jackson v. United States, 503 A.2d 1225, 1226-27 (D.C.1986). In her testimony while being impeached with the CAC videotape, H.T. agreed that Williams put his tail in her mouth, but the prosecutor did not establish a time frame for when this happened. In the CAC statement, however, H.T. relayed that she was three years old when Williams started doing these things to her. H.T. turned three on June 22, 1998, and would, therefore, still have been three on April 1, 1999, when the time period associated with the instant offense began. Thus, because the relevant portion of the CAC statement was properly introduced into evidence, viewing this evidence in the light most favorable to upholding the verdict as we must, White, supra, we conclude that the government provided sufficient evidence upon which a reasonable mind could conclude beyond a reasonable doubt that this charged offense occurred during the time period specified in the indictment. Mihas, supra .",sufficiency of the evidence
+93,2829039,1,3,"10 ¶19. We find that the State met the requirements for filing a Lindsey brief, and that an order for supplemental briefing therefore is not necessary. The issues raised pro se by Claiborne are without merit, and his conviction and sentence are affirmed. ¶20. CONVICTION OF FIRST-DEGREE MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR. 11",conclusion
+94,2629315,1,2,"¶ 5 A motion for summary judgment presents a question of law reviewed de novo. See Denaxas v. Sandstone Court of Bellevue, L.L.C., 148 Wash.2d 654, 662, 63 P.3d 125 (2003). We construe the evidence in the light most favorable to the nonmoving party, Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998), and grant summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c).",standard of review
+95,2386649,4,8,"Defendant contends the evidence presented at trial was insufficient to establish that he was guilty of the Cross murder or to support the special circumstance finding that the murder was committed in the course of a robbery. We conclude substantial evidence supports the challenged verdict. In reviewing a challenge to the sufficiency of the evidence, we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] `[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.] ( People v. Guerra, supra, 37 Cal.4th at p. 1129.) Defendant argues the evidence was insufficient to support the guilty verdict because the trial court should have excluded certain testimony and evidence, and because Jessica Brock's testimony was not credible. As discussed ante, we have concluded the challenged evidence, specifically the composite drawings of the suspects completed with Agent Bulman, Bulman's identification of defendant's photographs, and the presumptive blood tests on the seized jacket, was properly admitted. Therefore, that aspect of defendant's claim is without merit. As to Jessica's testimony, defendant is correct that Jessica's version of events changed numerous times between her pretrial statements to the police and the defense attorney, and during her trial testimony. However, we are convinced that a rational trier of fact reasonably could have believed the first version that Jessica gave to the police, the version that strongly incriminated defendant, and reasonably could have found that her story changed only because defendant, his family, Jessica's family, and even Jessica's own internal conflicted loyalties, pressured Jessica to lie and undermine the case against defendant. The possible shortcomings defendant points to in Jessica's testimony, Agent Bulman's identification of defendant's photographs, the presumptive blood tests on the jacket, and the evidence of the eyeglasses found at the scene were brought out through the examination of the relevant witnesses and counsel's arguments to the jury. On appeal we do not reevaluate the weight or credibility of this evidence, nor do we examine each piece of evidence in isolation. Viewed in the light most favorable to the jury's verdict, the evidence and the reasonable deductions arising from it adequately support the jury's finding that defendant was guilty of Agent Cross's murder beyond a reasonable doubt. Even were we to conclude the evidence reasonably might be reconciled with a contrary finding, this would not warrant a reversal of the judgment. Defendant challenges the robbery-murder special-circumstance finding on the grounds (1) that there was insufficient evidence that defendant intended to rob Agents Bulman and Cross; and (2) that the taking of the shotgun and keys constituted a robbery in the course of committing the murder, which would not support the special circumstance finding. (See People v. Marshall (1997) 15 Cal.4th 1, 41 [61 Cal.Rptr.2d 84, 931 P.2d 262] ( Marshall ).) (21) The special circumstance applies if defendant was engaged in the commission of, or the attempted commission of, a robbery. (§ 190.2, subd. (a)(17)(A).) The jury reasonably could have found from the evidence that the assailants identified the agents, who appeared to be civilians parked on a poorly lit street, as potential victims to rob, cased the victims by slowly driving by twice and by watching the agents from behind the vegetation-covered fence next to their car, and waited until it was dark to commit their crime. The jury reasonably could have found that when defendant and the other assailant approached the agents' car from behind, one on each side and with at least one of them being armed with a firearm, they intended to take the agents' personal property from their presence by force or fear with the intent of permanently depriving them of that property and had taken a substantial step towards completing the robbery, and that they therefore were engaged in the attempted commission of a robbery. ( Marshall, supra, 15 Cal.4th at p. 34 [defining robbery]; People v. Swain (1996) 12 Cal.4th 593, 604 [49 Cal.Rptr.2d 390, 909 P.2d 994] [To constitute an attempt, there must be (i) proof of specific intent to commit the target crime and (ii) a direct, ineffectual act done towards its commission.].) The jury also reasonably could have found that once the would-be robbers discovered their victims were armed law enforcement officers who might apprehend them on the spot, defendant decided to murder the agents in order to facilitate his and his partner's escape from the botched robbery. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1025-1026 [248 Cal.Rptr. 568, 755 P.2d 1017] [robbery-felony-murder special circumstance includes murder committed during period the perpetrator is in flight from the crime until he reaches a place of temporary safety].) That the incident never progressed to the point where the assailants could say to the agents, This is a robbery, give us your property, is immaterial because the reasonable inferences the jury could draw from the evidence amply support the finding that committing a robbery was their unspoken intent. Similarly, given that the jury reasonably could have found that defendant was engaged in an attempt to commit a robbery by the time he and his partner first contacted the agents, and that defendant subsequently murdered Agent Cross during his flight from this unsuccessful attempt, we need not consider whether, as defendant contends, the taking of the shotgun and the keys was an incidental robbery in the course of a murder such that reliance on that evidence to prove the special circumstance would violate the rule we stated in Marshall, supra, 15 Cal.4th at page 41, that [t]he robbery-murder special circumstance applies to a murder in the commission of a robbery, not to a robbery committed in the course of a murder. In sum, we conclude the evidence was sufficient to support the jury's guilty verdict and its finding that the robbery-murder special circumstance was true.",sufficiency of the evidence
+96,2631213,1,1,"¶ 2 Shattuck-Owen worked as a server in Snowbird's banquet department. On May 24, 1996, she was scheduled to work two consecutive shifts. After completing her first shift, she retired to a lounge area to rest. While there, an unidentified man sexually assaulted her. The assault was recorded by Snowbird surveillance cameras. After the assault, Shattuck-Owen immediately informed her supervisor, who in turn reported the incident to Snowbird management. Management notified the police, who began an investigation. ¶ 3 Snowbird admits showing the surveillance video to nine people in conjunction with the investigation: 1) Richard Caldwell, Investigative Coordinator for Snowbird's Department of Public Safety; 2) Randy Keisker, Assistant Director for Snowbird's Department of Public Safety; 3) Dan Green, Snowbird investigator; 4) Brian Florida, Snowbird's Executive Chef, who viewed the tape to rule out the possibility that the perpetrator was one of his employees; 5) Heather Blume, Snowbird's Food and Beverage Manager, who viewed the tape to rule out her employees; 6) Tom Maxfield, Snowbird's Bell Captain and Valet Supervisor, who viewed the tape to rule out his employees; 7) Janine Wyatt, Snowbird's Conference Service Manager, who probably viewed the tape to rule out her employees; 8) Terry Comstock, Sandy Police Department, who was investigating a rapist in Sandy, Utah; and 9) Linda Ziprich, a victim of the Sandy rapist. ¶ 4 In addition to these nine people, Shattuck-Owen alleges that her supervisor, Brett Hanson, watched the video, as did two or three other individuals who were walking in and out of the security office while the tape was showing. ¶ 5 In early June, Shattuck-Owen contacted Kerry Roberts, Snowbird's Human Resources Director. Roberts suggested that Shattuck-Owen contact Michelle Myers, a therapist who worked with Snowbird's Employee Assistance Program, to help Shattuck-Owen deal with the trauma caused by the assault. Shattuck-Owen expressed a preference to see a private therapist with whom she already had a comfortable relationship. According to Shattuck-Owen, Roberts told her to first see Michelle Myers, and if Myers felt Shattuck-Owen would be better served by seeing a private therapist, then Roberts saw no reason why Snowbird would not be willing to help or support her. ¶ 6 Shattuck-Owen did consult with Myers, who recommended that Shattuck-Owen work with her own therapist. Snowbird refused to pay for Shattuck-Owen's therapy. Shattuck-Owen never pursued Workers' Compensation benefits for any injuries stemming from the assault or for the costs of therapy. ¶ 7 In September 1997, Shattuck-Owen filed suit against Snowbird, claiming that it invaded her privacy by carelessly allowing numerous people to view the video of the sexual assault. Shattuck-Owen also claimed that Snowbird had contracted to pay her therapy bills and breached that contract. Snowbird moved for summary judgment, arguing that both claims were barred by the exclusive remedy provision of the Workers' Compensation Act. In addition, Snowbird argued that even if the claims were not barred, they failed as a matter of law. Specifically, Snowbird asserted that Shattuck-Owen could not prove all the elements of her invasion of privacy claim, and that she could not prove breach of contract because no valid contract existed. As to the validity of the alleged contract, Snowbird asserted that Roberts had no authority to enter into a contract for Snowbird, and that the conversation creating the alleged contract lacked sufficiently definite terms. ¶ 8 Following oral argument, the trial court granted summary judgment to Snowbird. The trial court ruled that Shattuck-Owen's claims were barred by the Workers' Compensation Act and that even if they were not, they failed as a matter of law. The court determined that Shattuck-Owen could not prove a necessary element of her invasion of privacy claim. It also ruled that Roberts did not have authority to contract on behalf of Snowbird. The trial court did not rule on whether the conversation between Shattuck-Owen and Roberts contained sufficiently definite terms to constitute a contract. Shattuck-Owen appeals.",facts
+97,887226,1,4,"¶ 14 Whether probable cause existed to support the warrantless seizure of Pierce's truck. ¶ 15 Pierce contends that Officer Hoffman lacked probable cause to seize and impound his truck and thereby violated his right to be protected against unreasonable seizure. Officer Hoffman seized Pierce's truck without a warrant, after arresting him based on his outstanding warrants, when he placed evidence tape around the truck and had it towed and impounded. Officer Hoffman did so, however, only after smelling burnt marijuana in the truck and Pierce admitted that someone had smoked marijuana in the truck. ¶ 16 This matter mirrors State v. Broell (1991), 249 Mont. 117, 122, 814 P.2d 44, 47, where Broell argued that the police unlawfully seized his car when they impounded it without a warrant before the issuance of a search warrant. We held that a warrantless seizure of a car fell under the automobile exception to illegal searches and seizures and is permissible where there is probable cause to believe that such automobile's contents `offend against the law.' Broell, 249 Mont. at 122, 814 P.2d at 47 (citing State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708). ¶ 17 Pierce contends that Broell should not control this matter as we have since rejected the automobile exception and demands that a warrantless search of an automobile requires the existence of probable cause as well as a generally applicable exception to the warrant requirement such as a plain view search, a search incident to arrest, or exigent circumstances. State v. Elison, 2000 MT 288, ¶¶ 53-54, 302 Mont. 228, ¶¶ 53-54, 14 P.3d 456, ¶¶ 53-54. Pierce claims that he maintained a privacy interest in his truck and invites us to apply Montana's fundamental right to privacy under Article II, Section 10, of the Montana Constitution to the seizure of his truck. He points to State v. Martinez, 2003 MT 65, ¶ 52, 314 Mont. 434, ¶ 52, 67 P.3d 207, ¶ 52, where we held that a traffic stop based on an unreliable tip constituted an unconstitutional infringement on Martinez's right to privacy. ¶ 18 Pierce seemingly again forgets, however, that Officer Hoffman smelled the burnt marijuana, not based on a tip, but because he requested that Officer Hoffman retrieve his phone book from the truck. Pierce apparently also has a memory lapse regarding his own admission, and not that of an informant's admission, that someone had committed the offense of smoking marijuana inside of the truck. We therefore reject Pierce's invitation to disallow the seizure of his truck under Article II, Section 10, and conclude that, for today, Broell controls the warrantless seizure. See Elison, ¶ 54, n. 3. As we have noted, the seizure at issue in Broell was lawful regardless of exigent circumstances because `there was sufficient probable cause under the facts of this case to believe that illegal drugs were located in Broell's car.' Elison, ¶ 54, n. 3 (quoting Broell, 249 Mont. at 123, 814 P.2d at 47). ¶ 19 Similar to Broell, we will base our analysis on Officer Hoffman's probable cause to conduct the warrantless seizure solely on the information that Officer Hoffman received before towing and impounding the truck. Broell, 249 Mont. at 122, 814 P.2d at 47. We agree with the State that Officer Hoffman possessed sufficient facts before towing the truck, including the smell of burnt marijuana, Pierce's admission that someone had smoked marijuana in the truck, and the dispatch report that Pierce had earlier drug-related convictions, upon which to conclude that the contents of Pierce's truck offended against the law. Broell, 249 Mont. at 122, 814 P.2d at 47. ¶ 20 Pierce attempts to eliminate Officer Hoffman's reliance on Pierce's criminal record as justification to seize the truck because his only prior drug offense had been a 25 year-old misdemeanor possession of drugs conviction. Pierce points to Tackitt, ¶ 6, where we concluded that a seven-year-old misdemeanor drug citation proved insufficient to serve as corroboration for an anonymous tip to establish particularized suspicion to order a canine sniff. Tackitt, ¶ 41. We first note that Tackitt is not controlling given that the issue here involves a seizure of a truck based upon the owner's admission that an offense had taken place inside it and not whether the required particularized suspicion existed, based on stale information, to conduct a dog sniff. Tackitt, ¶ 41. Officer Hoffman relied on the information that the dispatcher provided at that time, which was that Pierce had several earlier drug-related offenses. ¶ 21 We agree with the State that even if Officer Hoffman improperly considered Pierce's earlier drug-related offenses in deciding to seize the truck, sufficient facts upon which Officer Hoffman could conclude that the contents of the truck offended the law remained. Officer Hoffman still smelled burnt marijuana and Pierce admitted that someone had smoked marijuana in the truck earlier that same day. ¶ 22 Pierce next argues that the odor of marijuana is insufficient to establish probable cause for the warrantless seizure of his truck. State v. Schoendaller (1978), 176 Mont. 376, 382, 578 P.2d 730, 734, followed by State v. Olson (1979), 180 Mont. 151, 155, 589 P.2d 663, 665. These cases do not control here. Schoendaller concerned the issue of probable cause to conduct a warrantless search based on the odor of marijuana alone. Olson concerned probable cause to obtain a search warrant again relying exclusively on the odor of marijuana. We agree with the State's assertion that throughout his argument, Pierce continually glosses over the fact that he admitted that a crime — marijuana smoking — had been committed in the truck, and that this fact cannot be ignored. Officer Hoffman used the odor in conjunction with Pierce's admission to establish probable cause to seize the truck. ¶ 23 We conclude that Officer Hoffman had probable cause to support the warrantless seizure of Pierce's truck.",issues
+98,2003707,1,2,"Before defendant's convictions and death sentence may be meaningfully reviewed by this court we must decide a critical threshold issue: Was defendant entitled to a fitness hearing to assess whether he was competent to participate in and understand his defense and sentencing, before his guilty plea was accepted and the death penalty imposed? Section 104-21(a) provides in pertinent part that a defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication. (Emphasis added.) (725 ILCS 5/104-21(a) (West 1992).) In the case at bar, defense counsel did not request a fitness hearing, nor did the trial court determine that such hearing was necessary. However, the defendant's use of Thorazine was brought out in the presentencing report ordered by the court. It does not appear from the record that any inquiry was made to determine whether and to what extent defendant's use of such medication might have affected his fitness to assist in his defense. Initially, we note that defendant did not raise a challenge to his mental competence until the filing of this appeal, which raises the question of waiver. This court has held that where a defendant's capacity is the issue in question, it is anomalous to even consider the concepts of waiver because a defendant whose mental state may render him unfit to stand trial can scarcely be expected to raise the question of fitness in the first instance. ( Brandon 162 Ill.2d at 457, 205 Ill.Dec. 421, 643 N.E.2d 712.) In Brandon, we also noted application of the plain error doctrine. The issue of a defendant's fitness for trial may be raised before, during, or after trial. (725 ILCS 5/104-11 (West 1992); see People v. Johnson (1984), 121 Ill.App.3d 859, 77 Ill.Dec. 280, 460 N.E.2d 336 (reversing for fitness hearing on issue of defendant's fitness to stand trial where trial court had found defendant fit for trial but unfit for sentencing).) Trial counsel's failure to pursue defendant's right to request a competency hearing pursuant to section 104-21(a) does not waive the issue (see Brandon, 162 Ill.2d 450, 205 Ill.Dec. 421, 643 N.E.2d 712), and where the record indicates that a defendant's use of psychotropic medication was proximate to the time he pleaded guilty and was sentenced, the trial court has a duty to further investigate the defendant's fitness for trial. ( Gevas, 166 Ill.2d at 469, 211 Ill.Dec. 511, 655 N.E.2d 894.) In light of these principles, we decline to apply waiver in the case at bar to preclude consideration of whether defendant's use of psychotropic medication while incarcerated entitled him to a fitness hearing. Due process bars prosecution of a person who is not competent to stand trial. ( E.g., Drope v. Missouri (1975), 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 113; Pate v. Robinson (1966), 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 822; People v. Eddmonds (1991), 143 Ill.2d 501, 512, 161 Ill.Dec. 306, 578 N.E.2d 952.) Fitness to stand trial refers to a defendant's ability to understand the nature and purpose of the proceedings and to assist in the defense. Although a defendant's fitness is presumed by statute (725 ILCS 5/104-10 (West 1992)), the circuit court has a duty to order a fitness hearing whenever there exists a bona fide doubt as to the ability of the defendant to understand the charges and participate in his defense. (725 ILCS 5/104-10 (West 1992); People v. Murphy (1978), 72 Ill.2d 421, 21 Ill.Dec. 350, 381 N.E.2d 677; People v. Burson (1957), 11 Ill.2d 360, 143 N.E.2d 239.) Whether a bona fide doubt of defendant's competence has been raised is generally held to be within the discretion of the trial court. E.g., Murphy, 72 Ill.2d 421, 21 Ill.Dec. 350, 381 N.E.2d 677; People v. Stanhope (1969), 44 Ill.2d 173, 179, 254 N.E.2d 512. In Gevas, 166 Ill.2d at 469, 211 Ill.Dec. 511, 655 N.E.2d 894, we observed, The legislature has equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial. Therefore, the broad discretionary standard ordinarily applied in deciding whether there exists a bona fide doubt yields when the accused is taking psychotropic medication under medical direction at the time of his trial or sentencing. (See Brandon, 162 Ill.2d 450, 205 Ill.Dec. 421, 643 N.E.2d 712.) In Brandon, we held that where section 104-21(a) applies, a hearing is mandatory, not subject to the trial court's discretion, and that defense counsel's failure to move for such hearing, where applicable, constitutes ineffective assistance. In Gevas, we recognized that the circuit court has the duty to hold a fitness hearing when defense counsel requests such a hearing based on defendant's use of psychotropic medication. Our decisions in Brandon and Gevas were premised on the General Assembly's recognition that psychotropic medication is an important signal that a defendant may not be competent to stand trial. ( Brandon, 162 Ill.2d at 457, 205 Ill.Dec. 421, 643 N.E.2d 712; Gevas, 166 Ill.2d at 468-69, 211 Ill.Dec. 511, 655 N.E.2d 894.) We held that the defendants had been deprived of their right to a fitness hearing pursuant to section 104-21(a) and we further determined that it would not be possible to conduct a meaningful hearing, retrospectively, on the issue of the defendants' fitness at the time of trial and sentencing. (See Gevas, at 471, 211 Ill.Dec. 511, 655 N.E.2d 894.) Accordingly, we reversed the defendants' death sentences and underlying convictions and remanded to give the State the opportunity to again prosecute the defendants. In the case at bar, the State argues that defendant was not entitled to a fitness hearing at the time of his plea and sentencing. According to the State, Dr. Day's psychological evaluation of defendant weeks before the court's acceptance of the guilty plea indicated that defendant suffered from depression, but was cooperative and competent and did not suffer from a mental disease or disorder. The State additionally notes that the trial court made significant efforts to ensure that defendant understood each phase of the proceedings. Further, the State contends, there is no suggestion in the record that defendant was unable to understand the relevant events or was incompetent to assist his attorney in the preparation of his case. Accordingly, the State insists that there was no bona fide doubt regarding defendant's competence and the trial court did not abuse its discretion in failing to hold an evidentiary hearing on defendant's fitness. In support, the State cites certain appellate court opinions, decided before Brandon and Gevas, which took the view that a defendant's ingestion of psychotropic medication was, in effect, but one factor in the trial court's bona fide doubt analysis. See People v. Lopez (1991), 216 Ill. App.3d 83, 87-88, 159 Ill.Dec. 577, 576 N.E.2d 246; People v. Balfour (1986), 148 Ill.App.3d 215, 226, 101 Ill.Dec. 223, 498 N.E.2d 547; People v. Tilson (1982), 108 Ill.App.3d 973, 978, 64 Ill.Dec. 490, 439 N.E.2d 1298. The State's reliance on cases such as Lopez, Balfour and Tilson fails to take into account the plain terms of section 104-21(a) of the Code of Criminal Procedure and this court's reasoning and holdings in Brandon and Gevas. While the trial court ordinarily is accorded broad discretion in gauging whether a bona fide doubt of defendant's competence exists, the instant case involves the possible influence of psychotropic medication, which may cause significant alteration of thought processes, mood, or general demeanor. In Brandon we considered the legislative mandate embodied in section 104-21(a) and rejected the argument that the trial court's personal observation of the defendant's deportment in court was an adequate substitute for a formal fitness hearing, particularly when psychotropic drugs are involved. ( Brandon, 162 Ill.2d at 459-60, 205 Ill.Dec. 421, 643 N.E.2d 712.) Federal cases similarly have rejected the argument that a court may decline to hold a fitness hearing if the defendant appeared rational and competent before and during trial. E.g., Pate v. Robinson (1966), 383 U.S. 375, 386, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 822; Griffin v. Lockhart (8th Cir.1991), 935 F.2d 926, 931 (holding that if there is sufficient doubt about the competency of an accused, later conduct of the accused `cannot be relied upon to dispense with a hearing'). In light of these authorities, we reject the State's argument that the trial court's observations of defendant's demeanor during the proceedings is dispositive of the fitness issue in the case at bar. If personal observation were the decisive factor in whether to hold a section 104-21(a) hearing, the effects of psychotropic medications on a defendant's mental functioning would be left to speculation or uninformed opinion. Such a result would render the courts' application of section 104-21(a) directory rather than mandatory, which in turn would erode our precedent of Brandon and Gevas. We believe that the legislature intended, through the plain language of the statute, to remove the determination of a defendant's fitness from the subjectivity of personal observation and place the question in the formal context of a fitness hearing. Psychotropic medications are potent drugs and their effect on the mind and behavior of an accused may not be easily determined or fully understood, particularly by nonmedical personnel. A fitness hearing provides the vehicle by which the court may ascertain whether the drugs are influencing the defendant's subjective decision regarding the pursuit of available defenses. As Justice Kennedy cautioned in Riggins v. Nevada (1992), 504 U.S. 127, 143-44, 112 S.Ct. 1810, 1819-20, 118 L.Ed.2d 479, 494-95 (Kennedy, J., concurring), antipsychotic drugs may flatten a person's will and distort his or her thought processes, interfere with the attorney-client relationship, and drain the defendant's desire for self-preservation. (See Gevas, 166 Ill.2d at 469-71, 211 Ill.Dec. 511, 655 N.E.2d 894.) This court also has recognized the substantially invasive nature of psychotropic substances and their significant side effects in the context of mentally ill patients' right to refuse psychotropic medication as part of their treatment. ( In re C.E. (1994), 161 Ill.2d 200, 214, 204 Ill.Dec. 121, 641 N.E.2d 345; see also Gutheil & Appelbaum, Mind Control, Synthetic Sanity, Artificial Competence, and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L.Rev. 77 (1983).) We conclude that personal observation of an accused who is on such medication does not replace the need for a fitness hearing. The State further contends that the outcome of the instant case would not have differed even if defense counsel had requested and defendant had received a full fitness hearing. (See Brandon, 162 Ill.2d at 461-64, 205 Ill.Dec. 421, 643 N.E.2d 712 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).) The State's reasoning is flawed: it is illogical to permit a court to surmise that a defendant would have been found fit without holding a hearing intended to determine that very issue. Moreover, such an approach misapprehends the purpose of a section 104-21(a) fitness hearing and encourages unprincipled speculation into matters requiring medical expertise. Therefore, we hold that when a defendant is entitled to a hearing on competency, as when the elements of section 104-21(a) are clearly satisfied, prejudice to defendant ordinarily will be presumed when his or her counsel fails to request such fitness hearing. (See Brandon, 162 Ill.2d 450, 205 Ill.Dec. 421, 643 N.E.2d 712.) As a corollary, if the trial court has notice that defendant is taking psychotropic medications, or when counsel requests a fitness hearing based on section 104-21(a), the court has a duty to inquire into the matter and hold a hearing to ascertain whether the use of such medications has rendered defendant unfit to assist in his or her defense. (See Gevas, 166 Ill.2d at 469, 211 Ill.Dec. 511, 655 N.E.2d 894.) In contrast, no hearing is required where the defendant's right to a fitness hearing pursuant to section 104-21(a) is not established, as where there is no indication that defendant was being treated with psychotropic medication during the relevant times, and the trial court has not otherwise abused its discretion in concluding that no bona fide doubt of unfitness is present. The instant case differs in certain respects from Brandon and Gevas. The bare fact that defendant was treated with Thorazine while in jail is all that exists in the record on the issue of defendant's medication. At the time defendant rejected the negotiated plea, trial counsel informed the court that she did not believe that defendant was unfit, based on her conversations with defendant and Dr. Day's psychological examination of him. In contrast, the trial attorneys in Brandon and Gevas raised at least a question regarding their clients' fitness at some point in the proceedings, before or after conviction and sentencing. That defendant's counsel in the case at bar never questioned defendant's competence to proceed factually distinguishes the instant case from Brandon and Gevas. Nonetheless, such distinction does not, by itself, resolve the underlying question of whether and to what extent the psychotropic medication may have influenced defendant's decision to seek the death penalty. We therefore review the specific facts that were persuasive in Brandon and Gevas respecting the right to a fitness hearing. In Brandon, the trial court appointed an expert to conduct an evaluation of defendant but concluded that the expert's report did not raise a bona fide doubt of the defendant's competence to stand trial. Thereafter, defense counsel moved for a fitness hearing on the ground that defendant's learning disability prevented him from assisting in the defense. The court conducted a hearing to determine whether a bona fide doubt of fitness existed, but concluded that grounds for a full fitness hearing had not been established. On appeal, we noted that the record of the sentencing hearing revealed that the defendant was taking antipsychotic drugs as part of a treatment program while incarcerated and that he was on the medications continuously during his trial and throughout the sentencing proceedings. Because defense counsel did not specifically raise the issue of this drug treatment as grounds for a fitness hearing pursuant to section 104-21(a), we held that counsel had rendered ineffective assistance. In Gevas, the court ordered a sanity and fitness evaluation of defendant. The doctor who examined defendant pursuant to this court order initially could not reach an opinion, because of defendant's lack of cooperation, but later found defendant legally sane and fit to stand trial. Defense counsel failed to advise the trial court of the opinion of another doctor, a psychiatrist who had examined defendant before defendant pleaded guilty. This doctor was of the opinion that, at the time of the crimes, defendant was sane but of questionable fitness to assist in his defense. Post trial, defendant filed a pro se motion for execution of death sentence and to eliminate all appeals. His counsel filed a post-trial motion to withdraw the guilty plea, inter alia, and presented the affidavit of the psychiatrist in whose opinion the defendant was unfit to assist in his defense. The affidavit noted that defendant was being treated with Thorazine, and other antipsychotic and antidepressant medications, on certain dates prior to the time defendant entered his plea and was sentenced. In denying the post-trial motion, the trial court in Gevas stated its belief that a fitness hearing previously had been held. The trial court added its opinion, based on personal observation, that defendant knew what was happening in the courtroom. On appeal, we reversed defendant's convictions and sentence and remanded for new trial. We observed that, although the record did not establish that defendant was taking the medications on the exact dates he pleaded guilty and was sentenced, the last date on which defendant was shown to have been taking the drugs was proximate enough to the dates defendant pleaded guilty and was sentenced to have imposed a duty on the trial court to further investigate defendant's fitness for trial. ( Gevas, 166 Ill.2d at 469, 211 Ill.Dec. 511, 655 N.E.2d 894.) We also noted that the trial court was mistaken in its belief that a fitness hearing had been held, as a fitness evaluation by a doctor is not the same as a formal fitness hearing. In the case at bar, no fitness hearing of any kind was held and it does not appear that defense counsel requested a psychological evaluation for the specific purpose of ascertaining defendant's fitness to stand trial. At the sentencing stage, some information regarding defendant's medication was available, along with his history of suicide attempts, self-mutilation, and psychiatric treatment. Neither defense counsel nor the court considered or inquired into defendant's use of psychotropic medication and its possible effect on his mental cognition, mood, or demeanor. As was the case in Brandon and Gevas, it appears that the relationship between the defendant's use of psychotropic medications and the existence of a bona fide doubt of his fitness was not fully realized at the trial level. Our precedent has now established that the administration of psychotropic drugs to persons accused of crimes is a strong signal that the fitness of such accused is in issue; if the requisites of section 104-21(a) are satisfied, the defendant is entitled to a fitness hearing as a matter of right. In the instant case, the reference to defendant's psychotropic medication in the presentencing report placed the attorneys and the circuit court on notice that defendant's fitness was at least arguably in issue during the time of his plea bargaining and sentencing. However, unlike the situation presented in Brandon and Gevas, in the case at bar we do not have an adequate record upon which to evaluate whether defendant's receipt of psychotropic drugs while in jail was medically significant. We cannot determine whether the administration of the Thorazine was proximate enough in time to defendant's guilty plea and sentencing to trigger the right to a full fitness hearing pursuant to section 104-21(a). We cannot reliably ascertain from the instant record when defendant began to take Thorazine, the amount prescribed, the medical reasons it was prescribed for him, or in what manner the drug might have influenced defendant's mental functioning, mood, and demeanor in the courtroom. Further inquiry into the specifics of defendant's drug usage at the time of his sentencing would have provided the trial court with facts relevant to whether the court had a further duty, under section 104-21(a), to conduct a formal fitness hearing. See Gevas, at 469-70, 211 Ill.Dec. 511, 655 N.E.2d 894. Because no such inquiry was made, this court cannot now determine whether defense counsel's failure to request a fitness hearing under section 104-21(a) and the court's failure to hold such hearing denied defendant due process of law. If we were to affirm defendant's convictions and death penalty without considering the possibility that psychotropic medication might have deprived him of his competence, we would risk tilting the balance toward finality of judgment at the expense of fundamental fairness. However, if we were to vacate the guilty plea and death sentence and remand for new trial, as we did in Brandon and Gevas, without the circumstances present in those cases, we would be creating an unjustified burden upon the State's resources, in forcing reprosecution of a defendant whose right to a full competency hearing is not established in the record. We conclude that a limited remand for clarification of the circumstances surrounding defendant's use of psychotropic medications strikes the proper balance in the case at bar. Defendant contends that other factors in addition to his use of psychotropic medication gave rise to the trial court's duty to hold a fitness hearing, i.e., defendant's sudden decision to seek the death penalty after he had been cooperating with counsel and pursuing the plea agreement under which his life would be spared. Defendant argues that the choice of death raises a bona fide doubt as to his mental fitness at the time of his plea, especially in light of his history of mental health problems and self-destructive behaviors. We need not determine, in the abstract, whether a defendant who pleads guilty with the hope or expectation of receiving the death penalty should be automatically viewed as lacking the mental competence to make such decision. (See, e.g., Rees v. Peyton (1966), 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583; Felde v. Blackburn (5th Cir. 1986), 795 F.2d 400.) While a defendant's choice of the death penalty may raise a question of his or her competence, in a particular case, we believe that it is a factor for the circuit court to consider in the context of the specific circumstances presented. Here, the record indicates that defendant twice attempted suicide and has a history of harming himself. Dr. Day testified that defendant's destructive conduct was indicative of low self-esteem and a desire for punishment. Defendant's request for the death penalty might be viewed as a plea for State-assisted suicide, and we do not believe that Illinois trial courts and juries should be put in the position of granting such requests as a matter of a defendant's stated preference. Defendant's selection of execution following his counsel's successful negotiation of a plea agreement for a term of years should not necessarily have been accepted as a rational decision under the circumstances. In Gevas, the defendant also requested the court to impose the death penalty, expressing the desire to `get this over with as soon as possible.' We commented that it was unknown to what extent defendant's treatment with these [psychotropic] drugs affected his unwillingness to present a defense, and this issue could have been resolved at a fitness hearing. ( Gevas, 166 Ill.2d at 471, 211 Ill.Dec. 511, 655 N.E.2d 894.) Similarly, in the instant case we do not know the extent to which the drugs or other factors might have affected defendant's request for the death penalty. In light of the importance the legislature has placed on the right of an accused taking psychotropic medication to receive a fitness hearing under section 104-21(a), and in accordance with the rationale underlying our recent precedent, we hold that a limited remand is necessary. We do not at this time vacate defendant's plea of guilty or hold that he should have been given a fitness hearing before he entered the plea and was sentenced. Instead, we retain jurisdiction over this appeal and order the circuit court to conduct an inquiry into the factual circumstances surrounding defendant's asserted use of psychotropic medication while in prison. These circumstances include the dates on which he received and ingested such medicine and whether the psychotropic drug treatment is linked closely enough to the time of defendant's plea of guilty and sentencing to have entitled him to a competency hearing pursuant to section 104-21(a). After holding this factual inquiry into defendant's use of psychotropic medication, the circuit court shall report its findings to the clerk of this court within 60 days of this decision, accompanied by a record of the proceedings on remand. In the exercise of this court's supervisory authority, we order a remand of this cause, in accordance with the foregoing directions, to the circuit court of Mason County for further proceedings. Cause remanded with directions; jurisdiction retained.",analysis
+99,2819741,1,3,"¶12 “On certiorari, we review for correctness the decision of the court of appeals . . . . The correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [district] court’s decision under the appropriate standard of review.” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. In other words, in order to determine whether the court of appeals erred in finding that the district court did not abuse its discretion, we must ourselves review the district court’s decision for an abuse of discretion. See Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (“[D]istrict courts are granted a great deal of deference in selecting discovery sanctions, and we overturn a sanction only in cases evidencing a clear abuse of discretion.”). ¶13 We must also determine whether the court of appeals erred in deciding it could not consider the petitioners’ legal sufficiency arguments because they were unpreserved. This was a decision of law, which we review for correctness. See Arnold v. Grigsby, 2009 UT 88, ¶ 7, 225 P.3d 192 (“We review conclusions of law for correctness, granting the court of appeals’ decision no deference.”).",standard of review
+100,2388954,1,1,"Appellant's motion to be treated as a juvenile was based upon her assertion that she was a child within the meaning of D.C. Code 1973, § 16-2301(3). That subsection provides, in part, that the term child includes a person under the age of twenty-one who is charged with [certain offenses, including burglary I] committed before [s]he attained the age of sixteen . . . . Appellant presented evidence (fully contested by the government) that she was under sixteen years of age when the burglary with which she is charged occurred, in April 1975. Appellant's assertions, if believed, would entitle her to transfer of her case to the Family Division. D.C.Code 1973, § 16-2302(a), requires a trial judge of the Criminal Division to transfer a case to the Family Division if it appears to [the] court, during the pendency of a criminal charge and before the time when jeopardy would attach in the case of an adult, that a minor defendant was a child at the time of an alleged offense . . . . Section 16-2302(b) provides that if at the time of an alleged offense, a minor defendant was a child but this fact is not discovered by the court until after jeopardy has attached, the court shall proceed to verdict. Assuming that the defendant is convicted, the conviction shall not be set aside on the ground of the defendant's age unless the court, after hearing, determines that (1) neither the defendant nor his counsel, prior to the entry of judgment, had reason to believe that defendant was under the age of eighteen years, and (2) the defendant would not have been transferred [from the Family Division] for criminal prosecution [under D.C.Code 1973, § 16-2307]. [ Id. ] The plain language of this last provision would preclude a post-judgment remedy in this court where, as here, both defendant and counsel had reason to believe, prior to judgment, that she was under the age of eighteen. A defendant's asserted right to disposition in juvenile proceedings, therefore, is forever lost if not resolved in her favor before jeopardy has attached. The ruling in this case meets all of the tests of finality enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and, more recently, in Abney v. United States, 431 U.S. 651, 654-662, 97 S.Ct. 2034, 2038-2042, 52 L.Ed.2d 651, 657-62 (1977). The order was final in the sense that [t]here are simply no further steps that can be taken in the [trial court] to avoid the trial . . . . Abney v. United States, supra at 659, 97 S.Ct. at 2040, 52 L.Ed.2d at 660. The right asserted is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not [she] is guilty of the offense charged. Id. Appellant makes no challenge whatsoever to the merits of the charge against [her]. Id. That the determination that appellant be tried as an adult is too important to be denied review, Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. at 1226, is amply demonstrated by the statutory right of interlocutory appeal granted to juvenile offenders over whom the Family Division has waived jurisdiction. D.C.Code 1973, § 16-2327. Finally, as discussed above, a post-judgment appeal will be too late effectively to review the present order, and [appellant's] rights . . . will have been lost, probably irreparably. Cohen v. Beneficial Industrial Loan Corp., supra at 546, 69 S.Ct. at 1225. A further consideration re-enforces our conclusion that an order such as this is final and appealable. When juvenile proceedings have been instituted in the Family Division, a judge of that Division may, under certain circumstances, order transfer of the juvenile to the Criminal Division for criminal prosecution. D.C.Code 1973, § 16-2307. Such an order, however, is immediately appealable. Id. § 16-2327. Were we to hold that an order denying a motion to transfer from the Criminal Division to the Family Division is non-appealable, then the right to appellate review of the proper Superior Court forum for adjudication would be dependent upon the government's choice of an initial forum. If the government chose to institute juvenile proceedings in the Family Division, a transfer for criminal prosecution would be appealable. But if the government chose to institute a prosecution in the Criminal Division, an order denying transfer for juvenile proceedings would not be appealable. In each case the right asserted is the same: the right to juvenile adjudication. That right is no less valuable when asserted in the Criminal Division, and the remedy for asserted denial of that right should be no less available. We hold that the order entered in this case was final and immediately appealable.",jurisdiction
+101,2548772,1,1,"[¶ 2] The issues presented by Father are as follows: A. Whether [Father] neglected his child as that term is defined [by] Wyoming Statute. B. Whether the Court may consider evidence of a guilty plea by [Father] in a separate matter entered after the close of evidence in this case. C. Whether the evidence presented by the State through its witnesses in support of termination is credible in light of the fact that the State's witness, Nelinda Dahmke, mislead and made false statements to the District Court. [¶ 3] DFS phrases the issue as follows: Whether the district court's finding that [Father's] parental rights to KLS should be terminated was established by clear and convincing evidence?",issues
+102,3160077,1,2,"[¶10] We review a district court’s determination to deviate downward from the presumptive child support amount for an abuse of discretion. Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 836, 840 (Wyo. 2015); Egan v. Egan, 2010 WY 164, ¶ 7, 244 P.3d 1045, 1048 (Wyo. 2010).",standard of review
+103,2049885,1,3,"Appellants next argue that the circuit court has subject matter jurisdiction over forfeiture actions commenced under sec. 196.625, Stats., since forfeiture actions are civil actions. Respondent, on the other hand, contends that the public service commission is the preferred forum. Sec. 288.01, Stats. 1975, provides, ... Where a forfeiture imposed by statute shall be incurred it may be recovered in a civil action unless the act or omission is punishable by fine and imprisonment or by fine or imprisonment. The word forfeiture, as used in this chapter, includes any penalty, in money or goods. (Emphasis supplied.) And, more specifically, sec. 195.07(3), Stats. 1975, states that any forfeiture provided in chapter 196 may be recovered in a civil action. Clearly, sec. 196.625 imposes a forfeiture, and civil actions are governed by the rules in ch. 801, et seq., Stats. (formerly ch. 260 et seq. ), which set forth the procedures to be used in circuit court. Civil action does not mean a hearing before the public service commission. Furthermore, sec. 196.76, Stats. 1975, states in part: ... all penalties and forfeitures accruing under said chapters [chs. 196 and 197] shall be cumulative and a suit for any recovery of one shall not be a bar to the recovery of any other penalty. (Emphasis supplied.) Obviously, the legislature contemplated that any forfeitures imposed by sec. 196.625 are to be recovered by suing in court and not by requesting a hearing before the public service commission.  Respondent cites sec. 196.02(1), Stats., in support of its contention that the public service commission has primary jurisdiction in this case and that the trial court should yield to it. That section provides: (1) The commission is vested with power and jurisdiction to supervise and regulate every public utility in this state, and to do all things necessary and convenient in the exercise of such power and jurisdiction. [8] This court has stated: The Public Service Commission may exercise only such power `as is expressly or by inference conferred upon it' by statute. Eau Claire v. Wisconsin-Minnesota Light & Power Co., 178 Wis. 207, 215, 189 N.W. 476 (1922). `The commission does not exercise the entire regulatory power of the state. It may exercise only such powers as the legislature has seen fit to confer upon it and those powers must be exercised in the manner prescribed.' Wisconsin Telephone Co. v. PSC, 232 Wis. 274, 326, 287 N.W. 122 (1939). Friends of Earth v. Public Service Commission, 78 Wis.2d 388, 400, 254 N.W.2d 299 (1977). Nowhere in chapter 196, Stats., has the legislature given the public service commission the express or implied power to impose a forfeiture for a violation of sec. 196.625. The legislature has expressly stated that such a forfeiture is to be recovered in a civil action. [9] In the present case appellants seek a forfeiture, alleging that respondent wrongfully disconnected their telephone service. Thus, the trial court had jurisdiction to hear the case. [10] Furthermore, the doctrine of primary jurisdiction would not deprive the court in this case of subject matter jurisdiction, since the primary jurisdiction rule is not  concerned with subject matter jurisdiction. Beal v. First Fed. Sav. & Loan Asso. of Madison, 90 Wis.2d 171, 197, 279 N.W.2d 693 (1979); Browne v. Milwaukee Board of School Directors, 69 Wis.2d 169, 175, 230 N.W.2d 704 (1975); Wisconsin Collectors Asso. v. Thorp Finance Corp., 32 Wis.2d 36, 49, 145 N.W.2d 33 (1966).",jurisdiction
+104,4427284,1,3,"Shelter sets forth two reasons it believes the circuit court erred in granting summary judgment in Seaton’s favor. First, Shelter asserts the circuit court erred because Decedent is not an “insured” under the insurance policies’ unambiguous language. Second, Shelter asserts the circuit court erred in finding the insurance policies were internally inconsistent. Decedent was not an Insured Shelter argues the circuit court erred in entering judgment in Seaton’s favor because Decedent does not qualify as an insured under Seaton’s UIM insurance policies. Shelter contends Decedent does not meet any of the three definitions of “insured” set forth by the insurance policies. The “interpretation of an insurance policy is a question of law that this Court also determines de novo.” Owners Ins. Co. v. Craig, 514 S.W.3d 614, 616 (Mo. banc 2017) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “When interpreting an insurance policy, this Court gives the policy language its plain meaning, 3 or the meaning that would be attached by an ordinary purchaser of insurance.” Doe Run Res. Corp. v. Am. Guar. & Liab. Ins., 531 S.W.3d 508, 511 (Mo. banc 2017). “Definitions, exclusions, conditions and endorsements are necessary provisions in insurance policies.” Piatt v. Ind. Lumbermen’s Mut. Ins. Co., 461 S.W.3d 788, 792 (Mo. banc 2015) (quoting Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 163 (Mo. banc 2007)). A policy must be enforced as written when its language is clear and unambiguous. Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340, 344 (Mo. banc 2015). “An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.” Id. The endorsements on Shelter’s UIM insurance policies provide Shelter will pay uncompensated damages, subject to stated limitations, when “an insured sustains bodily injury as a result of an accident involving the use of an underinsured motor vehicle ….” (Emphasis added). Immediately thereafter, the endorsements in the UIM insurance policy set forth “additional and replacement definitions.” The insurance policy defined “insured” to be: (a) You; (b) any relative; and (c) any individual occupying the described auto who is listed in the Declarations as an ‘additional listed insured’, if: (i) that individual does not own a motor vehicle; and (ii) that individual’s spouse does not own a motor vehicle. (Emphasis in original). Shelter’s insurance policies state, “You means any person listed as a named insured in the Declarations ….” Further, Shelter defines a “named insured” as “any person listed in the Declarations under the heading ‘Named Insured’. It does not 4 include persons listed under other headings unless they are also listed under the heading ‘Named Insured’.” (Emphasis in original). Decedent fails to meet the definition of an insured to be entitled to UIM coverage. First, Decedent does not meet the definition of “you” when applying the plain language of the insurance policies’ terms. Decedent was not listed as a named insured on either insurance policy for which Shelter denied coverage. While Decedent was listed as an “Additional Listed Insured,” the insurance policies’ plain language indicates an “additional listed insured” is not the same as a “named insured.” Because Decedent was not listed as a named insured, she did not meet the policies’ definition of “you.” 2 See Carter v. Shelter Mut. Ins. Co., 516 S.W.3d 370, 374 (Mo. App. E.D. 2017). Second, Shelter’s insurance policies provide UIM coverage for a “relative.” Seaton argues an average layperson would believe Decedent was an insured because she was Seaton’s daughter. Further, Seaton claims even if the insurance policies’ definition of “relative” were applied, Decedent was not the sole owner of a motor vehicle and should still be considered a relative for insurance purposes. Based upon these assertions, Seaton believes the insurance policies were ambiguous. Throughout the insurance policies, the term “relative” is in bold letters. Insurance policy holders are instructed the words appearing in bold typeface have specific, defined meanings within the terms of the insurance policy. Conversely, any words not appearing in bold typeface have their common dictionary meaning. 2 Decedent was listed as the named insured in one of the Shelter insurance policies. Shelter provided UIM coverage pursuant to that policy. 5 “Relative” appears in bold typeface, indicating it has a specific, defined meaning under the insurance policies. The term “relative” is defined as “an individual related to you by blood, marriage, or adoption, who is primarily a resident of, and actually living in, your household…. Relative does not mean any individual who owns a motor vehicle ….” The insurance policy further defines the term “owns” to mean “the person referred to holds the legally recognized title to, or is a leaseholder of, an item of real or personal property, even if there are other owners.” To “own” a motor vehicle the person only has to hold title to it and may do so in conjunction with other owners. Seaton admitted in her response to Shelter’s statement of uncontroverted material facts Decedent was listed as a title owner on the certificate of title to a motor vehicle. Terms within an insurance policy do not become ambiguous merely due to the presence of an exclusion. Maxam v. Am. Family Mut. Ins. Co., 504 S.W.3d 124, 129 (Mo. App. W.D. 2016). The insurance policies’ plain language indicates UIM coverage will not be provided for a relative who owns a motor vehicle. Seaton admitted Decedent was an owner of a motor vehicle. Based upon the insurance policies’ plain language, it is clear Decedent did not meet the definition of a “relative” to receive UIM coverage because she owned a motor vehicle. See Lair v. Am. Family Mut. Ins. Co., 789 S.W.2d 30, 32 (Mo. banc 1990) (excluding son from uninsured motorist coverage based upon the insurance policy excluding coverage from any relative who “owns a car” when son owned a car jointly with his father). 6 Finally, Decedent does not meet the final definition of “insured,” which provides coverage for an “individual occupying the described auto ….” In this case, it is undisputed Decedent was a passenger in Driver’s vehicle at the time her injuries occurred. She was not an occupant of either vehicle insured by Shelter’s insurance policies. Pursuant to the plain language of Shelter’s policies, Decedent was not an insured and was not entitled to UIM coverage. Policies’ Internal Inconsistencies Shelter argues the circuit court erred in entering judgment in Seaton’s favor because it found the insurance policies to be internally inconsistent. The circuit court determined the insurance policies were ambiguous because there were provisions which promised coverage and later provisions which denied that coverage. This Court need not determine whether the limits of liability or other insurance provisions render the policies ambiguous because the insurance policies only extend coverage to insured individuals. Decedent does not meet the definition of an insured. Hence, the insurance policies are not internally inconsistent merely because they restrict UIM coverage to insured persons only. Swadley v. Shelter Mut. Ins. Co., 513 S.W.3d 355, 357 (Mo. banc 2017).",analysis
+105,4539122,1,5,"The district court did not err in rejecting the owelty award and finding that partition in kind would cause great prejudice 48 See In re Estate of McKillip, supra note 8. - 725 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports FTR FARMS v. RIST FARM Cite as 305 Neb. 708 to the owners. Accordingly, we affirm the district court’s order imposing partition by sale. We recognize that the default of the 2018 payment to the Dowells and the effect of other payments or defaults regarding that indebtedness not shown in our record may affect the ultimate distributions to the parties. Upon remand, the district court may make the adjustments necessary to achieve complete justice to the parties. Affirmed and remanded for further proceedings.",conclusion
+106,2184813,1,4,"In reviewing sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Tillman v. State, 642 N.E.2d 221 (Ind.1994). We consider only the evidence supporting the verdict and all the reasonable inferences drawn therefrom. Id. If each element of the crime is supported by substantial evidence, we affirm. Id. The physical evidence placing Haviland at the scene of the murder, his confession to three friends, and his confession to the police are adequate to support the jury's verdict.",sufficiency of the evidence
+107,2745634,1,2,"¶ 2 America West Bank (Bank) is wholly owned by its members, AWBM. On May 1, 2009, UDFI filed a petition in district court for an order approving the seizure of the Bank. That same day, the district court granted the petition without the presence or participation of AWBM. UDFI then appointed the Federal Deposit Insurance Corporation (FDIC) as receiver of the Bank. The FDIC announced publicly it had been appointed receiver of the Bank and immediately began winding down the affairs of the Bank and liquidating its assets. ¶ 3 On June 28, 2011, AWBM filed a complaint in district court against the State of Utah; UDFI; the commissioner of UDFI, Mr. G. Edward Leary; and UDFI‘s supervisor of banks, Mr. Tom Bay. AWBM also filed a notice of claim against Mr. Leary, as required by the Utah Governmental Immunity Act (Immunity Act).2 AWBM alleged various claims, including common law tort, breach of contract, breach of the covenant of good faith and fair dealing, constitutional takings, and due process violations. Liquidation of the Bank‘s assets was ongoing when AWBM filed its complaint. The State filed a motion to dismiss the complaint 1 AWBM initially included Mr. Tom Bay, the supervisor of banks for UDFI, as a party. However, Mr. Bay was not properly given notice of the claims as required by the Utah Governmental Immunity Act and was dismissed as a party. 2 See UTAH CODE § 63G–7–401 to -904. 2 Cite as: 2014 UT 49 ACJ NEHRING, opinion of the Court except as to Part II.B based on rules 12(b)(1) and 12(b)(6) of the Utah Rules of Civil Procedure. AWBM opposed the motion to dismiss. ¶ 4 In its opposition to the State‘s motion to dismiss, AWBM consented to the dismissal of some of its claims. AWBM acknowledged that it failed to file an appropriate notice of claim against Mr. Bay, as required by the Immunity Act, and as a result, all claims against Mr. Bay were dismissed.3 Additionally, AWBM conceded to the dismissal with prejudice of its claims of failure to disclose evidence at a hearing, negligent destruction of property, and negligence, based primarily on the existence of immunity enjoyed by the defendants.4 ¶ 5 The district court did not hold a hearing on the motion to dismiss, but ―reviewed and considered all Memoranda in support, opposition and reply‖ and granted the State‘s motion to dismiss ―in full as prayed for based upon all of the reasons . . . and legal authorities set forth in [the State‘s] [m]emoranda in support and reply, including [AWBM‘s] concessions.‖ Based on the minute entry and the State‘s motion to dismiss and accompanying memorandum, the district court dismissed AWBM‘s breach of contract, breach of the covenant of good faith and fair dealing, and unconstitutional taking claims all due to insufficient factual allegations in the complaint. The district court also dismissed AWBM‘s claims of denial of procedural and substantive due process with prejudice, because it found that the right to a pre- 3 UDFI moved to dismiss AWBM‘s claims under both rules 12(b)(1) and 12(b)(6) of the Utah Rules of Civil Procedure. The rule 12(b)(1) dismissal for lack of subject matter jurisdiction relates only to AWBM‘s ―fail[ure] to comply with the notice of claim provisions of the Utah Governmental Immunity Act‖ as it relates to Mr. Bay. Gurule v. Salt Lake Cnty., 2003 UT 25, ¶ 1, 69 P.3d 1287. AWBM conceded that proper notice was not given to Mr. Bay, and Mr. Bay is not a party to this appeal. Therefore, we address the dismissal of the remaining claims through the lens of rule 12(b)(6) of the Utah Rules of Civil Procedure. 4 As is noted by AWBM in its brief, the district court did not specify which claims were dismissed with prejudice and which claims were dismissed without prejudice. The court‘s minute entry simply stated that UDFI‘s motion was granted in full. We rely on the designations used in UDFI‘s motion to determine whether claims were dismissed with or without prejudice. 3 AMERICA WEST v. STATE ACJ NEHRING, opinion of the Court except as to Part II.B seizure hearing was not clearly established and, therefore, could not form the basis of a due process claim. ¶ 6 Following the district court‘s dismissal of AWBM‘s claims, AWBM filed a timely notice of appeal. AWBM appeals the dismissal of its claims for breach of contract, breach of the covenant of good faith and fair dealing, unconstitutional taking, denial of procedural due process, and denial of substantive due process.",facts
+108,4560949,1,1,"Ronald L. Lauhead was charged with five counts of first degree sexual assault of a child and five counts of child abuse. Before trial, he requested a competency evaluation pursuant to Neb. Rev. Stat. § 29-1823 (Reissue 2016). Lauhead was initially evaluated at the Lincoln Regional Center (the LRC) and found to be incompetent to stand trial. The district court ordered him to continue treatment at the LRC until his competency to stand trial could be restored. Lauhead was subsequently reevaluated by two doctors. Both doctors found Lauhead to be competent and recommended that he be provided accommodations. The district court found Lauhead competent to stand trial. Lauhead, subsequently, waived his right to a jury trial, and a bench trial based upon stipulated facts was held on the amended charges of one count of attempted first degree sexual assault of a child and one count of child abuse. Lauhead was found guilty and sentenced to incarceration for terms of 20 to 22 years and 3 years, respectively, to be served concurrently. Lauhead appeals.",introduction
+109,1454438,1,1,"Jaime Soto Vasquez (defendant) was arrested for unlawful possession of cocaine after police searched his jacket during an investigation of a family fight. Defendant moved to suppress the cocaine, alleging that the police should have limited their search of the jacket to hard objects that could have been weapons. The state argued that the search was proper as a protective pat-down search. The state also argued that the officer had probable cause to arrest defendant and authority to transport him, without regard to defendant's lack of consent. After an evidentiary hearing, the trial court denied defendant's motion to suppress. The court of appeals reversed, holding the search illegal. We granted review pursuant to A.R.S. �� 12-120.24 and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3). We conclude that the search was legal and, therefore, we vacate the court of appeals' opinion and affirm the trial court.",jurisdiction
+110,900797,1,5,"[¶ 17.] Whether defendant may be convicted of attempted statutory rape upon the uncorroborated testimony of the complaining witness. [¶ 18.] SDCL 23A-22-15.1 and our decision in State v. Ree, 331 N.W.2d 557 (S.D.1983) make it clear that corroboration is not required in sex crimes. [] Whether a complainant's testimony is improbable or impeached is a determination best reserved for the jury. It is not the role of the court to become a 13th juror. To the extent that State v. Grey Owl, 316 N.W.2d 801 (S.D.1982) is inconsistent with SDCL 23A-22-15.1 and the Ree decision, we overrule that portion of the opinion. [¶ 19.] For the foregoing reasons the trial court is reversed and remanded for new trial. [¶ 20.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.",issues
+111,6110716,1,2,"This court reviews the trial court's decision on a Rule 37.1 petition for clear error. Gordon v. State , 2018 Ark. 73 , 539 S.W.3d 586 . A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Lacy v. State , 2018 Ark. 174 , 545 S.W.3d 746 .",standard of review
+112,2410624,1,1,"I agree with the majority's conclusion that this court has jurisdiction to review, in a mandamus context, the ruling of the court of appeals on this constitutional question. Both the courts of appeals and the supreme court have concurrent jurisdiction to issue the extraordinary writ of mandamus against the officers of political parties to compel the performance of ministerial duties associated with the holding of an election. See TEX. GOV'T. CODE ANN. §§ 22.002(d) and 22.221(c) (Vernon 1986); see also TEX. ELEC. CODE ANN. § 273.061 (Vernon 1986). Additionally, this court has the authority to issue a writ of mandamus to correct a court of appeals' ruling on a pure question of law. See Chojnacki v. First Court of Appeals, 699 S.W.2d 193 (Tex.1985).",jurisdiction
+113,2499217,1,3,"The existence of appellate jurisdiction is a question of law over which an appellate court possesses unlimited review. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). Kansas courts only have such appellate jurisdiction as is conferred by statute, and in the absence of compliance with the statutory rules, a court has the duty to dismiss the appeal. In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005). To the extent we must engage in statutory interpretation to determine jurisdictional circumstances, this court has unlimited review. See In re D.M.-T., 292 Kan. 31, 33, 249 P.3d 418 (2011).",standard of review
+114,4544315,1,6,"In consideration of all of the above, Schroeder’s conviction and sentence for first degree murder are affirmed. Affirmed. Freudenberg, J., not participating. 82 See, Ellis, supra note 72; Dunster, supra note 16.",conclusion
+115,1711645,1,4,"Permission to amend pleadings is addressed to the discretion of the trial court; absent an abuse of discretion, the trial court's decision will be affirmed. Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993); Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 654 (1993); McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993); Bittner v. Miller, 226 Neb. 206, 410 N.W.2d 478 (1987). Although at certain stages of a proceeding a pleading may not be amended so as to change the issues and quantum of proof as to any issue, Neb.Rev.Stat. § 25-852 (Reissue 1995) should be liberally construed and amendments permitted where they are proposed at an opportune time and will be in the furtherance of justice. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); Bittner v. Miller, supra . To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995). It is not error for a trial court to refuse to give a requested instruction where the substance of the requested instruction was covered in the instructions given. Scharmann v. Dayton Hudson Corp., 247 Neb. 304, 526 N.W.2d 436 (1995); Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).",standard of review
+116,2429649,1,3,"Phillips argues that the charge of capricious disregard of accepted standards of professional conduct was not established by clear and convincing evidence as required by Tenn. Code Ann. § 49-8-303(a)(4) (1990). We disagree. There was overwhelming proof from students, staff, colleagues, and superiors about Phillips' inappropriate behavior. Phillips either denied the charges or attempted to justify her behavior. The Chancellor accredited the testimony of the defendants' witnesses. Considering the entire record, the evidence clearly and convincingly establishes the charge of capricious disregard of accepted standards of professional conduct. This issue is without merit.",sufficiency of the evidence
+117,1728383,1,7,"¶ 114 Because the conduct alleged in the complaint is not illegal or alleged to have had an illegal effect, it cannot substantially affect the people in Wisconsin and have impacts in Wisconsin contrary to Wis. Stat. § 133.03. Olstad, 284 Wis.2d 224, ¶ 85, 700 N.W.2d 139. Therefore, I would affirm the circuit court's dismissal of the complaint for failure to state a claim pursuant to Wis. Stat. § 802.06(2)(a)6, albeit on different grounds. Accordingly, I respectfully dissent.",conclusion
+118,6500268,1,1,"Z.H. seeks reimbursement from the Nebraska State Bar Commission (Bar Commission) for costs and damages associated with her application for admission to the Nebraska State Bar Association. For the reasons stated herein, we conclude that we lack jurisdiction to hear the appeal and the appeal is dismissed.",introduction
+119,1096315,1,1,"This case presents a unique first impression question regarding our state constitutional qualifications under Article 6, Section 154 for the elected public office of chancellor in Mississippi. We find that the drafters of the Mississippi Constitution of 1890, specifically Section 154 of Article 6, intended that an attorney's eligibility for said office does not require that he be a Mississippi resident for the five years immediately preceding an election for chancellor. Accordingly, we affirm the lower court's interpretation of Article 6, Section 154 of the Mississippi Constitution of 1890 as it is without error.",introduction
+120,2065798,1,4,"It remains for us to determine whether Godette's indifference (or worse), as reflected in this record, was sufficiently grave to satisfy the foregoing standard. In Cater, we approved a three-factor test for determining whether a fitness requirement was appropriate where an attorney had failed to participate in the disciplinary inquiry. Id. at 25-26. In applying the catchall third factor, id. at 26, the Board may give appropriate consideration not only to the number of disciplinary investigations that were thwarted by Godette's failure to cooperate — apparently that number was one — but also to the frequency with which he stonewalled the investigation of Mr. Hill-Bey's complaint, thereby causing Bar Counsel and the process server to expend, repeatedly and quite unnecessarily, time and resources on a matter which Godette could and should have made quite simple. The final assessment should not be simply a matter of numbers. Even in a single investigation, an attorney's disregard for the disciplinary process may be so repeated, deliberate, and prolonged that a requirement to prove fitness is entirely justified. See, e.g., In re Giles, 741 A.2d 1062 (D.C.1999) (per curiam). The Board may also consider, in terms of Godette's commitment or lack thereof to his professional obligations, that since September 30, 2002, he has been administratively suspended from practice for nonpayment of dues. [12] Because we owe deference to a recommendation by the Board that is based on a firm factual foundation, we remand the case to the Board so that it may recommend an appropriate sanction in the first instance. In proposing the discipline to be imposed, the Board must act on the premise that the record supports the Hearing Committee's conclusion that Godette deliberately avoided service of process. So ordered. WAGNER, Senior Judge, dissenting: Contrary to the recommendations of both the Board on Professional Responsibility (Board) and the Hearing Committee, the majority recommends augmenting a thirty-day suspension sanction and other specified conditions, with a fitness requirement before reinstatement. [1] The Board rejected recommending a fitness requirement for respondent's failure to respond to a single ethical complaint because it is not warranted under either the Cater standard, which this court has since adopted, [2] or under a comparative case analysis. The Board's recommendation is consistent with controlling legal principles and reasonable under the circumstances; therefore, there is no sound basis for rejecting it. See D.C. Bar R. XI, § 9(g)(1) (providing for this court to accept the Board's factual findings if supported by substantial evidence and to adopt its recommended sanction unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted). In Cater, this court articulated a clear standard for the imposition of a fitness requirement, approving the Board's proposed test. Cater, supra note 1, 887 A.2d at 24. This court held in Cater that to justify conditioning reinstatement of a suspended attorney on proof of rehabilitation, there must be clear and convincing evidence in the disciplinary record that casts serious doubt on the attorney's fitness to practice law. Id. Unless the misconduct established is sufficiently grave to support such a doubt, other aggravating factors justifying a fitness requirement must be established by clear and convincing evidence. Id. at 25. While ordinarily Bar Counsel does not have to justify a sanction by clear and convincing evidence, [t]he difference here stems from our holding that the fitness requirement depends on a specific finding beyond the finding of a violation of the Rules. Id. In Cater, this court sanctioned the Board's tripartite test for determining the propriety of a fitness requirement in failure to respond cases, such as this one. The factors for consideration are (1) the respondent's level of cooperation in the pending proceeding(s), (2) the repetitive nature of the respondent's lack of cooperation in disciplinary proceedings, and (3)other evidence that may reflect on fitness. [3] Id. (internal quotation marks omitted). Although the Board recognized that the misconduct involved in this case is serious and warrants a suspension, citing its own decision in Cater, the Board determined that the circumstances are not especially aggravated, and there are no other factors in the record that raise serious doubt about Respondent's fitness to practice law. [4] The Board acknowledges that the first Cater factor is satisfied in that Godette totally failed to cooperate in this disciplinary proceeding; however it found that the second and third factors had not been established. It is the Board's position that Bar Counsel failed to establish the second factor, repetitive lack of cooperation in disciplinary proceedings, in that the attorney has not been involved in prior disciplinary proceedings, and his failure to respond involves a single, as opposed to multiple, complaints. The Board concluded that the third criterion was not established in that no other evidence was presented that would reflect upon Godette's fitness. In its Report and Recommendation to this court and in its brief on review, the Board states that the failure to respond to a single complaint may raise a serious doubt about the attorney's fitness to practice when coupled with other evidence demonstrating a disregard of the disciplinary process, such as evasion of service of process. However, the Board rejected, as not supported by substantial evidence, an apparent finding of the Hearing Committee that Godette deliberately evaded service of process in this case. [5] Bar Counsel does not challenge before this court the Board's determination that a finding of evasion of service of process was not supported by substantial evidence. Nevertheless, the majority addresses the issue, concludes that the Board was in error in that regard, and therefore, imposes a fitness requirement. I disagree. In my view, the majority's analysis is factually and legally flawed. The evidence was that on May 3, 2003 at 6:10 p.m., and on May 12, 2003 at 6:40 a.m., the special process server reported that he received no answer when he attempted to serve Godette with the specification of charges, although it sounded as if someone was inside the premises. The Board found this evidence insufficient to make the inference that respondent was inside the premises at the time and simply not answering the door in order to evade service of process. Contrary to the majority, I conclude that the Board was correct in concluding that the inference could not be made on this evidence alone. It is fundamental that no inference can be drawn from facts that have not been established. Pastor v. Cane, 134 A.2d 95, 98 (D.C.1957) (reversing for a new trial where the trial court's decision was based on inferences having no support in the record); In re Brown, 147 U.S.App.D.C. 156, 165, 454 F.2d 999, 1008 (1971) (applying the principle that [a]n inferred fact must find its nexus with a proven fact, and a conviction of a crime cannot rest on evidence that no more supports guilt than innocence) (citations omitted); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 2.04 (4th ed. rev. 2002) (stating that the jury is permitted to draw, from the facts which you find have been proven, such reasonable inferences as you feel are justified in light of your experience). Absent from this record are any proven facts from which it can be established or inferred that Godette was inside the premises at any time that the process server attempted to serve him. In rejecting the inference, the Board mentioned that it was possible that the noises inside the premises could have come from a minor not authorized to accept service, someone who had no idea who was at the door and who declined to open the door to an unannounced stranger, or aught we know, an animal. The majority states that the Hearing Committee was not required to believe these possibilities. Indeed, the Hearing Committee had no evidentiary basis to determine whether the noise inside the premises came from one of these possible sources or Godette. See Pastor, supra, 134 A.2d at 98. Surmise and speculation is not a substitute for evidence. The majority suggests that the inference that Godette evaded service of process can be made from his earlier failure to cooperate in the preliminary proceedings. Specifically, the majority cites Godette's (1) failure to answer Bar Counsel's letters and motion, (2) his promise to submit a response to Bar Counsel and failure to do so, and (3) the process server's multiple unsuccessful attempts to serve Godette. None of these facts support the conclusion that Godette deliberately evaded service of process. The first two points are simply irrelevant to that determination. [6] The third fact, multiple service attempts, provides no evidence attributing the process server's lack of success at service to Godette's actions. [7] The majority's conclusion that Godette never intended to accept service voluntarily based on his conduct in the preliminary proceedings is belied by the fact that he ultimately accepted service of the Specification of Charges and Petition Instituting Formal Disciplinary Proceedings by certified mail which he acknowledged by signing a return receipt. If an aggravating factor, such as evasion of service of process, is to be relied upon to enhance a suspension sanction, it must be established by clear and convincing evidence. See Cater, supra note 1, 887 A.2d at 25. That level of proof was clearly not met here. The majority opinion concludes, alternatively, that Godette defaulted on the issue of whether he deliberately avoided service of process by failing to participate in the proceeding to offer evidence to the contrary. It cites in support of this proposition In re Holdmann, 834 A.2d 887, 889 (D.C.2003). Holdmann, which holds that an attorney in a disciplinary proceeding who fails to raise an issue before the Board cannot challenge it for the first time in this court, is inapposite. See id. Our rules impose upon the Board and this court the obligation to determine whether the factual findings upon which it bases discipline are supported by substantial evidence in the record, whether or not exceptions are filed by a respondent. See D.C. Bar R. XI, § 9(b) (providing that [i]f no exceptions are filed, the Board shall decide the matter on the basis of the Hearing Committee record); In re Temple, 629 A.2d 1203, 1208 (D.C.1993) (recognizing that under D.C. Bar R. XI, § 4(e)(7) the Board has the power to make factual findings, but must accept the hearing committee's factual findings if supported by substantial evidence); D.C. Bar R. XI, § 9(g)(I) (providing that [i]n determining the appropriate order, the court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record. . . .). Here, the Board, as required, applied the substantial evidence test to the Hearing Committee's proposed factual findings as set forth in its report, and rejected the conclusion that evasion of service of process had been established by the evidence. Respondent's failure to participate in the proceeding does not relieve the Board or this court of the obligation to determine whether the factual findings are supported by substantial evidence. Therefore, I cannot agree that Godette's failure to participate in the proceeding operates to establish by default a fact that is not supported by substantial evidence in the record. Finally, guided by D.C. Bar Rule XI, § 9(g), in considering the appropriate sanction, this court shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted. Under this rule, `we enforce a general sense of equality in the sanctions handed out, but [the rule] otherwise commands that we should respect the Board's sense of equity in these matters unless that exercise of judgment proves to be unreasonable.' Temple, supra, 629 A.2d at 1207 (quoting In re Haupt, 422 A.2d 768, 771 (D.C.1980)) (other citations omitted). In a careful comparative case analysis, the Board has demonstrated that the recommended discipline falls within the range of discipline for similar violations. See e.g., In re Scanlon, 865 A.2d 534, 535 (D.C. 2005) (for violations of Rules 8.1(b), 8.4(d), and D.C. Bar R. XI, § 2(b)(3)(a), a thirty-day suspension with reinstatement conditioned upon respondent filing a response to the disciplinary complaint and six hours of continuing legal ethics and professional responsibility courses); In re Lilly, 699 A.2d 1135, 1136 (D.C.1997) (thirty-day suspension with reinstatement conditioned upon compliance with Bar counsel's requests for information). It has distinguished the cases cited by Bar Counsel in support of a fitness requirement. The Board has also demonstrated why this case does not meet the Cater standard for the imposition of a fitness requirement. See Cater, supra note 1, 887 A.2d at 25. The Board's recommendation is neither unreasonable nor inconsistent with this court's precedent; therefore, consistent with our rules, we should adopt it. For all of the foregoing reasons, I must respectfully dissent from the opinion of the court.",conclusion
+121,1903170,1,3,"On appeal, Rivera advances two arguments on this Court. First, he contends that the evidence presented at the hearing was not sufficient to show that he violated the terms of his probation by failing to keep the peace and be on good behavior. Second, he claims that the hearing justice inappropriately considered Mildred's living arrangement with defendant, her financial dependence on him, and the possibility of welfare fraud when he assessed the credibility of her testimony. Our review of a probation-revocation decision is limited to a determination of whether the hearing justice's decision was arbitrary or capricious. State v. Znosko, 755 A.2d 832, 834 (R.I.2000) (citing State v. Rioux, 708 A.2d 895, 897 (R.I. 1998)). A hearing justice need determine only that the state has proved by reasonably satisfactory evidence that the defendant has violated the terms of probation. Id. (citing State v. Kennedy, 702 A.2d 28, 31 (R.I.1997)). To comply with the terms of probation a defendant must keep the peace and    remain on good behavior[.] State v. Godette, 751 A.2d 742, 745 (R.I.2000) (quoting State v. Hie, 688 A.2d 283, 284 (R.I.1996)). Determining the relative credibility of witnesses at a probation-revocation hearing is uniquely the function of the hearing justice. State v. Waite, 813 A.2d 982, 985 (R.I.2003). Thus, the question for us to determine is whether, in weighing the testimony from both the state's and Rivera's witnesses, the trial justice rationally accepted Ann's testimony, and rejected the testimony of Rivera's witnesses. Our review of the record reveals that the hearing justice considered the testimony of two witnesses on behalf of the state and three witnesses on behalf of Rivera, including the defendant himself. After Mildred testified, the hearing justice questioned her briefly regarding her relationship to defendant, her living situation, and her financial dependence on defendant. We disagree with defendant's contention that the hearing justice improperly discredited Mildred's testimony because he disapproved of her domestic situation with defendant, or that he suspected her of welfare fraud. We see no support in the record for such a contention. Rather, it is obvious that the hearing justice considered Mildred's relationship with defendant and financial dependence on him as biasing her testimony to some degree. The hearing justice was completely within his discretion in evaluating these factors as he weighed the credibility of her testimony. Because we conclude that the hearing justice acted properly in considering the evidence before him, we hold that his finding that defendant had violated his probation was rational, and neither arbitrary nor capricious. See Znosko, 755 A.2d at 834. The statements made by the hearing justice that Ann's testimony had to be believed and that Mildred's testimony was unhelpful reflect a rational thought process that simply cannot be characterized as arbitrary or capricious.",analysis
+122,1973902,1,2,"When notice of appeal was filed in this case, a final decree had not yet been entered. Rather than exercise our discretion to quash the appeal, this panel caused the following Per Curiam Order to be entered: ORDER This appeal taken from an order dismissing exceptions to a decree nisi terminating the appellant's parental rights. An appeal will not lie from an order denying exceptions. Entry of a final decree is necessary for appellate review. Kopchak v. Springer, 292 Pa.Super. 441, 437 A.2d 756 (1981) (where appellant failed to have a final decree entered on the docket, but instead appealed from order dismissing exceptions to decree nisi, appeal would be quashed). The appellant is, therefore, directed to praecipe for the entry of a final decree. Pa.R.A.P. 301. If the appellant does not submit proof of entry of a final decree on the trial court docket, within fifteen days of the date of this order, this appeal shall be dismissed. Order of April 5, 1990. When an order is interlocutory and unappealable, an appeal taken from the order may be quashed. In many cases, however, an order quashing an appeal only serves to unnecessarily delay review by causing the parties to go back to the start, praecipe a final order, and then repeat correctly completed procedures with no discernable benefit derived over simply directing the appellant to praecipe the final order without quashing. When, as here, the case involves parental rights and the swiftly passing childhoods of four individuals, any unnecessary delay ought be avoided when practicable alternatives exist. Hence, we elected to exercise our discretion to direct appellant to perfect our jurisdiction by filing a praecipe for entry of a final decree. See Pa.R.A.P. 301; Pa.R.A.P. 905(a). In response to our order of April 5, 1990, a final decree was entered April 10, 1990. Our jurisdiction was thereby perfected. See Pa.R.A.P. 905(a).",jurisdiction
+123,883920,1,2,"Did the District Court err in granting summary judgment? Our standard of review of a summary judgment is the same as that used by a district court—whether, pursuant to Rule 56(c), M.R.Civ.P., material issues of fact exist and whether the moving party is entitled to judgment as a matter of law. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. The District Court determined that res judicata barred Lovins from challenging the legality of the proposed bond on the ground that § 7-7-2402, MCA, requires the approval of the electors of the county. The court's ruling was based on its taking judicial notice of Lovins' 1995 action. Section 7-7-2402, MCA, provides: Election required to borrow money—exceptions. (1) Except as provided in subsection (3), the board of county commissioners may not borrow money for any of the purposes mentioned in this title or for any single purpose in an amount exceeding $500,000 without: (a) first having submitted the question of a loan to a vote of the electors of the county; and (b) the approval of a majority of the electors of the county. (2) If a majority of the votes cast are in favor of the loan, then the board may make the loan, issuing bonds or otherwise as may seem best for the interests of the county. (3) It is not necessary to submit to the electors the question of borrowing money: (a) to refund outstanding bonds; or (b) for the purpose of enabling any county to liquidate its indebtedness to another county incident to the creation of a new county or the change of any county boundary lines. Lovins points out that this statute was not mentioned in his petition for relief in his 1995 lawsuit. However, as part of its decision in the 1995 action, the District Court stated that Toole County's acquisition of over $500,000 in debt for bond repayment for construction of the clinic would require a vote of the Toole County electorate to approve the indebtedness. The defendants moved to alter or amend that judgment by removing the above language from the court's decision, in light of the then-recently enacted Ch. 520, L.1995. That legislation, which was proposed as HB 421, amended Montana laws relating to construction of county hospitals and limitations upon bonded indebtedness of counties for such purposes. The issue was briefed by both parties. In its order granting the motion to amend, the court gave thorough written consideration to the effect of HB 421. It stated: When read with the inclusion of physician office buildings as part of health care facilities which can be funded by bonds, the amendment to Section 7-6-2512 makes it clear that the vote of the electorate is not required for approval of certain bonds to construct health care facilities. See HB 421, Section 4, amending Montana Code Annotated, Section 7-34-2201. The above language clearly demonstrates that the issue was considered by the court in the 1995 case. Lovins argues that the decision on this issue in the 1995 case was, nevertheless, mere dictum. He points out that if an issue's consideration is not essential to the question involved in the action, then a ruling on the issue is obiter dictum which cannot be a basis for a finding of res judicata or collateral estoppel. If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta[.] Restatement (Second) of Judgments, § 27, cmt. h (1982). A court's decision on an issue which is before it and which was fully argued by counsel and deliberately considered by the court is not dictum. Bottomly v. Ford (1945), 117 Mont. 160, 167, 157 P.2d 108, 112. Here, although the election requirement issue was briefed and decided in the 1995 case, the issue was not before the court under the pleadings, nor was consideration of it necessary to resolve the case. The dispositive holding in the 1995 case was that Toole County was prohibited from entering into a proposed lease of Toole County Hospital and Nursing Home to a private nonprofit corporation. Because resolution of the election requirement issue was not necessary to resolution of the 1995 case, the court's consideration thereof, however well-reasoned, is dictum. Our analysis does not end there, however. We will affirm a judgment which was correct, even if it was granted for the wrong reason. Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. We therefore proceed to consider whether Toole County was required to put its hospital bonding proposal to a vote of the people. The title of Ch. 520, L.1995, describes the act, in part, as clarifying that certain bonds may be issued without an election. Section 7-34-2411, MCA, was amended as part of Ch. 520. As amended, the statute provides: County health care facility bonds authorized. (1) Notwithstanding any limitation imposed by law upon the bonded indebtedness of a county, a county acquiring, erecting, furnishing, equipping, expanding, improving, or maintaining a health care facility under 7-8-2102 or X-XX-XXXX or a boarding home under X-XX-XXXX may borrow money and issue its bonds for a health care facility or a boarding home, including refunding bonds, in the form and upon the terms as it may determine, payable out of any revenue of the facility or boarding home, respectively, including revenue derived from: (a) fees and payments for health care or boarding home services; (b) taxes levied under 7-6-2512 or X-XX-XXXX for a health care facility; (c) grants or contributions from the federal government; or (d) any other sources. (2) For the security of the bonds, the county may by resolution make and enter into any covenant, agreement, or indenture and exercise any additional powers authorized to be made, entered into, or exercised by a county, including those authorized in 7-6-2512 and this part. The sums required to pay principal and interest and to create and maintain a reserve for the bonds may be made payable from any and all revenue of the health care facility or boarding home prior to the payment of current costs of operation and maintenance of the facilities. Section 7-34-2411, MCA (emphasis supplied). Subsection (2) was added to § 7-6-2512, MCA, as part of the same legislation: If a county issues bonds under X-XX-XXXX to finance or refinance the costs of a health care facility, the board of county commissioners may covenant to levy the tax authorized by this section during the term of the bonds, to the extent necessary, and to apply the collections of the tax to the costs of erecting, furnishing, equipping, expanding, improving, maintaining, and operating the health care facility or facilities of the county or the payment of principal of or interest on the bonds. The pledge of the taxes to the payment of the bonds may not cause the bonds to be considered indebtedness of the county for the purpose of any statutory limitation or restriction. The pledge may be made by the board only upon authorization of a majority of the electors of the county voting on the pledge at a general or special election as provided in X-XX-XXXX. Section 7-6-2512(2), MCA (emphasis supplied). Section 7-34-2414, MCA, was also amended as part of Ch. 520, to provide in relevant part: Election required on question of issuance of bonds. (1) A county may not issue bonds to which all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under X-XX-XXXX is pledged until the question of approval of the issuance of the bonds has been submitted to the registered electors of the county at a general election or a special election called for that purpose by the governing body of the county and the majority of the electors voting on the question have voted in favor of issuing the bonds. Section 7-34-2414(1), MCA (emphasis supplied). The proposal involved here, as described in the notice of public hearing attached to Lovins' complaint, the Toole County Commissioners' Resolution to issue the bonds, and the sample bond attached thereto, was solely for a revenue bond issue. Payment of principal and interest to the bondholders is to be derived solely from revenues of the Toole County Hospital and Nursing Home, and not from Toole County taxes. This was not a proposal for general obligation bonds, for which an election would have been required under the portion of § 7-34-2414, MCA, underlined above. Lovins points out that these statutes must be harmonized with preexisting statutes on this subject. He contends that such harmonization necessarily results in a conclusion that while the 1995 amendments abolish limitations on bonded indebtedness for county hospitals, they do not repeal the requirement that borrowing for such purposes is subject to a vote pursuant to § 7-7-2402, MCA. We disagree. To accept Lovins' argument would render portions of the 1995 amendments meaningless. In part, the amended statutes provide that indebtedness for repayment of health care facility bonds is not to be considered indebtedness of the county for the purpose of any statutory limitation or restriction. Section 7-6-2512(2), MCA. Certainly the § 7-7-2402, MCA, election requirement is a statutory limitation or restriction. As amended, § 7-34-2414, MCA, requires an election on such a bond issue only when all or a portion of the taxes levied under 7-6-2512 are pledged or to which the general tax authorized under X-XX-XXXX is pledged. Therefore, we conclude that indebtedness for repayment of the health care facility bonds herein proposed is not to be considered indebtedness of the county for purposes of the § 7-7-2402, MCA, election requirement. Contrary to the assertions in Justice Nelson's dissent, the present action does bring directly into issue the effect of the statutory amendments enacted as part of Ch. 520. Ch. 520 carves out an exception to the requirements set forth at § 7-7-2402, MCA, the statute relied upon by Lovins. Any lingering ambiguity in statutory intent is erased by an examination of the legislative history of Ch. 520. In summarizing the purpose of HB 421 to the Senate Local Government Committee, its sponsor, Rep. Ewer, stated: HB 421 would clarify that districts can borrow using the revenue bond route not subject to a vote of the people and general obligation bonds could be authorized which require a vote of the people. Minutes of Senate Local Government Committee, Comments of Rep. Ewer, March 21, 1995, at p. 2. We conclude that under the foregoing statutes, a vote of the electorate is not required before Toole County issues bonds for the proposed addition to the Toole County Hospital and Nursing Home. We therefore hold that the District Court did not err in granting summary judgment for the defendants.",issues
+124,1608194,1,2,"¶ 17. This is a case of first impression addressing a board's power to promulgate such administrative rules. The issue presented is whether the board acted within its statutory authority in promulgating a rule, which delegates to private citizens the responsibility for hearing contested cases involving the discipline, including discharge, of firefighters and police officers.",issues
+125,1382635,1,2,I. Did the trial court's instruction that the jury had one single objective and that is to seek the truth violate appellant's due process rights by shifting the burden of proof to appellant and diluting the reasonable doubt standard of proof? II. Did the trial court err by refusing to suppress appellant's confession and by impermissibly delegating a portion of his Miranda duties to the jury? III. Did the trial court err in refusing to allow appellant to cross-examine Blackwell concerning dismissed indictments on narcotics charges? IV. Did the trial court err by refusing to redact from appellant's statement references to a contract on his life?,issues
+126,4545805,1,2,"Michael Brinkman was fatally shot during a home invasion in Omaha, Nebraska. Michael’s wife, Kimberly Milius (Kimberly), and their son, Seth Brinkman, were home during the invasion. After the investigation led law enforcement to suspect Jennings, he was arrested. The State charged Jennings with first degree murder under Neb. Rev. Stat. § 28-303 (Reissue 2016), a Class IA felony; use of a deadly weapon - 812 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 (firearm) to commit a felony under Neb. Rev. Stat. § 28-1205 (Reissue 2016), a Class IC felony; and possession of a deadly weapon (firearm) by a prohibited person under Neb. Rev. Stat. § 28-1206 (Reissue 2016), a Class ID felony. Jennings was found guilty in a trial by jury. At trial, Kimberly and Seth testified to what they witnessed during the home invasion that lead to Michael’s death. Kimberly testified that during the early evening of December 23, 2016, Michael, Kimberly, and Seth were at home getting ready to go out to dinner. Both Michael and Seth were showering in their respective bathrooms. As Michael was getting out of the shower, he asked Kimberly to answer the front door. Kimberly looked out a window and did not see anyone, though she did see a white sport utility vehicle parked in their driveway. Kimberly opened the front door, and two men with guns, wearing masks and what appeared to be surgical gloves, forced their way into the home at gunpoint. One of the men was wearing a “[S]anta” hat. Kimberly asked the men what they wanted, and they answered, “Money.” Kimberly offered to get her purse, but one of the men put a gun to her head and backed her into a corner of the living room. The other man, who was wearing the Santa hat, went down the hallway toward Michael’s room. Kimberly heard a gunshot, then scuffling sounds and another gunshot. After the gunshots, the first assailant ordered Kimberly into the master bedroom. As she entered the room, she saw Seth strike the second assailant with a shower rod. Kimberly testified that the second assailant was the same size as Jennings. Seth’s testimony described the intruders in a similar fashion. He testified that he was in the shower when he heard his mother scream. He turned off the shower after he heard “rustling” sounds in the hallway. Seth peeked out of the shower and then heard a gunshot from the master bedroom. At that point, Seth grabbed the shower rod off the wall and went into the master bedroom, where he encountered and attacked the - 813 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 second assailant. During the scuffle, the Santa hat fell off the second assailant’s head. When the first assailant subsequently entered the room with Kimberly, he punched Seth and wrestled the shower rod away from him. The first assailant ordered Kimberly and Seth “to get down and to shut up.” The second assailant left the room and returned a short time later with what appeared to be a white “money bag.” Seth testified that the second assailant said something to the first and that they then left, taking Kimberly’s cell phone with them. After they left, Kimberly ran to lock the front door and Seth went to look for Michael. Seth first went to the bathroom where he had showered, in order to put on his clothes. When doing so, he noticed that his shorts had some sort of sauce on them and that there were fast food items on the floor. The items included a partially eaten piece of “Texas toast,” some “fries,” and a container of sauce from a Raising Cane’s restaurant. Seth testified that none of those items were present before the intruders arrived. Seth then went to an upstairs bedroom and found the door was difficult to open. Seth forced the door open and discovered the door had been blocked by Michael, who was lying on the floor. Seth called for Kimberly, and she used Seth’s cell phone to call the 911 emergency dispatch service while Seth tried to aid Michael. The first officer on the scene entered the home and found Michael with Seth, and the officer then requested medical assistance. An ambulance rushed Michael to the hospital, but he did not survive. Michael’s autopsy established that the cause of death was a gunshot wound to the chest. Kimberly and Seth provided descriptions of the intruders to law enforcement. During a canvassing of the neighborhood, law enforcement obtained surveillance video from a neighbor which showed a white sport utility vehicle driving by the Brinkman residence several times around the time of the attack. The lead detective viewed the videos and recognized the vehicle as a Dodge Durango. Police also released a - 814 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 photograph and description of the vehicle to the media seeking the public’s help in locating the vehicle or suspects. Members of the forensics team came and collected evidence, including DNA swabs from the Texas toast, the Raising Cane’s sauce container, the shower rod, and the Santa hat. Police also collected three spent shell casings from the residence, later determined to be .380 caliber. On January 2, 2017, law enforcement received an anonymous telephone call indicating the caller had seen the Durango in the lot of an apartment complex several days before the murder. The caller claimed to have observed two black males exit the vehicle and go to an apartment on the third floor of an adjoining building. The caller provided the license plate number on the vehicle. Police determined that the vehicle belonged to a car rental company. The records provided by the rental company showed that from December 13 through 27, 2016, the vehicle was rented to Carnell Watt. The owner of the rental company office told police that Watt regularly rents vehicles from that location and that she frequently came in with Jennings, whom she would introduce as her husband. Police recovered the vehicle from a car rental office in Detroit, Michigan, and conducted a digital forensics examination. The Durango was equipped to keep a time-stamped list of all cell phones which have previously had a Bluetooth connection to the vehicle. Cell phones associated with Watt, her sister, and Jennings were connected to the Durango during the dates Watt rented the vehicle. During an interview with Omaha police, Watt indicated that she lent the Durango to Jennings during the rental period. On February 13, 2017, law enforcement personnel received a response from the Federal Bureau of Investigation’s national DNA database commonly referred to as “CODIS” informing them that the DNA swab of the Texas toast included Jennings as a probable match. Law enforcement then sought permission from the court to obtain Jennings’ cell site - 815 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 location information (CSLI) pursuant to a provision within the Stored Communications Act. Law enforcement sought records from cell service companies for Jennings. Only the records obtained from one such company are challenged on appeal. That company provided Jennings’ cell phone records and CSLI in response to a court order which showed that Jennings’ cell phone was in the area of the crime around the relevant times. Police also obtained Watt’s cell phone records, which showed that on the day of the homicide, her cell phone was located in the area of her place of employment, which is not close to the location of the homicide. However, the records also showed that at around 3 p.m. on December 23, 2016, Watt’s cell phone was briefly in the area of a Raising Cane’s restaurant located in Council Bluffs, Iowa. On February 16, 2017, law enforcement viewed the surveillance video for December 23, 2016, from the Council Bluffs Raising Cane’s restaurant in question and observed a white sport utility vehicle in the drive-through lane of the restaurant between 3:17 and 3:23 p.m. The video displayed two unidentifiable occupants and a particular item of clothing worn by the driver. The item worn by the driver was described as a dark shirt with light stripes. Using all of the aforementioned information, a detective applied for a search warrant for a specific address on North 60th Street. The affidavit detailed the description of the intruders as wearing gloves and masks, noted the various clothing items described during the intrusion and seen on the Raising Cane’s surveillance video, indicated that the CSLI data placed Jennings’ phone near the Brinkman residence before and after the time of the murder, and specified that the Nebraska State Patrol had notified Omaha police of a possible CODIS match to Jennings from one of the items recovered at the scene. The affidavit also noted that the address Jennings had provided to his probation officer was on Sprague Street, but that Jennings also had a vehicle registered in Nebraska - 816 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 with a North 60th Street address and that a utilities district’s records showed Watt and Jennings listed as residents there. The court reviewed all of the information provided by the detective and issued a search warrant for the North 60th Street address. The detective testified to how the search warrant was executed at the North 60th Street residence. The Omaha “crime lab” accompanied him and several officers to the address. After entry was made, the crime lab took pictures of everything in the residence before anything was disturbed. The search warrant contained numbered paragraphs specifying the parameters of the search. The warrant read as follows: 1) Venue Items identifying those parties who either own or who are in control of the residence [on] North 60th Street, Omaha, Douglas County, Nebraska; 2) The ability to seize and process item(s) of evidentiary value, to include: cellular phone(s), computer(s) recording device(s) including audio and video, companion equipment, records, whether stored on paper, magnetic media such as tape, cassette, disk, diskettes, or on memory storage devices such as optical disks, programmable instruments such as telephones, “electronic address books”, or any other storage media, together with indicia of use, ownership, possession or control of the aforementioned residence; 3) Any make and model firearm(s) which fires a 380 caliber cartridge . . . ; 4) Unknown brand/size/construction mask which could be used to conceal the wearers face; 5) Clothing items to include but not limited to grey hooded sweatshirt, navy blue hooded sweatshirt, blue athletic style warm-up pants with white stripes; 6) Blue or Black in color latex or similar construction gloves[.] The evidence recovered from the search of the North 60th Street residence included photographs of the condition of the - 817 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 residence before it was searched; various documents establishing residency for Watt and Jennings; photographs of clothing items, some of which items were seized; and photographs of cell phones along with their retail boxes. After he was arrested, a buccal swab was taken from Jennings and compared to the DNA evidence recovered at the scene. Comparison of the swab taken from the Texas toast to a buccal swab taken from Jennings after he was arrested found that Jennings was the probable major contributor to the DNA detected. A forensic DNA analyst from the University of Nebraska Medical Center testified that the probability of a random individual’s matching a DNA profile found within the major component of the mixture given that Jennings expresses such a profile is approximately 1 in 123 octillion. Before trial, Jennings moved to suppress (1) his cell phone records and (2) evidence obtained from the search of his residence. Jennings argued that his cell phone records, which included CSLI, should be suppressed because they were obtained through a court order under a provision within the Stored Communications Act, instead of through search warrants, and because there was insufficient probable cause to support a warrant. Jennings argued that the evidence obtained from the search of his residence should be suppressed because the search warrant was not sufficiently particular and because there was not probable cause to support it. Specifically, Jennings argued that the CSLI information and the DNA information provided in the affidavit should be excluded from the probable cause analysis. The affidavit in support of the warrant contained information summarizing the investigation details recounted above and also reported the call record and CSLI obtained from Jennings’ cell phone. The affidavit explained that the University of Nerbaska Medical Center’s human DNA laboratory built a “mainly single source male” DNA profile from the piece of Texas toast and that profile was a probable match in the CODIS system for Jennings. - 818 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JENNINGS Cite as 305 Neb. 809 At the request of the parties, the district court postponed ruling on Jennings’ motions to suppress until after the U.S. Supreme Court issued its ruling in Carpenter v. U.S., 1 which involved whether a search warrant was required to obtain CSLI. While Carpenter was pending, law enforcement obtained search warrants for Jennings’ cell phone records. On June 22, 2018, the U.S. Supreme Court issued its opinion in Carpenter and held therein that a search warrant was required to obtain a person’s CSLI. Thereafter, the district court held additional hearings on Jennings’ motions to suppress. In a subsequent written order, the district court denied Jennings’ motions to suppress. The district court denied Jennings’ motion to suppress his cell phone records because although law enforcement’s initial orders were insufficient under Carpenter, the later search warrants cured that defect. The district court denied Jennings’ motion to suppress the evidence obtained from the search of his residence because the search warrant was sufficiently particular and supported by probable cause. Jennings renewed his objections at trial, and they were overruled. Several items and photographs obtained during the search were admitted into evidence over a continuing objection from Jennings.",facts
+127,1124085,1,3,"The sole issue in this appeal is whether Elizabeth submitted to in personam jurisdiction in Mississippi, for purposes of Steven's counterclaim for modification of custody under the UCCJA statute, by her initiation of a child support claim under URESA in the Colorado court. This Court will not hesitate to reverse a chancellor when his findings are manifestly wrong or when he has applied an erroneous legal standard. Tilley v. Tilley, 610 So.2d 348, 351 (Miss. 1992); Faries v. Faries, 607 So.2d 1204, 1208 (Miss. 1992). The record undisputedly shows that the custody question was addressed initially by the Colorado court at a time when the family lived in Colorado and that the Colorado court had personal jurisdiction of this family. The divorce decree reserved continuing jurisdiction over the marital issues in the Colorado court. The children have continually resided in Colorado with their mother since the divorce, but have visited their father in Mississippi. The mother's Mississippi attorney (DHS' attorney) had preserved the personal jurisdiction issue by pleadings timely filed. The home state of the children is Colorado, although the father asserts an emergency situation with regard to the children's best welfare. There is nothing in the record to suggest that the mother has submitted to the personal jurisdiction of the Mississippi courts except the initiation of her URESA action in Colorado. Our uniform acts were enacted to give authority to Mississippi courts to address custody and support suits. The UCCJA, § 93-23-1 et seq., [3] deals with custody and excludes support actions (§ 93-23-3(c)), while the URESA act, § 93-11-1 et seq., addresses the duty of support (§ 93-11-5(6)) and (§ 93-11-15). There is also the class of federal constitutional mandates that covers these uniform actions to insure rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Carpenter v. Allen, 540 So.2d 1334 (Miss. 1989) (the Mississippi court lacked personal jurisdiction over the non-resident father in a UCCJA suit). Miss. Code Ann. § 93-11-15 has enunciated what duties are enforceable in Mississippi under a URESA suit and clearly provides for an action for support. Effective July 2, 1993, Mississippi amended § 93-11-15 to clarify, if any clarification was needed, that URESA was intended to address support enforcement only. The amendment states that [a]wards of custody and orders regarding visitation rights are not contestable under the provisions of the law. Miss. Code Ann. § 93-11-15 (Supp. 1993). This Court has addressed the issue of retroactivity of statutory amendments on many occasions. In Estate of Stamper, 607 So.2d 1141, 1148-49 (Miss. 1992), this Court held that prohibitions on ex post facto laws do not preclude the Legislature (or this Court) giving retroactive effect to new enabling, power-conferring rules, or rules of procedure or practice ... [W]e have on occasion looked to post-event legislation to clarify the pre-enactment content of the law ... When we do this, of course, our questions ordinarily are whether we offend any vested right ... or disappoint reasonable reliance. In the instant case, Steven had no vested right nor reason to rely on URESA, as it read prior to the 1993 amendment, as conferring jurisdiction to entertain a suit for modification of custody. Additionally, in Bell v. Mitchell, 592 So.2d 528, 532 (Miss. 1991), this Court held [w]hen cases are in the bosom of this Court and there is involved a statute that is modified prior to a final decision of this Court, we take that modification into consideration. See also, Grant Center Hospital of Mississippi, Inc. v. Health Group of Jackson, Mississippi, Inc., 528 So.2d 804, 809 (Miss. 1988). In proper cases an amendment may be viewed as a clarification of the former statute. As such it aids us in assigning meaning to the prior law. See also 1 A Norman J. Singer, Statutes and Statutory Construction § 22.36 (1985) (when the purpose of the amendment is to clarify the meaning of an earlier enactment ... provisions added by the amendment that affect procedural rights — legal remedies — are construed to apply to all cases pending at the time of its enactment ... whether the substantive rights sought to be enforced accrued prior or subsequent to the amendment, unless a vested right would be impaired by it.) It is true that in personam jurisdiction and constitutional amenability may be waived. Carpenter v. Allen, 540 So.2d at 1337. However, there is nothing in this record that suggests any waiver by Elizabeth; in fact, the record shows unequivocally the opposite. This Court holds that the custody issue cannot be contested within the filing of a URESA action. Miss. Code Ann. § 93-11-15 (Supp. 1993). The next question to be addressed is whether Elizabeth waived in personam jurisdiction to the UCCJA counterclaim. As noted earlier, in personam jurisdiction was timely raised by Elizabeth. No personal appearance by Elizabeth was made; no pleadings on the custody issues were filed, except to contest jurisdiction. The record shows a reservation by the Colorado Court of jurisdiction over all issues relating to the marital dissolution. Colorado's reservation of jurisdiction was acknowledged by Steven when he signed the Agreement by which he sought credit for the bank loan payments. The Colorado Court properly held that the home state of these children was Colorado, where they had lived continuously since 1987. The visitation of the children with their father in Mississippi does not change the home state to Mississippi. This Court holds that there was no in personam jurisdiction over Elizabeth in the child custody issue raised by Steven's counterclaim under the UCCJA, nor a waiver of the same by Elizabeth. Therefore, this Court reverses and renders the chancery court judgment, awarding custody of the Marquis' children to the mother.",analysis
+128,2010102,1,9,"We affirm the decision of the Court of Appeals reversing and vacating the award of permanent partial disability benefits, as there was no competent medical evidence of permanent impairment or causation between the accident and symptoms Green currently complains of. We also affirm the decision of the Court of Appeals reversing and vacating the award of future medical benefits through the order nunc pro tunc, as it was improper as a matter of law. Because there was no evidence Green was permanently impaired, we reverse the decision of the Court of Appeals upholding the award of vocational rehabilitation, as one cannot be considered unable to return to work for the purposes of vocational rehabilitation if he or she is not permanently impaired. AFFIRMED IN PART, AND IN PART REVERSED.",conclusion
+129,4566798,1,4,"[1] An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019). [2] An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id. [3] In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independently of the conclusion reached by the trial court. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 (2018). - 827 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports CAIN v. LYMBER Cite as 306 Neb. 820",standard of review
+130,2590272,3,6,"
+Defendant contends the evidence is insufficient to support his robbery conviction, his conviction of murder in the course of robbery or attempted robbery, and the special circumstance finding that he committed the murder while engaged in the commission of robbery. He contends the jury's verdict on these charges therefore violated his due process rights under the state and federal Constitutions. `To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' ( People v. Wallace (2008) 44 Cal.4th 1032, 1077 [81 Cal.Rptr.3d 651]; see also People v. Kipp (2001) 26 Cal.4th 1100, 1128 [113 Cal.Rptr.2d 27, 33 P.3d 450]; People v. Mayfield, supra, 14 Cal.4th 668, 790-791 [same standard of review applies to determine the sufficiency of the evidence to support a special circumstance finding].) `If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' ( People v. Bean (1988) 46 Cal.3d 919, 933 [251 Cal.Rptr. 467, 760 P.2d 996], quoting People v. Hillery (1965) 62 Cal.2d 692, 702 [44 Cal.Rptr. 30, 401 P.2d 382]; see also People v. Valdez (2004) 32 Cal.4th 73, 104 [8 Cal.Rptr.3d 271, 82 P.3d 296].) The standard of review is the same when the prosecution relies mainly on circumstantial evidence. ( Valdez, at p. 104.) (17) As stated above with reference to defendant's Aranda/Bruton claim, robbery is the taking of personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property .... (CALJIC No. 9.40.) Both robbery and felony murder based on robbery require that the intent to rob arise before force or fear is applied. Thus, [i]f the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. ( People v. Davis (2005) 36 Cal.4th 510, 562 [31 Cal.Rptr.3d 96, 115 P.3d 417].) Similarly, an intent to steal that arises after the infliction of the fatal wounds cannot support a felony-murder conviction. ( Id. at pp. 564-565.) Finally, the special circumstance of murder during the commission of a robbery requires that the murder be committed in order to advance [the] independent felonious purpose of robbery, but the special circumstance is not established when the felony is merely incidental to the murder. ( People v. Green, supra, 27 Cal.3d at p. 61; see People v. Davis, supra, 36 Cal.4th at p. 568; People v. Horning (2004) 34 Cal.4th 871, 907-908 [22 Cal.Rptr.3d 305, 102 P.3d 228].) In the present case, the prosecutor argued to the jury that a robbery had been committed because the victim's wallet, automobile, and car keys had been taken. Defendant contends there was insufficient evidence of robbery because he and his companions did not, at the time they took the victim's car keys and automobile at gunpoint, intend permanently to deprive the victim of his keys or his automobile, but intended instead to use the vehicle only temporarily. With regard to the wallet, defendant contends he did not share the specific intent of his codefendants to deprive the victim of his wallet. We conclude, to the contrary, that substantial evidence supports a finding that defendant committed a robbery, and that he possessed the specific intent to permanently deprive the victim at least of his automobile (and probably his wallet as well). First, it is undisputed that defendant and his codefendants at gunpoint forced the victim from his automobile and into the trunk of the vehicle. Defendant conceded to the police that he employed the ruse of asking the victim the time in order to persuade him to lower his window; that prior to approaching the victim, he and the others discussed jacking the victim— which he explained to officers meant robbing him; that he joined his codefendants in forcing the victim from his automobile and into the trunk of the vehicle at gunpoint; and that the victim left the car keys in the keyhole of the trunk, requiring defendant to retrieve them in order to drive away. He also told Jeannette Roper that the men initially had planned to, but ultimately did not, steal the victim's car stereo. Very shortly after forcing the victim into the trunk at gunpoint, defendant and his codefendants discussed the need to kill the victim, because he would be able to identify them. Defendant clearly attempted to minimize his culpability as much as possible, consistent with the evidence. Toward this end, he informed the police that he told his codefendants that rather than killing the victim, they simply should park his vehicle somewhere, leaving the victim unharmed in the trunk, but that because his codefendants repeatedly urged him to kill the victim, he did kill him— without actually wanting to do so. Although defendant contends this evidence establishes that he did not possess the intent, at the time he took the automobile from the victim, permanently to deprive him of the use of his automobile, nevertheless a reasonable jury, considering this same evidence, could reject defendant's explanation as unreasonable. The jury was not required to believe defendant's claim to the police that at the time he forced the victim into the trunk at gunpoint, he intended only to temporarily borrow the victim's automobile and eventually return it. Additionally, substantial evidence supports a finding that defendant was guilty of robbery because he intentionally aided and abetted the codefendants in taking the victim's wallet and therefore intended permanently to deprive the victim of the money contained in that wallet. The victim's wallet was found on a street other than the one where the shooting took place. The wallet contained no money except for a $1 bill, which was found in the wallet portion as opposed to the billfold part of the wallet. As the prosecution argued to the jury, the circumstance that the billfold section of the wallet was empty supported an inference that money had been taken from it. There also was substantial evidence suggesting that defendant shared the intent of his codefendants to steal money from the victim's wallet. Defendant informed the detectives that one of his codefendants demanded the victim's wallet immediately after defendant and the others forced the victim from his automobile at gunpoint, all three having just discussed jacking the victim. The victim handed the wallet to one of the codefendants before he was forced into his trunk. A reasonable jury could infer from this evidence that defendant shared the codefendants' intent to take the victim's wallet and money at the time defendant willingly joined them in forcing the victim from his automobile and into the vehicle trunk at gunpoint. Defendant's argument regarding the sufficiency of the evidence of the robbery-murder special circumstance fails for the same reasons that apply to his primary sufficiency-of-the-evidence argument. The sole intent required for the jury to find true the robbery-murder special-circumstance allegation is the intent to commit a robbery before or during the killing. ( People v. Koontz (2002) 27 Cal.4th 1041, 1079-1080 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1263 [74 Cal.Rptr.2d 212, 954 P.2d 475].) As explained above, the evidence was sufficient to permit a reasonable jury to find that defendant shot the victim in the course of robbing him.
+(18) Defendant contends the evidence was insufficient to support his conviction of kidnapping for robbery, and of first degree felony murder to the extent the latter offense was predicated upon murder perpetrated in the commission of a kidnapping for robbery. Any person who kidnaps or carries away any individual to commit robbery is guilty of kidnapping for robbery. (§ 209, subd. (b).) Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. ( People v. Rayford (1994) 9 Cal.4th 1, 12 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) Defendant does not challenge the sufficiency of the evidence establishing that the victim was kidnapped, but asserts that the evidence was insufficient to establish that the victim was kidnapped to facilitate the commission of a robbery. His claim of error is based upon the same arguments, discussed above, that he made regarding the asserted absence of intent to commit robbery. For the reasons already stated, defendant's related claim regarding kidnapping for robbery also must fail.
+Defendant contends insufficient evidence supports any verdict of felony murder predicated upon a finding that the murder was committed in the course of a kidnapping. As noted above, however, there was substantial evidence demonstrating that defendant committed the crime of kidnapping— that is, that he forced the victim into the trunk of his own automobile at gunpoint, and then transported him over a substantial distance without his consent. There also was substantial evidence indicating that defendant killed Kondrath during the commission of that kidnapping, and that he killed the victim in order to advance the commission of the kidnapping—that is, to eliminate Kondrath as a witness. (See People v. Green, supra, 27 Cal.3d at p. 61.) The evidence was sufficient to permit a reasonable jury to find that defendant shot the victim in the course of kidnapping him.",sufficiency of the evidence
+131,4564607,1,1,Barbara J. Williams was convicted by the trial court of negligent child abuse resulting in serious bodily injury and sentenced to incarceration for a term of not less than 2 years nor more than 3 years. Williams appeals her conviction and sentence. We affirm.,introduction
+132,2077815,2,2,"[¶ 10] We first address the appeal of the issuance of a certificate of occupancy. Salisbury argues that neither the Board nor the Superior Court had jurisdiction to undertake an appellate review of the CEO's decision to issue the certificate of occupancy. Salisbury relies on our decision in Herrle v. Town of Waterboro, 2001 ME 1, ¶¶ 10-11, 763 A.2d 1159, 1161-62, where we held that courts lack jurisdiction to engage in appellate review of the exercise of prosecutorial discretion by municipalities. Because we couched the language in terms of decisions to enforce an ordinance, Salisbury attempts to bring the issuance of the certificate of occupancy within Herrle's limitations by arguing that its issuance constituted a decision not to enforce the ordinance. [¶ 11] Herrle does not, however, support Salisbury's argument. Herrle precludes the court's intrusion into municipal decision-making when a municipality decides whether or not to undertake an enforcement action. If the municipality undertakes a subsequent enforcement action, that action may be subject to judicial scrutiny if review is authorized by an appropriate law and ordinance. [¶ 12] The Bar Harbor Land Use Ordinance broadly authorizes appeals of the CEO's decisions to the Board of Appeals. The Board of Appeals may, upon written application of an aggrieved party received by the Planning Department within thirty (30) days of a decision of the Planning Board or Code Enforcement Officer, hear appeals from such decision. BAR HARBOR LAND USE ORDINANCE § 15.11.02.02. [¶ 13] The question, then, is whether the issuance of the certificate of occupancy was a decision of the CEO. In Charlton v. Town of Oxford, 2001 ME 104, n. 8, 774 A.2d 366, 373, we suggested that the issuance of a certificate of occupancy was an appealable event. We now hold that the issuance or denial of a certificate of occupancy is a decision subject to judicial review. Once the Town issued the certificate of occupancy, the Utsches filed a timely appeal, which the Board of Appeals had authority to consider. See BAR HARBOR LAND USE ORDINANCE § 15.11.02.02. [¶ 14] An appeal of a certificate of occupancy may not, however, substitute for an appeal of the underlying permit. See Juliano v. Town of Poland, 1999 ME 42, ¶¶ 7-8, 725 A.2d 545, 548 (holding that an appeal of a stop work order constituted a challenge to the decision to issue the underlying permit and, therefore, was untimely). If the permittee has complied with the terms of a valid permit, an abutter may not challenge the issuance of the certificate of occupancy based on a defect in the permit. If, however, the permittee has meaningfully exceeded the authority contained in the permit, or otherwise violated conditions of the permit, the issuance of the certificate of occupancy may be challenged. Here, the Board of Appeals found that the square footage of the new building fell outside the outline of the original footprint and exceeded the square footage of the old building by 473.5 square feet. It also found that the new volume exceeded the old volume by 7409.9 cubic feet — approximately 60%. The permit allowed Salisbury to build only within the footprint of the original building. Thus, the allegation that the building exceeded the scope of the permit was appropriately addressed by the Board of Appeals, the Board's decision could be challenged in court, and the Superior Court did not err in affirming the Board's decision. [¶ 15] Because we conclude that the Board of Appeals and the Superior Court had authority to review the issuance of the certificate of occupancy, and Salisbury does not challenge the Board's conclusion that the building exceeded both the permit and the applicable ordinance, we need not reach the issue of whether revocation of the stop work order was reviewable.",jurisdiction
+133,2617595,1,3,"There was no abuse of discretion in Kennedy's sentencing; hence, the district court's order denying the motion to correct an illegal sentence under W.R.Cr.P. 35 is affirmed.",conclusion
+134,1708190,1,1,"Larsen was employed by District as a custodian when he suffered on-the-job injuries to his back in the years 1985, 1986, and 1987. Sometime in 1987 District adopted a requirement that custodians be able to lift a minimum of 100 pounds. While Larsen's treating physician released him for work in January 1988, Larsen was released with a 30 pound lifting restriction. Because this weight restriction was considered to be permanent in nature, District terminated Larsen's employment in October 1988. In January 1989, Larsen's doctor assigned him, on the basis of the 1987 injury, a permanent partial impairment rating of 20% to the whole man. Rockwood then wrote to Larsen that the 20% rating would entitle him to $14,054.98 in permanent partial disability benefits. Rockwood also enclosed Department Form 111 and instructed Larsen that if he wanted the permanent partial disability benefits, he should sign the form so that it could be filed with Department. Larsen signed the form on February 7, 1989, and it was approved by Department on March 29, 1989. On October 20, 1989, Larsen filed a petition with Department in which he sought permanent total disability benefits for the same back injury. The petition did not allege that Larsen's physical condition had changed since the time he signed Form 111, nor has Larsen made any such contention throughout these proceedings. On April 4, 1990, this Court decided Whitney v. AGSCO Dakota, 453 N.W.2d 847 (S.D. 1990). We recognized that a settlement agreement of an employee and employer may have the effect of a final determination of all matters embraced therein and as such would be conclusive of those matters in later proceedings involving the same parties. On May 1, 1991, District and Rockwood filed a motion for summary judgment based on Whitney. They argued that the Form 111 agreement signed by Larsen, like the agreement in Whitney, precluded him from recovering any additional benefits without a showing that his physical condition had changed. In response, Larsen argued that Whitney should not be retroactively applied. The Department rejected Larsen's arguments and found that Whitney was controlling in that it followed past precedents of this court and did not announce any new principles of law. Deputy Director James Marsh, in his written decision granting summary judgment, went on to state that where a settlement agreement does not contain an express reservation of continuing jurisdiction by Department, additional claims as to all matters that could have been contemplated in the agreement are barred by res judicata. Judge Zinter reversed and remanded concluding that Whitney should have prospective application only. Although Judge Zinter concluded that Whitney did not apply to the case at hand, he never entered any conclusion of law that the language of the settlement agreement, in and of itself, would or would not preclude Larsen from pursuing a claim for permanent total disability. Rather, in Conclusion of Law II, he stated: That the Form 111 herein was intended by the Appellant [Larsen], Appellees [District and Rockwood] and the South Dakota Department of Labor to be a partial or interim agreement for the payment of permanent partial disability benefits and was not intended by the parties to be a final award. Subsequent to Larsen filing his appeal to circuit court he also filed a motion for relief, pursuant to SDCL 15-6-60(b)(1) and (6). This motion was contingent upon the circuit court finding that Form 111 had the effect of a final judgment or order. The essence of this motion was that Larsen understood at the time he entered the settlement agreement that it was for permanent partial disability compensation only and that by signing it he was not waiving or otherwise releasing his right to any other benefits under the worker's compensation statutes. In Conclusion of Law XI, Judge Zinter determined that it was not necessary to decide this motion given his remand to Department.",facts
+135,1179527,1,1,"Officer Howard of the Utah Highway Patrol clocked a pickup truck traveling forty-two miles per hour in a thirty mile-per-hour zone in Nephi, Utah, and signaled the vehicle to pull over. As the vehicles were pulling over, Officer Howard observed defendant Schlosser, a passenger in the vehicle, bending forward, acting fidgety, turning to the left and to the right, and turning back to look at the officer. After stopping the vehicle, the driver, defendant Lowder, got out of the truck and met Officer Howard between the truck and the patrol car with a valid driver's license and vehicle registration ready to show the officer. Schlosser continued to move about in the cab of the truck. Defendants' behavior led the officer to conclude that Schlosser was trying to hide something. Officer Howard approached the passenger side of the vehicle, tapped on the closed window, immediately opened the passenger door, and asked Schlosser for identification. Officer Howard testified that he asked for identification as a pretense for trying to determine what Schlosser may have been hiding. [1] Upon opening the door, Officer Howard scanned the interior of the truck for contraband and saw a bag of marijuana in the passenger door pocket. He also smelled marijuana smoke. Defendants were arrested, and in a subsequent search of the vehicle, additional bags of marijuana, drugs, drug paraphernalia, and two unloaded firearms were also found. Defendants were charged with unlawful possession of a controlled substance. On defendants' motion, the trial court suppressed all the evidence seized. In ruling on the motion, the trial court found that Officer Howard acted on a mere suspicion that the defendant [Schlosser] was engaged in criminal activity, had no legal basis for the search and seizure, and ordered the evidence taken from the automobile suppressed. [2] On this appeal, we employ the usual standard of review; we will not reverse the trial court's findings of fact unless they are clearly erroneous. State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985); State v. Cole, 674 P.2d 119, 122 (Utah 1983).",facts
+136,1846967,1,3,"In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. [4] The standard for reviewing the admissibility of expert testimony is abuse of discretion. [5] An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. [6]",standard of review
+137,2760898,2,1,"
+[¶13] First, Fox argues that the evidence is insufficient to support his conviction for trafficking because the evidence at trial established only that he possessed some, but not all, of the ingredients and materials that can be used to 7 manufacture methamphetamine. He further asserts that the evidence was insufficient to link him with the residue found on the items in the shed. The State argues that there was sufficient direct and circumstantial evidence that Fox successfully manufactured methamphetamine. [¶14] “In reviewing a challenge to the sufficiency of the evidence in a criminal matter, we consider the evidence in the light most favorable to the State to determine whether the trier of fact rationally could have found beyond a reasonable doubt every element of the offense charged.” State v. Johnson, 2014 ME 83, ¶ 10, 95 A.3d 621 (quotation marks omitted). A person is guilty of unlawful trafficking in a scheduled drug if the person “intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug, which is in fact a scheduled drug,” and the drug is a schedule W drug. 17-A M.R.S. § 1103(1-A)(A) (2013). Methamphetamine is a schedule W drug. 17-A M.R.S. § 1102(1)(A) (2013). The definition of “traffick” includes “[t]o make, create, [or] manufacture.” 17-A M.R.S. § 1101(17)(A) (2013). “Manufacture” means “to produce, prepare, propagate, compound, convert or process, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis.” 17-A M.R.S. § 1101(4) (2013). A person is guilty of aggravated trafficking in a scheduled drug if the person violates section 1103 and, at the time 8 of the offense, has one or more prior convictions for any felony drug offense involving a schedule W drug. 17-A M.R.S. § 1105-A(1)(B)(1). [¶15] We have recently decided two cases addressing the proof necessary to support a conviction for manufacturing methamphetamine. First, we concluded that circumstantial evidence of the successful completion of the manufacturing process is sufficient to support a conviction, even where not all of the necessary materials are found in the defendant’s possession. State v. Woo, 2007 ME 151, ¶¶ 19, 21, 938 A.2d 13. In that case, although there was no direct evidence linking the defendant to methamphetamine, we concluded that the State had presented sufficient circumstantial evidence to support a conviction. Id. ¶ 20. We concluded that “[b]ecause there was direct and indirect evidence in the record that [the defendant] had all of the substances needed to prepare or process methamphetamine, the jury could have reasonably inferred that [the defendant] successfully manufactured methamphetamine.” Id. ¶ 21. [¶16] In State v. Lowden, we concluded that the State’s evidence was insufficient to support a conviction for trafficking in methamphetamine. 2014 ME 29, ¶ 21, 87 A.3d 694. There, a law enforcement officer encountered the defendant boiling a substance in a glass container on a Coleman cooking stove. Id. ¶ 6. MDEA agents found various chemicals and glassware in the defendant’s bedroom, along with a handbook for creating methamphetamine. Id. ¶ 7. 9 Although the chemicals found at the scene were consistent with the methods described in the handbook, the defendant did not have all of the essential ingredients, and there was no evidence that the necessary chemical syntheses had occurred. Id. ¶ 8. On these facts, we concluded that the evidence was insufficient to support the defendant’s conviction because “unlike in Woo, there [was] no evidence, either direct or circumstantial, from which the jury could infer that [the defendant] successfully created methamphetamine or that methamphetamine had been created on or brought to the premises.” Id. ¶ 21. [¶17] Here, the proof is stronger than in both Lowden and Woo. Most importantly, actual methamphetamine residue was found on a piece of tubing and a funnel in Fox’s mother’s shed. Considered together with the expert testimony concerning how tubing and funnels are typically used in the manufacturing process, this evidence would allow the jury to find that the manufacturing process had been successfully completed. See Woo, 2007 ME 151, ¶ 20, 938 A.2d 13. Additional circumstantial evidence supports the jury’s verdict: Easler purchased pseudoephedrine for Fox with the understanding that he would receive methamphetamine in return, Fox and his wife were in the shed while visiting Fox’s mother, and recordings of Fox’s conversations with his wife reveal that, in the context of a conversation concerning the allegations of manufacturing, Fox referred to an acquaintance as a “rat.” The jury also had the opportunity to hear 10 Fox’s response to being informed by his wife that MDEA agents had searched the shed. Although Fox’s wife testified that Fox had not manufactured methamphetamine and that the pair had merely used drugs in the shed, the jury was free to reject this testimony. See State v. Allen, 2006 ME 20, ¶ 26, 892 A.2d 447 (“The weight to be given to the evidence and the determination of witness credibility are the exclusive province of the jury.” (quotation marks omitted)). [¶18] In short, there was evidence that Fox intended to create methamphetamine, that he had access to many of the materials necessary to make methamphetamine, and that he had, in fact, created methamphetamine, which was found on some of those items. This is more than enough evidence to support a finding that Fox successfully manufactured methamphetamine. See Woo, 2007 ME 151, ¶ 20, 938 A.2d 13.
+[¶19] Fox next argues that, because the parties’ stipulation to Fox’s prior conviction was never offered in evidence, the evidence was insufficient to support his conviction for aggravated trafficking, which requires proof of a prior drug-related conviction. The State argues, and we agree, that the stipulation obviated the need for proof or findings relating to the prior conviction. [¶20] In a case involving a simple assault that was charged as a felony due to two prior convictions, we held that a stipulation to a prior conviction will 11 “obviat[e] the need for any proof of or findings about the prior conviction[]” where it is “abundantly clear” that the defendant has agreed to stipulate to the existence of his prior conviction. State v. Ireland, 2005 ME 48, ¶ 4, 870 A.2d 119. Here, Fox failed to draw the court’s attention to the failure of proof regarding his prior conviction at any time during trial, including when he made his two motions for judgment of acquittal. He also failed to raise the issue when the court imposed a sentence that was necessarily predicated on proof of the prior conviction. Moreover, the stipulation served to protect Fox’s interests by preventing the jury from learning about his prior criminal conduct. Under these circumstances, it is abundantly clear that Fox agreed, through his attorney, that evidence of his prior conviction need not be presented to the jury. We are not persuaded that Fox’s conviction must be vacated as a result of the State’s administrative oversight in failing to formally introduce the stipulation on the record.",sufficiency of the evidence
+138,2517002,1,4,"¶ 22 Does a separate period of limitation commence after each reimbursement payment made by the Board? ¶ 23 The Board also argues that our holding in Capitol Indemnity requires that a separate period of limitation commences after each of the 575 payments the Board alleges it made to the owners of the petroleum facilities. ¶ 24 As we noted both above and in Capitol Indemnity, the statute of limitations in these cases is based not on payment, request for payment, or denial of payment. Rather, it is based on when the claim accrues; that is, upon discovery of the leak and the subsequent obligation on the part of the owners to clean up the spilled petroleum, which triggered their right to maintain an action under an applicable insurance policy. ¶ 25 The Board relies on this Court's holding in St. Paul Fire & Marine Ins. Co. v. Thompson, 152 Mont. 396, 451 P.2d 98 (1969), for the proposition that a party has no claim for indemnification until payment of a judgment. In St. Paul, after entry of a judgment against an employee for negligence and his employer based on the legal theory of respondeat superior, the employer's insurer sought indemnification from the negligent employee. This Court held that the statute of limitations for the insurance company's indemnity claim did not start running at the time of the accident giving rise to the original injury, but, rather, only after the employee's liability had been determined in a separate court action. St. Paul, 152 Mont. at 403, 451 P.2d at 102. Once the employee and employer's liability had been established at trial and then upheld on appeal, the insurer's obligation to pay was confirmed. Only at that time was the insurance company's right to indemnification established. Had the employee been found not to be negligent, his employer would not have been liable through respondeat superior, and the insurance company would not have been required to pay damages to the plaintiff in the underlying case. ¶ 26 In essence, in St. Paul, the Court concluded that only once the employer's liability had been established through respondeat superior did the statute of limitations begin to run on the insurer's indemnification claim. Here, on the other hand, in this first-party case, the facility owners' liability for cleanup was established when the leaks were discovered and the obligation for cleanup occurred. Thus, this case is unlike St. Paul in that there the insurance companies' obligation to pay was dependent on a third party's recovery in tort, while in this case the claim under the insurance policies matured when the obligation to clean up arose. Once the alleged obligation to pay under the policies arose, the periods of limitation began to run both for the facility owners and for the Board as their subrogee. ¶ 27 The Board also cites Fulton v. Fulton, 2004 MT 240, 322 Mont. 516, 97 P.3d 573, in support of its position. In Fulton, a domestic relations case, we noted that monthly spousal maintenance payments due under a court order were, in essence, installment payments, each with a separate period of limitation. Fulton, ¶ 14. Here, on the other hand, the Insurance Companies were not obligated to make installment payments to the facility owners. Rather, if the losses were insured as alleged, the insurers had a contractual obligation to pay the facility owners the cost to clean up the petroleum spill up to the limits of their policies. Neither the facility owners nor the Board as subrogee sought to enforce this obligation within the applicable period of limitations. ¶ 28 St. Paul and Fulton are inapposite. The District Court's orders denying the Board's prayer for a separate period of limitation for each payment are correct applications of the law.",issues
+139,2396668,1,2,I. Did the circuit court lack subject matter jurisdiction over the action? II. Did the circuit court err in finding unjust enrichment to be an alternate form of recovery? III. Did the circuit court err in finding that there was a contract between Appellants and Respondent? IV. Did the circuit court err in finding the mechanic's lien statutes applied?,issues
+140,2109272,1,1,"[¶ 2] On July 25, 2000, Kalex was driving a red pickup truck with a passenger inside. Kalex pulled up beside Holland, who was walking down the street, and said, according to Holland's trial testimony, that Holland was lucky that [Kalex and the passenger] didn't have a gun right then or they would shoot [Holland], while Kalex gestured like he was pointing a gun at Holland. According to Holland's testimony, Kalex's passenger told Holland he could take that to the bank because that's a promise, not a threat. Holland reported the incident to the police, identified Kalex and described the truck and passenger, after which the police went to Kalex's home. When Kalex arrived, the police questioned him. During a heated conversation, Kalex referred to Holland as a nigger, and stated he would not do anything to Holland, but his family would take care of Holland. [¶ 3] The State charged Kalex with interference with Holland's constitutional and civil rights, 17 M.R.S.A. § 2931 (Supp.2000), and terrorizing, 17-A M.R.S.A. § 210 (Supp.2000). [1] At the trial on the count of terrorizing, [2] the court admitted testimony that Kalex and others had approached Holland's house on October 31, 1999, wearing KKK outfits and carrying a sign from Holland's mayoral campaign; the sign was altered to display a drawing of a raccoon circled in red with a line through it. The court admitted a photograph of Kalex in a KKK outfit for the limited purpose of the jury understanding the — the attire that the officer said was similar to what appears in that picture. [3] [¶ 4] The court refused to admit evidence presented through voir dire regarding Holland's reputation for truthfulness. Theresa Ordway testified that a few people had warned [her] that he wasn't a very nice guy, and that he takes things that don't belong to him, that he lies about — he tells stories, he fabricates stories in order to get things that he wants. She testified that she based her testimony on what she heard from about fifteen people. Brian McLaughlin, a local business owner, stated that Holland had caused problems or stolen merchandise from local businesses and that other business owners told him Holland tr[ied] to con things out of ... store[s], merchandise or anything. McLaughlin stated, however, that apart from hearing about Holland being manipulative and trying to strong-arm or con five to ten business people, McLaughlin couldn't tell you about his reputation for truthfulness .... [¶ 5] Denise Everest, Kalex's girlfriend, stated that she had spoken with at least fifty people in the greater Biddeford area who regarded Holland as untruthful. She also testified that, apart from those approximately fifty people, the Biddeford business community had dishonest problems with him as far as products, services, and lack of payment. Thomas Kent testified that Holland was manipulative of local businesses according to the five to ten people with whom he had conversed about Holland. Kalex himself testified that Holland was an extortionist, that he lies and cheats and thieves, and that the newspapers had questioned Holland's honesty about obtaining signatures for his electoral ballots. Kalex did not say how many people had communicated to him about Holland's reputation for untruthfulness. [¶ 6] The court concluded that the above testimony, based on the witnesses' own observations or the observations of a number of business people regarding Holland's reputation for being a con man who strong-arms people or fails to pay them did not constitute evidence of his reputation in the community for truthfulness. The court stated: And to the extent that if five or 10 business people on Main Street have issues in regard to truthfulness, which I didn't even hear, but to the extent that wouldn't be a big enough community, clearly the defense has failed to meet its required standing to proceed with the — on the issue of character, and I am not going to permit the proposed inquiry about the defendant's reputation for truthfulness or veracity in the community on the basis of what has been presented by way of the voir dire here and these six witnesses. [¶ 7] The jury convicted Kalex of terrorizing before the Superior Court (York County, Fritzsche, J. ). Kalex filed his notice of appeal from the conviction, after which the court (York County, Cole, J. ) entered its judgment and commitment, sentencing Kalex to 364 days in jail with all but 120 days suspended, plus a year of probation.",facts
+141,2625079,1,2,"[¶ 4] On the night of November 28, 1998, Coburn was patronizing a bar in Riverton, Wyoming. The victim, Ronald Berg, was also a customer on this night. At approximately midnight, the two men exchanged some pushing and harsh words after bumping into each other. A bartender broke up the altercation. A short time later, while the victim was talking with his friends, he saw Coburn standing at the door, motioning for him to follow him outside. The victim perceived this invitation as one to go outside to fight, and he proceeded toward the exit. It took the victim approximately one to two minutes to get through the crowded bar. During those few minutes, Coburn positioned himself outside facing the door in a crouched position and had placed a standard-sized hunting knife in the waistband of his pants in the small of his back. [¶ 5] Accounts as to exactly what happened next vary somewhat, but are fairly consistent that once the victim made his way outside, the two men immediately lunged toward each other. Once they separated, the victim noticed that Coburn had a knife. The victim wrapped a shirt around his hand and bull-rushed Coburn, taking him to the ground. The victim was ultimately able to get control of Coburn by lying across him, placing his right arm on Coburn's throat, and subduing the knife-brandishing arm by simply holding it to the ground. Witnesses agreed that at this point the victim did nothing more than restrain Coburn until the police arrived. It was not until the victim got up that he realized that he had been stabbed in the abdomen and again in his shoulder. He was taken to the hospital where doctors determined that his abdominal wound required immediate surgery as the knife nicked the outer lining of the large intestine. [¶ 6] Coburn was arrested and charged with aggravated assault and battery. Coburn did not testify at his trial, but he asserted that he had acted in self-defense. At the jury instruction conference, Coburn objected to the giving of a self-defense instruction that related to situations where the defendant is the aggressor. Although he had originally proposed the instruction, he had ultimately decided to withdraw it, arguing that the evidence did not support the idea that he was the aggressor. The judge disagreed and gave the instruction along with other instructions on self-defense. [¶ 7] The jury convicted Coburn of aggravated assault and battery, and the trial court sentenced him so serve a sentence of not less than three nor more than five years in the Wyoming State Penitentiary. The trial court also ordered Coburn to pay restitution to the victim in the amount of $18,152.40. Coburn appeals his conviction.",facts
+142,2166740,1,2,"Hammond alleged in Count I of its petition that the findings of the Authority were prejudicial to its business interest and not based on any substantial evidence. Specifically, Hammond asserted that the project was primarily retail in nature, [6] would not make a significant contribution to the economic growth of the state, would result in substantial detriment to existing industry, and that there was insufficient demand in the area to employ the efficient capacity of existing industry. See 10 M.R.S.A. § 1063(2). Findings of fact made by an administrative agency must be upheld if supported by substantial evidence in the record. 5 M.R.S.A. § 11007(4)(C)(5) (1979); Gulick v. Board of Environmental Protection, 452 A.2d 1202, 1207-08 (Me.1982). In reviewing administrative agency action, this court can directly review the administrative record in exactly the same manner as the Superior Court, and need not remand the case to the Superior Court for its review of that record. Gulick, 452 A.2d at 1209 n. 6; City of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1134-35 (Me. 1982); Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me.1982). A careful review of the entire record in this case demonstrates that the Authority had substantial evidence upon which to base its findings. The Authority justifiably found that the project would result in the retention of 25 existing jobs and the creation of 8 new positions, would add to and diversify the tax base of the City of Augusta, a community with many non-taxpaying government facilities, and would make a significant contribution to the economic growth of the State of Maine. 10 M.R.S.A. § 1063(2)(A). Although Hammond asserted that the retail sales of Augusta Lumber would dramatically increase at its new location, in violation of 10 M.R.S.A. § 1061-A(1), there was substantial evidence concerning Augusta Lumber's past business and future intentions to justify the Authority's finding that less than 25% of the proceeds of the securities would be used for retail sales space. In concluding that the project would not result in substantial detriment to existing businesses under 10 M.R.S.A. § 1063(2)(B), the Authority considered whether the demand within the market area would be sufficient to employ the efficient capacity of existing businesses, see 10 M.R.S.A. § 1063(2)(B)(1), and balanced the contribution the project would make to the economic growth of the state against any adverse economic effect of the project on those businesses, see 10 M.R.S.A. § 1063(2)(B)(2). The evidence showed that Augusta Lumber was a going concern that, as a result of the project, was to operate from a new facility. The Authority found that as a result of the project, Augusta Lumber would not be intruding into a market that it currently did not serve, and further found that the project would not affect the share of the market that Augusta Lumber then had. Nothing Hammond presented persuasively suggested otherwise. In fact, Hammond presented no compelling evidence at all of its suffering any detriment as a result of the project. Hammond complained of the advantage to be realized by Augusta Lumber from interest savings resulting from municipally issued industrial bonds, contending such interest savings would allow Augusta Lumber to undercut detrimentally its competitors in pricing. An examination of the record before the Authority discloses that Hammond presented nothing more than its speculative and generalized conclusions as to the connection between the interest Augusta Lumber was to save on the issuance of the bonds and its ability to charge lower prices. Damage to a competing business from its competitor's savings on interest payments must be actual. Such savings do not result per se in an unlawful advantage. Indeed, such savings on interest resulting from the issuance of municipal industrial revenue securities are contemplated by and are part of the purpose of the Municipal Securities Approval Program. In addition, in this case, the Authority found that the modest advantage from savings on interest payments to be realized by Augusta Lumber was offset by higher mortgage payments and costs of occupying the new facility. The Authority also found that any detriment caused by the project would be outweighed by benefits to the economic health of the state. See 10 M.R.S.A. § 1063(2)(B)(2). We conclude that the Authority's findings are supported by substantial evidence in the record.",sufficiency of the evidence
+143,1303522,1,2,Whether the Court of Appeals erred in holding that the trial court properly denied petitioner's directed verdict motion?,issues
+144,874895,1,2,"When considering a case on review from the Court of Appeals, this Court gives serious consideration of the views of the Court of Appeals; however, this Court reviews the trial court's decisions directly. State v. Coassolo, 136 Idaho 138, 140, 30 P.3d 293, 295 (2001) (citations omitted). This Court exercises free review over constitutional questions. Quinlan v. Idaho Comm'n for Pardons & Parole, 138 Idaho 726, 729, 69 P.3d 146, 149 (2003). The trial court's factual findings will not be overturned unless they are clearly erroneous. State v. Conant, 143 Idaho 797, 799, 153 P.3d 477, 479 (2007).",standard of review
+145,853005,1,3,"Because Smith was not legally entitled to drive we affirm the trial court. SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.",conclusion
+146,2584374,1,10,"A district court must instruct the jury on lesser included crimes when there is some evidence that would reasonably justify a conviction of some lesser included crime. K.S.A. 22-3414(3); see State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 (2005). But lesser included crime instructions are not required if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offenses. 280 Kan. at 134, 119 P.3d 1148. When a defendant does not object to a district court's giving or failure to give an instruction for a lesser included offense, stating distinctly the matter the defendant objects to and the grounds for the objection, it is reversible error only if the giving or failure to give the instruction was clearly erroneous. See K.S.A. 22-3414(3); Engelhardt, 280 Kan. at 134-35, 119 P.3d 1148. Further, if a defendant did not request a lesser included offense instruction, a district court's failure to give the instruction is only clearly erroneous if a reviewing court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006) (citing State v. Boone, 277 Kan. 208, 220, 83 P.3d 195 [2004]).",issues
+147,6326916,1,4,"As an initial matter, we note that, because we hold that alleged noncompliance with the twenty-minute observation period goes to the weight of the evidence rather than to the admissibility of breath test results and Dejarnette has raised no meaningful allegation as to any irregularity having occurred during the observation period, we need not necessarily address whether the record in this case demonstrates that the officers complied with the observation period. Even so, we conclude that the record supports a finding that the officers complied with the twenty-minute observation period. And, we determine that the circuit court found on the record that the officers complied with the requirements of the applicable COMAR regulation. COMAR 10.35.02.08G does not define “observed” or “observation” and neither - 33 - term is qualified by a word such as “continuous,” “unbroken,” “constant,” or anything of the like. Indeed, neither term is qualified whatsoever. The regulation does not require that the person performing the observation watch the person and do nothing else. The regulation does not describe the manner in which the observation is to be performed, other than that the observation is meant to ensure that for the twenty minutes before administration of a breath test, an individual does not eat, drink, smoke, or have any foreign substance in the individual’s mouth or respiratory tract, and the individual’s mouth must be checked. See COMAR 10.35.02.08G(1), (2). Given this, we will not read into the regulation something that is not there and hold that observation means that an officer must give the individual constant, fixed, or unbroken attention during the twenty-minute period. Rather, like the Court of Special Appeals, we conclude that it is “unreasonable to require continuous, unbroken observation for twenty minutes” and that an officer certainly has the ability to discern whether an individual eats, drinks, smokes, or puts something in the individual’s mouth without the officer’s gaze being solely transfixed on the person for an uninterrupted period of twenty minutes. Dejarnette, 251 Md. App. at 478, 254 A.3d at 53031. We agree with the Court of Special Appeals that “[o]fficers may use numerous senses to observe an individual to ensure they do not eat, drink, smoke, or put something in their mouth.” Id. at 478, 254 A.3d at 531. The record in this case amply demonstrates that the officers complied with the twenty-minute observation period. Forty-four minutes elapsed between the time that Dejarnette was stopped at 1:59 a.m. and the time at which the first test result occurred at 2:43 a.m. Thirty-one minutes elapsed between the time that Dejarnette was arrested at 2:12 - 34 - a.m. and the first test result. And, twenty-two minutes elapsed between the time that Dejarnette arrived at the police barrack at 2:21 a.m. and the first test result. For the thirtyone minutes between arrest and the first test result (2:12 a.m. to 2:43 a.m.), Trooper Brown was with Dejarnette and close enough to him to observe whether he ate, drank, smoked, or had anything in his mouth. At the time of arrest, Trooper Brown checked Dejarnette’s mouth and pockets before he cuffed Dejarnette’s hands behind his back and placed him in the front passenger seat of the police car. Trooper Brown transported Dejarnette to the police barrack and when they arrived at the barrack at 2:21 a.m., Sergeant Todd, the duty officer, met them and a second search was conducted in Sergeant Todd’s presence. Sergeant Todd testified about the second search, stating that he had Dejarnette open his mouth and stick out his tongue, and he looked in his mouth and watched while Trooper Brown searched Dejarnette. Trooper Brown testified that nothing was found in Dejarnette’s mouth during either search. During the search at the barrack, Trooper Brown checked Dejarnette’s pockets and anything that Dejarnette had in them would have been removed and placed in a bag that Dejarnette did not have access to. The evidence established that for the sixteen minutes between 2:21 a.m. and 2:37 a.m., Dejarnette was in Trooper Brown’s presence at the barrack. During that time, Trooper Brown took Dejarnette to the processing room, which he described as a small room of approximately eight or ten feet by twelve or fourteen feet containing a desk and two chairs. When asked whether he was sure that Dejarnette did not have something in his mouth in the police car and the processing room, Trooper Brown testified: “All I could say was, he had his hands behind his back, and they were handcuffed” and Dejarnette’s mouth - 35 - “was empty when he was placed in the car.” Trooper Brown testified that during the drive to the police barrack and in the processing room, Dejarnette did not smoke, have anything to eat or drink, or put a mint in his mouth. Trooper Brown also testified that he did not hear or smell Dejarnette belch and that he did not see Dejarnette make any hand movements while he was seated uncuffed in the processing room. Sergeant Todd’s testimony was consistent with Trooper Brown’s. Sergeant Todd testified that, when he was in the processing room, Dejarnette did not have anything in his mouth and that he saw nothing amiss with him. In short, the record supports a finding of compliance with the twenty-minute observation period. From the time of Dejarnette’s arrest at 2:12 a.m.—and even before— until when the first breath sample was taken and the test result occurred at 2:43 a.m., Trooper Brown was in close proximity to Dejarnette and able to observe him. While he was in the police car, Dejarnette was in the front passenger seat, just a short distance from Trooper Brown, with his hands cuffed behind his back, making it almost impossible for him to eat, drink, smoke, or place a foreign substance in his mouth without that action being detected by Trooper Brown. While he was at the barrack, Dejarnette was a short distance from Trooper Brown in a small room, after having been searched twice and having any items in his possession removed from his pockets. Trooper Brown testified that Dejarnette did not have anything in his mouth while in the processing room and Sergeant Todd also testified that was the case when he was in the processing room with Dejarnette. The evidence in this case was more than sufficient to demonstrate compliance with the twentyminute observation period. - 36 - To be sure, during the observation period, Trooper Brown read the DR-15 Advice of Rights form to Dejarnette. At the motions hearing, Dejarnette’s counsel had Trooper Brown read aloud the Advice of Rights form. The circuit court advised Trooper Brown to “[r]ead it as if you’re advising me[.]” Trooper Brown read the form and the circuit court noted that it took seven minutes. The following exchange then occurred: [DEJARNETTE’S COUNSEL:] It’s fair to say during the time that you were reading that, you were not looking at me; correct? [TROOPER BROWN:] That’s correct.[13] [DEJARNETTE’S COUNSEL:] Okay. THE COURT: But Sergeant Todd would have presumably been looking at me, if you were reading it to me? [TROOPER BROWN:] Yes. [DEJARNETTE’S COUNSEL:] Was Sergeant Todd in the room the entire time? [TROOPER BROWN:] I don’t recall if he was in the room the entire time. Dejarnette’s counsel attempted to suggest that Sergeant Todd may not have been in the room when the form was read. To the extent that Trooper Brown understood the circuit court to be asking about where Sergeant Todd would have been looking if he were in the room, Trooper Brown responded that Sergeant Todd would have been looking at the person 13 In responding to questions from the circuit court, Trooper Brown confirmed that, while reading the Advice of Rights form, although he reads from the form, he looks at the person he is advising. The circuit court had instructed Trooper Brown to read the form to the court (“me”), not Dejarnette’s counsel. So, that Trooper Brown responded that he was not looking at Dejarnette’s counsel while reading the form means nothing. Trooper Brown had been instructed to look at the court as if the court were the person whom he was advising. - 37 - whom the form was being read to. Either way, the outcome of the analysis is the same. Even if Trooper Brown had been in the processing room alone with Dejarnette and reading the form during the observation period, given his close proximity to Dejarnette in the small room, he would have been able to observe whether Dejarnette ate, drank, smoked, or placed a foreign substance in his mouth. In addition, Dejarnette had been searched twice before he went into the processing room and anything in his pockets was removed. And, Trooper Brown was close enough to Dejarnette that he would have been able to see, smell, or hear if Dejarnette belched or vomited, and, for his part, Dejarnette has merely suggested that he could possibly have done either. We are satisfied that the twenty-minute observation period prescribed by COMAR 10.35.02.08G was complied with. Finally, like the Court of Special Appeals, we conclude that the circuit court found that the officers complied with the twenty-minute observation period required by COMAR 10.35.02.08G. See Dejarnette, 251 Md. App. at 480, 254 A.3d at 531. When ruling on the motion in limine, the circuit court described the sequence of events that had occurred: [W]hen you’re arresting somebody, and you’re putting them in the car, and you’re driving, and you’re taking them out of the car, and you search them again, and you are taking them down to the room, you know, presumably, they’re in close proximity to you, they’re not away from you, and you can observe whether they’ve belched or vomited, the same as you can in a room. But, quite frankly, I think best practices is that, you’re in a room with them, as the trooper said, from as close as you were today with your client, and you’re able to be close enough to smell, to touch, if necessary, if you suspect there’s something in their mouth, to see, all of your tactile senses are in such a close range, that you can make those observations. The circuit court specifically determined that, between 2:21 a.m. and 2:43 a.m., “during the 22 minutes, we’ve got two people, a combination of the two people[, i.e., Trooper - 38 - Brown and Sergeant Todd,] that are making observations. And neither one observed a belch, a vomit, a stick of gum, a cigarette, anything to the contrary that would invalidate the test[.]” It is clear that in ruling on the motion in limine, the circuit court found that the officers complied with the twenty-minute observation period set forth in COMAR 10.35.02.08G, and that the court’s factual findings are supported by the record. Nothing more was required. The Court of Special Appeals correctly affirmed the judgment of the circuit court. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS. - 39 -",analysis
+148,1990001,1,2,"Pilot challenges the sufficiency of the evidence as to the first-degree criminal sexual conduct conviction but not as to the attempted first-degree murder and attempted first-degree murder while committing criminal sexual conduct charges. Even though Pilot did not contest the sufficiency of the evidence on appeal to the court of appeals, we will address the issue in order to lay it to rest. In reviewing sufficiency of the evidence we carefully examine the evidence presented in the record, along with legitimate inferences from that evidence, to determine whether the jury could have concluded that the state met its burden of proving beyond a reasonable doubt that the defendant was guilty of each of the charged offenses. State v. Moore, 481 N.W.2d 355, 360 (Minn.1992). Our review is in the light most favorable to the jury's verdict and we assume that the jury believed the state's witnesses and disbelieved evidence contradicting those witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn.1995); see also State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). Pilot was convicted of first-degree criminal sexual conduct defined as engaging in sexual penetration with another person by force or coercion causing personal injury. See Minn.Stat. § 609.342, subd. 1(e)(i) (1998). The evidence of Pilot's guilt was substantial: Pilot's early efforts to engage H.T. in sexual conduct and his effort on the night of the assault to persuade Rabago to let him come over surely identify him as a strong suspect. H.T. positively identified him as her assailant upon waking from her coma and at trial and she had no motive to lie about her best friend's boyfriend. DNA matching that of H.T. was found on the jeans and jacket Pilot had been wearing on the night of the assault and Pilot's alibi as to his whereabouts during the assault clearly left room for a jury to believe that he did in fact have time to attack H.T. The jury could reasonably have reached a verdict of guilty on the basis of this evidence and therefore we hold that the evidence was sufficient to support the jury's guilty verdict on the first-degree criminal sexual conduct charge.",sufficiency of the evidence
+149,4509377,1,4,"1. Motion to Quash [4] Neb. Rev. Stat. § 29-1808 (Reissue 2016) provides, “A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged.” We have consistently held that the proper procedure for raising a facial constitutional challenge to a criminal statute is to file a motion to quash, and all defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.9 But here, Zoie’s motion to quash did not challenge the constitutionality of the criminal statute on which she was being adjudicated. Instead, her motion to quash raised a facial constitutional challenge to an entirely different statute, § 28-1204.05. Zoie sought to quash the amended supplemental petition by arguing that adjudication for acts that would constitute theft by unlawful taking over $5,000 “would subject [her] to criminal prosecution under an unconstitutional statute, Neb. Rev. Stat. § 28-1204.05.” [5] In the criminal context, a defendant is prohibited from attempting to circumvent or avoid conviction under a particular statute by asserting a constitutional challenge to another, collateral statute which is irrelevant to the prosecution.10 We have generally described this as a rule of standing and have applied it to motions to quash in a criminal prosecution, reasoning that a defendant has standing to challenge only those statutes that are relevant to the prosecution.11 We conclude this rule is equally applicable to motions to quash filed in juvenile adjudication proceedings. 9 State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019). 10 State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012); State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999). 11 See id. - 875 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 Zoie was being adjudicated for acts which would constitute felony theft by unlawful taking, and her motion to quash challenged the constitutionality of § 28-1204.05, a statute that was collateral to the adjudication, and which would apply, if at all, only after an adjudication. Zoie was attempting to avoid adjudication by challenging the constitutionality of a statute that was irrelevant to the statutes under which the State was seeking adjudication, and the juvenile court correctly overruled the motion to quash. Given our resolution of this assignment of error, we do not reach, in this appeal, any of Zoie’s constitutional challenges to § 28-1204.05. 2. Demand for Jury Trial In her second assignment of error, Zoie argues that if § 28-1204.05 is constitutional, it effectively transforms a juvenile adjudication for an act which would be a felony or a misdemeanor act of domestic violence into a serious criminal offense to which the right to a jury trial attaches. [6,7] When considering a criminal defendant’s right to a jury trial, it is well established that the right does not extend to those criminal offenses categorized as “‘petty,’” but attaches only to those crimes that are considered “serious[]” offenses.12 This court has said that the right to a jury trial attaches when the potential term of incarceration exceeds 6 months or if the “‘additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one.’”13 Zoie urges us to apply the “serious offense” test to her juvenile adjudication, and she asks us to find that the passage of § 28-1204.05 reflects a legislative determination that 12 See Blanton v. North Las Vegas, 489 U.S. 538, 541, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989). 13 Wiltshire, supra note 5, 241 Neb. at 820-21, 491 N.W.2d at 327. - 876 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 juvenile adjudications for acts which would constitute a felony are serious offenses that must be tried to a jury. Her argument is premised on the fundamental assumption that § 28-1204.05 imposes a criminal penalty for juvenile adjudication. We explore that assumption first and reject it. We then consider the right to jury trial generally in juvenile court adjudications, and we conclude the juvenile court correctly denied Zoie’s demand for a jury trial. (a) § 28-1204.05 Is Not Penalty for Juvenile Adjudication To address Zoie’s argument that § 28-1204.05 transforms juvenile adjudications into serious offenses that require a jury trial, we first consider whether § 28-1204.05 can fairly be characterized as punishing juvenile adjudication at all. The answer to this question is key because if § 28-1204.05 is not punishment imposed for her juvenile adjudication, then Zoie’s argument that § 28-1204.05 transforms the adjudication into a serious offense necessarily fails. [8] In the criminal context, we often analyze such questions using the “‘intent-effects’” test established by the U.S. Supreme Court, “which requires an initial determination of whether the Legislature intended the statute to be criminal or civil [in nature].”14 But juvenile adjudications are civil, not criminal, in nature. As we explained in In re Interest of Laurance S.:15 “We have long recognized that a juvenile court proceeding is not a prosecution for crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution. . . . The purpose of our statutes relating to the handling of youthful offenders is the education, 14 See State v. Payan, 277 Neb. 663, 670, 765 N.W.2d 192, 200 (2009) (applying test from Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003)). 15 In re Interest of Laurance S., 274 Neb. 620, 624, 742 N.W.2d 484, 488 (2007). - 877 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 treatment, and rehabilitation of the child, rather than retributive punishment. . . . The emphasis on training and rehabilitation, rather than punishment, is underscored by the declaration that juvenile proceedings are civil, rather than criminal, in nature.” A juvenile adjudication does not result in a conviction and sentence; instead, when a juvenile is adjudicated for acts which would constitute a felony, Neb. Rev. Stat. § 43-286 (Cum. Supp. 2018) sets out the dispositional options available to the juvenile court. And even when a disposition is similar to that imposed as punishment for a crime, we have not found the disposition to be punishment.16 Because juvenile adjudications are civil rather than criminal in nature, it is difficult to envision any circumstance under which a juvenile disposition could be successfully challenged as punishment. Here, of course, the prohibition on possessing firearms contained in § 28-1204.05 is not part of the juvenile code, but, rather, it is contained within the statutory provisions governing criminal offenses. To answer the question whether § 28-1204.05 is properly characterized as punishment for the juvenile adjudication, we find guidance in our holding in State v. Peters.17 In that case, we held that a similar statute, Neb. Rev. Stat. § 28-1206 (Reissue 1995), which prohibits firearm possession by convicted felons, does not impose punishment for the prior felony. We reasoned that although § 28-1206 punished the specific conduct of possessing a firearm after being convicted of a felony, it did not increase the punishment for the prior felony. In Peters, we recognized that one’s status 16 See, e.g., In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007) (dispositional order of restitution in juvenile court rehabilitative in nature and not punishment); In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989) (dispositional placement of juvenile in youth training center is not punishment, but, rather, is furnishing of protection, care, and training by State as substitution for parental authority). 17 State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001). - 878 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 as a convicted felon made the statutory firearm prohibition applicable, but we found the legal consequences for the past criminal conduct remain unchanged. Stated differently, the statutory prohibition on possessing firearms may be a collateral consequence of a prior felony conviction, but it is not part of the punishment imposed for that prior felony conviction. We noted that the majority of jurisdictions agree that statutes prohibiting felons from possessing firearms “are viewed not as further punishment for the underlying felony or felonies, but as a future prohibition on a felon’s conduct.”18 [9] Given our holding in Peters that the prohibition on possessing firearms in § 28-1206 is not punishment for the prior felony conviction, we likewise hold that the prohibition on possessing firearms in § 28-1204.05 is not punishment imposed for a prior juvenile adjudication. We therefore reject Zoie’s argument that § 28-1204.05 transformed her juvenile adjudication into a serious offense and entitled her to a jury trial. And as we explain below, we see no other legal basis on this record to support Zoie’s demand for a jury trial in her juvenile court adjudication. (b) No Constitutional Right to Jury in Juvenile Adjudications The U.S. Supreme Court in McKeiver v. Pennsylvania19 held that a jury trial is not constitutionally required in a juvenile court’s adjudicative stage. The plurality opinion discussed the Court’s earlier decisions in Kent v. United States,20 In re Gault,21 and In re Winship 22 and reasoned generally that the 18 Id. at 422, 622 N.W.2d at 924. 19 McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971). 20 Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). 21 In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). 22 In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). - 879 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 full spectrum of criminal constitutional rights afforded adults has not been imposed on juvenile court proceedings. McKeiver emphasized, however, that if a state decides to offer jury trials in juvenile adjudications that would be its “privilege and not its obligation.”23 Post-McKeiver, some states have extended the right to jury trial to juvenile adjudications under certain circumstances, through either statutes or court decisions.24 But the majority have not,25 including Nebraska. Nebraska’s preeminent case on the issue is the pre-­McKeiver case of DeBacker v. Brainard.26 There, we considered a habeas petition challenging the constitutionality of a recently enacted statute requiring that juvenile court hearings “shall be conducted by the judge without a jury in an informal manner, applying the customary rules of evidence in use in civil trials without a jury in the district courts.”27 The juvenile at issue had been adjudicated delinquent for the act of forgery, a felony, and 23 McKeiver, supra note 19, 402 U.S. at 547. 24 See, e.g., Kan. Stat. Ann. § 38-2357 (Cum. Supp. 2018) (granting juveniles right to request jury trial); Mass. Gen. Laws Ann. ch. 119, § 55A (West 2017) (requiring trial by jury unless waived); In re L.M., 286 Kan. 460, 186 P.3d 164 (2008) (holding juvenile code lost its parens patriae character and concluding juveniles have right to jury trial under Kansas Constitution); RLR v. State, 487 P.2d 27 (Alaska 1971) (holding state constitution guarantees juvenile’s right to jury trial). 25 See, e.g., Conn. Gen. Stat. Ann. § 54-76e (West 2009) (“trial shall be held by the court without a jury”); § 43-279; S.D. Codified Laws § 26-7A-30 (2016) (lists rights of juveniles but does not include right to jury trial); In re A.K., 825 N.W.2d 46, 51 (Iowa 2013) (“[n]either statutory nor constitutional provisions guarantee juveniles the right to a jury trial”); State v. Burns, 205 S.W.3d 412, 416 (Tenn. 2006) (“legislature has determined that, while they are still within the juvenile court system, our juveniles are to be tried by judges, not juries”); Richard M. v. Superior Court, 4 Cal. 3d 370, 482 P.2d 664, 93 Cal. Rptr. 752 (1971) (jury trial is inapplicable in juvenile proceedings). 26 DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968). 27 Neb. Rev. Stat. § 43-206.03 (Reissue 1968). - 880 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 was placed at a boys’ training school. He filed a petition for writ of habeas corpus, alleging § 43-206.03 was unconstitutional because it denied him the right to a jury trial. The district court rejected the constitutional claim and denied habeas relief. On appeal, four members of this court opined that the new statute was unconstitutional because it denied juveniles the right to a jury trial for acts that would be felonies if charged as an adult. In large part, the majority read the U.S. Supreme Court’s In re Gault decision to require such a result. Three judges, however, found In re Gault “does not hold or even infer that a jury trial is essential to due process in a delinquency case, even where the supporting evidence points to criminal conduct on the part of the juvenile.”28 Due to the absence of a supermajority under Neb. Const. art. V, § 2, this court affirmed the dismissal of the habeas petition.29 [10] The following year, a majority of this court again held that “a juvenile court proceeding, under the controlling statute in the State of Nebraska, is a civil proceeding and under the doctrine of parens patriae, the constitutional guarantees of a jury trial and the incidents thereto are not applicable to a juvenile proceeding under our statute.”30 Currently, § 43-279(1) provides in part: “The adjudication portion of hearings shall be conducted before the court without a jury, applying the customary rules of evidence in use in trials without a jury.” Zoie does not directly challenge the constitutionality of § 43-279(1), but instead argues that the enactment of § 28-1204.05 “elevates felonies alleged in juvenile court to ‘serious criminal case’ status [so] the constitutional requirement of a jury trial right supersedes the language in § 43-279(1).”31 28 DeBacker, supra note 26, 183 Neb. at 477, 161 N.W.2d at 516. 29 See, also, Laurie v. State, 108 Neb. 239, 188 N.W. 110 (1922) (juvenile petition does not charge crime and does not entitle juvenile to jury trial). 30 McMullen v. Geiger, 184 Neb. 581, 584, 169 N.W.2d 431, 433 (1969). See, also, Laurie, supra note 29. 31 Brief for appellant at 45. - 881 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 Recognizing that juvenile adjudications are civil in nature, and having rejected the premise that § 28-1204.05 imposes a penalty for juvenile adjudication, we agree with the juvenile court that § 43-279(1) requires a juvenile adjudication hearing to be conducted without a jury. Zoie’s second assignment of error lacks merit. 3. Burden of Proof Regarding Value of Property In her final assignment of error, Zoie argues that the evidence presented at the adjudication hearing was insufficient to prove the value of the Lexus. The amended supplemental petition alleged Zoie committed acts which would constitute the Class IIIA felony of attempted theft by unlawful taking, $5,000 or more. Under § 28-518(8), value is an essential element of the offense of theft which must be proved beyond a reasonable doubt. The juvenile court found the State had met its burden of proof and adjudicated Zoie under § 43-247(2) as a juvenile who committed an act which would constitute a felony under the laws of this State. On appeal, Zoie challenges only the sufficiency of the evidence regarding the value of the Lexus, and we limit our analysis accordingly. After a de novo review of the record, we find the State met its burden of proving that the Lexus had a value of $5,000 or more. [11] It has long been the rule in Nebraska that the owner of chattel may testify as to its value in a criminal case.32 At the adjudication hearing, Cuca testified that her Lexus had a value “around $21,000.” The investigating officer testified, based on his experience investigating car thefts and his research into the value of Cuca’s Lexus, that it had a value of $15,529 if it was in good condition. Moreover, he testified it would have a value in excess of $10,000 even in poor condition. Zoie did not object to this testimony and presented no evidence to the contrary. 32 See State v. Holland, 213 Neb. 170, 328 N.W.2d 205 (1982). - 882 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 On this record, we find the State presented sufficient evidence to prove beyond a reasonable doubt that the value of the Lexus was $5,000 or more. We therefore conclude that the evidence was sufficient to adjudicate Zoie under § 43-247(2) and that her third assignment of error has no merit.",analysis
+150,2521350,1,5,"Whether federal and state disability trust statutes preclude the payment of accrued income tax from the trust corpus prior to reimbursing the state for medical assistance is a matter of first impression for this court, and we have found no other jurisdiction that has addressed the question. We hold that upon termination, a trustee may pay federal and state taxes due from the corpus of the trust before reimbursing the state for medical assistance it rendered to the beneficiary. This is not a question of conflict preemption; rather, it is a matter of statutory construction. [7] We conclude it is both reasonable and necessary to construe Colorado's disability trust statute to accord with federal and state tax law. In reaching this conclusion, we consider the relevant federal and state laws, as well as applicable administrative guidelines. In Colorado, the Department administers the Medicaid program, and has the duty to comply with its federal requirements. See §§ 26-4-104 to -105, 8 C.R.S. (2003). Under federal law, in order to be eligible for a disability trust, an applicant must comply with three criteria: the trust must 1) contain the assets of an individual under age 65 who is disabled; [8] 2) be established by a parent, grandparent, guardian, or court; and 3) include a provision that the state will be repaid all amounts remaining in the trust up to an amount equal to the total medical assistance paid by the state upon the death of the beneficiary. 42 U.S.C. § 1396p(d). Colorado's disability trust statute, section 15-14-412.8, mirrors the federal law. A disability trust is not valid unless it is created for the purpose of medical assistance and meets the following criteria: the trust must 1) contain the assets of a disabled individual and be established by the individual's parent, grandparent, guardian, or the court; 2) provide that upon the death of the beneficiary or termination of the trust, the Department receives any amount remaining in the trust up to the total medical assistance paid on behalf of the individual; and 3) provide that no person is entitled to payment from the remainder of the trust until the state medical assistance agency has been fully reimbursed for the assistance rendered to the person for whom the trust was created. § 15-14-412.8(2). Both the federal enabling act and Colorado's disability trust statute require that, upon termination, the remainder of trust funds be paid to the state as reimbursement up to the total medical assistance paid on behalf of the beneficiary. The crux of the issue in this case is the meaning of the term remaining or remainder. There are two basic interpretive approaches. The term could be interpreted to mean the gross remainder, precluding all deductions, including the payment of state and federal taxes, prior to the state's reimbursement for medical assistance. Alternatively, the term could be read to denote the net remainder, meaning the funds left in the trust after federal and state taxes are deducted. In this case, the court of appeals adopted the former view, holding that upon termination of a disability trust, section 15-14-412.8 prohibits the deduction of any funds prior to full repayment to the state. Stell argues the court of appeals' interpretation is preempted by federal tax law, and interferes with the purposes and objectives of Congress to collect taxes and provide medical assistance to needy individuals. The Department contends Colorado's disability trust statute comports with federal law, and that preemption analysis does not apply in this case because any conflict that may exist is between the Internal Revenue Code and the federal Medicaid disability trust statute, not between federal and state law. The language of the federal and state statutes regarding the reimbursement of the state upon termination of a disability trust is nearly identical. Federal section 1396p(d)(4)(A) instructs the State will receive all amounts remaining in the trust upon the death of [the beneficiary] up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan.... 42 U.S.C. § 1396p(d)(4)(A). Colorado's section 15-14-412.8 similarly states that, upon the trust's termination, the Department receives any amount remaining in the trust up to the total medical assistance paid on behalf of the individual, and that no person is entitled to payment from the remainder of the trust until the state medical assistance agency has been fully reimbursed for the assistance rendered to the person for whom the trust was created. § 15-14-412.8. Neither statute specifies whether the remainder is gross or net. A trustee has prior obligations under both federal and state tax law to pay taxes due on trust income. Those taxes must be paid, regardless of whether the state is fully reimbursed for the medical assistance it rendered. If there are not enough funds to both pay taxes and reimburse the state, it is neither reasonable nor equitable to impose personal liability on the trustee of a disability trust for the difference. Therefore, we construe the term remainder in section 15-14-412.8 to mean the net remainder, after all taxes due are paid. Our holding, that the payment of taxes must take precedence over reimbursement of the state for medical assistance rendered, harmonizes tax and trust law. Our holding is supported by guidelines published by the SSA in its operating manual POMS regarding the priority of payments upon termination of a disability trust. POMS guidelines are the internal operating instructions used by SSA field employees when processing claims for Social Security benefits. POMS guidelines do not have the force and effect of law; they do not bind the Commissioner of Social Security. Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir.2000). However, POMS guidelines may be viewed as binding on an ALJ in a case that falls squarely within one of its provisions. See Sabo v. Chater, 955 F.Supp. 1456, 1463 (M.D.Fla.1996). POMS guidelines expressly permit the deduction of taxes and administrative expenses prior to reimbursing the state for medical assistance made to the individual. POMS § SI 1120.203.B.3.a. The payment of funeral expenses, on the other hand, is subordinate to state reimbursements. POMS § SI 1120.203.B.3.b. We note that the State Medicaid Manual, published by CMS, the federal agency administering the Medicaid program, does not conflict with the POMS guidelines. The CMS guidelines use the same non-specific language found in section 1396p(d) and section 15-14-412.8, requiring the trust to contain a provision stating, that upon the death of the individual, the State receives all amounts remaining in the trust, up to an amount equal to the total amount of medical assistance paid on behalf of the individual.... State Medicaid Manual § 3259.7 (2002). Therefore, the CMS manual provides no additional guidance in resolving the priority of payments upon termination of a disability trust. The Uniform Probate Code (UPC), which Colorado has adopted in relevant part, provides additional support for the SSA's reading of the federal enabling act. Colorado follows the UPC in its outline of the procedures a trustee must follow in making final distributions from a regular trust. § 15-1-406(1)(b)(II)-(III), 5 C.R.S. (2003). After a beneficiary dies, or after an income interest in a trust ends, the remainder beneficiary receives net income from the trust. Id. Net income is that which arises after taxes and administrative expenses are paid. Id. Our construction of section 15-14-412.8 brings the state disability trust statute into accord with its federal counterpart. It is also supported by sound public policy. With the Social Security Act, Congress intended to provide medical assistance to needy individuals. Enactment of the Internal Revenue Code served to ensure the comprehensive collection of taxes. The court of appeals' interpretation of section 15-14-412.8 erodes both of these purposes; it deters trustees from administering a disability trust by creating an inevitable potential for personal liability, and improperly shifts tax liabilities. We note that under either party's interpretation of the law, the trust remainder ultimately will end up in the hands of the federal and state government. The difference is only whether the money takes the form of taxes paid or of a reimbursement for medical assistance. In this dispute, the equities do not favor the Department's position. There is no public policy served by leaving the trustee exposed to personal liability for any unpaid taxes upon termination of a disability trust. If a trustee is able to pay taxes due on a disability trust upon the trust's termination and before reimbursing the state for medical assistance rendered, then the trustee can both satisfy the trust's tax obligations and also complete her service as trustee without risking personal liability for unpaid taxes. Interpreting section 15-14-412.8 to refer to the net remainder of funds aligns tax and trust law in a reasonable and equitable manner, and protects the goals Congress intended to promote through its disability trust scheme.",analysis
+151,2549273,1,2,"[¶ 4] Many of the facts underlying this case are the subject of dispute between the parties, especially those relating to the establishment and historical use of the Trail. Our view of the evidence on appeal is determined by the procedural status of the case: Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which has been asserted by the parties. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. We do not accord any deference to the district court's decisions on issues of law. Matlack v. Mountain West Farm Bureau Mutual Insurance Company, 2002 WY 60, ¶ 6, 44 P.3d 73, ¶ 6 (Wyo.2002) (quoting Baker v. Pena, 2001 WY 122, ¶ 6, 36 P.3d 602, ¶ 6 (Wyo.2001) (citations omitted)). [¶ 5] The Forbeses' ranch contains lands in Sections 22, 29, 30, and 31 of Township 55 North, Range 86 West, 6th P.M., Sheridan County, Wyoming. The parcels of land were added to the Forbeses' ranch over time through patenting by their ancestors or through purchase from other parties between 1903 and 1939. The Soldier Creek Trail or Toll Road provides access to the Big Horn National Forest and adjacent state trust lands. It begins at the western terminus of the Beckton Big Horn Mountain Road (County Road No. 52 also commonly referred to as the P K Lane). The Trail begins on property owned by the Forbeses at the western terminus of the P K Lane and winds across state land and crosses back onto the Forbeses' property before it enters the Big Horn National Forest. [�� 6] While there is a serious dispute between the parties as to whether or not the Trail existed prior to the Forbeses' homestead of the land, there is some evidence suggesting that The Sheridan, Bald Mountain and Big Horn Basin Toll Road Company may have constructed the Trail in 1891 or 1892 to provide miners access to the Big Horn Mountains. According to the Defendants' affidavits, the public has used the Trail since its inception. The use of the Trail has ranged from running of cattle to state grazing lands at Walker Prairie since the early 1900's to outfitters and guides taking hunters into the Big Horn National Forest. The individual Defendants also set forth their own use of the Trail. John Yeager has used it to take clients to hunting camps in the Big Horn National Forest as a licensed outfitter since the late 1970's. George Rogers has used the Trail personally and as a licensed outfitter and guide since 1981. Larry Durante and John Reilly have used the Trail for personal enjoyment since 1990 and 1981 respectively. [¶ 7] Historically, the Forbeses have maintained signs along the Trail. While there is a dispute between the parties as to when the signs were originally put up, the Defendants acknowledged in their depositions that they have been in place since at least the early 1980's. The signs informed users that they had permission to use the Trail to access the Big Horn National Forest and if they desired to use the Trail for any other purpose, they had to obtain prior permission from the Forbeses. There were also signs prohibiting hunting on the Forbeses' property. [¶ 8] In 2001, the Forbeses apparently became exasperated with gates being left open along the Trail, interfering with their ranching operations. Accordingly, the Forbeses rerouted the Trail at its eastern terminus at the end of the P K Lane. A new sign was erected informing the public that they could use the new route at their discretion, but that if they desired to use the old route, they had to call in advance for permission. The Defendants disputed the right to alter the Trail because they believed that it was a public road. At least two of the Defendants were cited for trespassing for using the old route without obtaining the prior permission from the Forbeses. [¶ 9] On November 6, 2001, The Board of County Commissioners of Sheridan County held a public meeting. One of the items on the agenda was the dispute over the public or private nature of the Trail. The Board's minutes describe the consideration given to the issue: The Board now addressed a request from Cam and Spike Forbes regarding clarification on the Soldier Creek Toll Road. Chairman Brad Waters addressed the public, and read the following statement, which was prepared by the County Attorney, Matt Redle. 1) Interested parties have indicated their belief that the trail crossing the Forbes' property is a public road. Some have suggested that the trail lies along the route of the Soldier Creek Toll Road established by the Soldier Creek Toll Road Company in 1889 pursuant to Wyo.Rev.Stat. § 525 (1887). 2) A review of pertinent records of Sheridan County fails to show that Sheridan County ever established the trail in question as a county road pursuant to applicable Wyoming statute. 3) In 1907 Sheridan County did establish the Beckton-Big Horn Mountain Road (now known at PK Lane) as a county road. It has been suggested by interested parties that the Beckton-Big Horn Mountain Road overlies the lower portion of the Soldier Creek Toll Road. 4) A review of pertinent records of Sheridan County fails to disclose that the County ever claimed the portion of the trail under dispute. Neither do those records disclose that the County has ever expended any funds for construction, maintenance or other improvement to the trail in dispute. 5) This does not necessarily resolve the issue of whether the trail in question is a public thoroughfare. Neither is it within the jurisdiction of this Board to determine the rights, if any, of the Forbes' or interested members of the public to the use of the trail. Jurisdiction to determine the property rights of the interested parties lies with the courts. Attorney Charles E. Graves, representing the Citizens for Public Access handed out a letter and addressed the Board at this time, Mr. Graves stated that he agreed with the statement prepared by the County Attorney and requested the Commissioners urge both sides to try to settle this issue, rather than have the courts decide the issue. The Commissioners' exhortations were apparently insufficient. On November 20, 2001, the Forbeses filed a complaint in the district court requesting a declaration that the Defendants did not have any right to enter upon or travel across the Forbeses' land and asking for a permanent injunction prohibiting them from doing so. The Defendants responded by counterclaiming that: (1) The Trail was an established public road under Federal Revised Statute 2477 (1866), later codified at 42 U.S.C. § 932 (repealed 1976); (2) public use had established a public prescriptive easement; and (3) the Defendants' use had established a private prescriptive easement. [¶ 10] On January 16, 2002, the Wyoming Wildlife Federation, Raymond Hutson, Dan Biebel, Fred Kusel, and Dan Reinke filed a Motion to Intervene as a matter of right pursuant to W.R.C.P. 24(a)(2). The district court denied the motion. The court noted that the Forbeses' request for injunctive relief was specifically limited in scope to the named Defendants and that the proposed interveners had acknowledged in their motion that, Even if the Court were to render a judgment in favor of one or the other side in the case, it would not have the effect of addressing any other person's or entity's use of the [Trail]. Accordingly, the district court denied the Motion to Intervene because the proposed interveners had not alleged that any of their individual rights were being harmed or that they would be precluded from pursuing legal action to enforce those rights, if any. [¶ 11] Subsequently, both parties filed motions for summary judgment, including supporting affidavits and exhibits. Without holding a hearing, the district court granted the Forbeses' motion. The district court concluded that it did not have the authority to declare the existence of a public road by mere public use. The court also found that the Defendants had failed to show any notice to the Forbeses to support their prescriptive easement claims. The Defendants have appealed the grant of the Forbeses' motion for summary judgment and the denial of the proposed interveners' motion to intervene as a matter of right.",facts
+152,1439775,2,4,"Finally, Mindombe also asserts on appeal that there was insufficient evidence to support his convictions. In reviewing sufficiency claims, we view the evidence in the light most favorable to the government, see Kelly v. United States, 639 A.2d 86, 89-90, and reversal is required only where there is no evidence to support an inference of guilt beyond a reasonable doubt. See Patton v. United States, 633 A.2d 800, 820 (D.C.1993). In this case, J.M.'s testimony is sufficient to support Mindombe's convictions, and her testimony did not require independent corroboration. See Barrera v. United States, 599 A.2d 1119, 1124-25 (D.C.1991). Accordingly, the judgment of the trial court is Affirmed.",sufficiency of the evidence
+153,2631209,1,2,The Baxters raise the following issues on appeal: 1. Did the District Court properly exercise its discretion in denying the Baxters' motion to amend their complaint to add the Bureau of Land Management as a party? 2. Did the District Court properly grant summary judgment dismissing the Baxters' adverse possession claim? 3. Did the District Court properly grant summary judgment dismissing the Baxters' claim of boundary by agreement? 4. Was the District Court's denial of the Baxters' prescriptive easement claim at trial based on substantial and competent evidence? 5. Did the District Court properly award attorney fees and costs to the Craneys?,issues
+154,883571,1,2,"Did the District Court err when it admitted evidence that Eichenlaub assaulted and injured Sue Maxie several days prior to the date of the crimes charged? The defendants contend that the District Court erred when it allowed evidence of Eichenlaub's prior bad acts, because the State failed to give the defendants prior notice of its intent to offer the evidence. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52; State v. Croteau (1991), 248 Mont. 403, 407, 812 P.2d 1251, 1253; State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The four photographs at issue show that Sue was missing clumps of hair and had scratches on her face as a result of a physical altercation with Eichenlaub four days prior to the date of the acts for which the defendants were charged. Defendants objected to the photographs, stating they were irrelevant because it has already happened way before this incident even took place. Although they did not specifically mention Rule 404(b), M.R.Evid., we will construe their objection as based on that rule. The State responds that the photographs were admissible as part of the res gestae or corpus delicti, but that if the court erred when it admitted the photographs, the error was not prejudicial. We agree that any error was not prejudicial. Section 46-20-701, MCA, states, in relevant part, that [n]o cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial. When prejudice is alleged in a criminal case the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied. State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. In Wells, we also stated that the test is whether there is a reasonable possibility that the inadmissible evidence might have contributed to a conviction. Wells, 658 P.2d at 388 (citing State v. LaVe (1977), 174 Mont. 401, 407, 571 P.2d 97, 101); State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109. In Bower, we added that when assessing the potentially prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. If the issue involves inadmissible evidence, we will not evaluate the evidence in isolation because that would risk magnifying the error beyond the impact it had on the verdict. Bower, 833 P.2d at 1109. With these principles in mind, and after a thorough review of the transcript, we conclude that admitting the photographs did not constitute prejudicial error. The photographs show injuries Sue received from fights she had with Eichenlaub on June 5, 6, or 7. She testified that the photographs were taken by the police on June 12 behind the police station in Deer Lodge after Sue and Sheila reported the events that occurred on June 9. At trial, during Sue's testimony, the State moved to admit the photographs. The defendants, who had declined the public defender's representation to represent themselves, objected. Before the photographs were admitted, and in the presence of the jury, Carter was allowed to voir dire Sue regarding the photographs. Carter asked Sue, [a]nd isn't it true that you said that on June 5th `Tony pulled hair out of the sides of my [Sue's] head.' Later he asked, [o]n another time, you said that `On June 7th Tony pulled hair out of the top of my [Sue's] head.' Is that true? He added, [a]nd scratched my [Sue's] face? Sue responded that what Carter stated in voir dire was true. After dismissing the jury and hearing arguments, the court admitted the photographs. Before the photographs were admitted, Carter's voir dire explained what the photographs illustrated. Additionally, and without objection, Sue had previously responded to one of the State's questions about the events of June 9 by stating that, by then Sheila was mad, she had seen what Tony had already done to me, the scratches on my face, the hair pulled out... . Therefore, before the photos were admitted, and without objection by the defendants, the jury was aware of the prior attacks, the dates on which they occurred, and the nature of the injuries sustained. The photographs did not inform the jury of anything they did not already know. Without reaching the merits of the State's res gestae argument, we conclude that even if the admission of evidence of Eichenlaub's earlier attacks was in violation of Rule 404(b), under the totality of the circumstances, it was not prejudicial error.",issues
+155,1280343,1,1,"A jury convicted Michael Ray White (defendant) of first degree murder and conspiracy to commit first degree murder. The court sentenced defendant to death for the murder conviction and to life imprisonment without possibility of parole for twenty-five years for conspiracy to commit first degree murder. The court further ordered that if the death sentence were reduced to life imprisonment, the life sentence for conspiracy would be served consecutively to the reduced life sentence imposed on the murder count. Appeal is made to this court under rule 31.2(b), Ariz.R.Crim.P., 17 A.R.S. We have jurisdiction pursuant to Ariz.Const. art. 6, ง 5(3), and A.R.S. งง 13-4031, -4033, and -4035.",jurisdiction
+156,2098691,1,1,"Medeiros raises two arguments on appeal. First, he argues that the trial justice abused her discretion when she admitted into evidence the witness statement of a prior molestation victim of defendant under Rule 404(b). [7] Second, defendant contends that the trial justice abused her discretion when she found him guilty of the charges and when she denied his motion for a new trial because the evidence called for a verdict of not guilty and also because she overlooked and misconceived the material evidence and was otherwise clearly wrong.",issues
+157,2244652,1,3,"For the reasons we have discussed, we reverse the judgment of the appellate court and reinstate the defendant's conviction. Appellate court judgment reversed; circuit court judgment affirmed.",conclusion
+158,1058296,1,3,"Proof of the existence of the no trespassing signs on the property alone is insufficient to satisfy the elements of trespass set forth in Code § 18.2-119. Without evidence that a no trespassing sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of Baker's guilt. For the reasons set forth above, we therefore reverse the judgment of the Court of Appeals, vacate Baker's conviction under Code § 18.2-119, and dismiss the indictment. Reversed, vacated, and dismissed.",conclusion
+159,2785662,1,4,"¶13 Congress' power to pre-empt state law is derived from the Supremacy Clause of Art. VI of the Federal Constitution. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985) (citing Gibbons v. Ogden, 9 Wheat. 1 (1824)). Courts presume that state law is not preempted unless preemption was the 'clear and manifest purpose of Congress.' Miller Brewing Co. v. Dep't of Indus., Labor & Human Relations, Equal Rights Div., 210 Wis. 2d 26, 35, 563 N.W.2d 460 (1997) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) (quotation marks omitted). Federal law preempts state law under any of the following circumstances: (1) a federal law explicitly provides that it preempts state law; (2) the scheme of federal regulation [is] 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it'; (3) federal law and state law conflict such that compliance with both statutes 9 No. 2013AP2207 is a 'physical impossibility'; or (4) state law 'stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996) (citations and quoted sources omitted). The Housing Authority relies on only the fourth form of preemption, arguing that in this case the right-to-remedy provision in Wis. Stat. § 704.17(2)(b) stands as an obstacle to the accomplishment and execution of Congress' goal and chosen method of providing drug-free public housing. ¶14 A state law stands as an obstacle to the accomplishment and execution of Congress' objectives if it conflicts with Congress' goal or chosen method for achieving that goal. See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987) (citing Mich. Canners & Freezers Ass'n v. Agric. Mktg. & Bargaining Bd., 467 U.S. 461, 477 (1984)). A state law is preempted only 'to the extent that it actually conflicts with federal law.' Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996) (citations omitted). To determine whether a state statute conflicts with a federal law, we first interpret the laws and then determine whether they conflict. Megal Dev. Corp., 286 Wis. 2d 105, ¶38 (citing Perez v. Campbell, 402 U.S. 637, 644 (1971)).
+¶15 We first turn to the purposes and objectives of the federal law at issue. With drug dealers 'increasingly imposing a reign of terror on public and other federally assisted lowincome housing tenants,' Congress passed the Anti–Drug Abuse Act 10 No. 2013AP2207 of 1988. Rucker, 535 U.S. at 127 (quoting § 5122, 102 Stat. 4301, 42 U.S.C. § 11901(3) (1994 ed.)). This Act states that: Each public housing agency shall utilize leases which . . . (6) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy. 42 U.S.C. § 1437d(l)(6). Section 1437d(l)(6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests . . . . Rucker, 535 U.S. at 130. Thus, any drug-related activity engaged in by the specified persons is grounds for termination. Id. at 131. However, this statute does not require the eviction of any tenant . . . . Instead, it entrusts that decision to the local public housing authorities . . . . Id. at 133-34. ¶16 Congress enacted the Anti–Drug Abuse Act of 1988, with the objective of reducing drug-related crime in public housing and ensuring 'public and other federally assisted lowincome housing that is decent, safe, and free from illegal drugs.' Boston Hous. Auth. v. Garcia, 871 N.E.2d 1073, 1078 (Mass. 2007) (quoting Rucker, 535 U.S. at 134). See also Hous. Auth. of City of Norwalk v. Brown, 19 A.3d 252, 258-59 (Conn. App. 2011) (Congress declared that th[e] purposes and objectives [of the Anti-Drug Abuse Act] are 'to provide public and other federally assisted low-income housing that is decent, 11 No. 2013AP2207 safe, and free from illegal drugs.' (quoting Scarborough, 890 A.2d at 256)). ¶17 To achieve public housing that is decent, safe, and free from illegal drugs, Congress required public housing authorities to retain in their leases the power to evict tenants for any drug-related criminal activity. See Scarborough, 890 A.2d at 256-57; Boston Hous. Auth., 871 N.E.2d at 1078. By passing that requirement, Congress enacted a straightforward practical method of dealing with a serious public safety problem. City of S. San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr. 2d 367, 371 (Cal. App. Dep't Super. Ct. 1995). At issue is whether Wis. Stat. § 704.17(2)(b) is in conflict with the accomplishment and execution of the objectives of the federal law. ¶18 The Wisconsin statute at issue provides: If a tenant . . . breaches any covenant or condition of the tenant's lease, . . . the tenant's tenancy is terminated if the landlord gives the tenant a notice requiring the tenant to remedy the default or vacate the premises on or before a date at least 5 days after the giving of the notice, and if the tenant fails to comply with such notice. Wis. Stat. § 704.17(2)(b). In its two briefs to this court, the Housing Authority questions whether the right-to-remedy provision in § 704.17(2)(b) can apply to drug-related criminal activity, even if this provision is not preempted.9 We question 9 In response to questions posed by this court at oral argument, the Housing Authority argued that Wis. Stat. § 704.17(2)(b) does not apply to criminal activity, regardless of whether it is preempted. 12 No. 2013AP2207 whether the legislature intended for the right-to-remedy provision to apply to drug-related criminal activity or criminal activity in general. We also question whether past criminal activity is capable of being remedied. See Brown, 19 A.3d at 256-59 (holding that Connecticut's statute providing a right to remedy by repair a lease violation did not apply to drugrelated criminal activity). However, we need not resolve this issue today because we conclude that 42 U.S.C. § 1437d(l)(6) preempts the right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant is evicted for engaging in drug-related criminal activity within the meaning of 42 U.S.C. § 1437d(l).
+with Federal Law ¶19 Cobb argues that Wis. Stat. § 704.17(2)(b) is not preempted. He argues that federal housing law does not conflict with § 704.17(2)(b). He contends that a right to remedy drugrelated criminal activity is consistent with Congress' goal of providing drug-free public housing because a tenant must cease such activity in order to remedy it. He also contends that compliance with both federal law and § 704.17(2)(b) is possible and that the required termination notices under both laws are consistent. He identifies several statements of federal policy that, he contends, demonstrate that Congress did not intend preemption in the present case. Cobb further argues that his lease requires the Housing Authority to follow § 704.17(2)(b). 13 No. 2013AP2207 Specifically, Cobb concedes that illegal drug use may be a basis for termination, but he argues that the termination provisions under § 704.17(2)(b) must be followed and that those provisions give Cobb the right to cure his lease violation to avoid eviction. ¶20 Cobb relies on Housing Authority of Covington v. Turner, 295 S.W.3d 123 (Ky. Ct. App. 2009), a split decision from a Kentucky intermediate appellate court. In that case, a public housing tenant was evicted because her nephew, who stayed with her every other weekend, stored cocaine and drug paraphernalia in the room where he kept his belongings. Turner, 295 S.W.3d at 124. The tenant forwarded an innocent tenant defense and argued that the housing authority had not met its burden of proof. Specifically, the tenant testified that she was unaware that drugs were being kept in her apartment. Id. A provision in her lease mirrored the language of 42 U.S.C. § 1437d(l)(6) and stated that she could be evicted if any guest or member of her household engaged in drug-related criminal activity. Id. at 125. The tenant argued that she could not be evicted because she was not given an opportunity, required by a Kentucky statute, to remedy the lease violation. Id. at 124-25. The landlord argued that the statute was preempted, but the court unanimously concluded that the landlord had failed to adequately demonstrate that it had weighed the policy considerations behind the federal statute. Id. at 125, 128. ¶21 In a 2:1 decision, the Kentucky Court of Appeals concluded that the state statute was not preempted. Id. One 14 No. 2013AP2207 objective of the federal Anti-Drug Abuse Act of 1988 is to discourage[e] illegal drug use on public housing premises. Id. at 127. Two judges concluded that a right to remedy illegal drug activity is consistent with that objective because a tenant who has 'been given the opportunity to remedy may be among the most likely of tenants to prevent the situation from recurring, thereby furthering the purposes of and objectives of the [federal] law.' Id. A concurring judge refused to join the two-judge majority opinion concerning preemption. Id. at 128 (Moore, J., concurring). The judge ultimately concurred with the majority opinion's result, however, because the housing authority had failed to demonstrate that it weighed the policy considerations behind the federal statute. Id. at 129-30 (Moore, J., concurring). ¶22 Regarding preemption, the concurring judge concluded that there is no doubt that the state statute is preempted by the federal law. Id. at 128 (Moore, J., concurring). She reasoned that the right to remedy provided by the state statute is contrary to the Anti-Drug Abuse Act, which clearly allows tenants to be evicted for any drug-related criminal activity. Id. (Moore, J., concurring). The judge then listed several congressional findings to support the federal law's 'onestrike' policy, which was designed to eradicate illegal drug activity in public housing. Id. at 128-29 (Moore, J., concurring) (quoting 42 U.S.C. § 11901). The judge concluded that Congress' intent behind the Act was to look out for the best interests of all residents in housing developments 15 No. 2013AP2207 receiving federal funding. All tenants should be able to feel secure in their homes and live in decent and safe housing, without the fear of drug-related crimes often associated with public housing. Id. at 128 (Moore, J., concurring). Cobb urges this court to adopt the reasoning of the Kentucky intermediate appellate court's two-judge majority opinion and conclude that the right to remedy is not preempted by federal law. ¶23 On the other hand, the Housing Authority argues federal housing law preempts the right to remedy a lease violation under Wis. Stat. § 704.17(2)(b) in the present case. The Housing Authority contends that it has the power under federal law to evict Cobb for engaging in any drug-related criminal activity. According to the Housing Authority, a right to remedy illegal drug activity would severely frustrate Congress' requirement that the Housing Authority retain the power to evict a tenant for engaging in such activity. The Housing Authority also argues that the goal of the Anti-Drug Abuse Act is to provide drug-free public housing. A right to remedy drug-related criminal activity, the Housing Authority argues, would frustrate Congress' goal of providing drug-free public housing. The Housing Authority relies heavily on Scarborough and Boston Housing Authority, in which the high courts of the District of Columbia and Massachusetts, respectively, held that federal housing law preempted statutes that provided defenses against eviction. 16 No. 2013AP2207 ¶24 In Scarborough, a tenant was evicted for engaging in 'criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises . . . .'10 Scarborough, 890 A.2d at 251, 252 n.1. The tenant's criminal activity was possession of two unregistered firearms and unregistered ammunition in her apartment.11 Id. at 251-52 & n.2, 257. The tenant argued that she could not be evicted because she was not given a 30-day opportunity, provided by a District of Columbia code, to cure the lease violation. Id. ¶25 The District of Columbia Court of Appeals unanimously held that the right to cure was preempted because application of the District's cure opportunity for criminal violations that threaten the safety or peace of other tenants would 'stand as an obstacle to the accomplishment and execution of the full 10 Although the tenant in Scarborough was not evicted for drug activity, both she and Cobb received eviction notices for violating a lease term that mirrored 42 U.S.C. § 1437d(l)(6). Scarborough v. Winn Residential L.L.P./Atl. Terrace Apartments, 890 A.2d 249, 255-56 (D.C. 2006). Section 1437d(l)(6) requires a public housing lease to provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, . . . shall be cause for termination of tenancy. 42 U.S.C. § 1437d(l)(6). Thus, that section associates drug-related criminal activity with criminal activity that breaches the peace. 11 The tenant's boyfriend had used a firearm to fatally shoot someone in her apartment. Scarborough, 890 A.2d at 252. However, the tenant was evicted for possessing unregistered firearms and ammunition, not for the shooting. Id. at 251-52 & n.2. 17 No. 2013AP2207 purposes and objectives of Congress.' Id. at 255. Congress intended to provide 'federally assisted low-income housing that is decent, safe, and free from illegal drugs.' Id. at 256 (quoting 42 U.S.C. § 11901(1)). To that end, Congress required public housing authorities to use leases that provide that [a]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents is grounds for eviction. Id. An opportunity to cure the criminal activity would substitute for the landlord's discretion a mandatory second-strike opportunity for a tenant to stay eviction by discontinuing, or not repeating, the criminal act . . . . Id. at 257. Therefore, a second-strike opportunity would frustrate the purpose of an anticrime provision that permits eviction for 'any' criminal activity [that threatens the safety or peace of other tenants]. Id. ¶26 In Boston Housing Authority, a public housing authority sought to evict a tenant because two of her adult sons who lived with her were arrested for possessing marijuana. Boston Hous. Auth., 871 N.E.2d at 1075-76. Mirroring 42 U.S.C. § 1437d(l)(6), the tenant's lease stated that she could be evicted if any member of her household engaged in drug-related criminal activity. Id. at 1075. The tenant tried to defend against the eviction action by relying on a Massachusetts statute that provided an innocent tenant defense against eviction. Id. at 1075-76. She argued that she was an innocent 18 No. 2013AP2207 tenant because she was unaware of and could not control her sons' drug-related criminal activity. Id. at 1076. ¶27 The Massachusetts Supreme Judicial Court unanimously held that federal housing law preempted the state statute's innocent tenant defense. Id. at 1078. Congress enacted the Anti-Drug Abuse Act of 1988 to ensure that public housing would be 'decent, safe, and free from illegal drugs.' Id. at 1078 (quoting Rucker, 535 U.S. at 134). To that end, Congress required that housing authorities use clauses in their leases that permit the termination of a tenant's lease for crimes committed by household members, even where a tenant had no knowledge of and was not at fault for a household member's criminal activity. Id. Allowing the innocent tenant statutory defense to override a housing authority's discretion to evict would run afoul of and substantially interfere with the congressional objective. It is therefore preempted. Id. ¶28 We hold that Wis. Stat. § 704.17(2)(b) is preempted in the present case because it 'stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' See Barnett Bank, 517 U.S. at 31 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). We agree with the 19 No. 2013AP2207 reasoning of Scarborough and Boston Housing Authority.12 A right to cure a lease violation that constitutes drug-related criminal activity conflicts with the federal Anti-Drug Abuse Act in two related respects. First, a right to cure past illegal drug activity is counter to Congress' goal of providing drug-free public housing. Second, a right to cure past illegal drug activity is in conflict with Congress' method of achieving that goal by allowing eviction of tenants who engage in drug-related criminal activity. ¶29 Permitting Cobb to avoid eviction by promising to cease his illegal drug use would run afoul of and substantially interfere with the congressional objective of providing drugfree public housing. See Boston Hous. Auth., 871 N.E.2d at 1078. Tenants will have an incentive not to use illegal drugs in the first instance if they can be evicted for, and given no right to cure, drug-related criminal activity. The potential to be evicted for any drug-related criminal activity, including a 12 We disagree with Cobb that Boston Housing Authority is distinguishable because it did not involve a right-to-remedy statute. Courts have held that the Anti-Drug Abuse Act preempts a variety of state laws that allow tenants to avoid eviction for drug-related criminal activity. E.g., Ross v. Broadway Towers, Inc., 228 S.W.3d 113, 123-24 (Tenn. Ct. App. 2006) (holding that state estoppel defense against eviction is preempted); City of S. San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr. 2d 367, 371-72 (Cal. App. Dep't Super. Ct. 1995) (holding that state statute that created a reasonable cause standard for eviction is preempted); Hous. Auth. & Urban Redevelopment Agency of City of Atl. City v. Spratley, 743 A.2d 309, 313-14 (N.J. Super. Ct. App. Div. 1999) (holding that state statute that prohibits eviction of blameless tenants is preempted). 20 No. 2013AP2207 first offense, provides a powerful incentive to avoid such activity. See Rucker, 535 U.S. at 134 (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 14 (1991)) (Strict liability maximizes deterrence . . . .). By contrast, if a landlord were required to give a free pass on a tenant's first drug offense, tenants would have little incentive not to use illegal drugs because if they are caught, they can just promise not to do it again. For the other tenants of the building, this after-thefact promise is far from a remedy for completed criminal activity and 'stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' See Barnett Bank, 517 U.S. at 31 (quoting Hines, 312 U.S. at 67). The objective of Congress is to provide safe, drug-free public housing, not to provide housing that allows criminal drug activity so long as the offender promises not to do it again. ¶30 Cobb's argument to the contrary is unpersuasive. Cobb argues that an opportunity to remedy a first-offense drug violation is consistent with Congress' goal of drug-free public housing, because a tenant remedies a drug offense by ceasing to engage in drug-related activity. Simply stated, Cobb suggests that a tenant helps to achieve drug-free housing by ceasing drug-related activity. The Kentucky Court of Appeals' two-judge majority opinion in Turner used similar reasoning in holding that its right-to-remedy statute was not preempted. Turner, 295 S.W.3d at 127. This line of reasoning is flawed because it ignores the fact that a tenant who ceases drug-related activity has already been caught engaging in such illegal activity. 21 No. 2013AP2207 Congress did not merely intend to prevent repeat drug offenses in public housing. Congress intended to eliminate all drugrelated criminal activity in public housing, which includes first-time or repeat drug offenses. See 42 U.S.C. § 11901(1) (expressing intent to provide public housing that is free from illegal drugs) (emphasis added). An opportunity to avoid eviction for a first-offense drug violation conflicts with that congressional intent.13 ¶31 In addition to conflicting with Congress' goal of providing drug-free public housing, a right to remedy drugrelated criminal activity conflicts with Congress' chosen method of achieving that goal: allowing public housing authorities to evict tenants for engaging in any drug-related criminal activity. This additional conflict militates in favor of preemption. See Int'l Paper Co., 479 U.S. at 494 (citation omitted) (A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach [Congress'] goal.). ¶32 The Anti-Drug Abuse Act unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests . . . . Rucker, 535 U.S. at 130. 13 In fact, the right to cure statute could, depending on the circumstances, allow a tenant to engage in drug-related criminal activity multiple times. Thus, the right to cure statute frustrates Congress' goal of providing drug-free public housing. 22 No. 2013AP2207 A right to remedy drug-related criminal activity would substitute for the landlord's discretion a mandatory secondstrike opportunity for a tenant to stay eviction by discontinuing, or not repeating, the criminal act . . . . Scarborough, 890 A.2d at 257. If the Housing Authority were required to provide a tenant with an opportunity to remedy a first-offense drug violation, the Housing Authority would thus have lost the ability to terminate a tenant who violated her lease by . . . engaging in drug related criminal activity, an ability Congress intends to preserve for housing authorities . . . . Boston Hous. Auth., 871 N.E.2d at 1078. The right to cure under state law removes the Housing Authority's discretion to evict afforded under federal law and instead requires that the Housing Authority allow a tenant a second chance. Simply stated, Wis. Stat. § 704.17(2)(b)'s right to cure undermines the federal law's intent to vest the power to evict in the Housing Authority. Section 704.17(2)(b)'s right to cure is thus preempted in the present case. See id. ¶33 Cobb argues that the right to cure has a minimal effect on a public housing authority's power to evict tenants who engage in drug-related criminal activity. For support, he contends that a tenant who receives a notice to remedy-or-vacate must either cease the lease-breaching behavior within five days or vacate the premises. He further contends that a tenant may be evicted for a second breach of the lease without being given an opportunity to cure the second breach. Cobb's argument appears to mean that the right to cure is not preempted because 23 No. 2013AP2207 it does not substantially interfere with Congress' objectives. See Barnett Bank, 517 U.S. at 33-34 (explaining that a state statute is not preempted if it does not prevent or significantly interfere with the exercise of federal power). We disagree. A right to remedy drug-related criminal activity would significantly interfere with Congress' objectives because it would allow a tenant to avoid an eviction and run counter to the objective of providing drug-free public housing. See Scarborough, 890 A.2d at 257-58 (holding that a tenant's right to avoid eviction by curing criminal activity would stand as a pronounced obstacle to and undermine congressional intent); Boston Hous. Auth., 871 N.E.2d at 1078 (holding that an innocent tenant defense against eviction for drug-related activity would run afoul of and substantially interfere with congressional intent). ¶34 To highlight the significance of allowing users of illegal drugs to avoid eviction, we note the findings that Congress made when adopting the Anti-Drug Abuse Act. [P]ublic and other federally assisted low-income housing in many areas suffers from rampant drug-related or violent crime. 42 U.S.C. § 11901(2). [D]rug dealers are increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants. Id. at § 11901(3). [T]he increase in drugrelated and violent crime not only leads to murders, muggings, and other forms of violence against tenants, but also to a deterioration of the physical environment that requires substantial government expenditures. Id. at § 11901(4). 24 No. 2013AP2207 Congress' efforts to eliminate those serious problems would be significantly obstructed if a tenant who engages in drug-related criminal activity could avoid eviction by exercising a right to cure past illegal drug activity. ¶35 Cobb argues that Wis. Stat. § 704.17(2)(b) does not conflict with federal law because the Housing Authority could have complied with both laws. Cobb's reasoning is that federal housing law allows, but does not require, the Housing Authority to evict him. See Rucker, 535 U.S. at 133-34. Thus, Cobb argues, the Housing Authority would not violate federal law by giving him an opportunity to remedy his lease violation. This argument is unpersuasive because it conflates two separate grounds for preemption. See supra ¶13. A state law is preempted if it stands as an obstacle to the accomplishment and execution of Congress' objectives, even if compliance with both state and federal law is possible. Barnett Bank, 517 U.S. at 31; Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 154-56 (1982). Moreover, while federal law does not require eviction, Cobb recognizes that it certainly provides for eviction. 42 U.S.C. § 1437d(l)(6). As Cobb also recognizes, federal law endows the Housing Authority with the discretion to promptly evict a tenant who engages in drug-related criminal activity. Id. at § 1437d(l)(4)(A)(ii). As we discussed earlier, the right to cure is preempted partly because it thwarts that discretion by obliging a public housing authority to provide an opportunity to cure past drug-related criminal 25 No. 2013AP2207 activity regardless of how heinous the offense was. See supra ¶¶31-32. ¶36 Cobb further contends that the termination notice requirements under Wis. Stat. § 704.17(2)(b) and federal law are not in conflict. Cobb argues that § 704.17(2)(b) requires a termination notice of five days, which is well within the applicable federal requirement of any reasonable length of time not to exceed 30 days.14 See 42 U.S.C. § 1437d(l)(4)(A)(ii). However, even if those time limits do not necessarily conflict, § 704.17(2)(b)'s right to remedy conflicts with federal law in the present case for the reasons already stated. ¶37 For the foregoing reasons, we conclude that 42 U.S.C. § 1437d(l)(6) preempts the right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant is evicted for engaging in drug-related criminal activity within the meaning of 42 U.S.C. § 1437d(l).
+14 Cobb's argument relies on Meier v. Smith, 254 Wis. 70, 35 N.W.2d 452 (1948), in which this court held that a Wisconsin statute requiring six months' notice prior to eviction did not conflict with a federal statute requiring at least 60 days' notice. We reasoned that the federal statute required a minimum amount of notice and the Wisconsin statute did not go below that minimum. Meier, 254 Wis. at 74-75. We also reasoned that the Wisconsin statute does not take any right from the landlord to possession of property granted by [federal law]. Id. at 79. Meier thus hurts Cobb's position. A right to remedy his lease violation would deprive the Housing Authority of its right under 42 U.S.C. § 1437d(l)(6) to evict Cobb and take possession of his housing unit. 26 No. 2013AP2207 ¶38 Cobb makes several arguments in addition to his argument that the right to remedy does not conflict with 42 U.S.C. § 1437d(l)(6). Although we have already determined that the right to remedy conflicts with § 1437d(l)(6) in the present case, we nevertheless briefly address these remaining arguments. ¶39 Cobb argues that his lease provides a right to remedy his drug use. He relies on section 9.C. of his lease, which requires the Housing Authority to provide termination notices in accordance with Wis. Stat. § 704.17(2). Section 9.C. has several express exceptions, including section 9.C.2., which states that the Housing Authority shall give written notice of termination of the Lease as of: . . . 2. A reasonable time commensurate with the exigencies of the situation (not to exceed 30 days) in the case of . . . any drug-related criminal activity . . . . Cobb argues that section 9.C.2. does not eliminate the right to remedy but rather extends the five-day notice period under § 704.17(2) to up to 30 days. However, other lease provisions belie Cobb's argument. Section 6.J. of the lease states that the Housing Authority will provide one written warning prior to a proposed termination of tenancy, except . . . in the case of a violation of 5.Q. or a termination per 9.C.2. Section 5.Q., which uses language that closely follows 42 U.S.C. § 1437d(l)(6), prohibits a tenant from engaging in [a]ny activity that threatens the health, safety or right to peaceful enjoyment of the premises . . .  or [a]ny drug-related or violent criminal activity. . . . Such activity shall be cause for termination of tenancy. Thus, sections 6.J. 27 No. 2013AP2207 and 5.Q. plainly state that a written warning——i.e., a right to remedy——does not apply to drug-related criminal activity. ¶40 Cobb relies on several statements of federal policy for the proposition that the right to remedy is not preempted. We find these arguments unpersuasive. Cobb points to the preamble to a HUD rule, which amended HUD regulations to strengthen public housing authorities' ability to evict tenants who engaged in illegal drug use or other criminal activity. Screening and Eviction for Drug Abuse and Other Criminal Activity, 66 Fed. Reg. 28776-01 (May 24, 2001). The preamble states that [t]his final rule does not . . . preempt State law within the meaning of Executive Order 13132. Id. at 28791. However, that statement sheds no light on whether 42 U.S.C. § 1437d(l)(6) preempts state law.15 ¶41 Cobb also relies on a HUD regulation that states that a notice to vacate which is required by State or local law may be combined with, or run concurrently with, a notice of lease termination under . . . this section. 24 C.F.R. § 966.4(l)(3)(iii). However, this regulation does not indicate 15 An earlier, proposed version of this rule stated that federal housing policy created a one strike policy with respect to illegal drug use. One–Strike Screening and Eviction for Drug Abuse and Other Criminal Activity, 64 Fed. Reg. 4026201 (proposed July 23, 1999). The final version of this rule does not use the phrase one strike. Cobb argues that HUD's omission of that phrase from the final version of this rule further indicates that HUD did not intend for this rule to preempt state law. However, 42 U.S.C. § 1437d(l)(6) preempts state law regardless of whether this HUD rule does as well. 28 No. 2013AP2207 whether a state law may require a public housing authority to provide an opportunity to remedy drug-related criminal activity. ¶42 Cobb relies on a letter issued in response to Rucker by then-HUD Secretary Mel Martinez, which states that [e]viction should be the last option explored . . . . Letter from Mel Martinez, HUD Secretary, to Public Housing Directors (Apr. 16, 2002). However, this letter does not shed any light on whether a statutory right to cure may limit a public housing authority's power to evict once it explores that option. See Boston Hous. Auth., 871 N.E.2d at 1078-79 & n.14. ¶43 Finally, Cobb relies on a HUD guidance that provides, State or local law governing eviction procedures may give tenants procedural rights in addition to those provided by federal law. Tenants may rely on those state or local laws so long as they have not been pre-empted by federal law. HUD Directive No. 96–16, Notice PIH 96–16(HA) (April 12, 1996); see also 24 C.F.R. § 247.6(c). Cobb argues that Wis. Stat. § 704.17(2)(b)'s right to cure is a procedural right allowed under that HUD guidance. However, that HUD guidance expressly states that local or state law cannot provide rights that are preempted by federal law. We have already determined that federal law preempts the right to cure in the present case. See also Scarborough, 890 A.2d at 258 (holding that [a] 'procedural' right to a second chance to refrain from criminal activity endangering other tenants would conflict fundamentally with federal housing law). 29 No. 2013AP2207 ¶44 In sum, for the reasons previously set forth as well as those briefly addressed above, we reject Cobb's additional arguments that Wis. Stat. § 704.17(2)(b)'s right to cure is not preempted in the present case.",analysis
+160,4539286,1,1,"Taeson was born in July 2017. The Nebraska Department of Health and Human Services (DHHS) took custody of Taeson at the hospital shortly after his birth because his biological mother had admitted to methamphetamine use during pregnancy and the meconium fluid had tested positive for methamphetamine. Taeson’s biological mother relinquished her parental rights in late 2018. Taeson was placed with Lachrisha T., Samuel’s adult daughter, who has cared for Taeson since birth. - 281 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 Samuel was present at the hospital for Taeson’s birth. Samuel and the child apparently had almost no further contact after this point. Samuel became incarcerated in November 2017 on what the record suggests was a drug-related offense. In December 2017, a paternity test showed that Samuel was the biological father of Taeson. Candace Sturgeon, a caseworker with DHHS, unsuccessfully attempted to contact Samuel through Lachrisha and other means. Sturgeon eventually located Samuel through a DHHS computer system search and visited him at the jail in Saline County, Nebraska, in June 2018. She testified at the termination hearing that she informed Samuel that the result of the paternity test he had taken showed he was Taeson’s biological father. According to Sturgeon, Samuel stated that he had assumed he probably was Taeson’s father, that he was aware Taeson was living with Lachrisha, and that he had personally recommended that Taeson be placed with her after the child was removed from his biological mother’s care. According to Sturgeon, Samuel had indicated he supported Lachrisha’s potentially adopting Taeson. According to Sturgeon, Samuel stated “something to the effect of well I obviously am not an option since I’m going to be in prison for 30 years, so I understand that.” Sturgeon testified that she advised Samuel that he needed to keep her updated on his whereabouts, because it would be very difficult for her to know where he was if he was transferred. Samuel asked Lachrisha to bring the child to county jail one time, but before arrangements could be made, Samuel was transferred to federal prison in South Carolina on a 30-year sentence. After the transfer, Samuel did not communicate with Sturgeon or DHHS to update them on his whereabouts or to contact Taeson. Sturgeon testified that she made largely unsuccessful efforts to contact Samuel multiple ways at least once a month. Turner attended a paternity hearing on June 6, 2018, at which he was declared Taeson’s legal father. In October 2018, - 282 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 the State moved to terminate Samuel’s and the biological mother’s parental rights. The motion to terminate alleged three grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016), which states: The court may terminate all parental rights between the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that one or more of the following conditions exist: .... (2) The parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection; .... (6) Following a determination that the juvenile is one as described in subdivision (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination; (7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months. On November 19, 2018, Samuel was served in prison in South Carolina with a copy of the motion to terminate his parental rights and a summons to appear before the court for a hearing on the matter. In December, Samuel denied the allegations in the motion to terminate and the termination hearing was continued. In December 2018, Sturgeon left a message with a caseworker at the South Carolina prison and Samuel called her back. During that telephone call, Sturgeon explained to Samuel that the State was moving to terminate his parental rights. Samuel stated that he did not want his parental rights - 283 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 terminated and that he no longer approved of Taeson’s being placed with Lachrisha. He explained that Lachrisha was not “put[ting] any money on his books” and had stopped communicating with him. Samuel stated that he hoped he would be successful in the appeal of his criminal conviction and that his intent was to win his appeal and parent Taeson. Sturgeon testified that Samuel did not make further contact with DHHS after December 2018. At the time of the termination hearing in March 2019, Samuel had been in prison in South Carolina for 8 months. Taken as a whole, the testimony showed that Samuel had not attempted to be involved in Taeson’s life either before or after his incarceration. Samuel had not requested photographs of Taeson and had not contacted him after his birth. Sturgeon explained that the service DHHS typically offers to parents who are incarcerated is visitation with the child; however, it is very difficult to offer services if someone is placed out of state and it is impossible to offer serv­ices to someone that DHHS is unable to contact. She testified that, in her view, Samuel’s parental rights should be terminated even if he wins his appeal on his criminal case because it is unclear how long it would take him to work through a case with DHHS and ensure he could care for a child. The termination hearing was held on March 13, 2019. The child was represented by a guardian ad litem, and counsel appeared for the State. Samuel was represented throughout the termination hearing by an attorney. Samuel did not appear physically or telephonically. The juvenile court recognized that Samuel denied the allegations in the motion to terminate. Samuel’s counsel was asked to address Samuel’s nonappearance, and Samuel’s counsel stated as follows: Well, Your Honor, he’s incarcerated in North [sic] Carolina penitentiary system. I’ve had communication with him be [sic] email on and off throughout the last six weeks or so. I know that he does object to what — having his rights terminated. I’ve also tried to communicate with - 284 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 him regarding relinquishment, which he’s been unable to or unwilling to sign a relinquishment, and so you know, I can’t imagine the Court is going to continue this out for 30 years ’til he can put himself in a place where he can parent, so I see no other alternative but moving forward today. Following the hearing, the juvenile court filed an order which found that the allegations of the motion for termination of parental rights were true by clear and convincing evidence. The court enumerated its findings that (1) regarding § 43-292(2), Samuel substantially neglected to give Taeson necessary parental care; (2) regarding § 43-292(6), Taeson was a juvenile as described by § 43-247(3)(a) and reasonable efforts have failed to correct conditions; (3) regarding § 43-292(7), Taeson was in an out-of-home placement for 15 or more months of the most recent 22 months; (4) it was in the best interests of Taeson to terminate Samuel’s parental rights; and (5) Samuel was unfit to parent Taeson now and in the future. The juvenile court terminated Samuel’s parental rights to Taeson. Samuel appeals. ASSIGNMENTS OF ERROR On appeal, Samuel claims, summarized and restated, that (1) he was denied procedural due process rights at the termination hearing and (2) the juvenile court erred when it terminated his parental rights because DHHS had failed to make reasonable efforts to reunite him and Taeson. STANDARDS OF REVIEW [1] Whether a parent who is incarcerated or otherwise confined in custody has been afforded procedural due process for a hearing to terminate parental rights is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. See In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). - 285 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE INTEREST OF TAESON D. Cite as 305 Neb. 279 [2] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings. See In re Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020).",facts
+161,6353378,1,1,"Suzette Kane filed a petition to establish grandparent visitation with her minor grandchildren. Following a hearing on the biological parents’ motion to dismiss, the district court dismissed Suzette’s petition for lack of subject matter jurisdiction. We find that the district court erred in determining it lacked jurisdiction, vacate its dismissal of Suzette’s petition, and remand the cause for further proceedings.",introduction
+162,1094109,1,2,"The issue in this case arises when a reason offered for a peremptory challenge is based on a juror's nonverbal behavior, such as lack of interest, inattentiveness, or lack of eye contact. In Wright, we characterized this type of nonverbal behavior as bare looks and gestures. 586 So.2d at 1029. When the reason offered for a peremptory challenge is based on a juror's verbal response to questioning during voir dire, the problem we confront in this case does not occur. The juror's response is not only witnessed by the court but, if there is any doubt about the validity or genuineness of the challenge or its pretextual nature, is also captured by the court reporter and available for the trial court to confirm and the appellate court to review. When the appellate court can discern that the actual responses differ from what was represented to and accepted by the trial court, the court's ruling is reversed. See, e.g., McCarter v. State, 791 So.2d 557, 558 (Fla. 2d DCA 2001) (holding that trial court erred in finding reason to be valid where it was refuted by transcript of voir dire); Michelin North America, Inc. v. Lovett, 731 So.2d 736, 742 (Fla. 4th DCA 1999) (holding that the denial of a peremptory challenge constituted clear error where the record refuted the implied finding that the reason given for the strike was not genuine); Overstreet v. State, 712 So.2d 1174, 1177 (Fla. 3d DCA 1998) (relying on review of transcript in concluding that the trial court erred in sustaining a peremptory challenge because of a faulty recollection of the responses given during voir dire). Like verbal responses to questioning, a juror's lack of interest, inattentiveness, or other nonverbal behavior can constitute a racially neutral reason for a strike. However, the question becomes how to determine the genuineness of the reason based on nonverbal communication when opposing counsel challenges the factual basis for the explanation, the trial court does not observe the behavior, and the record does not otherwise support the reason advanced. [3] To answer this question, we reexamine Wright in light of our subsequent decision in Melbourne. To place both Wright and Melbourne into perspective, we briefly review the precedent on which both decisions rest. In State v. Neil, 457 So.2d 481, 486 (Fla. 1984), this Court held that the exercise of a peremptory challenge solely on the basis of race violates the right of both the defendant and the State to trial by an impartial jury under article I, section 16 of the Florida Constitution. [4] This Court delineated a test for trial courts to use in determining whether the exercise of a peremptory challenge is a pretext for racial discrimination. [5] Subsequently, the United States Supreme Court, in its landmark decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that [e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure. Id. at 85, 106 S.Ct. 1712. Significantly, the Supreme Court stated that the prosecutor could not justify the peremptory challenge merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections. If these general assertions were accepted as rebutting the defendant's prima facie case, the Equal Protection Clause would be but a vain and illusory requirement. Id. at 98, 106 S.Ct. 1712 (internal quotation marks, brackets, and citation omitted). Relying on Batson, this Court modified the test for evaluating peremptory challenges under Neil in State v. Slappy, 522 So.2d 18 (Fla.1988). This Court stated that the test required a clear and reasonably specific race-neutral explanation of legitimate reasons. 522 So.2d at 22 (quoting Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712). The trial court could not accept the reasons proffered at face value. Instead, the trial court should evaluate those reasons as he or she would weigh any disputed fact. Id. Under Slappy, the trial court was required to consider two factors in evaluating a proffered reason. The first inquiry was whether the reason was neutral and reasonable. Id. However, reasonableness is not enough, since the state also must demonstrate a second factor—record support and the absence of pretext. Id. at 23. The trial court must evaluate both the credibility of the person and the credibility of the asserted reasons. Id. at 22. In Floyd v. State, 569 So.2d 1225 (Fla. 1990), issued two years after Slappy, this Court emphasized the necessity of record support for a party's explanation of its reasons for exercising a peremptory challenge during an inquiry under Neil and Slappy. In Floyd, we determined that a defense challenge to the trial court's decision upholding a peremptory challenge was unpreserved because defense counsel did not challenge the accuracy of the explanation for the strike, and explained: It is the state's obligation to advance a facially race-neutral reason that is supported in the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced. However, when the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason. Here, the error was easily correctable. Had defense counsel disputed the state's statement, the court would have been compelled to ascertain from the record if the state's assertion was true. Had the court determined that there was no factual basis for the challenge, the state's explanation no longer could have been considered a race-neutral explanation, and [the juror] could not have been peremptorily excused. Id. at 1229-30 (emphasis supplied). Floyd's statement that a trial court must establish record support for an explanation challenged by the opponent of the strike is consistent with our holding in Wright that a peremptory challenge based on bare looks and gestures cannot be sustained unless the looks and gestures have record support. [6] We again highlighted the importance of record support for a reason proffered for a peremptory challenge in Wright, which was issued less than a year after Floyd. The defendant in Wright alleged that the prosecutor unconstitutionally exercised a peremptory challenge for racial reasons. See 586 So.2d at 1027. In attempting to justify the peremptory challenge, the prosecutor first explained that the challenged venireperson would be likely to identify himself with the defendant because they were both black males of similar ages. See id. at 1028. The prosecutor then offered the alternative ground that the challenged venireperson did not maintain eye contact with the prosecutor and that the prosecutor was uncomfortable with that. See id. This Court, relying on Slappy, reversed the appellant's convictions and stated that these facts established a clear violation of Neil and Batson. Id. Regarding the second reason offered by the prosecutor, this Court concluded that the reason was merely pretextual and then held, in language significant to this case, that [p]eremptory challenges based on bare looks and gestures are not acceptable reasons unless observed by the trial judge and confirmed by the judge on the record. Id. at 1029. [7] The United States Supreme Court revisited its Batson decision and focused on the reason given by the proponent of a peremptory challenge in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The Court stated that the explanation must be nondiscriminatory on its face and have record support: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. [ Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)]. .... In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are not fairly supported by the record. 28 U.S.C. § 2254(d)(8). Here the Court of Appeals did not conclude or even attempt to conclude that the state court's finding of no racial motive was not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive. It gave no proper basis for overturning the state court's finding of no racial motive, a finding which turned primarily on an assessment of credibility. Id. at 767-69, 115 S.Ct. 1769 (citations omitted) (emphasis supplied). Purkett also reaffirmed the principle of Batson that a prosecutor could not satisfy his burden by merely denying that he had a discriminatory motive or by merely affirming his good faith. Id. at 769, 115 S.Ct. 1769 (emphasis supplied). This language reflects the United States Supreme Court's continued adherence to Batson's fundamental precept that affirmations of good-faith motives will not suffice. Our decision in Melbourne, issued one year after Purkett, focused solely on the procedural refinements adopted in Purkett and the practical difficulty encountered by some Florida courts in applying Neil and its progeny. Specifically, this Court adopted guidelines for trial courts to follow in resolving challenges to peremptory challenges on racial grounds. See 679 So.2d at 764. The step-by-step guidelines established in Melbourne provide: A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. [2] If these initial requirements are met ... the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation.... [3] If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.... 679 So.2d at 764 (footnotes omitted). We emphasized that in applying these guidelines, the trial court's focus is not on the reasonableness of the explanation for the exercise of a peremptory challenge but rather its genuineness. Id. In Melbourne, we receded from Slappy's requirement of a reasonable rather than a genuine race-neutral explanation for the strike, while acknowledging that [r]easonableness is simply one factor that a court may consider in assessing genuineness. Id. at 764-65 & n. 9. However, we did not address the impact of our holding in that case on the rule established in Wright that bare looks and gestures cannot be accepted as race-neutral reasons for peremptory challenges unless observed by the trial court. The State contends that because the sole focus under Melbourne is now on the genuineness of the explanation, rather than its reasonableness, it is no longer necessary for bare looks and gestures to be observed by the trial court, as required by Wright, or otherwise supported by the record. We disagree. We did not expressly recede from Wright in Melbourne, and this Court does not intentionally overrule itself sub silentio. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002). Moreover, this Court adheres to the doctrine of stare decisis. See id. Although we recognize that the doctrine of stare decisis is not absolute, it yields only upon a significant change in circumstances after the adoption of the legal rule, or when there has been an error in legal analysis. See id. Because the important policy and constitutional underpinnings of Wright continue to compel adherence to that decision, we determine that the essential holding in Wright survives, and is consistent with, our decision in Melbourne. The principle that emerges from Wright and Melbourne, in tandem, is that the proponent of a strike based on nonverbal behavior may satisfy its burden of production of a race-neutral reason during the second step of the process described in Melbourne only if the behavior is observed by the trial court or otherwise has record support. Once this burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine. Wright's requirement of record support intersects with Melbourne's focus on the genuineness of a proffered explanation during the second of the three steps set out in Melbourne. If, during this second step, the parties disagree as to whether nonverbal behavior, as discussed in Wright, 586 So.2d at 1029, constitutes a fact ... existing in the record, Floyd, 569 So.2d at 1229, the proponent must substantiate its observation. As then-Judge Quince observed in Daniel v. State, 697 So.2d 959, 961 (Fla. 2d DCA 1997), the case law is clear that a `feeling' about a juror is not a valid, neutral reason to exercise a strike, absent support in the record.  (Emphasis supplied.) Without a basis apart from one party's perception to substantiate the bare look and gesture— whether it is the lack of eye contact in Wright or the purported lack of interest of the juror here—there is no support for the explanation, and the proponent of the strike has not satisfied its burden under Melbourne. If we were to conclude that the second step of Melbourne is satisfied by the assertion of a race-neutral reason that is disputed by the opposing party and is neither observed by the trial court nor otherwise supported by the record, the trial court would be handicapped in fulfilling the third step of Melbourne, which is the evaluation of the proffered reason. When a verbal response is relied upon to justify a peremptory challenge, an opposing party can easily point out that other venire members gave the same response as the stricken juror, and the appellate court can look to the record to review the trial court's resolution of the dispute. This assessment is hardly possible when a subjective impression based on nonverbal behavior is offered as a reason for the strike and the behavior is neither observed by the trial court nor otherwise supported by the record. Further, if the proponent of a strike were permitted to meet its burden of production based solely on an attorney's subjective, uncorroborated, and disputed impression of a juror's demeanor, the appellate court would have no basis to determine if the trial court's decision to accept the explanation was clearly erroneous. The trial court's choice to credit one attorney's observations, with no rationale for distinguishing one good-faith representation from the other, would render that decision virtually unreviewable. In contrast, our decision today allows for meaningful appellate review. We held in Melbourne that the trial court's decision in ruling on the genuineness of the race-neutral basis for a peremptory challenge should be affirmed unless clearly erroneous. See 679 So.2d at 764. We reaffirm that principle. We have continuously deferred to the superior vantage point of the trial judge, who is present, can consider the demeanor of those involved, and can get a feel for what is going on in the jury selection process. Files v. State, 613 So.2d 1301, 1305 (Fla.1992). However, as recently stated by the United States Supreme Court in the highly deferential context of federal habeas review of a state court's determination on a claim of discrimination in the exercise of peremptory challenges, deference does not imply abandonment or abdication of judicial review. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003). An example of the balance between deference and meaningful appellate review is Francis v. State, 808 So.2d 110 (Fla.2001), cert. denied, 537 U.S. 1090, 123 S.Ct. 696, 154 L.Ed.2d 635 (2002), in which the prosecutor sought to strike a juror who had laughed at the accusation that two people were killed. Although the fact of the juror's laughing was not explicit in the record, we were able to review the record to find support for the conclusion: While the transcript does not explicitly indicate that Ms. Bennett laughed, it does indicate that she thought nothing at all about the accusation that an individual had killed two people. Given her light-hearted response to such a serious question, it is understandable that the trial court would be particularly attuned to the surrounding circumstances. Id. at 124. The Court also pointed to the more thoughtful responses of other jurors as support for the prosecution's reason. In contrast to Francis, there is virtually nothing upon which to base meaningful appellate review when the trial court does not observe the nonverbal behavior, the record does not otherwise support the observation, and the trial court does nothing more than accept as a race-neutral reason an attorney's assertion of a juror's lack of interest because the attorney is an officer of the court. This is why our statement in Floyd, which we have recently reaffirmed, remains the basis for the trial court's decision and appellate review: It is the state's obligation to advance a facially race-neutral reason that is supported by the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced. Rimmer v. State, 825 So.2d 304, 320 (Fla.), cert. denied, 537 U.S. 1034, 123 S.Ct. 567, 154 L.Ed.2d 453 (2002) (quoting Floyd, 569 So.2d at 1229) (emphasis supplied). In addition, sustaining a peremptory challenge based solely on the good faith of the proponent of the strike would squarely collide with the clear holdings of Batson and Purkett that merely affirming a good-faith motive is insufficient to satisfy the proponent's burden of production. See Purkett, 514 U.S. at 769, 115 S.Ct. 1769; Batson, 476 U.S. at 98, 106 S.Ct. 1712. We make these observations not to impugn the good faith of attorneys or judges, but out of concern that approval of the Third District decision in this case would undermine the goal of the elimination of racial discrimination in the exercise of peremptory challenges. Melbourne, 679 So.2d at 764. The dissent suggests we are ignoring or abandoning the overarching principle of Melbourne and quotes the following statement from Hernandez v. New York, 500 U.S. 352, 374, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (O'Connor, J., concurring in the judgment), for support: Absent intentional discrimination violative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason, or no reason at all. Dissenting op. at 1207. The exception in this statement is crucial; in fact, it lies at the heart of all United States Supreme Court precedent arising from and including Batson. Batson, Neil and their progeny, including Melbourne, concern the means for discerning and eliminating intentional discrimination in the exercise of peremptory challenges. The Court in Batson specifically rejected the argument that the privilege of unfettered exercise of the challenge is of [such] vital importance to the criminal justice system that a prosecutor's reasons for the exercise of an individual strike could never be questioned. 476 U.S. at 98, 106 S.Ct. 1712. We leave undisturbed the principle of our precedent dating back to Neil, 457 So.2d at 486, that [t]he initial presumption is that peremptories will be exercised in a nondiscriminatory manner. See also Windom v. State, 656 So.2d 432, 437 (Fla.1995) (reiterating statement in Neil); State v. Johans, 613 So.2d 1319, 1322 (Fla. 1993) (stating that the presumption of validity of peremptory strikes established in Neil is still the law in Florida). However, we note that the State is not entitled to this presumption unless the existence of its proffered reason is either confirmed by the trial court or otherwise supported by the record. Just as the failure to offer any reason whatsoever would be inadequate to sustain a strike, equally inadequate is an unconfirmed subjective impression that cannot be confirmed by the trial court or reviewed by the appellate court because there is no record support. Therefore, we adhere to the essential principles of both Wright and Melbourne by holding that a potential juror's nonverbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race neutral. [8]",analysis
+163,2624402,1,12,"When an evidentiary hearing has been conducted in the district court on claims of ineffective assistance of counsel, this court determines whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The court's legal conclusions are reviewed de novo. See Pabst v. State, 287 Kan. 1, 16, 192 P.3d 630 (2008); Bledsoe, 283 Kan. at 91, 150 P.3d 868.",standard of review
+164,2450907,1,1,"[¶ 2] 1. Does the word legally in Wyo. Stat. Ann. § 12-8-301(a) (LexisNexis 2011) encompass legal enactments beyond Title 12 of the Wyoming Statutes such as the municipal ordinances at issue in this case? 2. If Wyo. Stat. Ann. § 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the equal protection provisions of the United States Constitution and the Wyoming Constitution? 3. If Wyo. Stat. Ann. § 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the special law provisions of article 3, section 27 of the Wyoming Constitution?",issues
+165,873654,2,1,"[¶22] Dennis argues there was insufficient evidence, in the absence of his extrajudicial statements, to convict him of aggravated burglary. He asserts his extrajudicial statements could not be used to convict him because the State did not present sufficient independent evidence of the crime as required by the corpus delicti doctrine. He also argues evidence was not presented to contradict the innocent intent he alleges was present in his extrajudicial statements. Dennis contends that he intended the gun be returned to the Johnsons after he used it to commit suicide, therefore he lacked the requisite intent to deprive. [¶23] We recently reiterated our standard of review for claims of insufficient evidence: [W]e examine and accept as true the State’s evidence and all reasonable inferences which can be drawn from it. We do not 6 consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial. Craft v. State, 2013 WY 41, ¶ 18, 298 P.3d 825, 831 (Wyo. 2013) (quoting Dawes v. State, 2010 WY 113, ¶ 17, 236 P.3d 303, 307 (Wyo. 2010)). [¶24] “In Wyoming, ‘independent proof of the corpus delicti must exist apart from a defendant’s extrajudicial confession or admission.’” Mersereau v. State, 2012 WY 125, ¶ 65, 286 P.3d 97, 121 (Wyo. 2012) (quoting Jones v. State, 2010 WY 44, ¶ 11, 228 P.3d 867, 870 (Wyo. 2010)). However, that corroborating evidence need only consist of substantial evidence that the offense has been committed, so that the evidence as a whole proves beyond a reasonable doubt that the defendant is guilty of the crime charged. Simmers v. State, 943 P.2d 1189, 1199 (Wyo. 1997) (citing Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164-65, 99 L.Ed. 101 (1954)). “It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.” Opper, 348 U.S. at 93, 75 S.Ct. at 164-165. Each case is unique and therefore the quantity and type of independent corroborating evidence depends upon the facts of each case. Simmers, 943 P.2d at 1199 (citation omitted). Corroborating evidence may include circumstantial evidence. Id. [¶25] In his initial conversation with Jones, Dennis admitted he entered the Johnsons’ home and removed an item from under their bed. In the same conversation, he asked Jones to return the item for him and he provided a detailed description of the Johnsons’ home for Jones. When Dennis was confronted by Mr. Johnson at church, he disputed that his actions constituted a burglary because the home was unlocked. He asked Mr. Johnson to tell the police that the incident in question involved a nail gun and not a pistol. When he questioned Jones about what she told law enforcement, Dennis admitted to Jones that the item he removed from the home was a gun and that he returned it to Mr. Johnson’s truck. [¶26] The record in this case contains independent evidence of the crime which corroborates Dennis’ extrajudicial statements. Mr. and Mrs. Johnson testified that the pistol was usually stored under Mrs. Johnson’s side of the bed. They also testified no one had permission to enter their home or remove the pistol. The Johnsons did not place the pistol in the truck where it was eventually found. Mr. Johnson testified that Dennis knew he would be out of town when he made arrangements with him to return a borrowed nail gun by putting it in Mr. Johnson’s unlocked truck. Deputy Wagner testified that there was no sign of forced entry into the home. 7 [¶27] Jones’ testimony also corroborated Dennis’ extrajudicial statements. Jones testified she never went into the Johnsons’ home, but was able to tell the Johnsons they were missing an item from underneath their bed. The Johnsons in turn testified they knew the item was a pistol because that was the only item they kept under their bed. The evidence in the record, when viewed in total, provides sufficient corroborating evidence of an aggravated burglary. [¶28] Dennis argues there was insufficient evidence to contradict the innocent intent he expressed in his extrajudicial statements. He contends the inherent intent in his statements was that he only borrowed the pistol to commit suicide. As such, he disputes the evidence sufficiently demonstrated he had a larcenous intent when he took the Johnsons’ pistol. [¶29] Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2011) defines larceny: (a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny. Deprive is defined as: (A) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or (B) To dispose of the property so as to make it unlikely that the owner will recover it. Wyo. Stat. Ann. § 6-3-401(a)(ii) (LexisNexis 2011). [¶30] “The intent to steal can be established by a wide variety of direct and circumstantial evidence.” Bush v. State, 908 P.2d 963, 967 (Wyo. 1995). The return of property does not defeat proof of an initial intent to steal. E.g., Wetherelt v. State, 864 P.2d 449, 452 (Wyo. 1993) (holding there was sufficient evidence for a larceny conviction even when a defendant returned some of the victim’s property). Nevertheless, “[w]e have consistently held that, even though it is possible to draw other inferences from the evidence which has been presented, the jury has the responsibility to resolve conflicts in the evidence.” Swanson v. State, 981 P.2d 475, 479 (Wyo. 1999) (citations omitted). [¶31] Dennis told Jones he had been inside the Johnsons’ home before the pistol was discovered missing. He gave Jones a detailed explanation of the layout of the home, and 8 he admitted he entered the home without permission when the Johnsons were not present. He also sought to conceal his crime. He asked Jones to return the stolen pistol. He told Mr. Johnson that he was never supposed to find out about the missing gun. He quizzed Jones about the exact language she used to describe the incident to law enforcement and asked Mr. Johnson to tell authorities the whole incident was about a nail gun instead of a pistol. Attempts at concealing a crime support an inference of an intent to deprive. E.g., Walston v. State, 954 P.2d 987, 989 (Wyo. 1998) (“[e]vidence to support the inference of appellant’s intent to steal includes the fact that . . . he initially denied being in the home when questioned by an officer; he pawned the stolen items using an alias . . . .”); Leppek v. State, 636 P.2d 1117, 1119 (Wyo. 1981); Mirich v. State, 593 P.2d 590, 593 (Wyo. 1979); see e.g. Dreiman v. State, 825 P.2d 758, 761 (Wyo. 1992) (holding that the return of keys and a calendar after copying them still qualified as an intent to deprive the victim of their property). [¶32] Dennis insists that his intent upon entering the Johnsons’ home does not qualify as an intent to deprive because his statements make clear he borrowed the Johnsons’ pistol to commit suicide. He relies on Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 226 (1942), to argue his alleged innocent motive cannot be disregarded and that, accordingly, there was no proof of his intent to deprive the Johnsons’ of their pistol. In Eagan we said: Where an accused is the sole witness of a transaction charged as a crime, as in the case at bar, his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted. 128 P.2d at 226 (citations omitted). The State argues Eagan is inapplicable here because Dennis’ credibility was impeached. After a review of the record, we agree with the State. [¶33] Dennis’ admissions raised considerable doubt about his credibility. He asked Mr. Johnson to lie to law enforcement about the details of the incident and told him he was never supposed to know that Dennis had taken the gun. Dennis admitted entering the Johnsons’ home without their permission and tried to have Jones re-enter the home, again without the Johnsons’ permission, to return the pistol for him. When viewing these admissions in a light most favorable to the State, a jury could have reasonably doubted Dennis’ credibility. [¶34] Alternatively, Dennis’ alleged intent upon entering the home is not inconsistent with an intent to deprive. Dennis asserts his intent upon entering the home was to borrow the Johnsons’ gun to commit suicide. A reasonable jury could find that, by entering the home with such an intent, he did not plan on returning the pistol--if he had accomplished 9 his goal of committing suicide, then he would have lacked the capacity to return the gun. As a result, Dennis’ own alleged intent for entering the home was consistent with an intent to permanently deprive the Johnsons of their pistol or to dispose of it so as to make it unlikely that the Johnsons would recover it.",sufficiency of the evidence
+166,1107702,1,4,"The trial court stated that it lacked jurisdiction over the second action because it was an impermissible successive motion under Rule 60(b). We agree. Rule 60(b) was adopted to allow a trial court to give equitable relief from a final judgment even after the normal procedures of motion for new trial and appeal are no longer available. Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption. There are six reasons a trial court grants relief under Rule 60(b): (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentations, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Rule 60(b), Ala. R. Civ. P. In Giles v. Giles, 404 So.2d 649, 651 (Ala.1981), we held that the Alabama Rules of Civil Procedure were designed to give some flexibility, particularly in an effort to do what is right and just. [T]rial courts usually have wide discretion in determining whether to grant Rule 60(b) motions, but that discretion is not unbridled. 404 So.2d at 651. The trial courts must balance the desire to remedy injustice against the need for finality of judgments. Rule 60, Committee Comments on 1973 Adoption. Keeping this balance between equity and finality in mind, Alabama courts have clearly and consistently held that post-judgment motions are not to be used as a substitute for appeal. Transcall American, Inc. v. Comtel-Birmingham, Inc., 571 So.2d 1051, 1052 (Ala.1990); Ex parte Dowling, 477 So.2d 400, 404 (Ala. 1985); Pinkerton I, supra; Ex parte Tampling Tile Co., 551 So.2d 1072, 1075 (Ala. Civ.App.1989). Successive Rule 60(b) motions brought on the same grounds are impermissible because they are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b). Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005). A motion to reconsider the trial court's denial of a postjudgment motion is barred because after the denial the trial court loses jurisdiction over the action. Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1070 (Ala. 1999); see also Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000); Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); Dowling, 477 So.2d at 404. Thus, `when a post-judgment motion is denied, the review of that denial is by appeal, not by a motion to reconsider.' Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 651 (Ala.1998) (quoting McAlister v. Deatherage, 523 So.2d 387, 389 (Ala.1988)). Because Pinkerton's second action is its third request for postjudgment relief under Rule 60(b), we must determine whether the second action is in the nature of a motion to reconsider and is therefore an impermissible successive action over which the trial court does not have jurisdiction. In its first Rule 60(b) motion, Pinkerton argued that it was entitled to relief under Rule 60(b)(1) because that court had failed to enter an order granting Pinkerton's motion for a judgment as a matter of law before the expiration of the 90-day pendency period; that failure, Pinkerton alleged, qualified as mistake, inadvertence, surprise, or excusable mistake. At the hearing on the motion, Pinkerton also argued that it might qualify for relief under Rule 60(b)(6). Pinkerton submitted a legal memorandum in support of its argument for relief under Rule 60(b)(6). The trial court denied Pinkerton's motion on the ground that it lacked jurisdiction to entertain the motion. Pinkerton did not appeal that denial. Instead, it filed a second Rule 60(b) motion, in the same trial court, this time seeking relief under only Rule 60(b)(6) and addressing the issue of the trial court's jurisdiction over the motion. We conclude that this second motion operated as a motion to reconsider. Pinkerton's second motion sought relief on the same ground as the first, namely that Pinkerton should not suffer for the first trial court's failure to timely enter the order granting Pinkerton's motion for a judgment as a matter of law. In both motions, Pinkerton cited Rule 60(b)(6) as the basis for relief. By raising the issue of jurisdiction in the second motion, Pinkerton essentially asked the trial court to reconsider its decision on the first motion that it lacked jurisdiction. Therefore, the second motion was an impermissible successive Rule 60(b) motion, and the trial court correctly concluded that it lacked jurisdiction to entertain that second motion. For the same reason, Pinkerton's second action, which seeks relief for a third time on the same ground Pinkerton has asserted twice before, is barred. The trial court hearing the second action correctly concluded that it did not have jurisdiction to entertain the second action. Under the well-established principle of law that a judgment rendered by a court that lacks jurisdiction is a nullity, [5] it would appear that the original trial court's denial of Pinkerton's first Rule 60(b) motion was improper because the trial court purported to deny that motion after the trial court had determined that it lacked the jurisdiction to entertain the motion. It is true that had that trial court initially dismissed Pinkerton's Rule 60(b) motion without prejudice rather than denying it, Pinkerton would have had the option to appeal that dismissal on the question of jurisdiction or, alternatively, to bring the Rule 60(b) motion again in a court of competent jurisdiction; however, Pinkerton did not take either of these actions. Instead, it brought a second Rule 60(b) motion before the same trial court, arguing that the trial court did, in fact, have jurisdiction. In doing so, Pinkerton violated the policy against filing a successive Rule 60(b) motion, which is not to be used as a substitute for an appeal or as a motion for reconsideration. In addition, after Pinkerton lost on appeal to the Court of Civil Appeals from the denial of its second Rule 60(b) motion, it did not appeal to this Court but instead attempted to start the process over by filing a third Rule 60(b) motion as an independent action. Rule 60(b) is not designed or intended to allow parties to circumvent the appeal process and to drag out litigation indefinitely by filing a new motion every time a court decides it does not have jurisdiction over a matter. See Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption (In passing on an attack upon a judgment, the court is given a wide discretion. In exercising this discretion, the court must balance the desire to remedy injustice against the need for finality of judgments.). Therefore, we hold that the trial court in the second action correctly concluded that the second action was a successive Rule 60(b) motion and that the court therefore lacked jurisdiction to entertain the motion.",jurisdiction
+167,883333,1,1,"Charles was stopped for suspicion of driving under the influence on December 20, 1992, in Billings, Montana. He was taken to the Yellowstone County Detention Facility and was asked to perform the standard field sobriety tests while being filmed on videotape. Charles had considerable difficulty performing the field sobriety tests. Following these tests, the officer read and explained the implied consent law advisory form to him. During the reading of the implied consent form, Charles repeatedly asked to speak to an attorney. The police officer informed him that when he (the officer) finished reading the implied consent form and Charles' Miranda rights, the appellant could call for an attorney. At the conclusion of the reading of the informed consent form, the officer asked Charles if he wanted to submit to a test of his blood alcohol content (BAC test). Charles replied, Not at this moment. The officer then read Charles his Miranda rights. Following the reading, he gave Charles a telephone and a telephone book and allowed him to call an attorney. The officer noted Charles' request for an attorney as a refusal to submit to a breath test with the result that his driver's license and driving privileges were suspended for 90 days, pursuant to § 61-8-402(5), MCA. Charles petitioned the Thirteenth Judicial District Court, pursuant to § 61-8-403, MCA, for a review of the decision to suspend his driver's license and driving privileges for 90 days. The court heard Charles' testimony, viewed the videotape of the field sobriety tests, the reading and explanation of the implied consent form and the reading of the Miranda rights. Counsel were also allowed to file briefs. The District Court found that Charles had refused to submit to a BAC test even though he knew that his license would be seized upon a refusal to submit to the test. The District Court concluded that Charles' driver's license had been properly suspended.",facts
+168,2770168,1,2,"A writ may be granted upon a showing that: (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court, or (2) the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice 2 and irreparable injury will result if the petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Consol agrees that oversee[ing] discovery issues in a pending case is within the subject matter jurisdiction of the trial court, so Consol is invoking the second class of writs identified in Hoskins: the trial court is acting or is about to act erroneously, and great injustice and irreparable injury will occur if the writ is not issued. The fundamental problem with Consol's request for writ relief is that the trial court has not ordered Consol, or its CFO, to do anything and there is no indication in the record that the trial court is about to order Consol or the CFO to do anything. The trial court is not acting or [] about to act erroneously because the only ruling the trial court has made with respect to the noticed deposition is to deny a protective order. The notice of deposition given by the Plaintiffs in this case is not a court order, and since he was not subpoenaed, the power of the court has not been invoked to compel his appearance. The trial court's denial of the protective order is not an order compelling Consol to produce the CFO for a deposition in Kentucky. The trial court's protective order does not compel or direct Consol to do anything; and the pending notice of deposition, unaccompanied by the service of a subpoena, cannot force the non-resident witness into Kentucky for a deposition. The Knott Circuit Court has not commanded the proposed deponent to appear in Kentucky for a deposition, and it is not about to impose sanctions upon him for not appearing. Unless and until it does, it is not acting or about to act in a 3 manner that exposes Consol or the witness to any harm at all, much less great",analysis
+169,1058839,1,4,"Post-conviction relief may be granted only if a conviction or sentence is void or voidable because of a violation of a constitutional right. Tenn.Code Ann. § 40-30-103 (2003). The Due Process Clause of the United States Constitution requires that guilty pleas be knowing and voluntary. State v. Wilson, 31 S.W.3d 189, 194 (Tenn.2001). The cases of Boykin v. Alabama and State v. Mackey are the landmark constitutional cases for analyses of guilty pleas. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (federal standard); State v. Mackey, 553 S.W.2d 337 (Tenn.1977) (state standard). In Boykin , the United States Supreme Court held that before a trial judge can accept a guilty plea, there must be an affirmative showing that it was given intelligently and voluntarily. 395 U.S. at 242, 89 S.Ct. 1709. In order to find that the plea was entered intelligently or voluntarily, the court must canvass [ ] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences. Id. at 244, 89 S.Ct. 1709. A plea is knowing if the court informed the accused of his constitutional rights against self-incrimination, to confront accusers, and to trial by jury. Id. at 243, 89 S.Ct. 1709. Likewise, in Mackey, this Court held that the record of acceptance of a defendant's plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea.... 553 S.W.2d at 340. Any requirement in excess of Boykin is not based on the federal or state constitution. State v. Prince, 781 S.W.2d 846, 853 (Tenn.1989). Therefore, in evaluating the knowing and voluntary nature of a guilty plea, [t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The United States Supreme Court has never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Mr. Jaco does not contend that this plea agreement failed to meet the requirements of Boykin . He was informed of and indicated that he understood the constitutional rights that he waived by entering the guilty plea. Instead, Mr. Jaco argues that his plea was not knowingly and voluntarily entered because he was not informed of one of the criteria that guides the determination of whether he will actually be released upon arriving at his release eligibility date. As support for this proposition, he relies on Howell v. State, 569 S.W.2d 428 (Tenn.1978). In Howell , the defendant pleaded guilty to two counts of first degree murder with consecutive life sentences. He later challenged the validity of these pleas because his attorney and the trial court had erroneously advised him that consecutive life sentences would result in an earlier parole eligibility date than would consecutive thirty-five-year sentences. Id. at 430. After clarifying the formula for determining parole eligibility for life sentences, this Court granted Mr. Howell relief because he had agreed to life sentences under mistaken advice as to their true effect on his parole eligibility date. Id. at 435. There are significant differences between this case and Howell . In Howell , the plea agreement was the direct result of inaccurate information that resulted in Mr. Howell agreeing to a longer prison term. In contrast, Mr. Jaco was not advised nor did he agree to a longer prison term on the mistaken belief that a longer term would result in an earlier release eligibility date. Indeed, had Mr. Jaco refused the plea agreement, he could have been tried on charges of rape, and if convicted, sentenced to a much lengthier sentence. See Tenn.Code. Ann. § 39-13-503(b) (classifying rape as a Class B felony) (2003); § 40-35-112(a)(2) (2003) (providing that a Range I sentence for each Class B felony is not less than eight months nor more than twelve years.) Unlike the defendant in Howell , Mr. Jaco was not misinformed about his parole eligibility date. He will in fact become parole eligible after serving thirty percent of his sentence although he may not actually be released. His release eligibility date is simply the point at which he will be considered for parole under the applicable standards. The release eligibility date provided for in this section is the earliest date an inmate convicted of a felony is eligible for parole.... Tenn.Code Ann. § 40-35-501(k) (2003). After an inmate becomes parole eligible, release is not guaranteed. Release on parole is a privilege, not a right.... Tenn.Code Ann. § 40-35-503(b) (2003). The Criminal Sentencing Reform Act includes the following criteria for denying release to a parole eligible inmate: 1) if there is substantial risk that the defendant will not conform to the conditions of the release programs; 2) if the release at that time would depreciate the seriousness of the crime or promote disrespect of the law; 3) if the release would have a substantially adverse effect on institutional discipline; or 4) if the inmate's continued correctional treatment, medical care, or vocational or other training in the institution will substantially enhance the inmate's capacity to lead a law-abiding life at a later release time. Id. For sex offenders, there is an additional prerequisite which must be satisfied before release on parole is appropriate—certification by a psychiatrist or licensed psychologist who has examined and evaluated the inmate that, to a reasonable medical certainty, the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. Tenn.Code Ann. § 40-35-503(c) (2003). In this case, the post-conviction trial court found that no sex offender has been released after serving only thirty percent of his sentence unless the mental health professional concluded that a future sex offense was physically impossible. Nonetheless, a Range I standard offender convicted of a sex crime becomes parole eligible after serving thirty percent of the actual sentence imposed. Tenn.Code Ann. § 40-35-501(c) (2003). The required evaluation affects the likelihood of actual release, but it does not affect the release eligibility date. Thus, unlike the defendant in Howell , Mr. Jaco received accurate information regarding his release eligibility date prior to entering his plea. As grounds for invalidating his plea, Mr. Jaco relies upon the following statement of the trial court: I frankly think that the service of a twelve year sentence would be more than this offense deserves. At the same time I know that it is highly unusual unless he engages in future misconduct that he would ever serve anything near twelve years. As a standard range one offender he would not have to serve more than thirty percent of the twelve year sentence of 3.6 years ... I suspect that weighed heavily on the mind of the attorney general and his staff in reaching the decision to settle this case as it was settled. In our view, this statement provides no basis for invalidating the plea. Mr. Jaco apparently fails to recognize that the trial court made this statement after the guilty plea had been entered. Therefore, this statement could not have influenced Mr. Jaco's decision to plead guilty and did not vitiate the knowing and voluntary nature of his plea. Finally, were we to adopt Mr. Jaco's argument that a guilty plea of a sex offender will be constitutionally deficient unless the offender is informed of the mandatory psychological evaluation and certification that is required before release on parole is appropriate, then guilty pleas to other felony offenses are arguably invalid as well unless the offender is advised of all the criteria that will affect the offender's release on parole. We decline to adopt such a rule.",analysis
+170,884874,1,1,"¶ 6 The Windemere Homeowners Association brought this declaratory judgment action seeking enforcement of a 1997 amendment to restrictive covenants on the Appellants' parcels of property near Big Flat Road in Missoula County. For purposes of reciprocal summary judgment motions, the parties stipulated to a written set of agreed facts. ¶ 7 The parties stipulated that all parties to this lawsuit own or have owned, during times pertinent to this action, residential real estate in Missoula County, Montana, and described on Certificate of Survey (COS) 1131. On February 17, 1984, a Declaration of Restrictive Covenants was recorded with the Missoula County Clerk and Recorder affecting lots 1 through 7 and 9 through 15 of COS 1131. Between 1984 and 1991, several transfers of development rights and amendments to the covenants were recorded, the validity of which was not questioned and which are not relevant to our analysis in this case. ¶ 8 On March 1, 1994, another Amendment to Declaration of Restrictive Covenants was recorded with the Missoula County Clerk and Recorder. Holders of over 65 percent of the acreage within lots 1 through 7 and 9 through 15 approved the changes, and thus validly modified the covenants. The 1994 Amendment bifurcated the effect and enforcement of the covenants so that the real property lying west of Big Flat Road in tracts 1 through 5 was separated from the tracts lying east of the road in tracts 6, 7, and 9 through 15. ¶ 9 On March 20, 1997, another Amendment to Declaration of Restrictive Covenants was recorded with the Missoula County Clerk and Recorder. This Amendment was approved by 74 percent of the owners of lots 6, 7, and 9 through 15 of COS 1131, and purports to modify the covenants and restrictions applicable to those lots. The 1997 Amendment created the Windemere Homeowners Association, Inc., and made the Association responsible for necessary maintenance, repair, reconstruction, and snow removal on Windemere Drive. The 1997 Amendment further granted the Association authority to reimburse the parties who had paid for the paving of Windemere Drive in 1996 and to assess tract owners for the costs of such reimbursement. The Association's unsuccessful attempts to collect on its resulting assessments for the paving of Windemere Drive culminated in this action.",facts
+171,889028,1,1,"¶ 3 Shortly after 9 p.m. on April 14, 2007, Tyler Tobel was driving west on Highway 12 from Townsend, Montana, to East Helena, Montana, with Shari-Rochael Kelly riding as a passenger. Near the Silos Bar, a maroon Dodge Dakota truck pulled out in front of them, causing them to slow down. As Kelly and Tobel followed the truck toward East Helena, they observed the driver repeatedly swerve across both the yellow center line and the white fog line of the highway. Kelly also observed the driver speeding up and slowing down and flashing his truck's lights from dim to bright and back again. ¶ 4 Kelly called 911 to report a suspected drunk driver as she and Tobel followed the Dodge Dakota toward East Helena. She gave the 911 dispatcher her full name and her cell phone number and described the silver Nissan vehicle in which she was riding. She also described the truck as a maroon 4-door Dodge Ram, which description she later corrected to Dodge Dakota, with a grille guard on the front. She reported that the truck's license plate number began with a 5 and ended with 48, but she was not able to provide the dispatcher with the entire license plate number because a trailer hitch hid the middle numbers on the plate. About three minutes into the phone call, she told the dispatcher that the driver of the truck had slowed his vehicle considerably, pulled off to the side of the road, and continued to drive on the side of the road. Tobel and Kelly passed the vehicle, but continued to observe it, and Kelly stayed on the line with the 911 dispatcher as they traveled into East Helena. ¶ 5 The dispatcher contacted East Helena police officer Brian Morgan and informed him that a possible drunk driver was traveling west toward East Helena in a maroon Dodge Dakota. Officer Morgan positioned his patrol vehicle just off the highway on the east side of East Helena. Soon afterward, he observed Tobel's and Kelly's silver Nissan entering East Helena, followed by a maroon Dodge Dakota. At the same time, the dispatcher, still on the telephone with Kelly, informed Morgan that Kelly had spotted his patrol vehicle. Morgan pulled in behind the Dodge Dakota, and Kelly confirmed to the dispatcher that Morgan was following the correct vehicle. ¶ 6 Morgan followed the Dodge Dakota for three to four blocks before stopping it. Morgan told Rutherford, the driver and sole occupant of the truck, that he had stopped him because the truck's rear license plate was obstructed and because of a citizen's complaint. Morgan noticed a strong odor of alcohol on Rutherford. Rutherford's speech was slurred, he had difficulty answering Morgan's questions, and he fumbled with his wallet when retrieving his driver's license. Based on his observations, Morgan arrested Rutherford. ¶ 7 The State of Montana filed an Information charging Rutherford with DUI (4th or subsequent offense), driving without liability insurance, operating a motor vehicle without a valid driver's license, criminal possession of dangerous drugs (marijuana), and criminal possession of drug paraphernalia. Rutherford filed a combined motion to suppress and dismiss, on grounds that Morgan did not have the requisite particularized suspicion to make an investigative stop. The District Court held a hearing on that motion, at which Morgan, Rutherford, and Kelly testified and the State introduced an audio tape of Kelly's 911 call into evidence. After listening to the tape and reviewing the parties' briefs, the District Court denied Rutherford's motion. ¶ 8 Rutherford later agreed to plead guilty to DUI, driving without liability insurance, and operating a motor vehicle without a valid driver's license, and the State agreed to dismiss the other two charges it had filed against him. Rutherford reserved the right to appeal the court's denial of his motion to dismiss and suppress evidence, and the parties agreed his sentence would be stayed pending appeal, subject to conditions. The District Court accepted the plea agreement, sentenced Rutherford, and entered judgment accordingly.",facts
+172,1926775,2,1,"The analysis we use to determine if the evidence was sufficient to sustain the conviction for first degree murder is, whether after viewing all the evidence in the light most favorable to the Commonwealth, as verdict winner, the evidence is sufficient to enable the trier of fact to find every element of the crime of first-degree murder beyond a reasonable doubt. Id. To find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven that defendant unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner. It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first-degree murder from all other criminal homicide. Id. Specific intent to kill may be inferred from the defendant's use of a deadly weapon upon a vital party of the victim's body. Id. With this standard in mind, we have reviewed the evidence and have found it sufficient to support the jury's verdict. As stated above, two eyewitnesses (Cheryl Varano and Rivera) had a clear view of the shooting. Both positively identified Trivigno as the man they saw follow Varano and shoot him in the head after Varano fled to his car. Both of these witnesses also saw Trivigno fire at Cheryl Varano; and, other witnesses placed what the jury could undoubtedly conclude was Trivigno's car at the scene of the crime. These facts establish that Trivigno shot and killed Varano and that he did so in a deliberate and intentional manner. Consequently, there was sufficient evidence to support the verdict of first-degree murder. We now turn to the specific issues that Trivigno has raised.",sufficiency of the evidence
+173,4542670,1,4,"We find no error in Archie’s conviction and sentence, and we do not consider his ineffective assistance of counsel claim. Therefore, we affirm. Affirmed.",conclusion
+174,2639163,1,4,"Jones also alleges the court abused its discretion in denying his motion to set aside the default judgment under K.S.A. 60-260(b). It states in relevant part: On motion and upon such terms as are just, the court may relieve a party or said party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. In interpreting this statute, we have stated that the trial court may grant a motion to set aside a default judgment when it finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and, (3) that the default was not the result of inexcusable neglect or a willful act. Montez v. Tonkawa Village Apartments, 215 Kan. 59, 64, 523 P.2d 351 (1974). When, as here, the trial court denies the motion, our appellate review is for its abuse of discretion, and the movant has the burden of proving relief grounds by clear and convincing evidence. In re Marriage of Zodrow, 240 Kan. 65, 68, 727 P.2d 435 (1986). Discretion is abused only where no reasonable person would take the trial court's view. Zodrow, 240 Kan. at 68. Additionally, an appellant's failure to show all three Montez elements would doom his appeal. See Jenkins v. Arnold, 223 Kan. 298, 301, 573 P.2d 1013 (1978). Jones does not appear to directly dispute the trial court's determination that valid service of process was obtained on him through service on his daughter, but rather seems to argue that he showed excusable conduct in failing to timely respond to the lawsuit. Toward that end, he alleges his case is analogous to the plight of the defendants in Montez and Mid Kansas Fed'l Savings & Loan Ass'n v. Burke, 233 Kan. 796, 666 P.2d 203 (1983). We disagree. In Montez, the resident manager for the defendant apartment complex was served with summons and a copy of a personal injury petition. According to his affidavit in support of setting aside the default judgment against the complex, he placed the papers on his desk and neither he nor any one else ever saw them again; he simply forgot about them. He failed to tell the complex's owners of the suit, and default judgment was taken. This court set aside the default judgment, holding that this was simple neglect, not inexcusable neglect or reckless indifference. 215 Kan. at 65. In Mid Kansas, defendant Carole Burke was successfully served by leaving a summons and a copy of the mortgage foreclosure petition with her husband at their residence. As with the apartment manager in Montez, he failed to inform her of the lawsuit, and default judgment was taken against her. After she became aware of the suit via receipt of a writ of assistance following the sheriff's sale, she filed a motion under K.S.A. 60-260(b). At the hearing her testimony established that her husband had a drinking problem. This court held that entrusting her husband with family financial affairs, absent any indication that she should have known that he was not making mortgage payments when due, could not be characterized as reckless or inexcusable. 233 Kan. at 799. We affirmed the trial court's vacation of the default judgment. By contrast, the case at hand reveals that three different people at three different times at two different locations received notice of the lawsuit, either through receipt of the summons and amended petition or the notice of default. Moreover, a fourth notice was apparently accepted at a third location by yet another person. Yet, allegedly none of these recipients notified Jones. Furthermore, unlike the defendants in Mid Kansas and Montez who met their burden for relief by providing evidence of simple neglect, our defendant fails to provide evidence as to what happened on these numerous occasions that prevented his notice of the suit. He provides no affidavit as to what happened at his medical clinics in Georgia and Illinois, no affidavit as to what happened with his wife at his home in Missouri, and the affidavit he provides from his daughter does not establish why she failed to notify him of the lawsuit. Moreover, while Jones' own affidavit establishes his presence in Alaska from August to November 2001, it does not solve the mystery of why he had not received notice of the multiple services of process that had been obtained at least 26 months earlier. We acknowledge that what constitutes excusable neglect must be determined on a case-by-case basis under the facts presented. Mid Kansas, 233 Kan. at 799. Under these facts, however, where notice is repeatedly accepted not only at a physician's home, but also at two of his medical offices that presumably are staffed with fellow responsible professionals, we cannot say that no reasonable person would take the position adopted by the trial court when it essentially concluded Jones was recklessly indifferent. Our affirmation of reckless indifference/inexcusable neglect eliminates the need to address the remaining elements identified in Montez : lack of prejudice to the nondefaulting party and a meritorious defense for the defaulting party. See Jenkins, 223 Kan. at 301 (Court upheld trial court's denial of motion to set aside default judgment because though the defendant demonstrated excusable neglect, he failed to establish a meritorious defense.). Affirmed.",issues
+175,4360915,1,1,"
+The PCC found the following facts. The Attorney Discipline Office (ADO) received two unrelated complaints regarding the respondent. The first complaint (hereinafter, the Haase matter) led to an investigation of the respondent’s representation of Deborah Fogg during and after her divorce from George Fogg. The divorce was finalized in 2009 and the final divorce agreement included, inter alia, the following: (1) Ms. Fogg would obtain possession of the marital property in Seabrook (the Fogg property); (2) she agreed that she owed Mr. Fogg $22,350; (3) she would convey a first mortgage to Mr. Fogg for that amount; and (4) the $22,350 was payable within eighteen months. Ms. Fogg planned to sell the property and use the proceeds to pay Mr. Fogg. At the time the divorce was finalized, Ms. Fogg also owed the respondent $12,000 in attorney’s fees and granted the respondent a second mortgage on the Fogg property in the amount of $12,000 to guarantee the payment. Both of these mortgages were recorded. Following the divorce, the respondent continued to provide assistance to Ms. Fogg by helping her to find a buyer or a developer to purchase the Fogg property. The respondent never billed Ms. Fogg for his efforts relating to the Fogg property, nor is there evidence that the respondent asked Ms. Fogg to execute a fee agreement for his services in this regard. The respondent testified that he had intended to put a future advances clause in the $12,000 mortgage instrument as security for future legal fees, but had forgotten to do so. After the divorce was finalized, the respondent contacted a friend and client, Dale Wood, to advise him of the settlement. The respondent persuaded Wood’s company, Pan American Fund, LLC, to accept an assignment of the second mortgage in exchange for a payment from Pan American Fund to the respondent. The respondent used information obtained through his representation of Ms. Fogg, including appraisals and other non-public information the respondent obtained during his representation, to negotiate the assignment of the second mortgage and, thus, to obtain his attorney’s fees prior to the sale of the Fogg property. Shortly thereafter, the respondent sought a $22,350 advance from Pan American Fund. He testified that he planned to use the money to purchase the mortgage issued to Mr. Fogg. He then planned to have Ms. Fogg execute a mortgage to the respondent in the amount of $22,350, and he intended to assign that second mortgage to Pan American Fund, so that Pan American Fund could be in the first position to foreclose on the property if Ms. Fogg was unable to sell it or otherwise failed to fulfill her obligations. The respondent’s file included a proposed assignment of the $22,350 mortgage from Ms. Fogg to the respondent. The third page of the document contained a signature that appeared to be Ms. Fogg’s, but was never dated, witnessed, or recorded and Ms. Fogg testified that she did not recall signing the document nor did she recall being apprised of the respondent’s plan to buy out her ex-husband’s mortgage. Pan American Fund advanced the respondent the full $22,350 to buy out the mortgage even though the respondent testified that it was never his intention to offer the full-face amount of the mortgage to Mr. Fogg. When asked what the parties intended with respect to any money earned by a discounted buy-out of Mr. Fogg, the respondent testified that he did not know. The respondent then offered to buy out Mr. Fogg for less than the full value of the mortgage. Mr. Fogg declined to accept the offer. 2 Thereafter, the respondent negotiated with Wood to turn the $22,350 into a personal loan, creating an obligation in that amount plus interest to Pan American Fund. The record reflects that when the respondent signed the promissory note, he identified the Fogg property as security for the loan of $22,350. Subsequently, Pan American Fund assigned to Irving Haase/Heirs, LLC both the $12,000 mortgage and the respondent’s $22,350 loan. Haase believed that those amounts were secured by mortgages filed against the Fogg property. In 2013, Haase contacted the respondent to have him initiate the process of collecting on the notes, which were past due. Unbeknownst to Haase or the respondent, Ms. Fogg had quitclaimed the deed to her property to Mr. Fogg to satisfy her debt to him. The respondent represented Haase/Heirs, LLC in foreclosure proceedings against the Fogg property which was now owned by Mr. Fogg. In November 2013, the respondent sent a letter to Mr. Fogg demanding payment of principal and interest in the amount of $47,891.13. Mr. Fogg notified the respondent that he contested the amount and requested documentation supporting the demand. The respondent did not provide documentation. Formal foreclosure proceedings were initiated in December 2013. Mr. Fogg retained an attorney who communicated with the respondent. A settlement agreement was ultimately reached that recognized that the only mortgage eligible for foreclosure was the second mortgage for $12,000 that the respondent had assigned to Pan American Fund.
+The second unrelated complaint against the respondent was received by the ADO in October 2014 from an attorney at a law firm in Florida who filed on behalf of HPC U.S. Fund 1, L.P. and HPC U.S. Fund 2, L.P. and its authorized representative, Mr. Brinke. This matter involves the respondent’s representation of Blackport Investment Group, LLC, which was created and retained by HPC U.S. Fund 1, L.P. and HPC U.S. Fund 2, L.P. The HPC entities are holding companies of German-based investment vehicles that hold real estate interests throughout the United States. Blackport managed these interests for HPC. Wood was Blackport’s asset manager representative. The respondent previously represented Wood individually and has represented companies, including Blackport, of which Wood was an owner, member, or manager. Wood and the respondent had a lengthy personal and professional relationship. HPC initiated proceedings in the United States District Court for the Southern District of Florida concerning Wood’s mismanagement of HPC’s 3 funds, and alleged that Wood had misappropriated approximately $10,000,000. The federal court issued a temporary restraining order followed by a preliminary injunction, entered on September 4, 2013, against a number of defendants, including Wood. The preliminary injunction prohibited Wood or “any and all persons acting under Defendant’s direction or control” from taking any action with respect to any property interests held by HPC. The prohibition included transferring or secreting any property interests or liquid assets they held as a result of the transfer, sale, or conveyance of HPC’s property interests. During this time frame, the respondent began to represent Blackport in the sale of property in Idaho, which was largely owned by HPC. The respondent contacted North Idaho Title, the company that was handling the purchase and sale of the Idaho property, and conducted some preliminary work on behalf of Blackport. Wood was one of the respondent’s contacts for Blackport. However, as the parties moved towards a possible closing date, Wood informed the respondent via e-mail about the injunction issued by the federal court, which prohibited Wood from having any involvement in the conveyance of any property interests of HPC. In fact, Wood explicitly informed the respondent that, because of the injunction, Wood was not authorized to sign on behalf of Blackport for the sale of the property. Thereafter, the closing was dependent on determining who was authorized to sign on behalf of the seller. Despite his knowledge of the injunction, the respondent informed North Idaho Title that Wood could sign on behalf of Blackport, and the transaction closed in November 2013. The respondent testified that he advised North Idaho Title that Wood had authority because Wood had told him that Wood’s lawyer advised Wood to sign on behalf of Blackport, to protect the minority owner’s interest in the property. Following the sale of the property, the proceeds were deposited in the respondent’s escrow account. The respondent did not notify HPC or its counsel that he was holding funds governed by the preliminary injunction. Instead, the respondent disbursed those funds at the direction of Wood, including the payment of the respondent’s attorney’s fees. Approximately two weeks after the disbursement, $51,970 was returned to the respondent’s trust account and disbursed to a different entity under the direction of Wood. Wood authorized the respondent to keep an additional $3,000 in attorney’s fees. In January 2014, HPC, through their attorneys, discovered that the property in Idaho had been conveyed without their knowledge. HPC initiated contempt proceedings in federal court against Wood. The proceedings were ultimately broadened to include a third-party contemnor claim against the respondent, who received notice and appeared before the court on one occasion. The matter was continued, and the respondent did not subsequently appear at any further proceedings. 4 The federal court found that the respondent had violated the preliminary injunction. In a September 2014 order, the magistrate found that Wood and the respondent “were aware of the injunction and had the ability to comply with it, but chose not to do so.” After the federal court adopted the magistrate’s report, HPC filed a motion for judgment and an award of attorney’s fees. The respondent filed an objection. In June 2015, the court ordered that Wood and the respondent were jointly and severally liable to HPC for $301,874.70 in contempt damages, $135,739.50 in attorney’s fees, and $4,672.70 in costs. After receiving these two complaints ― regarding the Haase and Florida matters ― the ADO requested that the chair of the hearing committee appoint a hearing panel. See Sup. Ct. R. 37A(III)(b)(4). Following a hearing, the panel found that the respondent violated numerous rules of the New Hampshire Rules of Professional Conduct in both matters. The PCC agreed with the hearing panel and recommended that the respondent be disbarred.",facts
+176,1651918,1,1,"¶ 1. This is David H. Massey's third petition for reinstatement to the practice of law. See In Re Petition of David H. Massey for Reinstatement to the Practice of Law, 633 So.2d 452 (Miss.1994) (hereinafter Massey I); In Re Petition of David H. Massey for Reinstatement to the Practice of Law, 670 So.2d 843 (Miss.1996) (hereinafter Massey II ). Massey was disbarred in 1990, following his felony conviction for conspiracy to distribute 2,400 methylenedioxymethamphetamine, or ecstasy, pills and 10 grams of cocaine. ¶ 2. This Court finds that Massey can never demonstrate the requisite moral character to practice law in Mississippi. Therefore, Massey's petition for reinstatement to the practice of law is denied.",introduction
+177,3178500,1,2,"
+The Breach of Contract Claim The plaintiff alleges that, despite the fact that the December 17, 2009 contract which formed the basis of her complaint was not entered as an exhibit at trial, the trial justice erred in determining there was no contract because both parties testified regarding the contract. She adds that testimony reflected the fact that Mr. Main made at least some payments in accordance with the terms of the purported December 17, 2009 contract. We begin by noting that plaintiff bore the burden of proving her breach of contract claim by a fair preponderance of the evidence. Campbell v. Walsh-Kaiser Co., 72 R.I. 358, 359-60, 51 A.2d 530, 531 (1947); see General Accident Insurance Co. of America v. American National Fireproofing, Inc., 716 A.2d 751, 757 (R.I. 1998); see also Gorman v. St. Raphael Academy, 853 A.2d 28, 37 (R.I. 2004). While we acknowledge that Mr. Main did testify that he made a lumpsum payment in December of 2009 and that he made larger payments after December 17, 2009, we nonetheless conclude, based on our review of the record, that the trial justice had competent evidence to support her finding that plaintiff failed to meet her burden of establishing the existence of a contract. See Wellington Condominium Association, 68 A.3d at 599. We have stated that a contract requires “competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.” Lamoureux v. Burrillville Racing Association, 91 R.I. 94, 98, 161 A.2d 213, 215 (1960) (internal quotation marks omitted). The plaintiff inexplicably failed to produce at trial a copy of the purported December 17, 2009 contract. Additionally, as plaintiff recognizes in her filing before this Court, defendant testified - 11 - at trial that he refused to sign the December 17, 2009 document. He also stated that he gave Ms. Turdo a lump-sum payment in December of 2009 because she had threatened to repossess the truck—not because such a payment was required under the terms of the purported new December 17, 2009 contract. Without a copy of the alleged contract containing defendant’s signature and in light of his testimony that he did not agree to its terms, we perceive no evidence in the record of a mutuality of agreement. Moreover, we must bear in mind that the trial justice found plaintiff’s testimony with respect to debts owed to her by Mr. Main and monies she had received from him to “lack[] all credibility.” As such, it is our opinion that the trial justice did not clearly err in making a factual determination that defendant did not execute a written agreement with plaintiff on December 17, 2009.3
+The Counterclaim for Conversion Ms. Turdo contends that the trial justice’s finding in defendant’s favor on his conversion counterclaim was in error because Mr. Main did not prove a possessory interest in the truck. She references the fact that the registration, title, and insurance on the truck remained in her name. An action for conversion requires a plaintiff to establish that he or she “was in possession of the personalty, or entitled to possession of the personalty, at the time of conversion.” Narragansett Electric Co. v. Carbone, 898 A.2d 87, 97 (R.I. 2006) (quoting Montecalvo v. Mandarelli, 682 A.2d 918, 928 (R.I. 1996)). The “gravamen of an action for conversion lies in 3 The plaintiff makes an additional argument that she should have been awarded damages under the June 5, 2009 contract. But plaintiff’s complaint is based solely on the December 17, 2009 document. Consequently, despite plaintiff’s contentions on appeal, there was no basis upon which the trial justice could award her damages on the June 5, 2009 contract. Moreover, it is also worth noting that the trial justice specifically found that Mr. Main was in compliance with the June 5, 2009 contract at the time the truck was repossessed. - 12 - the    taking [of the] personalty [of another party] without consent and exercising dominion over it inconsistent with the [other party’s] right to possession.” Fuscellaro v. Industrial National Co., 117 R.I. 558, 560, 368 A.2d 1227, 1230 (1977). The intentional exercise of dominion or control over another’s chattel must “so seriously interfere[] with the right of another to control it that [the individual exercising dominion or control over the chattel] may justly be required to pay the other the full value of the chattel.” Narragansett Electric Co., 898 A.2d at 97 (quoting Montecalvo, 682 A.2d at 928). The June 5, 2009 contract, by its terms, granted Mr. Main the “right to use” the truck, regardless of the fact that the title, insurance, and registration were still in Ms. Turdo’s name; the contract allowed him to possess and use the truck as long as he continued to make the required payments. Mr. Main testified that he was current on his payments for the truck at the time it was repossessed. Moreover, Victoria Bentley’s testimony confirmed that Mr. Main expressed his belief that he was current in his payments to Ms. Turdo when she attempted to repossess the truck in February of 2010. In accordance with the just-referenced testimony, the trial justice found as a fact that defendant was current on his debt in February of 2010. She also found that Mr. Main did have a possessory interest at the time the truck was repossessed, which possessory interest existed pursuant to the June 5, 2009 contract. Moreover, she came to the conclusion, based upon her findings as to credibility, that Mr. Main returned the truck to plaintiff due to the threat of having it reported as stolen and that, therefore, his return of the truck was not a voluntary act. The trial justice proceeded to hold that plaintiff was liable for conversion. Upon our review of the record and the trial justice’s decision, we are also of the opinion that plaintiff was liable for conversion when she took the truck in which defendant had a possessory interest without his consent and, by taking dominion over the truck, deprived him entirely of the use of - 13 - the truck. See Narragansett Electric Co., 898 A.2d at 97; Fuscellaro, 117 R.I. at 560, 368 A.2d at 1230. Our review has unearthed no error in the factual findings of the trial justice; and, in our judgment, those facts can lead to only one conclusion—that plaintiff converted the truck to her own use without legal entitlement. Ms. Turdo further contends that, even if defendant prevails on his conversion counterclaim, defendant should not receive any damages due to the fact that the value of the truck had already been deducted from what Mr. Main owed her. However, the purpose of the trial in this case was to make a determination as to the debts of the parties based on any contracts or agreements executed by the parties. The trial justice found plaintiff’s testimony regarding defendant’s debt not to be credible. The plaintiff has not presented us with any basis on which to question the trial justice’s credibility findings in this regard. See Wellington Condominium Association, 68 A.3d at 599. The plaintiff also posits that defendant is not entitled to damages because he did not meet his burden of producing any evidence as to the value of the truck at the time it was repossessed in February of 2010. We have stated that “the measure of damages for conversion is usually the value of the property at the time of its conversion, a matter susceptible of being proved by evidence of market value.” Jeffrey v. American Screw Co., 98 R.I. 286, 291, 201 A.2d 146, 150 (1964). The trial justice in the instant case based her award on the market value of the truck in September of 2010 when the truck was sold. Even though the trial justice based her damages award on the market value of the truck at a point in time after the conversion had taken place, she relied on our established method of calculating damages for a conversion using the market value of the chattel and, based on the evidence in this particular case, we cannot say that there was reversible error in the trial justice’s damages determination. - 14 - We would also note that, on appeal, plaintiff’s argument seems to be little more than an attempt to re-litigate this case. Her filings before this Court address only her disagreement with the factual findings of the trial justice. However, it is not our role to make new factual findings. Our role is confined to determining whether the trial justice committed clear error in her factual findings or misconceived or overlooked material evidence. See Wellington Condominium Association, 68 A.3d at 599. We are entirely unable to say that the trial justice in the instant case committed any such error. Accordingly, we affirm the trial justice’s judgment in the instant case.
+The Rule 60(b) Motion The plaintiff next avers that, at the hearing on her post-trial Rule 60(b)(3) & (6) motion, she demonstrated that Mr. Main “outright lied” at the trial and that she should have been granted “relief for manifest injustice.” Specifically, plaintiff contends that she demonstrated the following: (1) that Mr. Main stated at trial that he never agreed to the terms of the purported December 17, 2009 contract whereas a police report from the Hopkinton Police reflected the fact that defendant “went to the police with the December 17, 2009 agreement in hand and told the police he had typed up the agreement;” (2) that Mr. Main lied about the date on which he went to the police; (3) that Mr. Main returned the truck not because of threats by Ms. Turdo but, rather, due to the fact that the police advised him to return it; and (4) that Mr. Main had been convicted of committing four domestic offenses against Ms. Turdo, for which he received jail time and probation. Rule 60(b)(3) provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for    [f]raud, misrepresentation, or other misconduct of an adverse party   .” Rule - 15 - 60(b)(6) allows for relief from a final judgment for “[a]ny other reason justifying relief from the operation of the judgment.” It is our well-settled precedent that “[a] motion to vacate a judgment is left to the sound discretion of the trial justice and such a ruling will not be disturbed absent an abuse of discretion.” Berman v. Sitrin, 101 A.3d 1251, 1260 (R.I. 2014) (quoting Malinou v. Seattle Savings Bank, 970 A.2d 6, 10 (R.I. 2009)). Moreover, our “review is limited to an examination of the decision to determine the correctness of the order granting or denying the motion, not the correctness of the original judgment.” Id. (internal quotation marks omitted). The trial justice in the instant case found no misrepresentations or misconduct on the part of the defendant that would allow for relief pursuant to Rule 60(b)(3). She further held that the plaintiff was not entitled to relief under Rule 60(b)(6) because that rule typically applies only in extraordinary circumstances and none were present in this case. See Allen ex rel. Allen v. South County Hospital, 945 A.2d 289, 297 (R.I. 2008) (“Rule 60(b)(6) was not intended to constitute a catchall and    circumstances must be extraordinary to justify relief.”) (internal quotation marks omitted). It was the opinion of the trial justice that the plaintiff was simply looking for a “do-over.” After our thorough review of the record in this case, we likewise are of the opinion that, in her Rule 60(b) motion and on appeal, the plaintiff appears to be seeking a “do-over” in view of the fact that she received an unfavorable result at trial. The misconduct or “lie[s]” which Ms. Turdo claims she demonstrated at the hearing on her Rule 60(b) motion did not sway the trial justice, and we cannot perceive any error in the trial justice’s application of Rule 60(b) to the instant case. Therefore, we uphold the trial justice’s dismissal of the plaintiff’s Rule 60(b) motion. - 16 - V",analysis
+178,4515760,1,1,"On the afternoon of September 25, 2018, Heidi Cuca was fueling her Lexus at a convenience store in Lincoln, Nebraska. While standing outside the Lexus, Cuca observed two young females had entered her vehicle and were seated inside—one in the driver’s seat and the other in the backseat. The female in the driver’s seat was later determined to be Zoie. It appeared to Cuca that Zoie was trying to start the Lexus, but was having trouble getting the engine to turn over. Cuca heard the female in the back seat shout, “‘Zoie let’s go.’” So - 870 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 Cuca attempted to retrieve the Lexus keys from inside the vehicle and throw them. An altercation ensued, during which Zoie shouted, “‘Don’t, let me go. I’m going to take it.’” The convenience store manager heard Cuca yelling for help and called the 911 emergency dispatch service. Zoie escaped before police arrived, but someone was able to grab Zoie’s arm and hold her long enough for Cuca to take a photograph. Cuca provided the photograph to police, who eventually located Zoie and contacted her at school a few days later. Sgt. Mike Ripley, an officer with the Lincoln Police Department, met with Zoie and her father to conduct a followup investigation. Zoie waived her Miranda rights and agreed to an interview. Zoie admitted she made plans to steal the Lexus, explaining she “‘just felt like taking the car.’” Zoie described how she and a friend entered the Lexus from the passenger side while Cuca was fueling up on the other side. Zoie also described the altercation that ensued and how she eventually escaped. 1. Juvenile Court Proceedings On October 16, 2018, the State filed an amended supplemental petition in the separate juvenile court of Lancaster County. It alleged that on or about September 25, 2018, Zoie intentionally engaged in conduct which, under the circumstances as she believed them to be, constituted a substantial step in a course of conduct intended to culminate in her commission of the crime of theft by unlawful taking in the amount of $5,000 or more. Attempted theft by unlawful taking is a Class IIIA felony when the value of the thing involved is $5,000 or more.1 Zoie filed a motion to quash the amended supplemental petition. Alternatively, she filed a demand for jury trial. Both requests were premised on the enactment of Neb. Rev. Stat. 1 See Neb. Rev. Stat. §§ 28-20l(4)(c), 28-511, and 28-518(1) (Reissue 2016). - 871 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 § 28-1204.05 (Cum. Supp. 2018), which went into effect on July 19, 2018, and provides in pertinent part: (1) . . . [A] person under the age of twenty-five years who knowingly possesses a firearm commits the offense of possession of a firearm by a prohibited juvenile offender if he or she has previously been adjudicated an offender in juvenile court for an act which would constitute a felony or an act which would constitute a misdemeanor crime of domestic violence. (2) Possession of a firearm by a prohibited juvenile offender is a Class IV felony for a first offense and a Class IIIA felony for a second or subsequent offense. Other portions of the statute exempt members of the armed forces and law enforcement2 and establish a procedure for those under 25 years of age to request reinstatement of the right to possess a firearm.3 Zoie was not charged with violating § 28-1204.05, but her motion to quash alleged that adjudication for theft by unlawful taking over $5,000 “would subject [her] to criminal prosecution under an unconstitutional statute, Neb. Rev. Stat. § 28-1204.05 (Cum. Supp. 2018).” Zoie’s demand for a jury trial was also premised on the enactment of § 28-1204.05. Generally speaking, she argued that the statute’s restriction on firearm possession amounted to a penalty for being adjudicated and thereby rendered the adjudication proceedings a “serious criminal case” entitling her to a jury trial pursuant to Duncan v. Louisiana 4 and State v. Wiltshire.5 After holding a hearing, the juvenile court overruled the motion to quash, finding there was no defect on the face of 2 See § 28-1204.05(3). 3 See § 28-1204.05(4). 4 Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). 5 State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992), overruled on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). - 872 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 the amended supplemental petition. The juvenile court denied the demand for jury trial, reasoning that Neb. Rev. Stat. § 43-279(1) (Reissue 2016) requires the adjudication portion of juvenile court proceedings “shall be conducted before the court without a jury, applying the customary rules of evidence in use in trials without a jury.” The matter proceeded to an adjudication hearing on the amended supplemental petition. 2. Adjudication Hearing At the adjudication hearing, the State called three witnesses: Cuca, the convenience store manager, and Sergeant Ripley. Cuca described the events of September 25, 2018, as set out above, and identified Zoie as the female who attempted to steal the Lexus. The manager largely confirmed Cuca’s testimony, and she too identified Zoie as the female who attempted to steal the Lexus. Sergeant Ripley testified about his interview with Zoie, including that she received Miranda warnings prior to the interview. Both Cuca and Sergeant Ripley offered testimony about the value of the Lexus. Cuca testified that she purchased the 2012 Lexus RX350 3 years earlier for around $21,000 and that it currently had 60,000 miles on it. When Cuca was asked her opinion on the value of the Lexus, Zoie objected to the question as speculative. The objection was overruled, and Cuca answered that according to Kelley Blue Book, the value of her Lexus with 60,000 miles “is around $21,000 list price.” There was no motion to strike Cuca’s response and no cross-­ examination on Cuca’s valuation testimony. Sergeant Ripley also relied on Kelley Blue Book for his valuation testimony. He estimated the “average trade in value” of the Lexus was $15,529. He did not contact Cuca to get information on the vehicle’s mileage, condition, or accessories. Instead, he used the value for a “base model” Lexus in “good” condition with 75,000 miles. When asked on cross-examination what the value of the Lexus would be if its condition had been “poor,” Sergeant Ripley estimated it would still be between $10,000 and $12,000. He testified it was unlikely a 2012 - 873 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE INTEREST OF ZOIE H. Cite as 304 Neb. 868 Lexus in working condition would be worth less than $5,000. He based his opinion on his experience investigating car thefts and his research into the value of Cuca’s Lexus. There was no objection to Sergeant Ripley’s valuation testimony or to the admission of the Kelley Blue Book printout showing that valuation. Zoie rested without presenting any evidence. In a journal entry and order filed October 23, 2018, the juvenile court adjudicated Zoie on the allegations of the amended supplemental petition, finding the State proved beyond a reasonable doubt that Zoie was a juvenile as described in § 43-247(2). Zoie timely appealed and filed a petition to bypass that included a notice of constitutional question under Neb. Ct. R. App. § 2-109(E) (rev. 2014). We granted the petition to bypass.",facts
+179,2371909,1,1,"[¶ 3] Mr. Crosby was arrested in Converse County, Wyoming on December 6, 2007, for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b)(ii) (LexisNexis 2009). He was incarcerated in the Converse County Detention Center. On December 11, 2007, he was found guilty in circuit court of driving under the influence, his third offense. The circuit court sentenced him to 365 days in jail with 270 days suspended and 5 days credit for time served from his arrest until sentencing, leaving a balance of 90 days to be served. [¶ 4] Mr. Crosby served two more days in the detention center and was then transferred to a correctional facility in Campbell County to serve the 88 days remaining on his sentence. Prior to the expiration of the 88 days, Mr. Crosby allegedly left the facility for his work site, reported to his employer and then left the work site without permission. He was charged with escape in violation of Wyo. Stat. Ann. § 6-5-206(a)(ii)(A) (LexisNexis 2009). On March 4, 2010, he was apprehended and brought to the Campbell County detention center. [¶ 5] On April 30, 2010, the circuit court in Converse County, which had imposed the DUI sentence, filed an Order Nunc Pro Tunc reducing Mr. Crosby's sentence of 365 days to 180 days with 90 days suspended. Subsequently, Mr. Crosby filed a motion to dismiss the escape charge in Campbell County asserting it could not stem from an illegal sentence. The State responded, contending the original sentence remained in force because it had not been appealed and could not be challenged in a collateral proceeding. The State argued further that the circuit court properly corrected the sentence and the 90 days Mr. Crosby was ordered to serve was within the maximum sentence authorized by the statute. The district court certified the questions set forth in paragraph 1 above to this Court.",facts
+180,3154554,1,1,[¶2] Appellant presents the following issues: 1. Did the trial court violate Mr. Nordwall’s constitutional right to a speedy trial? 2. Did the prosecution violate the 1994 plea agreement when it did not dismiss the charges in the present case?,issues
+181,4541050,1,2,"¶9 We review a summary judgment decision de novo, applying the same methodology as the circuit court but benefitting from the analyses of both courts below. Eichenseer v. Madison-Dane Cty. Tavern League, Inc., 2008 WI 38, ¶30, 308 Wis. 2d 684, 748 N.W.2d 154. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The parties agree on the material facts, but dispute questions of statutory interpretation and application. These are issues of law we review independently. Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶24, 339 Wis. 2d 125, 810 N.W.2d 465.",standard of review
+182,2342735,1,3,"[¶ 7] A sentence that does not include proper credit constitutes an illegal sentence. Whether a sentence is illegal is a question of law, which we review de novo.  Baker v. State, 2011 WY 53, ¶ 8, 248 P.3d 640, 642 (Wyo.2011). However, we will dispose of this appeal upon other grounds.",standard of review
+183,6334026,1,1,"After obtaining a workers’ compensation award granting medical rehabilitation services for his lumbar back, James R. Spratt sought modification to provide such services for his thoracic back. The compensation court refused—holding that it lacked statutory authority to do so and that even if the statute permitted modification, a principle of finality precluded that relief. Spratt appeals—relying now upon Neb. Rev. Stat. § 48-162.01(7) (Reissue 2021). Because the court erred in both respects, we reverse, and remand for further proceedings.",introduction
+184,2630128,1,1,"¶ 1 This case concerns an exchange of land held by the School and Institutional Trust Lands Administration (SITLA) for land owned by Garfield County. The SITLA Director formally approved the exchange, and his decision was challenged by the National Parks Conservation Association and William Wolverton (collectively, NPCA) before the SITLA Board of Trustees (the SITLA Board or the Board). The SITLA Board ruled against NPCA and upheld the Director's decision. NPCA appeals the Board's ruling. Because we conclude that the exchange was consistent with SITLA's obligations as trustee over school trust lands, we affirm the Board's decision.",introduction
+185,2758002,1,2,"Deng and DM allege that the circuit court erred in denying their motion for a JML or, in the alternative, a new trial because, they argue, (1) the fraud claim is preempted by federal patent law and, therefore, the circuit court did not have jurisdiction over that claim; (2) Scroggins and Complete Lighting changed the basis of their fraud claim during the course of the trial, which, Deng and DM argue, constituted trial by ambush; (3) the fraud claim was based on contradictory testimony by Scroggins; (4) Scroggins and Complete Lighting did not present evidence of several elements of a fraud claim; (5) the compensatory-damages award for the fraud claim was based on speculative evidence; (6) the punitive-damages award was not supported by clear and convincing evidence; and (7) the punitive-damages award was the result of prejudice, bias, passion, or other improper motive. Deng and DM also argue, in the alternative, that the punitive-damages award is excessive and that they are entitled to a remittitur of those damages. 12 1121415 Standards of Review When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12–21–12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). ... In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala. 1992). Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1152 (Ala. 2003). With regard to a motion for a new trial, this Court has stated: 'It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.' 13 1121415 Baptist Med. Ctr. Montclair v. Whitfield, 950 So. 2d 1121, 1126 (Ala. 2006) (quoting Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065–66 (Ala. 1991), quoting in turn Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989), quoting in turn Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala. 1986)). Furthermore, a jury verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of a motion for a new trial. In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party, and it will set aside the verdict only if it is plainly and palpably wrong. Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831 (Ala. 1999) (citations omitted).",issues
+186,2834403,1,2,"AIC contests the jurisdiction of the trial court, a county civil court at law in Harris County, to resolve what it characterizes as a title dispute. We consider this point first. AIC’s argument concerns the interplay between the amount-in-controversy limitations of the general jurisdictional grant to statutory county courts, [3] Tex. Gov’t Code § 25.0003, the exclusive jurisdictional grant to district courts for disputes involving title issues, Tex. Prop. Code § 21.002, and a more specific jurisdictional grant to statutory county courts in Harris County, Tex. Gov’t Code § 25.1032. Generally, the subject-matter jurisdiction of statutory county courts is limited to “cases in which the matter in controversy exceeds $500 but does not exceed $100,000.” Id. § 25.0003(c)(1). Without reference to amounts in controversy, the Texas Property Code requires a county court at law before which an eminent-domain proceeding is pending to transfer the case to the district court upon determining that the controversy involves “an issue of title.” Tex. Prop. Code § 21.002. Finally, section 25.1032 of the Government Code contains, in pertinent part, the following specific jurisdictional grant to Harris County civil courts at law: (a) A county civil court at law in Harris County has jurisdiction over all civil matters and causes, original and appellate, prescribed by law for county courts . . . (c) A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy. In addition to other jurisdiction provided by law, a county civil court at law has jurisdiction to: (1) decide the issue of title to real or personal property",jurisdiction
+187,1989235,1,3,"We conclude, therefore, that summary judgment in this matter was inappropriate. Accordingly, we reverse the judgment and remand the papers to the Superior Court for further proceedings consistent with this opinion.",conclusion
+188,2596037,1,1,"¶ 1 Defendant appeals the district court's order amending and increasing its initial order of restitution. This appeal requires us to consider: (1) whether a district court has jurisdiction to amend an order of restitution under rule 30(b) of the Utah Rules of Criminal Procedure where the State mistakenly provided the court with an incorrect figure of restitution at the sentencing hearing; and (2) assuming the court had jurisdiction, whether the amended order of restitution violates protections against double jeopardy or defendant's due process rights to presence and allocution. ¶ 2 We hold that in this case rule 30(b) applies, and the district court had jurisdiction to amend the order of restitution. We further hold that double jeopardy did not attach and that defendant's due process rights were not violated when the district court corrected a clerical error regarding the amount of restitution ordered. We therefore affirm the district court's amended order of restitution.",introduction
+189,1817972,1,3,"¶ 49. For the foregoing reasons, the judgment of dismissal entered by the Circuit Court of Kemper County is affirmed. ¶ 50. AFFIRMED. SMITH, C.J., WALLER AND COBB, P.JJ., GRAVES, DICKINSON AND RADOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.",conclusion
+190,1860261,1,2,"
+Both parties' issues are properly before the Court. However, because both a question of statutory construction and application, and a question of constitutionality are presented, the order in which the issues should be taken up by the Court must first be addressed. Molly Malone's argues that the constitutionality of the statute must be addressed first because to do otherwise requires application of a potentially unconstitutional statute. In support of this position, Molly Malone's cites D.F. v. Codell, 127 S.W.3d 571, 578 (Ky.2003), which held a statute to be unconstitutional and then declined to address other issues raised in the case because they were moot. Molly Malone's ignores that the other issues in Codell involved other constitutional challenges to the statutory scheme in question. More importantly, it ignores the longstanding practice of this Court ... to refrain from reaching constitutional issues when other, non-constitutional grounds can be relied upon. Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky.2006); see Dawson v. Birenbaum, 968 S.W.2d 663, 666 (Ky. 1998) (It is well settled that where a party pleads both statutory and constitutional claims, the court deciding those claims should limit itself to considering the statutory claims if in so doing the court may avoid deciding complex constitutional issues.); Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85, 88 (1950) (The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the cause under consideration.); see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157-58, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) (It is a fundamental rule of judicial restraint, however, that this Court will not reach constitutional questions in advance of the necessity of deciding them.); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.). This practice of avoiding constitutional questions is further buttressed in this Court's jurisprudence law by the presumption of constitutionality of statutes. Baker, 204 S.W.3d at 598. Therefore, despite Molly Malone's request, this Court cannot address the constitutionality of the statute without first determining whether the Court of Appeals was correct that it barred issuance of the license.
+The Court of Appeals was correct in upholding the ABC Board's reading of KRS 241.075(3) as requiring that the measurement be taken along a route that is both lawful and safe. This Court has recognized the deference afforded an administrative agency's construction of a statute that it is charged with implementing, so long as the agency interpretation is in the form of an adopted regulation or formal adjudication. Board of Trustees of Judicial Form Retirement System v. Attorney General of the Commonwealth, 132 S.W.3d 770, 786-87 (Ky.2003) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); see also Commonwealth, ex rel. Stumbo v. Kentucky Public Service Com'n, 243 S.W.3d 374, 380 (Ky.App.2007) ([W]e afford deference to an administrative agency's interpretation of the statutes and regulations it is charged with implementing.); Commonwealth ex rel. Beshear v. Kentucky Utilities Co., 648 S.W.2d 535, 537 (Ky.App.1982) (Great deference is always given to an administrative agency in the interpretation of a statute which is within its specific province.). The ABC Board's interpretation of KRS 241.075(3) came in the context of the formal adjudicatory process, namely an appeal to the Board. Moreover, the Board's interpretation is not arbitrary or capricious, as it was determined by applying a reasonableness analysis. The Court of Appeals was also correct that it was legal to cross Baxter Avenue where the local administrator did when he measured the distance to the nearest similar establishments. This determination depends in large part on the unique geography, as the Court of Appeals described it, where Molly Malone's is located. Specifically, it involves that portion of Baxter Avenue, which extends north and south, between its intersections with Highland Avenue (to the south) and Cherokee Road/Broadway (to the north). [2] There are no cross-streets on the east side of Baxter Avenue between Highland Avenue and Cherokee Road/Broadway. However, on the west side, as one moves north from Highland Avenue, three streets—Morton Avenue, Christy Avenue, and Breckenridge Street, respectively—intersect with and terminate at Baxter Avenue. There are no marked crosswalks or traffic control signals at the termination of any of these three roadways. Directly across from Christy Avenue is an alley that runs perpendicular to Baxter Avenue. Molly Malone's sits on the east side of Baxter Avenue, between the intersections with Morton Avenue and Christy Avenue. Wet Willy's and Outlook Inn are located on the west side of Baxter. Wet Willy's is south of the intersection with Morton Avenue; Outlook Inn is located north of the intersection with Christy Avenue. The nearest intersection with a four-way stop and marked crosswalks is where Highland Avenue crosses Baxter Avenue. The ABC Board held that it would be illegal for a pedestrian to cross Baxter Avenue at the intersections with Christy Avenue and Morton Avenue because of KRS 189.570(6)(c), which reads: Between adjacent intersections within the city limits of every city at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk. The Board read the statute as requiring all crossings within a city to take place at intersections with traffic control signals and marked crosswalks. This interpretation, however, ignores that the at which traffic control signals are in operation language modifies adjacent intersections, all of which creates the condition precedent for the command to cross only in a marked crosswalk that follows. Thus, the crosswalks-only requirement applies only between adjacent intersections with traffic control signals. The Court of Appeals therefore correctly noted that this statute was inapplicable to the current situation, because there are no traffic control signals at adjacent intersections (which means intersections that are next to each other on a roadway). The areas where Morton Avenue, Christy Avenue, and Breckenridge Street terminate at Baxter Avenue are intersections as contemplated by Kentucky's traffic regulations. See KRS 189.010(4)(a) (`Intersection' means ... [t]he area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two (2) highways which join one another, but do not necessarily continue, at approximately right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come into conflict....). The intersections at Highland Avenue and Morton Avenue are adjacent; the intersections at Highland Avenue and Christy Avenue are not adjacent, since the intersection at Morton Avenue lies between them. Because there are no traffic control signals in the intersections at Morton Avenue, Christy Avenue, or Breckenridge Street, KRS 189.010(4)(a) does not bar crossing Baxter Avenue outside of a marked crosswalk in the area in question. In fact, it appears that there is no absolute legal bar to crossing Baxter Avenue at any place in the area in question, even outside unmarked crosswalks. [3] Instead, KRS 189.570, which regulates pedestrians, appears only to delegate duties to yield rights-of-way and to prohibit certain specific dangerous actions by pedestrians. For example, KRS 189.570(4) assumes pedestrians will cross roadways [w]hen traffic control signals are not in place or in operation and requires that drivers yield the right of way to pedestrians already crossing the roadway. KRS 189.570(6)(a) assumes that pedestrians may cross at places other than a crosswalk, requiring only that [ejvery pedestrian crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. KRS 189.570(9) places a further limit, but no prohibition, on crossing outside a crosswalk: No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard. Absent the limited circumstances of adjacent intersections with traffic control signals, it appears that crossing a roadway outside of a marked or unmarked crosswalk is not per se illegal. [4] Thus, the ABC Board was incorrect in reading KRS 189.570(6)(a) as making it illegal to cross Baxter Avenue at Morton Avenue and Christy Avenue. Furthermore, because the ABC Board is not charged with administering the traffic regulations, its interpretation of the statute is accorded no deference by the courts of this Commonwealth. This conclusion, however, does not end the enquiry. The ABC Board read KRS 241.075(3) to require that the path of measurement be both lawful and safe. While the question of the legality of the path is a pure question of law, which this Court has reviewed de novo, whether the path urged by Metro (and used by the local administrator) is safe is a finding of fact and is entitled to a greater deal of deference. KRS 13B. 150(2) requires that when reviewing an administrative agency's decision, [t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. In fact, the court may only reverse an agency's final order, in whole or in part, ... if it finds the agency's final order is: (a) In violation of constitutional or statutory provisions; (b) In excess of the statutory authority of the agency; (c) Without support of substantial evidence on the whole record; (d) Arbitrary, capricious, or characterized by abuse of discretion; (e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing; (f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or (g) Deficient as otherwise provided by law. KRS 13B.150(2). The judicial standard of review of an agency's decision therefore is largely deferential: The ... court's role as an appellate court is to review the administrative decision, not to reinterpret or to reconsider the merits of the claim, nor to substitute its judgment for that of the agency as to the weight of the evidence. 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 131 (Ky.App.2006) (citation footnote omitted). When it comes to an agency's findings of fact, [a]s long as there is substantial evidence in the record to support the agency's decision, the court must defer to the agency, even if there is conflicting evidence. Id. at 132. The Court of Appeals did not give such deference to the ABC Board's finding that crossing outside of the marked crosswalk at the intersection of Baxter Avenue and Highland Avenue was unsafe. The Court of Appeals' holding is based on the facts that such crossings are not illegal and that pedestrians who cross outside a crosswalk are required to yield the right-of-way. That a crossing is legal and a pedestrian has a duty with regard to the right-of-way, however, does not make the crossing inherently safe. Nowhere does this analysis take into account the evidence presented to and reviewed by the ABC Board. In fact, the Court of Appeals simply failed to engage in proper judicial review of the ABC Board's finding, choosing instead to treat it like review of a question of law. But the ABC Board's finding that Metro's proposed crossing is unsafe is a finding of fact, and thus must be upheld as long as there is substantial evidence to support it. At the Board's hearing, William Schreck, the local ABC administrator, testified that he lived near the area of Baxter Avenue in question and was personally familiar with it. He also agreed that Baxter Avenue is a very heavily traveled thoroughfare. Charles Weather, the ABC investigator, also testified that Baxter Avenue was a heavily traveled thoroughfare. Evidence also indicated that the closest marked crosswalk with traffic control signals was at the intersection of Highland Avenue and Baxter Avenue. The Board concluded in part that this heavy traffic made it unsafe to cross Baxter Avenue outside the marked crosswalk at Highland Avenue. The testimony of the local ABC administrator and investigator alone is sufficient to support the ABC Board's finding. Thus, this Court must conclude that it was supported by substantial evidence. Since the Board's decision was premised on requiring that the measurement be taken along a route that is both lawful and safe, this finding that Metro's proposed route was unsafe was alone enough to justify its decision not to accept Metro's measurement and instead to adopt the route proposed by Molly Malone's. Moreover, since the ABC Board is charged with implementing KRS 241.075 and its interpretations of the statute, unless clearly contradicted by the language of the statute itself, are accorded deference by the courts, it is unclear that even a lack of substantial evidence of the unsafe nature of crossing Baxter Avenue would require reversal of its decision. The Board concluded, The only safe and reasonable means of crossing Baxter Ave[nue] is by the use of marked crosswalks at the Highland Ave[nue] intersection where traffic signals are in place.... [T]he Board's distance measurement based upon the use of marked crosswalks is proper, irrespective of legal pedestrian laws. Though this passage is not explicit, it clearly implies that the Board reads the ordinary pedestrian language of KRS 241.075(3) to mean a reasonable pedestrian. In determining what a reasonable pedestrian would do in this situation, the Board required the measurement to include a marked crosswalk, even if a pedestrian would not be legally obligated to use the crosswalk. That the Board incorrectly interpreted KRS 189.570(6) to conclude that the proposed pedestrian crossings were illegal does not undermine this final conclusion, since it reached its decision irrespective of the legal pedestrian laws. Though such an interpretation likely means the Board will grant more licenses, this Court cannot say that the Board's conclusion in this regard was arbitrary or capricious, or outside its legal authority under KRS 241.075. Such policy decisions are a fundamental part of an administrative agency's regulatory powers as delegated to them by the legislature. Thus, this Court concludes that the Board did not abuse its discretion, and its decision must be upheld.",analysis
+191,2631069,1,1,"¶ 1 Enrique Martinez petitioned the Utah Labor Commission (the Commission) for an award of permanent total disability compensation against his former employer, Media-Paymaster Plus (Media). After an administrative law judge (the ALJ) denied his claim and the Commission confirmed the decision, Martinez sought a writ of review from the Utah Court of Appeals. The court of appeals reversed the Commission's order and remanded the matter to the Commission to award Martinez benefits. We granted certiorari to determine (1) whether the court of appeals applied the correct standard of review, and (2) whether the employee or the employer bears the burden of proof when an employee seeks compensation under Utah Code section 34A-2-413(1)(c). ¶ 2 Regarding the first issue, the court of appeals reviewed under an abuse of discretion standard the Commission's determination that Martinez could perform the essential functions of his prior employment, as well as its determination that other work was reasonably available to him. Because we conclude that the court of appeals should have reviewed these determinations under a substantial evidence standard, we remand them to the court of appeals for consideration under the appropriate standard of review. With regard to the second issue, we conclude that an employee seeking an award of permanent total disability bears the burden of proving each of the four elements specified under section 34A-2-413(1)(c).",introduction
+192,6103555,1,1,"In this appeal from a district court judgment affirming a county court’s conviction and sentence for bigamy, Charlie R. Johnson challenges the sufficiency of the evidence - 529 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. JOHNSON Cite as 310 Neb. 527 establishing that he was a “married person.” 1 He asserts that his prior marriage was legally invalid. For that marriage, a Nebraska marriage license was obtained, but the solemnization occurred in Texas. Because we conclude that a voidable marriage will support a bigamy prosecution, we affirm the district court’s judgment.",introduction
+193,2307532,1,4,"Liberty next contends the evidence failed to support the court's findings concerning the volume of the petroleum releases, the total cost of remediation of the Tamarack site, the restitution percentages attributable to Liberty and Continental, and the calculation of the restitution award. The standard of review is well settled. We will not set aside a trial court's findings unless clearly erroneous, nor disturb its conclusions if they are reasonably supported by the findings. See Morgan v. Kroupa, 167 Vt. 99, 104, 702 A.2d 630, 633 (1997). Findings are viewed in the light most favorable to the judgment, disregarding modifying evidence, and will not be disturbed merely because they are contradicted by substantial evidence; rather, an appellant must show that there is no credible evidence to support the finding. See Bianchi v. Lorenz, 166 Vt. 555, 562, 701 A.2d 1037, 1041 (1997). Liberty contends the evidence failed to support the court's finding that the volume of the initial 1985 release of petroleum was 11,000 gallons. Continental's expert testified that the first release was massive, and using a variety of methodologies calculated that the volume ranged variously from seven to twenty-seven thousand gallons, in the tens of thousands of gallons, something over 11,000 gallons, and 10,000 gallons or greater. These estimates were based, in part, upon evidence indicating both the daily rate of leakage, and the duration of the leak. Credible evidence thus supported the court's decision to fix the volume at a relatively conservative 11,000 gallons. Liberty further contends the evidence failed to support the court's finding that the volume of the 1987 release was 450 gallons. The record, however, contains a GTI report, prepared at Liberty's request, calculating that the second release was between 300 and 600 gallons. The court's decision to fix the volume at the mid-point was not unreasonable. Although Liberty contends the report's author was not qualified as an expert, Liberty raised no objection to the report on this or any other ground at trial. Accordingly, the claim is waived on appeal. See State v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 45-46 (1997) (failure to raise objection at trial waives claim of error on appeal). Liberty also argues that the estimate of 300 to 600 gallons in the GTI report referred to a different release of petroleum, but testimony at trial refuted the contention. The evidence thus supported the finding. Liberty next challenges the court's finding that the volume of the 1989 release was 450 gallons, asserting that evidence relating to the rate and duration of leakage required a finding of at least 1560 gallons. There was evidence, however, indicating that the third release consisted of three separate leaks of approximately one gallon per day, between April and August of 1989, yielding a total volume of approximately 450 gallons. The fact that there was conflicting evidence does not render the court's finding unreasonable or clearly erroneous. See Bianchi, 166 Vt. at 562, 701 A.2d at 1041. Finally, the record contains ample evidence to support the court's finding that the total cost of remediation, including the amounts paid by Liberty and Continental, was $2,505,964.",sufficiency of the evidence
+194,4424124,1,1,"In a series of decisions involving appeals, this court determined that a motion to alter or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not apply to a decision of a district court acting as an intermediate appellate court. Thus, in those prior decisions, the motion was held not to terminate the time for appeal to a higher court.1 The question presented here is whether, given a longstanding distinction between appeals and error proceedings, § 25-1329 applies to a district court’s judgment disposing of a petition in error.2 For numerous reasons, we conclude that it does. And because we conclude that the original reasoning was incomplete and that doing otherwise would exacerbate a “procedural minefield,” we overrule several previous decisions to the extent that they held § 25-1329 inapplicable to judgments of a district court acting as an intermediate appellate court. We therefore reverse the Nebraska Court of Appeals’ summary dismissal of this appeal and remand the cause for further proceedings.",introduction
+195,2598886,1,2,"(1) Under RCW 8.24.030, does the trial court have the discretion to order Safe Harbor to pay Tillicum's attorney fees? (2) Under RCW 8.24.030, did the trial court abuse its discretion by reducing Safe Harbor's attorney fees against the Nobles?",issues
+196,6352849,1,1,"This court’s jurisdiction is pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(10), which permits an interlocutory appeal of an order denying a motion to dismiss based on the defense of sovereign immunity.",jurisdiction
+197,1057772,1,3,"We reverse the Court of Appeals' granting summary judgment to StoneCrest and remand this case to the trial court for further proceedings and for reconsideration of StoneCrest's motion for summary judgment consistent with the analysis and new standard adopted in Boren. At our discretion, all costs of this appeal are taxed against the Appellee, StoneCrest. WILLIAM C. KOCH, JR., J., not participating.",conclusion
+198,885540,1,4,"¶ 32 Did the District Court abuse its discretion when it refused to vacate the arbitration award on the basis that the arbitrator had disregarded Montana law? ¶ 33 The Appellants contend that the arbitrator disregarded clear Montana law concerning the statute of frauds and the parol evidence rule, which requires that the arbitration award be vacated. Stu Henkel Realty responded by alleging, inter alia, manifest disregard of the law requires something more than a mere disagreement with the law applied by the arbitrator. ¶ 34 After recognizing that this Court had created a manifest disregard of law standard for review of an arbitration award and that arbitration awards are to be afforded significant deference, the District Court stated that the arbitrator had considered the parol evidence rule and the statute of frauds in his decision. The District Court went on to state that if the arbitrator's decision was incorrect, which the District Court did not find, it cannot be considered anything greater than a misapplication of the law. ¶ 35 Section 27-5-312, MCA (1997), specifies when an arbitration award must be vacated by a district court: (1) Upon the application of a party, the district court shall vacate an award if: (a) the award was procured by corruption, fraud, or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; (c) the arbitrators exceeded their powers; (d) the arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of 27-5-213, as to prejudice substantially the rights of a party; or (e) there was no arbitration agreement and the issue was not adversely determined in proceedings under 27-5-115 and the party did not participate in the arbitration hearing without raising the objection. (2) The fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award. .... (5) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award. We have previously determined that when an arbitrator is aware of a clearly governing principle of Montana law, and blatantly refuses to follow it, the statutory conditions of § 27-5-312(1)(b), MCA, have in fact been met. Geissler v. Sanem (1997), 285 Mont. 411, 416, 949 P.2d 234, 237-38. The test for manifest disregard of the law requires that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it. See Geissler, 285 Mont. at 417-18, 949 P.2d at 239. ¶ 36 Upon review of the arbitrator's Amended Award dated July 8, 1998, which was the award confirmed by the District Court, we conclude that the arbitrator did consider the statute of frauds and the parol evidence rule in rendering his decision. While he may not have mentioned these principles of law by name, he stated the following: There are, however, rights which arise by virtue of the facts and circumstances surrounding the entire transactions between TWT, the Dillons and SHR. Some of these rights arise by virtue of an oral agreement which ordinarily would not be enforceable since there is no writing to evidence its terms and conditions. However, under Montana law if a party reasonably relies upon information and promises made by another, in some cases the oral agreement by and between the parties can be enforced by virtue of the doctrine of equitable estoppel. ¶ 37 It is apparent that the arbitrator considered the statute of frauds and the parol evidence rule in determining that the oral agreement between the parties would not ordinarily be enforceable without invoking the doctrine of equitable estoppel. Under our narrow standard of review of arbitration awards, we cannot overturn an award simply because the arbitrator may have misapplied the law. See Geissler, 285 Mont. at 417, 949 P.2d at 238. Therefore, we conclude that the District Court did not abuse its discretion when it refused to vacate the arbitration award on the basis that the arbitrator had disregarded Montana law.",issues
+199,1227777,3,4,"(10) The Court of Appeal herein held the Board has jurisdiction to decide and enforce tort claims against licensees and nonlicensees of the Board who unlawfully interfere, or cause others to unlawfully interfere, with a horserace. This determination was based primarily on language in the Business and Professions Code and the California Administrative Code establishing the Board's authority over horseracing. The present case involved a unique procedural sequence of events. As previously stated, at the time the trial court sustained defendant's demurrer, the Board followed a policy of refusing to award tort compensation. However, the Board later indicated a willingness to do so, based on the Court of Appeal's conclusion that the Board's authority included the power to award compensation to horseowners who are victimized by unlawful conduct during horse race meetings. The court ultimately determined that a new administrative remedy was available to plaintiff which was previously unavailable. Thus, the court directed the Board to waive time limits so that plaintiff could bring his claim to the Board for affirmative relief. Contrary to the Court of Appeal's conclusion, the power to award compensatory and punitive tort damages to an injured party is a judicial function. Although the Board has very broad power to regulate and discipline wrongful conduct which involves horseracing in California, the relevant statutes do not authorize awarding affirmative compensatory relief such as tort damages. The Court of Appeal concluded that three enactments essentially vested the Board with power to award tort recovery for economic loss. First, Business and Professions Code section 19440 provides in part: The board shall have all powers necessary and proper to enable it to carry out fully and effectually the purposes of this chapter.... Second, the California Administrative Code, title 4, section 1530, provides: Should any case occur which may not be covered by the Rules and Regulations of the Board or by other accepted rules of racing, it shall be determined by the stewards in conformity with justice and in the interest of racing. Third, section 1529 of the Administrative Code provides: The stewards may refer any matter within their jurisdiction to the Board when the penalty the stewards have jurisdiction to impose is insufficient ... or for other good and sufficient cause, and they may order the suspension of the licensee pending further Order of the Board. In such event, the Board shall accept the matter for hearing and adjudication or such other action as the Board deems to be in the best interests of justice. Although the provisions cited by the Court of Appeal vest the Board with broad powers, such powers are regulatory in nature. The Board was created by legislative enactment in 1933 and the grant of broad power has remained essentially unchanged since that time. The preamble to the act provided that its purpose, however, was to regulate, license, supervise and provide penalties for the violation of the provisions of this act. (Stats. 1933, ch. 769, p. 2046, italics added.) Further, in Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 745-746 [13 Cal. Rptr. 201, 361 P.2d 921], we described the Board's powers by noting that pursuant to article IV, section 25a of the California Constitution, the Legislature has enacted a comprehensive scheme of legislation designed to regulate almost every aspect of legalized horse racing and wagering.  (Italics added, fn. omitted.) Business and Professions Code section 19440 confirms this broad regulatory power of the Board. In part the code provides: Responsibilities of the board shall include, but not be limited to: ... [¶] (2) Administration and enforcement of all laws, rules and regulations affecting horseracing and parimutuel wagering. [¶] (3) Adjudication of controversies arising from the enforcement of those laws and regulations dealing with horseracing and parimutuel wagering.... [¶] The board may delegate to stewards such of its powers and duties that are necessary to carry out fully and effectuate the purposes of this chapter. (Bus. & Prof. Code, § 19440.) Pursuant to this delegation of power, the Board has promulgated rules contained in California Administrative Code, title 4, section 1400 et seq. Nowhere in title 4, however, is the Board given authority to award affirmative relief in the form of compensatory or punitive tort damages. Section 1405 of title 4, contained in article 1 (Racing Board Powers and Jurisdiction), provides for punishment by the Board: Violation of any provision of this chapter ... is punishable in the discretion of the Board by revocation or suspension of any license, by fine, or by exclusion from all racing ... or by any combination of these penalties. The Board may independently punish any misconduct of any person connected with racing. (Italics added.) The stewards, with whom a claim of interference may be lodged after a race, also have limited authority. Section 1528 of title 4 of the California Administrative Code provides in part: The stewards may suspend the license of anyone whom they have the authority to supervise or they may impose a fine or they may exclude from all enclosures in this State or they may suspend, exclude and fine.  (Italics added.) The Court of Appeal herein acknowledged that the stewards are given express authority to punish a jockey or horse owner or anyone else who is licensed by the Board and is found to have violated a riding rule. (Italics added.) These specific rules and regulations in the California Administrative Code demonstrate the character of the Board as a regulatory and disciplinary entity. The extensive regulations neither express nor imply any authority to award affirmative monetary relief. In fact, each section which authorizes adjudication of racing violations reveals the power of the Board is limited to fines, penalties or exclusions. Accordingly, the regulatory relief available from the Board indicates that it lacks the power to award damages to those who are injured by a violation of the Horse Racing Law (Bus. & Prof. Code, § 19400 et seq.). It is undisputed that the Board has never awarded such affirmative relief and that neither the Horse Racing Law nor the Board regulations specifically include damages as a form of relief afforded by the Board. [15] Further, California Administrative Code, title 4, section 1699, subdivision (c), provides a specific penalty for acts of interference such as are alleged herein: A horse which interferes with another and thereby causes any other horse to lose stride, lose ground, or lose position, when such other horse is not in fault and when such interference occurs in a part of the race where the horse so interfered with loses the opportunity to place where he might, in the opinion of the stewards, be reasonably expected to finish, may be disqualified and placed behind the horse so interfered with.  (Italics added.) Therefore, since neither the statutes nor the administrative rules governing the power of the Board grant authority to award affirmative relief, we conclude that the jurisdiction of the Board is confined to disciplinary and regulatory matters. [16] Accordingly, the only remedy available from the Board in this case is to reorder the finishing positions of the competitors, which has already been done. (Cal. Admin. Code, tit. 4, § 1699, subd. (c).)",jurisdiction
+200,2633247,1,1,"This is a wrongful termination of a public employee case. The employee contends she was terminated from her employment as a result of writing a letter addressed to and finally received by Governor Kempthorne's office. She further contends the letter was protected speech under the First Amendment to the United States Constitution. The employee appeals from the district court's dismissal of the action upon the State of Idaho's and Gary Bermeosolo, Jeff Piper and Celina Sturgis' combined motions for summary judgment. We affirm.",introduction
+201,889444,1,2,"¶ 9 This is our seminal decision regarding postconviction DNA testing under § 46-21-110, MCA. At issue on appeal are the District Court's determinations under § 46-21-110(5)(b), (c), (e), MCA, which involve, respectively, the chain of custody of the evidence to be tested, whether identity was or should have been an issue at trial, and whether the DNA testing would establish whether the petitioner was the perpetrator of the crime of which he was convicted. We conclude that these determinations are mixed questions of fact and law, subject to de novo review. See United States v. Fasano, 577 F.3d 572, 575 (5th Cir.2009) (similar chain-of-custody and likelihood-of-innocence determinations under federal DNA testing statute, 18 U.S.C. § 3600(a)(4), (a)(8), subject to de novo review); Illinois v. Urioste, 316 Ill. App.3d 307, 249 Ill.Dec. 512, 736 N.E.2d 706, 710 (2000) (question of whether identity was an issue under similar statute subject to de novo review); see also United States v. Jordan, 594 F.3d 1265, 1269-70 (10th Cir.2010) (Lucero, J., concurring) (explaining propriety of de novo review); but see e.g. Washington v. Riofta, 166 Wash.2d 358, 209 P.3d 467, 473 (2009) (applying abuse of discretion standard of review).",standard of review
+202,1589764,1,7,"On appeal, both Schuyler Apartment Partners and Columbus Apartment Partners argue generally that TERC erred in affirming the valuations set by the Colfax and Platte Counties' boards of equalization.",analysis
+203,4518181,1,3,"[1,2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.3 In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independently of the conclusion reached by the court below.4 1 Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968). 2 Id. 3 Chase County v. City of Imperial, 302 Neb. 395, 923 N.W.2d 428 (2019). 4 Id. - 935 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports GAGE COUNTY v. EMPLOYERS MUT. CAS. CO. Cite as 304 Neb. 926 [3] The interpretation of an insurance policy presents a question of law that an appellate court decides independently of the trial court.5",standard of review
+204,2392384,1,1,"1. The evidence adduced at trial showed the following. In the spring of 2004, Bryant was recently paroled, unemployed, and involved in drugs. On May 21, 2004, a really broke Bryant got a ride to Kilgore's home, ostensibly for the purpose of earning some money by assisting Kilgore, who was 68 years old and suffering from various health problems that affected his mobility. After Bryant accompanied Kilgore while he ran some errands, the two men returned to Kilgore's home. Then Bryant got into another of Kilgore's automobiles and waited while Kilgore went into his home. A teenager doing chores for Kilgore saw Kilgore take approximately $2,200 and a .44-magnum revolver from his safe. When Kilgore came out of his home, he was accompanied by Richards, whom Bryant had never met. Richards and Kilgore got into the automobile with Bryant, and they left Kilgore's residence with Kilgore driving. The following day, teenagers discovered Kilgore's body in the brush after noticing his automobile in a ditch off the roadway, almost completely hidden among kudzu vines. After the teens called 911, police discovered Richards' body, also in the brush. Kilgore's pockets were turned inside out. A few coins were found on the ground near his body, but neither his wallet nor any cash was ever found. As a result of their investigation, police arrested Bryant on May 24, 2004, in North Carolina, where he had fled after the shooting. The State presented testimony showing that, at approximately 5:00 p.m. on the day of the murders, Bryant called his girlfriend and his sister to pick him up from the crime scene and that, when they did so, a bloody Bryant said that he had had a fight with Kilgore and that he had shot [Kilgore] and a girl that was there. Evidence also showed that Bryant purchased a hotel room and a weed pipe and went clubbing in Buckhead on the night following the murders, although he had no money before the crimes. An acquaintance of Bryant testified that on the morning after the murders he drove Bryant to a dumpster, where Bryant disposed of a purse, and that Bryant told him that there was a gun inside the purse. The acquaintance led police to the dumpster, where police recovered Richards' purse with Kilgore's revolver inside. Bryant testified that he and the victims were en route to complete a drug deal when he and Kilgore argued, that Kilgore drove 30 to 50 feet down an abandoned, kudzu-covered driveway, and that he then turned around in his seat and pulled a gun on Bryant, who was sitting in the rear passenger seat behind Richards. Bryant claimed that he acted in self-defense after taking the gun from Kilgore, that he was in the rear seat area pushing against the headrest of the front passenger seat when he shot Kilgore in the head, and that he was coming out of the automobile when he shot Richards in the back and in the head. However, the State's ballistics expert, Kelly Fite, testified that the bullet that killed Kilgore and one of the bullets that struck Richards could not have been fired from inside the backseat of the automobile but were fired, instead, from the passenger side of the vehicle probably outside the front door or right at the door. An inmate testified that, while incarcerated with Bryant, Bryant told him that he shot Richards once in the back or side and once in the back of the head because she was a liability, she could identify him. Also while incarcerated, Bryant wrote letters to his girlfriend attempting to persuade her to say that she was in the automobile at the time of the murders and that Bryant shot Kilgore after Kilgore shot Richards, and he wrote to family members asking their help in persuading his girlfriend to lie for him. We find that the evidence, construed most favorably to the jury's verdicts, was sufficient to authorize a rational trier of fact to find Bryant guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Unified Appeal Procedure IV(B)(2) (providing that, in all death penalty cases, this Court shall determine whether the verdicts are supported by the evidence).",sufficiency of the evidence
+205,2779092,1,2,1. Is the MWL unconstitutional as applied to Cornelius? 2. Did the PCHB err by allowing Ecology to use a streamlined process for evaluating WSU's application? 3. Does RCW 90.44.100 authorize WSU to amend its certificates and add well locations? 4. Did the PCHB correctly apply SEPA? 5. Did the PCHB' s summary judgment order improperly preclude Cornelius from presenting evidence about impairment and the public welfare? 6. Did RCW 90.44.130 require Ecology to determine ifWSU's proposal would maintain a safe sustaining yield of groundwater? 7. Did WSU exercise reasonable diligence in putting its water rights to beneficial use? 8. Did WSU abandon Claim No. 98523? 9. Did the PCHB err in granting WSU' s summary judgment motion regarding beneficial use and reasonable efficiency? 4 Cornelius v. Dep 't of Ecology No. 88317-3 10. Did the water quantities authorized under Permit No. G3-28278P need to be reduced? 11. Is Cornelius entitled to attorney fees?,issues
+206,4509249,1,1,"The issue in this error proceeding1 is whether a probation violation allegation asserting a law violation from a 1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018). - 54 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JEDLICKA Cite as 305 Neb. 52 new charge of possession of methamphetamine constitutes a “substance abuse . . . violation”2 having a prerequisite of 90 days of cumulative custodial sanctions. The district court determined it does and sustained Parris R. Jedlicka’s motion to quash an information for revocation of probation. Because we conclude that this allegation of a law violation is not a “substance abuse” violation for revocation of probation purposes, we sustain the exception and remand the cause for further proceedings.",introduction
+207,2326611,1,1,"For the reasons stated herein, we affirm the judgmentof conviction of the Superior Court, to which we return the papers in this case.",conclusion
+208,2627992,1,2,"¶ 11 When reviewing a trial court's decision on a motion for judgment as a matter of law, the appellate court applies the same standard as the trial court and reviews the grant or denial of the motion de novo. Davis v. Microsoft Corp., 149 Wash.2d 521, 531, 70 P.3d 126 (2003). A motion for judgment as a matter of law must be granted `when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.' Id. (quoting Sing v. John L. Scott, Inc., 134 Wash.2d 24, 29, 948 P.2d 816 (1997)). Substantial evidence is evidence that is sufficient `to persuade a fair-minded, rational person of the truth of a declared premise.' Davis, 149 Wash.2d at 531, 70 P.3d 126 (quoting Helman v. Sacred Heart Hosp., 62 Wash.2d 136, 147, 381 P.2d 605 (1963)). ¶ 12 Ms. Bull maintains that the Alejandres' tort claims are precluded by the economic loss rule, as the trial court ruled. ¶ 13 The economic loss rule applies to hold parties to their contract remedies when a loss potentially implicates both tort and contract relief. It is a device used to classify damages for which a remedy in tort or contract is deemed permissible, but are more properly remediable only in contract. . . . `[E]conomic loss describes those damages falling on the contract side of the line between tort and contract.' Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wash.2d 816, 822, 881 P.2d 986 (1994) (citation omitted) (quoting Wash. Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 861 n. 10, 774 P.2d 1199, 779 P.2d 697 (1989) (quoting Pa. Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir.1981))). The rule `prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from contract' because `tort law is not intended to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement.' Factory Mkt., Inc. v. Schuller Int'l, Inc., 987 F.Supp. 387, 395 (E.D.Pa.1997) (quoting Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618 (3d Cir.1995) and Palco Linings, Inc. v. Pavex, Inc., 755 F.Supp. 1269, 1271 (M.D.Pa.1990)). ¶ 14 Tort law has traditionally redressed injuries properly classified as physical harm. Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wash.2d 406, 420, 745 P.2d 1284 (1987). It is concerned with the obligations imposed by law, rather than by bargain, and carries out a safety-insurance policy that requires that products and property that are sold do not unreasonably endanger the safety and health of the public. Id. at 421, 420, 745 P.2d 1284. Contract law, in contrast, carries out an expectation-bargain protection policy that protects expectation interests, and provides an appropriate set of rules when an individual bargains for a product of particular quality or for a particular use. Id. at 420-21, 745 P.2d 1284. In general, whereas tort law protects society's interests in freedom from harm, with the goal of restoring the plaintiff to the position he or she was in prior to the defendant's harmful conduct, contract law is concerned with society's interest in performance of promises, with the goal of placing the plaintiff where he or she would be if the defendant had performed as promised. Detroit Edison Co. v. NABCO, Inc., 35 F.3d 236, 239 (6th Cir. 1994); see also Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244, 1246-47 (Fla.1993). ¶ 15 The economic loss rule maintains the fundamental boundaries of tort and contract law. Berschauer/Phillips, 124 Wash.2d at 826, 881 P.2d 986. Where economic losses occur, recovery is confined to contract to ensure that the allocation of risk and the determination of potential future liability is based on what the parties bargained for in the contract. . . . If tort and contract remedies were allowed to overlap, certainty and predictability in allocating risk would decrease and impede future business activity. Id. A manufacturer or seller sets prices in contemplation of, among other things, potential contractual liability. See id. at 827, 881 P.2d 986. If tort liability is expanded to include economic damages, parties would be exposed to `liability in an indeterminate amount for an indeterminate time to an indeterminate class.' Id. (quoting Justice Cardozo in Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 179, 174 N.E. 441, 74 A.L.R. 1139 (1931)). A bright line distinction between the remedies offered in contract and tort with respect to economic damages also encourages parties to negotiate toward the risk distribution that is desired or customary. Berschauer/Phillips, 124 Wash.2d at 827, 881 P.2d 986. In addition, the economic loss rule prevents a party to a contract from obtaining through a tort claim benefits that were not part of the bargain. See, e.g., Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis.2d 395, 408, 573 N.W.2d 842 (1998). ¶ 16 In short, the purpose of the economic loss rule is to bar recovery for alleged breach of tort duties where a contractual relationship exists and the losses are economic losses. If the economic loss rule applies, the party will be held to contract remedies, regardless of how the plaintiff characterizes the claims. See Snyder v. Lovercheck, 992 P.2d 1079, 1088 (Wyo.1999) (`when parties' difficulties arise directly from a contractual relationship, the resulting litigation concerning those difficulties is one in contract no matter what words the plaintiff may wish to use in describing it' (quoting Beeson v. Erickson, 22 Kan.App.2d 452, 461, 917 P.2d 901 (1996))). Washington law consistently follows these principles. See Stuart, 109 Wash.2d at 420-22, 745 P.2d 1284; Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 799 P.2d 250 (1990); Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash.2d 334, 350-51, 831 P.2d 724 (1992); Berschauer/Phillips, 124 Wash.2d at 825-26, 881 P.2d 986; Staton Hills Winery Co. v. Collons, 96 Wash.App. 590, 595-96, 980 P.2d 784 (1999); Carlson v. Sharp, 99 Wash.App. 324, 994 P.2d 851 (1999); Griffith v. Centex Real Estate Corp., 93 Wash.App. 202, 211-13, 969 P.2d 486 (1998). The key inquiry is the nature of the loss and the manner in which it occurs, i.e., are the losses economic losses, with economic losses distinguished from personal injury or injury to other property. If the claimed loss is an economic loss, and no exception applies to the economic loss rule, then the parties will be limited to contractual remedies. ¶ 17 The same fundamental approach applies to products liability claims governed by the Washington Product Liability Actions Act, chapter 7.72 RCW (WPLA). The WPLA does not allow recovery for direct or consequential economic losses under the Uniform Commercial Code, Title 62A.RCW. RCW 7.72.010(6). Rather, the WPLA confines recovery to physical harm of persons and property and leaves economic loss, standing alone, to the Uniform Commercial Code. Touchet Valley Grain Growers, 119 Wash.2d at 351, 831 P.2d 724. The court therefore applies a risk of harm analysis in the product liability setting under the WPLA to determine the nature of the damages and whether an economic loss has occurred, id., but, as in other cases, the focus is on the harm or injury and whether it constitutes an economic loss. ¶ 18 In Berschauer/Phillips, a general contractor sought to recover economic damages in tort from an architect, an engineer, and an inspector. We first noted that the case was not governed by the WPLA, and therefore turned to the common law to determine whether the economic loss rule precludes recovery in tort. We held that the economic loss rule applies to bar recovery of economic loss due to construction delays. Berschauer/Phillips, 124 Wash.2d at 825-27, 881 P.2d 986. We expressly did so in order to align the common law rule on `economic loss' with the Legislature's application of the rule under the WPLA to limit purely economic damages to contract claims under the UCC. Id. at 827, 881 P.2d 986. ¶ 19 The Alejandres maintain that the economic loss rule does not apply in the context here, i.e., the sale of a residence. However, as Ms. Bull contends, in this state the economic loss rule applies to tort claims brought by homebuyers. Stuart, 109 Wash.2d at 417-22, 745 P.2d 1284; Griffith, 93 Wash.App. at 212-13, 969 P.2d 486. [3] And, as in other circumstances, where defects in construction of residences and other buildings are concerned, economic losses are generally distinguished from physical harm or property damage to property other than the defective product or property. The distinction is drawn based on the nature of the defect and the manner in which damage occurred. In Stuart, 109 Wash.2d at 420-22, 745 P.2d 1284, and in Atherton, 115 Wash.2d 506, 799 P.2d 250, we declined to recognize any tort cause of action for negligent construction because the plaintiffs in each of these cases presented no evidence of personal or physical injury resulting from the manner in which the condominium complexes in each case were constructed and instead sought only economic damages. ¶ 20 Here, the injury complained of is a failed septic system. Purely economic damages are at issue. See Stuart, 109 Wash.2d at 420, 745 P.2d 1284 (defects evidenced by internal deterioration are characterized as economic losses); Griffith, 93 Wash.App. at 213, 969 P.2d 486 (same). There is no question that the parties' relationship is governed by contract. Thus, unless there is some recognized exception to the economic loss rule that applies, the plaintiffs' claim of negligence cannot stand because they are limited to their contract remedies. No exception to the economic loss rule has been established. ¶ 21 The plaintiffs allege that Ms. Bull made negligent misrepresentations about the condition of the septic system contrary to the duty of due care under the Restatement (Second) of Torts § 552 (1977). [4] Both Berschauer/Phillips and Griffith hold that although Washington recognizes a tort claim for negligent misrepresentation under the Restatement (Second) of Torts § 552 (1977), this claim is not available when the parties have contracted against potential economic liability. Berschauer/Phillips, 124 Wash.2d at 827-28, 881 P.2d 986; Griffith, 93 Wash. App. at 212, 969 P.2d 486. ¶ 22 Accordingly, the Alejandres' reliance on § 552 and what must be proven under it is foreclosed by our precedent. Because the parties' relationship is governed by contract and the loss claimed is an economic loss, the trial court correctly concluded that plaintiffs' negligent misrepresentation claim must be dismissed. See, e.g., Atherton, 115 Wash.2d at 526-27, 799 P.2d 250 (negligent construction claim precluded where plaintiff sought only economic damages). ¶ 23 The Court of Appeals held, however, that if the parties fail to specifically allocate a risk of loss in their contract, the economic loss rule does not apply as to that risk. Alejandre, 123 Wash.App. at 626, 98 P.3d 844. This holding is inconsistent with the weight of authority and with Berschauer/Phillips. ¶ 24 In Berschauer/Phillips, we stated that our holding limiting the recovery of economic loss due to construction delays ensures that the allocation of risk and the determination of potential future liability is based on what the parties bargained for in the contract. We hold parties to their contracts. Berschauer/Phillips, 124 Wash.2d at 826, 881 P.2d 986. We did not say, however, that the parties will be held to their bargained-for remedies only if they explicitly addressed any or all potential economic losses and allocated the risks associated with them. ¶ 25 Other courts have also rejected this premise. Courts reason, instead, that the economic loss rule applies where the parties could or should have allocated the risk of loss, or had the opportunity to do so. In Nextel Argentina, S.R.L. v. Elemar International Forwarding, Inc., 44 F.Supp.2d 1306, 1309 (Fla.1999), the court saw `no reason to burden society as a whole with the losses of one who has failed to bargain for adequate contractual remedies.' (Quoting Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 660 So.2d 628, 630 (Fla.1995)). The court held that the economic loss rule prevents recovery in tort for risks that should have been allocated in a contract. Nextel, 44 F.Supp.2d at 1309 (emphasis added). If the party could have allocated its risk, the rule applies; all that is required is that the party had an opportunity to allocate the risk of loss. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 852 (6th Cir.2002); Lexington Ins. Co. v. W. Roofing Co., 316 F.Supp.2d 1142, 1148 (D.Kan.2004); Nat'l Steel Erection, Inc. v. J.A. Jones Constr. Co., 899 F.Supp. 268, 274 (N.D.W.Va.1995); Nigrelli Sys., Inc. v. E.I. DuPont de Nemours & Co., 31 F.Supp.2d 1134, 1138 (E.D.Wis.1999); BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 73 (Colo. 2004); Nw. Ark. Masonry, Inc. v. Summit Specialty Prods., Inc., 29 Kan.App.2d 735, 744-45, 31 P.3d 982 (2001); Neibarger v. Universal Coops., Inc., 439 Mich. 512, 521, 486 N.W.2d 612 (1992) (quoting Spring Motors Distribs., Inc. v. Ford Motor Co., 98 N.J. 555, 579-80, 489 A.2d 660 (1985)). ¶ 26 Further, where allocation of risk occurs, it can occur directly or indirectly. For example, parties might allocate risk through express contract terms, such as the inclusion of warranties, or through the procuring of insurance, or risk might be reflected in a lower price obtained by the buyer in exchange for the risk falling on the buyer. Maersk Line Ltd. v. CARE & ADM, Inc., 271 F.Supp.2d 818, 822 (E.D.Va.2003). As one court stated: `Courts should assume that parties factor risk allocation into their agreements and that the absence of comprehensive warranties is reflected in the price paid. Permitting parties to sue in tort when the deal goes awry rewrites the agreement by allowing a party to recoup a benefit that was not part of the bargain.' Daanen & Janssen, 216 Wis.2d at 408, 573 N.W.2d 842 (quoting Stoughton Trailers, Inc. v. Henkel Corp., 965 F.Supp. 1227, 1230 (W.D.Wis. 1997)); see Nigrelli Sys., 31 F.Supp.2d at 1138. ¶ 27 In fact, if a court permits a tort claim on the ground that the parties have not expressly allocated a particular risk, it interferes with the parties' freedom to contract. Rich Prods. Corp. v. Kemutec, Inc., 66 F.Supp.2d 937, 968-69 (E.D.Wis.1999), aff'd, 241 F.3d 915 (7th Cir.2001); see also Maersk Line, 271 F.Supp.2d at 822 (`to permit a party to a broken contract to proceed in tort where only economic losses are alleged would eviscerate the most cherished virtue of contract law, the power of the parties to allocate the risks of their own transactions' (quoting Princess Cruises, Inc. v. General Elec. Co., 950 F.Supp. 151, 155 (E.D.Va.1996), rev'd on other grounds, 143 F.3d 828 (4th Cir.1998))); Snyder, 992 P.2d at 1087 (`[t]he effect of confusing the concept of contractual duties, which are voluntarily bargained for, with the concept of tort duties, which are largely imposed by law, would be to nullify a substantial part of what the parties expressly bargained for — limited liability' (quoting Isler v. Texas Oil & Gas Corp., 749 F.2d 22, 23 (10th Cir.1984))). ¶ 28 In accord with the overwhelming weight of authority from other jurisdictions, and under our decision in Berschauer/Phillips, the economic loss rule applies regardless of whether the specific risk of loss at issue was expressly allocated in the parties' contract. ¶ 29 Finally, on this issue, a cautionary note is added. There is some suggestion that the economic loss rule applies only if the contract is between two sophisticated parties. However, we observed in Berschauer/Phillips, 124 Wash.2d at 827, 881 P.2d 986, that the unsophisticated consumer is deprived of economic damages under the WPLA. Just as the economic loss rule applies under the WPLA to unsophisticated parties, the same bright line distinction between the remedies offered in contract and tort with respect to economic damages, Berschauer/Phillips, 124 Wash.2d at 827, 881 P.2d 986, may apply to unsophisticated parties who enter a contract on essentially equal footing. [5] If there is significant disparity in bargaining power, likely accompanied by some other contractual infirmity, then there may be an issue as to enforceability of the contract — a different question from whether tort remedies should be available. ¶ 30 The Alejandres' negligent misrepresentation tort claim is precluded under the economic loss rule for the reasons explained above. ¶ 31 The plaintiffs also assert a claim of fraudulent concealment. In Atherton, we rejected the plaintiff's claim of negligent construction as barred by the economic loss rule, but in the same opinion held that there was an issue of fact as to whether the defendant had fraudulently concealed construction practices violating the building code and therefore the trial court had erred in dismissing the plaintiffs' claim for fraudulent concealment on a motion for summary judgment. Atherton, 115 Wash.2d at 523-27, 799 P.2d 250. Thus, under Atherton, the Alejandres' fraudulent concealment claim is not precluded by the economic loss rule. ¶ 32 However, the fraudulent concealment claim fails because, as the trial court ruled, the Alejandres failed to present sufficient evidence to support the claim. Under Obde, 56 Wash.2d 449, 353 P.2d 672, and similar cases, the vendor's duty to speak arises (1) where the residential dwelling has a concealed defect; (2) the vendor has knowledge of the defect; (3) the defect presents a danger to the property, health, or life of the purchaser; (4) the defect is unknown to the purchaser; and (5) the defect would not be disclosed by a careful, reasonable inspection by the purchaser. Atherton, 115 Wash.2d at 524, 799 P.2d 250. The Alejandres failed to meet their burden of showing that the defect in the septic system would not have been discovered through a reasonably diligent inspection. In fact, the Alejandres accepted the septic system even though the inspection report from Walt's Septic Tank Service disclosed, on its face, that the inspection was incomplete because the back baffle had not been inspected. The testimony at trial showed that this part of the septic system was relatively shallow and easily accessible for inspection. A careful examination would have led to discovery of the defective baffle and to further investigation. ¶ 33 Next, insofar as the Alejandres have asserted common law fraud theories, they have failed to present sufficient evidence of the nine elements of fraud. See Williams v. Joslin, 65 Wash.2d 696, 697, 399 P.2d 308 (1965). In particular, they have failed to present sufficient evidence as to the right to rely on the allegedly fraudulent representations about the condition of the septic service. The right to rely element of fraud is intrinsically linked to the duty of the one to whom the representations are made to exercise diligence with regard to those representations. Id. at 698, 399 P.2d 308; Puget Sound Nat'l Bank v. McMahon, 53 Wash.2d 51, 54, 330 P.2d 559 (1958). As explained, the Alejandres were on notice that the septic system had not been completely inspected but failed to conduct any further investigation and indeed, accepted the findings of an incomplete inspection report. Having failed to exercise the diligence required, they were unable to present sufficient evidence of a right to rely on the allegedly fraudulent representations. [6] ¶ 34 Accordingly, the trial court correctly determined, as to the Alejandres' fraudulent conveyance and fraudulent representation theories, that Ms. Bull was entitled to judgment as a matter of law under CR 50 because the Alejandres failed to present sufficient evidence in support of these theories. ¶ 35 Finally, we turn to Ms. Bull's request for attorney fees. The parties purchase and sale agreement provides that attorney fees and costs shall be awarded to the prevailing party in any dispute relating to the transaction. Ex. 4; see RCW 4.84.300. Accordingly, Ms. Bull is entitled to attorney fees as the prevailing party, at trial, as the trial court ruled, and on appeal and discretionary review, to be awarded pursuant to RAP 18.1.",analysis
+209,2630535,1,3,"We hold that the term fair value, for the purpose of Colorado's dissenters' rights statute, means the dissenting shareholder's proportionate interest in the corporation valued as a going concern. The trial court must determine the value of the corporate entity and allocate the dissenting shareholder his proportionate ownership interest of that value, without applying a marketability discount at the shareholder level. The court of appeals decision is affirmed.",conclusion
+210,1451113,1,3,"Based on the foregoing, we conclude that the time to file a notice of appeal in this case began to run on March 31, 1992, the date that the order confirming the arbitration award was filed. Pursuant to HRAP 4(a), the notice of appeal should have been filed by April 30, 1992; however, because Oppenheimer filed his notice of appeal on August 5, 1992, the appeal was untimely. Accordingly, the appeal is dismissed for lack of appellate jurisdiction.",conclusion
+211,1702885,1,2,"In the first of Walton's claims warranting discussion, [4] he asserts that the trial court presiding over his resentencing proceedings improperly and unconstitutionally instructed the jury as to the aggravating factors they could consider in making their recommendation. [5] Walton's resentencing jury was instructed on the aggravators of prior commission of a violent felony; commission of the murder while engaged in a robbery; commission for the purpose of avoiding or preventing a lawful arrest; commission for financial gain; that the crime was especially wicked, evil, atrocious or cruel (HAC); and commission in a cold, calculated, and premeditated manner (CCP). The record reflects that the trial court instructed the jury in the following manner: The aggravating circumstances you must consider are: One, that the defendant has been previously convicted of another capital offense or of a felony involving the use of violence to some person. Two, that the crime for which the defendant is to be sentenced was committed while he was engaged in or an accomplice in the crime of burglary or robbery. Three, the crime for which the defendant is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody. Four, the crime for which the defendant is to be sentenced was committed for financial gain. Five, the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious, or cruel. Six, the crime for which the defendant is to be sentenced was committed in a cold, calculated, and premeditated manner without any pretense or [sic] moral or legal justification. Following this set of instructions, the trial court gave a brief description of premeditation only, and did not inform the jury of any further narrowing requirements necessary to prove the existence of these aggravating factors. The instructions given the jury in the instant case violated the precepts of the United States Supreme Court's Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), decision. In Espinosa, the Supreme Court held that an aggravating circumstance is invalid ... if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. 505 U.S. at 1081, 112 S.Ct. 2926. The Court then proceeded to declare the precise especially wicked, evil, atrocious, or cruel instruction given Walton's jury in the instant case invalid under the Eighth Amendment to the U.S. Constitution. See id. at 1082, 112 S.Ct. 2926. Further, our decisions certainly require much more extensive instruction than was given in the instant case for application of the CCP aggravator. See, e.g., Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (holding that proper application of the CCP aggravator requires proof that the killing was the product of cool and calm reflection and not an act prompted by an emotional frenzy, panic, or a fit of rage (cold); and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.) (citations omitted). Because the instructions were clearly insufficient under the United States Supreme Court's, as well as this Court's, jurisprudence governing instructions designed to narrow the class of defendants constitutionally eligible for the death penalty, it is necessary for this Court to assess whether Walton should be granted retroactive relief. In the postconviction procedural setting before us today, it is dispositive that the defense did not register an objection to the jury instructions at trial. Because no objection was interposed during Walton's resentencing proceedings, Walton is foreclosed from claiming relief under Espinosa, as well as our decisions requiring more comprehensive jury instructions. This bar to requesting retroactive relief based upon subsequent changes in the law was set forth by this Court in a clear fashion in James v. State, 615 So.2d 668 (Fla.1993). In James, we held: Claims that the [jury] instruction ... is unconstitutionally vague are procedurally barred unless a specific objection on that ground is made at trial and pursued on appeal. Id. at 669. In James, we concluded that the defendant's challenge to the heinous, atrocious, or cruel aggravator was not barred, because he objected at trial, while his challenge to the cold, calculated, and premeditated jury instruction was barred because James failed to register an objection thereon during the trial. See id.; see also Clark v. Dugger, 559 So.2d 192, 193-94 (Fla.1990) (holding that an objection at trial is necessary to trigger... retroactivity); Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) (same). Clearly, Walton's claim to relief under Espinosa is barred. No objection to the jury instructions was registered at trial, no claim regarding the instructions was raised on Walton's direct appeal, and none of the decisions upon which Walton now relies mandate retroactive application of their holdings. Indeed, if punishment is ever to be imposed for society's most egregious crimes, the disposition of a particular case must at some point be considered final notwithstanding a comparison with other individual cases. Witt v. State, 387 So.2d 922, 927 (Fla.1980). Walton's claim asserting an entitlement to a new trial based upon improper jury instructions is barred. Walton's claims that his trial counsel and appellate counsel should have anticipated the above-cited jury instruction decisions are without merit. Because the Espinosa decision was delivered by the United States Supreme Court in 1992, and refinement of Florida's jury instructions by this Court began thereafter, trial and appellate counsel cannot be faulted for failing to assert claims that did not exist at the time they represented Walton. This Court has consistently held that trial and appellate counsel cannot be held ineffective for failing to anticipate changes in the law. See, e.g., Nelms v. State, 596 So.2d 441, 442 (Fla.1992); Stevens v. State, 552 So.2d 1082, 1085 (Fla.1989). Walton next contends that his fundamental rights to confrontation, due process, and an individualized and reliable hearing were violated when Dr. Sidney Merin was allowed to testify at his postconviction evidentiary hearing. Because Merin was previously appointed as a confidential mental health expert to Richard Cooper, Walton's codefendant, Walton contends that the obvious conflict of interest violated his constitutional rights. Additionally, Walton contends that the error in allowing Dr. Merin to testify was compounded by the trial court's limitation of cross-examination regarding the doctor's conflict of interest. It is clear that because Dr. Merin assisted in preparing Richard Cooper's defense strategy, a conflict of interest existed. Merin agreed to evaluate the new evidence before the court in the postconviction proceeding to determine what impact, if any, the mitigating evidence obtained during postconviction discovery would have upon a mental health professional's diagnosis of Walton. He testified regarding his impressions, despite having consulted with Cooper's attorneys during Cooper's prior trial proceedings. Because these two codefendants' interests were antagonistic to each other, it is unlikely that Merin could render a truly objective opinion with regard to both. Thus, it was error to allow Merin to testify as a witness for the State. While the testimony of Dr. Merin may be questioned, it does not justify relief because no prejudice has been demonstrated by Walton. Despite Walton's assertion that the circuit court relied upon Dr. Merin in denying relief, the transcript of the trial court's evidentiary hearing clearly refutes this claim. The only mention of Dr. Merin by the trial court when announcing its findings consisted of the following statement: The testimony of the psychologist was there was no brain damage. Certainly it seems to me and I almost—I didn't, but I almost was going to ask Dr. Merin if looking at Page 133, starting at about the middle of the page to ask Dr. Merin if someone who allegedly abused drugs as much as he did, according to what's on page 133, if it wouldn't cause permanent brain damage. Because this is the only instance in which the trial court even mentioned Dr. Merin, it certainly did not rely upon him in reaching its sentencing conclusions. Therefore, the error committed by the trial court in allowing Dr. Merin to testify did not contribute to the trial court's final determinations. Under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), the commission of an error is nonetheless harmless where there is no reasonable possibility that the error contributed to the conviction. Id. at 1135; see also Moore v. State, 701 So.2d 545, 549-50 (Fla.1997). While it was error for the trial court to allow a mental health professional with an obvious conflict of interest to testify during the postconviction proceedings below, any error was harmless beyond a reasonable doubt because the trial court did not actually rely upon Merin's testimony in reaching its decision. Next, Walton asserts in both his postconviction motion and his habeas corpus petition that his resentencing trial court improperly relied upon a sentencing order submitted by the State in sentencing him to death. He contends that the sentencing order contained information not before the court on resentencing, and because the trial court relied upon the State's sentencing memorandum, the trial judge improperly abdicated his sentencing responsibilities. Additionally, Walton asserts that his trial counsel rendered constitutionally ineffective assistance of counsel for failing to object to the trial court's adoption of the State's sentencing memorandum as its sentencing order. This claim is procedurally barred. Clearly, any claims regarding the conduct of the resentencing trial judge in the creation of his sentencing order could and should have been raised on direct appeal. See Young v. State, 739 So.2d 553, 555 n. 5 (Fla.1999). Indeed, in Swafford v. Dugger, 569 So.2d 1264 (Fla.1990), this Court specifically foreclosed argument regarding the trial court's failure to independently weigh the aggravating and mitigating factors because they should have been raised, if at all, on direct appeal. Id. at 1267. Even if this claim was not procedurally barred, Walton's contentions here are not supported by the record. The only evidentiary support for Walton's assertions here is the use of identical language in somewhat substantial portions of the final sentencing order and the sentencing memoranda submitted to the trial court by the State. This Court has specifically declared that trial courts must not delegate the responsibility to prepare a sentencing order to the State Attorney. Patterson v. State, 513 So.2d 1257, 1261 (Fla.1987). In the instant case, however, it is clear that the State simply submitted a sentencing memorandum to the trial court for its consideration, which the trial court subsequently considered before writing its sentencing order. This act alone does not constitute error. See Patton v. State, 784 So.2d 380, 388 (Fla.2000) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), for the proposition that even when the trial court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous). Walton does not assert that any impermissible ex parte discussions regarding the resentencing or any other wrongful acts occurred in the creation of the sentencing order. [6] Thus, because there is no evidence contained in the record supporting Walton's contention that the State created or originated the sentencing order, we find no reversible error. As nothing in the record supports Walton's assertions that the trial court delegated its responsibility regarding preparation of the sentencing order to the State, no reversible error occurred. Therefore, Walton's claim of ineffective assistance of counsel is also without merit. See Engle v. Dugger, 576 So.2d 696 (Fla.1991); Card v. State, 497 So.2d 1169 (Fla.1986) (holding that counsel is not ineffective for failing to raise meritless claims). In a somewhat related claim, Walton next contends that his resentencing trial was contaminated by the admission of statements from non-testifying codefendants—evidence which this Court specifically deemed inadmissible in Walton I. Specifically, Walton contends that there was no evidence before the resentencing court supporting its findings regarding Walton's purported leadership of the group, and no evidence is contained in the record regarding Walton's supposed grabbing of a victim by the hair, items noted by the trial court in its sentencing order. Finally, Walton contends that his trial counsel rendered ineffective assistance of counsel by failing to object to the trial court's findings, and his appellate counsel was ineffective because he did not raise this claim on direct appeal. In Walton I, this Court held that the confessions of codefendants Cooper and McCoy were the primary evidence relied on by the state in the penalty phase before the jury and that the trial judge considered the confessions in sentencing appellant to death. Walton I, 481 So.2d at 1200. For this reason, this Court vacated Walton's sentences of death and mandated a new sentencing hearing. Walton now contends that the resentencing trial court simply utilized the same information in sentencing Walton to death a second time. An examination of the record reveals that neither of the confessions used in Walton's first trial were introduced as evidence in his resentencing hearing. Additionally, as identified by the State, a large amount of evidence independent of McCoy and Cooper's confessions was before the trial court which supported the State's theory regarding Walton's role in the murders. Specifically, the trial court had before it Walton's own confession to his role in, and the planning of, the robbery; testimony by John Gray regarding statements Walton made to him describing how he had attempted to fire his pistol, but it had misfired; and the testimony of others who detailed the relative roles each perpetrator played in the crime. See Walton II, 547 So.2d at 623-24. Clearly, extensive evidence was before the trial court which supports its conclusions regarding Walton's leadership of the criminal venture which resulted in the deaths of the three victims. The evidence before the trial court during the resentencing was not the same as that deemed erroneously admitted and relied upon by this Court in Walton I. Walton seizes upon the trial court's determination in its order that Walton grabbed one of the victims by the hair, in an attempt to show that the entire resentencing was tainted with evidence from the previous penalty phase reversed in Walton I. [7] The State cannot identify any source for this information, and there is seemingly no record material from the resentencing proceedings which supports this statement by the trial court. While this presents questions, the inclusion of one errant phrase by the trial court in its sentencing order is not significant evidence that the trial court relied upon the original confessions of McCoy and Cooper in sentencing Walton to death. Clearly, taken in conjunction with the presence of the overwhelming evidence before the court supporting its conclusions as to Walton's leadership role in the burglary planning, this mistaken statement by the trial court within its final order was harmless. Certainly, the trial court's final sentencing decision did not hinge upon whether Walton actually placed his hands upon a victim's hair or not. Thus, this error did not contribute to Walton's sentence, and we conclude that it is harmless under State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Because the trial court had before it substantial evidence in support of the conclusions contained in its sentencing order, trial counsel was not ineffective for failing to register an objection. See Engle, 576 So.2d at 701-02; Card, 497 So.2d at 1177 (counsel is not ineffective for failing to raise meritless claims). Likewise, appellate counsel did not render constitutionally defective assistance in failing to raise this meritless claim. See id. Walton next contends that imposition of the death penalty upon him in the instant case constitutes cruel and unusual punishment because he was prosecuted under a theory of felony murder and it was never proven that he was actually individually responsible for the deaths of the victims. Additionally, he contends that his trial counsel rendered ineffective assistance of counsel in failing to register an objection on these grounds, and that his appellate counsel rendered ineffective assistance of counsel by not arguing this claim on direct appeal. This claim is meritless. In Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), the United States Supreme Court settled the issue of what manner of participation by a defendant convicted on a theory of felony murder must be shown to make the defendant constitutionally eligible for the death penalty. The Court's conclusion was concisely stated: [W]e simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. 481 U.S. at 158, 107 S.Ct. 1676. In the instant case, there can be no doubt that Walton's participation in the felony robbery was major. Walton planned, led, and perpetrated the robbery from start to finish. See Walton II, 547 So.2d at 623-24. Additionally, Walton was certainly indifferent to human life here— Walton does not contest that he armed the group, ensured that the group was masked, and participated in the binding of the victims with duct tape—all actions which set the stage for the eventual murders. Clearly, the trial court had before it evidence which fulfills the United States Supreme Court's Tison requirements. Thus, this claim is without merit, and the ineffective assistance of counsel claims must also fail. As his next claim, Walton asserts that this Court's vacation of codefendant Terry Van Royal's death sentences, combined with the fact that Van Royal was a triggerman, while Walton was not, renders his sentence of death disproportionate. Additionally, he contends that his appellate counsel rendered ineffective assistance of counsel for failing to raise this issue on appeal. This Court has consistently held that the sentence of an accomplice may indeed affect the imposition of a death sentence upon a defendant. Foster v. State, 778 So.2d 906, 922 (Fla.2000); see also Keen v. State, 775 So.2d 263, 285-86 (Fla.2000). Just as steadfastly in this situation, this Court has also held that [d]isparate treatment of a codefendant, however, is justified when the defendant is the more culpable participant in the crime. Larzelere v. State, 676 So.2d 394, 407 (Fla.1996); see also Foster, 778 So.2d at 922; Ray v. State, 755 So.2d 604, 611-12 (Fla.2000). As detailed above, and as related in this Court's Walton II opinion, significant evidence was introduced during Walton's resentencing proceedings showing that he was the only participant with knowledge of the victims' location, the only party with a motive to end the life of Stephen Fridella, and the leader in the planning of the robbery operation. See Walton II, 547 So.2d at 624. While Van Royal did participate in the murders, his death sentences were vacated only because the trial court in his case failed to support its sentencing with specific findings. See Van Royal v. State, 497 So.2d 625, 628 (Fla.1986). In the postconviction proceedings below, Walton failed to introduce any evidence which would negate the findings of the resentencing court regarding Walton's leadership of the robbery/murder enterprise. Indeed, this claim is based only upon Walton's unsupported assertion that Van Royal was a triggerman, while Walton was not; therefore, he should not receive the death penalty. Because, as concluded by the resentencing court, and unrebutted by Walton, [a]ll of the victims in the ghastly incident died as a result of gunfire brought down upon them through the leadership of the defendant, Jason D. Walton, Walton was indeed more culpable than Van Royal. Thus, under Larzelere, Walton's death sentence is entirely proper, even after Van Royal's sentence was reduced to life imprisonment. Because Walton's death sentence was warranted by his relative culpability and leadership of the operation which caused the deaths of the three victims here, Van Royal's life sentence does not make Walton's sentence disproportionate. Therefore, appellate counsel was not ineffective for failing to raise this meritless claim. See Suarez v. Dugger, 527 So.2d 190, 193 (Fla.1988) (The failure of appellate counsel to brief an issue which is without merit is not deficient performance....); Martin v. Wainwright, 497 So.2d 872, 874 (Fla. 1986) (same). While admitting that this claim was presented and fully addressed in his first direct appeal, Walton contends in both his postconviction appeal and his habeas corpus petition that United States Supreme Court decisions delivered after the finality of his direct appeal require us to reconsider our Walton I decision. Walton asserts that Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), and McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), make it clear that his confession, which occurred after he had consulted with an attorney, should not have been admitted into evidence at his original trial. In Walton I, this Court detailed and addressed this issue in the following manner: Appellant first asserts that the trial judge erred in denying appellant's motion to suppress his two statements. Appellant acknowledges that prior to giving the statements, he had been fully advised and executed written waivers of his Miranda rights, but argues that he invoked his right to terminate questioning when he remarked, I would like to but I don't really want to [give a statement]. Appellant contends that his subsequent statements were, therefore, obtained in violation of appellant's constitutional rights to remain silent and to have counsel present during questioning. The record reveals that despite repeated reminders from police that appellant had the right to remain silent, appellant's first statement resulted when he persisted in attempting to exculpate himself by suggesting to detectives that he was present at the scene of the crime but did not participate in the actual murders. We reject appellant's argument that his remark, in the context in which it occurred, is subject to the interpretation that appellant was invoking his right to silence under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We find Edwards is not applicable under the facts of this case and that the trial judge properly admitted the challenged statements. Walton I, 481 So.2d at 1199. Clearly, any claim regarding the admissibility of Walton's confession was raised and addressed in Walton I. Therefore, it is barred from relitigation in this collateral postconviction proceeding. Even though this claim is certainly barred, it is clear that the Minnick and McNeil decisions only address the situation in which law enforcement officials initiate a conversation with a defendant after he has consulted with counsel. Indeed, in Minnick, the Court was specific: Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided he has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Minnick, 498 U.S. at 156, 111 S.Ct. 486; see also McNeil, 501 U.S. at 177, 111 S.Ct. 2204. The conversations at issue here were begun by Walton. Specifically, this Court noted that [f]ollowing his apprehension, appellant initiated a conversation with detectives who were transporting him from the courthouse to jail. Walton I, 481 So.2d at 1198 (emphasis supplied). Despite repeated reminders from the police that he had the right to remain silent, Walton persisted in attempting to exculpate himself by suggesting to detectives that he was present at the scene of the crime but did not participate in the actual murders. Id. at 1199. Because the statements were initiated by Walton himself, Minnick and McNeil do not apply. As this claim was fully addressed by this Court in Walton I, and no grounds exist for a reexamination of the issue, we deny relief. In his next claim for relief, Walton asserts that this Court erred in Walton II when it held that Walton's counsel initiated the submission of evidence regarding remorse for the killings, and that the transcripts of Walton's resentencing show that the State unconstitutionally introduced evidence regarding Walton's lack of remorse during his sentencing proceedings. Because lack of remorse may not be used as an aggravating factor, Walton contends that this Court should grant him a new penalty phase. Additionally, Walton asserts that his trial counsel was ineffective for failing to object to the State's submission of this evidence. This precise claim was raised on the direct appeal of Walton's resentencing. There, we held: In his second point, Walton argues that the state improperly presented evidence concerning lack of remorse as a nonstatutory aggravating circumstance. In response, the state asserts that Walton's counsel initiated the questioning of defense witnesses concerning remorse and expressly asked one witness what if any remorse had Walton shown, thus opening the door concerning this issue. This Court has consistently held that lack-of-remorse evidence cannot be presented by the state as an aggravating circumstance in its case in chief, see Robinson v. State, 520 So.2d 1 (Fla. 1988); Patterson v. State, 513 So.2d 1263 (Fla.1987); Pope v. State, 441 So.2d 1073 (Fla.1983); Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983), but that does not mean the state is unable to present this evidence to rebut nonstatutory mitigating evidence of remorse presented by a defendant. See Agan v. State, 445 So.2d 326 (Fla.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984). Walton II, 547 So.2d at 625. Walton, in a strikingly direct fashion, simply proceeds in his postconviction appeal to reargue the precise claim addressed by this Court in Walton II. Clearly, this type of reargument is improper, and this claim is barred. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (If [an] issue is raised on direct appeal, it will not be cognizable on collateral review.). Likewise, since this Court has held that the State's submission of evidence supporting a conclusion that Walton had no remorse for the killings was not wrongful, the lack of an objection from Walton's trial counsel does not evidence ineffective assistance of counsel. Walton next contends that under rule 3.851, the signing of a death warrant by the governor unconstitutionally shortens the time period in which a death-sentenced defendant may file his rule 3.850 motion. In Cave v. State, 529 So.2d 293 (Fla.1988), we addressed this claim by stating: Appellant presents one additional point. Under rule 3.850, appellant's conviction and sentence became final in early June 1986, when the United States Supreme Court denied certiorari review of Cave, our affirmance on direct appeal. Burr v. State, 518 So.2d 903 (Fla.1987). Rule 3.850 prescribes a two-year period following final conviction for filing petitions for post-conviction relief, after which such petitions are procedurally barred. The Governor signed a death warrant on appellant on April 27, 1988, providing for execution during the week of July 6, 1988. Under these circumstances, Florida Rule of Criminal Procedure 3.851 requires that any post-conviction petitions be filed within thirty days of the signing of the warrant. Appellant filed his petition on May 27, 1988, which, he now claims, shortened by thirteen days his asserted right to a two-year period under rule 3.850. Essentially, appellant is claiming that procedural rule 3.850 prohibits the Governor of Florida from signing a death warrant until two years after a death sentence becomes final. This issue was not presented below and is procedurally barred. Moreover, this Court has no constitutional authority to abrogate the Governor's authority to issue death warrants on death sentenced prisoners whose convictions are final. Unless there is a petition for post-conviction relief, the affirmance of a final conviction ends the role of the courts. Rule 3.850 merely provides a time period after which petitions may not be filed. It does not act as a bar to execution of sentences immediately after they become final. Cave, 529 So.2d at 298-99. Clearly, we have resolved this claim contrary to Walton's assertions, and must deny relief. In the first independent claim of his supplemental rule 3.850 filings, Walton contends that the State withheld evidence revealing possible deception and a role in motivating the murders by Robin Fridella, in contravention of the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Walton contends that handwritten police notes from officer interviews, a police report relating the details of a civil disturbance which occurred between Robin and Stephen Fridella, and a polygraph examiner's handwritten notes from an examination of Robin were all suppressed by the State, and could have been used effectively by the defense at trial. To establish a Brady violation, Walton must prove: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued. Way v. State, 760 So.2d 903, 910 (Fla.2000) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Walton contends that the State wrongfully suppressed handwritten police notes and a domestic disturbance report which show the tumultuous relationship and hatred between Robin Fridella and Stephen Fridella. The handwritten notes created by an unidentified police officer indicate initial uncertainty in the murder investigation regarding Robin Fridella's veracity and possible involvement in the murders. Additionally, Walton argues that the State should have turned over a polygraph report indicating the possibility that Robin was not being entirely frank with the police investigating this crime. This evidence, Walton contends, could have been used by the defense to craft a different theory of defense—in particular, it would have enabled Walton to assert that Robin was the mastermind who dominated him and encouraged the murders so that she could have sole custody of her child. The court below addressed this claim by stating: The Court finds that Defendant fails to successfully assert a Brady violation. First, Defendant fails to demonstrate that the evidence presented at the evidentiary hearings was favorable to him. Assuming arguendo that Robin Fridella was more involved in planning the burglary/robbery and the murders, it would not have lessened Defendant's guilt in the guilt phase given the questionable admissibility of such evidence in the guilt phase. Furthermore, the record is clear that Defendant was aware of the witness in question (his girlfriend), and more importantly, he knew the information about which she testified. Although the due diligence requirement is absent from the Supreme Court's most recent formulation of the Brady test, it continues to follow that a Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because evidence cannot be found to have been withheld from the defendant. Occhicone v. State, 768 So.2d 1037 (Fla.2000). Thus, the police officer's notes were not exculpatory, nor did they have any impeachment value. This is evidenced by defense attorney Donald O'Leary's testimony ... that although he would have expected to have received pursuant to Brady the information that the police had about Robin Fridella's custody problems in the divorce proceeding against her husband and that she had accused him of sleeping with another woman, he said it would not have been consistent with his theory of the defense and would, in his opinion, have actually been antagonistic. ... Mr. O'Leary said that the exhibits of which he had been made aware (the polygraph examiner's notes on Robin Fridella, the civil trespass report about Robin's custody dispute and the police officer's notes on Robin Fridella) would not have changed his strategy and that he was surprised they had not been used by the State against him because they would have added fuel to the fire that the murders were planned and premeditated.... In this case, the notes or documents to which Defendant alludes do not contain material information that would produce an acquittal or a life sentence on retrial. This Court acknowledges that the Florida Supreme Court has stated that attorney notes of witness interviews maintained by the State constitute Brady material. However, in this case, the notes were handwritten by a police officer, and the record affirmatively reflects that Defendant was aware of this witness (his girlfriend), and more importantly, he knew about the information to which she testified. .... Thus, Defendant's Brady claim is without merit because there is no reasonable probability of a different outcome had the handwritten police notes been used by the defense at trial. (Citations omitted.) The trial court's conclusions are not clearly erroneous. Indeed, regardless of the dubious favorableness of this evidence to Walton, [8] Occhicone v. State, 768 So.2d 1037 (Fla.2000), holds that evidence known by a defendant cannot violate the precepts of Brady. According to Walton, the alleged usefulness of this evidence lies in revealing the troubled nature of Robin and Stephen Fridella's relationship, as well as the relationship between Robin Fridella and Walton before and after the time of the murders. As noted by the court below: Defendant's [pretrial] admissions to the police ... included that he was aware that Robin had a child custody hearing coming up and that they were fighting for the kids.... Defendant said that he was dating Robin at the time, that they were not living together, and that she had said something about going back to her husband, but that he did not believe they were planning on getting back together. Clearly, Walton himself was fully informed of Robin Fridella's troubles with her husband, and he obviously was aware of the nature of his own relationship with Robin. Thus, under Occhicone, Walton's Brady claim cannot stand [because he] knew of the evidence withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from him. 768 So.2d at 1042. Even assuming that Occhicone is not dispositive here, Walton cannot prove that his case was prejudiced by the State's suppression of the identified evidence. To prevail, Walton must show that the evidence was material. See Way, 760 So.2d at 913. Evidence is material if it places the whole case in such a different light as to undermine confidence in the verdict. Strickler v. Greene, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). In the instant case, Walton has not shown that evidence revealing that his girlfriend at the time of the murders would have benefitted from the death of her husband undermines any confidence that Walton was properly convicted of murder and sentenced to death. Indeed, this evidence actually tends to support the State's primary prosecutorial theory that Walton carefully planned and carried out the instant murders. Walton's Brady claim must fail. As a corollary to his Brady claim, Walton contends in his newly filed 3.850 appeal that the trial court failed to consider newly discovered evidence which shows that Walton was not the ringleader in the instant case, and was merely a bystander. Walton identifies various statements by codefendant Terry Van Royal in which Van Royal disavows earlier statements he made asserting that Walton was the mastermind or leader of the group committing the murders. Additionally, during the evidentiary hearing below, Walton introduced testimony from Ken Driggs and Elizabeth Wells, Capital Collateral Regional Counsel attorneys who interviewed codefendant Van Royal subsequent to the resentencing trial of Walton. They testified that Van Royal told them that Walton was not the leader of the group which killed the victims in the instant case, and that the murders were entirely unexpected. Walton contends that this information is newly discovered evidence which would probably produce a life sentence on retrial. To justify the granting of a new trial on the basis of newly discovered evidence, Walton must first show that the evidence was unknown at the time of trial, and could not have been obtained at that time through due diligence. See Robinson v. State, 770 So.2d 1167, 1170 (Fla.2000). Once past this threshold finding, Walton must also show that the newly discovered evidence would probably produce an acquittal on retrial. Id. It is plain that Van Royal was available at the time of trial. He was available to be deposed, all parties were aware of his existence because he was a charged codefendant, and he gave multiple statements to the police which were available to counsel. What Walton has presented as newly discovered evidence is simply a new version of the events from a witness/participant who has presented multiple stories since the time of the occurrence of the events themselves. As is clear from the testimony of attorneys Driggs and Wells, Van Royal was a very untrustworthy person when it came to providing the truth about the murders. Indeed, the following exchange and conclusion during the questioning of Ken Driggs evidences one instance of Van Royal's changing testimony: Q: So you were aware that in December of 1999 that Mr. Van Royal testified in this courtroom that he said that Jason Walton had shot possibly two or three of the victims? A: Recently I was made aware of that, yes, subsequent to the execution of my affidavit. Q: Were you aware that he said in this courtroom, December of 1999, that he did not shoot anyone? A: Yes .... Q: So, I take it then, sir, that it would be fair to say that from the information you received, Mr. Van Royal has made a number of different statements that are difficult to reconcile? A: That would appear to be the case. Even if Van Royal's newest version of the events culminating in the murders qualifies as newly discovered evidence, it is obvious that this evidence is composed of statements made by an extremely untrustworthy person. If Van Royal's new statements were introduced into the current body of evidence in the instant case—subject to impeachment through introduction of prior inconsistent statements—its effect would likely be negligible. See Lightbourne v. State, 742 So.2d 238, 247 (1999) ([R]ecanted testimony can be considered newly discovered evidence, but ... the trial court must examine all of the circumstances of the case.) (internal quotation marks omitted). Certainly, the trial court did not err in concluding that this evidence would not cause a different result if it were before a jury in a new resentencing proceeding. Walton's set of claims asserting that his trial attorneys rendered constitutionally ineffective assistance deserves close examination. Walton contends, as part of both his initial and supplemental 3.850 motion filings, that his counsel failed to rebut the prosecution's assertions that he was the mastermind of the murders with evidence available through reasonable investigation, failed to object to the admission of evidence tending to prove Walton's involvement in drug transactions and use, mistakenly opened the door to the prosecution's admission of Walton's rap sheet, failed to object to improper jury instructions, and failed to perform adequate investigation to obtain full materials to present as mitigating evidence. As stated by this Court following the announcement of the United States Supreme Court's seminal decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ineffective assistance of counsel claims are to be evaluated in the following fashion: A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the proceeding that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Importantly, a court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. Id. Walton first contends that his counsel rendered ineffective assistance because he did not attempt to rebut the prosecution's arguments and evidence tending to show that Walton organized and led the robbery that ended in the murders here. In support of this assertion, Walton identifies certain statements made by the State's attorney during codefendant Cooper's trial in which the State argued that Cooper was not under the direction of Walton. In particular, Walton cites two statements during the prosecution's closing argument in which the State asserted that it was absolutely ludicrous to say that Walton was at fault for Cooper's actions, and there was no evidence to support the incredible proposition that Walton dominated Cooper during the crime. The factual circumstances at issue here are quite similar to those presented in Fotopoulos v. State, 838 So.2d 1122 (Fla. 2002). In that case, Fotopoulos asserted that his trial counsel was deficient for not attempting to introduce a large amount of evidence and argument by the State from a codefendant's trial which tended to negate the prosecution's theory of domination and leadership of the crimes by the defendant. In Fotopoulos, we concluded that Fotopoulos had not demonstrated deficient performance by his trial counsel, despite the fact that he did not use the evidence admitted in a codefendant's trial. See Fotopoulos v. State, 838 So.2d at 1128-30. When compared to the large amount of evidence not utilized by the defense in Fotopoulos, the two small statements ignored by trial counsel in the instant case are somewhat insignificant. Thus, under the reasoning recently adopted by this Court in Fotopoulos, Walton has failed to make the required showing to fulfill the Strickland performance prong. Additionally, Walton cannot show prejudice here. Evidence introduced at Walton's trial showed that Walton originated the plan to rob the victims on a rainy night, Walton armed the group prior to the robbery, and Walton was the only defendant involved who knew the location of the victims' house. See Walton II, 547 So.2d at 623-24. In the face of this overwhelming evidence, it is clear that the introduction of two statements by a state attorney in a codefendant's trial would not have been overly persuasive. Certainly, non-introduction of this evidence does not undermine our confidence in the outcome. Next, Walton contends that his trial counsel deficiently failed to object to the State's admission of evidence showing that Walton had previously been involved in drug transactions and use. At trial, Walton's counsel attempted to prove the existence of the no significant history of prior criminal activity mitigator. In rebuttal, the State introduced evidence which supported its assertions that Walton had been involved in drug dealing; specifically, it introduced evidence that Walton sold marijuana, and that codefendant Cooper had been seen carrying a fifty-pound bale of marijuana towards Walton's home. See Walton II, 547 So.2d at 624. Walton now contends that trial counsel's failure to object to the admission of this evidence constitutes deficient performance. This Court specifically addressed the admission of this evidence during the direct appeal of Walton's resentencing. In Walton II, this Court specifically held that this testimony was proper, stating: Once a defendant claims that this mitigating circumstance is applicable, the state may rebut this claim with direct evidence of criminal activity. Id. at 625. Because this Court has addressed this claim in a manner adverse to Walton's contentions here, his trial counsel's failure to contest the admissibility of this evidence cannot be deemed ineffective assistance. Additionally, Walton's assertion that his appellate counsel failed to raise this claim on direct appeal is positively refuted, as appellate counsel clearly fully litigated the issue before this Court. See id. In a claim related to the issue raised above, Walton asserts that it was error for his trial counsel to attempt to show the existence of the no significant history of prior criminal activity mitigator here, because it opened the door for the State to introduce evidence of Walton's previous illegal conduct—including Walton's rap sheet, which included a reference to an arrest and charge for theft of marijuana. Additionally, Walton contends that his counsel erred by not objecting to the rap sheet's admission into evidence. Regardless of whether trial counsel's performance violated the first prong of the Strickland standard, it is absolutely clear that the jury's exposure to evidence of Walton's drug-related criminal activity could not have prejudiced him. The entirety of Walton's guilt and sentencing proceedings revolved around a factual scenario in which it was proven and uncontested that Walton had organized a group robbery to obtain drugs and money obtained through the sale of drugs. A foundational issue accepted as true at the resentencing was that Walton had participated in a robbery whose sole object was the procurement of drugs and cash. Certainly, the introduction of evidence showing that Walton had been involved in drug sales and thefts prior to the night of the murder was harmless, and when evaluated in the context of a trial which revolved entirely around Walton's attempt to forcibly obtain drugs, did not so affect the fairness and reliability of the proceeding that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So.2d at 932. Walton next contends that his trial counsel rendered constitutionally ineffective assistance by failing to object when the trial court instructed the jury that it must consider the aggravators related by the judge, but may consider the mitigators listed by the court. Walton asserted the claim that this instructional error was prejudicial on direct appeal of his resentencing, and it was decided adversely to him. See Walton II, 547 So.2d at 625-26 (We find no fundamental error in the instructions. Taken as a whole, they demonstrate that the burden of proving the aggravating circumstances rested with the state.). Walton's attempt to resurrect the claim through an ineffective assistance of counsel claim is entirely improper. See Medina v. State, 573 So.2d 293, 295 (Fla. 1990) (holding that allegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal). In his final allegation of ineffective assistance, Walton contends that his trial counsel failed to adequately investigate for evidence which could have been used as proof of nonstatutory mitigation. During the resentencing, Walton's counsel presented three witnesses: a coworker, a childhood friend, and Walton's mother. At the evidentiary hearing below, Walton's trial counsel related his theory of the defense, stating: The avenue of thought was pretty limited, and the theory of defense was that we—the road we went down was that this was, as far as my client was concerned, nothing more than a planned robbery gone bad, that he had divorced himself from that when it became apparent there were no goods to be had— goods, money, or drugs—and that he was in the act of leaving, having abandoned the robbery, when the murders occurred. During the postconviction hearings below, Walton introduced evidence through the testimony of his mother and sister that his home life as a child was awful—he grew up in a single parent home, his mother engaged in promiscuous behavior in front of Walton and his siblings, his alcoholic stepfather often encouraged Walton to abuse drugs, and his stepfather subsequently choked to death in front of Walton when he was an adolescent. Evidence was also introduced which revealed that Walton had abused drugs as an adolescent and teenager, and had been enrolled in a radical therapy program which likely left him severely emotionally scarred, but which had not halted his continued abuse of illegal drugs. Walton also introduced evidence during his postconviction hearings which raised questions regarding whether Robin Fridella, Walton's girlfriend and the wife of one of the victims at the time of the murders, may have played some role in the planning of the robbery and murders. Finally, Walton introduced the testimony of Bruce Jenkins, a friend of Walton's who explained that Walton's statement prior to the murder that he might be required to waste victim Stephen Fridella did not necessarily mean that he would kill him. While it is clear that the evidence in mitigation illuminated during the postconviction proceedings below could have aided Walton's case before his resentencing jury, it is also absolutely clear that his trial counsel competently investigated for evidence in mitigation before trial. Walton's trial attorney, Donald O'Leary, stated that he asked Walton and his family members every question [he] could think to draw out relevant information concerning Jason's background. Indeed, the record reflects that O'Leary performed extensive discovery prior to trial, and the following portion of the hearing transcript details the facts before O'Leary after the completion of his investigation: Q: During that time [before trial] did you have rather extensive contact with the defendant, Jason Walton? A: Yes. Q: Okay. You met with him, talked with him, spent many hours with him? A: Yes. Q: And you also had a lot of contact with his mother and with other family members; did you not? A: Yes. Q: Okay. Now, I don't want to leave the impression that you just sat there in their presence waiting for them to say something. You asked them questions, didn't you? A: Yes. Q: You asked them every question you could think to draw out relevant information concerning Jason's background? A: Yes. Q: Some of them may have been general as opposed to specific correct? A: Yes. Q: But you did ask questions that ... you would have expected had Mrs. Walton known all about these drug problems, known about brain damage or known about head injuries, you asked sufficient questions that she should have answered those? She should have told you about those things? A: In my own mind, yes. Q: So you weren't just sitting there waiting for her to bring up these facts to you? A: No sir. Q: You didn't expect her to decide what the issues might be, you asked questions that would give you relevant information? A: Yes. Q: Okay. And nobody told you anything about any of this? A: No. Q: Including your client, Mr. Walton? A: Yes. Q: And you made your decisions as to what evidence was going to be put on based upon the information that he gave you, correct? A: Yes. Clearly, O'Leary was entitled to rely upon the veracity of his client and his client's family. Walton's trial counsel made every effort to explore his client's childhood and family background. Every person he spoke with—Walton's mother, coworkers, and other family members—related to him the same story. As O'Leary stated: I kept getting this feedback that he was a normal, average, usual person, nonviolent, nonaggressive, average intelligence. The moderate alcohol and marijuana use revealed to Walton's attorney seemed to be just what young boys, his peers in Marion county [did] on weekends. Our examination of the record before this Court leads us to conclude that Walton's trial attorney performed an adequate and thorough investigation for mitigating evidence before trial. Walton cannot be heard to complain now that his attorney failed to unearth evidence which Walton and his family affirmatively kept from counsel before trial. In sum, there simply was no information before O'Leary at the time of Walton's resentencing which should have led him to investigate Walton's drug habits or mental state. A thorough investigation was performed, and O'Leary's performance certainly did not fall below prevailing professional standards. The second category of evidence identified by Walton in support of his claim that his attorney failed to conduct an adequate pretrial investigation, relating to the role of Robin Fridella and the testimony of Bruce Jenkins, does not warrant extended discussion. The record reveals that counsel attempted to contact and depose Bruce Jenkins, but was informed by the State that he was unavailable. As stated by O'Leary himself during the 3.850 hearing, it was hardly unreasonable for him to rely upon the representations of the State Attorney's Office that the police could not locate Jenkins. Certainly, his reliance upon the State was not outside prevailing professional standards. See Maxwell, 490 So.2d at 932. Likewise, the only person in possession of information regarding Robin Fridella's possible role in the crimes at issue and her manipulative effect upon Walton was Walton himself. As O'Leary definitely consulted with Walton, and Walton did not reveal any of this information, O'Leary cannot be faulted. Finally, Walton contends that the postconviction trial court erred when it improperly consolidated a hearing regarding codefendant Van Royal's recanted testimony by allowing counsel for codefendant Cooper to participate in the hearing and cross examine the witnesses. The record reveals that the trial court below held a joint hearing in which CCRC attorneys Driggs and Wells testified regarding their discussion with Van Royal. At that hearing, both Walton and Cooper were present and represented by counsel. In response to Walton's claim alleging improper joinder, the trial court held: Regarding Defendant's allegation that an illegal consolidation of two (2) Postconviction cases occurred, this Court finds that it is without merit. The Court merely held a joint hearing which included the same witnesses.... This was done in the interests of judicial economy to avoid conducting the same hearing twice. The joint hearing was legal because both codefendants Walton and Cooper were present, each with his own counsel, and each had the right to either present or cross-examine the witnesses on their individual considerations. Teffeteller v. Dugger, 676 So.2d 369 (Fla. 1996). Although Cooper's attorney objected at the beginning of such hearing regarding hearsay and relevancy, it is important to note that he withdrew his objection on the record during the proceeding. It is plain from the record that the trial court did not consolidate the postconviction motions or proceedings of Walton and Cooper; moreover, Walton has not demonstrated any prejudice resulting from this joint hearing. Walton was afforded a full and fair opportunity to participate and elicit testimony from the witnesses, and has identified no prejudice. While this Court has mandated that postconviction proceedings may not be consolidated, see Teffeteller v. Dugger, 676 So.2d 369, 371 (Fla.1996); see generally Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), there was no consolidation in the instant case, and no prejudice resulted from the joint hearing below. This claim is without merit.",analysis
+212,2516377,1,2,"Kierra Harrison lived with her parents, Amanda and Seth Harrison, and a family friend, Adam Henderson, in a two-bedroom apartment in Las Vegas. In January 1997, Amanda decided to return to work, so she contacted Wegner to care for Kierra. Amanda hired Wegner to care for her daughter as of February 17, 1997. On February 25, 1997, Kierra received measles, mumps, and rubella vaccination shots. The evening following the vaccinations, Kierra began vomiting and was taken to the hospital by her parents. Kierra was released from the hospital and attended day care for the final three days of the work week. During those days, Kierra was not interested in eating but her health seemed to be improving. Over the weekend, Amanda testified, Kierra went to the park, played, and ate dinner. On Monday, March 3, 1997, Kierra arrived at Wegner's house at approximately 7:30 a.m. Kierra was crying when she was dropped off. Wegner's three children, ages six years, two years and six weeks, were also present. Around 4:00 p.m., Amanda received a phone call informing her that Kierra had fallen, that she might be experiencing a seizure, and that she was being taken to the hospital. When Seth arrived at Wegner's house, Wegner told Seth that she had heard Kierra crying in the playroom. When she went to the playroom, she found Kierra on the floor. Wegner stated that she picked her up and put her in a crib with a bottle. Later, Wegner checked on Kierra and found her turning a strange color, so she called the emergency 9-1-1 number. When the paramedics arrived at 4:05 p.m., they found Kierra unconscious and unresponsive. They checked her head for signs of trauma or swelling but found nothing. Kierra was then placed on mechanical ventilation. Wegner told the paramedics that the children had been rough-housing and that she thought the child might have fallen and hit her head. She said that Kierra had become cranky, so she put her in a bed with a bottle. One of the paramedics who spoke to Wegner, Brett Benson, testified that Wegner was upset, but not hysterical. Benson checked Kierra for head injuries in the ambulance on the way to the University Medical Center (UMC), but discovered nothing in that regard. Later, Benson returned to the hospital and noticed considerable swelling in the back of her head and neck that he did not recall seeing previously. Amanda testified that, upon seeing Kierra at the hospital, Kierra was pale, her eyes were closed, and the back of her head was swollen. After a CAT scan, Dr. John Anson (the examining physician) informed Amanda and Seth that Kierra's skull was fractured and there was evidence of a possible blood clot. Although Kierra underwent surgery, she died on March 5, 1997. Wegner was subsequently arrested and charged with Kierra's murder. Crime scene detectives and analysts found that the dining room, living room, and playroom all had normal carpeting on the floors. In a playpen there was a mattress and a variety of toys. In another room there was a crib with a mattress, one toy, and a bottle in it. At trial, Shellene Renteria and Jennifer Cerone testified that they were at Wegner's day care operation on the afternoon of March 3rd. Renteria testified that she arrived at Wegner's day care address shortly after 2:45 p.m. for an interview. Wegner showed Renteria the facilities, including the day care room, the kitchen, and the backyard. They discussed routines and fees. Wegner did not show Renteria the back bedrooms where the children were sleeping. Renteria stated that Wegner did not appear stressed. Renteria left around 3:30 p.m. Cerone testified that she arrived at Wegner's around 4:00 p.m. on March 3rd. Wegner answered the doorbell with a limp Kierra in her arms. Wegner was trying to resuscitate the child in her arms, but the child was then placed on the floor and Cerone started CPR. They discovered that Kierra had a pulse and was breathing. Wegner asked Cerone to call Amanda to inform her of Kierra's medical emergency. Cerone testified that Wegner was crying and that she said something to the effect of I hope this baby doesn't die. I hope I didn't do anything wrong. Ten days later, after Cerone saw the news and formed opinions about the case, Cerone told the police that she thought Wegner's crying was an act. Both parties at trial called expert witnesses to testify about Kierra's injuries and the cause of those injuries. Two conflicting views with regard to the cause of Kierra's death arose from the testimony of medical experts. The State's witnesses generally testified that Kierra sustained a non-accidental trauma to the head on March 3rd causing a head fracture and hemorrhaging around the brain. Defense witnesses testified that pathological evidence of macrophages (indicating healing from an earlier injury) suggested that Kierra sustained an injury at least a few days before March 3rd. Reports from the Mayo Clinic and the Armed Forces Institute of Pathology (AFIP) supported this testimony. The defense experts testified that the initial injury may have spontaneously bled on March 3rd or may have been reaggravated. Dr. Laurence Satkowiak, a pediatrician, treated Kierra in the UMC emergency room upon her arrival on March 3rd. He testified at trial that he initially did not see any bruising or swelling on Kierra's head. His initial diagnosis was that Kierra had suffered from a neurological devastation. Dr. Satkowiak testified that a child injured like Kierra would at first be very fussy—screaming or crying—and then quickly start to lose consciousness, becoming more lethargic. A CAT scan showed that the back of Kierra's skull was fractured, and a large collection of blood within the brain. Based upon the CAT scan information, Dr. Satkowiak concluded that Kierra had suffered a non-accidental injury within the last three to six hours. The doctor testified that Kierra's high blood sugar level supported this diagnosis. Eventually, Dr. Satkowiak turned over Kierra's care to Dr. Meena Vohra. Dr. Vohra, a pediatric intensive care specialist, testified about Kierra's condition while she was at UMC. After viewing the CAT scan, Dr. Vohra testified that she concluded that Kierra's injuries were non-accidental and probably occurred on March 3rd. Other than the skull fracture, Dr. Vohra did not see any other signs of injury or abuse. As the swelling in Kierra's skull worsened on March 3rd, doctors at UMC determined that surgery was necessary. Dr. John Anson, a neurosurgeon, operated on Kierra. He testified that Kierra's injuries probably occurred within the four hours prior to Kierra's hospitalization. During surgery there was cerebellar tissue coming up through the skull fracture. Dr. Anson removed a sample of brain matter and blood. This sample was subsequently sent to the Mayo Clinic and AFIP for analysis. Dr. Anson saw no evidence of a previous injury. Ultimately, the surgery was unsuccessful and Kierra was pronounced dead on March 5, 1997. Dr. Sheldon Green performed an autopsy of Kierra on March 6th. Dr. Green found no external signs of injury, however, internally Dr. Green found a skull fracture just left of center on the back of Kierra's skull. The fracture showed a line going up and down and one towards the left ear. Dr. Green did not discover any evidence of healing and testified that the injury was caused by blunt force trauma. If the injury was caused by a fall, Dr. Green testified that it would have to be from a second story or about ten feet onto concrete. Other doctors reviewed Kierra's medical file and/or the sample taken from Kierra during surgery. These reviews resulted in conflicting opinions among medical experts concerning the sample taken from Kierra during surgery. The Mayo Clinic reported that the slides taken from the sample showed reactive macrophages and not tumor cells (as it was first diagnosed). AFIP reported that the slides showed reactive inflammatory infiltrate consistent with organizing hematoma. Both reports suggested that an injury occurred before March 3rd. Dr. Jeffrey Johnson of Sunrise Hospital in Las Vegas testified that he reviewed the CAT scans and films of Kierra Harrison three weeks before trial. He stated that the injury was acute, but that he could not be certain about the time of the injury except that it probably occurred forty-eight hours or less before Kierra was brought to UMC. Dr. David Chadwick of the Child Protection Center at the Children's Hospital in San Diego also reviewed Kierra's file. He testified that the injury was non-accidental. He stated that although there are exceptions, for a child to incur a similar injury, a fall of over ten feet was necessary. Dr. Chadwick testified that he thought Kierra must have been slammed backwards into something to cause the fracture. He did not believe that the injury could have taken place more than twenty-four hours before Kierra arrived at UMC, but that it must have occurred at some time on March 3rd. Dr. Lucy Rorke from Children's Hospital in Philadelphia testified that Kierra's injuries were acute and consistent with non-accidental trauma. The autopsy revealed retinal hemorrhages, which Dr. Rorke believed to be caused by blunt trauma to the head. Dr. Rorke testified that the sample of cerebellar tissue and blood taken by Dr. Anson did not reveal macrophages but only degenerated internal granular cells. Thus, Dr. Rorke testified that Kierra's injuries probably occurred on March 3rd. Dr. Rorke stated that if the sample tissue contained macrophages, the injury could not have occurred on March 3rd. Dr. Mary Case, a medical examiner for St. Louis, Missouri, testified that Kierra's injuries were acute and consistent with nonaccidental trauma. She also testified that the sample taken by Dr. Anson was of cerebellum material and blood. Like Dr. Rorke, Dr. Case testified that the sample did not include macrophages and that Kierra's injury probably took place on March 3rd. Dr. Case testified that macrophages do not develop for two or three days. Thus, if they were present, Kierra's injury could not have occurred on March 3rd. Dr. Case further testified that Kierra's injury was probably caused by acceleration and then deceleration of the brain—basically that her head was impacted with a blunt object. Dr. Case testified that these injuries are associated with retinal hemorrhages, but that falls do not usually cause retinal hemorrhages. Dr. Marietta Nelson, a pediatric ophthalmologist, who reviewed only the autopsy reports, testified that the retinal hemorrhages were a classic sign of shaken baby syndrome. Dr. Nelson testified that the injury was of a non-accidental nature with hemorrhages that must have appeared quickly after the injury. Dr. Craig Voss, a pathologist at UMC, is the doctor who sent Kierra's samples to the Mayo Clinic and then to AFIP for second opinions. At first, Dr. Voss believed the samples showed an oligodendroglioma or brain tumor. After reading the reports from the Mayo Clinic and AFIP, Dr. Voss changed his opinion and adopted the findings of the Mayo Clinic and AFIP, that Kierra sustained an injury more than a few days before she arrived at the trauma center. Dr. Barbara Wolf, an expert in forensic pathology, testified that the sample cells prepared by Dr. Voss, which were sent to the Mayo Clinic and AFIP, exhibited macrophages. Dr. Wolf explained that the number of macrophages present in the sample would take a minimum of forty-eight hours to develop. The specialized staining of the slide sample by the Mayo Clinic and AFIP was negative for internal granular tissue. Dr. Wolf testified that after the initial injury, Kierra's injury could re-bleed spontaneously or with minor trauma. Finally, Dr. Wolf stated that the initial trauma would not necessarily have rendered Kierra immediately unconscious. Dr. Robert Cantu, Director of Pediatric Neurosurgery at Boston City Hospital, testified that the degree of the injury shown in the first CAT scan was more extensive than he thought would be evident from an injury occurring just a few hours previously. Dr. Cantu testified that in his opinion if the injury was as recent as March 3rd, there would have been external evidence of the injury on Kierra's skull. Thus, one of the possibilities, Dr. Cantu stated, was that Kierra sustained a skull fracture days earlier and the scalp healed. Dr. Cantu testified that the blood clot removed from Kierra's head, which was initially described as a brain tumor, suggested that reactive changes were ongoing for a period of days. Dr. Cantu also testified that he saw skull fractures in children where the falls were not from a great height. Dr. Cantu testified that there were inconsistencies in the medical evidence that would make it difficult for anybody to be absolutely sure that all of Kierra's injuries occurred on March 3rd.",facts
+213,6322254,1,5,"[4,5] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the appeal. 7 For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. 8 Feik contends that the order appealed from is not a final order. [6,7] In probate proceedings, an appellate court applies the rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether an order is final. The relevant questions are whether the order was made during a special proceeding and affected a substantial right. 9 A proceeding under the Nebraska Probate Code is a special proceeding. 10 [8-10] We turn our attention to whether the order affected a substantial right. A substantial right is an essential legal right, not a mere technical right. 11 A substantial right is affected if an order affects the subject matter of the litigation, such as by diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. 12 Substantial rights under § 25-1902 include those legal rights that a party is entitled to enforce or defend. 13 [11] In the context of multifaceted special proceedings that are designed to administer the affairs of a person, an order that ends a discrete phase of the proceedings affects a substantial right because it finally resolves the issues raised in that 7 In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021). 8 In re Estate of Beltran, supra note 3. 9 Id. 10 See id. 11 Id. 12 Id. 13 In re Estate of Larson, supra note 7. - 988 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 phase. 14 Thus, a consideration regarding the finality of orders in probate cases is whether the order ended a discrete—that is, separate and distinct—phase of the proceedings. 15 A statute provides that “a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.” 16 Here, the probate court’s order appointing Kelly as personal representative ended a discrete phase of the probate proceeding. Moreover, the appointment order coupled with the issuance of letters of personal representative imposed fiduciary duties upon Kelly. 17 Because the order was made in a special proceeding and affected a substantial right, it was a final order. Appointment of Kelly as Personal Representative We next consider Kelly’s assignment of error alleging that the probate court “erred in appointing [her] as personal representative of the Estate because it lacked jurisdiction to make the appointment, [Kelly] objected to the appointment, and [she] did not accept the appointment as required by Nebraska Revised Statute § 30-2420.” During oral arguments, Kelly’s counsel argued in connection with this assignment that the letters were not effective. We understand Kelly’s assignment of error to encompass a challenge to the issuance of letters of personal representative to an appointee who refuses to qualify. Several probate statutes speak to qualification of a personal representative. One provides that “to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court 14 Id., citing John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 15 In re Estate of Beltran, supra note 3. 16 Neb. Rev. Stat. § 30-2407(4) (Reissue 2016). 17 See Neb. Rev. Stat. § 30-2464 (Reissue 2016). - 989 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 or registrar, qualify and be issued letters.” 18 Another specifies that “the registrar . . . shall appoint the applicant subject to qualification and acceptance.” 19 Yet another states that “[p]rior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 20 The latter two statutes touch on another important component: acceptance. Acceptance of an appointment denotes consent to the appointment. 21 “Consent is the preliminary essential requirement for an appointment as an executor or administrator.” 22 The Utah Supreme Court addressed the necessity of consent in considering whether a court had the authority to compel an individual to serve as an administratrix against her will. 23 It found support for the requirement in its constitutional and statutory provisions: The Constitution of Utah prohibited “‘involuntary servitude,’” while a statute required that prior to issuance of letters testamentary or of administration “‘the executor, administrator or guardian must take and subscribe an oath that he will perform according to law the duties of executor, administrator or guardian, which oath must be attached to the letters.’” 24 The court explained the importance of appointing an individual willing to serve: A highly personal trust arises from an appointment as administrator and to compel one to serve against his will for the benefit of those to whom he has no obligation 18 Neb. Rev. Stat. § 30-2403 (Reissue 2016). 19 Neb. Rev. Stat. § 30-2420 (Reissue 2016). 20 Neb. Rev. Stat. § 30-2444 (Reissue 2016). 21 See “Accept,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”). 22 33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of Estate of Cluff, 587 P.2d 128 (Utah 1978). 23 See Matter of Estate of Cluff, supra note 22. 24 Id. at 129. - 990 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 would constitute a violation of public policy as well. It is necessary for the protection of estate heirs, creditors, and the general public that an administrator serve free from compulsion and that he only be allowed to serve when so willing. Generally speaking, only a willingness to serve is consistent with proper estate administration and the interest of the Court. 25 The Utah Supreme Court’s reasoning is persuasive. We need not discuss our own constitution, because our statute, as set forth above, requires that “a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.” 26 A consequence of acceptance is contained in a different statute: “By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person.” 27 With respect to acceptance, we find some parallels in our recent decision concerning a guardianship. 28 There, the county court directed that a ward’s parents be appointed as coguardians upon issuance of letters of guardianship and upon the parents’ filing, among other things, an acceptance of appointment. The parents never filed an acceptance. They appealed, assigning that the court erred in ordering them to serve as guardians over their objection. We agreed with the parents that “one who is not willing to serve as a private guardian cannot be compelled to accept such an appointment.” 29 And we 25 Id. at 129-30. 26 § 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing for appointment to be set aside where personal representative had been appointed but failed to qualify by filing required bond and acceptance within 60 days of appointment). 27 Neb. Rev. Stat. § 30-2445 (Reissue 2016). 28 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021). 29 Id. at 11, 958 N.W.2d at 668. - 991 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 stated that “[o]nly after a written acceptance is filed and the guardian submits to the personal jurisdiction of the court will letters of guardianship be issued by the court.” 30 But in that case, because the parents never accepted the court’s appointment, no letters issued. In rejecting the assignment of error, we stated that “the appointment they assign as error was never completed and cannot be completed without their voluntary acceptance.” 31 The record is devoid of any statement of acceptance filed by Kelly. To the contrary, she filed an objection “as nominated personal representative” to the application for informal appointment of personal representative in intestacy and asked the court to dismiss the application. At oral argument, Feik conceded that no acceptance had been filed by Kelly. [12-14] As we stated with respect to a private guardian, it follows that one who is not willing to serve as a personal representative cannot be compelled to accept such an appointment. Without acceptance by one appointed personal representative, there can be no qualification. 32 And the Nebraska Probate Code requires qualification of a personal representative before the issuance of letters. 33 In other words, in the absence of qualification, the issuance of letters as part of the appointment proc­ ess is not authorized by statute. Here, the court issued letters to Kelly without her qualification. Because this action was not statutorily authorized, we reverse the order directing issuance of letters and the letters issued in accordance with that order, and remand the cause for further proceedings. [15] We express no opinion on the validity or effect of any actions taken in reliance upon the letters issued to Kelly. 30 Id. 31 Id. at 11-12, 958 N.W.2d at 669. 32 See § 30-2444. 33 See §§ 30-2403, 30-2420, and 30-2444. - 992 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 Such questions may well exist, but they are beyond the scope of the present probate proceeding. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory. 34 And to the extent that the reasoning of the county court conveyed in an order within the probate proceeding may seem to express an opinion on matters outside the scope of the appointment proceeding itself, we reverse those portions of the probate court’s order. Statute of Limitations Kelly also argues that § 30-2408 prohibited the commencement of the appointment proceeding. The parties agree that it was commenced more than 3 years after Severson’s death and that no prior appointment or probate proceeding had occurred. But Kelly contends that no exception under § 30-2408 applies while Feik relies upon the exception in subsection (4), which states that “an informal . . . appointment proceeding may be commenced thereafter if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred within the three-year period, but claims other than expenses of administration may not be presented against the estate.” We agree with Feik. [16] The exception applies because no such proceeding had occurred within the 3-year period. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 35 Over a decade ago, we declared that “[§] 30-2408 clearly permits an informal appointment proceeding to be commenced more than 3 years after the decedent’s death ‘if no formal or informal proceeding for probate or proceeding concerning the succession or administration has occurred 34 State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019). 35 In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007). - 993 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports IN RE ESTATE OF SEVERSON Cite as 310 Neb. 982 within the three-year period.’” 36 Thus, a proceeding could be commenced here to appoint a personal representative. We read the clause regarding “claims other than expenses of administration” as limiting the scope of the proceeding rather than its commencement. 37 Remaining Assignments of Error [17] Because we reverse the order directing issuance of letters of personal representative and remand the cause for further proceedings, we need not consider Kelly’s other assigned errors. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 38",jurisdiction
+214,1867490,1,1,Mr. Campbell raises two issues on appeal: 1) whether the final judgment of divorce precluded Ms. Campbell's claims; and 2) whether the trial court erred in failing to give a certain requested jury charge.,issues
+215,3166754,1,2,"K.S.A. 60-255(b) provides that a default judgment may be set aside for any of the grounds listed in K.S.A. 60-260(b), which states: 8 On motion and upon such terms as are just, the court may relieve a party or said party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have been prospective application; or (6) any other reason justifying relief from the operation of the judgment. The Court of Appeals majority primarily relied upon a preservation determination to limit its review to determining whether the excusable neglect reason listed in K.S.A. 60-260(b)(1) was applicable to Ball. The panel majority believed that Ball had only argued excusable neglect in both the district court and on appeal. Garcia, 50 Kan. App. 2d at 201. We discern from the record that Ball did not rely exclusively on excusable neglect to support his motion to set aside default judgment. In the first instance, the Motion to Set Aside Default Judgment that Garcia filed in the district court specifically stated that it was being brought pursuant to K.S.A. 60260(b)(1) and (b)(6). Further, the motion set forth allegations that would be applicable to a subsection (b)(6) determination, rather than a (b)(1) excusable neglect finding, such as the averments that the defendant has a meritorious defense, and [t]here is no factual basis for the amount of the judgment entered. Then, the district court did not rely on excusable neglect to grant the motion, but rather it held that relief was justified by the existence of a meritorious defense and by the 9 premise that the law disfavors default judgments. Those findings fit within the category of any other reason justifying relief. K.S.A. 60-260(b)(6). Moreover, even if Ball had not specifically cited to K.S.A. 60-260(b)(6), there is precedent that would have permitted the panel majority to consider whether the district court's order could have been upheld for any of the reasons set forth in K.S.A. 60-260(b), i.e., that the ruling was correct for a different reason. See In re Estate of Hessenflow, 21 Kan. App. 2d 761, 772-73, 909 P.2d 662 (1995) (order setting aside final judgment upheld under K.S.A. 60-260[b][3], even though neither moving party nor court referred to that specific provision), rev. denied 259 Kan. 928 (1996); see also Mynatt v. Collis, 274 Kan. 850, 873, 57 P.3d 513 (2002) (trial court's reason for decision is immaterial if ruling correct for any reason). In short, the applicability of K.S.A. 60-260(b)(6) was not procedurally foreclosed in this case. The panel majority also opined that Ball was legally precluded from relying on both subsections (b)(1) and (b)(6). The majority cited to In re Marriage of Leedy, 279 Kan. 311, Syl. ¶ 4, 109 P.3d 1130 (2005), for the proposition that the two grounds for relief are always mutually exclusive. Garcia, 50 Kan. App. 2d at 201. Leedy held that the general catch-all provision of K.S.A. 60-260(b)(6) cannot be used to circumvent the 1- year limitation applicable to the specific grounds in the first three subsections, K.S.A. 60260(b)(1)-(3). See also Wilson v. Wilson, 16 Kan. App. 2d 651, 658, 827 P.2d 788 (Relief cannot be granted under K.S.A. 60-260[b][6] if the real basis for relief is one of the reasons listed in 60-260[b][1]-[3] and more than a year has gone by.), rev. denied 250 Kan. 808 (1992). Leedy's prohibition is not applicable here. For one thing, the district court did not find that Ball was entitled to relief under both K.S.A. 60-260(b)(1) and (b)(6). Therefore, even if the two subsections are mutually exclusive, K.S.A. 60-260(b)(6) could apply 10 where K.S.A. 60-260(b)(1) does not apply. Further, Ball was not attempting to circumvent the 1-year time limitation of K.S.A. 60-260(b)(1), as evidenced by the fact that he filed his motion within 1 year of the default judgment. If a movant is not attempting to use the catch-all provision of K.S.A. 60-260(b)(6) to circumvent the 1-year time limitation, he or she is not required to specify only one ground for relief under K.S.A. 60-260(b). See In re Marriage of Hunt, 10 Kan. App. 2d 254, 260, 697 P.2d 80 (1985) (party not required to seek relief under only one of K.S.A. 60-260[b]'s six subsections, but party may not use K.S.A. 60-260[b][6] to circumvent 1-year time limitation). In sum, there was no legal impediment to Ball seeking relief under K.S.A. 60260(b)(6). Next, we turn to a consideration of whether, pursuant to K.S.A. 60-260(b)(6), the district court abused its discretion in its determination that relief from the default judgment was justified for reasons other than excusable neglect. To reiterate, the district court relied in part upon the legal premise that the law dislikes default judgments. That premise is well established. See, e.g., Reliance Insurance Companies v. ThompsonHayward Chemical Co., 214 Kan. 110, 116, 519 P.2d 730 (1974) (default judgments not favored by law). Likewise, the district court noted the factual circumstance that Ball had a meritorious defense. Whether the defaulting party has a meritorious defense is a factor for the district court to consider in a motion to set aside a default judgment. See, e.g., Jenkins v. Arnold, 223 Kan. 298, 300, 573 P.2d 1013 (1978). Additionally, the district court announced that it disliked default judgments in matters of this nature. Although the district court did not explicitly describe the nature to which it was referring, the matter before the court involved large sums of unliquidated damages. There is precedent for the proposition that '[m]atters involving large sums 11 should not be determined by default judgments if it can reasonably be avoided.' Montez v. Tonkawa Village Apartments, 215 Kan. 59, 63, 523 P.2d 351 (1974) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 [3d Cir. 1951]). Finally, [i]n determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits. Jenkins, 223 Kan. at 299. Accordingly, one cannot say that the district court abused its discretion in granting relief from its default judgment. Garcia challenges the district court's finding that Ball had a meritorious defense, arguing that Ball did not present any evidence of a defense. That argument is weakened considerably by the fact that the district court found Ball's exoneration rule defense—to be discussed below—actually required dismissal of the action. The facts necessary for that defense, as well as Ball's subsequent stated statute of limitations defense, were readily discernible from Garcia's petition. The district court's ruling was factually grounded. Also, Garcia argues that Ball's failure to establish excusable neglect means that he did not establish all of the prerequisites for setting aside a default judgment, originally set forth in Montez and, thus, referred to as the Montez factors. Those factors were stated as follows: A motion to set aside a default may be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a willful act. 215 Kan. 59, Syl. ¶ 4. 12 Montez involved a trial court's refusal to set aside a default judgment on the defendant's plea of inadvertence and excusable neglect. 215 Kan. at 59. In other words, Montez reversed the district court's refusal to set aside a default judgment because of the evidence in the record supporting the defaulting party's claim of excusable neglect and inadvertence. In that instance, it was logical for one of the factors to be that the default was not the result of inexcusable neglect or a willful act, i.e., that the movant had established excusable neglect. The same logic does not apply to extending that requirement to a subsection (b)(6) claim, because if a movant can show that the default was not the result of inexcusable neglect, then the movant has shown that the default was the result of excusable neglect. In that case, the movant can simply rely on the excusable neglect reason in subsection (b)(1), rendering subsection (b)(6) always superfluous. See State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014) (court presumes legislature does not intend to enact useless or meaningless legislation; courts interpret statutes to avoid absurd or unreasonable results). Moreover, the Montez factors are not gleaned from the plain language of K.S.A. 60-260(b) but instead were adapted from federal caselaw. See Montez, 215 Kan. at 64 (quoting Schartner v. Copeland, 59 F.R.D. 653, 656 [M.D. Pa. 1973]). And, a review of federal caselaw indicates that the factors are based in equity. See Jennings v. Rivers, 394 F.3d 850, 856-57 (10th Cir. 2005) (Determination of whether neglect is excusable under Fed. R. Civ. Proc. 60[b] is an equitable one, taking into consideration, inter alia, prejudice to the party, reasons for the delay, and whether the movant has a meritorious defense.); Tozer, 189 F.2d at 246 (Because relief from a default judgment is equitable in nature, court may consider whether nondefaulting party will be prejudiced if judgment is set aside.); Trueblood v. Grayson Shops of Tennessee, Inc., 32 F.R.D. 190, 196 (E.D. Va. 1963) (The bare wording of Rule 60[b] does not require the showing of the existence of 13 a meritorious defense but this is judicially established and apparently is left within the sound discretion of the trial court. [Emphasis added.]). In that vein, the Montez factors should be considered viable benchmarks for judicial discretion in determining whether relief from a default judgment is warranted under K.S.A. 60-260(b) but should not be rigidly adhered to when determining the existence of any other reason justifying relief pursuant to K.S.A. 60-260(b)(6). Cf. State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010) (harmonizing the court-created Edgar factors with the plain language of K.S.A. 223210[d][1]). Ultimately, K.S.A. 60-260(b)(6) is to be liberally construed 'to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.' In re Estate of Newland, 240 Kan. 249, 260, 730 P.2d 351 (1986); see also Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 (1983) (holding that K.S.A. 60-260[b][6] should be liberally construed to grant relief from default judgment). But see Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005) (confining Rule 60[b][6] to extraordinary circumstances warranting relief). As noted, the district court found that movant had meritorious defenses and that the law disfavors default judgments. The record discloses no prejudice to Garcia by reopening the case. See Montez, 215 Kan. at 65 (plaintiff's burden to prove case is not considered prejudice when deciding whether to set aside a default judgment). Garcia does not allege that evidence had been destroyed or that he had undertaken any action in reliance of the default judgment. The petition was filed in May 2011, the default judgment was filed in October 2011, and the motion to set aside the default judgment was filed in November 2011. In conclusion, using the Montez factors as viable benchmarks, we conclude that the district court did not abuse its discretion in granting Ball's motion to set aside the default judgment pursuant to K.S.A. 60-260(b)(6). 14 EXONERATION RULE/STATUTE OF LIMITATIONS Garcia's cross-petition for review requested a determination that Canaan's exoneration rule does not require that a court make a finding that a criminal defendant is actually innocent before he or she can bring a legal malpractice action against his or her criminal defense attorney. In addition, he requests this court to decide when his cause of action accrued for purposes of the statute of limitations. Pursuant to our recent holding in Mashaney v. Board of Indigents' Defense Services, 302 Kan. ___, 355 P.3d 667 (2015), we hold that Garcia was not required to demonstrate actual innocence in order to bring his legal malpractice claim against Ball and that his cause of action accrued when the district court signed the nunc pro tunc order that acknowledged and corrected his illegal sentence.",analysis
+216,4198862,1,2,"[1] A district court’s findings of fact in a proceeding under the PSTCA will not be set aside unless such findings are clearly erroneous.2 [2] To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.3 2 See Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (1993). 3 Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (2011). - 139 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports McGAULEY v. WASHINGTON COUNTY Cite as 297 Neb. 134",standard of review
+217,4444187,1,1,"This case is before the court on the conditional admission filed by Kathleen M. Schmidt, respondent, on May 24, 2018. The court accepts respondent’s conditional admission and enters an order of suspension for a period of 1 year, with 2 years of monitored probation following reinstatement.",introduction
+218,2353930,1,9,"Appellant's final contention is that there was insufficient evidence to support any of his convictions. A thorough examination of the record convinces us this claim is without merit. On all three occasions there was ample evidence to establish the offenses of petit larceny beyond a reasonable doubt. On two of the occasions, he was identified as being present in the offices of the airlines at the times the losses occurred. [20] On the third occasion his fingerprints were found on the cash box, which could be explained only if appellant was the thief. [21] The convictions for unlawful entry must also stand. In Bowman v. United States, D.C.App., 212 A.2d 610 (1965), we sustained a conviction for unlawful entry of a posted non-public area in Union Station, stating that any person who without lawful authority enters upon premises against the will of the lawful occupant after warning to keep off, either orally or by sign, violates § 22-3102. In McGloin v. United States, D.C.App., 232 A.2d 90 (1967), we held that even in a semi-public or public building one does not have a right to enter areas which are obviously not open to the public simply because there is no sign or warning forbidding entry as under such circumstances there is an implied warning not to enter. In the present cases, appellant was found in parts of the airlines' offices which were not open to the public and where he had no right to be, and his explanations for his presence were insufficient to prove his right to be there. As we find no error affecting any substantial right, appellant's convictions are Affirmed.",sufficiency of the evidence
+219,6353400,1,4,"Competency [3-7] We turn first to Surber’s first assignment of error: The district court erred in finding him competent to stand trial. A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense. 3 The competency standard includes both (1) whether the defend­ ant has a rational as well as factual understanding of the proceedings against him or her and (2) whether the defendant has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding. 4 There are no fixed or immutable signs of incompetence, and a defendant can meet the modest aim of legal competency, despite paranoia, emotional disorders, unstable mental conditions, and suicidal tendencies. 5 The question of competency to stand trial is one of fact to be determined by the district court. 6 A court’s decision regarding competency will not be disturbed absent insufficient evidence to support that finding. 7 1 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019). 2 State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020). 3 State v. Jenkins, supra note 1. 4 Id. 5 State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020). 6 Id. 7 See State v. Jenkins, supra note 1. - 331 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 As the record demonstrates, Surber’s competency was at issue throughout these proceedings. After variously being found not competent, then competent, and being treated by both the Department of Correctional Services and LRC, Surber was ultimately found competent and a trial date was set. But just days before the trial, Surber’s counsel once again sought a competency evaluation, which was granted. Hartmann conducted that evaluation. We note that Hartmann’s evaluation also considered whether Surber was qualified to represent himself, as that had been at issue during proceedings occurring around the same time, although it is not at issue in this appeal. In his evaluation, done virtually, Hartmann—who had previously indicated that Surber was malingering—opined that presently Surber was not malingering, and further concluded: This man has sufficient mental capacity to appreciate his presence in relation to time, place, and things and possesses the elementary mental processes such that he understands that he is in a court of law charged with criminal offenses. However, his present mental functioning appears to be at least in part at the delusional level . . . . He is not considered able to consult with and assist counsel in preparation of his defense. As such, to a reasonable degree of medical certainty, I consider this man not to have the capacity to stand trial and represent himself without competent counsel. The court noted Hartmann’s evaluation and found it helpful, but ultimately concluded Surber was competent to stand trial. We affirm this conclusion. In this case, during Hartmann’s evaluation, he found Surber to be incompetent to stand trial, not because he thought Surber did not understand the proceedings, but because he felt that Surber did not meet the second criteria: having the sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding. - 332 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 The district court, having the benefit of many competency evaluations and treatment records, disagreed with this assessment, noting that the court’s own observations of Surber showed an individual “conversing with both of his appointed attorneys during Dr. Hartmann’s testimony.” The court further noted that the three “were able to have exchanges without it disrupting the proceedings” and that Surber was “quite active in following the exchanges . . . and the notes that they were taking.” The court continued: Surber may not completely trust his counsel, and the basis of his feelings may not be based in fact (i.e. his belief that counsel destroyed evidence), and his feelings may even be delusional, as Dr. Hartmann alleges in his report. But what the Court observed during the competency hearing was an accused who seemed to be following the proceedings and communicating with counsel. [8,9] Surber’s conduct during this hearing is relevant to the question of whether he was competent, particularly given the nature of his identified incompetency. Surber’s behavior suggests that he had control over his actions. Several courts have found that a defendant with voluntary control to ­cooperate is not incompetent simply because he or she refused to cooperate, 8 refused to communicate with defense counsel, 9 or could not get along with or disapproved of defense counsel. 10 Even identifying with bizarre legal theories, whether or not sincerely held, does not automatically suggest incompetence. 11 The ultimate fact finder in this case was the district court. We have been directed to no authority, nor has our own research revealed authority, requiring a district court to adopt 8 U.S. v. Simpson, 645 F.3d 300 (5th Cir. 2011). 9 U.S. v. Kiderlen, 569 F.3d 358 (8th Cir. 2009). 10 U.S. v. Miller, 531 F.3d 340 (6th Cir. 2008). 11 U.S. v. Jonassen, 759 F.3d 653 (7th Cir. 2014). - 333 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 the opinion of an expert in such matters. 12 The observations of the district court, along with the prior evidence of malingering by Surber, provide sufficient evidence to support the district court’s conclusion that Surber was competent to stand trial, regardless of the conclusions on competency reached by Hartmann. There is no merit to Surber’s first assignment of error. Motion to Suppress At issue on appeal is (1) whether the district court erred when it found that the consent, automobile, and emergency exceptions to the warrant requirement were met such as to allow the admittance of the severed leg and arm found in the trunk of the Impala and (2) whether the plain view doctrine allowed the admission of the bloodied clothes found in the Galvan garage and the bloodied boots found in the Galvan ­residence. In addition, Surber challenges a second warrant authorizing searches of the Impala and the Yukon because those warrants were authorized with reference to the prior claimed unlawful searches of the Impala and the Galvan residence. [10] Surber testified to the fact that he dismembered Kubik’s body and disposed of an arm and a leg in the trunk of the Impala. He further testified that the brown boots found in the Galvan residence were his boots and were likely to have blood on them as he was wearing them when he dismembered Kubik. As such, we conclude that Surber has waived any argument he has with respect to this evidence on appeal. The introduction of evidence by the defense waives any objection to the earlier introduction of evidence on the same subject by the State. 13 12 Cf. 31A Am. Jur. 2d Expert and Opinion Evidence § 135 (2012); 21 Am. Jur. 2d Criminal Law § 100 (2016); 22A C.J.S. Criminal Procedure and Rights of Accused § 518 (2016); and 32 C.J.S. Evidence §§ 871, 937, 946, and 970 (2020) (all collecting cases). 13 State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989). - 334 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 [11-13] Surber did not testify regarding the bloodied clothes found in the garage. But to the extent that those clothes ought to have been suppressed, we find that any error in failing to do so is harmless. To conduct harmless error review, we look to the entire record and view the erroneously admitted evidence relative to the rest of the untainted, relevant evidence of guilt. 14 Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. 15 Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact. 16 Overwhelming evidence of guilt can be considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless. 17 Significantly, Surber testified in some detail to the events surrounding Kubik’s death. While Surber argues that he acted in self-defense, the bloodied clothes he seeks to suppress were not probative of his defense of self-defense, but instead were probative as to who caused Kubik’s death. Between Surber’s testimony that he was responsible for Kubik’s death and the myriad other evidence suggesting that Surber was responsible, we hold that the guilty verdicts in this case were unattributable to any erroneous admission of the bloodied clothes found in Galvan’s garage. 14 State v. Said, supra note 2. 15 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). 16 Id. 17 See, e.g., State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020). - 335 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. SURBER Cite as 311 Neb. 320 Finally, we briefly note that with respect to the Yukon, the State did not offer at trial any of the evidence found in the search of the Yukon. As such, we do not need to address those arguments on appeal. There is no merit to Surber’s second and third assignments of error.",analysis
+220,4542601,1,1,Defendant Eddy D. Stabler was convicted by a jury of second degree assault and use of a deadly weapon to commit a felony. He was sentenced to a total of 15 to 25 years’ imprisonment. He appeals. We affirm.,introduction
+221,1360492,1,2,"On appeal Beamis asks us to consider whether a claimant, who was totally and permanently disabled at the time of an industrial accident and employed only because of the sympathy of his employer, is entitled to an award of total permanent disability benefits. Hamilton contends we need not reach that issue because there is not substantial and competent evidence to support the Industrial Commission's finding that Hamilton was already totally and permanently disabled at the time of his second industrial accident.",issues
+222,2768606,1,1,"On appeal, the Urbanskis argue that the district court possessed both general and specific jurisdiction over the NFL. We disagree.",jurisdiction
+223,2614904,1,5,"The issue before us is whether the admission of Conn's prior conviction is more prejudicial than probative under Rule 11-609. The difference of opinion between the district court and the Court of Appeals on that issue is not a proper consideration for this Court by writ of certiorari when none of the conditions in Section 34-5-14(B) are present. Accordingly, the writ of certiorari that we granted is hereby quashed. The opinion of the Court of Appeals in this matter shall be published. IT IS SO ORDERED. BACA and MONTGOMERY, JJ., concur.",conclusion
+224,1632630,1,2,"After holding that the failure to move for a new trial precluded review of all assignments of error, the Court of Appeals held that [i]n spite of the foregoing, the record has been informally examined. ... An informal examination of the record is unknown to the appellate judicial process. It is a patent nullity and an idle gesture. The effect of the holding that review was precluded by failure to move for a new trial was to render the ensuing review dicta. We, therefore, have nothing before the Court from the Court of Appeals on the sufficiency question. We may only review the proof in accordance with the usual rules relating to directed verdicts and without regard to the informal review of the Court of Appeals. Those rules require that the trial judges and the appellate courts take the strongest legitimate view of the evidence in favor of the petitioner, allow all reasonable inferences in his favor, discard all countervailing evidence and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence. A verdict should be directed only where a reasonable mind could draw but one conclusion. Holmes v. Wilson, 551 S.W.2d 682 (Tenn. 1977). Even when tested by this liberal rule, plaintiff's case must fall. The proof shows that this building is entered through a plate glass doorway. There are two thirty (30) inch doors in the center with a single nineteen and three quarters (19 3/4) inch glass on either side. On the outside of each door there was a conspicuous handle or pull. On the inside of each was a metal push bar. Plaintiff entered the building upset and agitated because of an adverse credit rating about which he had come to complain. He paid little or no attention to the doorway assembly or structure. He got his credit rating straightened out to his satisfaction and left somewhat elated because of this. He was preoccupied going in and coming out and gave the doorway little or no attention either time. The door assembly was well marked; it was broad open daylight; there was nothing to obstruct his view. Carelessly, he simply walked into a window or glass 19 3/4 inches wide at most, an area so small that to have treated it as an opening it would have been necessary to turn sideways in order to walk through it. This is a conventional doorway assembly with metal framing — apparently aluminum — around each door. All was in plain view. This plaintiff's injuries came as a direct result of his own inattention; he was contributorily negligent as a matter of law. We reverse the Court of Appeals and sustain the Trial Judge. BROCK, C.J., and FONES, COOPER and HARBISON, JJ., concurring.",sufficiency of the evidence
+225,4557538,1,4,"[2-4] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 4 In order to have jurisdiction over an appeal, appellate jurisdiction must be specifically provided by the Legislature. 5 For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment. 6 [5,6] In a criminal case, the judgment from which the appellant may appeal is the sentence, and every direction of the court made or entered in writing and not included in a judgment is an order. 7 Thus, the order granting Fredrickson’s application to proceed in forma pauperis was an order. [7] When the statutory scheme governing the proceedings does not specifically address the finality of orders issued 3 Fredrickson I, supra note 2. 4 Id. 5 Id. 6 Id. See Neb. Rev. Stat. § 25-1911 (Reissue 2016). 7 Fredrickson I, supra note 2. - 87 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. FREDRICKSON Cite as 306 Neb. 81 therein, final orders are governed by the general definitions set forth by Neb. Rev. Stat. § 25-1902 (Supp. 2019). 8 In order to be a final order which an appellate court may review, the lower court’s order must (1) affect a substantial right and determine the action and prevent a judgment, (2) affect a substantial right and be made during a special proceeding, (3) affect a substantial right and be made on summary application in an action after a judgment is rendered, or (4) deny a motion for summary judgment which was based on the assertion of sovereign immunity or the immunity of a government official. 9 The statutes governing in forma pauperis proceedings 10 specifically provide a defendant whose application is denied the right to appeal. 11 Section 25-2301.02 provides that if an objection to the defendant’s application to proceed in forma pauperis is sustained, the party filing the application shall have 30 days after the ruling or issuance of the statement to proceed with an action or appeal upon payment of fees, costs, or security notwithstanding the subsequent expiration of any statute of limitations or deadline for appeal. Section 25-2301.02 also provides for the means of obtaining a transcript for the appeal and the appellate court’s standard of review: In the event that an application to proceed in forma pauperis is denied and an appeal is taken therefrom, the aggrieved party may make application for a transcript of the hearing on in forma pauperis eligibility. Upon such application, the court shall order the transcript to be prepared and the cost shall be paid by the county in the same manner as other claims are paid. The appellate court shall review the decision denying in forma pauperis eligibility de novo on the record based on the transcript of the hearing or the written statement of the court. 8 See Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018). 9 Fredrickson I, supra note 2. See Neb. Rev. Stat. § 25-1902 (Supp. 2019). 10 Neb. Rev. Stat. § 25-2301 et seq. (Reissue 2016). 11 See § 25-2301.02. - 88 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. FREDRICKSON Cite as 306 Neb. 81 Notably absent from the statutes governing in forma pauperis is any reference to the ability to appeal the approval of such an application. 12 Assuming without deciding here that the Legislature did not intend to deny any opportunity to appeal from an order granting a defendant’s application to proceed in forma pauperis with a criminal appeal, the order appealed from here is not final under § 25-1902. This is because the order granting Fredrickson’s application to proceed in forma pauperis did not affect with finality a substantial right. [8-11] The first step in a final order analysis under § 25-1902 is to determine whether the order affected a substantial right of one or more parties. The inquiry focuses on whether the right at issue is substantial and whether the court’s order has a substantial impact on that right. 13 Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter. 14 It also depends on whether the right could otherwise effectively be vindicated. 15 An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. 16 In Fredrickson I, we stated that because the county filed a notice of appeal as though it were taking an ordinary appeal under § 25-1902 and Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), we would analyze jurisdiction according to the ordinary principles of appellate jurisdiction just recited. We then explained that the order finding that Fredrickson was indigent and entitled to appellate counsel did not affect a substantial right and thus was not final under § 25-1902. We reasoned that the order did not affect a substantial right because it did not obligate the county to pay any specific 12 § 25-2301 et seq. 13 Fredrickson I, supra note 2. 14 Id. 15 Id. 16 Id. - 89 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. FREDRICKSON Cite as 306 Neb. 81 amount or set a deadline for payment—matters that would be subject to future proceedings addressing the question of reasonable attorney fees. We also noted that the order was not a final determination obligating the payment of Fredrickson’s appellate attorney fees, because Fredrickson’s indigency can subsequently be challenged through Neb. Rev. Stat. § 29-3908 (Reissue 2016), which provides: Whenever any court finds subsequent to its appointment of . . . counsel to represent a felony defendant that its initial determination of indigency was incorrect or that during the course of representation by appointed counsel the felony defendant has become no longer indigent, the court may order such felony defendant to reimburse the county for all or part of the reasonable cost of providing such representation. Thus, we explained that “even though the order appointing appellate counsel specified that it is at the [c]ounty’s expense, the State is able to seek reconsideration and can challenge the underlying finding of indigency and recoup any subsequently expended funds from the defendant.” 17 We rejected the county’s argument that such an avenue would not effectively vindicate its rights because it is difficult to recoup money from incarcerated criminal defendants. We said: Although recovery of attorney fees may be, at times, difficult, the Nebraska Legislature has specified the process for determination of the [c]ounty’s rights and recovery of funds when there is a subsequent modification of an indigency finding. This argument is insufficient to show a significant undermining of the State’s right. 18 Similarly, the order granting Fredrickson’s application to proceed in forma pauperis with his appeal was not a final determination of the amount the county must pay in fees and costs for Fredrickson’s appeal. Pursuant to § 25-2301, “[i]n 17 Id. at 173, 939 N.W.2d at 391. 18 Id. at 174, 939 N.W.2d at 391. - 90 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. FREDRICKSON Cite as 306 Neb. 81 forma pauperis” simply means “permission given by the court for a party to proceed without prepayment of fees and costs or security.” The mandate setting forth the total amount of such fees or costs due has not yet been issued in Fredrickson’s direct appeal. Until the county is ordered to pay a specific sum, its substantial rights have not been affected. Thus, the order granting Fredrickson’s application to proceed in forma pauperis was not a final order and we lack jurisdiction to consider this appeal. We also note for completeness that whether the in forma pauperis order was properly granted or not does not affect the perfection of Fredrickson’s criminal appeal. We have explained that an in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and an affidavit of poverty. 19 Thus, the question of whether the application was properly granted may alter who is responsible for some of the fees associated with the appeal, but it cannot divest the court of jurisdiction to consider Fredrickson’s appeal of his sentence. 20 We find that appeals from an order approving an application to proceed in forma pauperis and appeals of awards of attorney fees should be treated similarly in this regard. 21",analysis
+226,1381445,1,3,"It is apparent that the Court of Appeals remanded the case because of its conclusion that the trial court decree would result in taxable gain to the husband. Because of the later legislation and the decision of this court that the corporate stock is a marital asset, that reason for remand no longer exists. The property division of the trial court, in light of the 1981 amendments to ORS 107.105(1)(e) and the holding of this court, impresses us as being fair. In a long term marriage in which the parties' properties were acquired during the marriage, the parties should separate on as equal a basis as possible. See Grove and Grove, 280 Or. 341, 349, 571 P.2d 477 (1977). Here, the marriage was long term, and although the husband received the long half of the parties' assets, much of the property had been the husband's prior to the marriage, and therefore the division is not unfair. The trial judge recognized the difficulty of obtaining a complete separation of assets. Although a property division achieving a complete disentanglement of the parties' affairs is preferred, Haguewood and Haguewood, 292 Or. 197, 207, 638 P.2d 1135 (1981), see also Slauson and Slauson, 29 Or. App. 177, 183-184, 562 P.2d 604 (1977), because of the unique facts of this case, we believe that the trial court did about as well as can be done to divide the parties' assets. Unfortunately, complete disentanglement was not readily possible. We therefore reverse the Court of Appeals and reinstate the decree of the trial court. TANZER, J., filed a dissenting opinion in which CAMPBELL, J., joins.",conclusion
+227,852946,1,1,"MPACT Construction Group, LLC, a general contractor, entered into a contract with Flying J, Inc. to construct a travel plaza in Gibson County, Indiana. [1] Flying J was the owner of the construction plaza at the time, and it is now owned by FJI Plaza III, LLC. MPACT entered into several contracts with subcontractors [2] (Subcontractors) to do the project work. Flying J failed to pay for all of the work and supplies, and so MPACT and some of the Subcontractors recorded mechanic's liens against Flying J. One of the Subcontractors, Superior Concrete Constructors, Inc., filed an action to foreclose its mechanic's lien. Several counterclaims and cross-claims for the foreclosure of mechanic's liens and for breach of contract were filed among the various parties. The contract between MPACT and Flying J is an American Institute of Architects (AIA) Standard Form Agreement Between Owner and Contractor (General Contract). Articles 1 and 9 of the General Contract incorporate by reference the AIA General Conditions of the Contract for Construction (General Conditions), and the General Conditions contain an arbitration clause. However, the subcontracts were not AIA standard form contracts but instead were contracts prepared by MPACT. After approximately six months of preparing for litigation, MPACT filed a motion to stay litigation and compel arbitration. The trial court summarily denied its motion. The Court of Appeals reversed in part, granting the motion as to Flying J, and affirmed in part, denying the motion as to the Subcontractors. MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 785 N.E.2d 632, 639, 640 (Ind.Ct.App.2003). We reach the same result as the Court of Appeals.",facts
+228,4231124,1,2,"A. When lube oil contamination meets but does not exceed the Department of Ecology's (Ecology) cleanup level, can a party recover the cost of investigative activities as remedial action costs under MTCA's private right of action? B. Does lube oil contamination that meets but does not exceed Ecology's cleanup level pose a potential threat to human health or the environment? Douglass V. Shamrock Paving, No. 94087-8 C. Under the MTCA, is a party who recovers remedial action costs the prevailing party, entitled to attorney fees, including costs on appeal?",issues
+229,4375177,1,2,"[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review.3 Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, giving due weight to the 1 State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981). 2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017). 3 State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018). - 968 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SECKINGER Cite as 301 Neb. 963 inferences drawn from those facts by the trial judge.4 But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination.5",standard of review
+230,1154815,1,6,"CONCLUSION. The Washington product liability act (RCW 7.72) created a single cause of action for product-related harms, and supplants previously existing common law remedies, including common law actions for negligence. Dr. Klicpera argues that if a product liability claim under the PLA is disallowed by this court, we should then allow a negligence claim based upon the drug company's failure to warn of its product's dangers. We decline to do so. After the enactment of the PLA, such a claim is not viable in a products case. [10] As we explained in Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 850-55, 860, 774 P.2d 1199, 779 P.2d 697 (1989), the PLA preempts traditional common law remedies for product-related harms. A claim previously based on negligence is within the definition of a product liability claim. [29] Since this present cause of action is predicated upon a failure to warn by a product manufacturer, any negligence cause of action therefor is now preempted by the PLA. Therefore, this product liability claim cannot be maintained on a common law negligence theory. [30] The PLA does allow claimants to bring a Consumer Protection Act claim since that cause of action has been specifically exempted from the preemptive effect of the product liability act. [31]",issues
+231,1921785,1,1,"¶ 2. In 1995, the City received a donation of 2.88 acres of land located on the bluff-top area of Broadway Street. The property was known as the Natchez Pecan Factory Site. In 2005, the mayor and the board received requests from various developers concerning the sale and development of the Natchez Pecan Factory Site. In April 2005, the city council prepared a Request for Proposals for fourteen prospective developers. The City received five proposals, with proposed sale prices between $275,000 and $650,000. Notices concerning the solicitation process, and the receipt and consideration of the proposals were published in The Natchez Democrat six times over the course of six weeks. The board chose the development proposal of Worley Brown on June 28, 2005. ¶ 3. On August 9, 2005, the city council unanimously adopted a resolution to enter into a option/development agreement with Worley Brown. In addition, the resolution provided, in part, that (1) the City determined the property to be surplus, (2) the property was to be sold pursuant to Mississippi Code Annotated Section 57-7-1, and (3) the mayor had authority to execute a deed of conveyance, transferring the property to Worley Brown. There was no appeal by any party of the city council's actions. ¶ 4. The option agreement adopted at the August 9, 2005, meeting provided that the option would expire on February 9, 2006, at 5 p.m. The option agreement further provided that the City and Worley Brown had to comply with all city, state, and federal statutes, rules, and regulations, including the regulations of the Mississippi Department of Archives and History. The option agreement stated that the purchaser would develop seventy-five residential, luxury condominium units with a clubhouse, swimming pool, and other facilities. The purchase price for the property was $500,000. ¶ 5. On January 23, 2006, Worley Brown requested an extension of the option agreement due to a delay in receiving a permit from the Department of Archives and History. On January 24, 2006, at a regular meeting, the city council adopted a resolution to extend the option agreement for thirty days. The appellants filed a notice of appeal and bill of exceptions on February 3, 2006, concerning the option agreement. On March 9, 2006, the Department of Archives and History gave approval for the project via its permit committee. The city council granted further extensions of the option agreement at the request of Worley Brown. On May 22, 2006, Worley Brown gave notice to the mayor that it wished to exercise the option, requesting a closing date. On May 30, 2006, the mayor executed and delivered a special warranty deed to Worley Brown for the Natchez Pecan Factory Site property. The appellants filed a notice of appeal on June 8, 2006, concerning the actions taken by the mayor and the board at the May 30, 2006, meeting. Thereafter, the trial court consolidated the two appeals filed on February 3 and June 8, 2006, and issued its ruling.",facts
+232,2333059,2,3,"We review Appellant's argument under the standard articulated in Commonwealth v. Benham: [11] On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserv[e] to the jury questions as to the credibility and weight to be given to such testimony. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal. [12] At trial, the Commonwealth essentially conceded that Appellant suffered from a shoulder injury, but sought to prove that Appellant was capable of earning a wage despite that injury. Although Appellant maintained otherwise, the evidence permitted the jury to believe that Appellant could reasonably provide support for his minor children and simply chose not to do so. While the Commonwealth did not offer its own medical expert to rebut Appellant's letters from various treatment providers—clearly inadmissible, but admitted without objection from the Commonwealth—regarding Appellant's injury, the evidence permitted the reasonable inference that Appellant could perform a number of compensable tasks. Appellant's argument essentially boils down to a request that this Court accept as true his allegation that, despite his desire to provide for his children, his body was not up to any of the employment prospects identified. The jury, however, was not required to accept Appellant's testimony as true, and, in fact, Appellant himself testified that there were times when he had the money to pay his child support, but paid other expenses instead. We find nothing clearly unreasonable about the verdict actually reached in this case and, accordingly, we find no error in the trial court's failure to direct a verdict of acquittal.",sufficiency of the evidence
+233,2557970,1,7,"For the reasons stated in this opinion, we affirm the judgments of conviction in all respects. The record shall be remanded to the Superior Court.",conclusion
+234,2630266,1,3,"¶ 5 The Utah Supreme Court has appellate jurisdiction only over final agency action. See Utah Code Ann. § 78A-3-102(3)(e) (2008). The court may also, in its discretion, grant extraordinary relief when a party is without a plain, speedy, and adequate remedy in any other forum. See id. § 78A-3-102(2); Utah R. of Civ. P. 65B(a). In this case, the Commission's order does not qualify as a final agency action and we therefore lack jurisdiction to hear the appeal. But we exercise our discretion to grant Heber Light an extraordinary writ to determine whether the Commission can continue to adjudicate Rocky Mountain's complaint against Heber Light.",jurisdiction
+235,1985095,1,1,"This appeal presents two (2) significant issues concerning underinsured motorist (UIM) coverage: (1) Mable Raines (Raines) incurred damages of $219,071.00 as a result of a two-vehicle accident caused by Lecia True (True), who had liability coverage of only $100,000.00. Raines, who was driving her own automobile at the time of the collision, had a $50,000.00 UIM policy, and Ted Rice (Rice), with whom Raines lived in a residence they jointly owned, had UIM coverage of $50,000.00 under a separate policy. Although Rice's policy did not list Raines as a named insured, Raines was listed on Rice's policy as a driver residing in your household. Was Raines entitled to recover UIM benefits under Rice's policy? Because Rice's policy was clear and unambiguous in its UIM coverage, and Raines was neither a named insured nor otherwise covered by Rice's policy while driving her own automobile, we hold that Raines was not entitled to recover UIM benefits under Rice's policy. (2) During the trial of this case, True's insurer, Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau), offered to settle with Raines for the $100,000.00 policy limit. However, to preserve its subrogation rights, Raines's UIM insurer, Preferred Risk Mutual Insurance Company (Preferred Risk), agreed to make the $100,000.00 payment to Raines itself and thereby substitute its own funds for Farm Bureau's. The jury determined Raines's damages to be $219,071.00. Was True relieved from all liability in excess of her $100,000.00 liability coverage by virtue of Preferred Risk's substitution of funds? While Preferred Risk's substitution of funds operated to release True from any further personal liability to Raines, the substitution preserved Preferred Risk's subrogation rights against True and thereby subjected True to personal liability to Preferred Risk for any amount it paid to True under its UIM coverage.",issues
+236,2629323,1,1,¶ 1 This is a consolidated appeal of judgments of the Fourth Judicial District Court and the Utah State Tax Commission. The common issue is whether Utah Code section 59-10-106 allows the taxpayers to claim a credit against their income taxes for certain corporate franchise taxes paid to California and Texas by the small businesses of which they were shareholders. The Tax Commission argues that the franchise taxes are not included in the category of taxes for which a credit is statutorily allowed. We disagree.,introduction
+237,2813868,1,3,"Our standard of review of a trial court’s decision on a motion for summary judgment is de novo with no presumption of correctness. Parker v. Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014). Likewise, the interpretation of written contracts is a question of law that affords a de novo review with no presumption of correctness. West v. Shelby Cnty. Healthcare Corp., 459 S.W.3d 33, 42 (Tenn. 2014). A trial court should grant summary judgment only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Conversely, a trial court should not grant summary judgment when genuine issues or disputes of material fact are present. Parker, 446 S.W.3d at 346. A dispute of material fact is that which “must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The first question we must answer is whether Defendant Hyler properly assigned to the Plaintiff his rights to the proceeds of a claim with Defendant Erie. 1 “An ‘assignment’ is a transfer of property or some other right from one person (the ‘assignor’) 1 The facts appear undisputed on this issue. Therefore, the resolution of this issue is a question of law. See Tenn. R. Civ. P. 56.04. -3- to another (the ‘assignee’) . . . .” 6 Am. Jur. 2d Assignments § 1 (2008); see also Alaimo Family Chiropractic v. Allstate Ins. Co., 574 S.E.2d 496, 498 (N.C. Ct. App. 2002). To determine whether a particular assignment is valid, principles of general contract law apply. See 6 Am. Jur. 2d Assignments § 1; Nashville Trust Co. v. First Nat’l. Bank, 134 S.W. 311, 314 (Tenn. 1911). 2 In assessing a contract’s construction, we first must “look to the plain language of the contract and [] ascertain and effectuate the parties’ intent as reflected in that language.” West, 459 S.W.3d at 41-42. In doing so, we must focus on the four corners of the document, the circumstances surrounding the formation of the contract, and the participants’ actions in satisfying their obligations under the contract. Id. at 42. When the language in the contract is clear and unambiguous, the contract’s literal meaning governs the outcome of the dispute. Id. (citing Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 704 (Tenn. 2008)). We construe contractual language according to its “plain, ordinary, and popular sense.” Id. (quoting Bob Pearsall Motors v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975)). For an assignment to be valid, it “must contain clear evidence of the intent to transfer rights, must describe the subject matter of the assignment, must be clear and unequivocal, and must be noticed to the obligor.” 6 Am. Jur. 2d Assignments § 82. Moreover, the intent of the assignor to transfer the right must be “manifest.” Collier v. Greenbrier Developers, LLC, 358 S.W.3d 195, 201 (Tenn. Ct. App. 2009) (quoting E. Allan Farnsworth, Contracts § 11.3, p. 709 (3d ed. 1999)). In determining whether the assignor has demonstrated such a manifest intent, the Court shall consider “all the circumstances, including works and other conduct.” 6 Am. Jur. 2d Assignments § 82. “[A]n equitable assignment is precluded when the property subject to the equity is not definitely pointed out so that it may be distinguished and identified.” Id. § 85. 2 We note that, if Defendant Hyler’s assignment was valid, Defendant Hyler purported to assign the proceeds of a potential claim to the Plaintiff and not the claim itself. Although the assignment of personal injury claims is not permitted in Tennessee, see Seymour v. Sierra, 98 S.W.3d 164, 165 (Tenn. Ct. App. 2002) (“Tennessee is not a ‘direct action’ state where a plaintiff can sue the liability insurance carrier of the defendant who allegedly caused the harm.”), it is undecided in Tennessee whether a party may assign the proceeds of a potential claim. -4- The “Assignment of Rights” executed by Defendant Hyler on October 31, 2011, includes the following language: For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC .... For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered. This payment will not exceed my indebtedness to the above mentioned assignee, and I agree to pay, in a current manner, any balance of said Professional Service charges over and above this insurance payment. If the current policy prohibits direct payment to the doctor, then I hereby authorize you to make the check to me and mail it directly to my doctor: c/o ACTION CHIROPRACTIC .... THIS IS A DIRECT ASSIGNMENT OF RIGHTS AND BENEFITS UNDER THIS POLICY AND INCLUDES ALL RIGHTS TO COLLECT BENEFITS DIRECTLY FROM THE RESPONSIBLE INSURANCE COMPANY. At the bottom of the document, Defendant Erie’s name was given as the “Name of Policy Holder.” The document in this case did not clearly assign the proceeds of Defendant Hyler’s claim. There is no language whatsoever regarding proceeds of a settlement or lawsuit. Cf. Alaimo, 574 S.E.2d at 500 (determining that language of document in that case effectively assigned proceeds of claim). To the contrary, the language purports to assign insurance benefits belonging directly to Defendant Hyler. Under the plain language of this document, the document purports to assign benefits belonging to Defendant Hyler pursuant to his own health or automobile insurance. We note that the first sentence states, “For treatment provided, I hereby -5- require my Health Insurance, Auto Insurance, or any other party involved to pay by check . . . .” (Emphasis added). Moreover, as further evidence that the document purported to assign Defendant Hyler’s benefits under a policy in his name, the document states further, “For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.” (Emphasis added). Furthermore, we note that the Erie insurance policy is a Family Auto Insurance Policy for William and Rebecca Burnette. William Burnette was the other individual involved in the automobile accident but is otherwise unrelated to Defendant Hyler. If Defendant Hyler had named his own insurance policy, any payment to Defendant Hyler under that policy in fact would be for Defendant Hyler’s medical treatment. As between Defendants Hyler and Erie, however, a payment from Defendant Erie to Defendant Hyler would be for the purpose of settling a legal claim against Erie’s insured (in this case, Burnette). Although such a claim might include medical treatment, Defendant Erie’s payment to Defendant Hyler is not for the purpose of medical benefits. Given that the document as a whole refers to the insurance policies of the patient, Defendant Hyler, the act of simply naming a third party’s insurance provider, Defendant Erie, does not change the overall meaning of the language in the document. Thus, we hold that the document at issue failed to effectively assign the proceeds of a claim between Defendant Hyler and Defendant Erie. 3 Accordingly, the trial court did not err in granting Defendant Erie’s motion for summary judgment.",analysis
+238,2649461,1,1,"The following factual background is taken from the 3  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  record on appeal.
+On August 5, 2009, DeLeon was indicted for: Attempted Murder in the First Degree as to Powell and Gamboa (Count I); Murder in the Second Degree as to Powell, in violation of HRS §§ 707-701.5 and 706-656 (Count II)3; Attempted Murder in the Second Degree as to Gamboa, in violation of HRS §§ 705-500, 707701.5, and 706-656 (Count III); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 as to Count II (Count IV); Carrying or Use of Firearm in the Commission of a Separate Felony in violation of HRS § 134-21 as to Count III (Count V); Place to Keep Pistol or Revolver in violation of HRS § 134-25 (Count VI); Reckless Endangering in the First Degree in violation of HRS § 707-713 (Count VII); and Ownership or Possession Prohibited of Any Firearm or Ammunition by a Person Convicted of Certain Crimes in violation of HRS §§ 134-7(b) and (h) (Count VIII). 1. State’s first motion in limine to exclude cocaine evidence Prior to trial, on August 24, 2010, the State filed a 3 HRS § 707-701.5 (1993) provides in relevant part, “a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.” HRS § 706-656(2) (Supp. 2010) provides in relevant part: “[P]ersons convicted of second degree murder . . . shall be sentenced to life imprisonment with possibility of parole.” 4  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  motion in limine, seeking, inter alia, to exclude any evidence that Powell’s blood tested positive for .05 mg/L of cocaine on grounds that such evidence is inadmissible under Hawai#i Rules of Evidence (HRE) Rule 404(b)4 and/or irrelevant and unfairly prejudicial under HRE Rule 403.5 DeLeon opposed the State’s motion, arguing, inter alia, that evidence that Powell’s blood tested positive for .05 mg/L of cocaine was “essential and probative to [DeLeon’s] self-defense assertion, and its exclusion would be extremely prejudicial to his claims[.]” Among the exhibits attached to DeLeon’s opposition was a letter from Dr. Clifford G. Wong, the Toxicology 4 HRE Rule 404(b) (Supp. 2010) provides: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial. 5 HRE Rule 403 (1993) provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 5  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Laboratory Director for Clinical Laboratories of Hawaii. The letter indicated that DeLeon’s defense counsel retained Dr. Wong as an expert in “DUI toxicology” and largely discussed Powell’s blood alcohol concentration. With regard to Powell’s cocaine concentration at the time of the shooting, Dr. Wong stated, in relevant part: The retrograde extrapolation of [] Powell’s blood cocaine concentration to the time of the shooting was performed to yield a probable range of 0.06 to 0.08 mg/L. The time of cocaine ingestion is unknown, so the actual cocaine dosage cannot be determined. Information regarding total amount ingested and the time of ingestion would be required to determine more accurately whether [] Powell has [sic] under the influence of cocaine at the time of the shooting. (Emphasis added). At a hearing on the motion, the circuit court noted that “[t]he issue right away that the Court [saw]” was Dr. Wong’s statement that he would need more information. Defense counsel responded: I have since spoken to Dr. Wong. This is what I expect the proof to be: First, respectfully, if you would, keeping in mind we have a video of Powell going towards the defendant after at least three warning shots were fired and saying some things that will come out that my client heard. There’s loud screaming. We have a witness from the manager of the Seoul Karaoke that heard two men screaming and then a shot or shots. This is what Dr. Wong says -- and we’ve subpoenaed [medical examiner Dr. William] Goodhue, who was -- who did the toxicology and autopsy. He says that the cocaine was of recent use, and all that means is -- I mean, what does “recent” mean? But with the doctors and . . . Dr. Wong, “recent use” means probably within 24 hours because the cocaine was still in the blood, it had not been completely absorbed. Dr. Wong says when . . . there’s a use of cocaine . . . it gives -- and he will testify, if he’s allowed 6  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  to -- someone a sense of euphoria, and he defines euphoria as invincibility, like you think you’re Superman, which is consistent with why anyone would be going after someone who’s firing three shots in the air. My client will testify that when he was grabbed -- and he has seen people, and he will testify, on the west side and when he was in California that he thought were high on something. And when he was grabbed in the bar by the victim, his testimony will be . . . this guy was drunk but there was something wrong with this guy, he looked like he was high on something[.] And then we have the cocaine, the invincibility, the Superman, and then there’s an explanation as to why this guy is doing this. Their witnesses say they thought Powell was crazy that he would be going after someone that just fired a gun in the air and just went right after him. So I don’t mind a [HRE Rule] 104 hearing[6] as well, but it’s the euphoria that the cocaine gives. We have the toxicology report that says recent use. We have the testimony from the defendant who says this guy looked like he was on something. Now, if he says that, then I think he has the right to say that. If it’s not buttressed or corroborated by the medical testimony and the expert testimony, it may look like it’s simply a self-serving statement he wants to make with no basis in fact. The DPA then argued for an HRE Rule 104 hearing: [I]t’s the state’s understanding that cocaine does not have a consistent effect on people like alcohol does. I think that this euphoric state can also be a dysphoric state and I think that the witness would testify to that, that he cannot describe the states that people go through on a consistent basis, . . . even knowing or being able to retro-extrapolate the amount of cocaine that was in the blood at the time of the specific incident. The circuit court ruled that it would conduct an HRE Rule 104 hearing before allowing any testimony regarding Powell’s cocaine level. The circuit court also informed defense counsel of its concerns: 6 HRE Rule 104 governs preliminary questions regarding the admissibility of evidence. 7  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  THE COURT: . . . And just so, you know, counsel, you’re very clear, it’s the Court’s concern that Dr. Wong is not able to render an opinion that the victim was under the influence at the time of the shooting, and . . . doesn’t have enough information and that’s what’s stated on the bottom of page 5 of his opinion, and if that remains his opinion, then it’s not admissible. [DEFENSE COUNSEL]: I’m clear with that. Thank you, Your Honor. I’m clear as to the ruling. THE COURT: Questionable relevancy and materiality will just create undue confusion. Shortly before opening statements, the circuit court ruled, over the State’s objection, that defense counsel could mention in his opening statement DeLeon’s perception that Powell may have been “high on something without making any specifications.” The circuit court stated that the substance or the amount could not be mentioned “until we have had subsequent [HRE] Rule 104 hearings.” 2. State’s Case-in-Chief At trial, Jermaine Beaudoin testified that on the night of July 30, 2009, he, along with Gamboa, and Powell went in Gamboa’s Lincoln Navigator to Bar Seven7 next to Ala Moana Center at about 2:15 to 2:30 a.m. Beaudoin estimated that at this point in the evening, he had consumed between nine to eleven alcoholic drinks, and that Powell had also been drinking but was not drunk. At some point, Beaudoin saw Powell talking to DeLeon, whom 7 Other witnesses, as well as defense counsel and the DPA, referred to this establishment as either Club 7 or Bar Seven. For purposes of consistency, this opinion will use the name “Bar Seven.” 8  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Beaudoin did not know at the time. Powell and DeLeon “got into a little tussle.” Beaudoin intervened and DeLeon began yelling at him. In response, Beaudoin slapped DeLeon’s head with his open hand, knocking off DeLeon’s dark glasses. Beaudoin testified that he believed that DeLeon then left Bar Seven. Beaudoin, Powell, and Gamboa then went in Gamboa’s Navigator to Seoul Karaoke at about 3:45 a.m. Powell, Beaudoin, Gamboa and another acquaintance, Lane Akiona, walked in to Seoul Karaoke. The group was in Seoul Karaoke for about two to three minutes, was told that it was closing, and walked out to the car. According to Beaudoin, as the group walked to the car, someone yelled at them. Beaudoin stated that he “couldn’t make out what he was yelling at us, but he was yelling something at us. So we turned around and walked towards the defendant.” When Beaudoin came within about five to ten feet of DeLeon, Beaudoin “noticed that it was the same guy from Bar 7.” At that point, Powell was closest to DeLeon, and Beaudoin told Powell “that’s the guy from Bar 7[,]” and said “we go.” According to Beaudoin, when Powell reached DeLeon, Powell said, “Everything is cool, everything -- no more problem.” Beaudoin described Powell’s body language as “[r]egular, hands down. Everything is cool, misunderstanding or whatevers.” Beaudoin stated that Powell did not look mad and that Powell was trying to calm the situation. Powell was about 9  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  an “[a]rm’s length[]” from DeLeon when DeLeon then “[g]rab[bed] his gun and started shooting.” DeLeon first shot into the ground two or three times, then shot Powell in the chest. At that point, Beaudoin was “turning around, trying to get away[,]” and then DeLeon shot “towards [Beaudoin] in the ground and [shot] at the vehicle.” Beaudoin stated that as DeLeon shot the gun, Beaudoin was on the ground and “felt the pebbles off the ground hitting [his] face.” Beaudoin testified that the shots were “[c]ontinuous[].” On cross-examination, Beaudoin acknowledged that his July 31, 2009 written statement describing the incident reflected that DeLeon’s first shots were in the air and that his written statement and his August 5, 2009 grand jury testimony did not mention that his group approached DeLeon because DeLeon yelled at them. Beaudoin stated that he tried to stop Powell by grabbing his shoulder and that he was able to stop him from walking. Beaudoin acknowledged that when asked before the grand jury how many feet away DeLeon was from Powell when DeLeon shot Powell in the chest, Beaudoin answered, “[n]ot feet” and “[n]ot even feet.” Gamboa testified that at Bar Seven, he noticed Powell talking to a Mexican man in dark glasses and that the conversation between them appeared friendly. At some point there was a commotion in the group, and Gamboa saw another 10  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  acquaintance, Joe Chang, “trying to break it up [and p]ulled kind of [Powell] to the side.” Gamboa did not see anyone being hit but saw “this Mexican guy stumbling.” Gamboa saw the Mexican man walk towards the entrance of the club and did not see him in the club after that. Later, the group left Bar Seven, and Gamboa drove Beaudoin, Powell, and two other men whom Gamboa did not know to Seoul Karaoke. No one talked about the incident from Bar Seven, and Powell “seemed normal[]” and “[n]othing bothered him.” Gamboa further testified that he, Powell, Beaudoin, Lane, and two other men went to Seoul Karaoke but were told it was closed and left. Gamboa walked into the parking lot to his car, with the other men “kind of trailing behind” him. Gamboa opened his car door, and then heard someone yelling aggressively, “You want to mess with me? You want to hit me?” Gamboa then heard someone say, “What, the guy from Sevens.” Gamboa turned around to see who was yelling and walked in the direction of the yelling. Gamboa saw “him coming towards us. Then he shot three rounds into the ground. . . . [T]hen I seen him shoot [Powell].” Gamboa estimated that one to two seconds passed between when he heard the man yelling and when he fired the first three shots into the ground, and stated that it was another one to two seconds between the first three shots and the shot to Powell. 11  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Gamboa stated that Powell and the man had been “kind of talking towards each other,” but that Gamboa could not hear what they were saying. Gamboa stated that he saw the man point the gun towards Powell’s chest and that Powell was raising his hands with his palms facing forward when the man shot Powell. About one to two seconds after shooting Powell, the man shot toward Gamboa. Gamboa heard his car windshield “blowing up[,]” and ran to the building next door. Gamboa stated that Powell was about one to two feet away from the shooter when he was shot. Gamboa identified the shooter in court as DeLeon. On cross-examination, Gamboa acknowledged that he told police that DeLeon’s car pulled up as the group left Seoul Karaoke, and Powell “veered off.” Gamboa stated that he did not drink the night of the incident. Lane Akiona testified that as he was leaving Seoul Karaoke with Powell, Beaudoin and Gamboa, a male Lane did not know approached them. Lane did not know about the incident with DeLeon at Bar Seven. According to Lane, the male said, “What’s up?” When asked how the male was acting, Lane answered: “Like what’s up now, like, then [Powell] raised his hands approaching him and the guy reached behind his back and he just -- it happened so fast. He just started firing shots and I ducked out of the way and tried to get out of the line of fire.” Lane 12  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  estimated it was about 15 to 20 seconds between when the male said, “what’s up” to when he started shooting. Lane stated that before Powell was shot, Powell was “[j]ust standing there[.]” Lane stated that he saw the shooter point directly to Powell’s chest when the shooter was about three feet from Powell. Lane identified the shooter in court as DeLeon. Daekum Kim, who worked at Seoul Karaoke at the time of the incident, stated that at about 4:00 a.m. on July 31, 2009, he told a group of about four to five drunk men who entered that Seoul Karaoke would be closing. The men left, and Kim heard “someone fight” outside. Kim could not see who was outside, but “[t]heir voice was loud and the yelling and they say bad words.” Kim then heard a single gun shot, then “after two, three seconds, two, three times more.” Kim called the police and did not go outside until after the police arrived. Liana Cuarisma, DeLeon’s girlfriend at the time of the incident, testified that on July 31, 2009, at about 3:50 a.m., DeLeon called her and said, “I just got fucking mobbed”8 at Bar Seven. Cuarisma stated that DeLeon sounded upset and was “[h]uffing and puffing” over the phone. Later that day, during lunchtime, DeLeon told Cuarisma over the phone that he had to 8 Cuarisma initially testified that DeLeon told her that he had just gotten “mugged.” 13  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  return to Washington, where he was from, to see his mother in the hospital.9 Later that evening, Cuarisma dropped DeLeon off at the airport. Taro Nakamura, a Honolulu Police Department (HPD) homicide detective, testified that at some point he received an anonymous phone call from a male who said that Powell had gotten into an argument with someone at Bar Seven, and described the person as a tall Mexican male with the name of Jose Lion or Deleon.10 Nakamura ran background checks for “combinations of Jose, Jesus, Lion, Deleon,” found an entry and photograph for DeLeon, and assembled a photographic lineup. Beaudoin and Gamboa picked out DeLeon from the photographic lineup, but Lane was not able to identify a suspect. Nakamura learned that DeLeon had purchased an airplane ticket, and sent officers to the airport.11 HPD criminalist Kaleo Kaluhiokalani testified as an expert in the field of gunshot residue analysis and stated that gunshot residue kit samples taken from Powell’s hands showed particles “highly specific to gunshot residue.” Kaluhiokalani 9 Cuarisma, whom the State treated as a hostile witness, later acknowledged on direct examination that it was possible, although she did not remember, that between 4:08 a.m. and 9:30 p.m. on July 31, 2009 she talked to DeLeon at least 40 times. 10 It appears that the anonymous call occurred on July 31, 2009. 11 Additional witnesses testified about DeLeon’s check-in and arrest at the airport on the evening of July 31, 2009. 14  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  stated that this finding could indicate that Powell discharged a gun, handled the gun or another object contaminated with gunshot residue, or was near a firearm when it was discharged, and that if a person is shot in the chest and touches the wound, gunshot residue can be transferred to the person’s hands. Acting chief medical examiner Dr. William Goodhue, testifying as an expert in the field of forensic pathology, stated that he performed an autopsy on Powell on July 31, 2009 and concluded that Powell’s cause of death was “massive blood loss due to injury to his heart as a result of a gunshot wound to the chest.” On cross-examination, Dr. Goodhue stated that the gunshot to Powell was not a contact wound in which the barrel of the gun was placed against the body. Dr. Goodhue stated that he could not conclude how far away the gun was from Powell at the time it was fired because he did not receive Powell’s shirt to examine. After the State rested,12 DeLeon moved for judgment of acquittal as to all charges. The circuit court denied the motion. 3. HRE Rule 104 hearing regarding cocaine evidence and circuit court ruling On September 22, 2010, the day after resting its case- 12 Additional witnesses testified for the State; however, their testimony is not relevant to the issues before this court. 15  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  in-chief, the State filed Motion in Limine No. 2, seeking to exclude from trial (1) any evidence of any opinion by Dr. Wong regarding the behavioral effects of cocaine and/or alcohol combination, (2) any testimony about how Powell might have reacted to the cocaine and/or alcohol in his system, and (3) Dr. Wong’s opinion in his September 7, 2010 letter13 that: Given[] the co-presence of significant levels of cocaine and alcohol in the decedent, my opinion is that [] Powell was under the influence of those two drugs at the time of the shooting, and accordingly, made a fatal misjudgment in his attempt to accost the defendant, [] Deleon, even after warning shots were fired. The State argued that allowing such evidence would violate HRE Rule 702,14 stating: “Dr. [] Wong cannot testify to [] Powell’s state of mind because he does not have enough information. Additionally, it is an issue of fact for the jury to decide whether there was an ‘attempt to accost the defendant.��� Lastly, the opinion is outside Dr. Wong’s expertise.” The State also argued that Dr. Wong’s “opinion is outweighed by the danger 13 Dr. Wong’s September 7, 2010 letter is not included in the record on appeal. 14 HRE Rule 702 (1993) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert. 16  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  of unfair prejudice, confusion of the issues, and misleading the jury,” warranting its exclusion pursuant to HRE Rule 403. The circuit court held an HRE Rule 104 hearing the same day. At the hearing, Dr. Wong testified that he is a forensic toxicologist and the toxicology lab director at Clinical Laboratories of Hawaii’s toxicology department. Dr. Wong explained that cocaine is a “central nervous system stimulant . . . [that] mimics the activity of adrenaline.” Its effect increases the heart rate and dilates blood vessels, “engorg[ing] the muscles of the body to fight or flight[]” – that is, “when a person is confronted with danger or something that is opposing them, they would develop the ability to fight off that threat or to run away.” Dr. Wong agreed that he could say “to a reasonable scientific probability that based on [his] training and experience, . . . the ingestion of cocaine can affect someone’s behavior[.]” With respect to the instant case, Dr. Wong testified that he reviewed some parts of the police report, the testimony of the witnesses before the grand jury, witness statements to the police officers “investigating right after” the shooting, the medical examiner’s report, and a security camera video recording of the shooting. Dr. Wong noted that Dr. Goodhue’s autopsy report indicated the finding of cocaine and benzoylecgonine, a 17  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  metabolite of cocaine, in Powell’s blood. According to the medical examiner’s laboratory report on Powell, “the alcohol was extremely high.” A toxicology report indicated the presence of .05 milligrams per liter of cocaine and .39 milligrams per liter of benzoylecgonine. Dr. Wong stated that the proportion of benzoylecgonine to cocaine “generally means that the cocaine . . . was perhaps consumed at a . . . much earlier time frame, say beyond four or five hours.” Dr. Wong noted that Dr. Goodhue’s autopsy report stated that the cocaine was taken “in close proximity to the death”; Dr. Wong stated that given the level of cocaine detected, it was taken within the previous 24 hours. Dr. Wong also testified that he called the laboratory that performed the toxicology analysis on Powell’s blood, and learned that the laboratory also found cocaethylene, which “indicates a usage of cocaine while there was still alcohol present in the body.” Defense counsel asked Dr. Wong if he could say to a “reasonable scientific probability” that if cocaine is in the blood, it would have an effect on the user’s behavior, to which Dr. Wong responded: “I would say not knowing his medical history, his experience with cocaine, I would say just if I would assume an average user or a naive user, yes, we would normally see the effects of cocaine.” 18  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Dr. Wong also performed a retrograde extrapolation for alcohol and cocaine, in which he calculated the concentrations of alcohol and cocaine in Powell’s body at the time of the shooting. Dr. Wong stated that Powell’s blood alcohol at the time of the shooting was 0.18.15 Dr. Wong stated that the combined effects of cocaine and alcohol “generally are additive, especially in the effects of judgment.” The following exchange occurred between defense counsel and Dr. Wong: Q. Does it help you at all in the video in assessing as you may look at a police report a field sobriety test, does this video help you at all in being able to give an opinion based on a reasonable scientific probability as to what the effects first of all with the alcohol and then -- strike the alcohol, the effects of the cocaine? A. Just that everyone else there at that party had drinks as well as he. When they saw or appeared to have seen a gun, they all pretty much stayed away from the defendant, whereas the victim did not. Now, what is the commonality of all of them? They had alcohol. What was the -- at least all we know at this time the only difference between [] Powell and the others in his party was that we found cocaine in him, and so by inference perhaps it was that cocaine that gave him that extra shove to confront the individual. Q. Can you say to a reasonable scientific probability the fact that there was cocaine found in his bloodstream, the proximity of the cocaine, that it affected his judgment and his critical judgment or his behavior, just the cocaine alone? A. Well, again, just based on cocaine 15 Although Dr. Wong did not state at the hearing the concentration of cocaine in Powell’s blood at the time of the shooting, Dr. Wong’s August 9, 2010 letter that defense counsel submitted to the circuit court on September 3, 2010 indicated that Powell’s blood cocaine concentration at the time of the shooting was in a “probable range of 0.06 to 0.08 mg/L.” 19  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  concentrations that is something I can’t give you a definite answer but if this individual was approaching staring down the barrel of a gun, where most normal people would shy away or perhaps remove themselves from, I would say that perhaps cocaine, yes, by a probability would have been a factor in having him confront this individual even with a gun being presented towards him. . . . . Q. . . . Are you satisfied that the ingestion of cocaine in the proximity to the death had an impact on Powell’s behavior? A. With reasonable probability I would say yes. Q. To a reasonable medical scientific probability? A. Yes. (Emphases added). On cross-examination, the State questioned Dr. Wong about what he could testify to regarding the effect of cocaine on Powell: Q. You know, you just used words like perhaps the cocaine could or would have been a factor in [] Powell’s judgment; right? A. Yes. Q. And you cannot testify today in court under oath that to a reasonable degree of medical certainty [] Powell was under the influence of cocaine at the time of the shooting? [DEFENSE COUNSEL]: Excuse me, I don’t mean to interrupt you, . . . I’m not so sure the standard is medical certainty, I think it’s probability but either way. THE WITNESS: Yes. BY [THE STATE]: Q. Dr. Wong, you’re uncomfortable with saying that; isn’t that true? A. Well, normally in court in a criminal case I 20  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  usually would make an opinion based on beyond a reasonable doubt, okay? In this case it’s clearly it’s not beyond a reasonable doubt whether or not he was or not or was not under the influence of cocaine. I can only say with reasonable probability because of the concentration that was found, extrapolated concentration that was found in the blood, as well as his behavior, his apparent behavior in the camera of moving towards the defendant – . . . . Q. Can you testify to a reasonable medical degree of certainty that [] Powell was under the influence of cocaine at the time of the shooting? A. I can only say by probability. Q. Yes or no, Doctor. A. High probability, that’s all I can say. Q. High probability, not to a reasonable degree of medical certainty? A. Not beyond a reasonable -- THE COURT: Scientific certainty. BY [THE STATE]: Q. Scientific certainty. To a reasonable degree of scientific certainty, can you testify that [] Powell was under the influence of cocaine at the time of the shooting? A. No. Q. And the reason why you can’t is because you don’t know the background of [] Powell? A. Yes. . . . . Q. . . . [Y]ou cannot testify to a reasonable degree of scientific study [sic] because you state you need more information? A. Yes, that’s correct. Q. From your August 9 letter to your September 7 letter you say you need more information; correct? A. Yes. 21  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Q. Now, you need to know how the cocaine was ingested, was it smoked, was it snorted, was it intravenous? A. No, that aspect was not important. Primarily the important factors were did the individual show signs of intoxication, and we have no evidence other than any anecdotal evidence from the other witnesses. The camera was too far away to really determine any behaviors of tremors or antsyness of the individual. Of course, you cannot determine the pupil dilation, so I can’t use any other evidence to determine whether or not he was definitely under the influence of cocaine. (Emphases added). Dr. Wong acknowledged that in his September 7, 2010 letter, he cited to two references, including a “McCance-Katz” article – which studied the effects of cocaine and alcohol – but did not read that article. Dr. Wong stated that he relied primarily on an article by Dr. Eisenschmidt, and that he cited the McCance-Katz study because it was noted in the Dr. Eisenschmidt article. Dr. Wong acknowledged that between his August 9, 2010 letter and his September 7, 2010 letter, he never received information regarding the total amount of cocaine Powell ingested and when it was ingested, which would be required to determine more accurately whether Powell was under the influence of cocaine at the time of the shooting. Dr. Wong also stated that he would need to know Powell’s tolerance. When asked whether he received the information he requested, Dr. Wong responded: “Not all the information, no, that I needed. And I did say I could not make 22  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  that statement that with reasonable -- with medical certainty. I said I could not make that determination that he was under the influence of cocaine.” The circuit court also examined Dr. Wong: Q. Dr. Wong, this last paragraph that [defense counsel] was just asking you about [in Dr. Wong’s supplemental report dated September 7, 2010], the highly intoxicated by alcohol and cocaine, does the highly intoxicated modify both? I mean, was he highly intoxicated by cocaine at the time? A. The highly intoxication would refer to the alcohol. Q. Okay. And as the Court understands your first letter, you were not able to determine whether he was under the influence of the cocaine at the -- A. Well, I mention it was hard to make a definitive judgment on his impairment or the influence by cocaine unless there is more information given. Q. And the additional information between August and September was your viewing of the video? A. Yes, and the finding about the cocaethylene as well. Q. And the effect of that was just to indicate that the cocaine and alcohol had been taken at the same time? A. Yes. Q. But did not give any additional information about amount, time of ingestion? A. That, yes, we don’t know but the fact that they were both then coincident in the blood would give a very high probable of circumstance of intoxication by both, okay? [sic] I don’t have any behavioral clues other than perhaps what may be seen in the film of the man approaching the suspect with the -- the defendant with the -- I guess in their confrontation. It’s difficult to see at what point the gun is brandished. You can’t really pick that out in the film. So my point is that if a person points a gun at you it normally would give the person pause. I would not run up to him face-to-face if I see a gun in his hand. 23  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Q. The chart that was attached to your August letter with regard to the level of alcohol intoxication and the behavior, is there a similar chart for cocaine? A. No, for any of the drugs. That’s the reason why the DRE program[16] was established because there is no definitive way you can give a level of drug with a level of impairment. Some drugs exert effects even as the levels are dropping, so they don’t always correlate increase level increase intoxication either drugs as it does in alcohol. [Sic] Following the questioning of Dr. Wong, defense counsel argued that Dr. Wong should be allowed to testify about the behavioral effects of cocaine: . . . I think really it’s a weight issue, if anything, based on whether [the jury] believe[s] that was a factor. It’s . . . impossible for any expert to be present unless it’s a controlled test to watch somebody ingest any drug, cocaine included, and that’s why we have toxicology reports and that’s why we have experts, forensic toxicologists, who testify regarding the accepted effects, behavioral effects, based on studies that are done. And when [the DPA] asked [Dr. Wong] whether or not there’s anything in his references or CV, it is there. He has testified before and been admitted as an expert for the effects. It’s the combined effects. And I think he certainly shouldn’t be precluded and the jury should not be misled as to the condition of [] Powell. I think his testimony is an aid to the trier of fact. I think there’s a sufficient basis based on his credentials, based on the toxicology report, based on his extrapolation, and if it does enhance the effects of alcohol they should know that. And I think it would be properly admitted. I think it would be error to exclude it. . . . (Emphasis added). The circuit court allowed Dr. Wong’s testimony as to 16 Dr. Wong described the DRE program as a certification program that trains officers to recognize impairment due to drugs rather than alcohol. 24  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  the effects of alcohol, but excluded his testimony regarding cocaine: Viewing the evidence that has been presented with respect to this issue, the Court affirms its prior ruling on the motion in limine, is going to preclude the evidence and testimony with respect to the presence of cocaine.[17] The Court, in reviewing Dr. Wong’s initial letter, the subsequent September letter, as well as the testimony presented today, the Court thinks that it does not have sufficient reliability to present the issue before the jury and is going to cause confusion. The Court does note that in the [August] letter he indicated that he was not able to render an opinion with respect to whether [] Powell was under the influence of cocaine at the time of the shooting without additional information. He received some additional information between August and September, not the specific information that he indicated that he would need to do that, and he further indicated today that he could not make the -- render an opinion to a reasonable degree of scientific certainty that [] Powell was under the influence of cocaine at the time of his -- at the time of the shooting and therefore to allow him to opine about influence of both substances and the effect on the behavior of the deceased would be speculative. So Court precludes that use. . . . . [Dr. Wong] could not give an opinion in August and then he did render that opinion in the September 7th letter, but the Court is not allowing that opinion based on the testimony presented this morning. And he did indicate this morning that he cannot render that opinion to a reasonable degree of scientific certainty. But just to clarify . . . , he will be able to testify as to the blood alcohol level at the time of the shooting and what that level blood alcohol may indicate in terms of an individual’s behavior. The Court does find he’s qualified in that area. (Emphases added). 4. Defense’s Case-in-Chief 17 It is unclear from the record whether the circuit court actually made a prior ruling on this issue. A transcript of the September 3, 2010 hearing indicates that the circuit court’s prior ruling was that an HRE Rule 104 hearing would be held prior to any admission of the cocaine evidence. Minutes of the September 3, 2010 hearing state: “State and Deft’s motions in limine: granted in part, reserved in part, and Rule 104 hearings to be held.” 25  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Chang testified that he met DeLeon through a mutual friend and saw DeLeon about four or five times at various bars before the night of the incident. DeLeon appeared to be at Bar Seven alone and was drinking. At some point, DeLeon wound up talking with Powell. Chang, who considered Powell a friend, testified that Powell had his arm around DeLeon “like how you would hold like a pal or a buddy[,]” but Chang could not hear what Powell was saying to DeLeon. Beaudoin then told Chang he wanted to “false crack the Mexican guy[,]” and Chang told Beaudoin, “The guy is not doing anything wrong. Leave him alone. They’re all right.” Chang turned to talk to someone else, and then heard a slap. DeLeon started yelling at Beaudoin, “[W]hat the hell are you doing?” Chang “stopped the confrontation[,]” picked up DeLeon’s glasses from the floor, returned them, and told DeLeon, “You need to get the hell out of here before something worse happens to you[,]” because “they have all their friends[.]” DeLeon then left the club. About half an hour later, Chang left the club and went to Seoul Karaoke, where he saw Powell and Powell’s group. Chang left Seoul Karaoke before Powell was shot. Dr. Wong was qualified as an expert witness in the field of forensic toxicology, and testified that he reviewed the Sorabol security video, Powell’s autopsy report, and a toxicology 26  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  report of Powell’s blood alcohol content. Dr. Wong stated that Powell was found to have a blood alcohol level of 0.171, which indicates “a high degree of alcohol intoxication.” Dr. Wong further stated that he calculated by retrograde extrapolation that Powell’s blood alcohol level was .181 at the time of the shooting. Dr. Wong then consulted the “Dubowski table”18 in which ranges of blood alcohol concentrations are assigned various stages of alcoholic influence and clinical signs and symptoms. According to the Dubowski table, Powell’s blood alcohol level bordered between the alcoholic influence categories of confusion and excitement. Dr. Wong also testified that the category of euphoria, which included symptoms of being “supremely overconfident[,]” was also applicable. Dr. Wong explained that the category of “excitement” includes symptoms of emotional instability and impairment of the perception of distance, objects, and danger. Dr. Wong explained the category of confusion as not being situationally aware of where you are in a given time. . . . [I]f you have mental confusions you may not be aware of these different options . . . that were available to you and you may take other options that are perhaps more dangerous. It also is a means of interpretation of what the situation is. If a person is in conversation or in actions that may be misinterpreted as something else. . . . . [I]f a person is angry at an individual, alcohol will 18 Dr. Wong testified that the table was constructed by Dr. Kurt Dubowski, a “world expert on alcohol.” 27  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  supplement and will fuel that anger to a higher level, in some cases rage, uncontrollable rage. After the defense rested,19 DeLeon moved for judgment of acquittal, which the circuit court denied. 5. Jury instruction on self-defense The circuit court provided the jury an instruction modeled after HAWJIC 7.01 with regard to self-defense. The instruction provided the following: Justifiable use of force, commonly known as self-defense, is a defense to the charge of Attempted Murder in the First Degree in Count I and Murder in the Second Degree in Count II and the included offense in Count II of Manslaughter. The burden is on the Prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justifiable. If the Prosecution does not meet its burden, then you must find the defendant not guilty. The use of force upon or toward another person is justified when a person reasonably believes that such force is immediately necessary to protect himself on the present occasion against the use of unlawful force by the other person. The reasonableness of the defendant’s belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be. The use of deadly force upon or toward another person is justified when a person using such force reasonably believes that deadly force is immediately necessary to protect himself on the present occasion against death or serious bodily injury. The reasonableness of the defendant’s belief that the use of such protective force was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as 19 DeLeon chose not to testify. Additional witnesses testified for the defense; however, their testimony is not relevant to the issues before this court. 28  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  the defendant reasonably believed them to be. The use of deadly force is not justifiable if the defendant, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter or if the defendant knows that he can avoid the necessity of using such force with complete safety by retreating. “Force” means any bodily impact, restraint, or confinement or the threat thereof. “Unlawful force” means force which is used without the consent of the person against whom it is directed and the use of which would constitute an unjustifiable use of force or deadly force. “Deadly force” means force which the actor uses with the intent of causing, or which he knows to create a substantial risk of causing, death or serious bodily injury. Intentionally firing a firearm in the direction of another person or in the direction which the person is believed to be constitutes deadly force. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, so long as the actor’s intent is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force. “Bodily injury” means physical pain, illness, or any impairment of physical condition. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. If and only if you find that the defendant was reckless in having a belief that he was justified in using self-protective force against another person, or that the defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his use of force against the other person, then the use of such self-protective force is unavailable as a defense to the offense of Manslaughter. The defense did not object to the court’s self-defense instruction. 6. Closing arguments In its closing argument, the State described DeLeon as a person with various VIP cards to bars and nightclubs and “who thinks he’s somebody, he’s a baller, he’s a VIP.” The DPA stated 29  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  that that image was “crushed” on the night of the incident at Bar Seven, when Beaudoin slapped him, and DeLeon was told to “get the hell out of here[,]” leaving DeLeon to “do the walk of shame in front of all these guys[.]” The DPA stated that DeLeon, humiliated, “waited to see which car they got into, he waited to see where they would go, and he waited for his opportunity.” The DPA stated that DeLeon arrived at Seoul Karaoke two minutes after Powell’s group walked into Seoul Karaoke – “one hour, seven minutes, and 55 seconds after the slap.” The DPA stated that DeLeon waited “in the dark, and watch[ed] as [Powell] and his friends walk from Seoul directly to the Navigator[.]” DeLeon then “shout[ed] out to them, You wanna mess with me? You wanna hit me? What’s up now? He’s trying to, and he does, get the attention of [Powell] and his friends.” The DPA described what occurred next as follows: So at 04:09:07 A.M. you see [Powell] turn and walk towards that shouting. They walk towards him, . . . listening to this shouting and screaming, wondering what’s going on, when they finally realize, when they get closer, Oh, it’s the guy from [Bar Seven]. So [Beaudoin] tells him, Nah, let’s just go. But [Powell] tells him, No, brah, everything’s cool. He has his hands up. Everything’s cool. It doesn’t stop the defendant. First three shots. . . . Meanwhile, [Powell] is still there, hands up, I surrender; It’s okay; Everything’s cool. He doesn’t kick him; he doesn’t punch him; he doesn’t slap him; he doesn’t choke him; he doesn’t lunge at him; he doesn’t threaten him. But it doesn’t matter. Shot four, less than three feet away, Defendant points, aims, and shoots. [Powell] crumbles. And at this point, he doesn’t lower the gun to shoot to his leg; he doesn’t raise the gun to shoot to his shoulder or his foot. Straight to the heart. 30  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  The DPA also argued that self-defense did not apply to DeLeon: You cannot create your own thing, walk up to it, and then claim self-defense. He calls them over. He says, Come over here; Look what I gotta show you. Shawn walks up with his hands. When he realizes who it is, Everything’s cool, brah. You know, nothing. I’m in surrender, palms face up. He doesn’t hit him; he doesn’t punch him; he doesn’t kick him; he doesn’t threaten him. In his closing argument, defense counsel stated that DeLeon did not want to shoot anyone but ended up shooting Powell in self-defense. Defense counsel questioned the State’s theory that DeLeon was seeking revenge, noting that DeLeon did not shoot Beaudoin, who slapped him at Bar Seven, but shot Powell, “the guy that was on him, that walked across and ignored the warning shots, ignored his friend who tried to grab him, and he was on him.” [T]here’s a gun at [DeLeon’s] side, and they start coming. They’re screaming and yelling. And then there’s finally, when he’s five feet away, a gunshot in the air. [Powell’s] friends are trying to pull him off. He’s less than a foot away. His hands, I suggest, are out and he shot once. Was there a reasonable belief that he was going to sustain serious bodily injury? Is there anyone that can possibly imagine some crazy guy, drunk, coming at you and you firing a warning shot? If he wants to shoot somebody, what's he firing warning shots about? Why does he then shoot in the ground to keep the other guys back? He wants to kill somebody? He thought about it? How could anyone right-thinking not believe that he has a reasonable belief he’s going to suffer serious bodily injury when the guy is now on him after he’s fired a warning shot? And you’ll see [DeLeon] steps out of the screen. He steps back. But [Powell is] on him. And he doesn’t listen to Beaudoin, who’s grabbing his shoulder. Defense counsel described Powell as “one mean guy when 31  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  he got drunk,” and called Powell’s group a “mob looking for trouble, going after a guy with a gun, who’s firing a warning shot.” Defense counsel stated that on the night of the shooting, Powell and his friends were “drunk out of their minds” after engaging in “eight hours of drinking alcohol.” Defense counsel noted that Powell’s extrapolated blood alcohol level was 0.181 and that “Dr. Wong said the presumption of intoxication is 0.82, [sic] which is twice the amount, which fits into every category almost of the Dubowski table.” Defense counsel further discussed Dr. Wong’s testimony regarding the effects of alcohol on Powell: [W]e have increased self-confidence, decreased inhibitions, diminished judgment and control, emotional instability, critical judgment, Superman. Bullets don’t hurt you. Critical judgment, impairment of perception. . . . This guy . . . has lost his critical judgment and it increases his rage. To suggest to you folks he just walked across the parking lot -- and you’ll see it -- just to say, Braddah, everything is cool, my hands are up, you see, I surrender -- who are the other two people that were screaming and swearing in that parking lot? Braddah, it’s so cool. How come Beaudoin had to try to grab him by the shoulder and couldn’t do it? G. Verdict, Judgment, and Sentence On October 1, 2010, the jury found DeLeon guilty of Murder in the Second Degree as to Powell (Count II), Carrying or Use of a Firearm While Engaged in the Commission of a Separate Felony (Counts IV and V), Place to Keep a Pistol or Revolver (Count VI), Reckless Endangering in the First Degree (Count VII), and Ownership or Possession Prohibited of Any Firearm or 32  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  Ammunition by a Person Convicted of Specified Crimes (Count VIII). The jury found DeLeon not guilty of Attempted Murder in the Second Degree as to Gamboa (Count III), but found him guilty of the included offense of Reckless Endangering in the First Degree. The jury acquitted DeLeon of Attempted Murder in the First Degree regarding Powell and Gamboa (Count I). At sentencing, the circuit court granted the State’s oral motion to dismiss without prejudice Count VI, which merged with Count VIII. DeLeon was sentenced to concurrent prison terms of life with the possibility of parole (Count II), five years (Count III), twenty years (Count IV), twenty years (Count V), five years (Count VII), and ten years (Count VIII). DeLeon was also sentenced to mandatory minimum terms of twenty years for Count II and five years for Count III, and was ordered to pay $4,000 in restitution to the Crime Victim Compensation Commission. DeLeon timely filed a notice of appeal.
+In his opening brief, DeLeon raised four points of error. Specifically, DeLeon asserted that (1) defense counsel provided ineffective assistance of counsel by failing to establish Powell’s recent cocaine ingestion before the incident, (2) the circuit court’s self-defense instruction failed to properly instruct the jury on the law of self-defense, (3) the 33  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  circuit court erroneously refused to instruct the jury on extreme mental or emotional disturbance (EMED) manslaughter, and (4) the circuit court wrongly convicted and sentenced him as to Count V (Carrying or Use of Firearm in the Commission of a Separate Felony) because the jury convicted him in Count III of reckless endangerment, an excluded offense.20 In its January 18, 2013 Summary Disposition Order, the ICA agreed that DeLeon’s conviction as to Count V was improper because his reckless endangerment conviction did not constitute a “separate felony,” and accordingly reversed the Count V conviction. The ICA affirmed the circuit court’s judgment in all other respects. Relevant to the issues before this court, the ICA rejected DeLeon’s ineffective assistance of counsel argument, and concluded that the circuit court properly instructed the jury on self-defense. The ICA filed its judgment on appeal on February 14, 2013. 20 HRS § 134-21 (Supp. 2009), which governs the offense of Carrying or Use of a Firearm in the Commission of a Separate Felony, provides, in relevant part: (a) It shall be unlawful for a person to knowingly carry on the person or have within the person’s immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, . . . provided that a person shall not be prosecuted under this subsection when the separate felony is: . . . . (2) The felony offense of reckless endangering in the first degree under [HRS §] 707-713[.] 34  FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  DeLeon timely filed his application for a writ of certiorari, in which he raises the following questions:
+DeLeon’s claim that counsel was ineffective for failing to establish [decedent Shawn] Powell’s cocaine ingestion (in addition to his alcohol intoxication) which substantially impaired DeLeon’s defense of self-defense.
+DeLeon’s claim that the self-defense instruction based on HAWJIC 7.01, which omitted the language of HRS § 703-304(3), failed to completely and properly instruct the jury on the law of self- defense. The State filed a response on April 22, 2013.21",facts
+239,853073,2,4,"French contends that he was denied his fundamental right to require the State to prove each element of the offense charged beyond a reasonable doubt, in violation of the United State Constitution and the Indiana Constitution. French was charged with dealing in cocaine as a Class A felony for delivering cocaine within 1000 feet of 9th Street Park and/or St. Bartholomew Catholic Parish Pre-School. French argues that the dealing in cocaine charge should not have been enhanced to a Class A felony because there was insufficient evidence to prove French dealt cocaine within 1000 feet of school property.
+French contends that there was no evidence to support the proposition that St. Bartholomew Preschool was school property for purposes of the enhancement provided by Indiana Code section 35-48-4-1 for dealing within 1000 feet of a school. Section 35-41-1-24.7 provides, in relevant part, that the term school property includes a building or other structure owned or rented by ... [a] private school (as defined in IC 20-9.1-1-3). Section 20-9.1-1-3 defines a private school as any school which is not supported and maintained by funds realized from the imposition of a tax on property, income or sales. The Director of St. Bartholomew Preschool testified that the preschool is part of the St. Bartholomew's Catholic Church. She testified that the school was a private school, did not receive state funding, and was privately sponsored by the church. She also stated that the children at the school range in age from twenty months to six years; they learn their numbers and alphabet, sing songs, go on field trips, and play. She testified that the building in which the school is located is owned by the parish. French contends that based on this information, one may speculate that St. Bartholomew was nothing more than a church run babysitting service. We disagree. We think that this kindergarten level institution falls within the definition of school property. In any event, the information charged French with dealing in cocaine within 1000 feet of a school or park. French has made no argument that the evidence was insufficient to show that Wilson Street Park was a park. Consequently, the enhancement to a Class A felony was proper.
+French argues that the evidence was insufficient to establish the distance between the transaction and either the school or the park. Shawn Plummer, an auto CAD technician for the City Engineer's office, testified that the distance from the address where the dealing took place was 790 feet from St. Bartholomew's pre-school and 661 feet from the Wilson Street park. Plummer's job entails making city maps, putting new subdivisions on the maps, and keep[ing] the map accurate with the city. He stated that he enters an address into the computer, and his computer calculates everything within a 1000 feet radius of that address and produces a map. On cross-examination, Plummer admitted that he did not physically measure the distance in this case, did not write the computer program, did not know how the program worked, and did not know whether it was accurate. French objected to the map, because no one actually went out there and physically measured [the distance and] there's no foundation laid that these distances are actually the distances that that computer generated. We assume the computer generated map could be established to be reliable. In any event, before trial resumed the following day, Officer Curt Beverage physically measured the distance between the place of the dealing and the pre-school and the place of dealing and the park. He used a one-hundred-foot heavy-duty steel tape that he calibrated by comparison with a separate twenty-five foot tape. He also checked the accuracy of the twenty-five foot tape against a twelve-inch ruler. Beverage testified that the distance from the place of dealing and just past the property line of the school was 652 feet and to the far end of the school building was 964 feet. Beverage stated that the distance from the place of dealing and the park was 717 feet. This evidence was sufficient.",sufficiency of the evidence
+240,853972,1,2,"The judgment of the trial court is reversed. This case is remanded with instructions to affirm the decision of the Board of Zoning Appeals. The remaining issues addressed by the Court of Appeals are moot in light of our holding on the issue of grandfather registration. SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.",conclusion
+241,2162106,1,1,"The policy was a standard family automobile policy and contained the usual provisions requiring United to defend any suit against Kunkel and gave the company the right to make such investigation and settlement of any claim or suit as it deemed expedient. Although there has been no prior expression from this court on the subject, it is well established that an insurance company which has issued a liability insurance policy limited in the amount of its coverage may so conduct itself so as to be liable for the entire judgment recovered against its insured irrespective of policy limits. For a collection and discussion of cases from other jurisdictions, see Annot., 40 A.L.R. 2d 168, and Later Case Service, Vol. 4, page 649; Keeton Liability Insurance and Responsibility for Settlement, 67 Harvard Law Review, 1136, and Ancillary Rights of the Insured Against His Liability Insurer, 28 Ins.C.J. 395; Wymore, Safeguarding Against Claims in Excess of Policy Limits, 28 Ins.C.J. 44; Insurer's Liability To Insured for Judgments Exceeding Policy Limits, 7 Drake Law Review 23; (May, 1958) 7 Am.Jur.2d, Automobile Insurance, 155 et seq.; 45 C.J.S. Insurance § 936; 7A Appleman, Insurance and Law Practice, §§ 4712, 4713. Courts differ as to the degree of proof which the insured must make in order to recover any excess above policy limits. Some have held that where an insurer has assumed control of the defense and it has the opportunity to settle the claim within policy limits, it must do so, if that is the reasonable thing to do and it may be liable for negligently failing so to do. 45 C.J.S. Insurance § 936b, and cases shown in note 23. Other courts hold the insured to a high degree of proof and to show fraud or bad faith, and seem to equate one with the other. City of Wakefield v. Globe Indemnity Co., 246 Mich. 645, 225 N.W. 643. A few courts have held that either bad faith or failure to use ordinary care may lead to liability. Southern Farm Bureau Cas. Ins. Co. v. Parker, 232 Ark. 841, 341 S.W.2d 36; Cernocky v. Indem. Ins. Co. of North America, 69 Ill.App.2d 196, 216 N.E. 2d 198. However, even in so-called strictly bad faith jurisdictions, courts hold that the character and extent of an insurer's negligence are factors to be considered by the trier of fact in weighing the matter of bad faith. Baker v. Northwestern Nat. Cas. Co., 26 Wis.2d 306, 132 N.W.2d 493. In Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 231 N.W. 257, 235 N.W. 413, in discussing bad faith and negligence in this area of the law, the court made the following observation on the use of such terms: Terms which are not strictly convertible or synonymous have been used by different courts to indicate the same thing. Negligence has been used by some courts to mean the same thing that other courts have designated as bad faith. Bad faith, especially, is a term of variable significance and rather broad application. Generally speaking, good faith means being faithful to one's duty or obligation; bad faith means being recreant thereto. In order to understand what is meant by bad faith, a comprehension of one's duty is generally necessary, and we have concluded that we can best indicate the circumstance under which the insurer may become liable to the insured by failure to settle by giving with some particularity our conception of the duty which the written contract of insurance imposes upon the carrier. Appleman in his well known text on insurance cited supra has said that the two terms bad faith and negligence are often used interchangeably by courts and that the conclusion must be drawn that mere terminology means little. It is rather the factual situation which is significant in the light of the duty which exists, and normally the trier of fact must make the determination of liability or nonliability. The trial court submitted the matter to the jury under the bad faith rule which we believe to be the better rule and the one prevailing in the majority of jurisdictions and we approve it. See 7 Am. Jur.2d, Automobile Insurance, § 156. However, as stated supra, the character and extent of the insurer's negligence are factors to be considered by the trier of fact in determining if there is bad faith. The insured has the burden of establishing his claim by a preponderance of the evidence. Good faith is a broad and comprehensive term. Whether an insurer had adhered to it usually depends upon circumstances and elements involved in a particular case. The decision not to settle must be thoroughly honest, intelligent, and impersonal. It must be a realistic decision tested by the expertise which an insurer necessarily assumes under the terms of its policy. Where the insurer recognizes liability and the probability of a verdict in excess of policy limits circumstances constituting a failure to exercise good faith may weigh in favor of an insured. Exposure to a potential judgment against which there is only partial protection makes it obvious that ordinarily there is a conflict of interest when the opportunity arises to settle a claim within the coverage of the policy. When can it be said that an insurer has breached its duty to exercise good faith? While no single satisfactory test has been formulated as to what constitutes good or bad faith courts uniformly hold that the insured's interests must be considered. It appears to have been most frequently held the insured's interests must be given equal consideration with those of the insurer, Farmers Insurance Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404, Brown v. Guarantee Ins. Co., 155 Cal.App. 2d 679, 319 P.2d 69, 66 A.L.R.2d 1202, or as it is often expressed at least equal consideration. Am.Fidelity & Cas. Co. v. G. A. Nichols Co., 10 Cir., 173 F.2d 830; Potomac Ins. Co. v. Wilkins Co., 10 Cir., 376 F.2d 425. Sometimes the duty to exercise good faith and give equal consideration is expressed by telling the jury that in making the decision whether to settle or try a case, the insurer must in good faith view the situation as it would if there were no policy limits applicable to the claim. Am. Fidelity & Cas. Co. v. L. C. Jones Trucking, Okl., 321 P.2d 685; Cowden v. Aetna Cas. & Surety Co., 389 Pa. 459, 134 A.2d 223; Bowers v. Camden Fire Ins. Asso., 51 N.J. 62, 237 A.2d 857; Murach v. Mass. Bonding & Ins. Co., 339 Mass. 184, 158 N.E.2d 338. The enunciation of this rule is not difficult, but its application may be troublesome. It has been said to be a matter of consideration of comparative hazards. Farmers Insurance Exchange v. Henderson, supra. In Brown v. Guarantee Ins. Co., supra, the California court lists some factors which should be considered in deciding whether an insurer's refusal to settle constituted a breach of its duty to exercise good faith; namely: (1) the strength of the injured claimant's case on the issues of liability and damages; (2) attempts by the insurer to induce the insured to contribute to a settlement; (3) failure of the insurer to properly investigate the circumstances so as to ascertain the evidence against the insured; (4) the insurer's rejection of advice of its own attorney or agent; (5) failure of the insurer to inform the insured of a compromise offer; (6) the amount of financial risk to which each party is exposed in the event of a refusal to settle; (7) the fault of the insured in inducing the insurer's rejection of the compromise offer by misleading it as to the facts; and (8) any other factors tending to establish or negate bad faith on the part of the insurer. Several of the factors mentioned by the California court are not in issue in the case at bar. For instance there was never any request for contribution by the insured. There is no suggestion that the insurer was negligent in its investigation of the facts and circumstances surrounding the accident unless possibly a follow-up on the extent of the injuries after surgery and before trial. [3] Although the insurer's attorney did not specifically advise settlement, it does appear he forewarned of a strong case on liability, very serious injuries, and the great probability of a verdict in excess of policy limits. Counsel for United recognizes it is now clear by hindsight that it would have been better for both the insured and the insurer to have accepted the offer in settlement, but he says United's refusal to settle should not be tested by hindsight. In Ferris v. Employers Mutual Cas. Co., 255 Iowa 511, 122 N.W.2d 263, 268, the court said: While it may be in the light of what happened that Monday morning quarterbacks, as is their privilege and custom, disagree with the plays called on the previous Saturday afternoon, must we say that the signal caller was guilty of bad faith in choosing the plays as he did?    Again there is the implication that we should judge the fairness of the decision not to settle by the result. We suggest that if we are to venture into the area of what counsel `should have known' in advance of the trial of a lawsuit as shown by the final outcome, by a jury's decision, we are requiring of him the gift of foretelling the future not often given to mankind. We know of no mortal who has been vouchsafed this power since the days of the Bible prophets; and as we understand it, these ancient seers had access to some inside information not presently available to counsel in damage cases.    We may not measure the reasonableness of the offer by the ultimate result of the litigation; it must be considered in the light of the case as it fairly appeared to the insurer and its authorized agents and attorneys at the time the offer was made. We now turn to some of the facts and circumstances we deem pertinent. The entire file including exhibits and a transcript of testimony in the case of Ronken v. Kunkel was received in evidence and is a part of the record on review. The accident occurred on Sunday, September 2, 1962, at about 1:45 a.m. on State Highway 38 when Kunkel's automobile crashed into the rear of Ronken's car which was traveling east at a speed of about 50 miles per hour. Ronken's car was forced into the south ditch, struck a service road, catapulted into the air and then nose-dived into the ground. Ronken was torn loose from the steering wheel and thrown against the dashboard back first. He rode to the hospital in an ambulance and received outpatient treatment. Pain persisted primarily in his lower back region and he was treated by doctors and osteopaths intermittently until June 5, 1964, when he consulted Dr. Manning, an orthopedist, who took X-rays which revealed several herniated intervertebral discs in the lumbar spine region. On June 11th he was hospitalized, placed in traction to relieve pain, and released on June 19th. On September 16th he was readmitted and his injury was diagnosed as three herniated lumbar disc defects    showing on the third, fourth and fifth lumbar level. On September 18th Dr. Manning performed a 3-level laminectomy. Ronken experienced severe post-operative pain and was released on September 30th. He was readmitted on November 10th due to a postoperative intestinal condition and released on November 14th. United investigated the accident and in a general way was acquainted with Ronken's condition until the time of surgery, although the record is somewhat incomplete in this regard. There is some indication settlement for a small amount was attempted before suit was started. Kunkel plead guilty to the criminal charge of reckless driving following the accident. On May 26, 1965, Ronken sued Kunkel claiming $117,598.87 in damages of which $20,000 was for punitive damages. [4] Kunkel delivered the suit papers to United who on June 1, 1965, wrote Kunkel that Ronken's claim was in excess of coverage, the name of the law firm to whom the defense was referred, his right to employ independent counsel at his expense if he so chose, and that the retained firm would represent his interests in excess of coverage if he so desired. Richard Braithwaite, a member of the law firm who was in charge of the litigation, wrote Kunkel to the same effect. Concerning their initial interview Kunkel testified when Braithwaite asked if he wanted another attorney he said he could not afford one but that if he didn't think he could handle it alone (he) would try and borrow the money and get another attorney and was told that this was not necessary since he was obligated to defend (him) to the best of his ability. Depositions of Ronken and Dr. Manning were taken before trial and in general disclosed the nature of the injury, persistent pain from the time of accident to the surgery, and a poor result following surgery. Dr. Manning related the injury to the accident and testified to a 50% permanent disability with a possibility of a reduction to 25% by a spinal fusion operation and additional expense connected therewith. Ronken was 26 years old, single, and employed as a teacher and coach at a junior high school in Sioux Falls at the time of the accident. He continued to coach for two years thereafter, but was limited in his activity. Following surgery, he discontinued coaching on advice of his doctor. Lost income from coaching was from $68 to $73 per month. It is undisputed that Ronken participated in sports, principally volley ball and basketball, for about two years after the accident. United does not contend that it expected to escape liability, but strongly urges that in view of the doctor's report (see note 3) and Ronken's post accident athletic participation, it did in good faith expect that a jury would not return a verdict in excess of policy limits. Richard Hopewell, counsel for Ronken, testified he received no firm offers of settlement at any time from United; that on September 7, 1965, at the call of the court calendar, he asked for policy limits, but they were not revealed then or at any time thereafter before judgment; on September 22nd, the day after Manning's deposition was taken, Braithwaite asked him what he thought a reasonable settlement would be and he said $50,000, but he had authority to settle for $35,000. Braithwaite responded: Your appraisal of the case and what I consider reasonable is the difference between arithmetic and calculus. On September 16th, prior to taking Dr. Manning's deposition, but with his medical report at hand, Braithwaite wrote United, I don't like the information contained in those reports one bit. The doctor's opinion (if it stands up) plus the flagrant conduct of the defendant spells dynamite. Conceivably, we might have to get a SBA loan to finance payment of the verdict. He also suggested the possibility of an independent medical, but did not advocate it at that time. On September 22nd, after Dr. Manning's deposition had been taken, Braithwaite wrote he expected the case to be tried; that his present inclination was against an up-to-date medical examination depending on what Dr. Van Demark said; that he was now convinced Ronken was going to be a cripple the rest of his life, but his medical future is presently unknown; that Dr. Manning had definitely related Ronken's injuries to the September 2, 1962 accident; that if Dr. Van Demark stands up for us he thought they would be all right; that Dr. Manning definitely was of the opinion that Ronken would remain permanently disabled with or without a spinal fusion operation and the only question was how much; that even with the best possible progress Ronken would have a 25% permanent disability of the body as a whole. Braithwaite further requested authorization to admit liability though it would be against company policy because he saw no basis to fight liability. He also said Ronken's lawyer had indicated the case could be settled for $35,000, but he felt we would be completely unjustified in paying that amount or anywhere near it, but since it was an excess case he would relay the offer to Kunkel who he said couldn't come up with $10,000 if he wanted to. He said it was a hard case to evaluate; that special damages were about $5,000; that if the jury believed Dr. Manning and disbelieved Dr. Van Demark we are going to get stuck and we are going to get stuck big. By that, I think we would be stuck more than $35,000. If they did not believe Dr. Manning, but accepted insured's theory, he thought the verdict might be about $4,000 to $5,000. Braithwaite concluded his long letter by saying I rather think that if we should offer $25,000 (Ronken) would accept it; he might even accept a little less but he did not feel justified in offering anywhere near that amount and he saw nothing that would change his thinking unless Dr. Van Demark fell down completely and if so, he would immediately contact the company for a re-evaluation of the case. Kunkel received a letter from Braithwaite informing him of the $35,000 offer and they talked about it over a telephone. Kunkel said he told Braithwaite he didn't have $10,000 and he doubted if he could borrow it because he had no security, and he wanted to know if he wanted him to try and borrow it, and he said no, I don't think that's necessary. No other offers of settlement were communicated to Kunkel and there is nothing to indicate that Braithwaite informed Kunkel of the seriousness of Ronken's injuries, the expected damaging testimony of Dr. Manning, and if believed by the jury, the great probability of the verdict exceeding policy limits. The failure of the insurer to inform the insured of an offer to compromise has sometimes been regarded as evidence of bad faith. See 40 A.L.R.2d 168, 216. Kunkel testified he told Braithwaite before the jury was selected that he wished Ronken would take policy limits and forget about it, because I sure don't want to go to court; that in substance he told him the same thing several times during the trial and was ignored by Braithwaite. The record reveals that during trial of the Ronken case, Hopewell at various times indicated to Braithwaite that he felt the case could be settled within policy limits, but no firm offer was made until after the jury retired about 4 p.m. Shortly thereafter, Sam Sechser, an attorney, who Hopewell asked to associate with him on an attempted settlement, conferred with Braithwaite and a district claims manager for United, who was present during most of the trial, in the hallway outside the courtroom. It is undisputed that at that time another request was made for policy limits and refused; that United was then informed Ronken would settle the case for $25,000, or if policy limits were less, for whatever the policy limits might be; that the offer was ignored; that it was never communicated to Kunkel or to the home office; that the jury verdict was rendered about 10 p.m. The home office claims manager of United testified that it had set up a loss reserve on the claim after suit was started of $9,500 and it was never changed. The district claims manager who attended the trial did not know the amount of the reserve, but thought it was less. Ordinarily the question of good faith is a fact issue for the jury or other trier of fact. Baker v. Northwestern Nat. Cas. Co., 22 Wis.2d 77, 125 N.W.2d 370; Brown v. Guarantee Ins. Co., 155 Cal.App. 2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; State Automobile Ins. Co. of Columbus, Ohio v. Rowland, 221 Tenn. 421, 427 S.W. 2d 30; Tenn. Farmers Mut. Ins. Co. v. Wood, 10 Cir., 277 F.2d 21. No precise formula can be prescribed for determining the sufficiency of the evidence on the issue of good faith. In Tenn. Farmers Mut. Ins. Co. v. Wood, supra, the test was thus stated: If the proof, in the light of all the relevant circumstances, and inferences to be drawn therefrom is such as to leave a reasonable basis for disagreement among reasonable minds, the question of good faith of the insurer in the handling of the claim and conducting compromise negotiations is for the jury. In our opinion under the record in this case and considering all of the relevant circumstances and inferences to be drawn therefrom we believe the evidence was such as to leave a reasonable basis for disagreement among reasonable minds as to the good faith of United and its agents in its handling of the claim and consequently there was a submissible issue of good faith for jury determination. We have already alluded to some factors tending to establish Kunkel's claim. In addition the court instructed that Kunkel was liable as a matter of law and only left for jury determination the amount of damages proximately resulting from the accident. Ronken's injuries were serious. Dr. Van Demark said the result of disc surgery was poor. His prognosis of Ronken's future and percentage of permanent disability was substantially in accord with Dr. Manning's. This was known before the offer of settlement within policy limits was made. The cases are virtually unanimous in holding that when a claimant has a strong case on the issue of liability and the injuries are serious, both of these matters may have some tendency to show an insurer's rejection of an offer to settle was not in good faith. See Annot., 40 A.L.R. 2d 168, 196. That Dr. Van Demark's testimony and the claimant's athletic activities, although perhaps subject to interpretation minimizing the accident as the proximate cause of Ronken's condition at the time of trial, would actually do so was at best a rather remote gamble. Likewise, it is undisputed, if the accident aggravated a pre-existing condition, Kunkel was liable for the aggravation. One of United's experts on the question of bad faith when asked concerning the issue of proximate cause admitted such issue was not very much open based upon the record. It does not appear as if United made either a serious offer to settle or a counter offer. Neither did they inform claimant of policy limits. We recognize that under the case law of this state when the action was tried there was no affirmative duty to disclose policy limits. See Bean v. Best, 76 S.D. 462, 80 N.W.2d 565. [5] Nevertheless, it has been recognized as relevant to evaluating a case and as an aid in achieving settlements. See Cernocky v. Indem. Ins. Co. of North America, supra. In the latter case the court said: The defendant summarily and emphatically refused to discuss settlement; to inform the Marquardts of the policy limits so that they could determine if they could make an offer of settlement within the limits; or to permit plaintiffs' personal counsel to do so. Such conduct indicated that the defendant did not give equal consideration to the insured's interest. In State Automobile Ins. Co. v. Rowland, supra, it was said that a refusal to discuss a settlement may be considered along with other evidence in determining the issue of bad faith. The second of United's experts admitted that if he had handled the case he probably would have made an offer of settlement. The record establishes that United recognized great danger of a verdict exceeding policy limits. It hardly allows any other reasonable analysis. When we consider the comparative hazards; that is, settling the case for $25,000 within policy limits, or exposing the insured to a possible verdict nearly three times in excess of that amount, we believe a jury could find that United did not exercise its duty of good faith and did not give equal consideration to its own and Kunkel's comparative hazards. General Acc. Fire & Life Assur. Corp. v. Little, 103 Ariz. 435, 443 P.2d 690; Am. Fidelity & Cas. Co. v. G. A. Nichols Co., supra. United argues that when the firm offer was made while the jury was deliberating it came too late and could not be acted upon. While it is true most offers would be made before that time, or there would at least be some serious preliminary negotiations prior to that stage of the trial, we believe it is only another factor for consideration of the jury on the matter of good faith. We find no case where an offer to settle after the close of all of the evidence, or while the jury was deliberating, was considered decisive on the issue of bad faith. The Cernocky and Rowland cases, supra, are authority that an offer to settle within policy limits is not a prerequisite to an action to recover for excess liability. For cases in which offers to settle were made during trial, see Potomac Ins. Co. v. Wilkins Co., 10 Cir., 376 F.2d 425; State Farm Mut. Automobile Ins. Co. v. Marcum, Ky., 420 S.W.2d 113; Harvin v. United States Fidelity & Guaranty Co., Ky., 428 S.W.2d 213; Amer. Fidelity & Cas. Co. v. G. A. Nichols Co., supra. It is common knowledge among practitioners in the personal injury field that many settlements are negotiated and consummated during trial and sometimes while the jury is deliberating. We have stated supra that the burden of proof was upon the insured to establish bad faith by a preponderance of the evidence. The court instructed that the evidence as to bad faith must not only preponderate but in addition such evidence must be clear and satisfactory and convincing. Such is the rule in some jurisdictions. Berk v. Milwaukee Automobile Ins. Co., 245 Wis. 597, 15 N.W.2d 834; Cowden v. Aetna Cas. & Sur. Co., 389 Pa. 459, 134 A.2d 223. It originates from the premise that bad faith is a species of fraud and since one is the equivalent of the other and fraud must be proved by evidence which is clear, satisfactory and convincing, the same rule applies to bad faith. Although we have said that fraud is never presumed or lightly inferred, we have not said the burden to prove fraud required more than a preponderance of the evidence. Northwest Realty Co. v. Colling, 82 S.D. 421, 147 N.W.2d 675. We believe this to be the proper standard of proof in this type of case and the rule in most jurisdictions. In General Acc. Fire & Life Assur. Corp. v. Little, supra, the Arizona court held that it was not error to refuse an instruction which required bad faith to be established by clear, convincing and satisfactory evidence, in the absence of actual fraud. See also Cernocky v. Ind. Ins. Co. of North Amer., supra, where the court distinguished fraud and bad faith, and Kohlstedt v. Farm Bureau Mutual Ins. Co., 258 Iowa 337, 139 N.W.2d 184.",sufficiency of the evidence
+242,4667138,1,2,[1] Whether a party has complied with the notice requirements of Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is determined de novo upon a review of the record.,standard of review
+243,886550,1,5,"¶ 33 Did the District Court err in its interpretation of the insurance contract? ¶ 34 Nelsons contend the District Court erred in concluding that Farmers complied with the payment terms of the insurance contract, arguing that Farmers failed to effectuate prompt settlement within the allotted sixty-day time limit when according to Nelsons, it was faced with clear liability. While Nelsons' argument is not altogether clear, it appears they are contending that the joint appraisal established that Nelsons' siding was in fact damaged by the hail and further assert that Farmers should have relied on the July 1990 First General appraisal for determining replacement costs. Nelsons contend that Farmers never disputed the amount or reasonableness of the First General estimate, but instead contested only whether the siding was in fact damaged by the hail. In reply, Farmers contends it was reasonable to seek current bids for replacement costs from contractors, and argues that the sixty-day time period runs if there is a valid appraisal. It argues that once Nelsons contested the joint appraisal, there was no valid appraisal to trigger the sixty days. ¶ 35 The evidence establishes that the joint appraisal did not definitively conclude that the siding was so damaged that it required replacement. In fact, the joint appraisal suggested the $11,834.00 could be used to either professionally paint the buildings or apply new pre-finished siding with the installation costs to be paid by Nelsons. ¶ 36 More to the point, Nelsons' arguments in this regard are inherently inconsistent. Nelsons appear to promote a strict interpretation of the policy in contending that Farmers failed to meet the sixty-day requirement. Were we to agree with them, the ultimate effect would be to reduce Nelsons' loss recovery from $46,002.09 to $11,834.00. In other words, requiring compliance with the sixty-day time period would trump Nelsons' rejection of the joint appraisal and their ultimate receipt much later of $46,002.09. Clearly, this is not the relief Nelsons want. ¶ 37 Nelsons' insurance policy includes the following relevant provisions: Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within 20 days after receiving a written request from the other. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a court of record in the state where the residence premises is located. The appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of loss. [Emphasis added.] Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss and: a. reach an agreement with you; b. there is an entry of a final judgment; or c. there is a filing of an appraisal award with us. [Emphasis added.] ¶ 38 For the sixty-day time period to apply, Nelsons needed to provide a proof of loss, and either (a), (b), or (c) of the Loss Payment clause had to also occur. Given the lengthy dispute over the amount of damages, the significant disparity between the estimates, and Nelsons' rejection of the joint appraisal, it is clear that the parties did not reach the agreement called for in subsection (a), such as would trigger the sixty-day provision. Nor was there an entry of final judgment or a filing of an appraisal award with Farmers following the joint appraisal. The March 12, 1993 joint appraisal did not constitute an agreement between the parties, given Nelsons' contention that the appraisal omitted replacement costs and Farmers' efforts to obtain bids for such costs in light of that rejection. Therefore, we conclude the District Court did not err when it declined to conclude Farmers should have made payment to Nelsons within sixty days of the joint appraisal. Accordingly, we conclude that based on the record before us, the District Court did not err in interpreting the insurance contract between Nelsons and Farmers.",issues
+244,6500273,1,1,"Donald Humphrey and Edward J. Smith purchased a house together. Donald paid a portion of the purchase price of the home, which the parties agreed was to be a loan. Donald and Smith had a written loan agreement, wherein they agreed that Donald would remove his name from the property’s ownership once the loan was repaid. After Donald died, his wife, Barbara J. Humphrey, filed a complaint for partition of the property, contending she and Smith were tenants in common. Smith countered that before Donald died, he orally forgave the remainder of the loan, leaving Smith as the sole owner of the property. The district court for Douglas County, Nebraska, granted Barbara’s motion for summary judgment as to partition, but denied her motion for summary judgment as to unjust enrichment. The court also denied Smith’s motion for summary judgment as to his counterclaim for unjust enrichment claim. For reasons set forth herein, we affirm in part, and in part reverse and remand with directions consistent with this opinion.",introduction
+245,4577342,2,3,"Ronald and King County assert that the time to properly challenge the order has passed. They argue that because this is a collateral challenge, even if the 1985 Order is erroneous, it was entered with proper jurisdiction and is merely voidable. Olympic, Snohomish County, and Woodway claim that the order is void for lack of personal and subject matter jurisdiction and can be struck down at any time. The 16 No. 97599-0 parties further dispute the circumstances under which an order may be declared void. Relevant to the issue here, our jurisprudence has established that “[t]here are in general three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person, and the power or authority to render the particular judgment. For the absence of any one of these elements, when properly apparent, the judgment may be vacated at any time.” John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P.2d 221 (1938) (quoting 1 A.C. FREEMAN, A TREATISE OF THE LAW OF JUDGMENTS § 226 (5th ed. rev. 1925)). Here, the latter two jurisdictional elements are implicated: personal jurisdiction and authority to render a particular judgment, which in modern cases has been recognized as a component of subject matter jurisdiction. The 1985 Order is flawed in both ways. First, Snohomish County, Olympic, and Woodway were not parties to the 1985 superior court action, so the court did not have the authority to enter an order affecting their sewerage service rights. These entities were not joined as necessary parties under CR 19 or given personal notice of the 1985 action. To determine whether joinder is needed for a just adjudication, courts engage in a three-step analysis. Courts determine whether the absent party is necessary, whether joinder is feasible, and, if joinder is unavailable, whether the action should still proceed without the party. Auto. United Trades Org. v. State, 175 Wn.2d 214, 221-22, 285 17 No. 97599-0 P.3d 52 (2012). An absentee is a necessary party where they claim a legally protected interest in the action and their ability to protect that interest will be impaired or impeded by adjudication in their absence. Auto. United, 175 Wn.2d at 223. Point Wells was located within the geographic boundaries of Snohomish County, Olympic, and Woodway. The purported transfer and annexation of the Point Wells service area to Ronald directly implicated their interests in the provision of sewerage service to Point Wells. In particular, Olympic possessed the primary authority to provide service to Point Wells, and the 1985 Order purports to extinguish and reassign that authority. Snohomish County, Olympic, and Woodway were necessary parties and joinder would have been feasible. Ronald and King County assert that the 1985 action was an in rem proceeding and is binding on nonparties. They claim that they followed the required notice procedures of former RCW 36.94.410-.440. As we discussed above, former RCW 36.94.410-.440 does not permit the transfer and annexation of territory outside the transferring county’s geographic boundary, so compliance with this procedure was inadequate to adjudicate the annexation of Point Wells. Assuming their characterization of the 1985 proceeding as in rem is correct, it does not excuse their failure to join or adequately notify parties with legally protected interests. See Port of Grays Harbor v. Bankr. Estate of Roderick Timber Co., 73 Wn. App. 334, 18 No. 97599-0 869 P.2d 417 (1994) (discussing the required joinder of a party in an in rem condemnation proceeding). There were two layers of notice required here. At minimum, due process requires that in “any proceeding which is to be accorded finality” notice must be given and “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (emphasis added). Further, to obtain personal jurisdiction over a party, Washington law requires that “‘[b]eyond due process [requirements], statutory service requirements must be complied with in order for the court to finally adjudicate the dispute between the parties.’” Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d 455 (1995) (second alteration in original) (quoting Thayer v. Edmonds, 8 Wn. App. 36, 40, 503 P.2d 1110 (1972)). Ronald and King County failed to comply with these requirements. Notices of the King County Council hearing and 1985 court hearing were published in the newspaper. Assuming these notices were constitutionally adequate, service by publication remained unavailable. Service by publication is reserved for those instances where the party cannot be found within the state. RCW 4.28.100. Snohomish County, Olympic, and Woodway were not served with process. As a result, the 1985 court never obtained personal jurisdiction over these entities. 19 No. 97599-0 We previously held that the municipal court lacked the authority to issue relief that implicated the interests of a nonparty. City of Seattle v. Fontanilla, 128 Wn.2d 492, 502, 909 P.2d 1294 (1996). The municipal court declined to order the State to reimburse the litigant under RCW 9A.16.110 because the State was not a party and had no notice of the action. We held that the municipal court acted properly and was “without authority to order an entity that is not a party to the litigation to do anything.” Fontanilla, 128 Wn.2d at 502. This is consistent with the general rule that a judgment is not binding on an entity that has not been made a party to the action by service of process. Similarly, in this case Snohomish County, Olympic, and Woodway were not made parties to the 1985 action, although they possessed a legally protected interest over sewerage service in Point Wells. The 1985 court failed to obtain personal jurisdiction over these parties and, thus, lacked the authority to issue an annexation order that implicated their rights and interests. To the extent that it did so here, that portion of the 1985 Order is void. Second, the 1985 Order is void because the court lacked the general statutory authority to order the annexation of Point Wells to Ronald. We take this opportunity to expound on the doctrine of subject matter jurisdiction. We hold that subject matter jurisdiction incorporates the court’s authority to issue a particular form of relief, as determined by the nature of the case. 20 No. 97599-0 In Marley v. Department of Labor & Industries, we reviewed an administrative denial of a worker’s compensation claim. 125 Wn.2d 533, 541, 886 P.2d 189 (1994). The plaintiff argued that the Department of Labor and Industries’ order was void for lack of subject matter jurisdiction because it incorrectly determined that she was living in a state of abandonment under RCW 51.08.020. We held that at most, the department made an erroneous decision regarding abandonment but it had proper jurisdiction to decide the claim, that is, whether Marley was living in a state of abandonment. We adopted the Restatement (Second) of Judgments’ approach to subject matter jurisdiction: “‘A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.’” Marley, 125 Wn.2d at 539 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 (AM. LAW INST. 1982)). We held that “[a] court or agency does not lack subject matter jurisdiction solely because it may lack authority to enter a given order.” Marley, 125 Wn.2d at 539 (emphasis added). Rather, a court “lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.” Marley, 125 Wn.2d at 539. This implies that the tribunal has “no authority to decide the claim at all, let alone order a particular kind of relief.” Marley, 125 Wn.2d at 539. Based on this discussion, Ronald claims that the court’s authority to enter a particular order is wholly separate from subject matter jurisdiction. However, our 21 No. 97599-0 discussion in Marley stands for the proposition that the court’s authority to enter a particular order is simply one part of subject matter jurisdiction. When determining subject matter jurisdiction, the controlling question is whether the court possessed the authority to adjudicate the type of controversy involved in the action. We defined “type of controversy” as referring to “the nature of a case and the kind of relief sought.” Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 317, 76 P.3d 1183 (2003). Thus, subject matter jurisdiction is composed of two necessary components: (1) the authority to adjudicate the particular claim and (2) the authority to issue a particular form of relief. These two components are intertwined. The form of relief is limited by the nature of the particular claim. For example, in a quiet title property claim, the court’s exercise of jurisdiction is confined to issuing the appropriate relief, that is, to quiet title. The court would exceed its relief authority if it were to issue tax relief. To the extent an order did so, that portion of the order would be void. The dispositive inquiry to determine subject matter jurisdiction is whether the court had overall authority to adjudicate the particular claim, and the authority to issue a particular form of relief follows. Logically, we look to the relief issued because it is indicative of whether the court adjudicated a controversy that it should not have. Both are necessary components of subject matter jurisdiction. Although we reviewed a contempt order in Dike v. Dike, our discussion is informative here. 75 Wn.2d 1, 8, 448 P.2d 490 (1968). In that case, we held that 22 No. 97599-0 even where the underlying order is erroneous and the party fails to comply with it, the court maintains subject matter jurisdiction to enter a contempt order. We held that this was a legal error, not a jurisdictional deficiency. Notably, we distinguished that where the court “‘has jurisdiction of the parties and of the subject matter, and has the power to make the order or rulings complained of, but the latter is based upon a mistaken view of the law or upon the erroneous application of legal principles, it is erroneous,’” as opposed to void for lack of jurisdiction. Dike, 75 Wn.2d at 7 (quoting Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352 (1943)). The long-standing principle still applies that “‘[o]bviously the power to decide includes the power to decide wrong, and an erroneous decision is as binding as one that is correct until set aside or corrected.’” Dike, 75 Wn.2d at 8 (internal quotation marks omitted) (quoting Robertson, 181 Va. at 537). But legal errors occur within a court’s proper exercise of authority, where the court has the authority to adjudicate the claim and errs in its application of law or fact. Whereas, jurisdictional deficiencies result from a court acting outside of its adjudicative authority where it lacks any power to issue relief. The distinction between the error in this case and the potential errors discussed in Marley and Dike is that those courts were authorized to exercise discretion and, at best, merely exercised that discretion improperly. Here, the 1985 court was not statutorily authorized to exercise any discretion over the annexation 23 No. 97599-0 of Point Wells. The nature of this controversy is annexation. Annexation authority is a plenary power enjoyed by the State, which the legislature may delegate to courts by statute. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 83 P.3d 419 (2004). In this case, former RCW 36.94.410-.440 is a grant of authority from the legislature, allowing superior courts to effectuate the transfer and annexation of service area from a county to a sewer district. As discussed above, former RCW 36.94.410-.440 limited the court’s adjudicative authority to territory within King County’s geographic service area. The inclusion of Point Wells, which is outside King County’s geographic service area, without the involvement of Snohomish County, Olympic, and Woodway is void because it exceeded the court’s adjudicative authority.",jurisdiction
+246,2032086,1,1,"Defendant argues that his right to substantive due process was violated when we transferred this case from the appellate court. He contends that this court does not have jurisdiction to hear his post-conviction appeal and that proper jurisdiction lies with the Fourth District Appellate Court. Defendant bases his argument on Supreme Court Rule 651(a) (87 Ill.2d R. 651(a)), which provides in pertinent part: An appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located. Although Rule 651(a) is concerned with post-conviction appeals, we interpret article VI, section 4(b), of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 4(b)), the Illinois death penalty statute (Ill. Rev. Stat. 1983, ch. 38, par. 9-1 et seq. ), and Supreme Court Rule 603 (87 Ill.2d R. 603) to mandate uniform statewide appellate review of cases in which the death sentence has been imposed, even when those cases reach the post-conviction appeal stage. Article VI, section 4(b), of the Constitution provides in pertinent part: Appeals from judgments of Circuit Courts imposing a sentence of death shall be directly to the Supreme Court as a matter of right. Ill. Const. 1970, art. VI, sec. 4(b). Section 9-1(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i)) provides: The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court. Supreme Court Rule 603 provides in pertinent part: [A]ppeals by defendants from judgments of the circuit courts imposing sentence of death shall lie directly to the Supreme Court as a matter of right. All other appeals in criminal cases shall be taken to the Appellate Court. 87 Ill.2d R. 603. Defendant's brief states: Death penalty cases are certainly significant and controversial cases, but they should not be handled on an ad hoc basis. We agree with the defendant that death penalty cases are too important to be handled on an ad hoc basis. It is for this very reason that we cannot accept defendant's position. If we were to allow appeals from post-conviction hearings in death cases to go to the appellate court, those cases might not receive a uniform review. The defendant, as well as this court, is concerned about ad hoc handling of death penalty cases. The defendant argues that at some future date this court, relying on Rule 651, may not take a case directly on a post-conviction appeal, thereby treating a death case on an ad hoc basis. However, if defendant's argument regarding jurisdiction were correct, defendant or some other defendant who has been sentenced to death could lose a post-conviction appeal in the appellate court and this court could then deny the petition for leave to appeal. In this respect there could be ad hoc treatment of a death penalty case. Also, a defendant whose petition for leave to appeal was denied could allege that he was denied equal protection or denied his right to uniform statewide appellate review of his death sentence. The Constitution, the legislature and this court have made special provisions for death cases because of their significance. To treat a post-conviction appeal in a death penalty case differently than a direct appeal in a death penalty case would be inequitable. In two other cases now pending before this court, People v. Gaines (1984), 105 Ill.2d 79, and People v. Ruiz, No. 60303, we have granted the State's motion to transfer the case from the appellate court to this court. So to date, there has not been ad hoc treatment of any death penalty post-conviction appeal by this court.",jurisdiction
+247,1756845,1,1,"On July 23, 1984, a man entered the Lakewood Pharmacy in Slidell at about 4:30 p.m. and asked the pharmacist about a prescription ordered by a dentist for him by telephone. The pharmacist replied that he had not received the order, and the man stated that he would return. Shortly before the 7:00 p.m. closing time, the man returned to the store, pulled a handgun from his jacket, and ordered the pharmacist to give him dilaudid, speed and downers, as well as a syringe and a needle. The robber also instructed a customer and two employees to go to the back of the store, where he required the pharmacist to bind them with adhesive tape. The pharmacist then gave the robber a quantity of controlled substances, including dilaudid. When the pharmacist could not open the cash register, the robber took a new roll of adhesive tape from the shelf, bound the pharmacist and left the store. After his hands were free, the pharmacist used a pen to pick up the adhesive tape casing that the robber had handled with bare hands and preserved it for the police. The police arrived on the scene shortly after 7:00 p.m. The pharmacist gave the casing to a police officer who handled it with a pen and placed it in an evidence bag. Because the robber had specifically demanded dilaudid, the police asked the pharmacist to review the prescriptions for that drug which had been filled that day. The only dilaudid prescription found by the pharmacist was a legitimate prescription issued to defendant's father, Frank Hammons, who lived in Chickasaw, Alabama. The Slidell police contacted the authorities at nearby Pritchard, Alabama, and obtained a nine-year-old photograph of defendant. Two days after the robbery, several of the witnesses viewed an array of photographs and identified defendant as the robber from the nine-year old photograph. Defendant and his father were both arrested and charged with armed robbery. At the trial a Slidell doctor testified that he had examined defendant's father at about 3:00 p.m. on the day of the robbery and prescribed fifty tablets of dilaudid for pain associated with an injury he had sustained several years earlier. The pharmacist testified that he had filled the prescription for defendant's father between 3:00 p.m. and 3:30 p.m. An employee of a grocery store next to the pharmacy testified that he had seen a man wearing a light blue suit, white tennis shoes, and sunglasses, with slicked back dark hair, a mustache and a full beard, pacing outside the pharmacy after 3:00 p.m. The composite sketch drawn from his description showed a closely-cropped beard. At trial he identified defendant as the person outside the drug store. The pharmacist described the robber as wearing a light blue suit and dark glasses, and having long hair combed straight back and an extremely neat and trim beard. At trial the pharmacist identified defendant as the robber. One drug store employee testified that defendant's father came into the store earlier with a prescription for dilaudid and that the robber came into the store about 6:00 p.m. to inquire about the closing time, returning shortly before 7:00 p.m. to commit the robbery. She described the robber as wearing a light blue sport coat and dark glasses, and having blondish-brown hair, a mustache and a well-groomed beard. She picked defendant out of the photographic lineup several days after the robbery, but selected the wrong picture from the array at trial. Nevertheless, she definitely identified defendant at trial as the robber. A second pharmacy employee testified that the robber came into the store several times before the robbery. She described the robber as wearing a light blue sport coat and having blond hair, a mustache and a short, clean-cut blond beard. She selected defendant's picture from a photographic array two days after the robbery and positively identified him at trial as the robber. The customer described the robber as wearing dark glasses and having light brown hair, but did not believe he had a beard. She picked defendant out of the photographic array several days after the robbery and positively identified him at trial as the robber. Thus, the pharmacist, one of the pharmacy employees, and the grocery store employee immediately after the robbery provided composite sketches, all of which depicted the person they saw as having a closely-cropped beard. One of the other eyewitnesses testified at trial that the robber had a closely-cropped beard, and the pharmacy customer stated that the robber had no beard at all. A photograph of defendant, taken by the police eight days after the robbery, showed defendant with a full, dark, long and bushy beard, and that photograph, according to an Alabama police officer, was the exact likeness of defendant on the date of the robbery. The fingerprint taken from the adhesive tape casing handled by the robber did not match defendant's prints. However, the detective testified that the person who gave the casing to him did not handle it with a pen. Defendant testified that on the day of the robbery he and his father were in Slidell to inspect concrete pumps for their concrete pumping service. After they completed their business, defendant's father was in pain and needed medication that he had forgotten to bring with him. About 4:00 p.m., the two went to a medical center near the concrete company, where a doctor examined defendant's father and prescribed dilaudid. Defendant and his father went to the Lakewood Pharmacy, where the father went into the store while defendant used the phone outside to notify his mother that they were coming home instead of visiting relatives as planned. After the prescription was filled, they headed back to Chickasaw, arriving at the father's home between 6:00 p.m. and 6:30 p.m. The time was verified by five relatives, who indicated they were watching the 6:00 p.m. news on television when the two men arrived. Defendant left his parents' home around 6:30 p.m. and drove to his own home, ten minutes away. He left shortly thereafter to go to his shop, but stopped at the Tavern, where five witnesses (not related to defendant) saw him between 7:00 p.m. and 8:30 p.m. Defendant left the Tavern with a friend when his wife notified him that the police department had called him (as the next person on the list of authorized tow truck operators) to tow away a disabled vehicle. Defendant went home to get his tow truck and then drove the truck to the scene of the accident. A police officer verified that defendant arrived on the accident scene in his tow truck at 9:12 p.m. and towed away one of the vehicles. Testimony by an Alabama police officer established that the driving time from Slidell to the Pritchard Police Department (west of Chickasaw) is two hours and eleven minutes at fifty-five miles per hour and one hour and forty-seven minutes at sixty-five miles per hour. Defendant's home, where his tow truck was kept, was on the other side of Pritchard from Slidell. The jury returned a verdict of guilty of armed robbery against both defendant and his father. Defendant was sentenced to forty years at hard labor without benefit of parole, probation or suspension of sentence. [1] Thereafter, defendant filed a motion for new trial based on newly discovered evidence. Defendant attempted to show by the evidence that Gary Stanford, after the trial, admitted robbing the Lakewood Pharmacy of dilaudid with Frank Burzik, who bore a striking resemblance to defendant. At the hearing on the motion, a private investigator testified that he received a tip that a person named Jimmy Scholes had stated two Alabama men were wrongly convicted of the Lakeside Pharmacy robbery. The investigator contacted Scholes who told him that Stanford, while transacting a dilaudid sale with Scholes, Steve Brown and a woman named Bonnie several weeks after the robbery, said he had obtained the dilaudid by robbing a Slidell pharmacy. Stanford further told Scholes and the group that he had nothing to worry about because two innocent men from Alabama had been arrested for the robbery. The investigator located Brown, who agreed to assist in the investigation by recording conversations with Stanford. In the first of several audiotaped conversations, Stanford made the following statements: ... Sweet, sweet score. We got a truck load of dilaudids. Shit load of dilaudids and other shit. But the best thing about the robbery was how easy it was for me and my partner because of the inside connection. This chick did a hell of a job in setting it up. But, what made it so good, the pigs busted a young dude and his old man for the robbery, and we don't have shit to worry about. Lakewood Pharmacy was a sweet score. [2] In a later taped conversation Stanford made the following comments: ... Rip off in Slidell. I felt like I should have done it myself. But, Frank [otherwise identified as Frank Burzik] said he had the guts to do it, and I took the chance.... I knew he could handle it and he did good. In a third recorded conversation Stanford spoke of efforts by attorney Robert Glass to obtain a new trial for the two Alabama men on the basis that fingerprints didn't match. After these conversations were recorded, the Legislature enacted La.Rev.Stat. 14:322.1 (later declared unconstitutional) which prohibited recording conversations without the consent of all parties. The defense then sought the assistance of a federal drug enforcement agent who was exempt from the statute. The agent, who was investigating Stanford for cocaine activity and later arrested him for distribution, agreed to use Brown as a confidential informant in the drug investigation, but no additional tapes regarding the armed robbery were forthcoming. Brown, who had several felony convictions, further testified Stanford admitted in unrecorded conversations that he participated in the robbery and that Burzik was the gunman. Brown also stated Burzik was a drug addict who shot up drugs. The defense introduced photographs of Burzik and Stanford which showed that Burzik bore a close resemblance to defendant. Brown testified that he mistook defendant for Burzik upon seeing defendant in court. The district judge denied defendant's motion for new trial, noting that he doubted Brown's credibility. The court of appeal remanded for a new hearing because the trial judge had used the incorrect standard for deciding the motion. 536 So.2d 598. The appellate court pointed out that under State v. Talbot, 408 So.2d 861 (La.1981), a trial judge in making such a determination should not weigh the new evidence as if he or she were a jury deciding guilt or innocence, but should ascertain whether there is new material fit for a new jury's judgment. On remand the trial judge again denied the motion. Noting that under La.Code Crim.Proc. art. 851(3) the court must find that the newly discovered evidence would probably have produced a different verdict, the judge concluded that the evidence would not be admissible at a new trial under La.Code Evid. art. 804 B(3), because of the lack of corroborating circumstances clearly indicating the trustworthiness of the statement. Additionally observing that the new evidence, remarkably discovered after the trial, was suspicious and incredible, the judge ruled that the new evidence was unfit for a new jury's judgment. The court of appeal affirmed in an unpublished opinion, concluding the trial judge did not abuse his discretion in denying the new trial motion. 565 So.2d 542. We granted defendant's application for certiorari to determine the correctness of the rulings of the courts below. 575 So.2d 382. Motion for New Trial La.Code Crim.Proc. art. 851 provides in part: The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. The court, on motion of the defendant, shall grant a new trial whenever: . . . . . (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.... In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of the trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict. State v. Knapper, 555 So.2d 1335 (La.1990); State v. Prudholm, 446 So.2d 729 (La.1984); State v. Talbot, 408 So.2d 861 (La.1980); 8A James W. Moore et al., Moore's Federal Practice ¶ 33.03[1] (2d ed. 1991); 3 Charles A. Wright, Federal Practice and Procedure § 557 (2d ed. 1982); IV Wharton's Criminal Procedure § 599 (Charles E. Torcia ed., 1976). The trial court has much discretion in ruling on a motion for new trial. However, if the trial court exercises this discretion arbitrarily and the judgment is unjust, the reviewing court should set aside the judgment and order a new trial. State v. Knapper, 555 So.2d 1335 (La. 1990); State v. Talbot, 408 So.2d 861 (La. 1980). [3] In the present case defendant hired a new attorney after the trial. A bail bondsman told the attorney's investigator that Jimmy Scholes had made the statement that two Alabama men were wrongly convicted of the Slidell pharmacy robbery. Scholes led the investigator to Steve Brown, who furnished the pertinent statements and taped the conversations with Stanford concerning Stanford's and Burzik's involvement in the robbery. It is unlikely that these witnesses could have been found or that the evidence could have been discovered at the time of trial with the exercise of due diligence. It was only after defendant was convicted that the fortuitous tip about a wrongful conviction could be forthcoming. Moreover, the trial judge did not find that the evidence failed to qualify as newly discovered or that the defense failed to exercise due diligence in discovering the evidence. We conclude that the evidence was newly discovered after the trial notwithstanding defendant's exercise of due diligence. As to materiality, a confession by a third party to committing the crime of which defendant has been convicted is clearly material to a genuine issue in this case, since the only issue was the identity of the robber. As to the probability that the new evidence would have produced a different verdict, the trial judge reasoned that the new evidence would not have produced a different verdict because the evidence was not admissible. The admissibility of the newly discovered evidence is therefore one of the critical issues as to defendant's entitlement to a new trial. Admissibility of the Evidence The newly discovered evidence in this case involves admissions against penal interest, the admissibility of which is controlled by La.Code Evid. art. 804. This article provides certain exceptions, in cases in which the declarant is unavailable, to the general rule against admissibility of hearsay statements as follows: A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is unavailable as a witness when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant: (1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; . . . . . B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . . . (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (emphasis added). Louisiana's rule as to statements against penal interest is closely patterned after Fed.R.Evid. 804. [4] The history of the federal rule is therefore pertinent. At common law, only statements against pecuniary or proprietary interest were originally admissible as an exception to the hearsay rule. Statements against penal interest were not accepted because of the fear that such statements, particularly when offered to exculpate the accused, would be fabricated by the witness testifying to his knowledge of the statement or by someone who would then make himself unavailable. 5 John H. Wigmore, Evidence in Trials at Common Law § 1476-77 (Chadbourn rev., 1974); 4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 489 (1980); 2 Stephen A. Saltzburg & Michael M. Martin, Federal Rules of Evidence Manual 401 (5th ed. 1990). Scholars and dissenting jurists persistently criticized the exclusion of such evidence. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (Holmes, J., dissenting); Wigmore, supra, § 1476-77. Eventually courts began to admit declarations against penal interest. Louisell & Mueller, supra, § 489; McCormick on Evidence § 278 (Edward W. Cleary ed., 3rd ed 1984); see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Prompted by these rulings, Congress incorporated in the federal rules an exclusion from the hearsay rule for statements against penal interest. However, because of the traditional suspect nature of admitting statements by a third-party that exculpate an accused, the federal rules specifically prohibited admission of these statements unless the declarant is unavailable and corroborating circumstances clearly indicate the trustworthiness of the declaration. Fed.R.Evid. art. 804(b)(3); McCormick on Evidence, supra, § 278; Louisell & Mueller, supra, § 489. Statements against penal interest were first recognized by this court as exceptions to the hearsay rule in State v. Gilmore, 332 So.2d 789 (La.1976). In Gilmore the defendant presented a witness' testimony that another man had confessed to committing the crime for which the defendant was charged. The declarant died after making the statement and was unavailable for trial. Other evidence established that the declarant had been in a struggle with the victim moments before the victim was shot and had also confessed the shooting to others. This court held that this additional evidence indicating the statement's reliability, along with the unavailability of the declarant, made the statement admissible as an exception to the hearsay rule. Admission of statements against interest, as a traditional exception to the hearsay rule, is based on necessity and trustworthiness. The unavailability of the declarant requirement generally establishes the need to admit his out-of-court statement. The against interest requirement assures some degree of trustworthiness, because a person ordinarily does not make a statement that is disadvantageous to himself without substantial reason to believe that the statement is true. Louisell & Mueller, supra, § 489. Fed.R.Evid. 804(b)(3) requires for admissibility of a statement against interest the objective determination that a reasonable man in his position would not have made the statement unless he believed it to be true. This standard is especially appropriate to the admission of having committed a crime. Louisell & Mueller, supra, § 489; McCormick on Evidence, supra, § 279; State v. Rushing, 464 So.2d 268 (La.1985); State v. Hudson, 361 So.2d 858 (La.1978). When the statement is one against the declarant's penal interest, the circumstances surrounding the making of the statement may be significant in determining its trustworthiness. If a declarant admits sole responsibility for a serious crime, the statement is generally prima facie against interest so as to satisfy this requirement of the rule. Louisell & Mueller, supra, § 489. However, if the statement is clearly self-serving, as when the declarant is seeking favorable treatment for himself in return for cooperation, the statement may be deemed not against his interest and thus may fall outside the exception. Id. Likewise, when the declarant unknowingly speaks to informants or undercover agents, the statement is usually admissible under the exception. Id.; see also McCormick on Evidence, supra, § 279; Saltzburg & Martin, supra, 401. When the statement tending to expose the declarant to criminal liability is offered to exculpate the accused, La.Code. Evid. art. 804 B(3) expressly requires corroborating circumstances indicating trustworthiness. The burden of satisfying the corroboration requirement is on the accused. Louisell & Mueller, supra, § 489 (Supp.1991). That burden may be satisfied by evidence independent of the statement which tends, either directly or circumstantially, to establish a matter asserted by the statement. [5] Louisell & Mueller, supra, § 489. Circumstantial evidence of the veracity of the declarant as to the portion of the statement exonerating the accused is generally sufficient. Typical corroborating circumstances include statements against the declarant's interest to an unusual or devastating degree, or the declarant's repeating of consistent statements, or the fact that the declarant was not likely motivated to falsify for the benefit of the accused. Id. at 1160. Applying the requirements of Article 804 B(3) to the facts of the present case, we note that Stanford asserted his privilege against testifying at the hearing on the motion for new trial. La.Code Evid. art. 804 A(1) provides that a declarant is considered unavailable when the declarant [i]s exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement. See also State v. Adams, 550 So.2d 595 (La.1989). Thus, the declarant was clearly unavailable. [6] Stanford's statements which form the basis of the new trial motion were clearly made under circumstances that were against Stanford's penal interest. Stanford admitted organizing and participating in the robbery of the Slidell pharmacy, acts which Stanford knew were criminal and punishable by a significant length of imprisonment. The statements were made to an informant at a time when Stanford was unaware that Brown occupied this position. Stanford did not make the statement to put himself in a bargaining position with law enforcement officials, since he was not then charged with any other crime and he knew defendant and his father had already been arrested for that crime. There was certainly no suggestion that Stanford made these admissions under motivation to benefit defendant. These same circumstances also serve to corroborate the trustworthiness of the statements. In the midst of a deal to sell the dilaudid obtained in the robbery of the Lakewood Pharmacy, Stanford felt at liberty to discuss his participation in the robbery with an acquaintance such as Brown whom he felt would keep the information confidential, especially after someone else had been arrested for the crime. Stanford did not personally know defendant or his father and had no motivation to make a false statement for their benefit. The fact that Stanford repeated his statements concerning his participation in the robbery on several occasions, and not on a single isolated incident, further indicate their trustworthiness. Another significant indication of the trustworthiness of the statements is the fact that some were recorded, the recording of an identified voice providing irrefutable evidence that the statements were in fact made. Furthermore, these were not jailhouse confessions reported by an inmate informant seeking to curry favor with the prison authorities. After the statements were recorded, a federal drug enforcement agent used the same informant to make a successful drug case against Stanford and Burzik. This fact is also significant because the robbery under review in this case was a drug robbery. Additionally, there are external corroborating circumstances. The fact that Burzik, who according to Stanford's statements was the actual gunman during the robbery, was similar in appearance to the identi-kit sketches completed by the eyewitnesses immediately after the robbery and to the person identified by several eyewitnesses as the robber tends to support Stanford's statements, just as a lack of similarity between the person named as the gunman by Stanford and the description given by the eyewitnesses to the robbery would have refuted Stanford's statements. The fact that the robber specifically asked for dilaudid and a syringe, combined with Brown's testimony that Burzik was a needle-using drug addict and evidence that Stanford sold dilaudid shortly after the robbery, also tend to corroborate the truthfulness of Stanford's statements. Finally, the fact that the fingerprints on the tape casing handled by the robber did not match defendant's prints provides further external corroboration for Stanford's statements. We conclude that these circumstances, independent from Stanford's statements themselves, tend to establish matters asserted by the statements and clearly indicate the trustworthiness of the statements. The circumstances thus fulfill the corroboration requirement of Article 804 B(3). We accordingly hold that the newly discovered evidence would be admissible at a new trial. Probability of a Different Verdict The admissibility of the newly discovered evidence, however, does not conclude the determination of whether a new trial should be granted. The evidence must be of such a nature that if it had been introduced at trial, it would probably have changed the verdict of guilty. La.Code Crim.Proc. 851(3). We therefore review the evidence constituting the state's case, not to determine the sufficiency of the evidence, but to evaluate the effect of the newly discovered evidence. If the evidence supporting the guilty verdict contains significant contradictions and discrepancies, newly discovered evidence of relatively minor importance might be sufficient to create a reasonable doubt. State v. Talbot, 408 So.2d 861 (La.1981), citing U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The state's evidence linking defendant to the crime in the present case consisted solely of the testimony of four eyewitness who identified defendant as the perpetrator of the robbery. [7] There was no physical evidence whatsoever linking defendant to the crime. [8] Indeed, the only item of physical evidence—a fingerprint on the adhesive tape casing handled by the barehanded robber—was the fingerprint of a person other than defendant. The eyewitnesses described the robber immediately after the robbery, as well as at trial, as a man with a closely-cropped beard or with no beard at all. The photograph of defendant, taken by policemen only eight days after the robbery, depicted a man with a full, thick, long and bushy beard, thereby casting doubt on the reliability of the eyewitnesses' identification. [9] The testimony of twelve witnesses, including a police officer and five unbiased persons who were not defendant's relatives, established defendant' presence in Pritchard, Alabama before, during and after the time of the robbery. [10] And even if one only credits the testimony of the Pritchard police officer that defendant was at the scene of an accident in his tow truck outside of Pritchard at 9:12 p.m., that fact alone is inconsistent with defendant's committing a 7:00 p.m. robbery in Slidell, because defendant would have had to drive almost two hours from Slidell to Pritchard and then to his home north and east of Pritchard, get his tow truck, and then drive the truck to the scene of the accident by 9:12 p.m. The likelihood of this scenario is made even more remote by the fact that defendant was called to the accident because of the coincidental occurrence that his name came up next on the list of tow truck operators used by the Pritchard police to handle accidents. Another significant factor bearing on the reliability of the original jury's verdict is the fact that the same jury also found defendant's father guilty of every essential element of the crime of armed robbery, when there was absolutely no evidence presented to the jury that defendant's father had anything whatsoever to do with the perpetration of the robbery three or four hours after he was inside Lakewood Pharmacy. While the state's evidence, despite the contradictions and discrepancies, was sufficient to support the conviction against a challenge to sufficiency under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence was not strong enough to support a conclusion that the newly discovered evidence probably would not have changed the verdict, when one considers the newly discovered evidence that would be presented at a new trial. If a new trial is granted, the state will present the four eyewitnesses, each of whom will be forced to admit statements immediately after the robbery that the robber had an extremely neat, closely cropped beard or no beard at all, in the face of a police photograph showing defendant's long, lush, full and thick beard. The police investigator will be faced with the fact that the fingerprint on the adhesive tape casing, which was carefully preserved by the pharmacist for police investigators, was not defendant's print. And the defense will present the twelve alibi witnesses, several of whom have no basis for bias, traveling from Alabama to establish defendant's presence there at times inconsistent with the robbery. Then the defense will present the new evidence. Steve Brown will testify that Gary Stanford admitted that he and Frank Burzik had committed the Lakewood robbery and enjoyed the fact that two Alabama men, father and son, were arrested for his crime. He will explain that Stanford was concerned that Burzik, the actual robber, might become paranoid and reveal the robbery, especially since Burzik (as was the robber) was a needle-using dilaudid junkie, and that Stanford was relieved when defendant was convicted. Brown's testimony will be corroborated by three tape recorded conversations, in which the jury will hear Stanford's voice boasting of the truck load of dilaudids stolen by him and Burzik from Lakewood Pharmacy and of the arrest of a young dude and his old man for the robbery so that we don't have shit to worry about. Finally, the jury will be shown Burzik's resemblance to both defendant, when clean shaven, and to the assailant depicted in the initial composite drawings. The newly discovered evidence, it if had been admitted at defendant's trial, would have tended to discredit the eyewitness testimony which was already undermined by inconsistencies and discrepancies, by lack of physical evidence, by significant alibi evidence and by the fingerprint on the adhesive tape casing handled by the robber and preserved for police examination. We therefore conclude that the newly discovered evidence probably would have changed the verdict and that defendant is entitled to a new trial on the basis of the newly discovered evidence which (on this record) would be admissible at a new trial.",facts
+248,6500177,1,1,"Suzette Kane filed a petition to establish grandparent visitation with her minor grandchildren. Following a hearing on the biological parents’ motion to dismiss, the district court dismissed Suzette’s petition for lack of subject matter jurisdiction. We find that the district court erred in determining it lacked jurisdiction, vacate its dismissal of Suzette’s petition, and remand the cause for further proceedings.",introduction
+249,1408398,1,2,"The jurisdictional aspect of termination proceedings focuses on the fundamental liberty interests of the natural parents in the care, custody, and management of their child, and this interest does not evaporate simply because they have not been model parents or have lost temporary custody of the child to the State. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The importance of this [liberty] interest cannot easily be overstated. Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members. Santosky, Rehnquist dissent, at 787, 102 S.Ct. at 1412. Because of the sacredness of parental rights a higher standard of proof, that of at least clear and convincing evidence, is required before the children can be judicially taken away. Santosky, above. Also, the degree and duration of parental fault of incapacity necessary to establish jurisdictional grounds for termination is greater than that required for other forms of judicial intervention. For example, a judicial determination that a child has been neglected may call for varying degrees of state intervention, ranging from mild reprimand to permanent termination of parental rights. Neglect is a relative term applied to a child who lacks the proper parental care by reason of [parental] fault. NRS 128.014. Although it is difficult to define proper, it is probably true that all parents are at one time or another guilty of neglecting to give their children proper care. To provide a jurisdictional basis for termination, neglect must be serious and persistent and be sufficiently harmful to the child so as to mandate a forfeiture of parental rights. [4] In such a case a parent may be adjudged to be unsuitable to maintain the parental relationship and, therefore, to deserve to lose it. The same principles apply to the jurisdictional ground of unfitness. Unfitness is the other side of the neglect coin. Neglect defines a condition of the child; unfitness describes a condition of the parent. A neglected child is one who does not receive proper care; an unfit parent is one who fails to provide a child with proper care. Again: all parents are guilty of failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred liberty right of parenthood unless such unfitness is shown to be severe and persistent and such as to render the parent unsuitable [5] to maintain the parental relationship. In like manner, abuse of a child may or may not render a parent unsuitable to be a parent. NRS 128.105 lists as a ground or consideration for termination [r]isks of serious physical, mental or emotional injury to the child if he were returned to, or remains in the home... . Such a risk may be mitigated, and a child may be safely returned to the home; or the risk may be of such magnitude and persistency as to render the parent unsuitable and justify forfeiture of parental rights.",jurisdiction
+250,1230651,1,3,"Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003). If a genuine issue of fact exists, summary judgment may not properly be entered. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002).",standard of review
+251,1792724,1,7,"MUD first argues that the PSC lacked jurisdiction over the dispute because the extension's purpose was operationally driven to maintain and enhance MUD's subsystem reliability and capacity and was not for the extension of service to new customers. According to MUD, § 57-1303 applies only to extensions of services to new customers. We disagree. Section 57-1303 provides in part: No investor-owned natural gas utility or metropolitan utilities district may extend or enlarge its natural gas service area or extend or enlarge its natural gas mains or natural gas services unless it is in the public interest to do so. Under § 57-1306, the PSC is given power to determine whether an extension or enlargement is in the public interest: If the investor-owned natural gas utility or the metropolitan utilities district disagrees with a determination by an investor-owned natural gas utility or a metropolitan utilities district that a proposed extension or enlargement is in the public interest, the matter may be submitted to the Public Service Commission for hearing and determination in the county where the extension or enlargement is proposed.... In making a determination whether a proposed extension or enlargement is in the public interest, the commission shall consider the factors set forth in sections 57-1303 and 57-1304. The commission shall have no jurisdiction over a metropolitan utilities district or natural gas utility beyond the determination of disputes brought before it under sections 57-1301 to 57-1307. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. McCray v. Nebraska State Patrol, ante 271 Neb. 1, 710 N.W.2d 300 (2006). Further, we strictly construe jurisdictional statutes. See Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001). The plain language of § 57-1303 states that it applies to extensions or enlargements of a natural gas service area or extensions or enlargements of natural gas mains or natural gas services. Section 57-1306 specifically gives the PSC jurisdiction to determine whether extensions or enlargements are in the public interest. The statute does not limit the determination to only extensions of service to new customers. Instead, it specifically includes enlargement of natural gas mains or services without reference to new customers. Under the plain language of §§ 57-1303 and 57-1306, the PSC had jurisdiction.",jurisdiction
+252,1859635,1,2,"When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, when a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Only evidence supporting the verdict will be considered. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). This court makes no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). A criminal defendant's intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Byrd, supra ; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). In his directed-verdict motion, Steggall argued that this case is based on circumstantial evidence alone; therefore, if any other conclusions can be drawn from that evidence, besides that of knowingly causing injuries as defined by the statute, then the capital-murder sentence is not warranted. Ark.Code Ann. § 5-10-101(a)(9) (Repl.1997), the capital-murder statute, states: (a) A person commits capital murder if: (9) Under circumstances manifesting extreme indifference to the value of human life, he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed, provided that the defendant was eighteen (18) years of age or older at the time the murder was committed. Ark.Code Ann. § 5-2-202 on culpable mental states defines knowingly as follows: (2) KNOWINGLY. A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. According to Ark.Code Ann. § 5-2-202 (Repl.1993): A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct. See e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). In Byrd , we dealt with shaken baby syndrome in a case in which a seven-month-old boy died after suffering a blunt-force trauma causing a skull fracture and brain swelling. The child in Byrd had suffered repeated episodes of abuse as evidenced by his medical history, including evidence of multiple healing rib fractures and a leg fracture. In that case, the defendant argued, as Steggall does now, that only circumstantial evidence existed and, as such, a finding of knowingly could not be established to support a capital-murder conviction. We especially noted that the medical evidence indicated that the injuries occurred during the time that the defendant was caring for the child, and that the injuries presented uncontroverted evidence of child maltreatment. The court in Ladwig also came to the same conclusion in that shaken baby syndrome case, finding that the defendant struck and shook the child, knowing that the result would be serious injury or death. Here, the evidence before the jury certainly provided them with ample evidence, circumstantial and direct, to find Steggall acted knowingly in causing the child's death. At trial, both Dr. Schexnayder and Dr. James testified about their opinions regarding the source of Haylee's injuries. Dr. James stated that the type of rib injuries Haylee sustained are not generally seen in accidental trauma. He stated: This site of bone injury is felt to be highly, highly specific for child abuse because we don't see this fracture in this location hardly ever in other forms of trauma, bad car wreck, bad fall, resuscitation. This site of bone injury is felt to be highly, highly specific that there was intentional trauma to the infant, which is what we term child abuse or non-accidental trauma. He further stated: We know from the images now that we have severe force has ( sic ) been applied, traumatic force has been applied to the infant. We know from being able to age both on the head scan the hemorrhage, the blood, and the healing changes of bone, we have severe traumatic force applied to this child over different time periods, over different organ systems, the brain, the bones scattered throughout the body. Dr. Schexnayder testified that given the whole picture of some of the findings I've yet to get to, this is consistent with multiple repetitive injuries that were not accidentally inflicted. In other words, this child was abused. In response to a question regarding whether these findings are consistent with shaken baby syndrome, Dr. Schexnayder responded that the skull fracture was actually part of a related syndrome called shake and slam syndrome. Dr. Schexnayder stated: To get this skull fracture, the child had to have a high force impact with some solid object, be it, you know, a table, a fist, a wall, but the child not only had to be shaken but the child had to have some severe impact to the point that it caused a very large skull fracture. The doctor summarized, stating: The bleeding in the eyes, the bleeding over the top of the brain, the rib fractures at the back, at the back part of the ribs that were fresh, those are consistent all with shaking. The old rib fractures are consistent with this child being shaken but at a different time, as is that healing rib fracture on the right, but to get that fresh skull fracture on the right, the child had to have a severe impact with something. The State also offered the testimony of Dr. Charles Paul Kokes, who performed an autopsy on Haylee's body on May 4, 1998. Dr. Kokes, a specialist in the fields of anatomic and forensic pathology, testified regarding his findings from the autopsy, noting that Haylee suffered an eleven centimeter long healing skull fracture which extended from the right front part of the skull back over the right side of the skull. Dr. Kokes also noted the subdural hematoma that Haylee's treating physicians saw on the CT scan. Dr. Kokes testified that he saw evidence of healing rib fractures on both sides of the chest wall and on four ribs. While Dr. Kokes did not see evidence of the arm or leg fractures, he attributed this to the time that had elapsed, over one month, from the time the injuries occurred to the time he performed the autopsy. Dr. Kokes testified that the injuries Haylee sustained were a result of a blunt force trauma, which could consist of the child either being struck very forcibly or compressed in some manner. In Dr. Kokes's medical opinion, the cause of Haylee's death was the head injuries with complications, and the manner of death was due to homicide. Dr. Kokes stated: [I]f you consider in the context of a child with that sort of head trauma, older injuries sufficiently severe enough in different anatomic locations in that same individual at a different time, that simply means that this child was the victim of repetitive physical abuse, had been abused before the time she sustained the head injuries. In that context that makes the likelihood that the injuries were not accidental in nature very strong, and it's not ( sic ) likely even under those circumstances without consideration of other factors, that this death is in all likelihood a homicide. Dr. Kokes further noted in his autopsy report, which was admitted into evidence at trial, the following: Healing fractures of the ribs and left radius are important in this case, not because they had adversely affected the infant, but because of what they say about the circumstances surrounding the traumatic incident. The initial story regarding what happened to this infant on April 2, 1998 is totally inconsistent with the clinical and pathologic findings. Subsequent statements given by the father, which admit some relatively mild head injuries took place, are also inconsistent with the findings. Mechanisms described by the father could not have caused the degree of head damage that was present. Nor does it explain the presence of healing rib fractures and a left wrist fracture at the time of the presentation to the hospital on April 2, 1998. The presence of healing fractures at that time indicates that this child was a victim of repetitive abuse. The head injuries which occurred on April 2, 1998 were the final injuries in a series of incidents which were sustained in this infant's short life. In addition to Steggall's statements to the police, he also made a fourth statement to Dr. John R. Anderson, Ph.D., a staff psychologist at the Arkansas State Hospital, during a mental examination to determine whether Steggall was competent to stand trial and whether he was competent at the time of the April 2, 1998, incident to understand and conform his actions. Before the examination, Dr. Anderson advised Steggall that the statements he made during the interview would not be privileged. During the examination, when asked about the events of April 2, Stegall first denied he did anything to Haylee, but then recanted and said that she had been injured while he was feeding her. Dr. Anderson quoted Steggall as saying, I dropped my daughter, I got frustrated and I shook my daughter. He further stated, I tried to keep her from hitting the floor, and she hit the couch. When I realized what happened, I got mad at myself. He also stated, I realized what I had done and I laid her down in her crib. As the State notes, the appellant's attorney conceded on closing arguments that Steggall had shaken Haylee to death. Steggall's attorney argued, however, that he did not knowingly shake her to death. However, Steggall's own conduct in giving different versions of the incidents of April 2, 1998, defy this assertion. A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In Thompson , the verdict was based on circumstantial evidence, but the evidence excluded any other hypothesis consistent with innocence. Thompson's attempts to cover up his connection to the crime were before the jury, and the jury could have properly considered evidence of cover-up as proof of a purposeful mental state. See also, Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Mulkey, supra . Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, supra; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Here, there was ample evidence for the jury to find that Steggall knowingly caused the death of the infant. Therefore, denial of the directed-verdict motion was proper, and the court was correct in allowing the jury to consider the evidence.",sufficiency of the evidence
+253,3134232,1,2,We are asked to decide whether: (1) the trial court properly construed section 3 and applied the proper standard of care; (2) plaintiff proved proximate cause; (3) plaintiff's expert witnesses' testimony exceeded their permissible scope; and (4) UBS was entitled to judgment due to the barring of plaintiff's Survival Act claim for failure to meet statute of limitations filing requirements.,issues
+254,2429649,1,3,"Phillips argues that the charge of capricious disregard of accepted standards of professional conduct was not established by clear and convincing evidence as required by Tenn. Code Ann. § 49-8-303(a)(4) (1990). We disagree. There was overwhelming proof from students, staff, colleagues, and superiors about Phillips' inappropriate behavior. Phillips either denied the charges or attempted to justify her behavior. The Chancellor accredited the testimony of the defendants' witnesses. Considering the entire record, the evidence clearly and convincingly establishes the charge of capricious disregard of accepted standards of professional conduct. This issue is without merit.",sufficiency of the evidence
+255,2650813,1,2,"¶8 We review a district court’s decision pertaining to jury instructions for an abuse of discretion. State v. Christiansen, 2010 MT 197, ¶ 7, 357 Mont. 379, 239 P.3d 949 (citation omitted). To constitute reversible error, jury instructions must prejudicially affect the defendant’s substantial rights. State v. E.M.R., 2013 MT 3, ¶ 16, 368 Mont. 179, 292 P.3d 451 (citing Christiansen, ¶ 7; quotation marks omitted).",standard of review
+256,4511248,1,6,"The judgment and sentence of the district court are affirmed. Affirmed. 26 See State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).",conclusion
+257,6346439,1,1,"[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirm­atively show that the defendant is entitled to no relief. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).",standard of review
+258,2519823,1,1,"¶ 1 Decedent's children, Kenneth Alan Banks, Susan Banks Baker, and Bransford Michael Banks brought an action against decedent's sister, Nancy Means (Ms.Means) seeking enforcement of a 1992 trust that was purportedly modified by a 1999 amendment. Under the terms of the 1999 amendment, Ms. Means would become the sole beneficiary of the trust, while the Banks children would become contingent beneficiaries. The trial court granted summary judgment in favor of the Banks children. Ms. Means appealed, arguing that the trial court erred by (1) granting the Banks children's motion for summary judgment, (2) denying Ms. Mean's cross-motion for summary judgment, and (3) admitting the deposition testimony of attorney Joseph L. Platt. We affirm the trial court's grant of summary judgment and hold that the 1999 amendment did not effect a revocation of the trust as required by the trust language. Therefore, the terms of the original trust document govern the disposition of the trust estate and the remaining issues are moot.",introduction
+259,1577251,1,3,"
+A writ of prohibition is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. [1] We have divided writ cases into two classes, which are distinguished by whether the inferior court allegedly is (1) acting without jurisdiction (which includes `beyond its jurisdiction'), or (2) acting erroneously within its jurisdiction. [2] Grange is not challenging the jurisdiction of the trial court, so we need not concern ourselves with an extensive discussion of the first class of cases. Instead, Grange's claim falls under the second class. In that type of case, writs of prohibition ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied). [3] We have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise. [4] The petitioner must then also meet the requirements of the second test, i.e., by showing great and irreparable injury, alternately defined as something of a ruinous nature, [5] before a writ will issue. Ordinarily if this cannot be shown, the petition will be dismissed. [6] We have also held, however, that a showing of great and irreparable harm in this second class of cases is not an absolute prerequisite [7] for the issuance of a writ. The requirement may be put aside in  certain special cases ... [where] a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration. [8] But these certain special cases are exactly that — they are rare exceptions and tend to be limited to situations where the action for which the writ is sought would violate the law, e.g. by breaching a tightly guarded privilege [9] or by contradicting the requirements of a civil rule. [10] In those rare cases, a court may peek behind the curtain, i.e., beyond the petitioner's failure to meet the great and irreparable harm test, at the merits of the petitioner's claim of error by the lower court.
+Grange claims that a denial of a writ of prohibition is examined on appeal under the de novo standard of review where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule. Grange cites Lexington Public Library v. Clark [11] for this standard, but it does so by taking the qualifying language in its brief — where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule — out of context. The language that Grange cites reads in context as follows: Where the challenge involves matters of fact, or application of law to facts, however, an abuse of discretion should be found only where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule. Application of any lesser standard for interlocutory intervention would ignore the extraordinary nature of the writs of prohibition and mandamus. [12] The cited language supports an abuse of discretion standard rather than de novo review. And the cited language actually relates the standard to be applied by the court hearing the initial petition when it reaches the merits of the case, i.e., after applying the practical and convenient formula [13] of no adequate remedy on appeal and great and irreparable injury — not the standard applied in an appeal of the grant or denial of a writ to yet a higher court. But we must review this matter under an appellate standard. The petition for this writ was filed in the Court of Appeals, which acted as a trial court because it heard the matter as an original action. And this case is now before us as a matter of right appeal, not an original action. Since the passage of the Judicial Article in 1976, the Court of Appeals has been the appropriate forum for the original action in a petition for a writ of prohibition applicable to a circuit court, and the Supreme Court is limited to appellate review. [14] But what appellate standard — de novo, abuse of discretion, or clear error — to apply to which class of writ case is not perfectly clear because we have, unfortunately, failed to make an unambiguous distinction among the three standards in our recent writ cases. This is perhaps a result of the fact that many of the seminal opinions on the subject of writs are from original writ actions in our predecessor Court — i.e., when there was no intermediate appellate court that would hear the original writ action and from which an appeal could be taken. Those opinions did not need to consider the standard on appeal because there was no higher court that could entertain an appeal. But it could also be that no party has framed the issue so as to require careful attention on our part as to the standard of review that we ought to apply. By claiming that de novo is the proper standard of review, however, Grange has placed this issue squarely before us. Though our previous decisions have not dealt with this question extensively, the basic rule is simple: Issuance of, or a refusal to issue a writ of prohibition is in the sound discretion of the court. [15] But in other cases, we have noted that appellate review of that decision is limited to an abuse-of-discretion inquiry, except for issues of law which are reviewed de novo. [16] Thus, it is apparent that the proper standard actually depends on the class, or category, of writ case. De novo review will occur most often under the first class of writ cases, i.e., where the lower court is alleged to be acting outside its jurisdiction, because jurisdiction is generally only a question of law. De novo review would also be applicable under the few second class of cases where the alleged error invokes the certain special cases exception [17] or where the error involves a question of law. But in most of the cases under the second class of writ cases, i.e., where the lower court is acting within its jurisdiction but in error, the court with which the petition for a writ is filed only reaches the decision as to issuance of the writ once it finds the existence of the conditions precedent, i.e., no adequate remedy on appeal, and great and irreparable harm. `If [these] procedural prerequisites for a writ are satisfied, whether to grant or deny a petition for a writ is within the [lower] court's discretion.' [18] But the requirement that the court must make a factual finding of great and irreparable harm before exercising discretion as to whether to grant the writ then requires a third standard of review, i.e., clear error, in some cases. This is supported by the fact that the petition for a writ is an original action [19] in which the court that hears the petition, in this case the Court of Appeals, acts as a trial court. And findings of fact by a trial court are reviewed for clear error. [20] Therefore, if on appeal the error is alleged to lie in the findings of fact, then the appellate court must review the findings of fact for clear error before reviewing the decision to grant or deny the petition.
+There is no dispute that Grange would not have an adequate remedy on appeal. As the Court of Appeals noted, Wilder has conceded this point. But for the sake of completeness we point out that there will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery. Our predecessor court noted the following: The present petition states, and we believe it evident, that petitioners are without an adequate remedy by appeal or otherwise.... Once the information is furnished it cannot be recalled.... The injury suffered by petitioners... will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy. [21] As such, we agree with the Court of Appeals that Grange would have no adequate remedy on appeal.
+The Court of Appeals based its decision on a finding that Grange failed to prove great and irreparable harm. Grange argues that it did show great and irreparable harm because the requested discovery is irrelevant and would require disclosure of trade secrets.
+Grange complains that almost all of the discovery requests at issue in this case aim to discover irrelevant information. But showing irrelevancy is not a method of proving great and irreparable injury. Mere possession of irrelevant information by an opposing party is not something of a ruinous nature. [22] Our predecessor court, however, held that discovery of irrelevant material could fall under the certain special cases exception, [23] allowing a court to forego the great and irreparable harm requirement in the interests of justice. Thus, we must evaluate the relevance of the requested discovery to see if its production would be a substantial miscarriage of justice ... and correction of the error is necessary and appropriate in the interest of orderly judicial administration. [24] To frame the issue, we note that CR 26.02 allows that [p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... It is not grounds for objection that the information sought will be inadmissible at the trial if the discovery sought appears to be reasonably calculated to lead to the discovery of admissible evidence. We also note that under CR 26.02, [t]he question of relevancy is more loosely construed upon pre-trial examination than at the trial, and the Rule requires only relevancy to the subject matter involved in the action. [25]
+These discovery requests [26] focus on other bad faith claims brought against Grange by private plaintiffs or the Kentucky Insurance Commission. Grange argues that information and documents related to such claims is irrelevant because they cover claims against adjusters other than those involved in this case. Citing Kentucky Farm Bureau Mutual Insurance Co. v. Troxell , [27] Grange argues that discovery of other claims is limited only to claims involving the same adjusters. But Troxell addresses only the admissibility at trial of other claims, not their discoverability, and it states that evidence of other claims involving the same adjuster is admissible, which would imply that they are discoverable. The opinion does not contain the sort of limiting language that Grange implies. In fact, it does not even address in any way the admissibility or discoverability of claims involving other adjusters. It is enough for us to note that discovery of information and documents related to similar claims involving other adjusters could reveal a pattern of bad faith conduct on the part of Grange. This would certainly be relevant to Wilder's bad faith claim, regardless of whether such information was admissible at trial. As such, Interrogatories Nos. 9 and 10(b) and Request for Production No. 10 were proper.
+These discovery requests [28] focus on manuals that contain Grange's internal policies and procedures for evaluating and adjusting claims. Grange's primary complaint with discovery of these items concerns their trade secret status, which is addressed separately below. But Grange also claims that these items are irrelevant. In support of its relevance argument, Grange cites to only one case: Garvey v. National Grange Mutual Insurance Company. [29] The plaintiff in Garvey had filed suit in which he claimed breach of contract, bad faith claim, and deceit based on the insurance company's refusal to provide coverage for fire damage to his business. The trial court granted a protective order that prohibited discovery of the insurance company's manuals, noting the following: The contents of these manuals do not pertain to whether the plaintiff's present claim for loss is covered under the insurance contract issued by the defendant. Moreover, the fact that the defendant may have strayed from its internal procedures does not establish bad faith on the part of the defendant in handling the plaintiff's loss. [30] The bad faith claim here is not based on whether the insurance adjuster may have strayed from internal procedures. The question is whether Grange's own policies, as described in the manuals, embody or encourage bad faith practices. And use of such manuals is not without precedent in our courts. [31] As such, we disagree with the applicability of Garvey to this case. Grange's training and policy manuals are relevant to Wilder's bad faith claim, and absent some sort of privilege or other showing of irreparable harm, they are discoverable.
+These discovery requests [32] focus on Grange's methodologies for setting reserves on claims that its adjusters handle. Again, Grange claims these are protected as trade secrets, which we address below. But Grange also makes the unique argument that this information is irrelevant to the case because Wilder already has discovery that lists the reserve amount set for his claim and because Wilder is only seeking this information for use in future litigation or to sell to other plaintiffs' attorneys. The relevance of procedures for setting reserves to a bad faith claim seems obvious. Reserve setting procedures are controlled in part by statute. [33] Evidence of Grange's reserve setting procedures would help show whether Grange is following the statutory and regulatory requirements and whether the specific system for setting reserves is aimed at achieving unfairly low values. We find that this evidence is relevant to the bad faith claim. Grange's argument that Wilder is seeking this discovery for other improper purposes, i.e., use in other litigation or for sale to other attorneys, is even more difficult to swallow. Grange cites Oppenheimer Fund, Inc. v. Sanders [34] for the proposition that seeking discovery for use in other proceedings is an improper motive. But Grange's reading of Oppenheimer is far too restrictive because the evidence sought in that case was useful only in other proceedings and was not relevant to the case at hand. [35] We agree that when this is the case, then discovery of the evidence is improper. But evidence that is relevant to the proceeding at hand, as is the case here, is discoverable despite the fact that the evidence may be useful in other contexts. That discovery might be useful in other litigation or other proceedings is actually a good thing because it furthers one of the driving forces behind the Civil Rules by allowing the cost of repeating the discovery process to be avoided and thereby encouraging the efficient administration of justice. [36] And [e]ven though CR 1 no longer requires it ... the rules of procedure should be construed to secure the just, speedy, and inexpensive determination of every action. [37] The exception in this group is Request for Production No. 13. The average amounts paid on other claims would only be relevant if the degree of damages or injury were comparable to Wilder's. This request, however, is so blanket as to seek primarily irrelevant records and information. As such, it falls into the certain special cases exception.
+These discovery requests [38] focus on the personnel files and the records and policies concerning the compensation of various Grange employees. We agree that many of the items likely to be found in personnel records (e.g., original job application, marital information, tax and dependant data, medical information, health insurance data, worker's compensations claims, and retirement account data) are irrelevant to a bad faith claim and thus are not discoverable. Thus, Wilder's discovery requests, to the extent that such truly personal items are covered, are overly broad. Other information to be found in personnel files (e.g., related to job performance, bonuses, wage and salary data, disciplinary matters) is relevant to Wilder's claim. Job performance and disciplinary information could help show that the adjusters and their superiors had engaged in bad faith practices in adjusting Wilder's initial claim or that they had engaged in bad faith practices at other times. This information could also show Grange's knowledge or even approval of such practices. This makes those portions of the personnel records related to job performance and disciplinary matters discoverable. Wilder claims that the compensation of Grange's employees could be keyed to obtaining low settlements, which in turn might encourage bad faith practices by adjusters and other employees. Wage, salary, and bonus data as to the employees described in the discovery requests shed light on this subject, as would the discovery requests as to how Grange's overall compensation system works. Thus, insofar as the requested personnel records relate to compensation of the employees involved and the other records relate to how Grange's overall compensation system works, they are discoverable.
+This discovery request [39] focuses on advertising that Grange used from 1993 to 1997. Wilder failed to address this discovery request in his brief, which we read as a waiver of this issue.
+This discovery request [40] is for Grange newsletters that deal in any way with claims handling. Grange's brief mentions this discovery request only in a section title. The text following the section title focuses solely on the discovery request dealing with advertisements, without addressing the issue of newsletters. Because Grange at least mentions this request, we will not read it as having been waived. Wilder also fails to address this discovery request directly, but we read his overall argument in favor of allowing discovery related to Grange's claims handling documents as applying to this request also. On this point, we would simply note that internal company newsletters that relate to claims handling could contain evidence that shows that Grange encouraged or knew about bad faith claims handling by its adjusters, which makes those documents relevant and discoverable. Though Grange does not expressly claim these documents are covered as trade secrets, any claim that they might be is addressed below.
+In addition to claims of irrelevance, Grange attacks Requests for Production Nos. 8, 9, 13, 14, 20, 23, 26, and 29 on the grounds that the documents requested have trade secrets status. Trade secrets enjoy substantial protection in Kentucky as embodied by the Uniform Trade Secrets Act. [41] And usually a discovery request that would require the disclosure of a trade secret ... clearly justifies the entry of a protective order, [42] though granting such an order would fall within the discretion of the trial court. [43] We have previously addressed, at least in part, the issue of trade secrets in the context of a petition for writ of prohibition. In Wal-Mart Stores , Inc. v. Dickinson, [44] we noted that [m]ost likely, disclosure of a trade secret would likewise rise to the level of irreparable harm as the potential harm could extend far beyond the case in which the disclosure is made. [45] Grange relies heavily on Wal-Mart Stores in the course of its argument that a writ of prohibition is necessary in this case. But Wal-Mart Stores is readily distinguishable from this case. Wal-Mart was seeking a writ or prohibition against the enforcement of the trial court's order allowing an inspection — termed a walk-through — of its loss prevention headquarters. We noted that Wal-Mart makes no specific claims as to irreparable harm arising from the walk through. Rather it argues that the trial court erred in denying the protective order because its `headquarters are not open to the public and contain extremely sensitive, proprietary, confidential information and trade secrets.' [46] We then stated that involuntary disclosure of trade secrets usually amounts to irreparable harm. But we refused to grant the writ under the irreparable-harm rubric, holding that Wal-Mart's general claims are not well taken and cannot serve to establish irreparable harm. [47] While we did subsequently grant the writ in Wal-Mart Stores , the rationale for the writ came from Bender's certain special cases exception — because the trial judge had failed to make findings of fact as required by CR 34.01 in its premises inspection order — not the traditional irreparable harm approach. We have already discussed the applicability of the certain special cases exception, by way of irrelevance of the proposed discovery, above, finding that the exception does not apply to Requests for Production Nos. 8, 9, 13, 14, 20, 23, 26, and 29. The remaining question then is whether Grange has proven great and irreparable harm. The Court of Appeals has already given us a negative answer to this question of fact. So we are left to evaluate whether the Court of Appeals, which acted as a trial court in the original petition for a writ of prohibition, committed clear error. In holding that Grange failed to also demonstrate that ... production will cause it irreparable harm, the Court of Appeals also noted the following: The record that has been provided to us does not suggest that Grange sought to introduce specific evidence for each document, or category of documents for which it makes a claim of lack of relevance, confidentiality, or privilege, and it is not clear whether it submitted all the documents to the trial court for its review in camera. What is clear, however, is that the records were neither submitted, nor sufficiently described, to us. After reviewing the record submitted to the Court of Appeals, we must agree. Grange's petition for a writ of prohibition contains only broad descriptions of documents, e.g., Grange's training and or other internally created manuals, reserve setting data, policy and procedure manuals, claims payment averages, personnel and management guidelines, wage and benefits data, and other claims programs and software, [48] followed by the conclusory statement that these documents contain proprietary trade secrets. But such a blanket, vague claim of privilege is not enough. We have previously refused to grant a writ of prohibition when the petitioner has failed to provide access to the documents, themselves, or to sufficient descriptions of their contents, [49] and we continue to do so now. Grange attempts to evade the inevitable result of this failure to prove that the documents contain trade secrets by alleging a conflict between CR 76.36(5) and the fact that the Court of Appeals found no irreparable injury because Grange neither submitted, nor sufficiently described the records in question. CR 76.36(5) states that [e]vidence in support of or against the petition, other than that which may be attached to the petition and response in the form of exhibits, affidavits, and counter-affidavits, will be permitted only by order of the court. Grange claims that, under this rule, the Court of Appeals should have ordered it to submit the records that would have allowed it to prove its case, and that absent such an order, it could not prove the privilege. While we understand that Grange did not want to simply attach the records as exhibits to their petition, it is unclear that the Court of Appeals actually needed to see the records themselves. A thorough description of the records, perhaps in the form of a privilege log, would have been enough to show irreparable harm, but as we have already noted, the descriptions that Grange did provide were not enough to require that the Court of Appeals find great and irreparable harm. But more importantly, the burden of proving that a privilege applies rests on the party claiming its benefit. [50] If Grange felt that it was necessary for the Court of Appeals to review the documents, then it could have made a motion for a CR 76.36(5) order to allow the presentation of more evidence. Grange could even have moved the Court of Appeals to undertake an in camera review in order to determine whether discovery of the records would have caused great and irreparable harm. But Grange made no such motion. Instead, Grange now complains that the Court of Appeals failed to grant such an order sua sponte. It is not the duty of the Court of Appeals to make Grange's case for it. And its failure to do so is certainly not grounds for us to reverse the denial of the writ.
+As a final matter, we address Grange's initial substantive claim that the trial court erred as a matter of law by not conducting an in camera review of the requested discovery. This is simply an incorrect statement of the law in Kentucky. [T]he decision whether to engage in in camera review rests within the sound discretion of the trial court. [51] But review of the trial court's decision in this regard, even under the abuse of discretion standard, would require us to engage in the merits of Grange's request for a writ of prohibition. Because Grange failed to prove the conditions precedent for reaching the merits, we decline to review the trial court's failure to conduct an in camera review.",analysis
+260,1238830,1,4,"The State charged Stone with violating section 321J.21 of the Code. It provides in relevant part that [a] person whose driver's license or nonresident operating privilege has been suspended, denied, revoked, or barred due to a violation of this chapter and who drives a motor vehicle while the license or privilege is suspended, denied, revoked, or barred commits a serious misdemeanor. Iowa Code § 321J.21(1) (2005). To prove Stone's guilt, the State must prove beyond a reasonable doubt that the defendant's license had been revoked, and the defendant operated a motor vehicle while his license was revoked. State v. Thompson, 357 N.W.2d 591, 594 (Iowa 1984). [1] Both parties acknowledge that a violation of section 321J.21 is a status offense. Stone claims the State could not charge him under section 321J.21 because the DOT rescinded his license revocation. He argues that when the DOT rescinds a revocation, the rescission applies retroactively. In other words, a rescission of a revocation means the revocation never existed. The DOT rescinded Stone's revocation pursuant to section 321J.13(6). It provides: a. The department shall grant a request for a hearing to rescind the revocation if the person whose motor vehicle license or operating privilege has been or is being revoked under section 321J.9 or 321J.12 submits a petition containing information relating to the discovery of new evidence that provides grounds for rescission of the revocation. b. The person shall prevail at the hearing if, in the criminal action on the charge of violation of section 321J.2 or 321J.2A resulting from the same circumstances that resulted in the administrative revocation being challenged, the court held one of the following: (1) That the peace officer did not have reasonable grounds to believe that a violation of section 321J.2 or 321J.2A had occurred to support a request for or to administer a chemical test. (2) That the chemical test was otherwise inadmissible or invalid. c. Such a holding by the court in the criminal action is binding on the department, and the department shall rescind the revocation. Iowa Code § 321J.13(6). Thus, the success of Stone's argument depends on the meaning of rescind the revocation contained in section 321J.13(6)( c ). The Code does not define rescind in relation to the rescission of a license revocation. Therefore, to determine whether the rescission applies retroactively, the court must interpret the statute. The purpose of statutory construction is to determine legislative intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). We determine the legislature's intent by the words chosen, not by what it should or might have said. State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006). Absent a statutory definition or an established meaning in law, the court gives words their ordinary and common meaning by considering the context in which the legislature used the word. City of Des Moines v. Employment Appeal Bd., 722 N.W.2d 183, 196 (Iowa 2006). Black's Law Dictionary defines rescind as: [t]o abrogate or cancel (a contract) unilaterally or by agreement or [t]o make void; to repeal or annul. Black's Law Dictionary 1332 (8th ed. 2004). The dictionary defines rescind as to do away with, to take away, remove, take back, annul, cancel, to abrogate (a contract) by tendering back or restoring to the opposite party what one has received from him, and to vacate or make void (as an act) by the enacting or a superior authority; repeal. Webster's Third New International Dictionary 1930 (unabr. ed. 2002). None of these definitions in a noncontractual setting indicates the word rescind means to retroactively undo all the effects of the initial action that was later rescinded. Stone argues the contractual definition is controlling and that once the DOT rescinded his revocation, it put him in the position as if the revocation never took place. Stone's reliance is misplaced. Rescission, as used in the contractual sense, is an equitable remedy devised by the law. See Potter v. Oster, 426 N.W.2d 148, 151 (Iowa 1988) (stating [r]escission is a restitutionary remedy which attempts to restore the parties to their positions at the time the contract was executed). The remedy of rescission does not assume the events occurring prior to the remedy did not occur. Barlow v. Comm'r of Pub. Safety, 365 N.W.2d 232, 233 (Minn.1985). A situation more analogous to Stone's is the legislature's repeal of an existing statute. Even though the legislature repeals a law, the repeal of a law does not affect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed. Iowa Code § 4.1(26). Prior to the DOT's rescission of Stone's revocation, Stone had notice his driving privileges were revoked, and he knew he could only drive in situations allowed by his temporary work permit. The only fact relevant to Stone's prosecution was the status of his license on September 14, 2006. The DOT's rescission of Stone's revocation did not change the fact that on September 14, when he was stopped, Stone's license was revoked and he was driving his vehicle in a manner not permitted by his temporary work permit. Consequently, the DOT's rescission of Stone's revocation does not prevent the State from prosecuting Stone for driving while his license was denied or revoked for an OWI test refusal. On appeal, Stone also raises a due process argument under the state and federal constitutions. In his brief, he cites two Supreme Court cases dealing with the substantive due process rights of prisoners. In the district court, Stone's attorney attempted to raise the due process issue in the following exchange with the district court: But for our first three numbered paragraphs in the Motion in Limine, we would ask that the Court prohibit any reference at trial to any alleged sanction which is not contained in the current certified driving record of the Iowa Department of Transportation and which has been rescinded by the Iowa Department of Transportation. We would allege that failure to do so would be contrary to the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Section 8, 9, and 10 of the constitution of the State of Iowa. And we would also rely on those Constitutional protections in our motion. Thank you. THE COURT: Okay. What specific Constitutional protections are you referring to? MR. KEEGAN: Due process and fair trial. His attorney did not make any legal arguments or cite any authority for his position. It is unclear from the record made whether he was making a substantive or procedural due process argument. By not specifying the nature of his constitutional claims in the district court, Stone has failed to preserve error on his constitutional claims. State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002) (stating the party must alert the court to the specific constitutional provisions at issue and must explain the alleged violations of the provisions). We will not consider issues, even constitutional issues, which a party did not properly raise in the district court. State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008). The last issue Stone raises on appeal is the court's failure to allow him to introduce his certified driving record, as it existed after the DOT rescinded the revocation, which showed his license was not revoked on September 14, 2006. The State brought a record custodian from the DOT to testify as to the status of Stone's driving privileges on September 14. After laying the proper foundation, the custodian testified the DOT's records revealed on September 14 Stone's driving license was revoked subject to a temporary work permit. We agree with the district court that the certified driving record showing the DOT had not revoked Stone's license on September 14 was inadmissible. Our rules of evidence define relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Iowa R. Evid. 5.401. As we previously held in this opinion, the status of Stone's driving privileges on September 14 is the only relevant fact the State needs to prove to convict Stone of driving while his license was denied or revoked for an OWI test refusal. The fact the DOT later rescinded his revocation is irrelevant to any issue in this prosecution. Therefore, the court was correct when it did not allow Stone to introduce his certified driving record, as it existed after the DOT rescission.",analysis
+261,1863608,1,5,"A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001). In considering an appeal from an order granting a motion for directed verdict at the close of the plaintiff's case, an appellate court must determine whether the cause of action was proved and in so doing must consider the plaintiff's evidence as true and give the plaintiff the benefit of reasonable conclusions deducible from that evidence. King v. Crowell Memorial Home, 261 Neb. 177, 622 N.W.2d 588 (2001); Cole v. Loock, 259 Neb. 292, 609 N.W.2d 354 (2000). On a motion for judgment non obstante verdicto, or notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).",standard of review
+262,2516613,1,5,"¶ 19 USF & G is not liable for a tax but is liable, if at all, for the loss to the state for Sun River's failure to perform it sales tax obligations. USF & G, acting as a surety, is not a taxpayer for purposes of section 202 of title 68. Thus, the forfeiture order was not directly appealable to this Court under section 225 of title 68. The Court of Civil Appeals' opinion is vacated. The appeal is dismissed. HARGRAVE, C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, JJ., concur. WINCHESTER, J., concurs in result. KAUGER, J. (joins OPALA, J.), concurs in part; dissents in part. WATT, V.C.J. (joins OPALA, J.), OPALA, J. (by separate writing,), dissents. OPALA, J., with whom WATT, V.C.J., and KAUGER, J., join, dissenting. ¶ 1 The court dismisses this appeal from the Oklahoma Tax Commission's [OTC] order declaring forfeiture of a statutory § 1368(A) bond [1] upon concluding that appellate review of that order is unauthorized by statute. [2] ¶ 2 I recede from the court's pronouncement. It is fraught with serious constitutional flaws. Today's denial of a surety's access to direct appeal from OTC's forfeiture order clearly offends the state as well as the federal fundamental law. It is also contrary to the legislative intent. Violated by the court's pronouncement are these constitutional mandates: (a) equal, uniform and unimpeded access to judicial review must be accorded to all final agency orders (Art. 2 § 6, Okl. Const.), [3] (b) uniformity of procedure must be extended to judicial review of agency forfeitures of statutory bonds (Art. 5 § 46, Okl. Const.), [4] (c) agency procedures must comply with the strictures of equal protection [5] (as well as of the antidiscrimination component of the state due process clause, Art. 2 § 7, Okl. Const.) [6] and (d) de novo judicial review of agency-found jurisdictional facts (Due Process Clause of the 14th Amend., U.S. Const., and of Art. 2 § 7, Okl. Const.) [7] must be accorded to litigants adversely affected by the administrative process of adjudication. Moreover, the appeal's dismissal exposes OTC's bond forfeitures to a serious risk of fundamental-law attacks on the fairness and neutrality of the agency process. [8] ¶ 3 The only judicial review of an OTC bond forfeiture declaration to be recognized as statutorily prescribed is by appeal to this court — which alone may afford corrective relief. A bond forfeiture order stands impervious to a collateral attack. If it is not made subject to direct attack by appeal (or by some other authorized method), as the court holds today, it becomes forever unassailable unless, of course, it be facially void. The court's rejection of the surety's appeal denies it the law's only avenue of relief by direct appeal. What is even more shocking is that today's opinion injects into the enforcement process for statutory bonds a fatal fundamental-law flaw of court-created procedural asymmetry by setting apart OTC's forfeitures as a distinct subclass that alone is made impervious to judicial re-examination via direct review in any forum. [9]",conclusion
+263,1829477,1,1,"On January 14, 2004, Defendant-Petitioner Abraham Yisrael (a/k/a Eugene Lumsden) was convicted of cocaine trafficking and possession of a firearm by a convicted felon in Broward County Circuit Court. [1] The State later filed notice of its intent to seek an HVFO sentence enhancement. During sentencing, the trial judge relied on a DOC release-date letter, which indicated that Mr. Yisrael committed the target offenses within five or fewer years of having been released for his predicate felonies. Based on this letter, Yisrael qualified as an HVFO under section 775.084, Florida Statutes (2001). [2] Mr. Yisrael did not object to the trial judge's consideration of the release-date letter during sentencing. Nonetheless, Yisrael later filed a timely Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence, alleging that (1) the letter was based upon inadmissible hearsay; (2) the letter was the only evidence the State produced to support its HVFO sentencing request; and (3) the trial court consequently could not have properly sentenced him as an HVFO. [3] Yisrael, however, neither attacked the validity of his predicate felonies, nor did he challenge the accuracy of his predicate-offense release date. The circuit court denied Yisrael's rule 3.800(b)(2) motion, and Yisrael appealed to the Fourth District Court of Appeal. On appeal, sitting en banc, the Fourth District affirmed the order of the circuit court denying Yisrael's rule 3.800(b)(2) motion. Yisrael v. State, 938 So.2d 546, 547-50 (Fla. 4th DCA 2006). The court reasoned that the DOC letter was admissible under the public-records exception to the rule against hearsay. In the course of its decision, the Fourth District receded from its prior opinion in Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA 2006), and certified direct conflict with the First District's decision in Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), which held that a nearly identical DOC letter constituted inadmissible hearsay. However, apparently unknown on appeal to the Fourth District, the Public Defender's Office, and the State, the trial-level prosecutor actually included an attachment with the supposedly objectionable DOC letter (collectively labeled Exhibit C), which undermined Mr. Yisrael's hearsay objection and rendered Yisrael factually distinguishable from Gray and Sutton. See Appendix (Exhibit C). This attachment was included in the record filed with this Court, and is an example of what Florida courts have generally referred to as the DOC's Crime and Time Reports. The report provided under seal in this case clearly indicated that Mr. Yisrael's predicate-felony release date was 04/08/98. The decisions of the First District in Desue v. State, 908 So.2d 1116 (Fla. 1st DCA 2005), and Gray each specified that this type of report is admissible, despite a hearsay objection, as either a public or business record. See Desue, 908 So.2d at 1117-18; Gray, 910 So.2d at 869. Moreover, Sutton expressly followed Gray. See Sutton, 929 So.2d at 1108 (citing Gray in support of its holding). Therefore, if the Fourth District had been informed of this important fact, its opinion overruling Sutton and declining to follow Gray would have been unnecessary. [4] This Court's discretionary review follows from the Fourth District's certification of direct conflict between its decision in Yisrael and the First District's decision in Gray. See Yisrael v. State, 938 So.2d 546, 550 (Fla. 4th DCA 2006), review granted, 956 So.2d 458 (Fla. 2007) (table).",facts
+264,1179653,1,3,"The Dental Board is subject to the Administrative Procedures Act. Okla.Stat. tit. 75, §§ 301-323 (1991). Section 306 authorizes an action for declaratory judgment to test the validity of an agency rule. Section 318 provides for judicial review of final agency orders. Section 328.43 of title 59 provides that an appeal from a disciplinary proceeding is in the district court. The Board argues Dr. Johnson is appealing an interlocutory order and, under these statutory provisions, the district court does not have jurisdiction until a final order issues. Generally, a litigant must seek review of agency decisions in a manner prescribed by statute and cannot invoke the jurisdiction of the court in a separate proceeding. Conoco, Inc. v. State Dep't of Health of the State of Oklahoma, 651 P.2d 125, 129 (Okla.1982); Martin v. Harrah Independent School District, 543 P.2d 1370, 1377 (Okla.1976). An independent action is permitted where the judicial review of an agency decision fails to provide an adequate remedy. Martin, 543 P.2d at 1375. Statutory procedures can be circumvented when there is a constitutional question, inadequate administrative relief, and threatened or impending irreparable injury. Id. A district-court action is not abatable if the uninvoked administrative remedy was unavailable, ineffective or would have been futile to pursue. Tinker Investment & Mortgage Corp. v. City of Midwest City, 873 P.2d 1029, 1038 (Okla. 1994) (emphasis omitted). Dr. Johnson has alleged a constitutional question in that the right to due process is a protection afforded by both the United States and the Oklahoma Constitutions. Due process entitles a person to an impartial and disinterested tribunal in both civil and criminal adjudicative proceedings. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980); Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973). The lack of due process resulting from a biased tribunal cannot be corrected on appeal. Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 61, 93 S.Ct. 80, 83-84, 34 L.Ed.2d 267 (1972). Likewise, a professional whose license is at stake is entitled to be treated according to a previously established uniform system of published rules and regulations. Adams v. Professional Practices Commission, 524 P.2d 932, 934 (1974). Dr. Johnson has also alleged inadequate administrative relief and irreparable injury. Dr. Johnson alleged the members of the Board were biased and proceeding without having properly enacted rules or the rules under which the Board was acting were void. There is little doubt an appearance before a biased tribunal will be ineffective and inadequate and is not authorized by law as the Board argues. An appellate review is inadequate to correct injury to a professional's reputation after a board has pronounced a negative decision. Because Dr. Johnson has alleged facts sufficient to justify circumventing statutory procedures, the district court's jurisdiction was correctly invoked. Not only did the trial court have jurisdiction under the rule set out in Martin, 543 P.2d 1370, it also had jurisdiction under article 7, section 7 of the Oklahoma Constitution. Article 7, section 7 vests in the district court ` unlimited original jurisdiction of all justiciable matters . . . and such powers of review of administrative action as may be provided by statute. ' Lincoln Bank and Trust v. Oklahoma Tax Commission, 827 P.2d 1314, 1318 (1992).",jurisdiction
+265,2606182,1,2,"The motion for summary judgment was supported by an affidavit of Brondum, an employee of Bell. Brondum arrived at work at 7:00 a.m. on October 24, 1982. Steve Lovett (Lovett), another Bell employee, was in the process of hooking up a propane gas line to a trailer that belonged to Bell. A T was being placed in the gas line leading from a propane bottle to the Norton trailer. Once the T was in place, turning on the flow of gas would result in gas being supplied to both the Bell trailer and the Norton trailer. When Brondum took over, Lovett directed him not to turn on the gas because the stove burners inside the Norton trailer were turned on. Brondum was to contact the Norton toolpusher to have the burners turned off. Brondum went to the Norton drilling rig floor and asked the toolpusher to unlock the Norton trailer so he could turn off the burners. Brondum was advised by the Norton toolpusher that the burners had been turned off and that it was all right to turn on the gas. Brondum turned the gas on at 9:30 p.m. that same day. At 3:00 a.m. on October 26, 1982, the Norton trailer exploded. Brondum ran to the scene of the explosion and found three injured people to whom he rendered first aid and then transported two of them to a hospital in Kemmerer. While waiting to be treated, the injured Norton workers told Brondum that they had gone into the trailer, smelled gas, turned off the burners, opened the windows, then tried to light the furnace with a Bic lighter and the trailer exploded. Lovett's affidavit, also filed with the motion for summary judgment, stated that he had received permission from the Norton toolpusher to connect a line from the Bell trailer to the propane bottle also used by the Norton trailer. He was in the process of doing this work when he was relieved by Brondum. Lovett told Brondum how to complete the work and that he thought the stove burners in the Norton trailer were on. Because the Norton trailer was locked, Lovett instructed Brondum to contact the Norton toolpusher to make sure the stove burners were turned off before turning on the propane. Lovett also stated that he had no responsibility for the Norton trailer or the propane gas service to it. In answer to MacKrell's interrogatories, Bell stated that: Brondum was its employee, but denied that it or its employees installed a propane gas tank for the Norton trailer; denied that it had ever had a propane gas tank installed by it involved in an explosion prior to the explosion at the Norton trailer; denied knowing to whom the propane gas tank and connecting line belonged, but stated it assumed they belonged to Norton; denied that it had the right of control or management over the propane gas tank and gas line to the Norton trailer; stated that it had not installed the propane gas tank which supplied gas to the Norton trailer; and denied knowledge of any regulations or industry standards and any testing or inspection standards which apply to the connection of propane gas tanks to trailers. Attached to the answers to interrogatories were the statements of Brondum and Lovett. They add nothing beyond that which is provided in their affidavits. MacKrell's opposition to the motion for summary judgment relied upon the affidavits of Brondum and Lovett in which they admitted splicing into the gas line and admitted knowing that the stove burners were on in the Norton trailer. MacKrell stated that the gas was turned on after checking with the Norton toolpusher, but without doing any further inspection or checking, and that when dealing with a dangerous instrumentality, like propane gas, the required standard of care must be measured by the hazards known to exist. MacKrell also relied upon his deposition in which he stated that, at about 2:00 a.m. on the day of the explosion, MacKrell and two other Norton employees went to the trailer to move in their belongings. Initially, they were unable to enter the trailer because it was locked, but they found another hand who had a key and they entered. When he entered the trailer, he could smell gas real bad; it burned his eyes and made him cough. They opened some windows, and after discovering that the gas was coming from the stove burners, turned them off. All three of the men had warned each other not to light anything because there was so much gas in the trailer. One of the men, who MacKrell identified as Dave, didn't think there was any gas in the trailer, although MacKrell and the third workman said, Yes, there is. Although only ten minutes or less had transpired since the men entered the trailer, Dave held out a Bic lighter, and despite the attempts of the others to stop him, flicked the lighter. MacKrell was immediately engulfed in flames and suffered significant injuries. MacKrell's deposition also established that he was aware that the stove burners were left on to drain the system before the trailer was moved from storage to the location where the explosion took place. When asked who had the job of inspecting the trailer once it arrived on site to assure it was safe before people moved in, MacKrell responded that it was the Norton toolpusher's job and that he was sure it was not done. The district court determined that there was no genuine issue of material fact and that, in accordance with W.R.C.P. 56(e), Bell and Brondum were entitled to summary judgment as a matter of law. The district court also determined that even if Brondum were negligent, the cause of the accident was MacKrell's coemployee Dave igniting a cigarette lighter in the trailer that reeked of propane fumes.",facts
+266,2134533,1,5,"We first consider whether the trial court's order disqualifying Ehlers' privately retained counsel is a final, appealable order. It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Lauck, supra . We have not previously considered whether an order disqualifying privately retained counsel in a criminal case is a final, appealable order. We have held that an order disqualifying court-appointed counsel in a criminal case is not a final, appealable order. See State v. Schlund, 249 Neb. 173, 542 N.W.2d 421 (1996). State v. Schlund , however, is applicable only in a criminal case involving court-appointed counsel. When a defendant in a criminal case chooses to privately retain counsel, he or she has a constitutional right to representation by the counsel of his or her choice. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In the civil context, we have held that an order disqualifying privately retained counsel generally is not a final order. See Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997). But, we have also held in civil cases that if an appeal from an order of disqualification involves issues collateral to the basic controversy and if an appeal from a judgment dispositive of the entire case would not be likely to protect the client's interests, interlocutory review is appropriate. Id. See, Mutual Group U.S. v. Higgins, supra ; Detter v. Schreiber, 259 Neb. 381, 610 N.W.2d 13 (2000); Hawkes v. Lewis, 255 Neb. 447, 586 N.W.2d 430 (1998). We conclude that this rule is applicable to the disqualification of privately retained counsel in a criminal case. In this case, delaying the appeal until after a dispositive judgment on the criminal charges would not protect Ehlers' constitutional interest in the counsel of his own choosing. We conclude that interlocutory review is appropriate and that we have jurisdiction over this appeal.",jurisdiction
+267,2501505,1,1,"Respondent was admitted to the South Carolina Bar in 1989. For most of her career, respondent was a sole practitioner. In September 2008, respondent was diagnosed with breast cancer. She underwent treatment, including chemotherapy, surgery, and radiation.",facts
+268,890211,1,1,"¶ 2 On March 15, 2011, Bollman was convicted of his fifth DUI offense, a felony, after a jury trial. He was sentenced to serve a 13-month commitment with the Department of Corrections (DOC), followed by a 4-year suspended commitment to the DOC.",facts
+269,1657103,1,3,"On Carter's application for further review, we consider two issues: whether the district court erred in (1) overruling Carter's motion to suppress and (2) finding there was sufficient evidence to support his conviction.",issues
+270,884214,1,3,"Did the District Court err in terminating the mother's parental rights? The State petitioned to terminate the mother's parental rights pursuant to § 41-3-609(1)(c)(i) and (ii) (since renumbered § 41-3-609(1)(e)(i) and (ii)), MCA, which provides as follows: (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: .... (c) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.... Following the August 15, 1995, hearing on DFS's petition for temporary custody, and by stipulation of the parties, the court adjudicated W.Z. as a youth in need of care. The court approved the second of two appropriate treatment plans for he mother on November 9, 1995. Therefore, the first issue on appeal is whether the District Court erred in finding that the mother did not comply with, or successfully complete, her treatment plan. The second issue on appeal is whether the District Court erred in finding that the conduct and conditions which make the mother unfit to parent W.Z. are unlikely to change within a reasonable time. We address each issue in turn.
+In its findings of fact and conclusions of law terminating the mother's parental rights, the District Court found that the mother did not complete either of her court-approved treatment plans, and that the plans were unsuccessful. The record is replete with factual evidence which indicates the mother failed to comply with or successfully complete either of her treatment plans. Among the requirements of her first court-ordered treatment plan, approved by the court on November 25, 1994, were that the mother maintain sobriety, attend two AA meetings each week, and avoid leaving her son alone or without proper care. It is undisputed, however, that a mere two months after the plan's implementation, W.Z. was found wandering outside alone in the middle of the night while the mother was intoxicated. The evidence further indicates the mother continued to consume alcohol and minimize her addiction. For example, the mother arrived at her social worker's office for two visits with W.Z. in February and March 1995, smelling of alcohol. On March 20, 1995, the mother refused to continue with the counseling sessions mandated by her treatment plan. In addition, the mother was intoxicated when she appeared for the second day of the August 15, 1995, hearing on DFS's petition for temporary custody. Accordingly, the District Court's finding that the mother failed to comply with her first treatment plan is supported by substantial evidence and is not clearly erroneous. The factual record additionally supports the District Court's finding that the mother failed to complete her second treatment plan and that the plan was unsuccessful. Among the requirements of the mother's second treatment plan, approved by the court on November 9, 1995, were that she complete inpatient and aftercare alcohol treatment programs and continue to participate in AA. The plan further required that the mother abstain from consuming alcohol and drugs, avoid breaking the law, attend counseling sessions, and request visits with her son. There is testimony in the record to support the court's finding that the mother continued to drink up until the time she began inpatient treatment in November 1995. Although the mother completed inpatient treatment as required, she failed to complete an aftercare program and failed to document her alleged continuing participation in AA. Although the mother claims she has maintained sobriety since completing inpatient treatment in December 1995, she was arrested for obtaining dangerous drugs with a fraudulent prescription within weeks of completing treatment. Further, the mother did not participate in counseling, as required, and visited only infrequently with her son. The mother argues, however, that because her second treatment plan had only been in effect for three months when the State filed its petition to terminate her parental rights in February 1996, she did not have adequate time to demonstrate that the plan had been successful. The mother notes that the State filed for termination of her parental rights within two months of her discharge from inpatient chemical dependency treatment on December 22, 1995. Therefore, she argues, the State moved to terminate her rights just weeks after she had finally gained control over her alcoholism. The mother's argument that she did not have adequate time to demonstrate that the treatment plan was a success presupposes that she complied with the objectives of the plan and completed it. As discussed above, we hold the District Court properly found that the mother did not comply with either her first or second court-approved treatment plan. Further, this Court notes that, although the mother claims progress since the implementation of her second treatment plan, she was arrested for fraudulently obtaining dangerous drugs within weeks of completing inpatient treatment and roughly three weeks before DFS filed its petition to terminate her parental rights. Finally, the record indicates that DFS first became involved with the mother in September 1994 in an attempt to help her improve her parenting skills and control her chemical dependency. In the two-year period following DFS's initial involvement and the eventual filing of the petition to terminate her parental rights, the mother consistently failed to comply with either of the treatment plans approved for her. Any progress made by the mother in the two months prior to the filing of the petition does not accurately reflect DFS's efforts to rehabilitate her relationship with W.Z. throughout the preceding two years. See In re Matter of B.T.B. and B.B. (1992), 254 Mont. 449, 452-53, 840 P.2d 558, 559-60 (citing In re Matter of M.J.D., C.K.D., A.R.D. (1987), 225 Mont. 200, 205, 731 P.2d 937, 939-40). Based on the foregoing, we hold the court properly found that the mother failed to successfully complete her second treatment plan.
+In terminating the mother's parental rights, the District Court additionally found that the conditions which make her unfit to parent her son are unlikely to change in a reasonable time, and that continuation of the parent-child relationship will likely result in the continued abuse or neglect of the child. In so finding, the court reviewed the following factors set out in § 41-3-609(2), MCA: (a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time; (b) a history of violent behavior by the parent; .... (d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child; .... [and] (g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent. The court found that the mother suffers from chronic emotional and mental problems such that she cannot care for W.Z.'s emotional needs and noted her history of violent encounters with the father. The court additionally found that the mother's addiction to alcohol renders her unable to effectively parent her child. Finally, the court recognized DFS's lengthy involvement with the mother and her continued inability to provide a stable home for her child, who has remained in foster care since January 12, 1995. Substantial evidence of record clearly supports these findings by the District Court. For example, in a written assessment of the mother's fitness as a parent, clinical psychologist Frank Seitz identified her most significant problem as alcoholism. Furthermore, witness testimony at the termination hearing referred to the mother's long standing alcoholic behavior. Likewise, in an April 15, 1995, report, licensed counselor Joseph Scalia opined that the mother has a borderline personality defect. Incorporated into Dr. Seitz's August 14, 1995, court-ordered assessment of the mother's fitness as a parent, is the conclusion of Dr. Charles Kelly that the mother probably has a borderline personality disorder. The record additionally reveals continued intervention by DFS on the mother's behalf for a period of time in excess of two years. In light of these facts of record, the court did not err in finding that the conditions which make the mother unfit to parent her son are unlikely to change in a reasonable time. Again, the mother argues that, at the time the State filed its petition to terminate her parental rights, she was in the midst of successfully altering her conduct and the conditions which had previously rendered her an unfit parent. She points out that she successfully completed inpatient chemical dependency treatment just two months before the State filed its petition to terminate, and maintains she has not consumed alcohol since. The mother further argues she regularly attended AA meetings, and made extensive efforts to remain in contact with her son. However, the record does not substantiate the mother's claim that she has been attending AA meetings, nor does it document efforts on her part to remain in contact with her son. Although the record contains no evidence that she has consumed alcohol since her release from inpatient treatment in December 1995, the District Court properly looked to the mother's extensive history of alcoholic behavior and inadequate parenting prior to finding that her conduct and behavior was unlikely to change within a reasonable time. In re Matter of K.F.L. and N.L. (1996), 275 Mont. 102, 106, 910 P.2d 241, 244. Finally, pursuant to § 41-3-609(3), MCA, in determining whether the condition or conduct rendering the mother unfit was likely to change within a reasonable time, the District Court was bound to give primary consideration to the physical, mental, and emotional conditions and needs of the child. Indeed, the best interest of the child is paramount and takes precedence over parental rights. In re Custody of T.M. (1994), 267 Mont. 75, 79, 881 P.2d 1333, 1336 (citing In re Matter of J.J.C.H. (1992), 252 Mont. 158, 165, 827 P.2d 812, 816). The record in this case clearly indicates, and the District Court correctly found, that the termination of the mother's parental rights was in W.Z.'s best interest. For example, W.Z.'s counselor testified at the termination hearing that the child was thriving in his foster home and opined that termination of the mother's parental rights would be in W.Z.'s best interests. Based on the foregoing, we hold that the District Court correctly found that the mother failed to comply with and successfully complete her treatment plans, and that the conditions that made the mother unfit as a parent were unlikely to change within a reasonable time. Therefore, we hold that the District Court's findings of fact terminating the mother's parental rights are not clearly erroneous.",issues
+271,2395139,1,2,"In the context of the sentencing proceeding following the guilt-innocence phase of a capital trial, see N.C.G.S. § 15A-2000 (2009), the General Assembly has provided: (e) If the court does not find the defendant to be mentally retarded in the pretrial proceeding [as outlined in N.C.G.S. § 15A-2005(c)], upon the introduction of evidence of the defendant's mental retardation during the sentencing hearing, the court shall submit a special issue to the jury as to whether the defendant is mentally retarded as defined in this section. This special issue shall be considered and answered by the jury prior to the consideration of aggravating or mitigating factors and the determination of sentence. If the jury determines the defendant to be mentally retarded, the court shall declare the case noncapital and the defendant shall be sentenced to life imprisonment. N.C.G.S. § 15A-2005(e) (2009) (emphasis added). A plain reading of these words shows that the statute suggests a single sentencing proceeding—during the sentencing hearing—while at the same time using language that indicates a required sequence of events within that proceeding:  upon the introduction of evidence ..., the court shall submit a special issue that shall be considered and answered ... prior to the consideration of ... and the determination of sentence. Id. Unlike N.C.G.S. § 15A-2000, which explicitly provides that a capital trial must take place in two separate phases, first the determination of guilt or innocence, followed by the determination of sentence, N.C.G.S. § 15A-2005 is silent—and indeed inherently ambiguous—regarding whether these stages may or must take place in a unitary or bifurcated proceeding. When construing legislative provisions, this Court looks first to the plain meaning of the words of the statute itself: When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment. Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006). An ambiguous provision, such as at issue here, leads us in turn to the general rule that, `[i]n discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible.' State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444, 450 (2009) (quoting State v. Jones, 359 N.C. 832, 836, 616 S.E.2d 496, 498 (2005) (alteration in original) (citation omitted)). For example, subsection (g) of N.C.G.S. § 15A-2005 also indicates that the question of mental retardation must be both considered and decided by the jury prior to the consideration of aggravating and mitigating factors pursuant to N.C.G.S. § 15A-2000(e) and (f): (g) If the jury determines that the defendant is not mentally retarded as defined by this section, the jury may consider any evidence of mental retardation presented during the sentencing hearing when determining aggravating or mitigating factors and the defendant's sentence. N.C.G.S. § 15A-2005(g) (2009) (emphases added). If the jury determines that the defendant is in fact mentally retarded, then it need not consider evidence of aggravating and mitigating circumstances, because the trial judge must impose a life sentence. Reading this statute to mandate a unitary sentencing proceeding discounts—or at the least underemphasizes—the critical phrase and answered in N.C.G.S. § 15A-2005(e). Cf. N.C. Dep't of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009) (Because the actual words of the legislature are the clearest manifestation of its intent, we give every word of the statute effect, presuming that the legislature carefully chose each word used.  (emphasis added) (citation omitted)). Such a reading also disregards the additional words in subsection (g) indicating that, when retardation has been raised as a defense, the jury must determine the special issue of mental retardation—first as a separate issue, and then again as an aspect of determining the existence of aggravating and mitigating circumstances. We read this language as envisioning a procedure in which evidence of aggravators is introduced—as well as considered—after the special issue of mental retardation has been answered. Indeed, the pattern jury instructions for capital sentencing proceedings in North Carolina recognize this ambiguity and provide trial judges the flexibility to modify jury instructions in capital cases accordingly. See 1 N.C.P.I.—Crim. 150.05 (2001) (Death Penalty—Mental Retardation Jury Determination (with Special Verdict Form)) [1] (with an opening note stating that [t]his instruction is written in a manner which contemplates that the jury will return to court with its answer to the mental retardation question before hearing arguments and being instructed [on aggravating and mitigating factors and determination of sentence]. If the trial judge chooses to use a different procedure, this instruction should be modified accordingly. (emphasis added)); id. (The one issue for you to determine at this stage of the proceedings reads: `Is the defendant, ( name ), mentally retarded?'; Your answer to this mental retardation issue, either `yes' or `no,' must be unanimous.); 1 N.C.P.I.—Crim. 150.10 (Death Penalty — Instructions to Jury at Separate Sentencing Proceeding) (2004) (Members of the jury, [having found the defendant guilty of] murder in the first degree [and the defendant having been determined by you not to be mentally retarded], it is now your duty to recommend to the Court whether the defendant should be sentenced to death or to life imprisonment.). While these pattern jury instructions are not binding on this Court, they were drafted by a committee of the very same superior court judges who oversee capital sentencing proceedings, and they demonstrate these judges' ability to exercise discretion sensibly. In the instructions crafted after N.C.G.S. § 15A-2005 was enacted in 2001, these trial judges have acknowledged the ambiguity in the statute and have addressed it in a careful manner. The instructions maintain consistent treatment of all capital defendants while also allowing for the type of guided discretion and particularized consideration of the relevant aspects of the character and record of a convicted defendant that we have held is critical to the constitutionality of our death penalty procedures. State v. Barfield, 298 N.C. 306, 350-52, 259 S.E.2d 510, 542-43 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). The plain language of N.C.G.S. § 15A-2005 indicates that the jury will make two separate determinations, at two distinct points during the sentencing proceeding: first, on the special issue of mental retardation, and next, only if the defendant is found not to be mentally retarded, the sentence to be imposed. Allowing trial courts the discretion to bifurcate such proceedings gives proper weight to the words and answered, which also appear in the statute before the phrase prior to the consideration of aggravating or mitigating factors and the determination of sentence. Surely the General Assembly chose to require that the special issue of mental retardation be answered to indicate that the sentencing proceeding follow a specific sequence of events. By mandating that the jury first consider and answer the special issue on mental retardation, N.C.G.S. § 15A-2005(c) does not preclude a bifurcated proceeding, but rather contemplates that only after completing and returning a not mentally retarded verdict on the first issue may the jury even begin to consider evidence of aggravating and mitigating factors. The evidence presented to the jury on these questions may overlap somewhat, particularly concerning the defendant's adaptive functioning skills and whether the perpetration and details of the crime reflect those skills. See N.C.G.S. § 15A-2005(a)(1)a. (2009) (defining mentally retarded as [s]ignificantly subaverage general intellectual functioning, existing concurrently with significant limitations in adaptive functioning). However, the evidence is also likely to be appreciably different, as [t]he defendant has the burden of proving significantly subaverage general intellectual functioning, significant limitations in adaptive functioning, and that mental retardation was manifested before the age of 18, which will typically be unrelated to the details of the crime. Id. § 15A-2005(a)(2) (2009). It seems reasonable that the legislature intended to allow for a trial court, in overseeing the sequence of events envisioned in N.C.G.S. § 15A-2005(e), to wait until receiving a negative answer to the question of a defendant's mental retardation before expending time and resources on the presentation of evidence of aggravating and mitigating circumstances. See N.C.G.S. § 15A-2005(e) (If the jury determines the defendant to be mentally retarded, the court shall declare the case noncapital and the defendant shall be sentenced to life imprisonment.). In light of this conditionality, that the jury only need consider aggravating and mitigating factors if it finds that the defendant is not mentally retarded, a trial judge might determine, in a case in which the evidence of mental retardation is particularly strong, that bifurcation would best promote judicial economy in that the need for the second phase could well be obviated. In another instance, a trial court might determine that bifurcation would be the best means of avoiding undue prejudice. For example, when the evidence of aggravation is especially gruesome or heinous, the judge could conclude that viewing or hearing such evidence might unduly prejudice the jury in its determination of the issue of mental retardation. In connection with the issue of mental retardation, the jury will necessarily hear evidence about the defendant's intelligence quotient (IQ) and capabilities or limitations in the following adaptive skills areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills and work skills. Id. § 15A-2005(a)(1)b. (2009). By contrast, the State's evidence of aggravating circumstances will focus on the worst aspects of the offense itself, much of which may be entirely irrelevant to the issue of mental retardation. [2] Because of this difference in subject matter, from the capacity of the defendant to the circumstances of the crime itself, a trial judge may sometimes deem it appropriate to conduct the sentencing proceeding in two phases to ensure the issues are considered and answered separately. We have recognized the discretion of trial courts to conduct bifurcated proceedings, or the propriety of that approach, in a number of other contexts. See, e.g., In re Will of Barnes, 358 N.C. 143, 143, 592 S.E.2d 688, 689 (2004) (per curiam) (reversing the Court of Appeals based on the reasoning in the dissent, which would have affirmed the trial court's exercise of discretion in managing a trial by bifurcating the proceedings); In re Will of Hester, 320 N.C. 738, 742-43, 360 S.E.2d 801, 804-05 (1987) (noting that North Carolina Civil Procedure Rule 42(b) gives trial courts extremely broad discretion to sever or bifurcate civil proceedings when doing so furthers convenience and avoids prejudice (citation omitted)); Barfield, 298 N.C. at 350, 259 S.E.2d at 541-42 (recognizing the constitutionality of statute mandating bifurcated capital trial proceedings); In re White, 81 N.C.App. 82, 85, 344 S.E.2d 36, 38 (citing In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984), and noting that when the statutes do not specify how the proceedings are to be conducted, but only that both stages must occur, trial judges may conduct the adjudication and disposition stages of a termination of parental rights proceeding concurrently, or they may hold a bifurcated proceeding in which the stages take place separately), disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986); see also State v. Kilby, ___ N.C.App. ___, ___ n. 5, 679 S.E.2d 430, 433 n. 5 (2009) (observing that the wording of the statute outlining the satellite-based monitoring program for sexual offenders, N.C.G.S. § 14-208.40B(c), allows for either a bifurcated or single proceeding, to take place in two phases, with that determination left to the trial judge). Like the statute at issue here, the statutes in each of these situations either explicitly provide for bifurcated proceedings or plainly contemplate that the proceeding take place in stages or phases. Thus, our case law demonstrates that, even bifurcated, a hearing is still treated as the same single proceeding or trial. See, e.g., In re Will of Hester, 320 N.C. at 745, 360 S.E.2d at 806 (Simple bifurcation of the sub-issues does not create two proceedings. In a bifurcated trial the entire action and all issues therein remain under the control of one court; bifurcation of issues normally results in only one judgment. (citation omitted)). The outcome here is consistent with our language in Hester: Whether or not the trial court bifurcates a sentencing proceeding, defendant will receive one, single sentencing judgment. [3] We have stated that a bifurcated trial is particularly appropriate where separate submission of issues avoids confusion and promotes a logical presentation to the jury and where resolution of the separated issue will potentially dispose of the entire case. Id. at 743, 360 S.E.2d at 804 (citations omitted). Such an approach is also consistent with our recognition that trial judges have broad discretion to supervise and organize the proceedings before them: The paramount duty of the trial judge is to supervise and control the course of the trial so as to prevent injustice. In discharging this duty, the court possesses broad discretionary powers sufficient to meet the circumstances of each case. This supervisory power encompasses the authority to structure the trial logically and to set the order of proof. Absent an abuse of discretion, the trial judge's decisions in these matters will not be disturbed on appeal. Id. at 741-42, 360 S.E.2d at 804 (citations omitted). This Court has long emphasized the inherent authority and discretion of trial judges: [A trial judge] is clothed with this power because of his learning and integrity, and of the superior knowledge which his presence at and participation in the trial gives him over any other forum. However great and responsible this power, the law intends that the Judge will exercise it to further the ends of justice, and though doubtless, it is occasionally abused, it would be difficult to fix upon a safer tribunal for the exercise of this discretionary power, which must be lodged somewhere. Moore v. Edmiston, 70 N.C. 382, 390, 70 N.C. 470, 481 (1874); see also State v. Davis, 317 N.C. 315, 318, 345 S.E.2d 176, 178 (1986) (The trial judge has inherent authority to supervise and control trial proceedings. The manner of the presentation of the evidence is largely within the sound discretion of the trial judge and his control of a case will not be disturbed absent a manifest abuse of discretion. (citations omitted)); State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985) (In this connection it is well settled that it is the duty of the trial judge to supervise and control the course of a trial so as to insure justice to all parties.). Equally important, we have recently noted in a capital case that heightened attention to procedural safeguards is necessary in cases of alleged mental retardation in order to protect against the inadvertent and unconstitutional execution of mentally retarded defendants. State v. Locklear, 363 N.C. 438, 461, 681 S.E.2d 293, 310 (2009). Only if we recognize the silence on bifurcation in N.C.G.S. § 15A-2005, and afford trial judges the discretionary flexibility to bifurcate the proceedings, do we conform with our recent jurisprudence in Locklear. Likewise, our seminal opinion in State v. Barfield , emphasizing the constitutional necessity of particularized consideration of the relevant aspects of the character and record of a convicted defendant in the application of the death penalty, 298 N.C. at 351, 259 S.E.2d at 542, requires us to resolve the ambiguity in N.C.G.S. § 15A-2000(e) by recognizing the guided discretion of trial judges to ensure a fair and impartial jury determination of a particular defendant's characteristics, including his possible mental retardation. In Locklear this Court also recognized the cautionary advice given by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which struck down as unconstitutional the execution of mentally retarded defendants: Identifying mentally retarded offenders can be an inherently difficult task requiring particular attention to procedural safeguards. See Atkins, 536 U.S. at 317 [122 S.Ct. at 2250], 153 L.Ed.2d at 348 (noting that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards). The difficulty of this task increases the likelihood that mentally retarded offenders will be unconstitutionally sentenced to death. See id. at 321 [122 S.Ct. at 2252], 153 L.Ed.2d at 350 (Mentally retarded defendants in the aggregate face a special risk of wrongful execution.). Locklear, 363 N.C. at 464, 681 S.E.2d at 312. Trial judges are best situated to evaluate the evidence presented of a defendant's mental retardation, [4] and to determine if bifurcating the sentencing proceeding into two distinct phases would promote both fairness and the interests of justice. The record here reflects that, before denying defendant's motion for bifurcation, the trial judge heard extensive, well-reasoned argument on the issue from both the prosecution and the defense. Defendant's trial counsel explicitly outlined what such a bifurcated proceeding would look like, reasoning to the trial court: Let's go ahead and determine up front [defendant's mental retardation]. Put on the evidence that goes towards mental retardation: let's talk about that. And then if the jury finds that, that is fine. If they don't find that, at least they had a chance to determine that issue without a lot of other baggage and those types of things coming in, and then we proceed. [The State] would not have to put the witness on a second time. The same juror has heard that [evidence of mental retardation]. We are not losing any time. I am just asking that that issue [of mental retardation] be determined up front without allowing the state [sic] to put everything in that they possibly would to try to inflame a jury and try to get them all jacked up ready to do anything. Let's focus on this issue. Notwithstanding these arguments, the trial court denied defendant's motion. Nothing in the record or transcript indicates that the trial court's decision was arbitrary or manifestly unsupported by reason. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citing Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980)). Nor is there any suggestion that the trial court erroneously believed it lacked the discretion to grant the motion. State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 376 (1997) ([T]here is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented. (citations and internal quotation marks omitted)). Accordingly, we see no abuse of discretion in the trial court's decision to deny defendant's motion to bifurcate the sentencing proceeding.",analysis
+272,6493113,1,4,"Before the court can consider the parties’ points of error, it must first resolve a jurisdictional argument. Kernan v. Tanaka, 75 Haw. 1, 15, 856 P.2d 1207, 1215 (1993) (cert. denied, 510 U.S. 1119, 114 S.Ct. 1070, 127 L.Ed.2d 389 (1994)) (“Appellate courts have an obligation to insure they have jurisdiction to hear and determine each case.”) The Commission, HC & S, and WWC argue that Hui/MTF and OHA do not have a right of appeal, and therefore the court has no jurisdiction in this matter. Hui/MTF and OHA both contend that the court’s opinion in Waiahole I resolves the issue and clearly establishes that the court has jurisdiction over appeals of IIFS determinations. As explained below, the court holds that it has jurisdiction in this case, and takes this opportunity to elaborate on the jurisdictional analysis from Waiahole I. The water code provides that “[¿judicial review of rules and orders of the commission under this chapter shall be governed by chapter 91.” HRS § 174C-12. HRS § 91-14, the portion of chapter 91 relating to judicial review, states that, “[ajny person aggrieved by a final decision and order in a contested case ... is entitled to judicial review thereof under this chapter.” HRS § 91-14(a) (1993). In previous eases interpreting this provision, the court has defined “contested ease” as “an agency hearing that 1) is required by law and 2) determines the rights, duties, or privileges of specific parties.” Pele Defense Fund v. Puna Geothermal Venture, 71 Hawai'i 64, 67-68, 881 P.2d 1210, 1213-14 (1994). Further, the court determined that a hearing is “required by law” if it is required by statute, by administrative rule, or by constitutional due process. Id. at 68, 881 P.2d at 1214. In this ease, neither statute nor administrative rule mandates a hearing to establish an IIFS. HRS § 174C-71 10 governs the Commission’s actions vis-a-vis the state’s In-stream Use Protection Program, and nothing in that statute requires the Commission to hold a hearing before establishing or amending an IIFS. In fact, the code indicates that the Commission need not hold a hearing; the Code defines the IIFS as “a temporary in-stream flow standard of immediate applicability, adopted by the commission without the necessity of a public hearing, and terminating upon the establishment of an instream flow standard.” HRS § 174C-3. The Commission’s administrative rules are identical to the water code in relevant regard, so there is no rule-based requirement to hold a hearing. 11 This does not foreclose judicial review of the Commission’s actions, as there remains a third route whereby a hearing may be “required by law”: there may be a constitutional due process requirement. In determining whether a party has a due process right to an administrative hearing, the court must first resolve whether the party’s asserted interest is “ ‘property’ within the meaning of the due process clauses of the federal and state constitutions.” Sandy Beach Defense Fund v. City Council of City and Cnty. of Honolulu, 70 Haw. 361, 376, 773 P.2d 250, 260 (1989) (citing Aguiar v. Hawai'i Housing Auth., 55 Haw. 478, 495, 522 P.2d 1255, 1266 (1974)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The court has had several opportunities to interpret due process property interests as affected by the water code. In the ease most similar to the current case, Waiáhole I, this court considered new and existing WUPA and IIFS for the Waiáhole ditch system, a water system that provides water from Oahu’s windward side to the island’s leeward side. Waiáhole I, 94 Hawai'i at 110, 9 P.3d at 422. Waiáhole I contains extensive analysis and interpretation of the water code, and will be discussed in subsequent sections of this opinion. Regarding jurisdiction, however, the opinion provides only brief analysis. First, the court explained that it had jurisdiction over the appeal of the existing WUPA because both the HRS and the administrative rules required a hearing as part of the WUPA process. Waiáhole I, 94 Hawai'i at 119-20 n. 15, 9 P.3d at 431-32 n. 15. Second, with regard to the petitions to amend the IIFS and the new WUPA, the court stated that “constitutional due process mandates a hearing in both instances because of the individual instream and offstream ‘rights, duties, and privileges’ at stake.” Id. (quoting Puna Geothermal, 77 Hawai'i at 68, 881 P.2d at 1214). The parties dispute the import of the above-quoted sentence. Hui/MTF argues that this “holding” from Waiáhole I “made clear that [the court] had independent jurisdiction over IIFS petitions.” The Commission, HC & S, and WWC argue that the Waiáhole I court’s citation to Puna Geothermal indicates that the court had jurisdiction over the IIFS in that case only because the appeal also challenged the Commission’s resolution of WUPA; they argue that because no party appealed from the WUPA in the present case, Waiáhole I is distinguishable and the court, therefore, lacks jurisdiction. First, a review of Puna Geothermal. There, the court considered whether it had jurisdiction over an appeal following the Department of Health’s (“DOH”) resolution of Puna Geothermal Ventures’s (“PGV”) applications for permits to build a well field and a power plant. 77 Hawai'i at 66, 881 P.2d at 1212. The DOH held two “public informational hearings,” denied PGV’s request for a CCH, and ultimately granted PGV’s permit applications. Id. When the Pele Defense Fund (“PDF”) sought judicial review of the DOH’s actions, PGV filed a motion to dismiss, arguing that the court lacked jurisdiction because there had been no contested case. Id. On appeal, this court concluded that PDF had a constitutional due process right to a hearing before the DOH. Id. at 68, 881 P.2d at 1214. The court held, as a matter of constitutional due process, an agency hearing is also required where the issuance of a permit implicating an applicant’s property rights adversely affects the constitutionally protected rights of other interested persons who have followed the agency’s rules governing participation in contested cases. Id. (emphasis added). The court concluded that the hearings in that case satisfied the “contested case” requirement for purposes of judicial review under HRS § 91-14. Id. at 71, 881 P.2d at 1217. The Commission, WWC, and HC & S argue that the Waiáhole I court’s citation to Puna Geothermal indicates that the court exercised jurisdiction over the appeal of the IIFS only because the parties also appealed the Commission’s resolution of permit applications. Hui/MTF reads Waiáhole I as holding that the court has independent jurisdiction to review IIFS. The court concludes that the jurisdictional language from Waiáhole I is susceptible to both interpretations. However, the court’s due process cases indicate that the court has jurisdiction to hear Hui/ MTF’s appeal because the IIFS, independent of any WUPA, affects property interests of Hui/MTF’s members. John Duey, President of Hui O Ná Wai ‘Ehá, testified that the Hui’s members “live, work, and play in the areas of Ná Wai ‘Ehá,” and that the Hui is “committed to restoring these streams’ natural and cultural values and protecting Maui’s quality of life for present and future generations.” Tao Stream runs through the property owned by Duey and his wife, Marie Ho'oululáhui Lindsey Duey. Marie is native Hawaiian; she gave their property her Hawaiian name: Ho'oul-uláhui. Ho'oululáhui contains at least seventeen ancient lo'i 12 , but the Dueys currently cultivate only two small lo'i with stream water, which they take directly from, and return to, ‘lao Stream. John testified that he would like to restore the remaining lo'i on his land, but that “[t]he only limiting factor is the availability of water.” Ron Sturtz, President of the Board of Directors of Maui Tomorrow Foundation, Inc., submitted a letter stating that the organization’s supporters engage in traditional and customary gathering practices. One such supporter, Roselle Keli'ihonipua Bailey, a kuma hula and native Hawaiian practitioner, submitted written testimony explaining the gathering practices she would like to practice in ‘lao Stream and its nearshore waters, and testifying that the lack of flowing water makes her practices impossible. Kalo 13 farmer and Hui O Ná Wai ‘Ehá member Hóküao Pellegrino testified that his 2.175-acre farm, Noho'ana, contains several restored ancient lo'i, ready to be cultivated. The Noho'ana lo'i are irrigated via a traditional ‘auwai 14 that diverts water from Wai-kapü Stream, and the water that leaves the lo'i returns to the Stream. Pellegrino testified that he is only able to cultivate two of his lo'i at a time because of insufficient water in Waikapü Stream. The interests of the Dueys, Roselle Bailey, and HSküao Pellegrino are selected examples of testimony presented to the Commission, but dozens of others testified about their similar interests. Indeed, in its FOF/COL D & 0, the Commission found that “Cultural experts and community witnesses provided uncontroverted testimony regarding limitations on Native Hawaiians’ ability to exercise traditional and customary rights and practices in the greater Ná Wai ‘Ehá area due to the lack of freshwater flowing in Ná Wai ‘Ehá’s streams and into the nearshore marine waters.” The question before the court today, a question we answer in the affirmative 15 , is whether these interests constitute “property interests” for the purpose of due process analysis. The court has explained that a party has a property interest in the subject of litigation for purposes of due process analysis if the party has “more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Sandy Beach Defense Fund, 70 Haw. at 376, 773 P.2d at 260. The court has cited with approval the U.S. Supreme Court’s analysis that: Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Int’l Broth. of Painters and Allied Trades v. Befitel, 104 Hawai'i 275, 283, 88 P.3d 647, 655 (2004) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). See also Aguiar v. Hawai’i Housing Auth., 55 Haw. 478, 496, 522 P.2d 1255, 1267 (1974) (citing federal authority to support the conclusion that “a benefit which one is entitled to receive by statute constitutes a constitutionally-protected property interest”). The interests asserted by Hui/MTF have a statutory basis in the water code. As stated in HRS § 174C-101, (c) Traditional and customary rights of ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 shall not be abridged or denied by this chapter. Such traditional and customary rights shall include, but not be limited to, the cultivation or propagation of taro on one’s own kulea-na and the gathering of hihiwai, opae, o'opu, limu, thatch, ti leaf, aho cord, and medicinal plants for subsistence, cultural, and religious purposes. (d) The appurtenant water rights ofkulea-na and taro lands, along with those traditional and customary rights assured in this section, shall not be diminished or extinguished by a failure to apply for or to receive a permit under this chapter. HRS §§ 174C-101(e) and (d) (1993). HRS § 174C-63 is yet another section of the water code that entitles native Hawaiian farmers to their water; it states: “Appurtenant rights are preserved. Nothing in this part shall be construed to deny the exercise of an appurtenant right by the holder thereof at any time.” HRS § 1740-63 (1993). HC & S argues that these interests do not rise to the level of property for due process purposes, citing Sandy Beach Defense Fund, for support that native Hawaiian practices are similar to “aesthetic and environmental interests” which the court has held to be insufficient to establish a property interest. In that case, the City and County of Honolulu issued Special Management Area (“SMA”) use permits for a proposed development. 70 Haw. at 364, 773 P.2d at 253. Area residents and community groups alleged that the County was required to hold a CCH before issuing the permits, expressing concerns “regarding the development’s impact on coastal views, preservation of open space, traffic, potential flooding, and sewage treatment.” Id. The supreme court held that the community groups were not entitled to a CCH because their “aesthetic and environmental” claims did not constitute “legitimate claims of entitlement.” Id. at 376, 773 P.2d at 260. The court also noted that the community groups did not cite authorities to support their argument, and that none of the area residents owned property contiguous to the development. Id. at 377, 773 P.2d at 261. Sandy Beach is readily distinguishable. First, the affected parties before the court today own or reside on land in the area of Ná Wai ‘Ehá, and rely upon that water to exercise traditional and customary rights, including kalo farming. Second, as cited above, there is statutory authority found throughout the water code to support their entitlement to water for kalo farming. HC & S also argues that downstream kalo farmers cannot assert property interests to more water than they currently use because it “would be a grave departure from the principle that ‘the range of interests protected by procedural due process is not infinite.’ ” (quoting Int'l Bd. of Painters & Allied Trades v. Befitel, 104 Hawai'i at 283, 88 P.3d at 655). This argument is rejected for several reasons. First, as both Hui/MTF and OHA argue, the fact that HC & S and WWC have historically deprived downstream users of water does not negate those downstream users’ interest in the water. Second, neither statute quoted above provides for abandonment of appurtenant rights; in fact, the text specifically protects against abandonment by stating that appurtenant rights will “not be diminished or extinguished by a failure to apply for or to receive a permit.” HRS § 174C~101(d). Furthermore, as the court explained in Waiahole I, “The constitution and Code, [ ... ] do not differentiate among ‘protecting,’ ‘enhancing,’ and ‘restoring’ public instream values [like native Hawaiian rights], or between preventing and undoing ‘harm’ thereto.” 94 Hawai'i at 150, 9 P.3d at 462. The court also disagrees with the Commission’s, WWC’s, and HC & S’s argument that setting the IIFS in this case did not determine individual water rights. When the Commission issued a D & O retaining the existing IIFS for Tao and Waikapü Streams, it necessarily affected the Dueys’ and Pelle-grino’s access to water because it endorsed the upstream diversions that remove water from Tao and Waikapü Streams, apparently finding that the “importance” of those diversions outweighed the importance of downstream uses. HRS § 174C-71(2)(D). Though the conclusions above are sufficient to support today’s holding, the analysis of one more ease merits consideration. In Ko'olau Agr. Co., Ltd. v. Comm’n On Water Resource Mgmt. (“Ko’olau Ag.”), an agriculture company unsuccessfully sought review of the Commission’s designation of several 0‘ahu aquifers as Water Management Areas (“WMA”). 83 Hawai'i 484, 486, 927 P.2d 1367, 1369 (1996). The court explained that the company did not have a property interest in whether the aquifers in question received the WMA designation. Id. at 493, 927 P.2d at 1376. In so concluding, the court drew a distinction between WMA designations, which do not require a hearing, and WUPA decisions, which do require hearings. As the court explained, this disparity in procedure is “eminently logical given the difference between the issues presented for decision.” Id. First, the court noted the difference in analysis required before the two resolutions. When considering a WMA designation, the Commission must determine whether “the water resources in the area may be threatened by existing or proposed withdrawals or diversions of water.” Id. (quoting HRS § 174C-41(a)). Contrast a WUPA, where the Commission’s analysis is much more robust; the Commission must consider several factors when granting a WUPA, including whether the water use is “a reasonable-beneficial use as defined in [the Code];” whether the use is “consistent with the public interest;” and whether it is consistent with governmental land use plans. Id. at 492, 927 P.2d at 1375 (quoting HRS § 174C-48). Second, the court considered the necessity of judicial review. The court recognized that “the consequences of an erroneous [WMA] designation decision by the Commission do not indicate a need for judicial review because the rights of individual water users are fully protected in the permitting process.” Id. at 493, 927 P.2d at 1376. And third, the court noted that WMA designations do not affect the interests of any potential water users; the impact of such a designation is only that the user’s water source is subject to the Commission’s regulation, which does not, in and of itself, affect the user’s water rights. Id. Contrast a WUPA, where the outcome is a permit directly specifying a user’s rights to water. Id. All parties cite Ko’olau Ag. for assistance on the question of whether there is a property interest at stake in this case. The Commission, HC & S, and WWC argue that an IIFS determination is similar to designating a WMA because neither directly determines property rights. The court concludes that each of the factors listed above counsel in favor of judicial review in this case. First, the analysis the Commission must undertake in setting an IIFS is complicated. The statute specifies the factors the Commission must consider: In considering a petition to adopt an interim instream flow standard, the commission shall weigh the importance of the present or potential instream values with the importance of the present or potential uses of water for noninstream purposes, including the economic impact of restricting such uses. HRS § 174C-71(2)(D). As the voluminous record in this case readily establishes, each of these factors is complex and involves significant and thorough analysis and factfind-ing. Unlike establishing a WMA, the analysis supporting a determination of an IIFS requires more than a yes/no decision, but rather requires the Commission to weigh serious and significant concerns, including: “the need to protect and conserve beneficial instream uses of water,” “the importance of the present or potential instream values,” “the importance of the present or potential uses of water for noninstream purposes,” and “the economic impact of restricting such uses.” HRS § 174C-71(2)(C) and (D). Indeed, in Waiahole I, the Commission itself advocated for due process rights in proceedings to determine IIFS. One of the Commission’s own Orders, cited in the court’s opinion with approval, states A petition to modify instream flows at ... specific locations is a fact-intensive, individualized determination at each site that may directly affect downstream and off-stream interests.... [I]ndividual claims may need to be examined. The site-specific inquiry required in this ease is not compatible with rale making, but with a method which provides the due process procedures necessary to assess individual interests. 94 Hawai'i at 152, 9 P.3d at 464. Second, the ramifications of an erroneous IIFS could offend the public trust, and is simply too important to deprive parties of due process and judicial review. As the court stated in Waiahole I, “[t]he public trust ... is a state constitutional doctrine. As with other state constitutional guarantees, the ultimate authority to interpret and defend the public trust in Hawai'i rests with the courts of this state.” 94 Hawai'i at 143, 9 P.3d at 455. The courts serve an important function with regard to the water code; as the court noted in Waiahole I, “[t]he cheek and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.” Id. (quoting Arizona Cent. for Law in Pub. Interest v. Hassell, 172 Ariz. 356, 837 P.2d 158, 168-69 (App.1991), review dismissed, 172 Ariz. 356, 837 P.2d 158 (App.1992) (brackets and citation omitted)). Finally, in Ko'olau Ag., the court specified that there was little necessity for judicial review because the permitting process would adequately protect individual rights. 83 Hawai'i at 493, 927 P.2d at 1376. This protection does not exist in today’s case for several reasons. First, as the Commission itself acknowledges, setting an IIFS is a final action and it would be “inappropriate for the Commission to reevaluate the IIFS during the upcoming surface water use permit proceedings.” This argument indicates that downstream users cannot ask the Commission to raise the IIFS to a level that would accommodate a permit to fulfill their kuleana needs. Second, as the court noted in Waiahole I, the water code envisions that “Once the Commission translates the public interest in instream flows into ‘a certain and manageable quantity[, t]he reference to consistency with the public interest in the definition of reasonable beneficial use likewise becomes a reference to that quantity.’” 94 Hawai'i at 149, 9 P.3d at 461 (quoting Douglas W. MaeDougal, Private Hopes and Public Values in the “Reasonable Beneficial Use” of Hawai'i’s Water: Is Balance Possible?, 18 U. Haw. L.Rev. 1, 62 (1996)). In short, the IIFS matter. They have both immediate and lasting impacts on individual water users. They are also an opportunity for the Commission to consider the needs of our state’s water systems. “Under the [Water] Code, [ ... ] instream flow standards serve as the primary mechanism by which the Commission is to discharge its duty to protect and promote the entire range of public trust purposes dependent upon instream flows.” 94 Hawai'i at 148, 9 P.3d at 460. The court therefore holds that Hui/MTF had a due process right to a hearing, and therefore has a right to judicial review, in this case.",jurisdiction
+273,1715096,1,6,"Although Appellant does not contest the sufficiency of the evidence for his conviction of first-degree murder, we must nevertheless independently determine whether the evidence is sufficient. See Brown v. State, 721 So.2d 274, 277 (Fla. 1998); Fla. R.App. P. 9.140(h). Based on our review, we find that there is competent, substantial evidence to support the verdict. We have outlined that evidence in detail above.",sufficiency of the evidence
+274,1288392,1,4,"The firm and Thomas cite Anco Mfg. & Supply Co., Inc. v. Swank, 524 P.2d 7, 13 (Okla. 1974), for the proposition that a stranger to the prior adjudication may assert issue preclusion defensively, as long as the party against whom it is being asserted was a party to the prior action. [11] Generally, the application of issue preclusion requires an identity of the parties to both proceedings. [12] However, in Anco this Court did not require that the parties be identical where a party who assumed a position in one adjudication attempted to assert an inconsistent position against another party in a subsequent lawsuit. We allowed the stranger to the first action to defensively assert estoppel when the party against whom the estoppel was being asserted was attempting to assert inconsistent facts in the second action. Anco is not dispositive of the present case because the contractor is not attempting to assert inconsistent facts in her lawsuit against the firm and Thomas from those she asserted in the arbitration proceeding. Regardless of whether the parties must be identical in both proceedings or whether only the party against whom the estoppel is being asserted must be the same, issue preclusion applies only to those issues actually adjudicated and necessary or essential to the prior judgment. [13] The party relying on a claim of issue preclusion bears the burden of establishing that the prior litigation has actually determined the question of fact sought to be precluded. [14] The test is whether the question of fact in issue in the second action is a question which was actually determined in the first adjudication. [15] In French v. Jinright & Ryan, P.C., Architects, 735 F.2d 433, 436 (11th Cir.1984), a contractor sued an architect for damages due to construction delays allegedly caused by the architect. Prior to the lawsuit, the contractor arbitrated disputes over the construction contract with the owner alleging that the architect was the cause of delays of the construction project. The contract excluded the architect as a party to the arbitration without written consent. The contractor was awarded partial damages in the arbitration. The court found that without a delineation of the disposition of the issues in the arbitration proceeding, there was no basis for determining whether the claims against the architect were precluded. The record was insufficient to determine whether: 1) all the allegations relating to architect were asserted against the owner in arbitration; 2) the claims relating to the architect were decided on the merits or on the ground that the owner was not responsible, even if the architect might be; or 3) whether the arbitrator awarded partial damages because it was determined that the owner was not liable because it was not the party responsible for causing the harm. Here, like the facts in French, the arbitration award does not clearly reflect exactly what issues were actually determined or whether all the issues raised were disposed of by the arbitrator. The award does not set forth any fact findings with respect to any claims made by either party in the arbitration proceeding. Nor does it set forth any reasons for rejection of any claim which either party may have made. [16] The only issue clearly decided in the arbitration proceeding was whether the contractor was entitled to damages from the power authority pursuant to the contractor/power authority construction contract. The arbitrator found that the power authority owed the contractor for some of the work which she completed on the project, and that the contractor owed the power authority for construction delays. It was not necessary for the arbitrator to find that the plans were negligently prepared and designed, or that Thomas acted fraudulently to resolve the issue decided in arbitration. The arbitrator could have decided the power authority's claims against the contractor on the grounds that: 1) the contractor was responsible for the construction delays by her own failure to comply with any of the terms of contract regardless of whether the firm and Thomas negligently designed the plans and specifications or acted fraudulently; or 2) the power authority was not the party responsible for causing the contractor's harm, even if the firm and Thomas might be. Nothing in the award indicates that the contractor's claims against the firm and Thomas were actually decided on the merits in the arbitration proceeding between the power authority and the contractor. Even if such a determination may have been made, the contractor should not be barred from litigating her negligence and fraud claims against the firm and Thomas when she was prevented from bringing and fully litigating her claims against them in the arbitration proceeding. [17] Accordingly, issue preclusion does not apply under the facts presented. The recovery of damages is a jury question. [18] The contractor may have had an opportunity to litigate the issue of damages relating to the power authority. However, even if she raised the issue of whether she was partially damaged by the firm and Thomas, the arbitrator lacked the authority to award the contractor any damages which may have been caused by them because they were not parties to the arbitration agreement or proceedings. Had the contractor been able to bring her claims for damages against the power authority and the firm and Thomas in one proceeding, she would have had the opportunity to fully litigate the issue of her damages. [19] Under those circumstances, the trier of fact may have determined that she was entitled to damages from the power authority for the work she completed on the contract as well as any damages that the contractor was able to prove she was entitled to from the firm and Thomas. [20] Accordingly, the contractor might have been awarded the full contract price and any other damages she was entitled to from the firm and Thomas. A jury may determine that the contractor has been paid for the full extent of the injuries suffered as the result of the disputes which arose out of the construction project when the power authority paid her damages pursuant to the arbitration award. However, a jury may also determine that the firm and Thomas acted negligently and fraudulently and, were it not for the negligence and fraud of the firm and Thomas, the contractor would have been able to comply with the contract terms and would have been paid for the full contract price. A material fact question exists concerning damages. [21]",issues
+275,2135694,1,1,"Tracy McGrew, defendant, appeals from his conviction for first-degree kidnapping. Iowa Code §§ 710.1-.2 (1991). The State charged McGrew with first-degree kidnapping, first-degree burglary, and escape from custody. A jury found McGrew guilty on all three counts. The district court sentenced McGrew to life imprisonment on the kidnapping charge. McGrew appealed from his kidnapping conviction. The court of appeals affirmed McGrew's conviction. We granted McGrew's request for further review. On review, McGrew asserts the district court erred in failing to grant his motion for directed verdict based on an insufficiency of evidence to support his kidnapping conviction. We affirm.",introduction
+276,1059552,1,4,"On appeal, Lovitt raises certain arguments that we have resolved in previous decisions. Since we find no reason to modify our previously expressed views, we reaffirm our earlier holdings and reject the following arguments: A. Imposition of the death penalty constitutes cruel and unusual punishment in violation of the United States Constitution and the Constitution of Virginia. Rejected in Johnson v. Commonwealth, 259 Va. 654, 667, 529 S.E.2d 769, 776 (2000); Yarbrough v. Commonwealth, 258 Va. 347, 360 n. 2, 519 S.E.2d 602, 607 n. 2 (1999); Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996). B. The future dangerousness aggravating factor is unconstitutionally vague because (1) it requires jurors to reach a finding based on the confusing standard of a probability beyond a reasonable doubt; and (2) the failure to provide jury instructions regarding the meaning of the term future dangerousness violates the United States Constitution and the Constitution of Virginia. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at 776; Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix v. Commonwealth, 257 Va. 292, 299, 513 S.E.2d 642, 647, cert. denied, 528 U.S. 873, 120 S.Ct. 177, 145 L.Ed.2d 149 (1999); Williams v. Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994), cert. denied, 515 U.S. 1161, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995); Smith v. Commonwealth, 219 Va. 455, 476-78, 248 S.E.2d 135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). C. The future dangerousness aggravating factor unconstitutionally permits consideration of unadjudicated conduct. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at 776; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Williams, 248 Va. at 536, 450 S.E.2d at 371. D. Virginia's penalty phase instructions do not adequately instruct the jury concerning mitigation. Rejected in Buchanan v. Angelone, 522 U.S. 269, 275-76, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Yarbrough, 258 Va. at 360 n. 2, 519 S.E.2d at 607 n. 2; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Swann v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S. 889, 115 S.Ct. 234, 130 L.Ed.2d 158 (1994). E. The post-verdict review of the death sentence by the trial court does not satisfy constitutional standards because the trial court may consider hearsay evidence contained in a pre-sentence report and is not required to set aside the death sentence upon a showing of good cause. Rejected in Johnson, 259 Va. at 667-68, 529 S.E.2d at 776; Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299-300, 513 S.E.2d at 647; Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-76, cert. denied, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994). F. The trial court's refusal to permit the defendant to question prospective jurors individually during voir dire violates the defendant's constitutional right to a fair and impartial jury. Rejected in Cherrix, 257 Va. at 300, 513 S.E.2d at 647; Goins, 251 Va. at 453, 470 S.E.2d at 122; Swann, 247 Va. at 228, 441 S.E.2d at 200. G. The trial court's refusal to permit the defendant to make additional peremptory strikes as an added procedural safeguard in death penalty cases fails to ensure the defendant's constitutional rights. Rejected in Walker, 258 Va. at 64, 515 S.E.2d at 571; Clagett v. Commonwealth, 252 Va. 79, 85, 472 S.E.2d 263, 266-67 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997); Swann, 247 Va. at 227, 441 S.E.2d at 199. H. This Court's proportionality review in death penalty cases, as presently conducted, unconstitutionally denies defendants meaningful review because this Court fails to give appropriate consideration to cases in which sentences of life imprisonment are imposed. Rejected in Bailey v. Commonwealth, 259 Va. 723, 740-41, 529 S.E.2d 570, 580-81 (2000).",issues
+277,4561130,1,1,"Cameo S. and Aaron S. were married on July 15, 2018. Approximately 10 months later, Cameo gave birth to a daughter. Aaron was present for the birth and was listed as the father on the child’s birth certificate. 1 Genetic testing performed a few months later showed Ian K. was the child’s biological father. Based on the test results, the State filed a complaint in the district court for Lancaster County seeking to establish Ian’s paternity. On the State’s motion, the action was transferred to the separate juvenile court, which already had jurisdiction over the child due to an abuse/neglect adjudication 2 involving Cameo but not Aaron. 3 1 See Neb. Rev. Stat. § 71-640.01 ((Reissue 2018) (when mother married at time of conception or birth, name of husband entered on birth certificate as child’s father unless court establishes paternity in another or mother and husband execute affidavits attesting husband is not father). 2 See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). 3 See, § 43-247(10) (juvenile court has jurisdiction over “[t]he paternity or custody determination for a child over which the juvenile court already has jurisdiction”); Neb. Rev. Stat. § 43-1411.01 (Cum. Supp. 2018) (county court or separate juvenile court may determine paternity if already has jurisdiction over child). - 374 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 State’s Paternity Action The State’s complaint alleged that during the marriage of Cameo and Aaron, a child was born, but the child’s biological father was Ian, not Aaron. The State prayed for an order “finding that [Aaron] is not the biological father of said minor child [and] that [Ian] is the biological father of said child.” It is undisputed that at the time the child was born, and at the time of trial in this matter, Cameo and Aaron were married. At trial, a caseworker from the Department of Health and Human Services (DHHS) testified the child became a ward of the State immediately after birth, and the child had never lived with Cameo or Aaron. The DHHS caseworker testified that Aaron had always expressed a desire to be the child’s father and had visited the child regularly while she was in foster care. According to the caseworker, Aaron stopped visiting for a time after he learned of the genetic test results, but he had resumed visitation with the child by the time of trial. The caseworker testified that Ian had no contact with the child and had “strenuously advocated” to be allowed to relinquish whatever rights he may be found to have with respect to the child. The caseworker did not consider either Aaron or Ian an “ideal father,” but she testified that if Aaron remained the legal father after the hearing, DHHS would provide him serv­ ices to address “whatever issues” he may be found to have. Aaron testified he wanted to remain the child’s father and was willing to participate in any services DHHS could offer him. He expressly stated he was willing to take full responsibility for the child, including financial responsibility. Aaron testified that he no longer wished to be married to Cameo and had commenced divorce proceedings that morning. Our appellate record does not contain any other information regarding the status of the dissolution proceeding. At the conclusion of the evidence, the State asked the court to “dis-establish” Aaron as the child’s legal father and to establish Ian as the child’s father so he could effectively relinquish his rights. The State acknowledged that Aaron wanted to - 375 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 remain the child’s father, but it suggested without elaboration that Aaron’s goal was to “circumvent the adoption process.” Ian’s counsel asked the court to dismiss the State’s paternity action, arguing that despite the results of the genetic testing, Ian had not signed an acknowledgment of paternity and Aaron remained the child’s legal father. Aaron’s counsel agreed, arguing that at the time of trial, Aaron was the child’s legal father and wanted to remain so. Court’s Order The separate juvenile court entered an order which purported to disestablish Aaron as the child’s father and to establish Ian as the child’s biological father. As to Aaron, the court found: While he was the legal father of [the child] at her birth, the evidence clearly and convincingly shows that, when considering her age [and] her previous relationship with [Aaron] there is no significant evidence that [the child] could benefit from establishing paternity with [Aaron and] it is in the best interest of [the child] to disestablish [Aaron] as her legal father. And as to Ian, the court found “he is also not a very appealing choice to be the legal and/or biological father” of the child. But the court found the genetic test results clearly established Ian as the child’s biological father, and it granted the State the relief sought in its complaint. Aaron timely appealed, and we moved the case to our docket on our own motion. ASSIGNMENTS OF ERROR Aaron assigns, summarized, that the juvenile court erred in disestablishing his paternity and in establishing Ian as the child’s father.",facts
+278,2603660,1,1,"Appellant, Wyoming Workers' Compensation Division (Division), asks whether the district court: I.    lack[ed] statutory authority and jurisdiction to enter an order awarding attorney fees for representation of appellee before the Office of Administrative Hearings. II.    err[ed] as a matter of law in holding a hearing and taking additional evidence regarding attorney fees for representation of appellee before the Office of Administrative Hearings. III.    err[ed] as a matter of law by substituting its judgment on the amount of attorney's fees and costs [] reasonably incurred in the representation of appellee before the Office of Administrative Hearings. IV.    err[ed] as a matter of law by failing to follow W.S. 16-3-114(c) when entering its findings and order. Appellee, James L. Brown (Brown), asks whether the district court: 1.    lack[ed] authority and jurisdiction to change the order of the Office of Administrative Hearings regarding the award of attorney fees and costs for representation of appellee? 2.    err[ed] as a matter of law in holding a hearing and taking additional evidence regarding attorney fees for representation of appellee before the Office of Administrative Hearings? 3.    after holding a hearing and taking additional evidence, err[ed] as a matter of law by entering an order directing the Workers' Compensation Division to pay the amount of attorney fees and costs reasonably incurred in the representation of appellee before the Office of Administrative Hearings? 4.    err[ed] as a matter of law when omitting from its decision specific reference to one of the alternate legal conclusions set forth in section 16-3-114(c) of Wyoming's Administrative Procedure Act? We address these issues within the substantive context presented of the injured worker's right to competent counsel and the counsel's right to reasonably adequate compensation for legal services.",issues
+279,2455414,1,2,"¶ 9 This court has original jurisdiction over writs of quo warranto or mandamus, but only appellate and revisory jurisdiction over writs of prohibition. Wash. Const. art. IV, § 4. Nonetheless, we can issue a writ to prohibit a state officer from exercising a mandatory duty. Wash. State Labor Council v. Reed, 149 Wash.2d 48, 55-56, 65 P.3d 1203 (2003). The only relief requested by petitioners in their petition against state officer was a writ of prohibition. Pet. Against State Officer at 1-2. In later briefings, petitioners expanded this remedy to include a writ of mandamus. Accordingly, we treat petitioners' action as one for mandamus. ¶ 10 Mandamus is an extraordinary remedy appropriate only where a state official is under a mandatory ministerial duty to perform an act required by law as part of that official's duties. Cmty. Care Coal. v. Reed, 165 Wash.2d 606, 614, 200 P.3d 701 (2009). The mandate must specify the precise thing to be done or prohibited. Walker v. Munro, 124 Wash.2d 402, 407, 879 P.2d 920 (1994) (citing Clark County Sheriff v. Dep't of Soc. & Health Servs., 95 Wash.2d 445, 450, 626 P.2d 6 (1981)). And the mandate must define the duty with such particularity `as to leave nothing to the exercise of discretion or judgment.' SEIU Healthcare 775NW. v. Gregoire, 168 Wash.2d 593, 599, 229 P.3d 774 (2010) (emphasis omitted) (internal quotation marks omitted) (quoting State ex rel. Clark v. City of Seattle, 137 Wash. 455, 461, 242 P. 966 (1926)). ¶ 11 Petitioners present two related arguments. First, petitioners argue that sections 204(3) and 306(17) of the 2009-2011 transportation budget violate Washington Constitution article II, section 40 restrictions on the expenditure of motor vehicle fund moneys. Petitioners assert that these two transportation provisos impose a duty to value and transfer the two center lanes. Since the center lanes were constructed, in part, using motor vehicle fund moneys, petitioners' reason that any transfer of the lanes would essentially be an unlawful diversion of motor vehicle fund moneys. Second, petitioners broadly argue that article II, section 40 prohibits the State from entering into any agreement with Sound Transit for use of the two center lanes of I-90 for high capacity light rail.",analysis
+280,1656026,1,1,"¶ 2. James Claudy Felder was indicted for felony murder by a Pike County Grand Jury, and he subsequently entered a plea of guilty to manslaughter. At sentencing, the circuit court imposed upon Felder a term of 20 years in prison, payment of a $10,000 fine and an assessment of $10,000 into the Mississippi Crime Victims' Compensation Fund, which would include reimbursing the Crime Victim Compensation Fund for $2,891 of funeral expenses for the victim. The trial court order, however, sets out that Felder was ordered to pay only $1,000 to the Mississippi Crime Victims' Compensation Fund. Subsequently, Felder filed a motion for post-conviction collateral relief asserting that his plea was involuntary, that he was denied effective assistance of counsel and that his sentence was excessive. The circuit court denied the claims noting that Felder was specifically advised of the maximum sentence that could be imposed and that he expressed complete satisfaction with his attorney. ¶ 3. Felder now appeals the denial of his post-conviction motion asserting the same claims here as he did in the trial court. In this appeal, we consider whether the circuit court erred in denying Felder's motion for post-conviction relief. We affirm on all issues except the amount to be paid into the Mississippi Crime Victims' Compensation Fund, and remand for the limited purpose of clarification of the amount to be paid.",facts
+281,1694840,1,3,"When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676, 678 (La.1984). That standard states that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Captville at 678. The Louisiana Legislature codified this standard in La.C.Cr.P. art. 821 which applies to post-verdict motions for acquittal based on insufficiency of the evidence. Therefore, on appeal, [a]n appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. As stated by this court in State v. Chism, 436 So.2d 464, 470 (La.1983), La. R.S. 15:438 may not establish a stricter standard of review than the more general reasonable juror's reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. Captville at 678.",sufficiency of the evidence
+282,2823378,1,1,"An employee, relying upon the part performance exception to the statute of frauds, alleged that his former employer breached an oral contract to convey real estate. Gerald Ficke claimed that the employer promised him 80 acres of farmland if he continued his employment for a period of 10 years. The Nebraska Court of Appeals affirmed a decree in Ficke’s favor, concluding that he had proved part performance.1 Although we ultimately agree that Ficke proved part performance, we disapprove of the Court of Appeals’ reliance upon Ficke’s testimony as to his intent. To prove part performance, the alleged acts of performance must establish the exception without the 1 See Ficke v. Wolken, 22 Neb. App. 587, 858 N.W.2d 249 (2014). - 484 - Nebraska A dvance Sheets 291 Nebraska R eports FICKE v. WOLKEN Cite as 291 Neb. 482 aid of such testimony. Because there was other sufficient evidence, we affirm.",introduction
+283,1896382,1,2,"We review de novo a trial court's ruling on a Rule 60(b)(4), Ala. R. Civ. P., motion. See Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000). `The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).'  Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001).",standard of review
+284,2246164,1,3,"Appellate review of issues of statutory construction is de novo. ( Redevelopment Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74, 89 Cal. Rptr.2d 10.) The appropriate standard of appellate review of a ruling granting a criminal defendant's discovery motion is the abuse of discretion standard. ( People v. Superior Court ( Baez ) (2000) 79 Cal. App.4th 1177, 1186, 94 Cal.Rptr.2d 706.)",standard of review
+285,4557690,1,3,"We affirm Pattillo's felony-murder conviction based on the underlying inherently dangerous felonies of criminal discharge of a firearm at an occupied dwelling and aggravated endangering of a child and his sentence on the felony-murder conviction. And, although we hold aggravated assault cannot serve as the inherently dangerous underlying felony in this case, he does not ask us to reverse that conviction. We also affirm his convictions for felony discharge of a firearm and aggravated endangering of a child. Finally, we affirm his sentences. Affirmed. 31 WILSON, J., not participating. PATRICK D. MCANANY, Senior Judge, assigned.¹ JOHN L. WEINGART, District Judge, assigned.² _________________________ 1 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 118,941 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 2 REPORTER'S NOTE: District Judge Weingart was appointed to hear case No. 118,941 vice Justice Wilson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution. 32",conclusion
+286,1992508,1,7,"In summary, we find that disclosure of the autopsy report and toxicology test results would not amount to a clearly unwarranted invasion of privacy of the late Judge Quinn or his family under ž 13(1)(a) of the FOIA. Furthermore, we find that the physician-patient privilege is inapplicable to the facts of this case. Thus, ž 13(1)(a) and ž 13(1)(i) do not exempt the documents from disclosure. Finally, we also hold that there was no need for an evidentiary hearing in the trial court. Accordingly, we affirm the decision of the Court of Appeals.",conclusion
+287,4561149,1,1,"The State attempts to appeal from the district court’s order allowing the defendant to proceed in forma pauperis with his criminal appeal. The defendant filed an application, pursuant to Neb. Rev. Stat. § 29-2306 (Reissue 2016), to proceed in forma pauperis in his criminal appeal. The district court granted the application, ordering, pursuant to § 29-2306 and Neb. Rev. Stat. §§ 25-2305 and 25-2306 (Reissue 2016), that the defend­ ant did not have to pay the docket fees and costs associated with production of the transcript and bill of exceptions. The State now challenges that determination. The direct appeal was affirmed by the Nebraska Court of Appeals on May 26, 2020, 1 but the mandate setting forth the total amount of fees or costs due to the appellate court has not yet been issued in that appeal. 1 State v. Fredrickson, No. A-19-633, 2020 WL 2643875 (Neb. App. May 26, 2020) (selected for posting to court website). - 83 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. FREDRICKSON Cite as 306 Neb. 81",introduction
+288,2200604,1,23,The conduct of Respondent violated the following DRs: DR 1-102(A)(5)—prejudicial to the administration of justice; DR 1-102(A)(6)—adversely reflected on fitness to practice law.,conclusion
+289,2349960,1,2,"Judge Pugh held the Caroline County court to be utterly without jurisdiction in the ejectment suit because, he avowed Code, Art. 53, § 1, vests in the Montgomery County People's Court exclusive jurisdiction to try actions brought by a landlord against a tenant holding over. Neither the court nor Tenant's counsel (who put this contention in issue before Judge Carter) has directed our attention to, nor have we found, any authority in support of this somewhat startling proposition. The statute (Art. 53, § 1) which has been in force for over a century, provides a method for repossessing property by a summary proceeding before a justice of the peace. Trotter v. Lewis, 185 Md. 528, 536, 45 A.2d 329 (1946); Darling Shops v. Balto. Center, 191 Md. 289, 297, 60 A.2d 669 (1948). In the language of the statute (§ 1) the lessor    may make a complaint    to any justice of the peace    [in the county] wherein such real estate is situate. (Emphasis supplied.) The comment of Chief Judge Allan W. Rhynhart of the People's Court of Baltimore City, in his comprehensive article on the Maryland Law of Landlord and Tenant, is of interest: However, if the landlord desires to avail himself of the summary remedy provided by Article 53, Section 1, he must give three months' written notice to the tenant before the expiration of the term. If the landlord fails to give the notice,    then being barred from the summary proceedings which are brought in the People's Court, he must proceed in an action of ejectment in a court of higher jurisdiction. Rhynhart, Notes on the Law of Landlord and Tenant, 20 Md. L. Rev. 1, 29 (1960). In Glorius v. Watkins, 203 Md. 546, 551, 102 A.2d 274 (1954), the owner of the land sought to eject the occupant by means of a bill in equity. The language of Chief Judge Sobeloff, who spoke for the Court, seems especially appropriate: So here, fundamentally the appellee's object is to recover possession of a piece of real estate. Anticipating that the appellants would interpose the contract as a defense, the appellee asserted that it was of no effect because of breaches by the appellants, and because it had been superseded by a new relationship, that of landlord and tenant instead of vendor and vendee. Yet the appellee's main purpose was precisely what an action of ejectment could gratify — recovery of possession, with the incidental aim, as in Crook v. Brown, supra, to declare the anticipated defense groundless. Stinchcomb v. Realty Mortgage Co., 171 Md. 317, 322, 188 A. 790, 792; Finglass v. George Frank Sons Co., supra, 172 Md. at 136, 190 A. at 752; Punte v. Taylor, 189 Md. 102, 111, 53 A.2d 773, 777; Diener v. Wheatley, 191 Md. 690, 698, 62 A.2d 783, 786. Maryland Rules T 40, T 41 and T 42 should dispel any lingering doubt that the landlord has a free choice to proceed against a tenant either before a justice of the peace as provided in Art. 53, § 1, or in the circuit court as provided in Rule T 40. One of the oddities in the case is the fact that Landlords, as earlier noted, did bring a summary repossession action in the People's Court but were enjoined by Judge Pugh from pressing it.",jurisdiction
+290,4515749,1,1,"The issue in this error proceeding1 is whether a probation violation allegation asserting a law violation from a 1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018). - 54 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JEDLICKA Cite as 305 Neb. 52 new charge of possession of methamphetamine constitutes a “substance abuse . . . violation”2 having a prerequisite of 90 days of cumulative custodial sanctions. The district court determined it does and sustained Parris R. Jedlicka’s motion to quash an information for revocation of probation. Because we conclude that this allegation of a law violation is not a “substance abuse” violation for revocation of probation purposes, we sustain the exception and remand the cause for further proceedings.",introduction
+291,1796368,1,1,"To begin with, I do not believe this case should even be before the Court. In January 2005, the Franklin Circuit Court issued a temporary injunction against Stephenson. A motion for interlocutory relief was promptly filed with the Court of Appeals, and we transferred the motion to our own docket. In March 2005, rather than reaching the merits of the controversy, the Court issued a short Opinion and Order, upholding the temporary injunction on grounds that the trial court had not abused its discretion. Justice Keller, joined by Justice Scott, filed a vigorous dissent in which he argued that the majority failed to answer the more fundamental question of whether the circuit court, indeed any Kentucky court, had jurisdiction to pass on the issues raised by the litigants. Justice Keller reasoned, I think persuasively so, that because Section 38 of the Kentucky Constitution grants to the Senate the exclusive power to judge the elections, returns, and qualifications of its own members, the courts have no power, and thus no jurisdiction, to decide such issues. Justice Keller also concluded that the jurisdiction to decide the bona fides of a candidate, as allowed by KRS 118.176, ceases to exist once the election begins. Unfortunately, the Court chose not to publish its Opinion and Order, thus Justice Keller's dissent remained unpublished. But I happen to agree with Justice Keller's reasoning, both as to Section 38 and KRS 118.176, and think that the Court should have disposed of this case when it first had the chance in March 2005. I also agree that the question of jurisdiction is fundamental in this case. While the case's procedural posture has shifted extensively since Justice Keller wrote his dissent, it would be an exercise in repetition for me to attempt to recreate the substance of Justice Keller's extensive critique and in futility for me to try to surpass the quality of the opinion on those issues. I also think that Justice Keller's dissent should have been published initially. Therefore, I have decided to adopt and incorporate it into my own opinion as a statement of the fundamental principles underlying my own dissent. The following lengthy passage, demarcated by two sets of five asterisks, is the complete text of Justice Keller's dissent. [†]",jurisdiction
+292,2561837,1,2,"[¶ 3] Ms. Watts was a contract nurse who worked at the Wyoming Honor Farm. She usually arrived for work around 6:00 a.m. each day. Ms. Watts was typically alone in the medical offices until the other nurse arrived between 6:30 and 7:00 a.m. The medical offices were located in the basement of the administration building, and inmates could access them from the east door without being observed. Sometime before 7:00 a.m. on April 15, 2004, Floyd Grady, an inmate at the Honor Farm, murdered Ms. Watts in the medical offices. [¶ 4] As personal representative of Ms. Watts' estate, Mr. Watts brought a wrongful death suit on behalf of her heirs. He claimed the State was negligent by: • releasing Mr. Grady from the Wyoming State Penitentiary and transferring him to the Honor Farm; • failing to provide for Ms. Watts' safety and security; • failing to provide the security and reasonably safe conditions necessary to protect contract workers from persons known to be extremely dangerous such as Mr. Grady; • failing to imprison and guard Mr. Grady and other dangerous inmates in a reasonable manner; • failing to operate the administration building in a safe and secure manner; • providing an insufficient number of detention officers at the Honor Farm; • improperly training, supervising and managing the detention officers at the Honor Farm; • failing to provide Ms. Watts with security from dangerous inmates; • failing to prevent Mr. Grady from attacking and killing Ms. Watts. [¶ 5] The State filed a motion for summary judgment, asserting it was immune from suit under the WGCA, Wyo. Stat. Ann. §§ 1-39-101, et seq. (LexisNexis 2003). Mr. Watts argued that § 1-39-106, which waives immunity for the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, applied to his claims. Mr. Watts argues that the lack of sufficient guards, surveillance over the stairs and area where Tammy Watts traveled to the medical offices and locating and operating the medical offices in the Administration Building in a fashion that permitted the inmates direct, unobserved access to the medical offices between 6:00 and 6:30 a.m. when Tammy Watts was there by herself' fell within the waiver of immunity in § 1-39-106. [¶ 6] The district court denied the State's motion for a summary judgment, stating: 1. The State asserts no exception of the Wyoming Governmental Claims Act (Wyo. Stat. §§ 1-39-101 through 1-39-117) that permits the estate of Tammy Watts to bring this lawsuit. . . . . 3. Plaintiff asserts that Defendants are liable pursuant to Wyo. Stat. § 1-39-106[,] i.e. Tammy Watts' death was caused by the negligence in Defendants' operation or maintenance of the Wyoming Honor Farm. 4. Genuine issues of material fact exist as to the negligence, if any, of Defendants in the operation and maintenance of the Wyoming State Honor Farm, including but not limited to the number of security officers on duty the morning of Tammy Watt's murder, the lack of security cameras in certain areas of the facility, Tammy Watts' duties as a nurse at the Honor Farm, and inherent risks, if any, of such employment. [¶ 7] The State filed a notice of appeal or, in the alternative, a petition for writ of review, seeking appellate review of the district court's ruling on its claim it was immune from suit. We granted a writ of review.",facts
+293,3135235,1,1,"Jennifer Peters-Farrell filed a petition for dissolution of her marriage to Thomas Peters-Farrell. During the course of the proceedings, Thomas served subpoenas on three pharmacies seeking Jennifer’s prescription records, including the “name of the medication, what the medication is used to treat, dosage, how often refilled, copy of prescription and any other related records.” Jennifer moved to quash the subpoenas. In her motion, Jennifer asserted the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2000)) prohibited disclosure of her prescription records without a court order and the subpoenas constituted an attempt to circumvent her privilege under the Act. The circuit court denied Jennifer’s motion to quash the subpoenas, but certified the question noted above to the appellate court. The appellate court allowed the interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). 345 Ill. App. 3d 603. In answering the certified question, the appellate court held a pharmacy’s records of prescriptions issued to mental health recipients are protected from disclosure under the Confidentiality Act. 345 Ill. App. 3d at 608. The appellate court filed its opinion on December 31, 2003. We granted Thomas’ petition for leave to appeal (177 Ill. 2d R. 315(a)). Jennifer subsequently filed a motion to dismiss the appeal for lack of subject matter jurisdiction, asserting the trial court had entered a judgment of dissolution of marriage that resolved all issues between the parties. Jennifer asserted the parties filed a joint motion on December 30, 2003, notifying the appellate court of the entry of the judgment. Jennifer attached a copy of the joint motion filed in the appellate court to her motion to dismiss this appeal. In the joint motion, the parties stated “it has become commonplace for attorneys in not only domestic relations cases but personal injury cases to issue subpoenas for pharmaceutical records as a discovery tool without affording any privacy to the party whose records have been subpoenaed.” The parties acknowledged that the appeal was rendered moot by the judgment, but nonetheless urged the appellate court to decide the certified question because it involved an important public interest. The parties further asserted this was a matter of first impression. In his response to the motion to dismiss, Thomas noted Jennifer had previously agreed in the joint motion to the appellate court that the certified question should be addressed under the public interest exception to the mootness doctrine. Thomas urged this court to decide the certified question under the public interest exception. This court denied Jennifer’s motion to dismiss the appeal. We allowed the National Association of Chain Drug Stores, Inc., and the Illinois Department of Professional Regulation to file amicus curiae briefs in support of Thomas. 155 Ill. 2d R. 345.",facts
+294,2356652,1,1,"¶ 1 This appeal is from a district court order denying as untimely a demand for jury trial on the issue of trustee fees under Utah Rule of Civil Procedure 38. We conclude that the demand was timely, and therefore reverse and remand.",introduction
+295,2551773,1,1,"¶ 1 Plaintiffs Leslie Alder, aka Leslie Roberts, and Jackie Jones (Technicians), former radiography technicians at LDS Hospital in Salt Lake City, Utah, brought this action against defendant Bayer Corporation's AGFA division, alleging illness from chemical exposure caused by AGFA's negligent installation and servicing of its x-ray processing machine. The trial court excluded Technicians' expert testimony relative to the cause of their alleged illness and granted summary judgment in favor of AGFA. Technicians appeal.",introduction
+296,1242745,1,2,"1. Did the Lancaster County Court of General Sessions lack jurisdiction over the resentencing, the previous trial having been transferred to Chester County? 2. Did the trial court improperly restrict Truesdale's voir dire of prospective jurors concerning aggravating circumstances? 3. Did the trial court erroneously admit into evidence incriminating statements made by Truesdale to the police? 4. Did the Solicitor's closing argument deny Truesdale a fair trial? 5. Did the trial court commit reversible error in its charge to the jury?
+Truesdale asserts that, since venue was transferred to Chester County at the earlier trial, Lancaster County Court of lacked jurisdiction over the resentencing proceeding. We disagree. The amended order of this Court remanding for resentencing established jurisdiction in the Lancaster County Court of General Sessions. We reject Truesdale's claim that various constitutional rights were violated. Moreover, Truesdale was not prejudiced since the trial court, after a thorough voir dire, properly found that a fair trial would be had in Lancaster County. See State v. Owens, 293 S.C. 161, 359 S.E. (2d) 275 (1987); State v. Thomas, 268 S.C. 343, 234 S.E. (2d) 16 (1977).
+Truesdale contends that the trial judge improperly restricted the scope of his voir dire examination with respect to aggravating circumstances. When the record is reviewed as a whole, we find no abuse of discretion in the conduct of the voir dire. See State v. Patterson , 290 S.C. 523, 526, 351 S.E. (2d) 853, 854 (1986). To the contrary, Truesdale was granted a wide latitude in his juror interrogation.
+The State introduced a written confession in which Truesdale claims he was forced at gunpoint by an unidentified third party to commit the crimes. Truesdale argues that the statement should not have been admitted into evidence as it was not given voluntarily. We disagree. The statement was introduced at the guilt phase of the Truesdale II trial after its voluntariness was established at an in camera hearing. Accordingly, it was admissible at the resentencing pursuant to S.C. Code Ann. § 16-3-25(E)(2) (1985). See State v. Stewart , 288 S.C. 232, 341 S.E. (2d) 789 (1986).
+Truesdale challenges the Solicitor's closing argument in two particulars. First, he contends the Solicitor improperly referred to the deterrent effect of capital punishment. Our decisions hold, however that a deterrence argument is proper in the sentencing phase of a capital trial. State v. Jones , 298 S.C. 118, 378 S.E. (2d) 594 (1989); State v. Yates , 280 S.C. 29, 310 S.E. (2d) 805 (1982); accord Davis v. Maynard , 869 F. (2d) 1401 (10th Cir.1989); Davis v. Kemp , 829 F. (2d) 1522 (11th Cir.1987); Smith v. Armontrout , 692 F. Supp. 1079 (W.D. Mo. 1988); Kordenbrock v. Scroggy , 680 F. Supp. 867 (E.D. Ky. 1988); Walker v. State , 254 Ga. 149, 327 S.E. (2d) 475 (1985); People v. Lewis , 88 Ill. (2d) 129, 58 Ill. Dec. 895, 430 N.E. (2d) 1346 (1981); State v. Welcome , 458 So. (2d) 1235 (La. 1983); Pellegrini v. State , 764 P. (2d) 484 (Nev. 1988); State v. Compton , 104 N.M. 683, 726 P. (2d) 837 (1986); Commonwealth v. Zettlemoyer , 500 Pa. 16, 454 A. (2d) 937 (1982); Payne v. Commonwealth , 233 Va. 460, 357 S.E. (2d) 500 (1987). Next, Truesdale contends that a reference to other criminals was without support in the record and constituted an expression of the Solicitor's personal opinion. The Solicitor argued: If you would come back to this courtroom Monday week, come in at a regular term of court, and we are handling cases of all sorts, and sit over here on the side, you would see a parade of characters who have set their life on crime, a parade of people who have chosen anti-social behavior as their life's conduct, people who are no sooner out of one problem until they are in another, some of whom commit heinous crimes. That type person, of course, is loathsome, but that type person is at least predictable. I submit to you that the Louis Truesdale that you and I have come to know over the last two days, is not only loathsome, he's frightening. A Louis Truesdale who can say yes mam and no mam, yes sir and no sir, and then go out, with cold deliberation, and commit the crimes he has committed, and then revert back to that very same personality we had seen before.... This argument merely emphasized that Truesdale's crimes were uncharacteristic and unpredictable and that, therefore, Truesdale was more frightening than career criminals. The comments do not compare the relative merits of this prosecution with others, which distinguish them from those held impermissible in State v. Butler , 277 S.C. 543, 290 S.E. (2d) 420 (1982). We find no error.
+A statutory mitigating circumstance submitted to the jury was that the defendant acted under duress or under the domination of another person. S.C. Code Ann. § 16-3-20(C)(b)(5) (1985). Truesdale contends that the trial court erred in its jury instruction on duress. In view of the utter implausibility of Truesdale's duress claim, any error in the charge was harmless beyond a reasonable doubt. See Truesdale II for an in-depth discussion of Truesdale's version of what occurred. Finally, Truesdale argues that the trial court erred in failing to instruct that a confession may not be considered unless found beyond a reasonable doubt to have been given freely and voluntarily. This omission was harmless since the only reasonable inference from the evidence is that the statement was voluntary. See State v. Drayton , 287 S.C. 226, 337 S.E. (2d) 216 (1985); State v. Linnen , 278 S.C. 175, 293 S.E. (2d) 851 (1982).
+We have conducted the mandatory review provided in § 16-3-25 and conclude that the sentence is not arbitrary, excessive, or disproportionate and that the evidence supports the finding of aggravating circumstances. Affirmed. GREGORY, C.J., and HARWELL and TOAL, JJ., concur. FINNEY, A.J., dissents in separate opinion.",issues
+297,2227915,1,6,"We first address the issue of whether the juvenile court properly exercised jurisdiction over Kelley and Heather. The guardian ad litem argues that the court properly exercised emergency jurisdiction pursuant to § 43-1203(1)(c)(ii) of the NCCJA. In contrast, the father argues that the court did not properly exercise jurisdiction under the NCCJA because the State of Texas is the home state and proper forum for the exercise of jurisdiction. When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from that of the trial court. However, when the determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect. In re Interest of Floyd B., 254 Neb. 443, 577 N.W.2d 535 (1998). The question as to whether jurisdiction existing under the NCCJA should be exercised is entrusted to the discretion of the trial court and is reviewed de novo on the record. As in other matters entrusted to a trial judge's discretion, absent an abuse of discretion, the decision will be upheld on appeal. Id. Section 43-1203(1) of the NCCJA, the emergency jurisdiction provision, provides in part that a court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the child is physically present in this state and it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected. Section 43-247(3)(a) is incorporated into the NCCJA and provides in part that the juvenile court in each county shall have jurisdiction of any juvenile who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian. See, In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992); § 43-1202(3)(b). Physical presence of the child in this state alone is sufficient to confer jurisdiction on a court to make a child custody determination under § 43-1203(1)(c). In re Interest of Floyd B., supra ; In re Interest of L.W., supra . Thus, in In re Interest of Floyd B., we held that the juvenile court properly exercised emergency jurisdiction over a child even though neither the child nor his parents resided in Nebraska and the alleged abusive acts did not occur in Nebraska. In In re Interest of Floyd B., the child had been placed in the protective custody of the then Department of Social Services, now the Department of Health and Human Services, while he and his father were visiting relatives in Nebraska over a Thanksgiving holiday. Family members had noticed bruising on the child and contacted the police. The evidence indicated that although the department of social services in the father's home state had conducted an investigation, there were no proceedings pending there. We explained that the evidence presented at the hearing of an ongoing pattern of abuse, coupled with the fact that the child was physically present in Nebraska, conferred emergency jurisdiction on the juvenile court. We further explained that the emergency was ongoing because return of the child to either parent would put him at risk for future maltreatment. We also concluded that Nebraska was a convenient forum for the proceedings. To determine whether a court is an inconvenient forum under the NCCJA, the court considers the following factors, among others, to determine if it is in the best interests of the child that another state assume jurisdiction: (1) Another state is or recently was the child's home state; (2) another state has a closer connection with the child and his or her family; (3) substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) the parties have agreed on another forum which is no less appropriate; and (5) the exercise of jurisdiction by a court of this state would contravene a purpose of the NCCJA. In re Interest of Floyd B., 254 Neb. 443, 577 N.W.2d 535 (1998); § 43-1207(3). A paramount consideration in the balancing of these various factors is a determination of what court is most able to act in the best interests of the child. See In re Interest of Floyd B., supra . We stated that despite the fact that Nebraska was not the home state, the Nebraska court was most able to act in the child's best interests. We noted that the Department of Social Services' investigation took place in Nebraska and that the Child Protective Services worker who had seen the child and his bruises was in Nebraska. We also noted that no other state had sought to exercise jurisdiction to protect the child. When the petitions were filed in the instant case, Kelley and Heather were physically present in Nebraska, and the evidence at the adjudication hearing indicated an ongoing pattern of abuse and a danger to the girls if returned to their father. While the father argues that there are many witnesses in Texas who could testify that they had never seen bruises or other evidence of abuse, this fact was undisputed at the hearing. Thus, the fact that these witnesses are located in Texas does not indicate that Nebraska is an inconvenient forum. In contrast, other witnesses, such as Schultz, who assessed the psychological damage caused by the abuse, and the girls themselves, are currently in Nebraska. Other than the father and stepmother, there appears to be no significant witness in Texas to the abuse, and the Texas courts have not undertaken any proceedings to protect the girls. Thus, we conclude that the Nemaha County Court, sitting as a juvenile court, had emergency jurisdiction and that it did not abuse its discretion in exercising such jurisdiction. However, we are concerned by the fact that in its exercise of emergency jurisdiction, the juvenile court ordered a case plan and report to be prepared by the Department of Health and Human Services, including a home study. Emergency jurisdiction under § 43-1203(1)(c) is by its very nature limited. Smith-Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 93 (1996). It is temporary in nature and confers only the power to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the NCCJA. In re Interest of Floyd B., supra . If the juvenile court attempts to continue to exercise jurisdiction over Kelley and Heather, it must do so under another provision of the NCCJA. Texas is the home state of the girls, and they were merely visiting Nebraska at the time they were taken into protective custody. Section 43-1203(1)(d), the default provision, provides for jurisdiction if another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and if it is in the best interests of the child that this state assume jurisdiction. See In re Interest of Floyd B., supra . In order to assume jurisdiction under § 43-1203(1)(d), a communication must be received from the other state informing this state that it has declined jurisdiction and considers this state to be the more appropriate forum. See § 43-1207(9). Such information may be provided by one of the parties or obtained by the juvenile court; however, in obtaining such information, the court should avoid communications outside the presence of the parties. See State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994). The parties or the court may attempt to gain such information pursuant to the mechanisms provided in the NCCJA, but absent such information from Texas, the Nemaha County Court should not attempt to continue to exercise jurisdiction.",jurisdiction
+298,883120,1,5,"Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by one of the victims? Henrich moved for a mistrial based on the admission of hearsay evidence. We will affirm a district court's denial of a motion for mistrial unless there is clear and convincing proof that the district court erred in its ruling. Greytak, 865 P.2d at 1098. Neil Bricco, a Belgrade school counselor, testified about a meeting he had with A.H. on February 28, 1992. At this meeting, A.H. told Bricco about the sexual and physical abuse, including abuse of M.H. The court decided to allow Bricco to testify about what A.H. told him regarding her situation. However, Bricco began to testify that A.H. told him that Henrich sexually abused M.H. Henrich objected to this testimony and requested a mistrial. The court ordered that the testimony of Bricco regarding the abuse of M.H. be stricken, admonished the jury to ignore it, and denied Henrich's motion for a mistrial. The district court is in the best position to determine the jurors' reaction to inadmissible evidence and to decide whether a mistrial is necessary. State v. Seaman (1989), 236 Mont. 466, 475-76, 771 P.2d 950, 956. Here, the court properly ordered the testimony stricken and admonished the jury. In addition, A.H. testified personally that she told Bricco about M.H.'s abuse. Henrich has failed to establish clear and convincing proof that the District Court erred when it denied his motion for a mistrial, or that Bricco's testimony was more harmful than A.H.'s testimony to the same facts in person. Henrich challenges other aspects of Bricco's testimony. The prosecutor asked Bricco [h]ow open are children who have been sexually abused to talking about that with a counselor. Henrich objected, stating that Bricco was not qualified to render an opinion on this issue. The court overruled the objection and Bricco responded that the abuse is usually kept within the family. Henrich now argues that Bricco lacked personal knowledge to answer this question, or was not an expert qualified to render an opinion on this issue, and Bricco's testimony improperly bolstered A.H.'s testimony. We do not decide whether Bricco's testimony is relevant evidence, but only address the issue raised by Henrich's objection, i.e., whether Bricco was qualified or had personal knowledge. Rule 602, M.R.Evid., states: A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Bricco testified that he was a school counselor for seven years. He did not specialize in counseling sexually abused children, but did encounter them while providing general counseling. He stated that he saw hundreds of children in the two years he counseled at Belgrade. Of these children, Bricco stated that about ten percent were sexually abused. He discussed sexual abuse with numerous children. How open children were about sexual abuse was, therefore, a matter of his personal counseling experience. We conclude that Bricco was merely stating a personal observation, and that the District Court did not err when it admitted his testimony.",issues
+299,1703763,1,3,"(1) Did plaintiff's redirect examination of Dr. Hightower cause illegal evidence to be admitted that entitled defendant to rebut with further illegal evidence? (2) Were the verdicts rendered by the jury inconsistent and irreconcilable so that a new trial is required? (3) Did the trial court err to the prejudice of defendant by not instructing the jury in its oral charge that:    If on the other hand, you are not reasonably satisfied of the truth of the plaintiff's claim, you should find for the defendant,   ?",issues
+300,1383099,1,2,"Article IV, section 1 of the Alaska Constitution provides in part that The jurisdiction of courts shall be prescribed by law. Pursuant to this grant of power the legislature in AS 22.05.010 delineated the jurisdiction of the Supreme Court of Alaska in the following manner: The supreme court has final appellate jurisdiction in all actions and proceedings. The supreme court may issue injunctions, writs of review, mandamus, certiorari, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction.    An appeal to the supreme court is a matter of right, except that the state shall have no right of appeal in criminal cases, except to test the sufficiency of the indictment or information and [to hear appeals on the grounds that the sentence is excessive or too lenient]. In sketching the constitutional, statutory, and regulatory scheme whereby appellate review of lower court decisions may be had, article IV, section 15 of the Alaska Constitution is also relevant. This section provides in part that: The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. Acting under this authorization, this court promulgated three regulatory provisions which are pertinent to the jurisdictional issue in the present case. Supreme Court Rule 6 reiterates the legislative prohibition, contained in AS 22.05.010, against the state's right to appeal in a criminal case. Rule 6 provides: An appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or on the ground that the sentence is too lenient. Exercising the grant of supervisory powers conferred by Article IV, Section 15 of the Alaska Constitution, this court promulgated Supreme Court Rule 23 which provides in part: An aggrieved party may petition this court for review of any order or decision of the superior court, not otherwise appealable under Rule 6, in any action or proceeding, civil or criminal, as follows:       (c) From any order affecting a substantial right in an action or proceeding which either (1) in effect terminates the proceeding or action and prevents a final judgment therein; or (2) discontinues the action; or (3) grants a new trial. (d) Where such an order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion, and where an immediate and present review of such order or decision may materially advance the ultimate termination of the litigation. (e) Where postponement of review until appeal may be taken from a final judgment will result in injustice because of impairment of a legal right, or because of unnecessary delay, expense, hardship or other related factors. Supreme Court Rule 24 makes clear that the allowance of review is discretionary and is a concomitant of this court's power of supervision and review. Rule 24 provides: A review shall not be a matter of right, but will be granted only: (1) where the order or decision sought to be reviewed is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this Court; (2) where the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision; or (3) where the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative tribunal, as to call for this court's power of supervision and review. The crux of the jurisdictional problem confronting the court in this case is the apparent conflict between the prohibitions against criminal appeal by the state found in AS 22.05.010 and Supreme Court Rule 6, and the authorization of discretionary review of any order or decision of the superior court, not otherwise appealable under Rule 6, in any criminal action or proceeding provided for in Supreme Court Rules 23 and 24. The key to the resolution of this conflict is for the most part to be found in provisions of AS 22.05.010. We think it significant that the legislature in prescribing this court's jurisdiction specifically provided that The supreme court may issue injunctions, writs of review, mandamus, certiorari, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction. In our view this provision is a clear manifestation of the legislature's intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. This conclusion in turn necessitates consideration of the question whether these other forms of review are limited by the same restriction as appeal; that is, are they unavailable to the state in criminal cases? We hold that the limitation placed upon the state's right to appeal in a criminal case, found in AS 22.05.010, was intended to apply only to instances where our jurisdiction is sought to be invoked by appeal. AS 22.05.010 clearly distinguishes between appeals and other forms of review. Appeals are specifically limited, whereas the other forms of review authorized under AS 22.05.010, by virtue of the language all    writs necessary    to the complete exercise of    [the supreme court's] jurisdiction, have no limitations placed on them. In addition to this textual-grammatical analysis of AS 22.05.010, we think that article IV, section 15 of the Alaska Constitution, and underlying policies reflected in this provision of our constitution lend support to the conclusion that the state is not barred from invoking our review jurisdiction in criminal matters. Article IV, section 2 of the Alaska Constitution provides in part that The supreme court shall be the highest court of the State, with final appellate jurisdiction. If AS 22.05.010 is construed to prohibit this court's review of any actions challenged by the state, then a conflict would arise between article IV, section 2 of the constitution and AS 22.05.010. Acceptance of this construction in the context of the case at bar would mean that the superior court, rather than this court, is the highest court of the state possessed of final appellate jurisdiction. This court would then be limited to reviewing only those cases where a conviction had been obtained and a defendant had appealed. [5] We believe that a construction of AS 22.05.010 which carries over the limitation on the state's right to appeal in criminal matters to other forms of review would be contrary to the intent of the framers of our constitution when they determined that the supreme court was to be the highest court of the state, and was to be vested with final appellate jurisdiction. Unless the supreme court can fully implement its final appellate jurisdiction through use of its review jurisdiction, it will be extremely difficult, if not impossible, for this court to exercise proper control over the administration of criminal justice, and the development of rules of law in criminal trials. One can envision that erroneous rulings involving important questions of constitutional law will be made during a trial, or at the superior court appellate level, in favor of the accused. How are such mistakes to be corrected? Neither AS 22.05.010 nor Alaska's constitutional prohibition against double jeopardy requires that an erroneous non-final order or decision, favorable to the accused, must stand uncorrected. [6] The answer lies in the distinction made in AS 22.05.010 between appeals and other forms of review and the placement of final appellate jurisdiction in the supreme court under article IV, section 2 of the Alaska Constitution. We therefore hold that the state can invoke our discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involves a non-final order or decision of the superior court.",jurisdiction
+301,4503331,1,1,"After a newborn reportedly tested positive for methamphetamine, the State sought to adjudicate the newborn—who had been in a hospital with his mother—and his two siblings—who lived with and received appropriate care from their grandmother—solely on the basis that the children “lack[ed] proper parental care.”1 The juvenile court declined to adjudicate them, finding that the State failed to prove they were at risk of harm. On appeal, our decision regarding the older siblings is driven by the plain meaning of the statute on the State’s chosen ground, its choice not to allege any other ground, and its failure to establish that the mother exposed or threatened to expose them to her drug usage. We affirm the juvenile court’s decision as to them. But because the evidence demonstrated that the newborn lacked proper parental care due to his mother’s fault or habits, we reverse the court’s decision as to him and remand the cause for further proceedings.",introduction
+302,887318,1,1,"¶ 6 Murray suffered injuries in 1967 and 1974 which required removal of part or all of the cartilage in both of his knees. He remained physically active both in the jobs he performed and in vigorous recreational activities. ¶ 7 In 1982, Murray began working for MSE Technology Applications, Inc. (MSE) in Butte, Montana, as a security guard and mail carrier. He continued to work there for the next eighteen and one-half years. From approximately 1989 to 2000, he worked as a tool room attendant, issuing and repairing tools for other MSE employees. Much of Murray's work involved standing on concrete or asphalt. ¶ 8 From 1993 to 2000, Murray suffered several episodes of knee pain, swelling and effusion in connection with his personal recreational activities. Until 2000, he recovered quickly and resumed his active lifestyle after each episode. Nevertheless, physician Michael Gallagher advised him by 1996 that bilateral knee replacements were inevitable because his knees continued to degenerate. ¶ 9 In December of 2000, orthopedic surgeon Nicholas Blavatsky, who specialized in knee replacements and later performed Murray's knee replacement surgery, told Murray that the work at MSE had contributed to Murray's condition and need for surgery. Within a month, Murray filed an occupational disease claim and scheduled bilateral knee replacements. He had been given notice that his job at MSE was being phased out and knew he would need time to recover from his impending knee surgeries. As a result, Murray resigned from his employment with MSE on January 12, 2001. ¶ 10 The State Fund, MSE's workers' compensation insurer at the time Murray filed his claim, began paying Murray benefits under a reservation of rights. It petitioned the Workers' Compensation Court for a determination that Indemnity, MSE's prior workers' compensation insurer, is liable for compensation for Murray's bilateral knee condition. ¶ 11 Murray testified at the hearing on the State Fund's petition. The Workers' Compensation Court admitted depositions of Murray, Gallagher, Blavatsky, and Dr. Gary M. Rapaport into evidence. Rapaport, an occupational medicine specialist, had examined Murray in August of 2001 at the request of the Montana Department of Labor and Industry. In addition, the State Fund offered into evidence, and the court admitted over Murray's objection, a letter in which Rapaport responded to specific questions the State Fund submitted to him after his deposition. ¶ 12 In detailed findings of fact and conclusions of law, the Workers' Compensation Court reviewed the evidence and determined it established that Murray's work both significantly aggravated his preexisting bilateral knee condition and led to or accelerated his need for knee replacement surgery. The court determined Murray is entitled to the indemnity and medical benefits available under the Montana Occupational Disease Act and concluded that, as the insurer at risk during Murray's last occupational exposure, the State Fund is liable for paying the benefits. The Workers' Compensation Court subsequently denied the State Fund's request for reconsideration. The State Fund appeals.",facts
+303,853359,2,4,"Davenport finally contends that there was insufficient evidence to support his conviction for murder. He bases this contention on the fact that the majority of the evidence is circumstantial and Dew's testimony was inconsistent and improbable. [4] When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind.1996). We look to the evidence and the reasonable inferences therefrom that support the verdict and will affirm a conviction if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id. Circumstantial evidence will be deemed sufficient if inferences may reasonably be drawn that enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind.1999). In this case there was sufficient evidence to convict Davenport of murder. Dew testified that Davenport beat his mother on the night of the murder. He heard sounds of fighting, witnessed his mother crying, and saw Davenport throw Hess into a wall. She died of strangulation. Although there were inconsistencies in Dew's testimony, the jury heard them and was free to disbelieve the testimony. There was also evidence that Davenport had threatened to harm Hess only a day before the murder because of her involvement with another man. Taken together, this is sufficient evidence from which the jury could have concluded that Davenport knowingly killed Hess.",sufficiency of the evidence
+304,2332487,1,3,"¶ 28 We conclude that while the 2009 amendments apply retroactively, the legislature charged the DOC, not the sentencing court, with bringing terms of community custody into compliance with the amendments. Thus, we affirm the Court of Appeals decision.",conclusion
+305,2637387,1,2,"[¶ 3] The appellant, Mr. Griswold, was tried before a jury in the district court of Campbell County. He was convicted of ten counts of second-degree sexual assault and two counts of indecent liberties involving two minors, and he appealed. The Supreme Court affirmed the convictions in Griswold v. State, 994 P.2d 920 (Wyo.1999). [¶ 4] While the appeal from his conviction was pending, Mr. Griswold filed a motion for new trial pursuant to W.R.Cr.P 33(c) asserting newly discovered evidence. The evidence at issue includes documents from the Department of Family Services (DFS) which relate to two witnesses who testified at trial regarding Mr. Griswold's prior bad acts pursuant to W.R.E. 404(b). The documents were discovered by Mr. Griswold as the result of a civil case pending in the United States District Court for the District of Wyoming. [¶ 5] Mr. Griswold further claims that two additional documents from DFS relating to the victims in the underlying case should be considered newly discovered evidence by this Court. He makes this argument even though the trial judge reviewed these documents in camera prior to the criminal trial pursuant to Gale v. State, 792 P.2d 570 (Wyo. 1990), and ruled that they were not relevant or exculpatory. [¶ 6] The trial court issued an order which directed the Weston County district court to deliver the juvenile court file of the W.R.E. 404(b) witnesses to the Campbell County district court. Upon in camera examination of the juvenile court file, the trial court found that nearly all of the alleged newly discovered evidence from the DFS files was duplicated in the court file. The trial court determined that Mr. Griswold failed to exercise due diligence to obtain the juvenile court file as he knew, as a foster parent for these children, that the file existed, but he never requested it. Further, the trial court found that much of the alleged newly discovered evidence only impeached the witnesses and contradicted evidence produced at trial. After review of the alleged newly discovered evidence, the trial court found that the grant of a new trial would not produce a different verdict and, on January 20, 2000, denied the Motion for New Trial. Mr. Griswold appeals to this Court.",facts
+306,2635029,1,1,"¶ 2 Hayden Williams' father, Justin Williams, was employed by Mellor Engineering. During his employment, Mr. Williams participated in Mellor Engineering's employee welfare benefits plan, which was provided through Wasatch Crest Insurance Company (Wasatch Crest). Both Ms. Mellor and Hayden were beneficiaries under the Wasatch Crest plan. When Mr. Williams' employment with Mellor Engineering terminated in August 2000, he elected to continue health coverage for himself and his family through the Wasatch Crest plan under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Mr. Williams and Ms. Mellor divorced in March 2001. COBRA premiums continued to be paid for Hayden, and Wasatch Crest continued to accept them, through November 7, 2001. ¶ 3 On August 3, 2001, Hayden suffered a near drowning accident which resulted in catastrophic, permanent injuries. Because of the overwhelming medical expenses and the prospect of ongoing expenses for Hayden's future care, Ms. Mellor applied for Medicaid coverage for Hayden two weeks after the accident. The application was approved in September 2001. Under Medicaid guidelines, and because of the need to ensure coverage for Hayden's past and future medical expenses, Hayden's effective coverage date was backdated to August 1, 2001. ¶ 4 The Wasatch Crest plan continued to make payments for Hayden's medical care until November 2001. At that time, Wasatch Crest asserted that under language of the plan, it had no obligation to continue coverage for Hayden after Medicaid coverage began on August 1, 2001. Wasatch Crest requested reimbursement from Hayden's health care providers and collected from many of them. In August of 2002, the Utah State Office of Recovery Services (ORS) began an effort to collect money from Wasatch Crest which it alleged had been improperly paid by Medicaid and should have been paid by the Wasatch Crest plan. A month later, ORS entered into a Collection Agreement with Ms. Mellor which authorized Ms. Mellor to include ORS's claim for reimbursement with her civil claims against Wasatch Crest, with ORS as an assignee of her rights of recovery. ¶ 5 On July 11, 2003, Wasatch Crest was declared insolvent. The district court set July 31, 2004 as the deadline for filing a proof of claim against the Wasatch Crest estate in liquidation. Ms. Mellor filed a timely claim. The claims in liquidation are being administered by Utah Life and Health Insurance Guaranty Association (ULHIGA), which thus became a party to this action. ¶ 6 A referee appointed to adjudicate disputes between claimants and Wasatch Crest's liquidator ruled that, under the language of the Wasatch Crest Plan, Wasatch Crest had no obligation to pay any of Hayden's medical expenses as of August 1, 2001. Ms. Mellor filed an objection with the Third District Court. At the subsequent hearing, Wasatch Crest and ULHIGA alleged that Ms. Mellor did not have standing to file a claim in the liquidation proceeding. The court agreed that Ms. Mellor did not have standing in her own right, but ruled that Ms. Mellor did have standing to file a claim on behalf of Hayden. The court further determined that while some of the documents that had been generated in connection with the claim had not always clearly designated that Ms. Mellor was acting in Hayden's behalf, it had been understood since the time that Ms. Mellor first initiated civil action that she was acting for Hayden. Nevertheless, the court approved the referee's findings as to Wasatch Crest's liability, ruling that Hayden had not been covered by the Wasatch Crest plan at the time of his accident. Ms. Mellor appealed the ruling on coverage to this court, and Wasatch Crest and ULHIGA cross-appealed on the issue of standing.",facts
+307,1713851,1,2,"¶ 10. This Court will not disturb the findings of a chancellor unless it is shown the chancellor was clearly erroneous and the chancellor abused his discretion. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992), Bell v. Parker, 563 So.2d 594, 597 (Miss.1990).",standard of review
+308,1667881,1,1,"
+In this case, Anthony Wayne Riely appealed the Sunflower County Circuit Court's revocation of his probation alleging that his constitutional rights to due process were abrogated. This Court affirms the trial court.
+On October 15, 1987, Anthony Wayne Riely was convicted in the Sunflower County Circuit Court of burglarizing a residence. Riely was sentenced to a four-year prison term; however, the sentence was suspended and Riely was placed on four years' probation. One condition of probation involved completion of a rehabilitation program at the Greenwood/Leflore County Restitution Center (Center) in Greenwood, Mississippi. Nearly two months after being placed in the Center, Riely was locked up (presumably in the county jail); he was locked up for alleged violations of the Center's rules ( i.e., terms of probation). The Mississippi Department of Corrections (Department) filed an affidavit with the circuit court delineating the violations; however, a forgiving Department subsequently requested that the affidavit be disregarded and that Riely be returned to the Center. On December 8, 1987, a hearing was held in the circuit court during which time the Department's request was considered. The following exchange transpired upon commencement of the hearing: THE COURT: Mr. Riely, they [the Department] informed me ... that you are pretty much a bad apple out there [at the Center]. Is that right? RIELY: No, sir. COURT: Let me tell you something just in case you are. You better go out there and straighten up your act because any further violation of the rules, I am going to have you brought before me, and I am telling Dr. Alonzo [the Center's Director] now to report to me on your progress on a weekly basis, and you have been given a break here to go to the ... Center rather than the penitentiary. Have you ever been to the penitentiary? RIELY: No, sir. COURT: Well ... I don't think you want to go. Do you agree with that? RIELY: No, sir. Vol. II, at 1 (emphasis added). Basically, Riely did not want to be imprisoned, nor did he want to be returned to the Center where he felt uncomfortable. Further exchanges transpired, after which the court admonished Riely: I am not going to let [you] select where [you] want[] to go and whether [you] can function here or there. .. . We didn't put you in [custody of the Department] to make you feel comfortable. That's not the object of it. The object ... is to give you something for what you have done against your [fellow] citizens. The court concluded that Riely's bad attitude reflected that he is not a good candidate for the ... Center. The court then ordered another hearing on the matter, and graciously permitted Riely to return to the Center in the meantime. Vol. II, at 2-6. The hearing was held a few days later — on December 10. The affidavit delineating the violations of probation was presented to the court. The violations included: (1) failing to proceed directly to and from one's place of employment; (2) using abusive and obscene language; (3) refusing to work; (4) leaving or attempting to leave the Center without permission; and (5) possessing prohibited items. Riely pled guilty to the first and fifth allegations, and not guilty to the others. During questioning by the court, however, Riely admitted he committed the second and fourth violations as well. See, e.g., Vol. II, at 9-10 & 13-14 ( re second and fourth violations). In addition to Riely's admissions, Selby Ware, a Department Field Officer stationed at the Center, provided testimony in support of the allegations. Other evidence presented at the hearing included documentation of the alleged violations — as witnessed and reported by Department officers. See, e.g., Vol. II, at 9-10 & 12 ( re violation reports filed by security officials). After hearing the testimony and Riely's responses to the allegations, the court concluded: I think your attitude is bad. You need to be subjected to some rather strenuous discipline, and I am going to try something here. I intended probably to put you in the penitentiary, but I am going to impose a sentence of four years on you, but I am going to provide that you complete the RID program at the Mississippi State Penitentiary, and if you successfully complete that, and that's up to you whether you want to do that or not. If you go up there with the attitude that you have got now, they can't do it. You can't complete that, but I am going to let you try to complete that, and that is a program of rather strenuous discipline, work and study and psychiatric counseling, etc., and let you try that, and if you can complete that, they will inform me, and I will suspend the rest of that time and provide that you go to the Center when you get out and see if you can make it then. Now, I am giving you an opportunity to stay out of the penitentiary. You are going to go to the penitentiary, but it is going to be in a special program. You are not going to be mixed with or housed with prisoners, and they will try to work with you and get your attitude improved, and if you can complete that, I will then suspend the rest and provide that you go to the Center, and if you mess up on either one, I am going to send you four years to the ... penitentiary. It's all up to you. You think you would like to try that? Riely rejected the court's offer and explained: All I wanted was to go back home and take care of my family... . [C]an I just go to the penitentiary and serve my time instead of coming back to the program? Riely's wish was the court's command. Vol. II, at 16 & 17. Before the hearing concluded, Riely complained that he was coerced into this hearing before I was prepared to get my attorney. He also complained that he signed waiver-of-rights documents after being (mis)led to believe that another judge ( i.e., Judge Clark, who had presided over the trial for the burglary charge) would preside over the probation-revocation hearing. The court patiently listened and decided to start all over again at a later date. In other words, the court: (1) decided to quell any questions of impropriety or accusations of unfairness by strik[ing] all of this ( i.e., all that transpired at the hearing); and (2) rescheduled another full hearing. On December 15, the third hearing was held. During the course of the proceeding, Riely informed the court that he was interested in acquiring an attorney and, consequently, he needed more time. The request was denied. The court then reviewed the evidence and determined that Riely's admitted violations and unwavering bad attitude warranted revocation of probation. Notably, at the conclusion of the hearing, Riely lost it; that is, he became violent, tussled with attending deputies, and had to be carried from the courtroom while hollering. Riely's violent actions cost him an added thirty days for contempt. On March 11, 1988, a fourth hearing was held at the circuit court in response to petitions filed by Riely. A court-appointed attorney represented Riely at the hearing. Basically, Riely was appealing the court's revocation of his probation. The bases for his appeal included nine allegations — all of which were rejected by the court. Vol. I, at 4-6. Riely appealed the circuit court's rejection of two of the nine allegations. At Riely's request, the court appointed an attorney to represent him in his appeal. Vol. I, at 7 & 8-9.",introduction
+309,2813040,1,6,"Accordingly, under our long standing common law contract principles as expressed in Rocks and Rourke, multiple documents may be construed together as evincing the entire agreement of the parties to a vehicle sales contract. The RISC and the Buyer’s Order in the present case indicate an intention that they are to be read together as constituting one transaction. 13 JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. PETITIONERS TO PAY THE COSTS IN THIS COURT. 14 Circuit Court for Baltimore City Case No. 24-C-13-002548 Argued: April 1, 2015 IN THE COURT OF APPEALS OF MARYLAND No. 68 September Term, 2014 WILLIE MAE FORD, et al. v. ANTWERPEN MOTORCARS LTD., et al. Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, J., JJ. Opinion by McDonald, J., concurring in the judgment, which Battaglia, J., joins Filed: June 29, 2015 Harrell, J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the majority opinion but he retired from the Court prior to the filing of the opinion. Watts, J., participated in the hearing of this case but recused herself prior to conferencing and adoption of this opinion. In fantasy literature devoted to the battle between good and evil, the allegiance of elves, orcs, dwarfs, and goblins is readily apparent.1 In the battle between clarity and obfuscation in legal instruments, it is sometimes uncertain which side attorneys will take. This case turns on the drafting and placement of an arbitration agreement in one of several legal documents concerning the sale of a used car. I have attached to this opinion the “buyer’s order”2 and Retail Installment Sales Contract (“RISC”) as they appear, somewhat enlarged, in the materials provided to this Court. The Majority opinion – a model of clarity itself – is able to navigate these documents. But a lay person interested in buying a used car would be well advised to bring along a lawyer, a magnifying glass, and perhaps an English major, to decipher their meaning. There are significant differences between these two documents. Pertinent to this case, the buyer’s order contains fine print in which the purchasers essentially waive future access to the public justice system for any disputes arising out of the transaction in favor of an alternative dispute process.3 The RISC does not contain such a provision. At issue is 1 J.R.R. Tolkien, The Lord of the Rings (1949). 2 The phrase “buyer’s order” is not actually the title of the document, but, as far as I can tell, appears only in the fine print at the bottom of the front page of the document. 3 That provision is set out in considerably larger print and much more legible spacing in the Majority opinion. Majority slip op. at 2. whether the terms of the RISC supersede those of the buyer’s order. The fine print at the bottom of the buyer’s order states that “[t]he front and back of this buyer’s order, along with other documents signed by You in connection with this order, comprise the entire agreement between the parties affecting this purchase...” The RISC contains a similar reference to “all other documents signed by you.” There is no indication in either document, nor is the record clear, as to the universe of “other documents” signed in connection with the purchase of this vehicle that are incorporated by reference. In any event, the universe of documents that comprise the transaction is apparently not confined to signed documents. The bottom of the rear side of the “buyer’s order” states that “The information that you see on the window form for this vehicle is part of this contract. The information on the window form overrides any contrary provisions in the contract of sale.” 4 Similar language appears in a paragraph 5 on the reverse side of the RISC. In an apparent effort to improve the possibility that a consumer might be aware of all of the terms affecting a purchase of a car, the Motor Vehicle Administration (“MVA”) has adopted a regulation that indisputably applies to the transaction in this case. That regulation provides: Every vehicle sales contract or agreement shall be evidenced by an instrument in writing containing all of the agreements of the parties. It shall be signed by all of the parties before the seller delivers to the buyer the vehicle covered by the agreement. 4 The window form does not appear in the record in this case. 2 COMAR 11.12.01.15A (emphasis added). The plain language of the regulation establishes what might be called a “single instrument rule” for car sales. Ms. Ford and Mr. Beale base their appeal entirely on the notion that this means a single document and that the RISC, which does not contain an arbitration provision, is that document. Antwerpen counters that the requisite instrument may be comprised of multiple documents and here includes the buyer’s order. The Majority agrees with Antwerpen and concludes that arbitration clause in the buyer’s order was not superseded by the RISC. I agree that a single instrument may be comprised of more than one document and, on that narrow point, given the language of these documents,5 I join in the judgment. Whether these documents – and whatever else was purportedly incorporated in them – actually comply with the regulation is a question for another day. Judge Battaglia has advised that she joins this opinion. 5 Had the RISC here contained the language in the RISC analyzed in the 2012 letter of the MVA’s counsel – i.e., that “[t]he terms of this contract set forth your entire and only obligation to Seller” – I would have deferred to the agency’s interpretation of its own regulation set forth in that letter and concluded that the buyers had no obligation to arbitrate the dispute. 3",conclusion
+310,2576435,1,1,"We granted certiorari in this case to determine whether, in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the court of appeals erred in holding that, consistent with the right to a jury trial in the Sixth Amendment, the trial judge properly imposed upon the defendant a sentence of imprisonment in the aggravated range. After this case was briefed and argued, we decided Lopez v. People, 113 P.3d 713 (Colo.2005), applying Blakely to the Colorado sentencing scheme. In the present case, the court of appeals relied on one of its own decisions, People v. Allen, 78 P.3d 751 (Colo.App.2001), overruled by Lopez, 113 P.3d at 729 n. 13, to affirm DeHerrera's sentence. People v. DeHerrera, No. 03CA0920, slip op. at 1, 2004 WL 1179369 (Colo.App.2004) (not selected for official publication) (holding that under Allen, the trial court's finding of extraordinary aggravating circumstances was permissible). We now apply Blakely and Lopez to the facts of this case and uphold the sentence imposed on the defendant.",introduction
+311,2691820,1,2,"{¶ 15} Under our cases, the BTA is responsible for determining factual issues, but this court “ ‘will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.’ ” Satullo v. Wilkins, 111 Ohio St.3d 399, 2006Ohio-5856, 856 N.E.2d 954, ¶ 14, quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino (2001), 93 Ohio St.3d 231, 232, 754 N.E.2d 789. Weber Sisters presents several legal issues, and we consider each in turn. 5 SUPREME COURT OF OHIO R.C. 5715.19(A)(2) does not bar the school board’s complaint for tax year 2004 {¶ 16} In its notice of appeal, Weber Sisters characterizes the present case as a “second filing within the same triennium and therefore prohibited by section 5715.19 O.R.C.” In Weber Sisters’ brief, however, the second-filing issue is mentioned at most in passing, is not specifically argued, and is not the subject of a proposition of law. Under these circumstances we would ordinarily regard the issue as abandoned. E. Liverpool v. Columbiana Cty. Budget Comm., 116 Ohio St.3d 1201, 2007-Ohio-5505, 876 N.E.2d 575, ¶ 3. {¶ 17} But we have consistently treated full compliance with R.C. 5715.19 as an indispensable prerequisite for the exercise of jurisdiction by a board of revision. See Stanjim Co. v. Mahoning Cty. Bd. of Revision (1974), 38 Ohio St.2d 233, 235, 67 O.O.2d 296, 313 N.E.2d 14; Cardinal Fed. S. & L. Assn. v. Cuyahoga Cty. Bd. of Revision (1975), 44 Ohio St.2d 13, 73 O.O.2d 83, 336 N.E.2d 433, paragraph one of the syllabus. An issue that pertains to the BTA’s jurisdiction to hear the merits of an appeal thereby pertains derivatively to our own jurisdiction, and we have held that we possess authority to consider such jurisdictional issues in spite of a failure to specify the theory in its notice of appeal. Elyria v. Lorain Cty. Budget Comm., 117 Ohio St.3d 403, 2008-Ohio940, 884 N.E.2d 553, ¶ 13. Accordingly, we consider whether R.C. 5715.19(A)(2) barred the complaint the school board filed for tax year 2004. {¶ 18} R.C. 5715.19(A)(2) limits how often an owner or a school board may challenge the valuation of a parcel: subject to four enumerated exceptions, a person may file only one complaint within a three-year “interim period.” The statutory limitation ties the interim period to the sexennial revaluation of property and the triennial update required by law. R.C. 5713.01(B) and 5715.24(A); Ohio Adm.Code 5703-25-06(B) and 5703-25-06(D). If “ ‘a person, board, or officer’ files a complaint in an interim period it may not file another complaint in the 6 January Term, 2009 same interim period, unless one or more of the four statutory circumstances listed    is alleged.” Specialty Restaurants Corp. v. Cuyahoga Cty. Bd. of Revision, 96 Ohio St.3d 170, 2002-Ohio-4032, 772 N.E.2d 1165, ¶ 11, quoting R.C. 5715.19(A)(2). {¶ 19} In the present case, the jurisdictional issue arises because the school board presented the May 2003 purchase price in a complaint that challenged the auditor’s valuation for tax year 2003. Subsequently, the school board initiated the present case by filing a complaint seeking an increase for tax year 2004 on the basis of the May 2003 sale. The interim period in Franklin County encompassed tax years 2003 and 2004. Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision (May 20, 2008), BTA No. 2006-H-381, at 3. Under the pronouncement of Specialty Restaurants, R.C. 5715.19(A)(2) bars the complaint in this case unless one (or more) of the four exceptions applies. As an initial matter, we note that the school board complied with the language of R.C. 5715.19(A)(2) by indicating on the complaint that the first of the four exceptions applied. {¶ 20} We hold that two of the four exceptions applied. R.C. 5715.19(A)(2)(a) provides that a complaint asking for a change in value based on the sale of the property in an arm’s-length transaction is not barred so long as (1) the sale occurred after the tax lien date for the tax year for which the prior complaint was filed – in this case, 2003 – and (2) the effect of the sale on value was “not taken into consideration with respect to the prior complaint.” In this case, the sale took place in May 2003 – after the January 1, 2003 lien date to which the earlier complaint related. Moreover, although the May 2003 sale formed the basis for the tax-year-2003 complaint, the BOR set the value for 2003 without regard to the sale price because the buildings at issue were only partially completed as of January 1, 2003. Because the record shows that the construction was fully completed by January 1, 2004, and because the May 2003 sale 7 SUPREME COURT OF OHIO culminated a January 2003 purchase contract that contemplated completed construction, the effect of the May 2003 sale price on value was “not taken into consideration” under the statute for tax year 2003. Thus, the complaint is permitted under the exception at R.C. 5715.19(A)(2)(a). {¶ 21} R.C. 5715.19(A)(2)(c) furnishes an additional source of jurisdiction. In essence, the valuation complaint presently before the court asserts that the sale price should be considered to be the value of the property on January 1, 2004 – the 2004 lien date – because the buildings, which constitute a “substantial improvement” for purposes of R.C. 5715.19(A)(2)(c), were completed after the 2003 lien date and before the 2004 lien date. As a result, R.C. 5715.19(A)(2)(c) applied to the present situation and permitted the filing of the tax-year-2004 complaint. {¶ 22} In sum, the tax-year-2004 complaint is not barred by the filing of the tax-year-2003 complaint because (1) the tax-year-2004 complaint relies on a sale that occurred after the lien date of the 2003, the tax year that was the subject of the earlier complaint, and (2) the effect of the sale on the property’s value was not considered previously because the construction on the property was incomplete. Collateral estoppel does not bar the school board’s complaint {¶ 23} Weber Sisters also contends that the BOR’s decision not to use the May 2003 sale price to determine the value of the property for tax year 2003 estops the school board from litigating the use of the sale price to value the property for tax year 2004. Our review of the record persuades us that Weber Sisters failed to establish the existence of an estoppel. {¶ 24} The scope of collateral estoppel in tax proceedings is limited. We have acknowledged that the determination of a discrete issue as to one tax year may estop a party from relitigating the same issue in the context of a later valuation complaint. Olmsted Falls Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 8 January Term, 2009 122 Ohio St.3d 134, 2009-Ohio-2461, 909 N.E.2d 597, ¶ 17, citing Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision (Dec. 28, 1993), Franklin App. No. 92AP-1715, 1993 WL 540285. On the other hand, the ultimate issue of value for one tax year does not constitute the “same issue” for purposes of collateral estoppel as the ultimate issue of value for a later tax year. Id. Given these precepts, it is incumbent upon the party that asserts collateral estoppel to prove the identity between the issue currently presented and the issue previously decided. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 198, 2 OBR 732, 443 N.E.2d 978; see also Dublin School Dist. Bd. of Edn. v. Limbach (1994), 69 Ohio St.3d 255, 257-258, 631 N.E.2d 604; Beatrice Foods Co., Inc. v. Lindley (1982), 70 Ohio St.2d 29, 35, 24 O.O.3d 68, 434 N.E.2d 727. {¶ 25} In the present case some evidence was offered at the BTA concerning the BOR’s disposition of the tax-year-2003 complaint. That evidence indicates that the BOR declined to regard the May 2003 sale price as indicative of value for tax year 2003 because the two buildings were still under construction on January 1, 2003. But the evidence also indicates that the buildings were complete by January 1, 2004. As a result, Weber Sisters has fallen well short of proving an identity of issues, because the question whether to use the sale price for 2004 does not involve the same issue whether to use the sale price for 2003. Accordingly, the BOR’s disposition of the tax-year-2003 complaint has no collateral-estoppel effect on the later complaint. The BTA erred by failing to give full consideration to whether Weber Sisters had proven that the sale was not “recent” as to the lien dates for 2004 and 2005 {¶ 26} The gravamen of the Weber Sisters’ appeal lies in its contentions that the BTA’s decision lacks evidentiary support and that the BTA failed to hold the school board to its burden of proof. 9 SUPREME COURT OF OHIO {¶ 27} As an initial matter, Weber Sisters’ argument relies on well-settled legal principles. We have held that the BTA’s findings must be supported by evidence; indeed, when the evidence does not support those findings, they must be set aside on appeal. E.g., NFI Metro Ctr. II Assoc. v. Franklin Cty. Bd. of Revision (1997), 78 Ohio St.3d 105, 107, 676 N.E.2d 881; Gen. Motors Corp. v. Cuyahoga Cty. Bd. of Revision (1996), 74 Ohio St.3d 513, 515-516, 660 N.E.2d 440. Moreover, when “cases are appealed from a board of revision to the BTA, the burden of proof is on the appellant, whether it be a taxpayer or a board of education, to prove its right to an increase or decrease from the value determined by the board of revision.” Columbus City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision (2001), 90 Ohio St.3d 564, 566, 740 N.E.2d 276. That burden requires the appellant to “present competent and probative evidence to make its case; it is not entitled to a reduction or an increase in valuation merely because no evidence is presented against its claim.” Id., citing Hibschman v. Bd. of Tax Appeals (1943), 142 Ohio St. 47, 26 O.O. 239, 49 N.E.2d 949. Additionally, when a hearing has been waived before the BTA, the BTA has the duty to “make its own independent judgment based on its weighing of the evidence contained in [the] transcript” of the proceedings before the BOR. Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision (1996), 76 Ohio St.3d 13, 15, 665 N.E.2d 1098. {¶ 28} Turning to the school board’s burden of proof at the BTA, we conclude that the BTA was justified in viewing the conveyance-fee statement and the deed that the school board had presented to the BOR as constituting a prima facie showing of value. Id. at 16, 665 N.E.2d 1098 (because the school board had introduced into evidence of a copy of a deed and a conveyance-fee statement as proof of a recent, arm’s-length sale, the burden to prove a lesser value shifted to the property owner). In the present case, the school board additionally presented to the BTA a purchase agreement that it had obtained through discovery. The 10 January Term, 2009 troika of deed, conveyance-fee statement, and purchase agreement formed an adequate basis for the BTA to find a recent arm’s-length sale, subject to rebuttal by the Weber Sisters. {¶ 29} As we stated in Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision, 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 13, a recent arm’s-length-sale price must ordinarily be considered to be the value of the property. Usually the “only rebuttal” of the sale price “lies in challenging whether the elements of recency and arm’s-length character between a willing seller and a willing buyer are genuinely present for that particular sale.” Id. {¶ 30} For its part, the BTA relied on its holding that the evidence did not impugn the arm’s-length character of the sale. Specifically, the BTA acknowledged that Weber Sisters had pointed to several factors in challenging the arm’s-length character of the sale: the like-kind exchange facet of the sale, their own lack of knowledge of the local market, their inability to resell, or their loss of tenants. But the BTA found that the owner had failed to show the significance of those factors for purposes of determining the question of arm’s-length character. Weber Sisters has not pointed to any distinctly legal error in the BTA’s discussion of the arm’s-length character, and accordingly we will defer to the BTA’s finding that the May 2003 sale was at arm’s length. Am. Natl. Can Co. v. Tracy (1995), 72 Ohio St.3d 150, 152, 648 N.E.2d 483 (“The BTA is responsible for determining factual issues and, if the record contains reliable and probative support for these BTA determinations, we will affirm”). 1 1. Weber Sisters’ contention that the sale was not at arm’s length because the property was not sold on the “open market” does not state a claim of legal error. We have held that the opponent of using the sale price to determine value must shoulder the burden to show that the sale did not occur in the market that is relevant in the particular case – here, the Section 1031 like-kindexchange market. See AEI Net Lease Income & Growth Fund v. Erie Cty. Bd. of Revision, 119 Ohio St.3d 563, 2008-Ohio-5203, 895 N.E.2d 830, ¶ 22, 23. Weber Sisters has made no such showing. 11 SUPREME COURT OF OHIO {¶ 31} The BTA’s treatment of the issue of recency is another matter. That issue the BTA relegated to a footnote, where the board stated that a “sale within eight months of the 2004 tax lien date is sufficiently recent for tax valuation purposes.” Worthington City Schools Bd. of Edn., BTA No. 2006-H- 381, at 4, fn. 3. But the BOR, in rejecting the sale price, had explicitly relied on several pieces of evidence that potentially bear on the issue of recency: the immediate loss of tenants, the subsequent failure to sell the property, and the lower values reflected by later appraisals. The BOR appeared to regard such factors as establishing a change in circumstances that made it inappropriate to use the May 2003 sale price to value the property as of January 1, 2004, and January 1, 2005. {¶ 32} As noted, the BTA found that the sale was recent based solely on the temporal proximity of the sale date to the lien date. But under our case law such proximity is not the sole factor affecting recency. See Cummins, 117 Ohio St.3d 516, 2008-Ohio-1473, 885 N.E.2d 222, ¶ 35 (recency “encompasses all factors that would, by changing with the passage of time, affect the value of the property”); New Winchester Gardens, Ltd. v. Franklin Cty. Bd. of Revision (1997), 80 Ohio St.3d 36, 44, 684 N.E.2d 312 (recency factors include “changes that have occurred in the market”). Before the BTA, Weber Sisters specifically argued not only that the evidence presented to the BOR negated the arm’s-length character of the sale, but also that “market changes and other factors make the sale price unreliable” on the record of this case. Yet the BTA did not address this aspect of Weber Sisters’ argument. It follows that the BTA erred by not considering the evidence upon which the BOR relied when it made its finding as to the recency of the May 2003 sale. See Columbus Bd. of Edn., 76 Ohio St.3d at 15, 665 N.E.2d 1098. {¶ 33} Before this court, Weber Sisters renews its argument that the BOR transcript clearly showed “change in the property” and “market changes and other 12 January Term, 2009 factors that [make] the sale price unreliable.” We have stated that the burden lay on Weber Sisters to rebut the presumptive recency of the sale, but it is evident that the BOR found such a rebuttal in the record before it. The BTA did not identify any error in the BOR’s reasoning and, if the evidence that Weber Sisters presented to the BOR did tend to negate recency, then the school board acquired the burden of rebutting the probative force of that evidence. See Mentor Exempted Village Bd. of Edn. v. Lake Cty. Bd. of Revision (1988), 37 Ohio St.3d 318, 319, 526 N.E.2d 64. {¶ 34} Although the BTA’s latitude in weighing evidence is broad, we have held that the BTA “has the duty to state what evidence it considered relevant in reaching its determination.” HealthSouth Corp. v. Levin, 121 Ohio St.3d 282, 2009-Ohio-584, 903 N.E.2d 1179, ¶ 34. While we accord deference to the BTA’s explicit determination that Weber Sisters had not impugned the arm’s-length character of the sale, we hold that the BTA did not perform the required review with respect to whether the May 2003 sale met the criteria of recency as of January 1, 2004, and January 1, 2005. Accordingly, we vacate the BTA’s decision and remand for a determination whether the May 2003 sale was “recent” as to tax years 2004 and 2005 in light of the entire record. As in HealthSouth, the parties have had ample opportunity to present evidence, so the BTA shall not take additional evidence on remand. {¶ 35} We emphasize that we do not prejudge the outcome of the BTA’s analysis on remand. The BTA will have the duty to weigh the significance of the purchase contract, the other documentation of sale, and the testimony and documentation presented to the BOR to make its determination.",analysis
+312,6348608,1,1,"After obtaining a workers’ compensation award granting medical rehabilitation services for his lumbar back, James R. Spratt sought modification to provide such services for his thoracic back. The compensation court refused—holding that it lacked statutory authority to do so and that even if the statute permitted modification, a principle of finality precluded that relief. Spratt appeals—relying now upon Neb. Rev. Stat. § 48-162.01(7) (Reissue 2021). Because the court erred in both respects, we reverse, and remand for further proceedings.",introduction
+313,4544411,1,3,"Upon due consideration, the court accepts respondent’s voluntary surrender of his license to practice law, finds that respondent should be disbarred, and hereby orders him disbarred from the practice of law in the State of Nebraska, effective immediately. Respondent shall forthwith comply with all terms of Neb. Ct. R. § 3‑316 (rev. 2014) of the disciplinary rules, and upon failure to do so, he shall be subject to punishment for contempt of this court. Accordingly, respondent is - 291 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. WORTHMAN Cite as 306 Neb. 289 directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7‑114 and 7‑115 (Reissue 2012) and Neb. Ct. R. §§ 3‑310(P) (rev. 2019) and 3‑323 of the disciplinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court. Judgment of disbarment.",conclusion
+314,874175,1,2,I. Whether the Board erred in denying St. Luke's application for indigency assistance on the ground that federal assistance under Section 1011 of the Medicare Modernization Act of 2003 was an available resource. II. Whether either party is entitled to attorney fees on appeal.,issues
+315,2232885,1,10,"Finally, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, [7] bars a retrial— even where the defendant requests it as here—if the reviewing court concludes that the evidence was legally insufficient to support the conviction. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (reversal by federal appeals court for evidentiary insufficiency was functional equivalent of judgment of acquittal that could not be waived); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) (applying Burks to state criminal proceedings). Champlain asserts there was insufficient evidence to support his conviction for murder. In reviewing a sufficiency of the evidence claim, we do not reweigh evidence or assess the credibility of witnesses. A conviction will be affirmed if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Wooden v. State, 657 N.E.2d 109, 111 (Ind.1995). The jury could have concluded from the evidence that Champlain knowingly killed Sherri Vanlue. Indeed, his statement that Vanlue lied to me, so I shot her could be viewed as an admission of intentional or knowing murder. In any event, Jamison testified that Champlain fired into a trailer home at close range aware that Vanlue was inside. Vanlue's voice could have permitted Champlain to form a conclusion as to her location even if visibility was blocked by the door. Champlain's expressions of intent to kill both before and after the shooting, if also credited, bolster the jury's verdict. The intent to commit murder may be inferred from the nature of the attack and the circumstances surrounding the crime. Pilarski v. State, 635 N.E.2d 166, 169 (Ind.1994). Accordingly, the evidence was sufficient to support the conviction and the Double Jeopardy Clause does not bar a retrial for murder.",sufficiency of the evidence
+316,1651412,1,6,"On the record before us, the district court for Douglas County had subject matter jurisdiction over Bohaboj's complaint seeking to establish paternity under § 43-1401 et seq. We conclude the district court erred when it granted Rausch's motion to dismiss for lack of subject matter jurisdiction and dismissed Bohaboj's complaint. We reverse the order of dismissal and remand the cause to the district court for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Hendry, C.J., not participating.",conclusion
+317,3192563,1,1,"After a work-related injury left a nurse with a permanent partial impairment, she applied for reemployment benefits. The rehabilitation specialist assigned to her case used two job descriptions to describe one of the nurse’s former jobs because the specialist did not think that a single job description adequately described that former job. The Alaska Workers’ Compensation Board decided that only one job description was needed and that the nurse retained the physical capacity to perform the functions of that job description; it therefore denied her reemployment benefits. The Alaska Workers’ Compensation Appeals Commission affirmed the Board’s decision. The nurse appeals, arguing that the Board erred in selecting only one job description because the job description it selected did not adequately describe the job she held. We agree and reverse the Commission’s decision.",introduction
+318,3133301,1,5,"The statute at issue here is Idaho Code section 18-8311(1), part of SORA. This statute provides the penalty for an offender “subject to registration who knowingly fails to register, verify his address, or provide any information or notice” as required by SORA. I.C. § 188311(1). It states that the offender shall be guilty of a felony and shall be punished by imprisonment in the state prison system for a period not to exceed ten (10) years and by a fine not to exceed five thousand dollars ($5,000). If the offender is on probation or other supervised release or suspension from incarceration at the time of the violation, the probation or supervised release or suspension shall be revoked and the penalty for violating this chapter shall be served consecutively to the offender’s original sentence. I.C. § 18-8311(1). Relevant here, the second sentence of Idaho Code section 18-8311(1) states that an offender on probation at the time of the failure to register offense “shall” have his 3 probation revoked and “shall” serve his penalty for the failure to register offense “consecutively to” his “original sentence” that was imposed for the crime for which he was on probation. This second sentence has at least two requirements. First, it requires that the court revoke the offender’s probation. Second, it requires that the court order the offender to serve his penalty for the failure to register offense consecutive, not concurrent, to the original sentence. The question in this case is whether Idaho Code section 18-8311(1) imposes an additional limitation on the court’s sentencing authority. Specifically, the question is whether the statute mandates that the court must order the original suspended term of imprisonment to be served without exception—meaning that the court has no authority to later suspend the original sentence, retain jurisdiction, and reinstate probation. Such limitations by the legislature on the court’s sentencing authority necessarily implicate the separation of powers doctrine. “The objective of statutory interpretation is to give effect to legislative intent.” State v. Doe, 156 Idaho 243, 246, 322 P.3d 976, 979 (2014) (quoting State v. Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007)). Statutory interpretation “must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. If the statute is not ambiguous, this Court does not construe it, but simply follows the law as written.” Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011) (quoting State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003)). “Only where the language is ambiguous will this Court look to rules of construction for guidance and consider the reasonableness of proposed interpretations.” Stonebrook Constr., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 931, 277 P.3d 374, 378 (2012) (quoting Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 398, 224 P.3d 458, 465 (2008)). “A statute is ambiguous where the language is capable of more than one reasonable construction.” Porter v. Bd. of Trs., Preston Sch. Dist. No. 201, 141 Idaho 11, 14, 105 P.3d 671, 674 (2002). “If the statute is ambiguous, then it must be construed to mean what the legislature intended for it to mean.” City of Sandpoint v. Sandpoint Indep. Highway Dist., 139 Idaho 65, 69, 72 P.3d 905, 909 (2003). We determine legislative intent by examining “not only the literal words of the statute, but also the reasonableness of proposed constructions, the public policy behind the statute, and its legislative history.” Id. Based on the plain language of Idaho Code section 18-8311(1), we hold that this statute is ambiguous. The conflicting language in this statute leads us to more than one reasonable 4 construction. On the one hand, we are persuaded that “sentence” does not necessarily denote incarceration. The word “sentence” alone has been defined as “[t]he judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer.” BLACK’S LAW DICTIONARY 1569 (10th ed. 2014). A punishment or judgment may include incarceration, but incarceration certainly is not the exclusive method of punishment. Thus, had the legislature intended for the offender to serve his original term of imprisonment without exception, the legislature would have used the term “imprisonment” or “incarceration” rather than “sentence.” We also are convinced that the district court in the case complied with the basic terms of the statute. Idaho Code section 18-8311(1) states that the probation “shall” be revoked, which the district court ordered, and that the penalty for the failure to register offense “shall be served consecutively” to the original sentence, which the district court also ordered. The court’s subsequent authority to suspend, defer, withhold, commute, or retain jurisdiction on the original sentence is not explicitly proscribed in the statute. The legislature’s intent to impose such constraints on the district court’s inherent sentencing authority is reached only by inference. These inferences go beyond a plain language interpretation of the statute. We recognize that “original sentence” reasonably could denote the initial term of imprisonment imposed by the court prior to any suspension of that sentence. We also recognize that “consecutive sentences” has been defined by “two or more sentences of jail time to be served in sequence.” BLACK’S LAW DICTIONARY at 1569 (emphasis added). Reading these terms together, we can reasonably interpret the statute to require that the offender serve the term of imprisonment from the first conviction followed by the term of imprisonment for the failure to register conviction. This interpretation, however, produces a de facto mandatory minimum sentence by eliminating the inherent sentencing power of the court. Such an interpretation creates an untenable conflict with the Idaho Constitution. “This [C]ourt has in the past been very circumspect in protecting the autonomy envisioned for the judiciary within our constitution.” State v. McCoy, 94 Idaho 236, 240, 486 P.2d 247, 251 (1971). The Idaho Constitution prohibits any branch of government from exercising powers that properly belong to another branch, unless the constitution expressly so directs or permits. IDAHO CONST. art. II, § 1. The power to define crimes and prescribe penalties belongs to the legislative department whereas the authority to 5 sentence offenders who have been found guilty of those crimes lies with the judiciary. Spanton v. Clapp, 78 Idaho 234, 237, 299 P.2d 1103, 1104 (1956). Gibson v. Bennett, 141 Idaho 270, 276, 108 P.3d 417, 423 (Ct. App. 2005). “This [C]ourt always must be watchful, as it has been in the past, that no one of the three separate departments of the government encroach upon the powers properly belonging to another.” McCoy, 94 Idaho at 241, 486 P.2d at 252. In “direct recognition and reiteration of the separation of powers provided by Art. 2, § 1,” Article V, Section 13 “forbids the legislature from exercising powers rightly pertaining to the judicial department.” R.E.W. Constr. Co. v. Dist. Court of the Third Judicial Dist., 88 Idaho 426, 437, 400 P.2d 390, 397 (1965). In this respect, Article V, Section 13 states: “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government. . . .” IDAHO CONST. art. V, § 13. This prohibition against the exercise of the judicial powers is not without qualification, however. R.E.W. Constr. Co., 88 Idaho at 437, 400 P.2d at 397. In 1978, the legislature proposed and the people adopted an amendment to Article V, Section 13. State v. Pena-Reyes, 131 Idaho 656, 657, 962 P.2d 1040, 1041 (1998). It provides: “[T]he legislature can provide mandatory minimum sentences for any crimes, and any sentence imposed shall be not less than the mandatory minimum sentence so provided. Any mandatory minimum sentence so imposed shall not be reduced.” IDAHO CONST. art. V, § 13; see also H.J. Res. No. 6, 1978 Idaho Sess. Laws 1032, 1032–33. This amendment grants the legislature the authority to impose a mandatory minimum sentence for any crime. In addition, “[t]his amendment effectively circumscribes the power of our courts to suspend a mandatory minimum sentence contained in a statute enacted pursuant to the authority of our constitution.” Pena-Reyes, 131 Idaho at 657, 962 P.2d at 1041. In summary, this constitutional amendment provides a narrow exception for the legislature to exercise powers traditionally granted to the judicial branch: the legislature may encroach on the court’s sentencing powers only with the enactment of an express mandatory minimum sentence pursuant to Article V, Section 13. If the legislature chooses to exercise its authority granted by Article V, Section 13, the Court will critically review the statute to avoid an untenable encroachment on judicial power. We are “obligated to seek an interpretation of a statute that upholds its constitutionality.” In re Bermudes, 141 Idaho 157, 159, 106 P.3d 1123, 1125 (2005). 6 Whenever an act of the Legislature can be so construed and applied as to avoid conflict with the Constitution and give it the force of law, such construction will be adopted by the courts; and it is held by many courts that where there is room for two constructions of a statute, both equally obvious and equally reasonable, the court must, in deference to the Legislature of the state, assume that it did not overlook the provisions of the Constitution, and designed the act to take effect. Grice v. Clearwater Timber Co., 20 Idaho 70, 77, 117 P. 112, 114 (1911) (citation omitted) (internal quotation marks omitted). Thus, to maintain the separation of powers, we will narrowly construe a sentencing statute against an infringement on the judiciary’s inherent sentencing authority. Any other method of construction could permit the legislature to exercise powers properly belonging to the judiciary without invoking the appropriate constitutional authority. We are persuaded that an interpretation of Idaho Code section 18-8311(1) that imposes a mandatory minimum sentence improperly deprives the judiciary of its inherent sentencing powers. Under such an interpretation, Idaho Code section 18-8311(1) would impose a mandatory minimum sentence on Olivas’s original crime—a crime for which a sentence has already been imposed under the court’s discretionary sentencing authority. Thus, this interpretation of the statute retroactively reduces the court’s sentencing authority for an offense with no mandatory minimum sentence. This is an untenable encroachment on the sentencing powers reserved to the judicial branch. Our Constitution does not grant the legislature the authority to remove the court’s power to manage a sentence already imposed under a discretionary sentencing statute. We hold that a statute must strictly comply with Article V, Section 13 to invoke the legislature’s ability to restrain the court’s inherent sentencing power. For example, in State v. Sarabia, 125 Idaho 815, 875 P.2d 227 (1994), a sentencing statute provided a minimum fixed term of imprisonment of five years, but then allowed for an exception to the otherwise mandatory minimum term. Id. at 817, 875 P.2d at 229. 1 The Court held that this “hybrid form” of mandatory minimum sentence was not “authorized” by Article V, Section 13 and therefore “unconstitutional, null, void, and unenforceable” for attempting to restrain the court’s sentencing authority. Id. Because the hybrid sentence did “not fall within the specific limitation on inherent judicial power specified in the 1978 amendment to art. 5, § 13,” the Court further held that “the trial courts are free to exercise their inherent power to impose the fixed term sentences they consider appropriate.” Id. Similar to the sentencing statute in Sarabia, Idaho Code section 18- 1 The statute at issue in Sarabia was Idaho Code section 37-2732B. In response to Sarabia, the legislature amended the statute to “no longer provide[ ] any means by which the mandatory sentences may be reduced.” State v. Puetz, 129 Idaho 842, 843–44, 934 P.2d 15, 16–17 (1997). 7 8311(1) is also a “hybrid” statute in the sense that its interpretation as a mandatory minimum sentence reaches back and restrains the court’s sentencing authority for a discretionary sentence already imposed and managed by the court. We conclude that Idaho Code section 18-8311(1) fails to impose a mandatory minimum sentence as contemplated by Article V, Section 13. Therefore, we adopt the interpretation of Idaho Code section 18-8311(1) that does not restrict the court’s authority to suspend the offender’s original sentence. Absent the legislature’s proper exercise of authority granted in Article V, Section 13, the courts retain their inherent power to suspend or reduce a sentence. Sarabia, 125 Idaho at 817, 875 P.2d at 229; McCoy, 94 Idaho at 240, 486 P.2d at 251. In this case, the district court appropriately used its discretion to sentence Olivas for his original offense and to set the penalty for his probation violation. The district court continued to have the discretion to manage Olivas’s probation violation for his original offense after abiding by any directives in Idaho Code section 18-8311(1). “Once a probation violation has been proven . . . the decision of whether to revoke probation and impose a suspended sentence is within the sound discretion of the trial court.” State v. Blake, 133 Idaho 237, 243, 985 P.2d 117, 123 (1999) (citing State v. Knowlton, 123 Idaho 916, 921, 854 P.2d 259, 264 (1993)); see also State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007). The district court did not err by suspending Olivas’s original sentence for sexual abuse of a child and placing him on probation after the second period of retained jurisdiction.",analysis
+319,4541018,1,1,"A county board of adjustment affirmed the grant of a zoning permit for construction of a new residence within an agricultural intensive district. The district court affirmed. The ultimate issue is whether the proposed residence was a “non-Farm residence” under the zoning regulations. Construing the regulations as a whole and giving them a reasonable construction, we find no abuse of discretion or legal error. Therefore, we affirm the judgment. - 323 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321",introduction
+320,4541454,1,2,"We review a circuit court’s entry of summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). “The question to be decided on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined.” Syllabus Point 5, Aetna Casualty & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). We have repeatedly held that under Rule 56(c) of the West Virginia Rules of Civil Procedure, “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, id. “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to 6 find for the nonmoving party[.]” Syllabus Point 4, in part, Painter, 192 W. Va. at 190, 451 S.E.2d at 756. Moreover, we have explained that: Roughly stated, a “genuine issue” for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the nonmoving party can point to one or more disputed “material” facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law. Syllabus Point 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). Finally, we are cognizant that a plaintiff bears the burden of proof at a trial on the merits, and therefore “a plaintiff only is entitled to summary judgment where his evidence is so strong that he would be entitled to a directed verdict at trial.” Williams v. Precision Coil, Inc., 194 W. Va. 52, 62 n.17, 459 S.E.2d 329, 339 n.17 (1995). We now examine the record and the parties’ arguments to assess whether the defendant presented any genuine issue of material fact, or whether inquiry concerning the facts is desirable to clarify the application of the law.",standard of review
+321,1250238,1,1,"Stated as issues by appellant are: I. Whether the order terminating appellant's parental rights is void because the case was filed by Marianne Lee, Director of DPASS, and not by an attorney authorized to practice law in this state. II. Whether the court erred in granting summary judgment. III. Whether the district court's order should be reversed because the district court did not make specific findings as to the grounds for termination of appellant's parental rights. We add the dispositive problem addressed in In Interest of DG of the lack of jurisdiction because of the failure to secure proper service of process. Gookin v. State Farm Fire & Casualty Ins. Co., 826 P.2d 229 (Wyo. 1992); Interest of DG, 825 P.2d 369 (Wyo. 1992).",issues
+322,1296652,1,4,"Certain well-established principles of Nebraska law form the foundation for our resolution of the questions of law certified by the U.S. District Court. An insurance policy is a contract. Ohio Cas. Ins. Co. v. Carman Cartage Co., 262 Neb. 930, 636 N.W.2d 862 (2001); Callahan v. Washington Nat. Ins. Co., 259 Neb. 145, 608 N.W.2d 592 (2000); Neb.Rev.Stat. § 44-102 (Reissue 1998). Parties to an insurance contract may contract for any lawful coverage, and the insurer may limit its liability and impose restrictions and conditions upon its obligation under the contract not inconsistent with public policy or statute. Hood v. AAA Motor Club Ins. Assn., 259 Neb. 63, 607 N.W.2d 814 (2000); American Family Ins. Group v. Hemenway, 254 Neb. 134, 575 N.W.2d 143 (1998). In an appellate review of an insurance policy, the court construes the policy as any other contract to give effect to the parties' intentions at the time the writing was made. Where the terms of a contact are clear, they are to be accorded their plain and ordinary meaning. Austin v. State Farm Mut. Auto. Ins. Co., 261 Neb. 697, 625 N.W.2d 213 (2001); Callahan v. Washington Nat. Ins. Co., supra .",introduction
+323,1335351,1,1,"Appellant Douglas D. Cottrill and Appellee Patricia A. Cottrill were married on October 29, 1966. During their marriage, the couple had three children: Kim, born February 14, 1967; Kevin, born September 15, 1972; and Jessica, born October 10, 1976. After 14 years of marriage, the Cottrills were divorced in September, 1980. At the time of the divorce, the children were ages 13, 8 and 3, respectively. Mrs. Cottrill was granted custody of the children, and Mr. Cottrill was ordered to pay child support in the amount of sixty dollars per child, per month. On July 12, 1988, the circuit court entered an Order adopting the recommendation of the then-Family Law Master that Mr. Cottrill's income be subject to withholding for child support arrearage. At that time, the children were ages 21, 15, and 11, respectively. It was found that an arrearage in the amount of $11,100.00 had accumulated. Because one of the Cottrill's three children had reached the age of majority, only $120 per month was ordered to be withheld for monthly child support. [1] Another 10% of Mr. Cottrill's monthly disposable income was withheld to be applied to the arrearage. On January 29, 2004, over nine years after the Cottrill's last child had reached the age of majority, the Family Court of Harrison County entered an Order to Show Cause in response to the Bureau of Child Support Enforcement's (hereinafter, the BCSE) petition alleging Mr. Cottrill's contempt for failure to pay child support. That petition alleged that an arrearage of $40,349.09 had accumulated. A hearing on the matter was originally scheduled for April 21, 2004, but was rescheduled to October 27, 2004. Mr. Cottrill, appearing pro se, maintained that he paid child support directly to Mrs. Cottrill and/or the couple's children. Mrs. Cottrill, however, asserted that she was not paid by Mr. Cottrill and that she had no knowledge of whether he ever paid the children. [2] Mr. Cottrill could not produce any documentation of payment, but explained at the April 21, 2004, hearing: This many years, I'd never be able to keep anything this long. Where I did have some papers, all my military stuff and everything else burned down about four or five years ago; six years ago. I have no way to prove anything. And I couldn't afford to have a lawyer come up here with me, and I wouldn't have anything to give him to back me up anyway. I don't have anything. Mr. Cottrill maintained, though, that he generally paid his child support payments. He also asserted that $1200 in child support had been intercepted from money due to him. In its Order of November 3, 2004, the family court determined that because the Child Support Advocate Office was not created until late 1986, January 1, 1987, would be a reasonable starting date for the purpose of calculating any arrearage. The family court's order further stated, The defense of the Statute of Limitations has not been raised by Douglas D. Cottrill, and the court does not do so now. Based on the calculations of the BCSE for the period of January 1, 1987, through September 30, 2004, the family court ordered Mr. Cottrill to pay principal child support arrears of $7,190 with interest in the amount of $2314.25, for a total of $9,504.25. The court found no contempt. Mr. Cottrill, again acting pro se, filed an appeal before the circuit court on November 16, 2004. In that appeal, Mr. Cottrill, seizing on language contained in the family court's Order, raised the issue of the statute of limitations, arguing that such a defense was not known to him until the family court mentioned it in its order. He also argued that the family court's Order created an undue financial burden on him. Neither Mrs. Cottrill nor the BCSE filed a response to the petition. After examining the record, the circuit court refused the petition for appeal. Specifically, the circuit court determined that the Statute of Limitations is an affirmative defense which must affirmatively be raised either prior to the hearing in the party's pleadings or at the hearing by way of amendment of the pleadings. The circuit court concluded that because Mr. Cottrill did not raise the defense prior to or during the hearing before the family court, it could not now consider the defense on appeal. The circuit court further found that the family court had not otherwise erred or abused its discretion. Mr. Cottrill now appeals.",facts
+324,853031,1,1,"The evidence most favorable to the judgment indicates that on the morning of May 19, 2000, after Defendant had gone to work, A.C. complained to her mother that her `moo moo' hurt. She told her mother that her daddy put his fingers in her `moo moo' and that it hurt real bad. She also told her mother that her daddy's `moo moo' spit on her. In addition to A.C.'s statements to her mother, the following additional evidence is of significance in this case: (1) the testimony of A.C.'s maternal grandfather as to a conversation he had with A.C. shortly after May 19, 2000; (2) a videotaped interview of A.C. conducted by Detective Karen Dague and Amy Hinshaw from Child Protective Services on May 19, 2000; and (3) a medical examination of A.C. conducted by Dr. Philip Merck at Wishard Memorial Hospital on May 19, 2000. The details of all of this evidence will be discussed infra. Prior to the trial, Master Commissioner Diane Marger Moore conducted a Child Hearsay Hearing in which she determined that A.C. was not competent to testify. A.C. was cross-examined by defense counsel during this hearing. The trial court went on to rule that A.C.'s mother and grandfather could testify at trial as to the statements A.C. made to them and that the jury could view Dague and Hinshaw's videotaped interview with A.C.",facts
+325,1665404,1,1,"The defendants question that the dismissal without prejudice entered by the trial court was a final judgment from which an appeal can be taken, and hence the jurisdiction of this Court to adjudicate the complaints of error. They rest on the holding of the court of appeals in Mullins v. Miller, 796 S.W.2d 119 (Mo.App.1990), that a dismissal without prejudice under § 538.225.5 for failure to comply with the affidavit requirement of the statute is not a final judgment for the purpose of appeal. Mullins draws that conclusion of law from the premises of Rule 67.03 that a dismissal without prejudice permits the party to bring another civil action for the same cause and from the general principle that, [w]ith exceptions ... a dismissal without prejudice is not an adjudication on the merits. A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided. Douglas v. Thompson, 286 S.W.2d 833, 834 (Mo.1956). When the effect of the order is to dismiss the plaintiff's action and not the pleading merely, then the judgment entered is final and appealable. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, 122 (banc 1949). The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal—albeit without prejudice—amounts to an adjudication on the merits and may be appealed. Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962); Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App.1985). This train of exceptions serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides. Healy v. Atchison, Topeka & Santa Fe R.R. Co., 287 S.W.2d 813, 815 (Mo.1956); Douglas v. Thompson, 286 S.W.2d at 834. It is explicit in § 538.255.5 that the dismissal without prejudice sanction for failure to file the health care provider affidavit is a dismissal of the action, and not merely the petition. It is a judgment that the action may not continue. The plaintiffs here have not sought an order for an extension of time to produce the affidavits as a response to the motion to dismiss, but stand on the right under the state and federal constitutions to maintain the action unencumbered by that requirement. It would be redundant as well as futile to put the plaintiffs to the precondition of a new petition. A dismissal without prejudice is the only sanction that § 538.225 allows for noncompliance with the affidavit condition. Unless an appeal lies from the judgment, the right to test the constitutionality of the statute that imposes it will be lost to the plaintiffs and the question—although bound to recur—will languish. The judgment of dismissal without prejudice under § 538.225.5 is final and appealable. The holding to the contrary in Mullins v. Miller, 796 S.W.2d 119 (Mo.App. 1990) is overruled. This Court has jurisdiction. Mo. Const., art. V, § 3. The defendants Doerhoff suggest a second impediment to our exercise of appellate jurisdiction. They cite Rule 87.04 to require notice to the Attorney General of Missouri in any proceeding wherein a statute is alleged to be unconstitutional, and the neglect of the plaintiffs to comply although they seek to invalidate § 538.225. They assert that such failure raises a jurisdictional question. In support of the contention they mention, but without exposition, Land Clearance for Redevelopment Authority of St. Louis v. City of St. Louis, 270 S.W.2d 58 (Mo. banc 1954), and Yellow Freight Systems v. Mayor's Comm'n. on Human Rights, 737 S.W.2d 250 (Mo.App.1987). Rule 87.04 rescripts § 527.110, RSMo 1986. The entirety of Rule 87 and Chapter 527, of which Rule 87.04 and § 527.110 are subparts, is entitled DECLARATORY JUDGMENTS. The text of these provisions is drawn from and identical to § 11 of the UNIFORM DECLARATORY JUDGMENTS ACT. See, Unif. Declaratory Judgments Acts § 11, 12 U.L.A. 516 (1975). The two cases cited by the defendants Doerhoff, as well as all of the Missouri cases that construe Rule 87.04 are declaratory judgment actions. Indeed, every case that has dealt with that section of the uniform act, either as rule or statute and whether within or without Missouri, has involved only the sui generis declaratory judgment remedy. See Rule 87.04 and Unif. Declaratory Judgments Act § 11, 12 U.L.A. 516 (1975). In actions for declaratory judgment that challenge the constitutionality of a statute, our law follows the general rule that notice to the Attorney General is mandatory. Land Clearance for Redevelopment Authority, 270 S.W.2d at 63. This is not an action for declaratory judgment.",jurisdiction
+326,1805210,1,1,"The Mobile Housing Authority entered into a contract with the Mobile County Sheriff's Department pursuant to which the sheriff's department is permitted to enter housing areas governed by the housing authority at the request of the housing authority and performs such policing activities as rolling patrols, foot patrols, community policing, and safety checkpoints to establish some sort of police presence. Pursuant to that contract, the Mobile County Sheriff's Department entered the R.V. Taylor housing project in Mobile on the evening of May 10, 2001, to set up what they called a safety checkpoint at a major intersection in the housing community. The housing authority had made no particular request for a roadblock-type stop in this instance; a captain in the sheriff's department made the decision to set up the roadblock-type stop. The officers checked driver's licenses, automobile insurance documentation, and vehicle safety devices, e.g., seat belts, child restraints, etc., at the roadblock-type stop. They put in place seven marked sheriff's department vehicles at the intersection and stopped every vehicle that came through the intersection. They followed guidelines established by the sheriff's department while conducting the roadblock-type stop; those guidelines required that they perform no random searches and that the officers' activities be supervised by superior officers in the sheriff's department. An officer stopped Jackson's vehicle at the roadblock. The officer discovered marijuana and two rolls of cash on Jackson's person; a larger quantity of marijuana in the console between the driver's seat and the passenger's seat; hidden under the tire cover in the trunk of Jackson's vehicle was an Old Navy store shopping bag that contained more marijuana, scales, and numerous plastic sandwich bags. At trial, Jackson filed a motion to suppress the marijuana found on his person and in his vehicle on the basis that the roadblock-type stop was an unreasonable seizure that violated the Fourth Amendment to the United States Constitution. [2] After his conviction for first-degree unlawful possession of marijuana, Jackson filed a motion for a new trial, which the trial court denied. The trial court sentenced Jackson, as a habitual offender, to 15 years in prison; that sentence was split, and Jackson was ordered to serve 3 years in prison and 5 years' supervised probation. In his appeal to the Alabama Court of Criminal Appeals, Jackson argued that the trial court erred on the basis that the roadblock-style stop was an unreasonable seizure that violated the Fourth Amendment to the United States Constitution. The Alabama Court of Criminal Appeals affirmed without an opinion. We affirm.",facts
+327,2520495,1,11,"[¶16] Whether plain error occurred because the prosecution failed to prove Officer Hood was in the lawful performance of his official duties, an essential element of the crime charged. [¶17] Brown maintains that [e]ven accepting Officer Hood's testimony in its entirety, there is no showing that Officer Hood was in the lawful performance of his official duties when he grabbed Mr. Brown by the arm and told him he was under arrest. This is true because Officer Hood lacked any probable cause whatsoever to arrest Mr. Brown.",issues
+328,1224665,1,2,"Section 9 of HRS chapter 37D governs our review of questions regarding financing agreements. It provides: The director of finance may petition the supreme court for an opinion as to the validity of any financing or related agreements entered into pursuant to the provisions of this chapter. The petition shall constitute a case for purposes of section 602-5, and the supreme court shall have exclusive and original jurisdiction to receive and determine the question presented in the petition, irrespective of an actual controversy or dispute regarding the agreement or its validity. When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. State v. Toyomura, 80 Hawai`i 8, 18, 904 P.2d 893, 904 (1995) (citation and internal quotation marks omitted). A statute is ambiguous if it is capable of being understood by reasonably well-informed people in two or more different senses. Id. Reading the statute as a whole, it is unclear whether the legislature intended to limit our review to financing agreements entered into by agencies or intended, irrespective of an actual controversy or dispute, that we should review the kinds of proposed agreements presented by the Director for our review. Thus, we resort to the legislative history, to determine legislative intent as to our jurisdiction. See, e.g., Bragg v. State Farm Mut. Auto. Ins. Co., 81 Hawai`i 302, 306, 916 P.2d 1203, 1207 (1996); [4] Pacific Int'l Services Corp. v. Hurip, 76 Hawai`i 209, 217, 873 P.2d 88, 96 (1994) (when construing an ambiguous statute, courts may refer to the legislative history as an interpretive tool). By enacting chapter 37D, the legislature sought to avoid jeopardizing the ratings of the State's bonds and implemented a judicial review provision authorizing the Director to petition the Supreme Court for an opinion on whether municipal leases count against the debt ceiling. Hse. Conf.Comm.Rep. No. 112, in 1996 House Journal, at 1015. From this language, along with the purpose and intent language of Act 119, § 1, quoted above, we conclude that the legislature intended that this court should consider general questions regarding the validity of proposed financing agreements and did not limit our review to actual, individual financing agreements. [5] Thus, we conclude that we have jurisdiction to answer the question submitted.",jurisdiction
+329,4526534,1,1,"After a will contest was transferred from the county court to the district court, the proponent sought and obtained a summary judgment determining that the decedent’s will was valid. The contestant appeals. Because the bill of exceptions does not contain the proponent’s evidence, only the contestant’s evidence is properly before us. Obviously, with literally no evidence to support it, the summary judgment for the proponent must be reversed. And because the matter is likely to recur upon remand, we briefly address Neb. Ct. R. § 6-1526 (rev. 2018), “Summary Judgment Procedure.”",introduction
+330,2219928,1,3,"Before this court, petitioner characterizes the main issue of this case as the proper interpretation of section 1-130 of the Code, which holds that taxable real estate includes all rights and privileges belonging or pertaining thereto. 35 ILCS 200/1-130 (West 2004). As this is an issue of statutory interpretation, petitioner contends de novo review is proper. Petitioner also contends that the appropriate property tax assessment methodology is at issue as well, and that this too should be reviewed de novo. Respondents argue that this case involves a mixed question of law and fact. Respondents admit that the PTAB was required not only to construe the meaning of section 1-130 of the Code, which is a question of law to be reviewed de novo. However, respondents claim that the PTAB also had to make factual findings as to whether there was some basis for each appraiser's valuations. Respondents then contend that the PTAB had to apply these facts to determine whether the right to store gas in the reservoirs was a right attributable to the subject property. According to respondents, this law-to-fact application should be reviewed under the clearly erroneous standard. We initially note that we are not charged with the responsibility of determining the market value of the subject property. Rather, the central question before us is whether the PTAB's decision to reduce petitioner's tax assessments for the 2000 and 2001 tax years was correct. The determination turns on whether petitioner employed a proper valuation method in assessing the subject property. More particularly, it turns on whether the easements, governmental permits, and rights to utilize the reservoirs for gas storage should be considered rights and privileges belonging or pertaining to the subject property. Accordingly, our first determination is one of statutory construction, which is reviewed de novo. Fisher v. Waldrop, 221 Ill.2d 102, 112, 302 Ill.Dec. 542, 849 N.E.2d 334 (2006). Following that, we must determine whether the PTAB considered appraisals that utilized the proper methodology for the valuation of the subject property. This, too, is a legal question to be reviewed de novo. Kankakee County Board of Review v. Property Tax Appeal Board, 131 Ill.2d 1, 14, 136 Ill.Dec. 76, 544 N.E.2d 762 (1989). See also United Airlines, Inc. v. Pappas, 348 Ill.App.3d 563, 569, 284 Ill.Dec. 169, 809 N.E.2d 735 (2004) (This appeal requires us to examine the appropriateness of the valuation methodology used by taxpayer's expert in valuing the leasehold interest to support its objection to the leasehold's assessed value.    Therefore, our standard of review relating to the question of law at issue in this appeal is de novo ); Board of Review v. Property Tax Appeal Board, 304 Ill.App.3d 535, 538, 238 Ill.Dec. 118, 710 N.E.2d 915 (1999) (Where the propriety of the method of valuation is challenged    the issue is one of law).
+Section 1-130 of the Code defines taxable property as [t]he land itself, with all things contained therein, and also all buildings, structures and improvements, and other permanent fixtures thereon,    and all rights and privileges belonging or pertaining thereto, except where otherwise specified by this Code. 35 ILCS 200/1-130 (West 2004). Petitioner contends that, by choosing to include the words belonging or pertaining in the definition, the General Assembly intended another property right short of fee simple ownership. In construing a statute, we must give effect to the intention of the legislature so that each word, clause, or sentence is given reasonable meaning and not deemed superfluous or void. Quad Cities Open, Inc. v. City of Silvis, 208 Ill.2d 498, 508, 281 Ill.Dec. 534, 804 N.E.2d 499 (2004). A tax statute must be strictly construed against the government and in favor of the taxpayer. Van's Material Co. v. Department of Revenue, 131 Ill.2d 196, 202, 137 Ill.Dec. 42, 545 N.E.2d 695 (1989); Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill.2d 470, 475, 234 Ill.Dec. 189, 702 N.E.2d 529 (1998). `The primary meaning, and also the common and ordinary meaning, of the word belong, is to be the property of.' In re Estate of Ostrowski, 3 Ill.App.2d 431, 435, 122 N.E.2d 596 (1954). See also Black's Law Dictionary 164 (8th ed.2004) (defining belong as [t]o be the property of a person or thing). Petitioner maintains that, if belonging connotes ownership of rights or privileges, the disjunctive reference to pertaining in section 1-130 of the Code must indicate something different and broader than mere ownership of said rights and privileges. Pertain is defined as [t]o relate to; to concern. Black's Law Dictionary 1181 (8th ed.2004). There is no dispute by either party that the reservoirs at issue belong, proportionately, to those who own the surface land directly above them. See Jilek v. Chicago, Wilmington & Franklin Coal Co., 382 Ill. 241, 248, 47 N.E.2d 96 (1943) (The owner in fee owns to the center of the earth). Petitioner argues, however, that the easements and governmental permits that allow taxpayer to utilize the portions of the reservoirs not under the subject property make up a bundle of rights that pertains to the subject property, thus enhancing its value beyond that of the neighboring industrial or farming property. According to respondents, all of petitioners' arguments contain the same fundamental flaw: incorrectly assuming that the gas storage rights that taxpayer obtained and exercised benefitted the subject property, and not taxpayer's business. We agree with respondents and find that, while pertain, for purposes of section 1-130 of the Code, might imply a less rigid connection than belong, there still must be some direct relationship between the rights and the property at issue. For the following reasons, we find that petitioner has not established such a relationship.
+The first components of the bundle of rights which petitioner contends pertain to the subject property are the easements that allow taxpayer to operate its pipes and wells on the 15,600 acres of property owned by others that surrounds Compressor Station 201. Petitioner concedes that these easements are easements in gross that name taxpayer, and not the subject property, as their beneficiary, but maintains that the classification of the easements is irrelevant because the easements provide only part of the basis for taxpayer's exclusive storage rights. Petitioner argues that, because the easements are only part of the bundle of rights, their classification is not determinative. Further, according to petitioner, there is no legal authority to support the contention that easements in gross may not be considered as rights and privileges of a particular property. An easement appurtenant is created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. Black's Law Dictionary 549 (8th ed.2004). An easement appurtenant runs with the land and may be transferred. Traylor v. Parkinson, 355 Ill. 476, 479, 189 N.E. 307 (1934). An easement in gross is defined as [a]n easement benefiting a particular person and not a particular piece of land. Black's Law Dictionary 549 (8th ed.2004). See also Traylor, 355 Ill. at 479, 189 N.E. 307 (easement in gross is personal and nontransferable). The Dickman easement, found to be representative, reads, This instrument made this [date] by record owner [name of the fee landowner], herein referred to as Grantors, is in favor of Natural Gas Storage Company of Illinois, a Delaware corporation, herein referred to as Grantee. Such wording clearly indicates that these easements are in gross, and benefit taxpayer rather than the subject property, as petitioner concedes. We find, contrary to petitioner's unsupported argument, that the classification of the easements in question is relevant here. Were the easements at issue here appurtenant, naming the subject property as the beneficiary of the right to place wells and pipes on the land of others, then such right would be attributed to the subject property and assessable by petitioner. The easements in question, however, are easements in gross, benefitting taxpayer, and not the subject property. Petitioner's contention that the legal effect of the easements is somehow negated by the fact that they are part of a bundle of rights has no support in logic or the law. Accordingly, we find that the easements in question do not pertain to the subject property.
+Petitioner next argues that certain passages in the orders of the ICC and FPC, as well as taxpayer's correspondence with those agencies, serve as evidence that the rights and privileges to the reservoirs that accrued to the taxpayer pertain to the subject property. Petitioner initially notes that the September 1952 order of the FPC, which granted taxpayer the right to construct Compressor Station 201 and utilize the reservoirs, includes the words storage rights in approximately 15,000 acres    together with all necessary and appropriate consents, permits, contracts, easements, rights-of-way, and other interests in property pertaining to or used in connection with the storage project. Petitioner notes that the FPC used the term pertaining, which is the statutory term at issue here. Petitioner argues that the PTAB incorrectly concluded that the method of assessing the subject property may not take account of these pertaining underground storage rights. Petitioner also details the history of the creation of Compressor Station 201 and the use of the reservoirs, concluding that the history of regulatory approvals leading to the development of the gas storage project shows that the reservoirs were intended to be operated as a single facility which would necessarily be managed and controlled from one control center, wherever constructed. In support of its contention, petitioner cites two 1952 orders from the ICC and FPC, each granting taxpayer the right to acquire ownership in fee simple or by other estate of parcels of real estate within or adjacent to the storage area necessary for the erection of compression plants, dehydration plants, and any structures appurtenant thereto, [and] lay gathering lines to connect them to the centrally located compressor station and dehydration plant. Petitioner also relies on a 1959 supplemental order from the ICC as well as a 1959 legal notice that ran in the Kankakee Daily Journal. These provide that taxpayer owns and operates (under authority of certificates of public convenience and necessity issued to it by the FPC) an aquifer-type underground storage reservoir near Herscher. Petitioner asserts that these passages from the recorded history of regulatory approval leading up to the development of the gas storage operation show plainly that the reservoirs were intended to be operated in union with a compressor station located in their vicinity. Petitioner contends that, since Compressor Station 201 is located on the subject property, the subject property cannot then be separated from the reservoirs for valuation purposes. Illinois case law is consistent in holding that government permits, ordinances, licenses, orders, or regulatory approvals do not create assessable entities. See, e.g., Boland v. Walters, 346 Ill. 184, 188, 178 N.E. 359 (1931) (a license in respect to real property is merely a privilege to do certain things on land without being an estate itself); Dimucci Home Builders, Inc. v. Metropolitan Life Insurance Co., 312 Ill.App.3d 779, 782, 245 Ill.Dec. 667, 728 N.E.2d 749 (2000) (permits are not conveyances of title); Pasquinelli v. Village of Mundelein, 257 Ill.App.3d 1057, 1062-63, 1065, 196 Ill.Dec. 416, 630 N.E.2d 113 (1994) (permits and village board approvals to operate a sewer line are not indicia of ownership). Central Illinois Public Service Co. v. Swartz, 284 Ill. 108, 119 N.E. 990 (1918), is instructive. In Swartz, the plaintiff was granted, by ordinance, the right to construct and maintain an electric plant as well as electric poles and wires in the town of Bushnell. Swartz, 284 Ill. at 110, 119 N.E. 990. When the property of the plaintiff was assessed for taxation, the assessor included the franchise, got through an ordinance of the city of Bushnell, to operate a plant in the city. Swartz, 284 Ill. at 110, 119 N.E. 990. The Swartz court rejected the assessment of the franchise as tangible property. Swartz, 284 Ill. at 112, 119 N.E. 990. Specifically, it stated, This permission or license exists independently of the poles, wire, apparatus, machinery or other means whereby it may be available. It attaches not to the tangible property of the corporation but to the franchise, and would remain and be available to the corporation if all its tangible property were destroyed. Swartz, 284 Ill. at 112, 119 N.E. 990. In the instant case, all of the ICC and FPC orders attached to taxpayer, and not to the subject property. Just as in Swartz, should the taxpayer choose to leave the subject property, or suffer any destruction of its tangible property, the orders would remain in place, continuing to benefit taxpayer regardless of where its property was located. See also Quantum Pipeline Co. v. Illinois Commerce Comm'n, 304 Ill.App.3d 310, 315-17, 237 Ill.Dec. 481, 709 N.E.2d 950 (1999) (permit issued by the ICC grants only a business right, not one of property). Accordingly, we find that the ICC and FPC orders did not, as petitioner alleges, create an indivisible union between the subject property and the reservoirs. Rather, the rights to the reservoirs accrue to taxpayer, and do not pertain to the subject property. We note that petitioner attempts to draw an analogy between governmental orders such as those at issue in the instant case and property zoning. Petitioner argues that, just as zoning changes can affect the use of property and therefore its value, the rights to use the reservoir, which arise from easements and governmental rulings which have transpired over 50 years, enhance the value of the subject property. We find no merit in this argument. Zoning regulations apply to particular properties and not their owners. See Lake Forest Chateau, Inc. v. City of Lake Forest, 133 Ill.2d 129, 131, 139 Ill. Dec. 824, 549 N.E.2d 336 (1989) (zoning ordinances apply to property). As noted, the government orders at issue here accrue to taxpayer and not the subject property. Accordingly, petitioner's analogy to zoning is unpersuasive. In light of our holdings above regarding easements and government permits, we find that the rights and privileges taxpayer enjoys to the reservoirs neither belong nor pertain to the subject property for purposes of section 1-130 of the Code.
+Petitioner next contends that regardless of whether the rights and privileges to the reservoirs are tied to it through any recorded basis or legal title, the subject parcel's proximity to the reservoirs enhances its value. Petitioner argues that Illinois courts routinely acknowledge that property value may increase or decrease due to elements that lay beyond the boundaries of the property. In support of its argument petitioner points to cases such as Lake County Board of Review v. Property Tax Appeal Board, 91 Ill.App.3d 117, 122, 46 Ill.Dec. 451, 414 N.E.2d 173 (1980) (property adjoining or in close proximity to a body of water, a park, golf course or other scenic view may well have an increased value because of its location), O'Brien v. City of O'Fallon, 80 Ill.App.3d 841, 36 Ill.Dec. 36, 400 N.E.2d 456 (1980) (value of house on lake impaired when sewage discharged into lake), and Illinois Light & Power Co. v. Bedard, 343 Ill. 618, 175 N.E. 851 (1931) (it is common knowledge that land located near a body of water is worth more than land located elsewhere). Petitioner then cites Board of Education of Township High School District 205 v. Property Tax Appeal Board, 142 Ill. App.3d 853, 96 Ill.Dec. 408, 491 N.E.2d 454 (1986), as an example of how location alone can enhance a property's value. In Board of Education, the property to be valued was a hydroelectric power plant. Board of Education, 142 Ill.App.3d at 854-55, 96 Ill.Dec. 408, 491 N.E.2d 454. The Board of Education court held that the PTAB properly valued the plant by using the income approach applied to the power-generating capacity and potential income of the plant. Board of Education, 142 Ill.App.3d at 857, 96 Ill.Dec. 408, 491 N.E.2d 454. Petitioner asserts that in both Board of Education and the instant case, the property at issue houses a control center type facility that utilizes a resource not found within the boundaries of that property. Petitioner maintains that the hydroelectric power plant in Board of Education, which takes its power from the river that begins and ends outside the boundaries of the property, is directly analogous to Compressor Station 201 here, which is used to access the natural gas stored in the reservoirs that lay mostly outside the subject property. We do not dispute petitioner's argument that amenities or resources situated beyond a property's boundaries can increase its value. The difference between the properties in the cases petitioner relies on and the subject property, however, is one of market value. There is and will always be a market for properties with access to water, golf courses, and countless other features that hold value to prospective purchasers. There is no similar market for the subject property. Any purchaser who might acquire the subject property would not be able to utilize the reservoirs. This is because taxpayer, and not the subject property, holds exclusive rights, obtained through easements and government orders, to use the reservoirs. Thus, the right and privilege of being close to the reservoirs is not a marketable asset, and the market value of the subject property is not enhanced beyond that of other industrial or farming properties in the area. Moreover, Board of Education does not support petitioner's contention. In Board of Education, the income approach to valuation was proper because the plant generated income due solely to its proximity to the river. The ability of a hydroelectric plant to generate income is directly tied to its location. A plant in a location away from the river would not be able to generate the same income. In the instant case, there is no similar need for the compressor station to be located on the subject property. Testimony has established that the compressor station could have been located anywhere in the area, even 16 miles away from the reservoirs along the main pipeline. In contrast to the hydroelectric plant, which derived its entire income value from its location on a river, the location of the compressor station, whether above the reservoirs or otherwise, has no real impact on the income it produces. Therefore, we find Board of Education to be inapplicable to the instant case. Petitioner makes the argument that changes to the control center are forbidden without approval from FERC and the ICC, and that moving a gas storage control center with all its related equipment and connecting entities cannot be readily accomplished. This argument is misplaced. The issue is not whether Compressor Station 201 can be moved, but rather whether its income is derived from its location. Petitioner next contends that even if the compressor station were moved, the taxable character of the rights and privileges related to the reservoirs would not change, but would move with the compressor station. But this argument actually supports respondents' contention that the rights and privileges to the reservoirs do not pertain to the subject property. Accordingly, we find that the PTAB did not err when it relied on market value appraisals which did not attribute added value to the subject property due to its proximity to the reservoirs.
+Petitioner relies on People ex rel. City of Chicago v. Upham, 221 Ill. 555, 77 N.E. 931 (1906), as an example of this court interpreting the statutory definition of real property now found in section 1-130 of the Code and applying a broad concept of rights and privileges. Petitioner contends that Upham provides sufficient authority to consider the rights and privileges of the reservoirs in the assessment of the subject property. In Upham, the respondent telephone and telegraph companies, by virtue of city ordinances, constructed cement tunnels beneath Chicago city streets to facilitate their businesses. Upham, 221 Ill. at 558, 77 N.E. 931. The ordinances authorized the corporations to maintain the tunnels for 30 years, at which time the tunnels could become the property of the city. Upham, 221 Ill. at 558, 77 N.E. 931. The petitioner contended that the tunnels were taxable assets that it should assess. Upham, 221 Ill. at 559, 77 N.E. 931. The respondent conceded that the tunnels were subject to assessment for taxation, but contended that since they were constructed below public streets, the taxable interest was one of intangible use, and not one of real property to be assessed by local assessors. Upham, 221 Ill. at 559, 77 N.E. 931. The Upham court found that while it is true the title to the streets of Chicago is in the city, the [corporations], by virtue of said ordinances, clearly have `rights and privileges' belonging and pertaining to the soil in which the tunnels are constructed, separate and apart from the fee of the streets, which rests in the city. Upham, 221 Ill. at 560, 77 N.E. 931. The Upham court held that the tunnels had an existence separate from the city streets above and were real property in the same way that a bridge or a pier has a separate existence from the land upon which it is constructed. Upham, 221 Ill. at 560, 77 N.E. 931. The fact that the tunnels were situated below city streets not subject to assessment for taxation had no bearing on this court's determination that the tunnels were real property. Upham, 221 Ill. at 561, 77 N.E. 931. See also People ex rel. New York & Harlem R.R. Co. v. Commissioners of Taxes & Assessments, 101 N.Y. 322, 326, 4 N.E. 127, 128 (1886) (tunnels under city streets should be treated and assessed as real property). We find Upham distinguishable and insufficient authority to support a finding that the rights and privileges taxpayer enjoys to the reservoirs are assessable to the subject property. The issue in Upham was whether the underground tunnels were real property or an intangible right. Upham, 221 Ill. at 560, 77 N.E. 931. There is no disagreement in the instant case as to whether the reservoirs are real property or whether they have an existence separate from the land under which they lay. The issue here is whether respondents' rights to utilize the reservoirs pertain to and should be assessed to the subject property. Upham provides no guidance on this issue. Further, there is a fundamental difference between the man-made tunnels in Upham and the naturally occurring reservoirs in the instant case. Piers, bridges, and underground tunnels create new property where none existed before, in spaces that were heretofore nonassessable. Piers extend into water, bridges soar into air, and tunnels create space below the surface of land. Upham holds that such man-made creations have a separate existence from the land in which they are constructed, and are assessable real property belonging to their constructors. Upham, 221 Ill. at 560, 77 N.E. 931. This differs greatly from the reservoirs at issue here, which are natural formations already owned by those who own the surface land above them. As such, we find that Upham has no bearing on the issues of the instant case and does not support petitioner's argument that taxpayer's right to utilize the reservoirs should be assessed to the subject property.
+Petitioner lastly argues that the PTAB committed evidentiary errors requiring reversal when it refused to require the appearance of Puckett at a hearing and allowed McFadden to testify about the difference between easements appurtenant and easements in gross. Petitioner argues that Puckett's testimony was essential because Puckett was DeClark's primary tour guide and that some of the information relied upon by DeClark in performing his analysis was provided by Puckett. In regard to McFadden, petitioner contends that his testimony amounted to legal conclusions, which are not properly admitted. Absent some indication that a restriction on evidence has a prejudicial impact upon an administrative proceeding, any error in that regard does not rise to the level of reversible error. Kankakee County Board of Review v. Property Tax Appeal Board, 337 Ill.App.3d 1070, 1076, 272 Ill.Dec. 679, 787 N.E.2d 865 (2003). After carefully reviewing the record, we agree with the PTAB and the appellate court that petitioner has not demonstrated how it was prejudiced by Puckett's absence. The testimony of Floyd Hofstetter provided ample information about the operation of the compressor station and the utilization of the reservoirs. As to McFadden's testimony, which was about the differences between easements appurtenant and easements in gross, we note that petitioner concedes that the easements here are in gross. Accordingly, after reviewing the record, we do not find his appearance at the hearing constitutes reversible error.",analysis
+331,886317,1,4,"¶ 43 Whether the District Court erred in determining that Sandtana's late tender of rentals caused the subject oil and gas leases to terminate as to all undeveloped sections. ¶ 44 We determined in the previous issue that a producing well had been drilled in Section 19 of the leased lands thereby requiring, under the Pugh clauses, that annual rentals be paid on all of the leased lands outside of Section 19 in order to extend the leases on those lands beyond the primary term. It is undisputed that the annual rentals were not paid until two days after the primary term ended. ¶ 45 It has long been the dominant rule in Montana (and other producing states) that time is of the essence in oil and gas leases, and failure to pay rentals on time results in immediate and automatic termination of the lease. See Clawson v. Berklund (1980), 188 Mont. 48, 53, 610 P.2d 1168, 1171. Consequently, because Sandtana failed to pay rentals in a timely manner, Sandtana's leases expired by their own terms as to all of the leased lands except Section 19. ¶ 46 Accordingly, we hold that the District Court was correct in determining that Sandtana's late tender of rentals caused the subject oil and gas leases to terminate as to all undeveloped sections. ¶ 47 Affirmed. JIM REGNIER, PATRICIA COTTER and W. WILLIAM LEAPHART, concur.",issues
+332,4542941,2,1,"“The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action. . . . A judgment rendered by a circuit court without subject matter jurisdiction is void.” Amantiad v. Odum, 90 Hawaiʻi 152, 159, 977 P.2d 160, 167 (1999) (citations omitted).",jurisdiction
+333,3135441,1,1,"The Act requires that, in a noncapital case, the trial court must, within 90 days after the filing and docketing of a postconviction petition, review the petition to determine if it is frivolous and patently -21- without merit. This requirement is mandatory, and that is precisely what the trial court did here. The trial court’s order was correct, because this petition did not state the gist of a meritorious claim. Whether to allow an amendment to the petition is discretionary, and defendant has failed to demonstrate that the court abused its discretion in ruling on the merits of the petition without granting him leave to amend. Under the version of the Act under consideration, the legislature required that some petitions would have to be filed while the direct appeal was still pending. This was one of those cases, and to hold that the trial court was required to hold the petition in abeyance or dismiss it without prejudice would be contrary to clearly expressed legislative intent. A defendant who is forced by the statute of limitations to file his petition while the direct appeal is pending and who later wishes to argue that he received constitutionally ineffective assistance of counsel on appeal must proceed by way of a successive petition. Defendant has failed to demonstrate error by the circuit court; therefore, the judgment of the appellate court, which affirmed the circuit court’s summary dismissal of defendant’s postconviction petition, is affirmed. Appellate court judgment affirmed. -22-",conclusion
+334,4539260,1,1,"A judgment creditor sought to garnish the judgment debtor’s bank account, which at one time contained funds both exempt and nonexempt from garnishment. We hold that funds exempt from garnishment remain exempt, even when commingled with nonexempt funds, so long as the source of exempt funds is reasonably traceable. Because competent evidence supported the county court’s finding that the bank account consisted solely of exempt funds, we affirm.",introduction
+335,2295347,1,2,"Appellant's first argument is directed at the sufficiency of the evidence supporting the charge of first-degree murder. She concedes that the prosecution produced sufficient evidence of second-degree murder in its case-in-chief to warrant submission of the case to the jury, but she asserts that the trial court erred in denying her motion for judgment of acquittal on the first-degree murder count at the close of the government's case because the government failed to introduce evidence sufficient to demonstrate that she had acted with premeditation and deliberation rather than on impulse. [7] In evaluating a claim of insufficient evidence, an appellate court must review the evidence in the light most favorable to the government, recognizing the jury's right to determine the credibility of the witnesses and draw justifiable inferences from their testimony. See Franey v. United States, D.C.App., 382 A.2d 1019, 1022 (1978); Williams v. United States, D.C. App., 357 A.2d 865, 867 (1976); United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242 (1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction. See Wooten v. United States, D.C.App., 343 A.2d 281, 282 (1975); United States v. Fench, supra 152 U.S.App.D.C. at 333, 470 F.2d at 1242; Austin v. United States, 127 U.S.App.D.C. 180, 189 n.20, 382 F.2d 129, 138 n.20 (1967). In applying this standard, the reviewing court makes no legal distinction between circumstantial and direct evidence. Franey, supra 382 A.2d 1023; Calhoun v. United States, D.C.App., 369 A.2d 605, 607 (1977). Under the District of Columbia first-degree murder statute, D.C.Code 1973, § 22-2401, the prosecution bears the burden of proving not only that a crime was committed intentionally but that it was done with premeditation and deliberation. See Harris v. United States, D.C.App., 375 A.2d 505, 507 (1977) (quoting Austin, supra 127 U.S.App.D.C. at 188, 382 F.2d at 137); United States v. Peterson, 166 U.S.App.D.C. 75, 78-79, 509 F.2d 408, 411-12 (1974). To prove premeditation, the government must show that a defendant gave thought, before acting, to the idea of taking a human life and [reached] a definite decision to kill. United States v. Sutton, 138 U.S. App.D.C. 208, 216-17, 426 F.2d 1202, 1210-11 (1969) (footnote omitted) (quoting Austin, supra at 127 U.S.App.D.C. at 186 n.12, 382 F.2d at 135 n.12). Deliberation is proved by demonstrating that the accused acted with consideration and reflection upon the preconceived design to kill; turning it over in the mind, giving it second thought. Id. (footnote omitted). Although no specific amount of time is necessary to demonstrate premeditation and deliberation, the evidence must demonstrate that the accused did not kill impulsively, in the heat of passion, or in an orgy of frenzied activity. See Harris, supra 375 A.2d at 508; Peterson supra 166 U.S.App.D.C. at 79, 509 F.2d at 412; Austin, supra 127 U.S.App. D.C. at 187, 190, 382 F.2d at 136, 139. In this case, the evidence was sufficient to support the jury's determination that Frendak acted with premeditation and deliberation, not on impulse. From the evidence introduced by the government in its case-in-chief, the jury could have found that Frendak brought the gun with her to the scene of the murder. [8] This, in itself, is highly probative of premeditation and deliberation. See O'Connor v. United States, D.C.App., 399 A.2d 21, 26 (1979); United States v. Peterson, supra 166 U.S.App.D.C. at 79, 509 F.2d at 412; United States v. Brooks, 146 U.S.App.D.C. 1, 9, 449 F.2d 1077, 1085 (1971); Hemphill v. United States, 131 U.S.App.D.C. 46, 49, 402 F.2d 187, 190 (1968). It permits an inference that appellant arrived on the scene already possessed of a calmly planned and calculated intent to kill. Belton v. United States, 127 U.S.App.D.C. 201, 203, 382 F.2d 150, 152 (1967). Furthermore, the record indicates that on the day of the shooting, Frendak was carrying her passport and a large amount of money, evidence from which the jury could infer that Frendak had formulated an escape plan before the murder. In addition, the evidence of Frendak's behavior before the crime also supports the inference that she acted with premeditation, not impulsively. On a few occasions in the weeks before the murder, Frendak had followed Titlow as he left for work. On the day of the shooting, in particular, she trailed Titlow and his friend on their way to lunch and apparently waited in the lobby of the building where they worked until they returned from their meal. Furthermore, on the day before the murder, she advised her supervisor that she had to see her attorney that afternoon, but when Titlow failed to leave the office for his regular sales call that day, Frendak also remained in the office. On the following day, she again told her supervisor that she had to leave early for an appointment with her attorney. Then, when Titlow left the office to make a sales call, Frendak, who had been waiting in the office with her coat, followed him. Moments later Titlow was found mortally wounded. This evidence was sufficient to support the inference that Frendak acted with premeditation and deliberation rather than on impulse when she shot Titlow. [9] Frendak's claim to the contrary accordingly fails.",sufficiency of the evidence
+336,2007897,1,10,"The measure of damages for the taking of an easement is the difference between the reasonable market value of the property before and after the taking of the easement. In re Petition of Omaha Pub. Power Dist., 268 Neb. 43, 680 N.W.2d 128 (2004). Damages for the taking of a permanent easement and a temporary construction easement are measured as of the date of taking. See Langenheim v. City of Seward, 200 Neb. 740, 265 N.W.2d 446 (1978). The date for determining valuation and damages in eminent domain proceedings is the date the condemnor files its petition in condemnation in the county court. See Platte Valley Public Power & Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N.W.2d 200 (1955). The basis for Liberty's evidence concerning its measure of damages was Broekemeier's testimony that prior to the condemnation, Liberty had 68 lots sold and that after the condemnation, it lost 50 sales. MUD claims that the district court erred in allowing such evidence because it was irrelevant to the proper measure of damages. It claims that the record contains numerous instances where the court allowed evidence regarding the market value of the property which was not computable as of October 2, 2002, the date MUD filed its petition for condemnation. MUD argues that Okoruwa's testimony lacked sufficient foundation because it relied upon Broekemeier's assertion that he lost 50 presales after the condemnation. It argues that the loss of sales was irrelevant and that the district court abused its discretion in allowing this testimony. MUD also asserts that the district court erred by admitting evidence of damages to the lots not affected by the easements. Liberty claimed that the sale of lots in the entire subdivision was adversely affected due to the installation of the water mains. Okoruwa testified regarding damages to lots adjacent to the lots with easements. Okoruwa stated that the before value of the lots directly adjacent to the lots with the permanent easements was $657,000 and that their value after the taking was $89,000. He calculated the damages related to the difference in market value before and after the taking of lots adjacent to the easements at $568,000. This was despite the fact that five of these lots (Lots 2, 12, 15, 16, and 29) had been sold for full value at the time of the proceedings and none of the easements touched these lots. It is fundamental that the plaintiff's burden to prove the nature and amount of its damages cannot be sustained by evidence which is speculative and conjectural. Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979). There are three generally accepted approaches used for the purpose of valuing real property in eminent domain cases: (1) the market data approach, or comparable sales method, which establishes value on the basis of recent comparable sales of similar properties; (2) the income, or capitalization of income, approach, which establishes value on the basis of what the property is producing or is capable of producing in income; and (3) the replacement or reproduction cost method, which establishes value upon what it would cost to acquire the land and erect equivalent structures, reduced by depreciation. Each of these approaches is but a method of analyzing data to arrive at the fair market value of the real property as a whole. Walkenhorst v. State, 253 Neb. 986, 991, 573 N.W.2d 474, 480(1998). For the testimony of an expert or lay witness to be admissible on the question of market value of real estate, the witness must be familiar with the property in question and the state of the market. Id. Okoruwa purported to testify to the before and after values of lots subject to the easements using the market data and comparable sales methods. However, the record reflects that his testimony did not meet the necessary foundational requirements concerning the effect that the easements had on the value of the lots. Okoruwa testified that the installation of the water mains vastly affected the market values of the lots. He stated he obtained that information from Broekemeier and [f]rom research. Broekemeier told Okoruwa that 50 sales were lost as soon as purchasers became aware of the water mains and that Liberty had sold only 31 lots in the 4 years since the taking. Okoruwa attributed the failure of the sales to the easements. Okoruwa did not set forth the method or research he used to determine the value of the lots subject to the taking. His basis for determining that the highest and best use of the lots had changed from residential to recreational was because Broekemeier had lost presales. Because Broekemeier could not sell these lots, Okoruwa concluded that the lost sales were caused by the easements. When asked how he estimated the damage, Okoruwa said that if there was a low market for residential lots, the highest and best use changed. Because there was a low market for these lots, he stated the use of the lots changed from residential to recreational or open space. His foundation for this opinion was Broekemeier's claim that he had lost some 50 contracts. There was no evidence that Okoruwa had researched any comparable properties subject to similar easements or conducted any market data analysis of the highest and best use of similar properties. Moreover, Okoruwa did not testify that he had confirmed with any of the alleged prepurchasers that the contracts were actually lost due to the easements. On cross-examination, Okoruwa admitted that he did not find comparable sales with aqueducts on them and that he did not rely on any studies or publications relating to water mains to determine Liberty's damages. He concluded that the lots adjacent to the lots with easements changed in value from residential to recreational. Therefore, he valued all of these lots as recreational. He had no comparable sales for this change in valuation. Okoruwa also concluded that because of the temporary construction easements, Broekemeier could not sell all the lots for at least I year. Okoruwa relied on this fact to determine the damage from the temporary easements. Since the lots could not be sold for at least 1 year, he computed a reasonable rate of return on the property at 15 percent. He applied this computation to the entire subdivision. Over MUD's objection, the district court permitted Okoruwa to testify that the rental value of the property before the temporary easements was $2,159,000 and the value after was $1,877,000—a difference of $282,000. When real property is temporarily taken by eminent domain, the value of compensation is determined by one of several methods: (1) ascertaining the value of the property for the period it is held by the condemnor, (2) ascertaining the difference in the value of the property before and after the taking, or (3) looking at the fair market rental value of the property during the time it was taken. 4 Julius L. Sackman, Nichols on Eminent Domain § 12E.01[1] (rev. 3d ed. 2007), citing David Schultz, The Price is Right! Property Valuation for Temporary Takings, 22 Hamline L.Rev. 281 (1998). Okoruwa concluded that because of the temporary construction easement. Liberty could not sell those lots and that those lots could not be marketed for at least 1 year. He proceeded to determine what he opined as the appropriate rental rate for those lots because they could not be sold. He concluded that a reasonable rate of return of 15 percent applied to the value of all the lots that could not be sold, which was basically the whole subdivision. Over MUD's objection, Okoruwa stated: The value before was $2,159,000, and the value after, $1,877,000, and the difference [$]282,000. This was [t]he damage to the subdivision for taking out the whole subdivision from the market for at least one year. The evidence was undisputed that the temporary construction easements were located on only the 19 lots that were subject to the permanent easements. However, applying a rate of return for the whole subdivision was the equivalent of claiming the whole subdivision was part of the temporary easement, which, in fact, involved only 1.654 acres. The valuation of permanent easements is a difficult task, and the valuation of temporary easements is even more difficult. See 9 Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain § G32.08[1][a] (rev. 3d ed. 2007). In the case at bar, Okoruwa attempted to value the temporary easements in terms of a rate of return for the entire property based upon rental value of the property before and after the temporary easements. In effect, he opined that the damages for the temporary taking of 19 lots for the temporary construction easements was $282,000. We conclude that it was error for the district court to allow such testimony. On direct examination, Okoruwa was asked to calculate the total of all damages about which he had testified. He opined that the total damages were $2,418,000. This was despite the fact that the damages he testified to on direct examination totaled only $1,948,000. Over MUD's objection as to proper and sufficient foundation, Okoruwa stated that this amount should be awarded to Liberty to compensate it for the takings. Generally, evidence as to the sale of comparable property is admissible as evidence of market value, provided there is adequate foundation to show the evidence is material and relevant. Wear v. State of Nebraska, 215 Neb. 69, 337 N.W.2d 708 (1983), citing Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979). The foundation evidence should show the time of the sale, the similarity or dissimilarity of market conditions, the circumstances surrounding the sale, and other relevant factors affecting the market conditions at the time. Id. Whether properties, the subject of other sales, are sufficiently similar to the property condemned to have some bearing on the value under consideration, and to be of aid to the jury, must necessarily rest largely in the sound discretion of the trial court. Wear v. State of Nebraska, supra , citing Langfeld v. Department of Roads, 213 Neb. 15, 328 N.W.2d 452 (1982). Okoruwa's opinions lacked sufficient foundation, and the district court abused its discretion in admitting Okoruwa's testimony. Except for Lot 1, which had an additional 50-foot easement, the permanent easements were 20 to 25 feet in width on each lot and totaled 1.486 acres. The temporary construction easements on each lot was 20 to 30 feet in width and totaled an additional 1.654 acres. Okoruwa's conclusion that the easements changed the highest and best use of the property from residential to recreational was without sufficient foundation. His testimony as to Liberty's damages was therefore speculative and conjectural.",analysis
+337,2739395,1,1,"A brief discussion of the history of Washington's current estate tax law, the Bracken decision, 175 Wn.2d 549, and the facts of the consolidated cases, places this case in context. Washington Estate Tax Law Pre-Bracken For many years, Washington did not have an independent estate tax. Instead, Washington participated in a federal tax sharing system, referred to as pickup taxes. 2 In re Estate of Hambleton, No. 89419-1 consolidated with In re Estate of Macbride, No. 89500-7 Bracken, 175 Wn.2d at 557. Under the pickup tax system, the federal government became the principal estate tax collector in exchange for sharing with states a generous percentage of the amount collected. /d. In 2001, Congress passed legislation that gradually eliminated the pickup tax system. /d. at 558. Our legislature responded by revis[ing] existing statutes to tie estate taxation to provisions of the Internal Revenue Code as they existed [under the former pickup tax system], with DOR continuing to collect the same amount of tax as before. /d. at 558-59. We invalidated the revisions and instructed the legislature to either create a stand-alone estate tax or remain under the former pickup tax system. /d. at 559; Estate of Hemphill v. Dep't of Revenue, 153 Wn.2d 544, 551, 105 P.3d 391 (2005). In 2005, the legislature answered by enacting a stand-alone estate tax, the Estate and Transfer Tax Act (Act). LAWS OF 2005, ch. 516, § 1. The legislature modeled the stand-alone tax after the federal estate tax regime. See Bracken, 175 Wn.2d at 559. It incorporates concepts and definitions from federal law and operates almost entirely in tandem with taxable estate and tax calculation and reporting for federal estate tax purposes. /d. For example, the 'Washington taxable estate' means the federal taxable estate, less: [specified deductions]. LAWS OF 2005, ch. 516, § 2(13). Under federal law, Congress provides a deduction for QTIP trust assets. QTIP is property in a testamentary trust created by a deceased spouse for the benefit of the surviving spouse. The result of the deduction is that [t]he spouse who dies first 3 In re Estate of Hambleton, No. 89419-1 consolidated with In re Estate of Macbride, No. 89500-7 controls the final disposition of the property, while allowing the surviving spouse to use the property or receive the income it generates, unreduced by front-end estate taxation. Bracken, 175 Wn.2d at 556. Typically, terminable interests, such as life estates, do not qualify for the marital tax deduction. See id. at 555. However, Congress created an exception for QTIP assets. The effect of the deduction is that the property is ultimately taxed, but the property is not taxed when the first spouse creates the life estate. /d. at 556. The transfer of property is taxed when the second spouse dies and the ultimate beneficiaries become present interest holders. /d. Estate taxes are excise taxes. West v. Okla. Tax Comm'n, 334 U.S. 717, 727, 68 S. Ct. 1223, 92 L. Ed. 1676 (1948). Whether a tax is an excise tax or a direct tax is significant because the Washington State Constitution imposes a uniformity requirement on direct taxes, but the uniformity requirement does not apply to excise taxes. CaNST. art. VII,§ 1; Dean v. Lehman, 143 Wn.2d 12, 25-26, 18 P.3d 523 (2001 ). A tax is an excise or transfer tax if the government is taxing a particular use or enjoyment of property or the shifting from one to another of any power or privilege incidental to the ownership or enjoyment of property. Fernandez v. Wiener, 326 U.S. 340, 352, 66 S. Ct. 178, 90 L. Ed. 116 (1945). The 2005 Act imposed a tax on every transfer of property located in Washington and applied prospectively to estates of decedents dying on or after May 17, 2005. LAWS OF 2005, ch. 516, §§ 3(1 ), 20. Therefore, a transfer (upon which the excise tax operates) must occur on or after May 17, 2005. 4 In re Estate of Hambleton, No. 89419-1 consolidated with In re Estate of Macbride, No. 89500-7 Estate of Bracken In Bracken, we held that DOR overstepped its authority by adopting regulations that taxed QTIP assets when the deceased spouse died before the effective date of the 2005 Act. Bracken, 175 Wn.2d at 554; see LAWS OF 2005, ch. 516, § 20. In Bracken, the deceased spouses made QTIP elections under federal law before Washington enacted its stand-alone estate tax and the surviving spouses died after the legislature passed the Act. See 175 Wn.2d at 556, 561-62. The estate in Bracken argued that the taxable transfer occurred when the first spouse died (before the Act came into effect), while DOR argued that a taxable transfer occurred when the second spouse died (after the Act came into effect). See id. at 561-63. We interpreted transfer narrowly and reasoned that the only transfer occurred at the husbands' deaths when they created the QTIP trusts. See id. at 554, 563. Any transfers that occurred later upon the wives' deaths were fictional. /d. at 554. Therefore, DOR exceeded its authority under the Act, which requires a transfer, by creating regulations that allowed taxation of fictional transfers. /d. According to our interpretation in Bracken, the real transfers occurred before the 2005 estate law was enacted. DOR could not tax these transfers because the legislature declared that the Act was prospective only. See LAWS OF 2005, ch. 516, § 20. The court did not reach alleged constitutional issues because it construed the estate tax to apply only to real transfers. See 175 Wn.2d at 563. 5 In re Estate of Hambleton, No. 89419-1 consolidated with In re Estate of Macbride, No. 89500-7 The concurring/dissenting opinion disagreed with the majority's narrow interpretation of transfer. See id. at 576 (Madsen, C.J., concurring/dissenting). However, the concurring/dissenting opinion still agreed that the legislature did not intend to tax the QTIP, but for reasons differing from the majority. /d. at 594 (Madsen, C.J., concurring/dissenting) (The 2006 regulations on their face and according to their plain language effectuate the obvious purpose of the legislature's determination to allow a state QTIP election: the surviving spouses' estates are not subject to state estate taxation on federal estate QTIP elections that did not benefit the first spouses' estates on any state estate tax returns by allowing a state marital deduction when the",facts
+338,4532747,1,3,"The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances. State ex rel. Counsel for Dis. v. Murphy, 283 Neb. 982, 814 N.W.2d 107 (2012). In a reciprocal discipline proceeding, a judicial determination of attorney misconduct in one jurisdiction is generally conclusive proof of guilt and is not subject to relitigation in the second jurisdiction. Id. Neb. Ct. R. § 3‑304 of the disciplinary rules provides that the following may be considered as discipline for attorney misconduct: (A) Misconduct shall be grounds for: (1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court; or (6) Private reprimand by the Committee on Inquiry or Disciplinary Review Board. (B) The Court may, in its discretion, impose one or more of the disciplinary sanctions set forth above. Section 3‑321 of the disciplinary rules provides in part: (A) Upon being disciplined in another jurisdiction, a member shall promptly inform the Counsel for Discipline - 679 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. NNAKA Cite as 305 Neb. 677 of the discipline imposed. Upon receipt by the Court of appropriate notice that a member has been disciplined in another jurisdiction, the Court may enter an order imposing the identical discipline, or greater or lesser discipline as the Court deems appropriate, or, in its discretion, suspend the member pending the imposition of final discipline in such other jurisdiction. In imposing attorney discipline, we evaluate each case in light of its particular facts and circumstances. State ex rel. Counsel for Dis. v. Murphy, supra. Upon due consideration of the record, and the facts as determined by the State Bar of Texas, we determine that public reprimand is appropriate.",analysis
+339,6105483,1,1,"Kenneth M. Kipple was convicted of two counts of child enticement and one count of tampering with a witness. No direct appeal was filed. Kipple retained new counsel and filed a postconviction motion that alleged ineffective assistance of counsel in various particulars, including trial counsel’s failure to file a direct appeal. The district court granted Kipple a new direct appeal. This is that appeal. - 657 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654 We affirm Kipple’s convictions for child enticement and for witness tampering, and we also affirm Kipple’s sentences for child enticement. We vacate Kipple’s sentence for witness tampering and remand the cause for further proceedings.",introduction
+340,6342491,1,1,"This case is before the court on the conditional admission filed by James A. Owen, the respondent, on February 2, 2022. The court accepts the respondent’s conditional admission and enters an order suspending the respondent from the practice of law for a period of 6 months.",introduction
+341,6340590,1,4,"We need not precisely construe the term usual and customary or decide any preemption question without first having the Board's administrative fact-finding about EagleMed's billed charges and its application of the facts to the 2012 fee schedule. But we do hold the 2012 fee schedule requires billings for air ambulance services to be supportable by evidence that the charges are usual and customary. The Board's decision requiring Travelers to pay the billed amounts must be reversed because the decision is not 20 supported by substantial competent evidence in light of the record as a whole. See K.S.A. 77-621(c)(7), (d); Estate of Graber v. Dillon Companies, 309 Kan. 509, 513, 439 P.3d 291 (2019); Pener v. King, 305 Kan. 1199, 1205, 391 P.3d 27 (2017). The evidentiary record contains nothing showing these charges meet any permutation of the usual and customary standard. On remand, it will be necessary for the Board to provide guidance to the parties as to the evidence expected for the Board to make its determinations. In other words, the Board will need to tell the parties whether defining usual and customary charges can be done only as EagleMed suggests through the air carrier's sole perspective, or whether there is an alternative that better reflects both federal law and the statutory purposes for our workers compensation system. Judgment of the Court of Appeals is affirmed in part and reversed in part. Decision of the Workers Compensation Board is reversed, and the case is remanded with directions. WALL AND STANDRIDGE, JJ., not participating. PATRICK D. MCANANY, Senior Judge, assigned.1 MICHAEL J. MALONE, District Judge Retired, assigned.2 1 REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 117,903 vice Justice Wall under the authority vested in the Supreme Court by K.S.A. 20- 2616. 2 REPORTER'S NOTE: Retired District Judge Malone was appointed to hear case No. 117,903 vice Justice Standridge under the authority vested in the Supreme Court by K.S.A. 20-2616. 21",conclusion
+342,1059198,1,2,"Summary judgment upon all or any part of a claim may be granted to a party entitled to such judgment when no genuine issue of material fact remains in dispute, and the moving party is entitled to judgment as a matter of law. Rule 3:18; Renner v. Stafford, 245 Va. 351, 353, 429 S.E.2d 218, 220 (1993). A grant of summary judgment must be based upon undisputed facts established by pleadings, admissions in pleadings, and admissions made in answers to requests for admissions. [2] Additionally, the trial court must consider inferences from the facts in the light most favorable to the non-moving party, unless the inferences are strained, forced or contrary to reason. Carson v. Le-Blanc, 245 Va. 135, 139-40, 427 S.E.2d 189, 192 (1993). Andrews and Cox present identical assignments of error. They assert that the trial court erred in granting summary judgment to Bolt and Ring on the statutory conspiracy count and on the malicious prosecution count of their respective motions for judgment, and they further assert that summary judgment should not have been granted before discovery was concluded.
+Andrews and Cox each allege that Ring and Bolt acted in concert to willfully and maliciously injure [them] in [their] business, trade, and reputation and seek damages from Bolt and Ring under the statutory conspiracy provisions of Code §§ 18.2-499 and 500. A violation of Code § 18.2-499 is punished as a Class 1 misdemeanor. Additionally, Code § 18.2-500 provides a civil remedy for a violation of Code § 18.2-499. Bolt and Ring argue that the scope of the conspiracy statute is limited to injury to business interests and does not extend to injury to personal reputation even in the context of employment. The conspiracy statute was once codified as part of the antitrust laws of the Commonwealth. See Code § 59-21.1 (Cum. Supp.1962) (superseded). In 1964, the General Assembly removed the conspiracy provisions from the antitrust statutes and placed them in the criminal code with much greater sanctions. See Code § 18.1-74.1:1 (superseded) (Chapter 623, 1964 Acts of Assembly). We conclude that the origin of Code §§ 18.2-499 and -500 establishes that they apply to business and property interests, not to personal or employment interests. Traditional statutory construction requires the same conclusion. Code § 18.2-499 proscribes conspiracy to willfully, and maliciously injure] another in his reputation, trade, business or profession. The maxim of noscitur a sociis provides that the meaning of doubtful words in a statute may be determined by reference to their association with related words and phrases. When general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words. Commonwealth v. United Airlines, Inc., 219 Va. 374, 389, 248 S.E.2d 124, 132-33 (1978). Here the word reputation is at issue. Within the statute, its association with trade, business or profession requires the exclusion of personal reputation and interest in employment from the scope of the statute's coverage. We note that federal courts in Virginia have reached similar holdings. See Buschi v. Kirven, 775 F.2d 1240, 1259 (4th Cir.1985), Nationwide Fire Ins. Co. v. Jones, 577 F.Supp. 968, 970 (W.D.Va.1984). The undisputed facts subject to proper consideration by the trial court upon motions for summary judgment on this issue clearly establish that Andrews and Cox seek damages for injury to personal reputation and employment interests. As a matter of law, an action under the Code §§ 18.2-499 and -500 may not embrace such claims. With causes of action based upon statutory conspiracy removed from consideration, we must now consider claims of malicious prosecution.
+Bolt, the Commonwealth's Attorney of Grayson County, maintains that, upon the record of these cases, he is entitled to absolute immunity from suit. The absolute immunity of prosecutors from civil liability for acts within the scope of their duties and intimately associated with the judicial phase of the criminal process is derivative of judicial immunity. As we have previously held, Lilt is clear that judges enjoy absolute immunity from civil liability, even when they act maliciously or corruptly or in excess of their jurisdiction. Judges can be held liable only when they act in `clear absence of all jurisdiction.' Harlow v. Clatterbuck, 230 Va. 490, 493, 339 S.E.2d 181, 184 (1986) (quoting Johnston v. Moorman, 80 Va. 131, 142 (1885)). The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. Imbler v. Pachtman, 424 U.S. 409, 422-23, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In Imbler, the Supreme Court noted that the prosecutor's actions were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. Id. at 430, 96 S.Ct. 984. But the Court specifically reserved the question whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. Id. at 430-431, 96 S.Ct. 984. Later, in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) the Court held that absolute prosecutorial immunity from suit recognized in Imbler did not extend to giving advice to police officers. The Court observed that: Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation . . .. That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct. Burns at 494, 111 S.Ct. 1934. In the case before us, Andrews and Cox argue that Bolt gave advice to Ring, and that pursuant to Burns, Bolt is not entitled to absolute immunity. We disagree with Andrews and Cox because this Court is not compelled to follow Burns. The determination whether absolute prosecutorial immunity is extended to the prosecutor in this case is a matter of state common law not federal law. The principle is well-established in the seminal case of Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), where the Court stated: Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or general, be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. This fundamental principle of federalism was expressed by the Supreme Court of North Carolina when it noted: The views of the Supreme Court of the United States ... are not binding upon this Court with regard to questions of North Carolina common law—questions as to which this Court's holding... is the final and controlling authority. Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85, 92 (N.C. 1990). See also, Harter v. Vernon, 101 F.3d 334, 342 (4th Cir.1996)(Our holdings on questions of state law do not bind state courts, nor do state court determinations on questions of federal law control us.). The process by which an accused may be charged with a criminal offense in Virginia includes indictment, presentment, information, arrest warrant, or summons. When a prosecutor is involved in the initiation of the criminal process, it may take the form of preparation of an indictment for consideration by a Grand Jury, direction to a law enforcement officer to obtain a warrant or summons, or advice to a law enforcement officer that sufficient probable cause exists for the obtaining of a warrant or a summons. For the purposes of determining a prosecutor's absolute immunity from suit, these are distinctions without a material difference. In each case where a prosecutor is involved in the charging process, under Virginia law, that action is intimately connected with the prosecutor's role in judicial proceedings and the prosecutor is entitled to absolute immunity from suit for such actions. Consequently, Bolt is entitled to absolute immunity from suit on the counts in each motion for judgment alleging malicious prosecution. We do not decide in this case whether actions of a prosecutor in the role of investigator or administrator are entitled to absolute immunity.
+We have recently restated the following principles: In an action for malicious prosecution, the plaintiff has the burden of proving by a preponderance of the evidence that the prosecution was (1) malicious; (2) instituted by, or with the cooperation of, the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff . . . In the context of a malicious prosecution action, probable cause is defined as knowledge of such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected. The determination whether a defendant had probable cause to believe that a crime was committed is judged with reference to the time the defendant took the action initiating the criminal charges. When the facts relating to the question of probable cause are in dispute, the issue is one of fact to be resolved by the trier of fact. Stanley v. Webber, 260 Va. 90, 95-96, 531 S.E.2d 311, 314-15 (2000) (internal citations omitted). [W]hat constitutes probable cause is a question for the court; but where there is any conflict in the evidence it is for the jury to determine whether in the particular case such probable cause existed. Brodie v. Huck, 187 Va. 485, 488, 47 S.E.2d 310, 312 (1948). Additionally, [w]hen a defendant, in initiating a prosecution, acts in good faith upon the advice of reputable counsel, after a full disclosure of all material facts, he has probable cause to support his action. Probable cause serves as a complete defense to an action for malicious prosecution, even if the advice given by the attorney is wrong. The defendant must prove that he sought advice of counsel with an honest purpose of being informed of the law, that he made a full, correct and honest disclosure of all material facts known to him or which he should reasonably have known, and that he acted in good faith guided by the advice given by counsel. This defense usually presents a jury question unless reasonable minds cannot differ that advice of counsel has been established. Pallas v. Zaharopoulos, 219 Va. 751, 755, 250 S.E.2d 357, 359-60 (1979) (internal citations omitted).
+The issuance of a criminal warrant must be supported by probable cause that a crime was committed and probable cause that the person charged committed the crime. Code § 36-106 provides sanctions for violation of the Uniform Statewide Building Code (USBC). Ring's affidavits supporting the issuance of criminal warrants against Andrews and Cox state: Failed to obtain a Building Permit before beginning work on a 10,000 Gallon Storage tank. Concealing work prior to the required inspection by pouring concrete slab. USBC § 107.1 provides that: [a]n application shall be submitted to the code official for the following activities, and these activities shall not commence without a permit being issued in accordance with Section 108.0[:] 1. Construct or alter a structure. 2. Construct an addition. 3. Demolish or move a structure. 4. Make a change of occupancy. 5. Install or alter any equipment which is regulated by this code. 6. Move a lot line which affects an existing structure. USBC § 113,2 provides that: [t]he permit holder shall assure that the following inspections have been conducted and approved by the code official . 1. Inspection of footing excavations and reinforcement material for concrete footings prior to the placement of concrete. 2. Inspection of foundation systems during phases of construction necessary to assure compliance with this code. 3. Inspection of preparatory work prior to the placement of concrete. 4. Inspection of structural members and fasteners prior to concealment. Undisputed facts properly considered for resolution of a motion for summary judgment establish that excavation of the area for the tank occurred before the issuance of the building permit and that a concrete pad was poured without inspection. Cox asserts that the building permit was issued to the School Board and not to him; consequently, he could not be held responsible for violations of the USBC. But the undisputed facts establish that Cox was Director of School Maintenance, he was supervising the construction for the tank, he directed a construction company to excavate the site on the day before the permit was issued, he directed an employee to obtain the permit, and he and persons under his direction poured concrete before obtaining an inspection. When a corporation or other entity acts through individuals and such action involves a violation of the law, the correct rule is that all who participate in it are liable. Crall v. Commonwealth, 103 Va. 855, 859, 49 S.E. 638, 640 (1905). Andrews and Cox maintain that there is a factual dispute over whether a building permit was required for the excavation and whether an inspection was required before pouring concrete. The interpretation of the requirements of the USBC is a matter of law, implicitly resolved against them by the trial court's ruling from the bench that there was probable cause for the issuance of [the warrants]. The undisputed facts properly considered upon motion for summary judgment establish that probable cause existed for the issuance of the warrant against Cox. But this record does not support a finding upon summary judgment that the warrant against Andrews was issued with probable cause that Andrews participated in any acts in violation of the law. Andrews was the Chairperson of the Grayson County School Board, an unlikely person to be directing on-site construction and pouring concrete. At this stage in the proceeding there is no evidence of any act on her part that provided probable cause that she committed the building code violation in question, and her status as Chairperson of the School Board does not result in vicarious liability for the acts in question.
+Reliance upon advice of reputable counsel after full disclosure of all material facts provides a complete defense to an action for malicious prosecution, even if the attorney's advice is wrong. Justified reliance suffices to establish probable cause to support the initial prosecution. Noell v. Angle, 217 Va. 656, 660, 231 S.E.2d 330, 333 (1977). In this case, it is unclear whether an accurate disclosure of all material facts was made. Upon review of this record, we hold that the evidence properly considered for summary judgment purposes does not support a grant of summary judgment on this question.
+A voluntary compromise ending a criminal prosecution defeats a subsequent suit for malicious prosecution. Orndorff v. Bond, 185 Va. 497, 502, 39 S.E.2d 352, 354 (1946). Ring alleges that such a compromise was reached in the General District Court of Grayson County when the nolle prosequi was entered in the underlying criminal matters. Andrews and Cox say that no agreement was reached. It is undisputed that a nolle prosequi was entered. Why it was entered and whether it was the result of a compromise cannot be determined by summary judgment on this record.
+Ring maintains that he is entitled to the absolute immunity provided by quasi-judicial immunity because he characterizes his actions as those of a prosecutor, involving functions intimately related to the judicial process. As previously addressed, under defined circumstances, a prosecutor may have absolute immunity, in the nature of quasi-judicial immunity, from civil liability. Burns, 500 U.S. at 492, 111 S.Ct. 1934; Imbler, 424 U.S. at 430, 96 S.Ct. 984. We have recognized that quasi-judicial immunity may extend to certain non-judicial public officials acting within their jurisdiction, in good faith, and while performing judicial functions. Harlow, 230 Va. at 493, 339 S.E.2d at 184. In conducting this analysis, we apply the `functional comparability' test established by the United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Harlow, 230 Va. at 494, 339 S.E.2d at 184. We must examine whether the act in question shares enough of the characteristics of the judicial process to justify immunity. We conclude that Ring's duties as a building inspector are more akin to those of a police officer in the enforcement of laws, rules and regulations, than a prosecutor in the judicial process. As a matter of law, Ring is not entitled to the absolute immunity afforded by quasi-judicial immunity.
+In the alternative, Ring maintains that if he is not entitled to quasi-judicial immunity, he is, nonetheless, entitled to the same qualified immunity extended to police officers for actions taken in good faith and with probable cause. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). A defendant who asserts the qualified immunity defense, not the plaintiff, must allege and prove the elements comprising this defense. Jordan v. Shands, 255 Va. 492, 499, 500 S.E.2d 215, 219 (1998). Ring argues that Andrews and Cox have not presented any facts that support a claim of actual malice. On this question the burden of proof is on Ring, not Andrews and Cox. Upon review of this record, we hold that the evidence properly considered for summary judgment purposes does not support a grant of summary judgment on this question.
+The pre-trial scheduling order entered in early February, 2002, set the first day of trial in these cases for June 6, 2002. Andrews and Cox thereafter noticed depositions of an employee of the Maintenance Department of the School Board and the attorney for the School Board, for the afternoon of April 30, 2002, the same day as the motions for summary judgment were to be heard before the trial court. Andrews and Cox assert that the trial court erred in granting summary judgment from the bench on April 30 (memorialized later in the final orders in June and July, 2002), prior to the conclusion of discovery in the case. This argument has no merit. Pursuant to the pre-trial order the deadline for serving written discovery was mid-April, 2002. No written discovery was pending response as of the latter half of April, 2002. Without agreement of the parties, only answers to requests for admissions could further supplement the evidence properly considered by the trial court for the motions for summary judgment. The noticed depositions could not, absent stipulation of the litigants, have been used as the basis for summary adjudication. Simply stated, Andrews and Cox cannot show that the record upon which summary judgment was granted would have been any different if the trial court had delayed its ruling.",analysis
+343,2634691,1,3,"United States courts may submit to the Idaho Supreme Court a certified question of law as to which there is no controlling precedent among the decisions of the Court. IDAHO APP. R. Rule 12.1. Because the question is one of law, this Court exercises free review. Hegg v. Internal Revenue Serv., 136 Idaho 61, 28 P.3d 1004(2001). We have never previously addressed the issue of whether a legal malpractice action must arise out of an attorney-client relationship between the plaintiff and the defendant attorney. We first listed the elements of a cause of action for attorney malpractice in Johnson v. Jones, 103 Idaho 702, 706-07, 652 P.2d 650, 654-55 (1982), wherein we stated: Legal malpractice actions are an amalgam of tort and contract theories. Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (1971); Higa v. Mirikitani, 55 Hawai'i 167, 517 P.2d 1 (1973). We have already determined that Nagel breached no contractual duty owed to the Johnsons. As to the tort basis for the Johnsons' claim: The elements of a legal malpractice action are: (a) the existence of an attorney-client relationship; (b) the existence of a duty on the part of the lawyer; (c) failure to perform the duty; and (d) the negligence of the lawyer must have been a proximate cause of the damage to the client.... As to the burden of proof in such cases ... `[t]he burden of proving that an attorney has been negligent or failed to act with proper skill and that damages resulted therefrom is on the plaintiff client' and ... `[l]ikewise, the burden is on the plaintiff to show that the negligence of the attorney was a proximate cause of the client's damage.' Sherry v. Diercks, 29 Wash.App. 433, 628 P.2d 1336, 1338 (1981) (citations omitted). We agree with the Washington court as to the elements of a cause of action for legal malpractice and to allocation of the burden of proof in such cases. When stating the elements in the abstract, we have since characterized the first element as the creation of an attorney-client relationship, Lamb v. Manweiler, 129 Idaho 269, 272, 923 P.2d 976, 979 (1996); Jordan v. Beeks, 135 Idaho 586, 590, 21 P.3d 908, 912 (2001); and the existence of an attorney-client relationship, Marias v. Marano, 120 Idaho 11, 13, 813 P.2d 350, 352 (1991); Blough v. Wellman, 132 Idaho 424, 425, 974 P.2d 70, 71 n. 1 (1999). We have always stated the fourth element of the cause of action, however, as requiring proof that the attorney's breach of duty was a proximate cause of injury or damage to the client. Jordan v. Beeks, 135 Idaho 586, 590, 21 P.3d 908, 912 (2001); Blough v. Wellman, 132 Idaho 424, 425, 974 P.2d 70, 71 n. 1 (1999); Lamb v. Manweiler, 129 Idaho 269, 272, 923 P.2d 976, 979 (1996); Marias v. Marano, 120 Idaho 11, 13, 813 P.2d 350, 352 (1991); Johnson v. Jones, 103 Idaho 702, 706, 652 P.2d 650, 654 (1982). The fourth element could be read as requiring an attorney-client relationship between the plaintiff and the defendant attorney. In none of these cases, however, were we asked to decide whether or in what circumstances a person who was not a client of the defendant attorney could have a malpractice claim against the attorney. We now address that issue. As a general rule, an attorney will be held liable for negligence only to his or her client and not to someone with whom the attorney does not have an attorney-client relationship. See e.g., Wick v. Eismann, 122 Idaho 698, 838 P.2d 301 (1992) (an attorney who represented the corporation could be liable to a shareholder for legal malpractice if the attorney also represented the shareholder in his individual capacity); Allen v. Stoker, 138 Idaho 265, 61 P.3d 622 (Ct.App.2002) (heirs do not have a cause of action for negligence against the attorney who represented the personal representative of the estate because the attorney does not owe a duty to them). No liability arises from the law of torts unless the defendant owes a duty to the defendant. Udy v. Custer County, 136 Idaho 386, 34 P.3d 1069 (2001). An attorney's duty arises out of the contract between the attorney and his or her client. Johnson v. Jones, 103 Idaho 702, 704, 652 P.2d 650, 652 (1982) (The scope of an attorney's contractual duty to a client is defined by the purposes for which the attorney is retained.); Fuller v. Wolters, 119 Idaho 415, 807 P.2d 633 (1991) (tort of legal malpractice is also a breach of the attorney-client contract). Therefore, the general rule has been that an attorney-client relationship with the plaintiff is a prerequisite for holding the attorney liable for negligence in the performance of legal services. The trend in recent years, however, has been some relaxation in the privity requirement. 7 AM. JUR. 2D Attorneys at Law § 249 (1997). In Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958), the California Supreme Court replaced the privity requirement with a multi-factor balancing approach in a case involving the allegedly negligent drafting of a will by a nonlawyer. The factors listed were the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. The California Supreme Court soon applied the balancing test enunciated in Biakanja to a case in which heirs sued the attorney who drafted a will alleging that their inheritance was reduced because of the attorney's negligence. Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (1961). Other courts have relaxed the privity requirement based upon a third-party-beneficiary analysis. For example, in Pelham v. Griesheimer, 92 Ill.2d 13, 64 Ill.Dec. 544, 440 N.E.2d 96, 99-100 (1982) (citations omitted), the Illinois Supreme Court held as follows: While privity of contract has been abolished in many areas of tort law, the concern is still that liability for negligence not extend to an unlimited and unknown number of potential plaintiffs. In the area of legal malpractice the attorney's obligations to his client must remain paramount. In such cases the best approach is that the plaintiffs must allege and prove facts demonstrating that they are in the nature of third-party intended beneficiaries of the relationship between the client and the attorney in order to recover in tort. By this we mean that to establish a duty owed by the defendant attorney to the nonclient the nonclient must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship. At least one court has combined both the multi-factor balancing test and the third party liability test to determine whether an attorney owes a duty to a nonclient. Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080 (1994). A few courts continue to adhere to the privity requirement. In Barcelo v. Elliott, 923 S.W.2d 575, 578-79 (Tex.1996), the Texas Supreme Court stated: In sum, we are unable to craft a bright-line rule that allows a lawsuit to proceed where alleged malpractice causes a will or trust to fail in a manner that casts no real doubt on the testator's intentions, while prohibiting actions in other situations. We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent. This will ensure that attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation. In dissent, Justice Cornyn stated, By refusing to recognize a lawyer's duty to beneficiaries of a will, the Court embraces a rule recognized in only four states, while simultaneously rejecting the rule in an overwhelming majority of jurisdictions. Id. at 579 (footnotes omitted). The existence of a duty is a question of law for this Court. Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999). In deciding whether to recognize a new duty or extend a duty beyond the scope previously imposed, this Court engages in a balance-of-the-harms test. Vincent v. Safeco Ins. Co. of Am., 136 Idaho 107, 29 P.3d 943 (2001). That test involves the consideration of policy and the weighing of factors, which include: the foreseeability of the harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the policy of preventing future harm; the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved. Id. Considering those factors, we hold that an attorney preparing testamentary instruments owes a duty to the beneficiaries named or identified therein to prepare such instruments, and if requested by the testator to have them properly executed, so as to effectuate the testator's intent as expressed in the testamentary instruments. If, as a proximate result of the attorney's professional negligence, the testator's intent as expressed in the testamentary instruments is frustrated in whole or in part and the beneficiary's interest in the estate is either lost, diminished, or unrealized, the attorney would be liable to the beneficiary harmed. The testamentary instruments from which the testator's intent is to be ascertained would not include any will, codicil, or other instrument that had been revoked. One of the main purposes for preparing testamentary instruments is to provide for the transfer of property to those named in such instruments. The harm to those intended beneficiaries in the event of negligent preparation is clearly foreseeable. When, as a result of the attorney's negligence, the estate is not distributed in accordance with the testator's intent as expressed in the testamentary instruments, there is a high degree of certainty that those intended beneficiaries will be harmed. In that circumstance, the connection between the defendant's conduct and the harm is direct. There is sufficient moral blame attached to the negligent preparation or execution of testamentary instruments to impose liability. Imposing such duty may also prevent future harm by creating an incentive to prepare such instruments carefully because otherwise there would be no liability for the negligent drafting of such instruments. Finally, extending the duty to this degree would not unduly increase the burden upon attorneys to use care when drafting testamentary instruments, and insurance is readily available to cover such risk. Our extension of the attorney's duty is very limited. It does not extend to beneficiaries not named or identified in the testamentary instruments. The attorney has no duty to insure that persons who would normally be the objects of the testator's affection are included as beneficiaries in the testamentary instruments. Someone who has the mental capacity to make a valid will also knows the names and identities of the persons who are the objects of his or her bounty and would know whether or not such persons are included as beneficiaries under the testamentary instruments before executing them. The attorney likewise has no duty to see that the testator distributes his or her property among the named beneficiaries in any particular manner. Again, a testator who has sufficient mental capacity to make a valid will can also understand how his or her property will be distributed under the testamentary documents. The attorney's duty to his or her client must remain paramount. An attorney preparing a document that revokes or amends a client's existing testamentary instrument(s) has no duty to the beneficiaries named or identified in such instruments to notify them, consult with them, or in any way dissuade the testator from eliminating or reducing their share of his or her estate. Likewise, that attorney could not be held liable to such beneficiaries based upon their assertion that the testator would not have intended to revoke such instrument(s). This extension of an attorney's duty will not subject attorneys to lawsuits by persons who simply did not receive what they believed was their fair share of the testator's estate, or who simply did not receive in the testamentary instruments what they understood the testator had stated or indicated they would receive.",analysis
+344,2679480,1,2,"¶5. The Mississippi Constitution vests the circuit courts and the chancery courts of this State with their jurisdiction. “The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court . . . .” Miss. Const. art. 6, § 156 (emphasis added). The Constitution further provides that: “[t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.” Miss. Const. art. 6, § 146 (emphasis added). The legislature has spoken to the meaning of “appellate jurisdiction”: “An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court . . . .” Miss. Code Ann. § 11-51-3 (Rev. 2012) (emphasis added). Further, [t]he essential criterion of appellate jurisdiction is that it revises and corrects the proceedings of a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and 4 acted upon by some other court, whose judgment or proceedings are to be revised. Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 43, 61 So. 743, 743-44 (1913). ¶6. The circuit court denied both Pryer’s first request for documents and Pryer’s subsequent and successive “Motion to Show Cause.” The circuit court’s order on the “Motion to Show Cause” states that “[t]his motion contains the exact same requests as the previously filed motions,” that the documents “are not contained with the Circuit Clerk’s file,” and that Pryer’s allegations against court officials are “unfounded and slanderous.” The Court of Appeals termed Pryer’s request a “fishing expedition.” Pryer v. State, 2013 WL 2399645, at  (Miss. Ct. App. June 4, 2013). The Itawamba County Circuit Court’s ruling on Pryer’s “Motion to Show Cause” was a final judgment. Pryer’s appeal from that final judgment was appealable to this Court under its constitutional appellate jurisdiction and assignable by this Court to the Court of Appeals. ¶7. The Mississippi Public Records Act states: “[a]ny person denied the right granted by Section 25-61-5 to inspect or copy public records may institute a suit in the chancery court of the county in which the public body is located, and the court shall determine whether such public record is exempt from the provisions of this chapter . . . .” Miss. Code Ann. § 25-6113(1)(a) (Rev. 2010). The statute provides parties aggrieved by the denial of public records the option of filing suit in the chancery court as a means of seeking relief. The Court of Appeals never stated or suggested that prisoners are outside the scope of the Public Records Act. If Pryer so desires, he may, pursuant to the statute, institute a suit in the Chancery Court 5 of Itawamba County.5 Nothing in the Court of Appeals decision or in the order of the circuit court prevents his doing so, and this Court’s ruling today does not impede Pryer’s statutory right to file such an action, should he choose to do so. ¶8. Instead of utilizing the statutory procedure for denial of public records requests, Pryer filed his Motion to Show Cause in circuit court. Upon denial of that motion, he filed a notice of appeal in this Court, and his case was assigned to the Court of Appeals. Pryer now complains of a jurisdictional defect. He states that “the Circuit Court had no jurisdiction to entertain a Public Records request as a Post Conviction Relief petition.” We cannot say whether the circuit court treated Pryer’s initial request as a motion for post-conviction relief, since that order neither appears in the appellate record nor was it appealed. But in its order on the Motion to Show Cause, the circuit court did not make reference to the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2007). The circuit court simply denied the motion and held that the documents were “not 5 If, instead of seeking circuit court records, Pryer had sought records from the Itawamba County Chancery Court, we would have been left to ponder the statute’s functionality. According to the statute, had Pryer been denied records by the Itawamba County Chancery Court, one option for Pryer would have been institution of a suit in that very same chancery court. 6 contained with the Circuit Clerk’s file.” 6 Thus, the record provides no indication that the circuit court treated Pryer’s Motion to Show Cause as a petition for post-conviction relief. ¶9. The Court of Appeals, however, applied the standard from Fleming v. State requiring prisoners seeking post-conviction relief to “show[] a specific need, or that the documents sought are necessary to decide a specific issue.” Pryer, 2013 WL 2399645, at  (citing Fleming v. State, 553 So. 2d 505, 507 (Miss. 1989)). While we find that the Court of Appeals incorrectly assumed that Pryer’s Motion to Show Cause was treated by the circuit court as a petition for post-conviction relief, we do not find that the circuit court was without jurisdiction to rule upon the motion. The Court of Appeals stated that “we have no reason to believe that any such documents do exist,” and we agree. Pryer, 2013 WL 2399645, at . ¶10. We affirm the decision of the Court of Appeals and that of the Circuit Court of Itawamba County. ¶11. AFFIRMED. WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE, AND KING, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ.",analysis
+345,885581,1,1,"1. ¶On July 17, 1997, Nelson was arrested and charged in the Justice Court with partner or family member assault under § 45-5-206(c), MCA. He was taken to the Gallatin County Detention Center (Detention Center) for processing, where he inquired about posting bond to be released and was told that he could not post bond on this type of charge. He called his mother and subsequently was unable to call his attorney because the detainees' phone was dead. 2. ¶After being incarcerated overnight, Nelson was arraigned in Justice Court and, together with other detainees, generally advised of his rights. When his case was called, the Justice Court more specifically advised him of his rights. Nelson stated he wanted to plead guilty and signed a waiver of right to counsel. The Justice Court accepted his guilty plea and sentenced him. 3. ¶After his release, Nelson sought the advice of counsel. On August 22, 1997, he filed a motion to withdraw his guilty plea and the Justice Court subsequently denied the motion. 4. ¶Nelson immediately filed a notice of appeal in the District Court. He moved to file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-119%20Opinion.htm (3 of 10)4/5/2007 1:58:57 PM file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-119%20Opinion.htm withdraw the guilty plea he had entered in the Justice Court and, after a hearing, the District Court denied his motion. Nelson appeals the District Court's denial of his motion to withdraw his guilty plea.",facts
+346,1253359,1,2,"We must first determine our jurisdiction to consider this case. Iowa Rule of Criminal Procedure 5(6) authorizes the issuance of a county attorney's subpoena and subpoena duces tecum in an investigation by the county attorney of a criminal offense. However, there is no specific rule or statute permitting a subpoenaed witness who moves to quash the subpoena or subpoena duces tecum to appeal the denial of the motion by the district court when the witness is not a defendant in the criminal proceeding. In Bousman v. Iowa District Court, 630 N.W.2d 789 (Iowa 2001), decided on this date, we found this same lack of a procedural mechanism for appeal by a person subject to a nontestimonial identification order under Iowa Code chapter 810 limited judicial review to a petition for writ of certiorari under Iowa Rule of Appellate Procedure 301. See Bousman, 630 N.W.2d at 794. Not only is this form of review available under our rules prior to the final disposition of the case, it is less disruptive to the ongoing criminal investigation by the county attorney than an appeal, and gives us more control over our dockets. See McKeever v. Gerard, 368 N.W.2d 116, 118 (Iowa 1985) (available regardless of the finality of a judgment). It is the proper mechanism for review of an order by the district court denying a motion to quash a county attorney's subpoena. Thus, when an appeal should have been filed as a certiorari proceeding, we are authorized to proceed to consider the appeal as though it was properly filed as a certiorari action. Iowa R.App.P. 304. We recognize that a writ of certiorari is proper when the plaintiff alleges the district court exceeded its jurisdiction or acted illegally. State Pub. Defender v. Iowa Dist. Ct., 594 N.W.2d 34, 36 (Iowa 1999). An illegal act exists when the challenged court order lacks substantial support in the evidence or is not supported by the proper rule of law. Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 508 (Iowa 1998). In Bousman, we found that certiorari was proper because the other avenues for appellate review required predicate litigation. Without certiorari, Bousman could obtain judicial review only if criminal charges were ultimately filed against him or if he appealed from a contempt order for failing to comply with the nontestimonial identification order. We also observed that Bousman challenged the order on legal and constitutional grounds. Similarly, Pattison has no practical means of judicial review without certiorari. It is not the subject of a potential criminal action. Thus, judicial review would be limited to an appeal from a contempt citation. See Church of Scientology of California v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313, 322-23 n. 11 (1992); Allen, 582 N.W.2d at 508-09. Yet, an appeal of a discovery order through a challenge to a contempt proceeding is impractical for a litigant who is a disinterested third party to the underlying dispute and lacks a sufficient stake in the outcome of the underlying case to risk contempt. See Church of Scientology of California, 506 U.S. at 18 n. 11, 113 S.Ct. at 452 n. 11, 121 L.Ed.2d at 322-23 n. 11; In re Pruett, 133 F.3d 275, 281 n. 10 (4th Cir.1997). Thus, potentially harsh and unfair results await a disinterested third party who challenges a discovery order through a contempt proceeding. This type of risky review for a disinterested third party supports review by writ of original certiorari. See Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991) (review of refusal to grant protective order to state patrol was by certiorari because state patrol was not a party to the underlying action). Additionally, the grounds for review raised by Pattison are framed in terms of a Fourth Amendment challenge. This also makes the case particularly appropriate for certiorari review. See McKeever, 368 N.W.2d at 118. Accordingly, we grant the petition for writ of certiorari and proceed to consider the merits of the challenge to the subpoena duces tecum. Our review is at law. See Matlock v. Weets, 531 N.W.2d 118, 121 (Iowa 1995). A district court is given discretion to refuse to quash a subpoena. Exotica Botanicals, Inc. v. Terra Int'l, Inc., 612 N.W.2d 801, 804 (Iowa 2000). Reversal is warranted only if the grounds relied on by the district court are clearly unreasonable or untenable. Id.",jurisdiction
+347,2007897,1,5,"Before proceeding to the merits, we address the jurisdictional issue decided by the Court of Appeals and a jurisdictional issue raised by MUD on appeal.",jurisdiction
+348,4561137,1,1,"After Kirk E. Brumbaugh obtained a jury verdict for less than the statutory minimum, he moved for attorney fees authorized but not mandated by statute. The district court denied the request. On appeal, we decline Brumbaugh’s invitation to abandon our longstanding procedure and to instead require that a trial court provide an explanation of its reasons regarding a fee decision. Finding no abuse of discretion, we affirm the district court’s judgment awarding no fees or costs.",introduction
+349,4513453,1,1,"After two employees separated from their employment with a restaurant, they sued for “paid time off” (PTO) compensation under the Nebraska Wage Payment and Collection Act (Wage Act).1 Upon cross-motions for summary judgment, the district court sustained the employer’s motion. Because the employees did not meet the written employment agreement’s stated conditions to earn PTO, we affirm the summary judgment.",introduction
+350,4544447,1,1,"The State Bar of Texas entered an “Agreed Judgment of Public Reprimand” of the respondent, Kenneth A. Nnaka, on October 16, 2019. The Counsel for Discipline of the Nebraska Supreme Court, the relator, filed a motion for reciprocal discipline against the respondent. We grant the motion for reciprocal discipline and impose a public reprimand.",introduction
+351,854639,1,1,[¶3] 1. Did the district court abuse its discretion by modifying Father’s visitation schedule? 2. Did the district court abuse its discretion by denying Father’s request to present the testimony of two expert witnesses? 3. Did the district court err by denying Father’s claims for abatement of child support? 4. Did the district court abuse its discretion by denying Father’s Petition to Modify Child Support? 5. Did the district court abuse its discretion by not fully reimbursing Father for day-care expenses? 6. Did the district court abuse its discretion in its award of attorney’s fees against Father?,issues
+352,1165079,1,4,"The appellant seeks to support his assertion of error that there was insufficient evidence to sustain these convictions because of the failure to prove that the material delivered was a controlled substance as defined by § 35-7-1016(a & b)(iv), W.S. 1977, which is as follows: (a) The controlled substances listed in this section are included in Schedule II. Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name or brand name designated, listed in this section. (b) Substances, vegetable origin or chemical synthesis. — Unless specifically excepted or unless listed in another schedule, any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:       (iv) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine. In the course of his brief, defendant-appellant contends that D-cocaine is not covered thereby and inasmuch as no test was made to determine if this were L-cocaine or D-cocaine, there is no proof that this is a controlled substance under the statute. This position cannot rest in either the law or the evidence. The State's expert witness testified without equivocation that the material was cocaine. He made no test to determine if this were L-cocaine or D-cocaine. He also testified that L-cocaine occurs naturally and that D-cocaine is a synthetic composition which is the equivalent of L-cocaine. We must view the evidence in a light most favorable to the prosecution and resolve the evidence in favor of the State. Hovee v. State, Wyo., 596 P.2d 1127, 1133 (1979). The evidence was clearly sufficient to sustain a conviction. United States v. Wilburn, 10 Cir., 549 F.2d 734 (1977); People v. Harper, 193 Colo. 116, 562 P.2d 1112 (1977). We are unable to understand appellant's reliance upon United States v. Orzechowski, 7 Cir., 547 F.2d 978 (1977), certiorari denied 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977), which is the only authority he cited. It is our view that if Orzechowski was the sole authority available, we would be forced to rule against appellant based thereon.",sufficiency of the evidence
+353,1282019,1,1,"The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo. Applying this de novo standard, we agree with the Mayor's reasoning in refusing to reinstate Staten and accordingly reverse the decision of the Circuit Court of Cabell County and remand to that court with directions to dissolve the writ previously awarded. `A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded. Syllabus Point 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989); Syllabus Point 2, State ex rel. Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970).",standard of review
+354,1379102,1,4,"Based on the foregoing, we REVERSE the Court of Appeals' decision. MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.",conclusion
+355,1607200,1,22,"Smith has not challenged the sufficiency of the evidence, but this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. See Jones v. State, 963 So.2d 180, 184 (Fla.2007); Fla. R.App. P. 9.142(a)(6) (In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.). In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt. Simmons v. State, 934 So.2d 1100, 1111 (Fla.2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). We conclude that the record contains competent, substantial evidence to support Smith's convictions for the first-degree murders of Brown and Wilson. The State presented evidence that Smith solicited the murder of Brown in order to eliminate her as witness against him in another murder case and that Smith admitted his involvement in numerous statements after Brown's murder. The State also presented evidence that Brown died from asphyxia caused by being smothered with the bed pillow and did not die from a drug overdose. The State also presented evidence that Smith ordered his subordinates to kill Anthony Fail because he was robbing Smith's drug holes, that there was an earlier unsuccessful attempt to shoot Fail, and that Wilson was shot by accident in a second attempt to kill Fail. Multiple bullets were fired at Wilson's vehicle from another vehicle that sped away from the scene. Wilson died from numerous gunshot wounds that caused massive trauma to her body. Based on a review of the evidence presented in this case, a rational trier of fact could have found the existence of the elements of the crime[s] beyond a reasonable doubt. Simmons, 934 So.2d at 1111 (quoting Bradley, 787 So.2d at 738). Thus, there was sufficient evidence to support Smith's convictions.",sufficiency of the evidence
+356,2116220,1,2,The State initially asserts that it presented sufficient evidence that defendant was not on his land at the time Darvin observed him with the weapon. Section 24-1(a)(4) of the Criminal Code of 1961 provides: (a) A person commits the offense of unlawful use of weapons when he knowingly:,analysis
+357,2216307,1,11,"Despite the amount of evidence presented before the trial court, this case is a matter of insurance contract construction. The construction of an insurance contract or policy is a question of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Katskee v. Blue Cross/Blue Shield, 245 Neb. 808, 515 N.W.2d 645 (1994); Dalton Buick v. Universal Underwriters Ins. Co., 245 Neb. 282, 512 N.W.2d 633 (1994).",analysis
+358,2349660,2,1,"
+[¶ 3] Our Constitution requires that [e]ach House shall be the judge of the elections and qualifications of its own members. Me. Const. art. IV, pt. 3, § 3. It is clear from other sections of the Constitution that Article IV, Part 3, Section 3 governs only general elections to the House and the Senate. See Me. Const. art. II, § 4 (The election of Senators and Representatives shall be on the Tuesday following the first Monday of November biennially forever....); Me. Const. art. IV, pt. 1, § 5 (The Governor shall examine the returned copies of such lists [of votes tallied by the municipal election officials] and 7 days before the first Wednesday of December biennially, shall issue a summons to such persons as shall appear to have been elected....); Me. Const. art. IV, pt. 2, §§ 4, 5 (similar procedure for the Senate). Although general elections are required and provided for by Maine's Constitution, primary elections are not referred to in the Constitution, and are creatures of statute. [¶ 4] In addition, Article IV, Part 3, Section 3 uses the term members. Primary elections do not determine Senate and House members, but only determine the nominee of a political party. See 21-A M.R.S.A. § 1(32) (1993) (`Primary election' means the regular election for the election of nominees of a party for the general election.). Moreover, according to the language of Article IV, Part 3, Section 3, it is only the members of the incoming Legislature that have the exclusive authority to judge the elections and qualifications of its own members. Me. Const. art. IV, pt. 3, § 3; see also Opinion of the Justices, 394 A.2d 1168, 1171 (Me.1978); Opinion of the Justices, 35 Me. 563, 572 (1854). [¶ 5] Accordingly, Article IV, Part 3, Section 3 of the Maine Constitution does not vest exclusive authority in the Legislature over legislative primary recount appeals and does not prevent us from assuming jurisdiction over these appeals.
+[¶ 6] We look to the language and history of 21-A M.R.S.A. § 737-A(10) to determine whether we have jurisdiction to resolve ballot disputes in primary elections. Section 737-A(10) provides: For all elections, except for the Senate and the House of Representatives, if there are enough challenged or disputed ballots to affect the result of an election, the Secretary of State shall forward the ballots and related records for that election to the clerk of the Supreme Judicial Court. The Supreme Judicial Court shall determine the result of the election pursuant to procedures adopted by court rule. The decision of the Supreme Judicial Court is final and must be certified to the Governor by the Chief Justice. For all elections to the Senate and the House of Representatives, each House shall establish procedures for recount appeals. In construing a statute, we seek to give effect to the legislative intent by examining the plain meaning of the statutory language. Gallant v. Bartash, Inc., 2002 ME 4, ¶ 3, 786 A.2d 628, 629 (quotation marks omitted). The phrase all elections is not defined in title 21-A. Title 21-A, however, does define any election. 21-A M.R.S.A. § 1(2) (1993) (`Any election' means primary and general elections and referenda, whether regular or special.). The phrase any election is used once in section 737-A. 21-A M.R.S.A. § 737-A (A losing candidate in any election who desires a recount....). Therefore, section 737-A generally applies to primary elections. [¶ 7] The phrase any election, however, is not used in section 737-A(10). It can logically be argued that there is no practical distinction between the words all and any. See NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE 36 (2d ed. 1978) (defining all as any; any whatever); id. at 62 (defining any as every). Accordingly, the language of section 737-A(10) that states For all elections to the Senate and the House of Representatives could be interpreted to include primary elections. [¶ 8] Other statutory language, however, leads to a different result. Title 21-A M.R.S.A. § 723(1) (Supp.2003) states that [i]n a primary election, the person who receives a plurality of the votes cast for nomination to any office, as long as there is at least one vote cast for that office, is nominated for that office.... (Emphasis added.) In any other election, the person who receives a plurality of the votes cast for election to any office, as long as there is at least one vote cast for that office, is elected to that office.... 21-A M.R.S.A. § 723(2) (Supp.2003) (emphasis added). There is a distinction, then, between nominations for an office, which is the function of a primary election, and elections to [or for] the Senate and the House of Representatives. 21-A M.R.S.A. § 737-A(10); see also id. § 723(2). Therefore, we could alternatively interpret the language of section 737-A(10) as allowing the Court to assume jurisdiction over legislative primary recount appeals because primary elections are not elections to or for an office in the Senate or the House, but are only nominations of a political party to seek election to an office. Because the language of section 737-A(10) is reasonably susceptible of different interpretations, it is ambiguous. Korhonen v. Allstate Ins. Co., 2003 ME 77, ¶ 9, 827 A.2d 833, 836. Because there is ambiguity in section 737-A(10), we look to the history of the statute and the policy behind its enactment. See Pennings v. Pennings, 2002 ME 3, ¶ 13, 786 A.2d 622, 627; Mundy v. Simmons, 424 A.2d 135, 137 (Me.1980).
+[¶ 9] From 1913 to 1961, separate statutes governed recounts in general and primary elections. The statute governing general elections specifically limited the Governor and the Executive Council's role in recounts in elections to the Legislature. See R.S. ch. 7, § 53 (1916); R.S. ch. 8, § 55 (1930); R.S. ch. 5, § 50 (1944); R.S. ch. 5, § 50 (1954). The role of the Governor and the Executive Council was limited to the examination and correction of returns. They had no authority to decide whether any ballots cast in an election of a Representative to the Legislature shall be counted or rejected. Opinion of the Justices, 143 Me. 417, 422, 88 A.2d 151, 154 (1948). [¶ 10] The statute governing recounts in primary elections, however, did not include the same limitation on the authority of the Governor and the Executive Council. See P.L. 1913, ch. 221, § 16; R.S. ch. 7, § 16 (1930); R.S. ch. 4, § 30 (1944); R.S. ch. 4, § 31 (1954). Thus, in primary elections, even those primary elections for the House of Representatives and the Senate, the Governor and Council made the final determinations in recounts. Id.; see also Opinion of the Justices, 124 Me. 453, 470, 126 A. 354 (1924) ([The Governor and Council] are made by the Legislature the tribunal to pass upon the results in primary elections....). [¶ 11] In 1961, the provisions governing recounts in all elections, primary and general, were combined. P.L. 1961, ch. 360, §§ 127-132. After a recount, a candidate could appeal to the Governor and the Council, provided that: This subsection does not apply where final determination of the election of a candidate is governed by the State or Federal Constitution. Id. § 127(IV)(A). Therefore, jurisdiction of the Governor and the Council to decide recount disputes was limited only by the Constitution, which, as discussed above, grants exclusive jurisdiction over general election disputes to the Legislature. Me. Const. art. IV, pt. 3, § 3. [¶ 12] In 1975, when the Executive Council was abolished, the Commission on Governmental Ethics and Election Practices was given the jurisdiction to handle recounts. P.L. 1975, ch. 621, §§ 1421-1424. Initially, the Commission had jurisdiction to make a final determination in election disputes when the Federal and Maine Constitutions permitted, and was charged with submitting its findings of fact and opinion to the body vested with final determination powers in all other elections. Id. § 1423(3). The same Legislature amended section 1421, P.L. 1975, ch. 759, §§ 2-4, and subsequently, the Commission made findings of fact and opinion on the final determination of election results in primary, general and special elections for county, state or federal offices, id. § 2. If the disputed election was an election for governor, legislator, or a federal office, the Commission was to submit its findings of fact and opinion to the body vested with final determination powers. Id. § 4(A). In all other elections, the Commission was to submit its findings of fact and opinion to the Governor, who was then charged with making a final determination. Id. § 4(B), (C). [¶ 13] Thus, the Legislature has consistently made a distinction between primary and general elections when determining what body has jurisdiction over final recount determinations.
+[¶ 14] Following a ballot-tampering scandal in 1992, a Special Commission to Review the Electoral Process made a series of recommendations to amend the statutory scheme governing election recounts. The Commission proposed legislation that sent all recount appeals to the courts for resolution: 10. Appeal to court. If there are enough challenged or disputed ballots to affect the result of an election, the Secretary of State shall forward the ballots and related records for that election to the clerk of the Supreme Judicial Court. The Chief Justice of the Supreme Judicial Court shall determine the result of the election pursuant to procedures adopted by court rule. The decision of the Chief Justice is final and must be certified to the Governor by the Chief Justice. L.D. 1477, § 35 (16th Legis. 1993). The Commission also proposed an amendment to the Constitution. L.D. 1474 (16th Legis. 1993). The proposal to amend the Constitution, however, died between the Houses. See 2 Legis. Rec. House H-1410 (1993). [¶ 15] The Attorney General issued an opinion that two provisions of the bill would violate the Constitution. [1] In response, Representative Gwadosky commented as follows: Recently, upon enactment, we were contacted by individuals who were concerned about two provisions which they thought would make this bill essentially unconstitutional and we have an opinion from the Attorney General which in fact indicated that there were two provisions of the bill that needed to be adjusted and this amendment now to the Committee of Conference Report Amendment which was unanimous is to address those two provisions. The first deals with an unconstitutional provision in the original bill that would have allowed the Chief Justice of the Maine Supreme Court the authority to determine recounts and election proceedings of the House and Senate members. As you may have remembered in the original bill, 1477, there was reference to recounts and the appeals going to the Supreme Judicial Court. There was also a separate bill, L.D. 1474, which was an amendment to the Constitution because you have to in fact amend the Constitution to make that change. That bill was defeated and the reference now to the Supreme Court had to be struck from this provision. 2 Legis. Rec. House H-1410 (1993) (emphasis added). As a result, the Legislature adopted the current language of section 737-A(10). [¶ 16] Representative Gwadosky's comments indicate that the Legislature's intent, when enacting the amendment to section 737-A(10), was to address the constitutional problems raised in the Commission's proposed bill, in particular, the attempt to give the Supreme Judicial Court jurisdiction over recount appeals in general elections to the Senate and the House of Representatives, which is prohibited by Art. IV, Part 3, Section 3, of the Maine Constitution. Because, however, the Constitution does not prohibit giving the Supreme Judicial Court jurisdiction over recount appeals in primary elections to the Senate and the House, and Representative Gwadosky's comments refer only to constitutional concerns, the only rational conclusion is that the intent of the Legislature was to give the judicial branch jurisdiction over recount appeals in all primary elections. [2] [¶ 17] Because of the strong legislative history suggesting that the Legislature did not intend to reserve to itself jurisdiction over recount appeals in primary elections, we conclude that we have jurisdiction over such appeals.",jurisdiction
+359,853333,1,2,"Edwards claims that Harris' testimony was coerced, equivocal, and uncorroborated, and therefore insufficient to sustain his conviction. [2] (Appellant's Br. at 9.) Although we will not reweigh the evidence or judge witness credibility on appeal, Tillman v. State, 642 N.E.2d 221, 223 (Ind.1994), Edwards asks us to re-evaluate Harris' testimony based upon the incredible dubiosity rule. (Appellant's Rep. Br. at 1.) This rule is applicable only when a lone witness offers inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the appellant's guilt. Tillman, 642 N.E.2d at 223 (citing Gaddis v. State, 253 Ind. 73, 82, 251 N.E.2d 658, 663 (1969)). To interfere with the jury's authority to judge witness credibility and evaluate evidence, the court must be presented with testimony which runs counter to human experience and that reasonable persons could not believe. Campbell v. State 732 N.E.2d 197, 207 (Ind.Ct.App.2000). [3] It is a rare occasion. Edwards claims Harris' aborted intention to change his testimony renders his statements equivocal and contradictory. He also maintains that reasonable persons could not believe Harris' testimony because he is untrustworthy and a juvenile delinquent drug dealing admitted liar. (Appellant's Br. at 1.) As such, Edwards says it is inconceivable Edwards would confide in him about participation in any crime. The incredible dubiosity test is a difficult standard to meet, one that requires great ambiguity and inconsistency in the evidence. However, it is not impossible. In Sisson v. State, 710 N.E.2d 203 (Ind.Ct. App.1999), the key witness testified on direct examination that the defendant was involved in three burglaries, then recanted during cross-examination and stated that the defendant was only present during the first burglary. Id. at 205, 208. The witness also admitted during cross-examination that he had lied to police and to the jury. Id. at 206. His testimony was also rife with equivocal language, and he was inconsistent about which houses the defendant had helped burglarize. [4] Id. The jury acquitted the appellant of two burglaries, but convicted him of burglarizing one house about which the witness was particularly unclear. Id. at 207. The Court of Appeals held that such blatantly contradictory testimony could not support the jury's verdict. Id. at 207-08. Sisson demonstrates the sort of prevarication and contradiction necessary to merit reversal based on the incredible dubiosity rule. The testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it. Campbell, 732 N.E.2d at 207. Harris' testimony does not meet that standard. Unlike the witness in Sisson, Harris was not inconsistent throughout his testimony. His statements before the jury at trial were in accord with those given previously under oath. And though Harris did consider changing his testimony during the trial, the jury was made aware of this fact during cross-examination. As Harris' proposed alteration of his testimony was put squarely before the jury, the jury had the ability to perform its role as a trier of fact and determine the extent to which it affected the integrity of his testimony. See Albrecht v. State, 737 N.E.2d 719, 733 (Ind.2000). Harris testified on re-direct that he attempted to change his story because he was scared. The jury would not be unreasonable in accepting this (or another) plausible explanation. Edwards complains that Harris' testimony was inconsistent with other evidence presented (as to the color of Alred's vehicle, and whether or not he was awakened by Linda Phillips at 2 a.m. December 21, 1998). (Appellant's Br. at 16.) Harris testified that the Ford Taurus driven by Alred the night of the murder was gray. Rental company records indicated the Taurus rented by Alred was light prairie tan. (R. at 406, 408.) It is the jury's duty to resolve variations in testimony. It was not, as a matter of law, inappropriate for the jury to accept Harris' testimony on the essential elements for conspiracy, despite a modest discrepancy on the color of Alred's car. Edwards asserts that Harris lied when stating that Phillips woke him at 2 a.m., because Phillips testified she was on medication and out of it and did not speak to anyone. The jury could have resolved this alleged inconsistency without finding Harris unbelievable. Phillips' own testimony indicates she was unclear about the events of the early morning hours of December 21st. Whether or not Phillips awakened Harris is a matter of fact for the jury to determine and weigh. It is not an issue that demands that the jury discredit Harris' testimony. Edwards also asserts that Harris' testimony is unbelievable because only a complete moron would divulge such incriminating information to a punk kid like Chris. (Appellant's Br. at 17.) To reverse under the incredible dubiosity rule, the court must find that the testimony runs counter to human experience and that no reasonable person could believe it. Campbell, 732 N.E.2d at 207. It is neither counter to human experiences nor unreasonable that Edwards would confide in a person with whom he lived, whom he called his right hand man, (R. at 627), and with whom he shared family (Edwards was the brother of Harris' guardian and aunt-by-marriage, Stacey Harris). Edwards further contends that the police and Harris' aunt, Tracie Brooks, coerced Harris' statements. Harris testified that he did not want to talk to the police, but that everyone in his house and neighborhood told him he should talk after his name appeared in the paper. Harris also said his aunt threatened to turn him in to the police if he did not testify. Edwards claims that since Brooks was not Harris' legal guardian, and since Brooks may have received money from Crimestoppers for facilitating Harris' statement, Brooks coerced him into giving a statement to police for her own benefit. There is no actual evidence, however, that Brooks attempted to influence the content of Harris' statement. Though Harris' initial meeting with police occurred at Brooks' urging, her involvement does not compromise Harris' testimony. Harris testified that during his initial meeting with police he was told he could be charged in the crime if he did not cooperate. He also stated that the police threatened to go to his neighborhood and say he was giving them the names of those to whom he had sold drugs. Harris said he was scared by these threats and decided to give a statement. Detective Scheffel testified at trial that he and Sergeant Heffner told Harris they thought they had enough information to implicate him in the crime, but could neither confirm nor deny that Heffner had threatened to tell Harris' neighbors he was talking to police about his drug dealings. The members of the jury heard this testimony and were aware of the circumstances surrounding Harris' statement. In Albrecht, 737 N.E.2d at 733, the court held that the testimony of a witness who had initially provided an alibi for the defendant, but changed his story after police threatened him with prosecution and incarceration, could still have been found credible by the jury. As in this case, the circumstances of the witness's testimony in Albrecht were put before the jury, and the court determined that [t]he extent to which threats may have, in some degree, affected a third party's testimony goes to the weight to be given the testimony by the trier of fact. Id. Harris stated consistently throughout his testimony that Edwards left in a car driven by Alred, that he returned in the early morning of December 21, 1998, and asked Harris to dispose of clothes for him, and that Edwards had received $3000 from Alred. Harris' testimony was not incredibly dubious, and the jury's estimation of Harris' credibility is not improper as a matter of law. The jury heard evidence that Harris had been unwilling to talk to police and that detectives had encouraged him to give a statement by informing him of the possible consequences of not talking to police. An informed jury did not have to equate Harris' reluctance with deceit. There is no need to re-evaluate the jury's determination of witness credibility. Edwards also contends that a phone call made to Alred's phone from the Oakland residence at 11:27 on the evening of the murder helps discredit Harris' testimony and the jury verdict. Edwards claims that since both Phillips and Harris claimed not to know Alred's cell phone number, Edwards must have made this call. He contends that this not only proves that Harris lied about the time of Edwards' return, but also definitively removes Edwards from the crime scene. While it could be inferred that Edwards made the call, however, it is not an established fact that the jury must believe. Furthermore, Edwards was convicted of conspiracy to commit murder, and the State needed to prove only the existence of an agreement to commit murder and an overt act in furtherance of the crime. Ind. Code Ann. § 35-41-5-2 (West Supp.1999). Whether or not Edwards placed the phone call at 11:27 p.m. has no bearing on his prior statement about going to kill this man, (R. at 593), or upon his leaving with Alred earlier in the evening. Finally, we note that Harris' testimony is not the only evidence supporting the verdict. The State offered testimony to establish that Grady and Alred had dealt together in cocaine, presented phone records indicating telephone calls and pages between Alred and Grady and Edwards the night of the murder, and showed that a pair of handcuffs was found on Grady's body, while testimony indicated that a pair was missing from Edwards' residence. ( See Appellee's Br. at 12.) This constituted a fair amount of circumstantial evidence of conspiracy to commit murder. With Harris' testimony, there was enough evidence to conclude beyond a reasonable doubt that Edwards conspired with Alred to commit murder.",sufficiency of the evidence
+360,4535365,2,1,"The existence of jurisdiction is a question of law and is reviewed de novo under the right/wrong standard. Lingle v. Hawaii Gov’t Empls. Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005).",jurisdiction
+361,884311,1,4,"Did the Workers' Compensation Court err when it concluded that the settlement agreements entered into between claimants and the State Fund foreclose claimants' rights to additional benefits? During the pendency of this litigation, four of the claimants—Jay Harbrige, Susan Vernon, Steve Prickett, and James Brown—reached settlement agreements with the State Fund. The Workers' Compensation Court concluded that those agreements foreclose claimants' rights to all further workers' compensation benefits, including increased temporary total and impairment rating benefits. On appeal, claimants contend that the settlement agreements foreclose only their entitlements to wage supplement and rehabilitation benefits and, therefore, that the Workers' Compensation Court erred when it concluded that those agreements foreclose their rights to all further benefits. In support of this contention, they assert the following two arguments: (1) pursuant to Ingraham v. Champion International (1990), 243 Mont. 42, 793 P.2d 769, the settlement petitions used by the parties (DOLI Form LF820) cannot be applied to impairment awards; and (2) because the settlement petitions are ambiguous, the court can and should analyze extrinsic evidence in order to determine the parties' intent. Claimants' first argument asserts that: (1) pursuant to Ingraham, impairment awards are not subject to the lump sum conversion requirements of § 39-71-741, MCA;(2) the settlement petitions used in this case (DOLI Form LF820) are specifically designed to implement the provisions of § 39-71-741(2), MCA; and (3) therefore, the settlement petitions cannot be applied to impairment awards. Although § 39-71-741(2), MCA (1987-89), permits permanent total disability and permanent partial wage supplement benefits to be converted to a lump sum, it does not preclude claimants who are entitled to either type of those benefits from fully and finally settling their potential rights to other types of benefits. Furthermore, Ingraham merely provides that lump sum awards of impairment benefits are not subject to the requirements set forth in § 39-71-741(2), MCA (1987-89). Ingraham, 243 Mont. at 47, 793 P.2d at 772. We therefore conclude that claimants' reliance upon Ingraham is misplaced. Second, claimants contend that the settlement petitions are ambiguous and, therefore, that the court can and should analyze extrinsic evidence—the contemporaneous correspondence between the parties—in order to determine the parties' intent. In their brief, they concede that there is language in the body of the petitions which could be construed as closing all claims for all types of benefits. The exact language of the settlement petitions to which they refer provides, in part, that the parties agreed to fully and finally conclude all compensation and/or rehabilitation payments due the claimant and that the claimant petitions the Division of Workers' Compensation ... for approval of this petition and that the claim be fully and finally closed. Despite that operative language in the petitions, claimants allege that, based on the following factors, the settlement petitions are ambiguous: (1) the petitions are standardized forms, produced by the DOLI; (2) the petitions are designed to implement, and correspond directly to § 39-71-741(2), MCA; and (3) the petition is captioned: (Permanent Partial Wage Supplement and/or Rehabilitation Benefits). Although the settlement petitions are, in fact, standardized forms produced by the DOLI pursuant to § 39-71-741(2), MCA, claimants' counsel selected and prepared the petitions, and then forwarded them to the State Fund for execution. Claimants' counsel, however, did not attempt to modify the unambiguous language in the petitions; nor did they use the additional spaces provided to insert any special provisions or to indicate the retention of any specific rights. Had they intended to enter into only a partial settlement, they could easily have inserted an express provision which retained their rights to further benefits. Therefore, even if we assume, without deciding, that the settlement petitions in this case are, in fact, ambiguous, we conclude that any such ambiguities must be strictly construed against the party who created them. Mueske v. Piper, Jaffray & Hopwood, Inc. (1993), 260 Mont. 207, 216, 859 P.2d 444, 449-50; Lauterjung v. Johnson (1977), 175 Mont. 74, 78, 572 P.2d 511, 513. Accordingly, we hold that the Workers' Compensation Court did not err when it concluded that the settlement agreements entered into between claimants and the State Fund foreclose claimants' rights to all further benefits, including increased temporary total and impairment rating benefits. That part of the judgment of the Workers' Compensation Court is affirmed.",issues
+362,1974716,1,3,"Under D.C.Code § 11-721(a)(1) (1989), this court has jurisdiction to review all final orders and judgments of the Superior Court. An order is final only if it disposes of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered. McBryde v. Metropolitan Life Insurance Co., 221 A.2d 718, 720 (D.C. 1966). To be reviewable, a judgment or decree must not only be final but also complete, that is, final not only as to all parties, but as to the whole subject matter and all the causes of action involved. District of Columbia v. Davis, 386 A.2d 1195, 1198 (D.C.1978). The orders disqualifying Mr. Mauro and Mr. Drake from participating further in these cases are obviously not final orders, since both cases remain alive on the trial court docket and are a long way from being tried. The parties all agree that if the orders are appealable at all, the appeals must be brought within a narrow but well-recognized exception to the rule against appeals from non-final orders known as the collateral order doctrine. Stein v. United States, 532 A.2d 641, 643 (D.C. 1987), cert. denied, 485 U.S. 1010, 108 S.Ct. 1477, 99 L.Ed.2d 705 (1988). That doctrine is a creature of the Supreme Court which this court, like many others, has chosen to adopt. It was first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), when the Court identified a small class of orders which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Id. at 546, 69 S.Ct. at 1225-26. As refined in later cases, the collateral order doctrine came to have three requirements, all of which must be met before an interlocutory order may be appealed. To be appealable under Cohen, a trial court order must, at a minimum, meet three conditions. First, it must conclusively determine the disputed question; second, it must resolve an important issue completely separate from the merits of the action; third, it must be effectively unreviewable on appeal from a final judgment. Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). The question we must decide is whether an order disqualifying counsel in a civil case is immediately appealable under the Cohen collateral order doctrine. In answering this question, we are faced with a conflict between our own earlier statements and a more recent Supreme Court opinion on the subject. This court said in Urciolo v. Urciolo, 449 A.2d 287 (D.C. 1982), that an order disqualifying counsel from participating in an ongoing case is appealable as a collateral order. Id. at 290 (footnote omitted). In Urciolo we echoed our earlier holding in American Archives' Counsel v. Bittenbender, 345 A.2d 487, 490 (D.C.1975). In both Urciolo and Bittenbender we applied the three-part Cohen test and concluded that orders disqualifying counsel in civil cases are `effectively unreviewable' on appeal from a final judgment. Urciolo, supra, 449 A.2d at 290; Bittenbender, supra, 345 A.2d at 490; see also Borden v. Borden, 277 A.2d 89, 90 (D.C.1971) (trial court order appointing counsel held to be appealable as a collateral order). The Supreme Court has discussed the appealability of orders disqualifying counsel in several cases, most recently in a decision which we find more persuasive than our own earlier opinions to the contrary. In the first of these cases, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377-378, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981), the Court held that the denial of a motion to disqualify an attorney in a civil case was not appealable as a collateral order because it was not effectively unreviewable on appeal from a final judgment, the third of the three requirements for immediate appealability outlined in Coopers & Lybrand, supra . [5] Three years later, in Flanagan v. United States, supra , the Court decided a question left open in Firestone and held that an order disqualifying counsel in a criminal case did not meet either the second or the third requirement; i.e., it did not resolve an issue completely separate from the merits of the action, 465 U.S. at 269, nor was it effectively unreviewable on appeal from a final judgment, id. at 268, 104 S.Ct. at 1056 (citations and internal quotation marks omitted). [6] Finally, in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440, 105 S.Ct. 2757, 2766, 86 L.Ed.2d 340 (1985), decided the following year, the Court extended Flanagan to encompass civil as well as criminal cases and held that an order disqualifying counsel in a civil case failed to satisfy the second and third elements of the Coopers & Lybrand test. As to the second, the Court held that orders disqualifying counsel because counsel will probably have to testify at trial (the situation in the Brown case) are inextricable from the merits because they involve an assessment of the likely course of the trial and the effect of the attorney's testimony on the judgment. Richardson-Merrell, supra, 472 U.S. at 439, 105 S.Ct. at 2765 (citation omitted). Orders grounded on attorney misconduct would likewise be entwined with the merits, as the Richardson-Merrell case itself showed: the Court of Appeals, in reversing the disqualification order, exhaustively discuss[ed] the merits of the plaintiff's claim. Id. at 439-440, 105 S.Ct. at 2765. As to the third requirement, the Court held that because prejudice is not a prerequisite to reversal of a judgment following erroneous disqualification of counsel ... the propriety of the trial court's disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal. Id. at 438, 105 S.Ct. at 2765. The reasoning of the Supreme Court in Richardson-Merrell is more thorough, and ultimately more persuasive, than our own more limited analysis in Urciolo and Bittenbender. Because the collateral order doctrine was created and has been developed exclusively by the Supreme Court, we would normally look to that Court's decisions in determining whether the doctrine applies in a given case. We certainly endorse the policy goal articulated in the Richardson-Merrell decision—the prevention of `piecemeal appellate review of trial court decisions which do not terminate the litigation.' 472 U.S. at 430, 105 S.Ct. at 2761 (citation omitted). The cases we cited in a footnote in Urciolo as agree[ing] that orders granting disqualification motions are appealable collateral orders [7] have been nullified as precedents by Richardson-Merrell. That decision tells us, in the clearest possible terms, that orders disqualifying counsel in civil cases are not appealable in the federal courts as collateral orders under Cohen. We hold today that they are not appealable in the District of Columbia courts either. To the extent that Urciolo and Bittenbender are inconsistent with Richardson-Merrell, they are now expressly overruled.",jurisdiction
+363,2553651,1,1,"The record supports the following facts. The charges arose out of sexual contact between the defendant and A.G., the thirteen-year-old daughter of the defendant's girlfriend, Lisa W. (Lisa). In early 2006, A.G., Lisa, and A.G.'s ten-year-old brother, M.W., lived in the Beech Hill apartment complex in Manchester. The defendant and his son, Anthony, lived in the same complex. Anthony and M.W. were friends. In May 2006, after a fire damaged the Beech Hill complex, A.G. and her family moved to an apartment on Cypress Street in Manchester. The defendant and Anthony had moved to an apartment on nearby Hayward Street, and the boys resumed their friendship. At the same time, Lisa became reacquainted with the defendant, and they began an intimate relationship. The defendant and Anthony began visiting Lisa's apartment every day. After the school year ended, A.G. left to spend several weeks with her father in North Conway. While she was there, she and the defendant communicated through AIM, an Internet-based instant messaging service. During these communications, the defendant told A.G. that he loved her, that he wanted to spend the rest of his life with her, and that he wanted her to have his child. Around the time A.G. left for North Conway, the defendant and Anthony began spending every night and eating their meals at Lisa's apartment. The defendant slept on the couch because he and Lisa had decided to keep the nature of their relationship from the children. Anthony and M.W. shared a futon in A.G.'s room. The defendant took the boys to day camp during the week, cooked or helped with the cooking at night, and for a period of time, drove Lisa to work in the morning and picked her up in the afternoon. Lisa testified that the defendant was basically taking care of the kids, as she was often unavailable to supervise the children because of her work schedule and her drug and alcohol use. However, the defendant retained and periodically visited his Hayward Street apartment. A.G. returned from North Conway on a Friday at the end of July. That night, Lisa and the two boys went to bed at about 9:00. While the defendant and A.G. were alone, the defendant sexually penetrated A.G. twice with his finger and once with his penis. On the following Sunday, A.G. accompanied her mother, the defendant, and the two boys to a flea market. There, A.G. looked at a gold necklace that had her name on it. The defendant proposed to Lisa that they split the $100 cost and buy the necklace for A.G. Lisa agreed, and the defendant made a down payment on the necklace. The next day, Lisa went to work and the two boys went to summer camp. The defendant offered to drive A.G. to Hampton Beach, and she agreed. After spending an hour at Hampton Beach, they returned to Manchester where they spent some time at a public swimming pool. After they left the pool, the defendant was stopped by Manchester police. The reason for the stop was not disclosed to the jury because the trial court had issued a pretrial ruling precluding evidence of a complaint made to the police regarding the defendant's interaction with A.G. at the pool. The jury did, however, hear evidence regarding the defendant's interview later that day at the Manchester police station with Detective Brian Riel. Riel questioned the defendant about his relationship with A.G. The defendant denied any inappropriate contact with A.G. and told Riel that he had given her gifts because she had a rough childhood and he was trying to be a father figure to her. After that day, the defendant and his son ceased spending their nights at A.G.'s apartment. The defendant was subsequently indicted, and after the trial court found him competent to stand trial, the jury found him guilty of the fourteen charges. This appeal followed.",facts
+364,2736931,1,3,"Under the Washington State Constitution, defendants have the right to a public trial. WASH. CONST. art. I, § 22. However, this right is not absolute. Wise, 176 1 The written transcript erroneously references juror 28, but both the petitioner and the respondent agree that the audio is clear that this peremptory challenge actually refers to juror 18 by both name and number. 5 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) Wn.2d at 9. There are often competing rights and interests that sometimes justify limiting public access to a trial. Id. Trial courts balance these competing interests by considering five criteria identified in Bone-Club. 128 Wn.2d at 258-59. Under BoneClub, trial courts must (1) name the right that a defendant and the public will lose by moving proceedings into a private room; (2) name the compelling interest that motivates closure; (3) weigh these competing rights and interests on the record; (4) provide the opportunity for objection; and (5) consider alternatives to closure, opting for the least restrictive. Wise, 176 Wn.2d at 10. When a trial court properly engages in a Bone-Club analysis prior to limiting public access to a trial, we review the court's decision for abuse of discretion. I d. at 11. However, closing part of a trial to the public without considering the Bone-Club factors is error. Id. at 13. Such a violation of the public trial right is structural error presumed to be prejudicial. Id. at 14. And as we have held, failing to object at trial does not constitute a defendant's waiver of the public trial right. I d. at 15. In this case, the State asks us to reconsider these last two holdings. 1. Shearer and Grisby Can Raise the Public Trial Rights Issue on Appeal Even Though They Did Not Object at Trial Our precedent is clear that defendants can raise public trial rights on appeal even if they did not object to a courtroom closure at trial. Id.; Paumier, 176 Wn.2d at 36-37; State v. Strode, 167 Wn.2d 222,229,217 P.3d 310 (2009); State v. Easterling, 157 Wn.2d 167, 173 n.2, 137 P.3d 825 (2006); see State v. Brightman, 155 Wn.2d 6 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) 506, 517, 122 P.3d 150 (2005) ([T]he defendant's failure to lodge a contemporaneous objection at trial did not effect a waiver of the public trial right.); Bone-Club, 128 Wn.2d at 257 (Defendant's failure to object contemporaneously did not effect a waiver.). We base this rule on State v. Marsh, 126 Wash. 142, 217 P. 705 (1923). In Marsh, the defendant's trial was held entirely in private; on appeal, the defendant alleged a violation of his right to a public trial. !d. at 142-43. The court approvingly cited cases from other state Supreme Courts that concluded that public trial rights can be raised for the first time on appeal, and concluded the same. !d. at 146-47 (quoting State v. Hensley, 75 Ohio St. 255, 266, 79 N.E. 462 (1906); People v. Yeager, 113 Mich. 228,229-30,71 N.W. 491 (1897)). The State argues that the court should overturn the rule allowing defendants to raise public trial rights for the first time on appeal. We will not overturn an established rule absent a clear showing that the rule is incorrect and harmful. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). The State argues that this rule meets both criteria. First, the State contends that basing the rule on Marsh is incorrect because Marsh predated RAP 2.5 and because Marsh was a unique case where the entire trial was held in private and the defendant did not have an attorney. Second, the State contends that allowing the defendant to raise public trial rights for the first time on appeal is harmful because the trial court does not have the opportunity to correct the error, resulting in unnecessary retrial costs. 7 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) The majority of this court has repeatedly rejected these arguments, most recently in 2012. In a trio of cases released on the same day, a minority of the court made the same arguments the State makes here. Sublett, 176 Wn.2d at 123-28 (Madsen, C.J., concurring), 150-56 (Wiggins, J., concurring in result); Paumier, 176 Wn.2d at 52-56 (Wiggins, J., dissenting); Wise, 176 Wn.2d at 25 (J.M. Johnson, J., dissenting). However, in Wise and Paumier, the majority of this court rejected those arguments. Wise, 176 Wn.2d at 15; Paumier, 176 Wn.2d at 36-37. Similarly, in Sublett, a majority of the court did not sign the opinions authored by justices who made the same arguments the State makes here. See 176 Wn.2d at 123-28 (Madsen, C.J., concurring), 150-56 (Wiggins, J., concurring in result). Instead, the court has held that requiring a contemporaneous objection from a defendant is tantamount to holding that a defendant's silence in the face of a courtroom closure constitutes a waiver of his or her public trial rights. Wise, 176 Wn.2d at 15. Waiver of a constitutional right must be knowing, voluntary, and intelligent. See State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994) (and cases cited therein). As we have held, [A]n opportunity to object holds no 'practical meaning' unless the court informs potential objectors of the nature of the asserted interests. Bone-Club, 128 Wn.2d at 261 (quoting Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 39, 640 P.2d 716 (1982)). There is no basis for concluding that simply 8 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) failing to object to a courtroom closure somehow demonstrates a knowing, voluntary, and intelligent waiver of a defendant's public trial rights. Furthermore, if trial courts properly apply the Bone-Club structure that this court has put in place, this issue is moot. As we have held, it is the trial court's responsibility, not the defendant's, to ensure that the Bone-Club factors are considered prior to a courtroom closure. !d. at 261. Requiring the defendant to object to a courtroom closure would shift that burden away from the trial court, in conflict with our precedent. Ultimately, the State does not present any new arguments regarding the existing rule. Absent a showing that our existing rule is incorrect and harmful, we will not overturn it. To do otherwise would undermine the purpose of stare decisis-to provide stability within the common law. See Stranger Creek, 77 Wn.2d at 653. 2. These Courtroom Closures Were Not De Minimis [I]t is well settled that the right to a public trial also extends to jury selection. Brightman, 155 Wn.2d at 515. Thus, privately questioning jurors during voir dire constitutes a trial closure, and a trial court is required to consider the Bone-Club factors prior to such questioning. Wise, 176 Wn.2d at 11-12. Here, the State acknowledges that the closures occurred in both cases but argues that the closures were de minimis. We reject this conclusion because it would conflict with our 9 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) precedent that public trial rights violations are structural error and not subject to a harmlessness standard. In 2012, we held that unless the trial court considers the Bone-Club factors on the record before closing a trial to the public, the wrongful deprivation of the public trial right is a structural error presumed to be prejudicial. !d. at 14. That is because such error 'affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.' !d. at 13-14 (alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). We recognized that any one deprivation of the public trial right will not likely devastate our system of justice or even necessarily cause a particular trial to be unfair (though of this latter part we can never be sure) but that letting a deprivation of the public trial right go unchecked affects 'the framework within which the trial proceeds.' !d. at 17-18 (quoting Fulminante, 499 U.S. at 310). Furthermore, structural errors are presumed prejudicial because 'it is often difficult[t] to asses[s] the effect of the error.' !d. at 17 (alterations in original) (internal quotation marks omitted) (quoting United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010)). It is especially hard to make a showing of harm resulting from public trial rights violations because the consequences are difficult to prove in any particular case. !d. Because of the nature of this type of error, we have held that public trial rights violations are not subject to harmlessness analysis. !d. at 14. We 10 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) do not require defendants to show prejudice from public trial rights violations because it is impossible to show whether the structural error of deprivation of the public trial right is prejudicial. !d. at 19. This standard forecloses the possibility of de minimis violations. 2 In theory, a de minimis violation would involve a courtroom closure so brief that it did not result in prejudice to the defendant. But because of the nature of public trial rights, it is difficult (and often impossible) to show harm from individual violations. Thus, ' recognizing de minimis violations based on the lack of prejudice to the defendant would conflict with our precedent that public trial rights violations are structural errors and not subject to a harmlessness analysis. On this basis, we reject the State's argument that the closures in these two cases did not violate the defendants' public trial rights because they were de minimis. However, we note that not every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure if closed to the public. Sublett, 176 Wn.2d at 71 (plurality opinion). The public trial right attaches only to proceedings that implicate the core values that the right serves to protect. !d. at 72-73 (holding that an in-chambers meeting to resolve a jury question did not implicate the public trial right). And some minor exclusions of the public 2 Even prior to the court's 2012 holding that public trial rights violations constitute structural error, a majority of this court [had] never found a public trial right violation to be de minimis. Easterling, 157 Wn.2d at 180 (making this observation in 2006). 11 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) from trial proceedings will not constitute a public trial rights violation because they do not constitute a courtroom closure. See id. at 71-73; see also State v. Lormor, 172 Wn.2d 85, 87, 257 P.3d 624 (2011) (holding that the exclusion of the defendant's young daughter from court proceedings was not a courtroom closure). Thus, many of the closures that may appear de minimis will not actually result in public trial rights violations under our jurisprudence. Nonetheless, to the extent that the State argues that the closure in Grisby's case was for a ministerial or administrative matter, Suppl. Br. ofPet'r (Grisby) at 19, and thus did not implicate public trial rights, we disagree. The general purpose of the inchambers discussion was to determine whether the juror had a felony conviction, but there is no record of what occurred in chambers. This situation is almost identical to Paumier, where the in-chambers discussions included personal health issues, criminal history, and familiarity with the defendant or the crime. 176 Wn.2d at 33. In that case, the court held that individually questioning potential jurors is a courtroom closure requiring a Bone-Club analysis and that [f]ailure to conduct the Bone-Club analysis is structural error warranting a new trial because voir dire is an inseparable part of trial. Id. at 35. Paumier is controlling, and thus the trial court was required to conduct a Bone-Club analysis prior to closing the courtroom. In addition to violating his public trial rights under article I, section 22, Grisby claims that the courtroom closure violated the public's right to open courts under 12 State v. Shearer/State v. Grisby No. 86216-8 (consolidated with No. 87259-7) article I, section 10. The State contends that Grisby does not have standing to assert a violation under article I, section 10. Because we conclude that Grisby prevails on his public trial rights claim under article I, section 22, we do not reach the article I, section 10 issue.",analysis
+365,6350735,1,1,"Following a jury trial, Nicholas Garcia was found guilty of first degree sexual assault and sentenced to 2 to 4 years’ imprisonment. On appeal, Garcia argues that there was insufficient evidence to support his conviction because the definition of sexual penetration does not include those actions for which he was charged and because the State did not prove lack of consent or, alternatively, that Garcia “‘knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of [the victim’s] conduct.’” 1 We affirm.",introduction
+366,2517037,1,1,[¶ 2] Proposed Intervenors raise the following issues on appeal: 1. Whether the district court properly denied Proposed Intervenors' Motion to Intervene as of Right? 2. Whether the district court properly denied Proposed Intervenors' Motion for Permissive Intervention?,issues
+367,3154978,2,1,"¶14        Meridian argues that the 1969 Act vests the water courts with exclusive jurisdiction over “water matters,” including applications for conditional rights like Meridian’s. According to Meridian, the “correlative principle” is that the Commission has no subject matter jurisdiction over “surface water,” even though it may be in a designated basin. We are not persuaded. ¶15        Subject matter jurisdiction concerns a court’s authority to deal with the class of cases in which it renders judgment. Closed Basin Landowners Ass’n v. Rio Grande Water Conservation Dist., 734 P.2d 627, 636 (Colo. 1987). The 1969 Act gives a water court exclusive jurisdiction over “water matters” within that court’s division. § 37-92-203(1), C.R.S. (2015). “Water matters” include “only those matters which [the 1969 Act] and any other law shall specify to be heard by the [water courts].” Id. ¶16        Meridian is correct that these “water matters” include the determination of conditional water rights. See § 37-92-302(1)(a), C.R.S. (2015). The 1969 Act, however, applies only to the administration of surface and underground water that is in or tributary to natural streams. See § 37-92-102(1)(a), C.R.S. (2015); see also Gallegos v. Colo. Ground Water Comm’n, 147 P.3d 20, 28 (Colo. 2006). Such waters are “[w]aters of the state” and are subject to the 1969 Act. § 37-92-103(13), C.R.S. (2015). ¶17        Designated ground water, however, does not constitute “waters of the state” and is administered separately. See id. (excepting designated ground water from the definition of “[w]aters of the state”); § 37-92-103(11) (defining “[u]nderground water” and providing that such water is considered different from designated groundwater). Specifically, the Management Act authorizes the Commission “[t]o supervise and control the exercise and administration of all rights acquired to the use of designated ground water.” § 37-90-111(1)(a), C.R.S. (2015). ¶18        When read together, $$[t]he Management Act and the 1969 Act create a conceptual framework which provides for appropriation and administration of designated ground water under the Management Act and appropriation and administration of all tributary water, except that which may be included in the definition of designated ground water, under the 1969 Act. State ex rel. Danielson v. Vickroy, 627 P.2d 752, 757–58 (Colo. 1981). ¶19        The jurisdictional question in this case thus turns on whether the water that Meridian sought to appropriate was “designated ground water.” ¶20        We have long and consistently held that in the context of such a jurisdictional conflict, the Commission must make the initial determination as to whether the controversy implicates designated ground water. See Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842, 846–47 (Colo. 1983); Vickroy, 627 P.2d at 759–60. Jurisdiction shifts to the water court only if the Commission concludes that the water at issue is not designated ground water. Gallegos, 147 P.2d at 31–32; Pioneer, 658 P.2d at 846; see also Vickroy, 627 P.2d at 759–60 (“Only if [proceedings before the Commission] result in a determination that a water matter is at issue can the jurisdiction of the water court be invoked.”). ¶21        Here, as noted above, the evidence raised a question as to whether the water at issue was designated ground water. Accordingly, the case presented a jurisdictional conflict, and the district court correctly concluded that jurisdiction vested with the Commission to make the initial determination as to whether the controversy implicated designated ground water. See Gallegos, 147 P.2d at 31–32; Pioneer, 658 P.2d at 846–47; Vickroy, 627 P.2d at 759–60.",jurisdiction
+368,2135554,1,6,"Board of Pardons and Paroles did not exceed its jurisdiction (due to Article II of the South Dakota Constitution dividing state government into three distinct departments). This is premised upon our holdings in State v. Huftile, 367 N.W.2d 193, 197 (S.D.1985), and State v. Oban, 372 N.W.2d 125, 129 (S.D.1985), both of which are settled law in this state and have not been overruled; I further base my opinion upon the express provisions of SDCL 23A-27-19. Having so expressed, I concur in result only because the majority writing bases its rationale upon State v. Holter, 340 N.W.2d 691, 693 (S.D.1983), cited five times for authority; Holter is not good law in this state as it was reversed by Huftile in 1985. Further, rather than to cite to Oban which reaffirmed Huftile, and Oban being solid law in this state, the majority opinion in its closing treatment on this issue cites to Application of Adams on Behalf of Schmit, 360 N.W.2d 513 (S.D.1985), also a reversed case. See Huftile, 367 N.W.2d at 197 (Wuest, J., concurring in result). I confess: I am bewildered by the author's series of forward and backward movements, all a part of the thinking process, which ultimately begets the creative product, i.e., the decision. Harnessed I am to Huftile and Oban, believing they should have greater significance in the creative part of our base decision, rather than Holter and Adams, the latter cases having been, by subsequent decision, overruled; whereas, the force of reasoning and controlling precedent abide in Huftile and Oban, I do abide therein. Accord: State v. Moon, 514 N.W.2d 705 (1994).",issues
+369,1947875,1,10,"In summary, we conclude: (1) that Eastern Shore Natural Gas Company is a public utility under the Public Utilities Act of 1974, Section 102(2), and subject to the Commission's jurisdiction; and (2) that the Commission's order is not invasive of federal jurisdiction since the Commission has recognized the limits imposed by the Natural Gas Act and FERC Regulations upon the Commission's exercise of its regulatory authority over ESNG.",conclusion
+370,1192518,1,3,"We reverse the decision of the Court of Appeals and reinstate the conviction and sentence entered by the trial court. DURHAM, C.J., and DOLLIVER, SMITH, GUY, JOHNSON, MADSEN, TALMADGE and SANDERS, JJ., concur.",conclusion
+371,3134469,1,1,"Defendant argues that his extended-term sentence for voluntary manslaughter is void because it violates section 5–8–2 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005–8–2(a), now 730 ILCS 5/5–8–2(a) (West 1996)). Section 5–8–1 of the Code of Corrections sets forth the authorized sentences of imprisonment for felony offenses. Ill. Rev. Stat. 1985, ch. 38, par. 1005–8–1, now 730 ILCS 5/5–8–1 (West 1996). Section 5–8–2 authorizes a trial court to impose an extended term of imprisonment for a felony conviction where certain circumstances are present. At the time defendant committed his offenses in this case, section 5–8–2(a) provided, in pertinent part: “A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5–8–1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5–5–3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 1005–8–2(a). In section 5–5–3.2(b), the Code lists a number of aggravating factors which may be considered by a trial court as reasons to impose an extended-term sentence under section 5–8–2. Ill. Rev. Stat. 1985, ch. 38, par. 1005–5–3.2, now 730 ILCS 5/5–5–3.2 (West 1996). Defendant argues that section 5–8–2 did not authorize the trial court to impose an extended-term sentence for his voluntary manslaughter conviction. Defendant relies primarily on this court's holding in People v. Jordan , 103 Ill. 2d 192 (1984). In Jordan , the defendant was convicted of murder and kidnapping and sentenced to extended-term sentences of imprisonment under section 5–8–2 for each offense. On appeal, the defendant argued that the extended-term sentence for kidnapping, the less serious offense, was improper because section 5–8–2 permitted an extended-term sentence to be imposed only for the most serious class of offense of which the offender was convicted. This court agreed with the defendant that the extended-term sentence for kidnapping was not authorized by section 5–8–2. The court held that, under the plain language of section 5–8–2, an extended-term sentence may be imposed only for the most serious class of offense of which the defendant was convicted. Jordan , 103 Ill. 2d at 204-06. In this case, defendant contends that Jordan requires vacatur of his extended-term sentence for voluntary manslaughter because he was also convicted of murder, a more serious class of offense. Defendant's contention has been expressly rejected by this court. In People v. Young , 124 Ill. 2d 147 (1988), the defendant was convicted of murder and armed robbery and was sentenced to natural life imprisonment for the murder and an extended 60-year term of imprisonment for the armed robbery. Relying on Jordan , the defendant in Young argued that the extended-term sentence for armed robbery violated section 5–8–2 because it was not the most serious offense of which the defendant was convicted. The Young court held that the defendant's extended-term sentence for armed robbery was proper under the statute. In so holding, the court relied on its prior decision in People v. Neal , 111 Ill. 2d 180 (1985). In Neal , the court upheld the imposition of an extended-term sentence for the defendant's armed robbery conviction even though the defendant had also been convicted of murder for which he had been given the death penalty. The Neal court reasoned that section 5–8–2 applied to extend the “terms of imprisonment” authorized by section 5–8–1. Section 5–8–2 therefore could not apply to capital sentences and would not apply to the defendant's murder conviction in that case. Consequently, the court determined, section 5–8–2 could be applied to extend the defendant's sentence for the next most serious offense of which he was convicted, armed robbery. The court held that section 5–8–2 allowed the imposition of an extended-term sentence “for the class of the most serious offense of which the defendant was convicted when defendant was sentenced to a term of years.” Neal , 111 Ill. 2d at 204-05. In Young , this court determined that the rationale of Neal was also applicable where a defendant was convicted of murder and sentenced to natural life imprisonment. The court concluded that, just as the extended-term sentencing provisions of section 5–8–2 could not “extend” a death sentence, those provisions also could not “extend” a sentence of natural life imprisonment. The Young court focused on the fact that the extended-term provisions of section 5–8–2 authorized imposition of a sentence “in excess of the maximum sentence authorized by Section 5–8–1.” Ill. Rev. Stat. 1981, ch. 38, par. 1005–8–2(a). Section 5–8–1(a)(1) set forth the noncapital sentencing options for first degree murder. Under section 5–8–1(a)(1)(a), a defendant convicted of murder could be sentenced to a fixed term of 20 to 40 (now 20 to 60) years' imprisonment. Ill. Rev. Stat. 1981, ch. 38, par. 1005–8–1(a)(1)(a). Under subsections (b) or (c) of that section, a defendant convicted of murder could be sentenced to natural life imprisonment, a sentence which precluded the possibility of parole. Ill. Rev. Stat. 1981, ch. 38, pars. 1005–8–1(1)(b), (1)(c). The court determined that, where a defendant is sentenced to natural life imprisonment for murder under subsections (b) or (c), the authorization in section 5–8–2 to impose an extended-term sentence “in excess of the maximum sentence authorized by section 5–8–1” could not apply because the authorized extended-term sentence for murder, 40 to 80 (now 60 to 100) years, was less severe than natural life imprisonment. Thus, the court held, a sentence of natural life imprisonment could not be “extended” pursuant to section 5–8–2. Rather, the extended-term provision could only apply to a murder conviction for which the defendant was sentenced to a term of years pursuant to section 5–8–1(a)(1)(a). Only when a defendant convicted of murder is sentenced to a term of years could section 5–8–2 operate to impose a sentence “in excess of the maximum sentence authorized by section 5–8–1.” Accordingly, because the extended-term sentencing provisions could not apply to the defendant's natural life sentence for murder, the extended-term provisions could properly be applied to the next most serious offense of which the defendant was convicted, armed robbery. Young , 124 Ill. 2d at 165-66. The State asserts that Young , having addressed the identical issue, is dispositive of this appeal. Defendant contends, however, that both Young and Neal were implicitly overruled by this court in People v. Henderson , 142 Ill. 2d 258 (1990). In Henderson , the defendant was convicted of murder, aggravated criminal sexual assault and aggravated kidnapping. He was sentenced to death for the murder conviction and was also given an extended-term sentence of 45 years' imprisonment for the aggravated criminal sexual assault conviction. One of the issues raised by the defendant on his direct appeal to this court was that this extended-term sentence was improper because aggravated criminal sexual assault was not the most serious offense of which he was convicted. The Henderson court agreed, finding that, because murder was the most serious offense of which the defendant was convicted, the sentencing judge erred in imposing an extended-term sentence for aggravated criminal sexual assault. Henderson , 142 Ill. 2d at 333. Defendant urges us to follow Henderson in this case and hold that his extended-term sentence for voluntary manslaughter was not statutorily authorized. We agree with the State that this issue was correctly decided in Young and Neal . In both Young and Neal , the court extensively analyzed the issue of whether an extended-term sentence was permissible for a less serious class of offense when the defendant was also convicted of murder and sentenced to death or natural life. In particular, in Young , the court conducted an extended analysis of section 5–8–2 to conclude that it permitted an extended-term sentence to be imposed where a defendant was also sentenced to natural life for murder. In contrast, the decision in Henderson did not conduct any analysis of this issue. Moreover, the Henderson decision did not cite to Young or Neal and did not express an intent to overrule those decisions. Notably, defendant here does not provide us with any argument as to why the Henderson result is better reasoned than the result reached in Young and Neal . We find that the holdings of Young and Neal on this issue represent the better reasoned approach. These holdings make the logical distinction between a sentence of a term of years for murder, which is subject to application of the extended-term provisions of section 5–8–2, and a sentence of death or natural life for murder, which are not subject to application of section 5–8–2. As those decisions concluded, since a sentence of death or natural life cannot be “extended” under section 5–8–2, the extended-term statute should be interpreted as applicable to the next most serious offense of which the defendant was convicted. We therefore continue to adhere to this court's decisions on this issue in Young and Neal . We hold that section 5–8–2 authorizes a trial court to impose an extended-term sentence for voluntary manslaughter where the defendant is also sentenced to natural life for murder. In light of our holding that defendant's extended-term sentence for voluntary manslaughter was statutorily authorized, we do not address whether, under our decision in People v. Arna , 168 Ill. 2d 107 (1995), that sentence was void or voidable.",analysis
+372,2051068,1,2,"This case is on appeal pursuant to Iowa Code section 679A.17(1)(c) which provides appeal may be taken from an order denying confirmation of an arbitration award. We review the district court decision as provided by Iowa Code section 679A.17(2). See Humphreys v. Joe Johnston Law Firm, P.C., 491 N.W.2d 513, 514 (Iowa 1992). Accordingly, our review of this civil court order is for correction of errors at law. See id. ; Iowa R.App. P. 4.",standard of review
+373,2586367,1,2,"Appellant Buddy Manwill was employed as a firefighter by the Clark County Fire Department from 1981 to 2006. During his 1991 annual physical examination, Manwill revealed that, when he was twenty-four-years old (around 1984), he was diagnosed as having had pericarditis (inflammation of the fibrous tissue that surrounds the heart). Nevertheless, he was cleared for full duty then and in subsequent years. Starting in 1996, Manwill's chest x-rays and electrocardiograms revealed abnormal findings. A physician suggested that Manwill might have hypertensive disease or congenital heart disease and recommended further evaluation. During the following years, Manwill continued to have abnormal test results and underwent several cardiac evaluations, which ultimately revealed calcification of his pericardium. While some light-duty job restrictions were intermittently imposed, Manwill was otherwise cleared for full-duty firefighter work. In autumn 2005, magnetic resonance imaging showed constrictive pericarditis, and a physician recommended that Manwill undergo diagnostic catheterization and consideration for a pericardiectomy. Meanwhile, however, Manwill was released for full duty. Shortly thereafter, Manwill filed an occupational disease claim for constrictive pericarditis, but his claim was summarily denied in a letter pointing only to NRS 617.457(1), the firefighters' conclusive presumption statute. Under that statute, as noted above, the heart disease of a claimant who has been continuously employed as a full-time firefighter for five or more years before the date of disablement [is] conclusively presumed to be work-related. Manwill administratively appealed the claim denial, and an appeals officer determined that, even though Manwill qualified for the conclusive presumption as a full-time firefighter employed with respondent Clark County for more than five years, the conclusive presumption statute did not apply to his claim because Manwill's heart condition, first diagnosed in 1984, predated the completion of his five years' employment vesting period in 1986 and, as medically expected regardless of employment, simply worsened over time. In other words, the appeals officer determined that [w]hile the presumption of NRS 617.457 relieves a firefighter from having to demonstrate the extent to which his occupation may have contributed to his heart disease, [Manwill's] occupation as a firefighter is not a contributing factor to the progression of his pericarditis and therefore the presumption does not apply — [a] congenital heart condition does not become an occupational disease based upon a firefighter[']s qualification for coverage under NRS 617.457. [2] After the district court denied judicial review, Manwill appealed.",facts
+374,1287681,1,2,"On appeal the defendant argues that the State failed to submit sufficient evidence to prove beyond a reasonable doubt that her actions were not made in self-defense. We have previously held that [a] reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice. Syllabus Point 3, State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927). Accord Syllabus Point 1, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998). We have further held that: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). With these standards in mind, we turn to the issues presented.",standard of review
+375,1481173,1,5,"When he denied defendant's Rule 29 motion to dismiss, the trial justice rejected his argument that he was prejudiced by the variance between the proof at trial and the bill of particulars. He ruled that defendant was not deprived of due process because the proof of conspiracy at trial between March 4 and March 9 was reasonably close to the facts and allegations contained in the bill of particulars and information that the conspiracy occurred on or about March 9. We agree with the trial justice that defendant suffered no prejudice. General Laws 1956 § 12-12-10 provides that [a] defendant shall not be acquitted or discharged on the ground of variance between the allegation and proof if the essential elements of the crime are correctly stated in the indictment, information, or complaint, unless the defendant is prejudiced in his or her defense by the variance. Section 12-12-10 further provides that a defendant shall not be acquitted or discharged by reason of    failure to prove unnecessary allegations in the description of the crime or by reason of any other immaterial mistake in the indictment, information, or complaint. This Court also has held that [t]he rules governing variance between proof and pleading apply to a bill of particulars just as they do to an indictment or information. State v. Collins, 543 A.2d 641, 655 (R.I. 1988) (citing State v. Lanigan, 528 A.2d 310, 319 (R.I.1987)). The central inquiry under § 12-12-10 is to determine whether defendant suffered actual prejudice. See State v. McParlin, 422 A.2d 742, 743 (R.I.1980). We will not reverse a conviction if the information properly sets forth the essential elements of the crimes charged, unless there is a variance that prejudices the defendant's defense. See State v. Markarian, 551 A.2d 1178, 1182 (R.I.1988) (citing State v. McKenna, 512 A.2d 113, 114-15 (R.I.1986) and McParlin, 422 A.2d at 744). Here, the on or about March 9, 2005 language contained in the information and bill of particulars reasonably gave defendant notice of an alleged conspiracy between him and John in the days surrounding March 9, 2005. The words on or about cannot be read to confine the allegations in the information to a single day. The defendant has not advanced any specific argument that he was prejudiced by any difference in wording between the bill of particulars and the evidence offered at trial. After a review of the record, we conclude that defendant was aware that the state intended to offer evidence of his involvement with Murray between March 4, 2005, and March 9, 2005, as well as his knowledge of and participation in John's cocaine business and his scheduled arrival at the Block Island airport. We conclude that defendant was not subjected to any surprise or prejudice from the introduction of this evidence at trial. See, e.g., State v. Brown, 626 A.2d 228, 232 (R.I.1993) (holding defendant did not suffer surprise or prejudice from variance between bill of particulars and proof at trial because defendant was made aware of the admitted evidence through discovery); McKenna, 512 A.2d at 115 (determining lack of a specific date of offense in a sexual assault indictment did not prejudice defendant because defendant denied having any sexual relations with the complaining witness and did not offer any alibi witnesses in his defense).",analysis
+376,1751897,1,2,"We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. We view the evidence in the light most favorable to the nonmovant. 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).",standard of review
+377,2643624,1,5,"[3] The State’s sole argument on appeal is that the juvenile court erred in finding that it lacked subject matter jurisdiction. Subject matter jurisdiction is a court’s power to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action or proceeding before the court and the particular question which it assumes to determine.3 Abigael asserted, and the juvenile court found, that the court lacked authority to hear and determine whether Violet was a juvenile within the meaning of § 43-247(3)(a). 1 See In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011). 2 See id. 3 Id. Nebraska Advance Sheets IN RE INTEREST OF VIOLET T. 953 Cite as 286 Neb. 949 [4,5] As a statutorily created court of limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.4 The Nebraska Juvenile Code should, however, be liberally construed.5 [6] Section 43-247(3) states that the juvenile court in each county shall have jurisdiction over “[a]ny juvenile . . . who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian.” We have held that “to obtain jurisdiction over a juvenile, the court’s only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of § 43-247.”6 Section 43-247 mentions neither the residence of a parent nor the residence of a child. [7] The State argues that Violet’s absence from Nebraska was temporary and, further, that the domicile of a child is determined by the residence of the child’s custodian. But we have stated: The jurisdiction of a state to regulate the custody of an infant found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. As we said in In re Application of Reed [152 Neb. 819, 43 N.W.2d 161 (1950)]: “The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the child, but it arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine its status and the custody that will best meet its needs and wants, and residence within the state suffices even though the domicile may be in another jurisdiction.”7 4 In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010). 5 See In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010). 6 In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 1004-05, 767 N.W.2d 74, 91 (2009). 7 Jones v. State, 175 Neb. 711, 717, 123 N.W.2d 633, 637 (1963) (emphasis supplied). Nebraska Advance Sheets 954 286 NEBRASKA REPORTS In the case at hand, Violet was born in Nebraska, but was no longer within this state’s borders at the time the petition was filed. Although the State suggests Violet was in Iowa temporarily, the facts of this case as established by the record indicate that apart from the days just following her birth, Violet has never lived anywhere else but in Iowa. As is established by this record, there is no Nebraska home to which Violet might return. Additionally, we note that Neb. Rev. Stat. § 43-274(1) (Reissue 2008) authorizes a county attorney “having knowledge of a juvenile in his or her county” who appears to be within § 43-247 to file a petition in “the court having j ­urisdiction in the matter.” In this case, however, Violet was not in Douglas County, even temporarily, at the time the petition was filed. We conclude the parens patriae power of the State does not provide a basis for finding jurisdiction in this case. We also find no jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).8 The UCCJEA provides that a court has jurisdiction to make a custody determination if: (1) [T]his state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 43-1244 or 43-1245, and: (A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 8 Neb. Rev. Stat. § 43-1226 et seq. (Reissue 2008 & Cum. Supp. 2012). Nebraska Advance Sheets IN RE INTEREST OF VIOLET T. 955 Cite as 286 Neb. 949 (B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships; (3) all courts having jurisdiction under subdivision (a)(1) or (a)(2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under 43-1244 or 43-1245; or (4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), or (a)(3) of this section.9 “Home state” is defined as the state in which a child has lived with a parent or person acting as parent for at least 6 consecutive months, or from birth, before the commencement of the proceeding.10 Because, apart from a few days just following her birth, Violet has never lived in Nebraska, and Nebraska is not Violet’s home state under the UCCJEA. This is true despite the fact that Violet was born in Nebraska.11 Therefore, in the case at hand, none of the provisions of the UCCJEA provide a statutory basis for jurisdiction. Finally, the State cites to In re Interest of Breana M.12 But contrary to the arguments of the State, that case provides us with no basis for jurisdiction in this matter. In re Interest of Breana M. involves the exercise of jurisdiction across Nebraska counties but is wholly inapplicable here, where the issue involves the jurisdiction of a child located in a state other than Nebraska.",analysis
+378,1607200,1,22,"Smith has not challenged the sufficiency of the evidence, but this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. See Jones v. State, 963 So.2d 180, 184 (Fla.2007); Fla. R.App. P. 9.142(a)(6) (In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.). In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt. Simmons v. State, 934 So.2d 1100, 1111 (Fla.2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). We conclude that the record contains competent, substantial evidence to support Smith's convictions for the first-degree murders of Brown and Wilson. The State presented evidence that Smith solicited the murder of Brown in order to eliminate her as witness against him in another murder case and that Smith admitted his involvement in numerous statements after Brown's murder. The State also presented evidence that Brown died from asphyxia caused by being smothered with the bed pillow and did not die from a drug overdose. The State also presented evidence that Smith ordered his subordinates to kill Anthony Fail because he was robbing Smith's drug holes, that there was an earlier unsuccessful attempt to shoot Fail, and that Wilson was shot by accident in a second attempt to kill Fail. Multiple bullets were fired at Wilson's vehicle from another vehicle that sped away from the scene. Wilson died from numerous gunshot wounds that caused massive trauma to her body. Based on a review of the evidence presented in this case, a rational trier of fact could have found the existence of the elements of the crime[s] beyond a reasonable doubt. Simmons, 934 So.2d at 1111 (quoting Bradley, 787 So.2d at 738). Thus, there was sufficient evidence to support Smith's convictions.",sufficiency of the evidence
+379,4542941,2,1,"“The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard. Questions regarding subject matter jurisdiction may be raised at any stage of a cause of action. . . . A judgment rendered by a circuit court without subject matter jurisdiction is void.” Amantiad v. Odum, 90 Hawaiʻi 152, 159, 977 P.2d 160, 167 (1999) (citations omitted).",jurisdiction
+380,822667,2,1,"[¶35] Wyoming Statute § 6-3-402(a) provides that “[a] person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.” Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2011). We recently noted that “[t]he law of theft and larceny has been recodified and its language has been simplified, but proof of the specific crime charged must still be made and tested against the beyond-a-reasonable-doubt standard.” Powell v. State, 2012 WY 106, ¶ 6, 282 P.3d 163, 164–65 (Wyo. 2012) (citation omitted). “In order to prove larceny, the State must prove that the defendant intended to . . . deprive the rightful owner of the property.” Swanson v. State, 981 P.2d 475, 479 (Wyo. 1999); see also Wyo. Stat. Ann. §6-3-401(a)(ii) (LexisNexis 2011) (providing the statutory definition of “deprive”). [¶36] The jury was informed of the essential elements necessary to establish felony larceny in Instruction No. 6: The elements of the crime of Larceny, as charged in this case are:
+
+
+
+5. Property of another of the value of $1,000 or more; 6. With intent to deprive the owner or lawful possessor. 9 If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty. Jury Instruction No. 7 provided the statutory definition of “deprive”: “Deprive” means: a. To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or b. To dispose of the property so as to make it unlikely that the owner will recover it. [¶37] Over the State’s objection, the Court also instructed the jury as to the lesserincluded misdemeanor of unauthorized use of a vehicle under Wyo. Stat. Ann. § 31-11102 (LexisNexis 2011). The offense of unauthorized use requires only that the State prove beyond a reasonable doubt that the accused had the “purpose of temporarily making use of the vehicle,” as opposed to requiring it to prove that the defendant had the intent to “deprive” the owner of the property as it must for felony larceny. See id. Mr. Peña does not dispute that the foregoing instructions were a correct statement of the law applicable to this case. [¶38] Only the sufficiency of the evidence to prove the sixth element of Instruction No. 6, intent to deprive, was disputed at trial or on appeal. Mr. Peña characterizes his actions as “joyriding” or unauthorized use, and argues the evidence was insufficient for the jury to find the required intent to deprive the vehicle’s owner of his property. He concedes that the evidence was sufficient to support a misdemeanor conviction for unauthorized use of a vehicle. [¶39] As Instruction No. 7 indicated, the statutory definition of “intent to deprive” includes an intent “[t]o withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation.” Wyo. Stat. Ann. § 6-3- 401(a)(ii)(A) (LexisNexis 2011). A jury may properly infer larcenous intent from circumstantial evidence, such as the defendant’s words and conduct. Jones, ¶ 27, 278 10 P.3d at 735–36 (quoting Wentworth v. State, 975 P.2d 22, 26 (Wyo. 1999)). “The wrongful taking of another’s property with no apparent intention of returning it, and in the absence of any explanatory circumstances” can support a finding of intent to deprive. Wells v. State, 613 P.2d 201, 204 (Wyo. 1980) (citing State v. Jackson, 420 P.2d 270, 272 (Ariz. 1966)). The State is not required to produce direct evidence of the defendant’s intent to deprive, because that would impose a nearly impossible burden to satisfy in many cases. See Jones, ¶ 27, 278 P.3d at 735–36, (quoting Schiefer v. State, 774 P.2d 133, 135 (Wyo. 1989)). [¶40] Two other Wyoming cases address the issue of sufficiency of evidence to prove intent to deprive. In Wetherelt v. State, 864 P.2d 449 (Wyo. 1993), the defendant broke into the victim’s unoccupied trailer and took a number of items of personal property. She listed some of them in an advertisement for a garage sale, returned some to the victim, and refused to return others. We found this course of conduct sufficient to support a reasonable inference of intent to deprive the victim of his property. Id. at 450–52. [¶41] In Merchant v. State, 4 P.3d 184 (Wyo. 2000), a used car salesman sold a truck to the victim but withheld the truck’s title for more than five months. The victim was unable to use the truck for that period. We held that “in instances of temporary deprivations similar to the ones in this case, the jury can reasonably find intent to deprive.” Id. at 191 (citing Brett v. State, 961 P.2d 385, 391 (Wyo. 1998)). See also Thornton v. State, 689 S.E.2d 361, 367–68 (Ga. Ct. App. 2009) (finding sufficient evidence of larcenous intent where the defendant, a mechanic, kept a customer’s truck and used it as his own for over a year). [¶42] The question the jury had to decide in this case was not whether Mr. Peña succeeded in keeping the vehicle permanently or for long enough to appropriate a major portion of its value, but whether he intended to do so. Whether he was likely to be successful in that effort in a world of instant communications and technological law enforcement capabilities was likewise not the issue that had to be decided. The evidence presented by the State showed that Mr. Peña removed decals connecting the truck to the owner’s business shortly after taking it.3 The record also indicates that he later attempted 3 Other courts have viewed similar acts of concealment as sufficient evidence to support a reasonable inference of the requisite intent to deprive. See, e.g., Smith v. State, 575 S.W.2d 677, 681 (Ark. 1979) (“Evidence of concealment of the property may constitute evidence of a felonious intent [to deprive the owner of property], depending upon the surrounding circumstances.” (citing State v. Aten, 457 P.2d 89 (Kan. 1969); Byrd v. State, 173 So. 282 (Miss. 1937); Commonw. v. Dock, 21 A.2d 429 (Pa. Super. Ct. 1941)); People v. Quisenberry, 311 P.2d 99, 103 (Cal. 2d Dist. Ct. App. 1957) (describing how the concealment of a vehicle’s license plates supported a “reasonable inference that the taker intended to deprive the owner of possession.”) (citation omitted); Maddox v. State, 38 So. 2d 58, 59 (Fla. 1948) (describing how a jury may infer larcenous intent from “an effort to conceal the possession of another’s property” (quoting Long v. State, 11 Fla. 295, 297 (Fla. 1866))). 11 to sell some of the truck’s parts on Craigslist, and may have succeeded in that attempt, as the truck’s grille guard and a toolbox were missing when it was recovered. [¶43] Trial testimony indicated that Mr. Peña told his girlfriend’s mother that the truck belonged to his mother. When he was questioned in Louisiana, he told Corporal Edwards that it belonged to his boss and denied that it was stolen. Shortly thereafter, he told Deputy Hoyt that the truck was stolen but that it belonged to his mother’s fiancé. A reasonable jury could believe that these statements demonstrated an intent to avoid identification of the vehicle’s owner so as to permit Mr. Peña to keep the vehicle as long as possible. That conclusion would be consistent with an intent to deprive. [¶44] There is no dispute that when he was apprehended, Mr. Peña had kept the truck for three months, that he had put approximately 14,000 miles on it, and that he never made any effort to return it to its owner or advise him of its location. By all accounts, he maintained the vehicle well, from which the jury could infer that he intended to keep the vehicle in good condition so that he could continue to use it. When viewed in the light most favorable to the State, the evidence presented was sufficient to permit a jury to reasonably conclude that Mr. Peña intended to deprive the pickup truck’s owner of his property as that term is defined in Wyoming Statute § 6-3-401(a)(ii)(A), and that the deprivation was temporary only because he was caught.",sufficiency of the evidence
+381,2498867,1,3,"Here we are asked to review the trial court's grant of summary judgment and review the constitutionality of the 2008 amendments to KUUDPA. Our standards of review are familiar. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Determining a statute's constitutionality is a question of law subject to unlimited review. But under the separation of powers doctrine, this court presumes statutes are constitutional and resolves all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009]). An agency's or board's statutory interpretation is not afforded any significant deference on judicial review. Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010).",standard of review
+382,822837,2,1,"This court has jurisdiction to review Mr. Williams’ appeal of the KGB’s decision that the property (including the house) at 511 Stedman Street is not exempt from taxation under KGB § 45.11.020 or AS 29.45.030 per AS 22.10.020(d), Alaska Appellate Rule 601(b), and KGB § 45.11.100©).",jurisdiction
+383,4535365,2,1,"The existence of jurisdiction is a question of law and is reviewed de novo under the right/wrong standard. Lingle v. Hawaii Gov’t Empls. Ass’n, AFSCME, Local 152, 107 Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005).",jurisdiction
+384,2245258,1,1,"Perry Murphy and Margaret Thomas, her infant son and Mark Howard were at Murphy's residence. Murphy and Margaret left briefly, and Howard remained to care for the child. While Murphy and Margaret were gone, the defendant and one Milford Clark broke into the house. Clark had a shotgun, and the defendant had a pistol. Howard was hit in the head with the shotgun and tied while the intruders awaited the return of the others. When Murphy and Margaret returned, they were confronted by defendant and Clark, and Murphy was struck in the head several times. One of the intruders also struck Margaret. The defendant demanded that Murphy give him his money, and Murphy reached for his wallet but it was gone. He started towards the door but was shot in the back by the defendant. Clark at this time was beating Margaret and took $10.00 from her. The defendant then attempted to aid her, and Clark shot him with the shotgun. The challenge to the sufficiency of the evidence is predicated upon a variance between the proof and the allegations of the charging affidavit. Counts I and II charged a robbery of Perry Murphy, whereas the evidence revealed that the money was taken not from him but from Margaret. The evidence in this case disclosed the commission of two crimes under the armed robbery statute, an armed robbery of Margaret and an attempted armed robbery of Murphy. That an armed robbery of Margaret was proved under a charge of an armed robbery of Murphy appears to us to be immaterial under the circumstances of this case, because an attempted armed robbery of Murphy was clearly proved, was proscribed by the statute and was an offense necessarily included in the charging affidavit. The defendant insists that he could not be convicted of the armed robbery of Perry Murphy upon evidence that Milford Clark robbed Margaret Thomas. This cannot be disputed, but the evidence also disclosed that the defendant attempted an armed robbery of Murphy, an offense necessarily included in the charge of armed robbery of Murphy. One who is charged with the commission of a crime may be convicted of an attempt to commit the charged offense, if the attempt, as well as the contemplated act is itself proscribed. Crump v. State, (1972) 259 Ind. 358, 287 N.E.2d 342. Were the penalty provided for the attempt less than that provided for the contemplated robbery, we would be required to remand the cause for sentencing in conformity with the statute and the crime proved. In this case, however, the completed act and the attempt thereof are both proscribed by the same statute and the same penalty is provided for each. We, therefore, see no harm to the defendant that he was sentenced for armed robbery rather than for an attempted armed robbery. What has been said above with reference to the sufficiency of the evidence upon the charge of armed robbery applies with equal logic to the crime of inflicting an injury in the commission of a robbery, inasmuch as the crime charged necessarily included the crime proved, and the penalties provided are the same.",issues
+385,2639004,1,7,"[¶ 21] Contrary to Father's assertion, we conclude that the order that is the subject of this appeal is an appealable order as defined in W.R.A.P. 1.05 because it affects a substantial right, determines the merits of the controversy, and resolves all outstanding issues. We also conclude that the district court's findings of fact and conclusions of law were sufficient to meet the requirements of W.R.C.P. 52, that its decision was not contrary to the evidence, and that under the facts of this particular case, shared custody serves the child's best interests. The order of the district court is affirmed.",conclusion
+386,1200702,1,1,"Washington Elementary School District No. 6 (School District) petitioned for review of the court of appeals' memorandum decision reversing the trial court's ruling that the contract indemnity provision between the School District and Baglino Corporation (Baglino) obligated Baglino to indemnify the School District for losses caused in part by the School District's active negligence. Specifically, the issue is whether the indemnity provision in the standard American Institute of Architects (AIA) construction contract obligates the contractor/indemnitor (Baglino) to indemnify the owner/indemnitee (School District) for losses caused in part by the indemnitee's active negligence. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.",jurisdiction
+387,2516306,1,2,"¶ 5 Title 12, section 2004(I) of the Oklahoma Statutes provides: If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. (Emphasis added.) ¶ 6 Under section 2004(I), service is always timely if made within 180 days after the petition is filed. After 180 days, service is timely if the plaintiff shows good cause for the delay. The use of the word may in section 2004(I) indicates dismissal is discretionary. Okla. Stat. tit. 12, § 2004(I) cmt. (1991); see Mott v. Carlson, 1990 OK 10, ¶ 6, 786 P.2d 1247, 1249. Unlike rule 4(j) of the Federal Rules of Civil Procedure on which section 2004 is based, dismissal under the Oklahoma rule is discretionary after the 180 days time period. The trial court will be reversed only upon a showing of an abuse of discretion. Mott, 1990 OK 10 at ¶ 6, 786 P.2d at 1249. ¶ 7 Because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits. Nelson v. Nelson, 1998 OK 10, ¶ 23, 954 P.2d 1219, 1228. As with default judgments, judgments other than on the merits are disfavored. See id. When a plaintiff shows good cause for delay in service and the defendant fails to show prejudice, the trial court abuses its discretion if it dismisses the petition based on the delay. ¶ 8 In this case, the attorney for the plaintiff stated that he was concerned about the validity of the action and sanctions under section 2011 of title 12 which provides sanctions against an attorney for filing and pursuing frivolous actions. The attorney for the plaintiff received an oral expert opinion in July of 1998 but did not receive a written opinion until just prior to service being made in November. Under the circumstances of this case, the plaintiff showed good cause for the delay. The trial court abused its discretion in dismissing the petition based on delay of service.",analysis
+388,2509899,1,2,"I. Did the circuit court err in holding that no contract exists between the Retirees and the State? II. Did the circuit court err in ruling that the State is estopped from requiring Retirees to contribute to the Retirement Systems? III. Did the circuit court err in certifying the class of Retirees? IV. Did the circuit court err in granting summary judgment in favor of the State on the Retirees' causes of action for unconstitutional taking, violation of due process, impairment of contract, and quantum meruit? V. Did the circuit court err in denying the State's motion to dismiss based on the State's claim that Retirees failed to exhaust their administrative remedies under the Claims Procedure Act before bringing the dispute to the circuit court?",issues
+389,2430576,1,1,"In its original brief the Company contended the circuit court did not have jurisdiction of the subject matter because the enforcement of arbitration agreements is exclusively a federal matter under section 301(a) of the Labor Management Act of 1947, which relates to Suits for violation of contracts. 29 U.S.C.A. § 185. This contention was made despite the fact that the Company initiated these proceedings to contest the arbitration award in the state court. We gather from its later brief that it has abandoned this untenable position. Both parties apparently assume these proceedings are within the scope of section 301(a) and no question is presented on that score. See Mengel Company v. Nashville Paper Prod. and Spec. Workers Union, 6 Cir., 221 F.2d 644. Accepting this view, it appears that both federal and state courts have concurrent jurisdiction to enforce collective bargaining agreements, particularly agreements to arbitrate. See McCarroll v. Los Angeles County District Council of Carpenters, 49 Cal.App.2d 45, 315 P. 2d 322, and Coleman Company, Inc. v. International Union, Etc., 181 Kan. 968, 317 P.2d 831. The circuit court had jurisdiction.",jurisdiction
+390,2691679,1,7,"{¶ 46} The appellants' memorandum in support of jurisdiction contained five propositions of law, including the following: {¶ 47} Proposition of Law No. 3: Appellees' de facto debarment rule is preempted by R.C. Chapter 4115, a comprehensive scheme balancing the competing public interests in prevailing wage compliance and competition for public contracts. {¶ 48} Proposition of Law No. 4: The settlement agreements and court proceedings cannot legally be considered as establishing a violation of law, 15 SUPREME COURT OF OHIO because such [a] finding would be contrary to both the language of the agreements and the public policy favoring resolution of disputes through mediation and settlement. {¶ 49} Proposition of Law No. 5: Because the state has not ‘found’ that [The Painting Company] violated the prevailing wage law within the last ten years, Appellees abused their discretion because either the Standards are void for vagueness or the Commissioners' interpretation constituted an unannounced bid criterion. {¶ 50} This court accepted jurisdiction over Proposition of Law III only. State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. I dissented. Id. {¶ 51} As I have explained in the past, I disagree with this court's practice of picking and choosing, within a case, the issues that we are willing to review. If a case is worthy of review, in the interests of providing justice to the parties and because, until we see the entire record, it is exceedingly difficult to ascertain the interplay of various issues, all appealed issues should be before us. Whether we address each issue at that point is, of course, within our considered discretion. Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio2463, 909 N.E.2d 106, ¶ 60 (Pfeifer, J., dissenting). {¶ 52} Apparently a majority of this court now agrees with my dissent in Meyer because, even though this court accepted jurisdiction over Proposition of Law III only, the majority opinion also addresses Propositions of Law IV and V. I do not disagree with that approach; in fact, I applaud it. But wouldn't it be better for parties and their attorneys if this court accepted jurisdiction without limitation? The current practice is confusing. Attorneys don't know whether they should argue issues that aren't before us; based on this case, they should. 16 January Term, 2010 Attorneys also don't know whether they can safely ignore issues that we have told them are not before us; based on this case, they shouldn't.",jurisdiction
+391,1099664,1,25,"In his appeal, the defendant argued that the evidence was insufficient to convict him of first degree murder because there was no direct evidence that he fired a gun or that he was present when the shots were fired, and that the circumstantial evidence presented by the State did not exclude every reasonable hypothesis of innocence. This Court, on our original hearing, determined that the evidence was insufficient to support a first degree murder conviction, but was sufficient to support a conviction for second degree murder because defendant conceded that he entered the Beaugh residence with the specific intent to commit an aggravated burglary, and a killing did take place during the aggravated burglary. We now reverse that ruling and determine that the evidence submitted to the jury was sufficient to support a finding that defendant had specific intent to kill or inflict great bodily harm and, hence, defendant was appropriately found guilty of first degree murder by the jury before which he was tried. As expressed in the original opinion, in reviewing the sufficiency of evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984). When circumstantial evidence is used to prove the commission of the offense, La.Rev.Stat. 15:438 requires that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. The circumstantial evidence rule is not a separate test from the Jackson standard but provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilt beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). In the instant case, the State alleged that defendant was guilty of first degree murder because (1) he had specific intent to kill or to inflict great bodily harm and was engaged in the perpetration of an aggravated burglary and/or armed robbery, La. R.S. 14:30(A)(1); (2) that he had a specific intent to kill or to inflict great bodily harm upon more than one person, La. Rev. 14:30(A)(3); or (3) that the offender had the specific intent to kill or to inflict great bodily harm upon a victim who was sixty-five years of age or older, R.S. 14:30(A)(5). We note that specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La.Rev.Stat. 14:10(1); State v. Butler, 322 So.2d 189, 192-93 (La. 1975). Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Sullivan, 596 So.2d 177, 190 (La.1992). In addition, the State also charged defendant as a principal, for having acted in concert with Lawrence Jacobs. As such, the State had to demonstrate that defendant had the requisite specific intent, not merely that he knew of Jacob's intentions, in the event the jury concluded that Jacobs alone shot the victims. The evidence introduced by the state, viewed in the light most favorable to the prosecution, was sufficient to prove that Roy Bridgewater was a shooter, or at the very minimum, that he had specific intent to kill or inflict great bodily harm on Della and Nelson Beaugh. The most compelling evidence came from the defendant's own statements to police. First, in his taped confession, Roy Bridgewater is able to describe all of the events that transpired prior to Nelson and Della Beaugh's being killed. First, he states that he and Jacobs approached Nelson Beaugh while the victim was outside in his yard. Mr. Beaugh was forced into the house, causing the victim's hat to fall off in the garage. Then, Nelson Beaugh was walked through the house to the kitchen where his mother, Della Beaugh, was cooking. At that point the defendant and Lawrence Jacobs noticed the Beaugh family dog, and the victims were told to get the dog out of the house. Next, according to the taped confession, both victims were brought to the living room and were asked to provide money. Nelson Beaugh gave what he had and then stated that money would be found in his son's room. At this point, defendant and Jacobs brought the two victims into the son's room. Nelson Beaugh swept everything off the dresser and some money fell to the floor. Then, Nelson Beaugh looked through the items on the bed and on the floor to show Jacobs and the defendant that there was no more money. Then, defendant describes in his confession how Jacobs ran through the house. First, Jacobs went to the other child's bedroom. Then, Jacobs went into the computer room. At that point, Nelson Beaugh stated that there was a safe in the house, whereupon the defendant and Jacobs had the victims retrieve the safe. Nelson opened the safe and everyone went back into the master bedroom where the victims were forced to sit on the bed. Nelson Beaugh then opened the jewelry box and Roy Bridgewater took out the first drawer and put it on the wicker hamper located near the bathroom. Then, the defendant and Lawrence Jacobs opened up the other jewelry drawers. At this point, the recorded confession reflects that Jacobs asked the victims whether they would call the police after he and Roy Bridgewater left. Nelson Beaugh stated he would not call the police and asked Jacobs to take the phones with him. Della Beaugh just sat on the bed asking oh my god what's going on? Then, Nelson Beaugh gave Jacobs the keys to the family van. Jacobs next picked up the phone and put it back down. Thereupon, the victims were shot and killed. Then Jacobs grabbed a keyboard located near one of the children's rooms, and ran out of the house, through the garage to the van. According to the confession of defendant, Roy Bridgewater, he and Jacobs then drove the Beaugh van to the Iberville housing project. Roy Bridgewater's knowledge of the exact details of what transpired in the house, where the victims were located in the bedroom, where the property was stolen, what the victims said, and importantly, where the victims were when they were killed leads to the reasonable inference that he was in the room when the victims were shot. The defendant's self serving statement that he was serving as a lookout, peeking in from time to time, and located in the garage when the victims were killed, is simply unbelievable, as the jury surely concluded. First, the defendant could not have known the details that he described in his taped confession if he had been a lookout in the garage during most of the event. Second, the layout of the home and the positioning of the garage doors would have greatly restricted, if not altogether prevented, defendant from being able to watch the street from the garage where he claims to have served as a lookout. In his taped confession, defendant claims that he was located in the northwest corner of the garage near the entranceway into the home, near the door that leads into the house, by the washer and dryer. If defendant was in fact standing where he claimed to be standing, he would have had no view of either garage door because his view would have been blocked by the enclosed stairwell leading to the children's playroom. [2] Third, even if defendant could have seen beyond the enclosed stairwell from where he was standing, such a position would have been little aid to a lookout. The garage door closest to the corner of Fay Street and Cedar Lawn Drive was closed [3] . The garage door that was open faced the side of Fay Street and was bounded by a wooded area. [4] Furthermore, Nelson Beaugh's truck was parked outside of that door blocking the view. [5] It appears unlikely that a lookout would be canvassing the street from a garage with only one door open, that had the view blocked by a pickup truck and which faced a wooded area. Fourth, there are approximately fifty feet and three hallways between the area of the garage where Roy Bridgewater claims to have been standing as a lookout and the night stand where he allegedly heard Jacobs pick up and put down the phone prior to shooting the victims. [6] It is unlikely that Roy Bridgewater could have heard Jacobs pick up or put down a phone from that distance. Fifth, if defendant was actually in the garage at the time the victims were killed and never re-entered the home, it is impossible for him to know that Jacobs ran to the hallway outside the children's rooms to retrieve a keyboard after the victims were shot. The victims were killed in the master bedroom on the far east side of the home. The hallway outside of the children's room is located on the far west side of the home. [7] If Jacobs ran from the master bedroom to the hallway outside of the children's room after the shooting, he would have had to traverse the entire house. If defendant was in the garage and never re-entered the home, it would be impossible for him to know what Jacobs did in the Beaugh home after the shooting. These factors lead to the rational conclusion that the defendant was not in the garage where he claims to have been but was, in fact, in the room where the victims were murdered. It is rational for the jurors to have believed that the defendant, having been in the room when the victims were killed, intended to kill or inflict great bodily harm. In our opinion, it is also rational for the jurors to have believed that defendant himself was a shooter. Defendant stated in his taped confession that he was armed only with a broken BB gun. Yet, defendant could not provide the police with any corroboration for that assertion. The defendant asserted in his taped confession that he happened to find the BB gun at a canal but after the murders it was never discovered. Bridgewater claims to have thrown it out of the window of the Beaugh family van after fleeing from the scene of the crime. Despite defendant's assertions that he had only a BB gun, the testimony of Captain Louise Walzer, a forensic firearms examiner at the Jefferson Parish Sheriff's Office, casts doubt on that assertion. Captain Walzer stated that two different types of bullets were fired into the victims. While the presence of two different bullets in the bodies of the victims does not necessarily prove two different guns were used, it does allow a jury to begin drawing that inference. However, the state presented further evidence. The state showed that defendant was evasive about the location of the shirt he was wearing the day Nelson and Della Beaugh were killed. Originally, the defendant claimed that he was wearing a white t-shirt. Then, he changed his story indicating that he was in fact wearing a black t-shirt belonging to Lawrence Jacobs. Defendant stated he no longer had the shirt, having returned it to Lawrence Jacobs. The jury could have rationally believed that the reason defendant would not produce the shirt was because it had blood on it. The autopsy photos and the testimony of Dr. Susan Garcia indicate that all four gunshot wounds to the victims were fired at close range. It is rational for a jury to believe that a killing in that manner would result in blood being deposited on the gunman's clothing and that Roy Bridgewater was in the room where the victims were shot and pulled the trigger. But, besides the reasonable inference that Bridgewater was a gunman, there is other evidence sufficient to convince a rational trier of fact that defendant had specific intent to kill or inflict great bodily harm. First, the facts show that defendant knew that Nelson and Della Beaugh would be killed. In his taped confessions to the police, Roy Bridgewater states that he heard Lawrence Jacobs tell the victims that he would shoot them. According to the defendant's taped confession, once Lawrence Jacobs brought Della and Nelson Beaugh into the living room, Jacobs asked for money. Nelson Beaugh stated he did not have much money and at that point Jacobs stated man you better start talking I'm getting tired. I'm about to shoot you. This statement by Jacobs would have occurred just as the men were entering the Beaugh family home, prior to any property being taken. The defendant admits hearing Jacobs undeniably threaten to shoot the victims from the outset, yet defendant continued to aid Jacobs. The defendant admits to have aided Jacobs in searching the home and in periodically keeping watch over the victims while their property was being stolen. In addition, defendant's taped confession indicates that he knew that Jacobs would kill the victims. During his confession to the police, the defendant talked about other instances where Jacobs had robbed people. Roy Bridgewater discussed a specific event where Jacobs entered a man's home and stole the victim's truck. Bridgewater stated that the victim in that robbery was cooperative, yet defendant was surprised [Jacobs] didn't shoot him. If Bridgewater was surprised that Jacobs allowed a single cooperative victim to survive in a prior robbery, it is not unreasonable for the jury to believe that Bridgewater believed Jacobs would kill Nelson and Della Beaugh after burglarizing the residence. The defendant's decision to accompany Jacobs into the Beaugh family home nonetheless, evidences that Bridgewater shared Jacob's intent, even if it were assumed that Bridgewater, himself, did not shoot the victims. Second, the actions taken by defendant after Nelson and Della Beaugh were shot are inconsistent with someone who did not intend that they be killed. Defendant admitted in his taped confession that after Nelson and Della Beaugh were killed, he and Lawrence Jacobs took the Beaugh van, then abandoned it. Then the two went to McDonalds to eat. Defendant even recalls the exact meal he consumed. Then, he and Jacobs went to a video arcade. The next night, they went to a party together. Furthermore, cell phone records show that a call was placed from the Beaugh van to the girlfriend of Roy Bridgewater's brother. Additionally, the defendant admitted sharing in the stolen property. Bridgewater admitted that he took possession of the Nelson Beaugh's watch and a keyboard that was taken from the Beaugh home. Bridgewater told the police that the stolen property was located at his girlfriend's house, and the police were able to retrieve the items from the designated residence. Subsequently, other property of the Beaugh family was recovered from the home of Bridgewater's girlfriend as well. Defendant's claims that he was scared because Jacobs was armed and that Jacobs might shoot him, if that were believed by the jury, could reasonably explain why defendant would have left the scene with Jacobs driving the Nelson Beaugh's van to facilitate escape. But if defendant was concerned for his own safety and did not intend for the Nelson and Della Beaugh to be killed, it is not logical that (1) defendant would voluntarily go to eat with Jacobs after the killings; (2) voluntarily accompany Jacobs to a public video arcade; (3) voluntarily go with Jacobs to a party the day after the killings; and (4) share in the stolen property. The jury was presented evidence that defendant had specific intent to kill or inflict great bodily harm on Nelson and Della Beaugh. Jacobs from the outset threatened to shoot the victims; defendant admitted he was surprised Jacobs had not killed a robbery victim in a prior crime; despite knowing Jacob's disposition, defendant aided him in keeping the victims at bay and stealing their property; after the killings defendant remained with Jacobs, eating with him, playing video games and going to a party; finally, defendant shared in the stolen property. All of this was presented to the jury. Taking these facts in the light most favorable to the prosecution, we cannot say that they were insufficient to convince a rational trier of fact that the element of specific intent was proven. Thus, the evidence was sufficient to prove that defendant himself was a gunman or, at the very least, had an active desire that Lawrence Jacobs kill the victims. Hence, the jury did not err in finding defendant guilty of first degree murder [8] . Defendant's remaining assignments of error concern the penalty phase and defendant's death sentence. We find these remaining assignments non-meritorious and governed by settled principles of law. Hence we address them in an unpublished appendix, which is attached to this opinion and is part of the official record in this case. Because these assignments lack merit, we find no error in defendant's sentence of death.",sufficiency of the evidence
+392,1345898,1,4,"Issues regarding the grant or denial of a plea in bar are questions of law. State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004).",standard of review
+393,1118951,1,1,"Appellant contends that there was evidence before the court showing that it accepted appellees' offer to terminate the lease and that consequently it was reversible error to find otherwise. We agree with appellant that there was some evidence of acceptance of the offer to terminate the lease; however, we hold that such does not warrant a reversal of the judgment. In this case, there is conflicting evidence as to whether or not the lease was terminated. The evidence presented by appellant was that, during February 1985, Mr. Innes orally advised Mr. Baeder that appellant accepted the offer to terminate the lease. The evidence presented by appellees is that they did not receive an acceptance of their offer; they continued to receive lease payments through May 1985; and they deducted the June lease payment from other moneys inadvertently sent to them, without objection by appellant. This Court has frequently stated its standard for appellate review of conflicting evidence to be: On appeal, we accept the evidence presented by the prevailing party as true, leaving out of consideration entirely conflicting evidence presented by the unsuccessful party, giving every favorable inference that may fairly and reasonably be drawn from the successful party's evidence. Wangler v. Federer, Wyo., 714 P.2d 1209, 1216-17 (1986), citing Matter of Abas, Wyo., 701 P.2d 1153 (1985), and Stockton v. Sowerwine, Wyo., 690 P.2d 1202 (1984). We are, therefore, obliged in this case to disregard appellant's conflicting evidence that it accepted appellees' offer to terminate the lease. Giving every favorable inference that may be fairly and reasonably drawn from appellees' evidence, we must accept the finding of the trial court that there was no termination of the lease agreement and that appellees were entitled to the unpaid lease payments. Appellant also contends that the court erred by requiring it to pay for the new price of the computer and lease payments after the lease terminated. This contention is without merit. In the absence of a sale to appellant, appellees, pursuant to the terms of the lease, were the owners and entitled to possession of the leased equipment upon termination of the lease, regardless of how or when termination took place. In any event, judgment was entered against appellant for payment of the value of the equipment which defendant failed to return, not the new price of the computer.",sufficiency of the evidence
+394,865937,1,2,"¶6. The standard of review for the grant or denial of a motion for summary judgment is de novo. Stringer v. Trapp, 30 So. 3d 339, 341 (Miss. 2010). Summary judgment properly may be granted where “the pleadings, depositions, answers to interrogatories and admissions 3 on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). “If no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law, summary judgment should be entered in that party's favor.” Trapp, 30 So. 3d at 341. The burden rests on the moving party. Id. The trial court views all evidence before it in the light most favorable to the nonmoving party. Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 649-50 (Miss. 2009). ¶7. “Once the absence of genuine material issues has been shown, the burden of rebuttal falls upon the non-moving party. To survive summary judgment, the non-moving party must produce specific facts showing that there is a genuine material issue for trial.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1213-14 (Miss. 1996); see also M.R.C.P. 56(e). Therefore, “[t]o avoid summary judgment, the non-movant must set forth specific facts that demonstrate a genuine issue of a material fact that merits trial instead of mere unsubstantiated allegations.” Green v. Allendale Planting Co., 954 So. 2d 1032, 1038 (Miss. 2007) (citing Richmond v. Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss. 1997)). “The party opposing the motion must be diligent.” Richmond, 692 So. 2d at 61-62 (citing Grisham v. John Q. Long V.F.W. Post, 519 So. 2d 413, 415 (Miss. 1988)). However, “[s]ummary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’” Dearman v. Christian, 967 So. 2d 636, 639 (Miss. 2007) (citations omitted). 4 ¶8. The nonmoving party “remains silent at her peril.” Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198-99 (Miss. 1988). “[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” M.R.C.P. 56(e); see also Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1984). LAW AND ANALYSIS
+¶9. The MTCA provides immunity to government entities, such as public hospitals, and to government employees under specified circumstances. See Miss. Code Ann. §§ 11-46-1 to 11-46-23 (Rev. 2002). The MTCA provides the exclusive remedy for money damages against a governmental entity or its employee. Miss. Code Ann. § 11-46-7(1) (Rev. 2002). However, a party may join an employee, in his or her representative capacity, in an action against a governmental entity “if the act or omission complained of is one for which the governmental entity may be liable.” Miss. Code Ann. § 11-46-7(2) (Rev. 2002). But an employee cannot be personally liable for any acts or omission that occurred within the course and scope of his or her duties. Miss. Code Ann. § 11-46-7(2). ¶10. Public hospitals are covered by the MTCA. Miss. Code Ann. § 11-46-1(j) (Rev. 2002). A party claiming injury under the MTCA against a governmental entity, such as a public hospital, must file a notice of claim with the chief executive officer of the governmental entity ninety days prior to maintaining an action. Miss. Code Ann. § 11-4611(1) (Rev. 2002). The MTCA also provides a one-year statute of limitations on all actions 5 brought under its provisions which is tolled by a timely-filed notice of claim. Miss. Code Ann. § 11-46-11(3) (Rev. 2002). II. Whether there was a genuine issue of material fact that Dr. Gorton was an employee of a public hospital entitled to the protections of the MTCA. ¶11. It is undisputed that Greenwood Leflore Hospital is a public hospital entitled to the protections of the MTCA. Therefore, its employees also have the explicit extension of the MTCA’s protection. Miss. Code Ann. § 11-46-7 (Rev. 2002). Dr. Gorton argues that the documentation before the trial court established his status as an employee of Greenwood Leflore Hospital and it was not a genuine issue of material fact. ¶12. We agree that there was no genuine issue of material fact that Dr. Gorton was an employee of Greenwood Leflore Hospital on August 7-8, 2007, the dates relevant to this appeal.1 To support Dr. Gorton’s assertion that he was employed by Greenwood Leflore Hospital at all relevant times, he provided: (1) an affidavit from Margaret Buchanan, the Director of Human Resources at Greenwood Leflore Hospital; (2) his own affidavit stating that his dates of employment were September 29, 1999, through October 31, 2007; (3) a copy of his original employment contract, effective September 29, 1999; (4) a copy of an amendment to the employment contract that extended his employment contract from September 1, 2004, through August 31, 2009; (5) a copy of a mutual termination of the employment agreement providing that Dr. Gorton’s employment would terminate August 1, 1 In her brief, Rance admits that Dr. Gorton was an employee of Greenwood Leflore Hospital. She states that “[u]nbeknownst to Rance, Dr. Gorton was employed by Greenwood-Leflore Hospital (‘Greenwood Leflore Hospital’) and worked at HCMH under the auspices of a contract between HCMH and Greenwood Leflore Hospital.” 6 2007; (6) a copy of an amendment to the mutual termination-of-employment agreement, providing that Dr. Gorton’s employment would terminate on November 1, 2007; and (7) a copy of a report of termination providing that Dr. Gorton’s last day of employment was October 31, 2007. ¶13. In her affidavit, Buchanan stated that Greenwood Leflore Hospital is a community hospital owned by the City of Greenwood and Leflore County. Buchanan stated that Dr. Gorton was an employee of Greenwood Leflore Hospital during the time of the events set forth in Rance’s complaint. Buchanan related that, while in medical school, Dr. Gorton had entered into an employment contract with Greenwood Leflore Hospital dated September 29, 1999, and, pursuant to that contract, Greenwood Leflore Hospital continuously had employed Dr. Gorton from September 1, 2004, through October 31, 2007. Buchanan stated that, according to the conditions of Dr. Gorton’s employment with Greenwood Leflore Hospital, he practiced in the Gorton Clinic and saw patients at HCMH. ¶14. In Dr. Gorton’s affidavit, he stated that he had been employed continuously by Greenwood Leflore Hospital from September 29, 1999, to October 31, 2007.2 Dr. Gorton stated that the parties initially had agreed to terminate his employment effective August 1, 2 The discrepancy in the start dates of Dr. Gorton’s employment provided by Buchanan and Dr. Gorton is immaterial to the discussion, because both agree that he was employed by Greenwood Leflore Hospital on August 7-8, 2007, the dates relevant to Rance’s claims. The September 29, 1999, contract stated that Dr. Gorton’s employment would be for a period of five years from the date Dr. Gorton moved to Belzoni, Mississippi, and commenced his practice of medicine as a full-time employee of Greenwood Leflore Hospital and member of the active medical staff of HCMH. It is evident from the amendment to the employment agreement that this five-year period began on September 1, 2004. 7 2007, but that before August 1, 2007, the parties had agreed to extend the employment contract to November 1, 2007. The reason for the delay was to “allow completion of documents to effect a change of ownership of the Gorton Clinic from Greenwood Leflore Hospital to Dr. Mac Gorton and Dr. Sidney Carlton Gorton.” ¶15. The employment agreement between Greenwood Leflore Hospital and Dr. Gorton provided that it was for a five-year term from the date Dr. Gorton commenced his practice of medicine under the conditions specified. The contract provided that Dr. Gorton’s responsibilities as a full-time employee of Greenwood Leflore Hospital required him to serve as the physician for the Gorton Clinic and to become a member of HCMH’s active staff to provide oversight and care of the clinic’s and HCMH’s patients. Later, Greenwood Leflore Hospital and Dr. Gorton executed an amendment to the employment agreement. This document established that Dr. Gorton’s employment dates were September 1, 2004, through August 31, 2009. ¶16. On April 16, 2007, Greenwood Leflore Hospital and Dr. Gorton executed a mutual termination of the employment agreement. The termination agreement set the date of termination as August 1, 2007. However, the parties also executed an amendment to the termination of employment agreement dated “August ___ 2007,” that extended Dr. Gorton’s date of termination to November 1, 2007. Dr. Gorton and a representative of Greenwood Leflore Hospital signed this amendment. A copy of a report of termination for Dr. Gorton noted the following dates: (1) a hire date of August 31, 2004, (2) a last date worked of October 31, 2007, and (3) a date of termination of October 31, 2007. The report also stated that the details of termination were “change ownership.” 8 ¶17. Rance offered no evidence to refute Dr. Gorton’s assertion that, on the relevant dates of August 7-8, 2007, he was an employee of Greenwood Leflore Hospital and subject to the protections of the MTCA. Before the trial court, Rance took issue with the fact that the extension of the termination agreement did not specify the date in August 2007 that it was executed, and with the execution date of the amendment to the employment agreement. She claimed that, while Greenwood Leflore Hospital’s representative signed the amendment to the employment agreement on August 26, 2005, Dr. Gorton’s signature was dated August 24, 2009, a future date that had not occurred. In response to this allegation, Dr. Gorton stated in his affidavit that the date on the amendment “reads ‘August 24, 2005,’ not August 24, 2009.” ¶18. We find that the documents submitted by Dr. Gorton established that he was employed by Greenwood Leflore Hospital on the relevant dates of August 7-8, 2007. Rance provided no specific facts that demonstrate a genuine issue of material fact that merits trial. Instead, Rance provided mere unsubstantiated allegations. See Green, 954 So. 2d at 1038. Therefore, the evidence before the trial court failed to create a genuine issue of material fact as to Dr. Gorton’s status as an employee of Greenwood Leflore Hospital, a government entity covered by the MTCA. We observe that Rance had a legal duty to conduct a due-diligence inquiry into the true employment status of potential defendants. Ray v. Keith, 859 So. 2d 995, 999 (Miss. 2003). III. Whether Rance provided proper notice to Greenwood Leflore Hospital under the MTCA. 9 ¶19. Having determined no genuine issue of material fact exists as to the applicability of the MTCA, we turn to Dr. Gorton’s argument that Rance failed to provide pre-suit notice to Greenwood Leflore Hospital’s chief operating officer pursuant to the MTCA. See Miss. Code Ann. § 11-46-11(3) (Rev. 2002). ¶20. Mississippi Code Section 11-46-11 states the notice requirements for filing a lawsuit under the MTCA. According to Section 11-46-11(1): After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity. Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued; if the governmental entity is a municipality, then upon the city clerk. If the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), service of notice of claim shall be had only upon that entity's chief executive officer. If the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof. Miss. Code Ann. § 11-46-11(1) (Rev. 2002) (emphasis added). ¶21. This Court strictly applies the ninety-day-notice requirement of Section 11-46-11(1). Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006). “[T]he ninety-day notice requirement under section 11-46-11(1) is a ‘hard-edged, mandatory rule which the Court strictly enforces.’” Id. (quoting Ivy v. GMAC, 612 So. 2d 1108, 1116 (Miss. 1992)). See also Price v. Clark, 21 So. 3d 509, 518-19 (Miss. 2009) (“Strict compliance with statutory notice is required, regardless of why the plaintiff failed to provide notice.”) (quoting Easterling, 928 So. 2d at 819-20); Brown v. Sw. Miss. Reg’l Med. Ctr., 989 So. 2d 933, 936 10 (Miss. Ct. App. 2008) (stating that “Easterling’s strict compliance standard is meant to apply equally to cases in which no notice is filed, notice is filed after the complaint, or the complaint is filed sooner than ninety days after filing notice”). ¶22. Rance provided pre-suit notice to HCMH. When Rance filed the suit, she separately served HMCH, Dr. Thomas, and Dr. Gorton. But because Dr. Gorton was employed by Greenwood Leflore Hospital, a covered entity, he was personally immune from suit, and could have been joined in a suit against his employer in a representative capacity only. Miss. Code Ann. § 11-46-7(2) (Rev. 2002). Because Rance did not serve notice on the chief executive officer of Greenwood Leflore Hospital ninety days prior to filing suit, Rance failed to follow the pre-suit notice requirements of the MTCA. ¶23. Rance attempts to circumvent this outcome by arguing that her notice to HCMH was constructive notice to Greenwood Leflore Hospital. Rance argues that Greenwood Leflore Hospital’s employees worked at HCMH pursuant to a contractual relationship between the two hospitals. Rance contends that, given the hospitals’ contractual relationship and the fact that she could not have known of Dr. Gorton’s actual employment status, her notice to the chief executive officer of HCMH should have been adequate notice to Greenwood Leflore Hospital. The record shows no evidence of a contract between the two hospitals. Although Rance’s contention that there was a contract between the hospitals is unsupported by the record, obviating the need for analysis of her argument, we find it appropriate to note that this Court strictly enforces the MTCA’s ninety-day notice requirement. VI. Whether the statute of limitations has expired. 11 ¶24. Dr. Gorton also avers that the statute of limitations had expired before Rance filed the complaint. The MTCA prescribes a one-year statute of limitation. Miss. Code Ann. § 11-4611(3) (Rev. 2002). Specifically, the statute provides: All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant's receipt of notice of denial of claim from the governmental entity. Miss. Code Ann. § 11-46-11(3). ¶25. According to the allegations of the complaint, the tortious, wrongful, or otherwise actionable conduct that caused Jordan’s death occurred on August 7-8, 2007. Rance filed suit on November 5, 2008, more than one year later. Although the statute provides for tolling during the notice period, because Rance provided no notice to Dr. Gorton’s employer, Greenwood Leflore Hospital, the tolling provision is inapplicable in this case. Therefore, Rance’s claim was barred by the applicable statute of limitations under the MTCA. V. Whether there was constructive notice and whether the borrowedservant doctrine applies. 12 ¶26. Rance argues that Dr. Gorton was the borrowed servant of HCMH, and thus her notice to HCMH was sufficient. The borrowed-servant doctrine is a common-law rule “that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, although he remains in the general employment of the lender.” Jones v. James Reeves Contractors, Inc., 701 So. 2d 774, 778 (Miss. 1997) (quoting Quick Change Oil and Lube v. Rogers, 663 So. 2d 585, 589 (Miss. 1995)). Where the rule applies, “[t]he borrower then becomes the employer to the exclusion of the lender.” Id. This Court has identified three criteria for determining whether one is a borrowed servant: “(1) whose work is being performed, (2) who controls or has the right to control the workman as to the work being performed, and (3) has the workman voluntarily accepted the special employment.” Id. at 778-79. ¶27. Rance argues that Dr. Gorton was the borrowed servant of HCMH because, at the time of the alleged negligence, he was working at HCMH pursuant to his employment contract with Greenwood Leflore Hospital, which provided that Dr. Gorton would be on the active medical staff of HCMH. Dr. Gorton argues that the borrowed-servant doctrine has not been recognized as an applicable theory under the MTCA, and that, even if the borrowed-servant doctrine were applicable to an MTCA claim, its elements were not met in this case. ¶28. This Court never has considered the borrowed-servant doctrine in the context of an MTCA claim. Assuming for the sake of argument that the borrowed-servant doctrine could be applied to an MTCA claim, it is plainly inapplicable to the facts presented by this case. The only evidence of the relationship between Dr. Gorton and HCMH was Dr. Gorton’s 13 employment contract with Greenwood Leflore Hospital, requiring him to be on the active medical staff of HCMH. No evidence of any contract between Dr. Gorton and HCMH or between HCMH and Greenwood Leflore Hospital affecting Dr. Gorton’s employment is in the record. “Generally, staff privileges permit a doctor to use hospital facilities to practice his medical profession.” State By and Through Miss. Ethics Comm’n v. Aseme, 583 So. 2d 955, 958 (Miss. 1991) (quoting Engelstad v. Virginia Mun. Hosp., 718 F.2d 262, 267 (8th Cir. 1983)). This Court has held that a physician’s appointment to the medical staff of a hospital and the grant of clinical privileges do not equate to an employment contract between the physician and the hospital. Sullivan v. Baptist-Mem’l Hosp.-Golden Triangle, Inc., 722 So. 2d 675 (Miss. 1998) (citing Aseme, 583 So. 2d at 958-60; Trapp v. Cayson, 471 So. 2d 375, 384 (Miss. 1985)). Notwithstanding the question of whether the borrowedservant doctrine could apply to an MTCA claim, it is clear that Dr. Gorton’s position on the medical staff of HCMH did not implicate the borrowed-servant doctrine. Therefore, summary judgment was warranted as to Dr. Gorton.",standard of review
+395,845819,1,3,"The question presented is whether MCL 600.2912e requires a defendant to file an affidavit of meritorious defense, notwithstanding the fact that the defendant also asserts a claim of governmental immunity under the government tort liability act (GTLA), MCL 691.1407(2). MCL 600.2912e(1) provides, in pertinent part: In an action alleging medical malpractice. . . the defendant or, if the defendant is represented by an attorney, the defendant's attorney shall file, not later than 91 days after the plaintiff or the plaintiff's attorney files the affidavit [of merit], an affidavit of meritorious defense signed by a health professional. . . .[Emphasis added.] The Legislature's use of the word shall in a statute generally indicates a mandatory and imperative directive. Burton v. Reed City Hosp. Corp., 471 Mich. 745, 752, 691 N.W.2d 424 (2005). As such, the statute suggests that a medical malpractice defendant is obligated to file an affidavit of meritorious defense. However, MCL 691.1407(2) provides that a governmental employee is immune from tort liability if all the following conditions are met: (a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. We have never specifically addressed the applicability of MCL 600.2912e to defendants who are governmental employees. However, we have repeatedly observed that governmental immunity legislation evidences a clear legislative judgment that public and private tortfeasors should be treated differently. Robinson v. Detroit, 462 Mich. 439, 459, 613 N.W.2d 307 (2000) (citation omitted). We have also observed that a central purpose of governmental immunity is to prevent a drain on the state's financial resources, by avoiding even the expense of having to contest on the merits any claim barred by governmental immunity. Mack v. Detroit, 467 Mich. 186, 203 n. 18, 649 N.W.2d 47 (2002). We believe that the expense and burden of obtaining an expert to prepare an affidavit of meritorious defense fall squarely within this purpose. It would be incongruous to conclude that the failure to comply with a pleading requirement of this nature would subject a defendant to tort liability, where such a defendant is already immune from tort liability by virtue of his or her status as a governmental employee. Allowing governmental employee defendants to raise an immunity defense while simultaneously requiring that they disrupt their duties and expend time and taxpayer resources to prepare an unnecessary affidavit of meritorious defense, would render illusory the immunity afforded by the GTLA. [2] Moreover, we note that the affidavit required by MCL 600.2912e must address whether the medical malpractice defendant complied with the applicable medical standard of practice or care. [3] A claim that a defendant has violated an applicable standard of practice or care sounds in ordinary negligence. However, the plain language of the governmental immunity statute indicates that the Legislature limited governmental employee liability to gross negligence—situations in which the contested conduct was substantially more than negligent. Gross negligence is defined by GTLA as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. MCL 691.1407(7)(a). Thus, MCL 600.2912e permits the assertion of a violation of the standard of care of ordinary negligence, which is a distinct and lesser standard of care than the gross negligence standard set forth in the GTLA. As such, even if a plaintiff could show that a government employee defendant's conduct breached the applicable standard of practice or care, such a showing would not be sufficient to impose liability upon the employee. Rather, such a plaintiff would still have to make the additional showing that the employee's conduct amounted to gross negligence that was the proximate cause of the injury. Because the affidavit only requires a plaintiff to address the irrelevant question of ordinary negligence, and not the ultimate question of gross negligence, we conclude that the Legislature could not have intended that a governmental employee's failure to timely comply with the affidavit of merit requirements would deprive that employee of governmental immunity from tort liability. [4] Because governmental employees are immune from breaches of the standard of ordinary care, the affidavit of merit requirements of MCL 600.2912e are not relevant to a defendant otherwise entitled to governmental immunity, and we therefore conclude that such a defendant may not lose the benefit of that immunity merely by failing to timely file the affidavit of meritorious defense. [5] However, our opinion today should not be read to suggest that the mere assertion of a governmental immunity defense forever precludes the defendant making that assertion from the obligation to file the affidavit required by MCL 600.2912e. Where it has been determined that a defendant claiming governmental immunity is not entitled to immunity under MCL 691.1407(2), the defendant would, of course, then be obligated to comply with the same requirements as any other private tortfeasor. Yet, because of the 91-day filing requirement contained in MCL 600.2912e, a ruling against the defendant on the immunity issue coming after 91 days would arguably prejudice the ability of a defendant to comply with MCL 600.2912e. Under MCR 7.202(6)(v), an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee is a final order, from which an immediate appeal of right may be taken. Moreover, MCR 7.209(E)(4) provides that when a governmental party takes such an appeal, the trial court shall stay proceedings regarding that party during the pendency of the appeal, unless the Court of Appeals directs otherwise. In light of our interpretation today of the relevant statutes, and in view of these court rules, we hold that where a defendant has asserted the defense of governmental immunity, that defendant is not obligated to comply with the affidavit of meritorious defense requirement of MCL 600.2912e, unless an order has been entered denying governmental immunity to the defendant. [6] Where such an order has been entered, the defendant's obligation to comply with the requirements of MCL 600.2912e will be stayed during the pendency of the appeal of that order.",analysis
+396,2745709,1,5,"[¶22] We affirm the district court. The district court corrected any error it made with regard to the standard it used to assess Ms. Bolding’s evidence of damages. Also, the district court did not err when it refused to settle the record pursuant to W.R.A.P. 3.03. Finally, we conclude that the district court did not abuse its discretion when it found that Ms. Bolding had not met her burden to prove her damages were caused by Kindel Concrete’s negligence. 10",conclusion
+397,1925330,1,3,"The chancellor erred in awarding custody to Mattie Taylor. There was no legal basis for doing so, thus this Court must reverse and remand to the trial court for a determination of whether Carter is a fit parent. The chancellor can again consider the best interest of the child and suitability of the father to have custody. The father is either fit or not fit and if he is a fit person, the custody of the child cannot be awarded to Mattie Taylor. REVERSED AND REMANDED. ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, SULLIVAN, BANKS, McRAE and ROBERTS, JJ., concur.",conclusion
+398,6340541,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+399,2324699,1,1,"
+The facts of this case were hotly contested at trial. Minor's version of what happened, corroborated in part by three other witnesses, was as follows. Around 8:00 p.m. on May 19, 1992, Minor was sitting on a fence rail in front of his apartment house at the corner of 7th and O Streets, N.W., in Washington, D.C. He wore black jeans and a black shirt. An acquaintance, Steve Carney, came out of a building and walked past Minor on his way to the O Street Market. At that point, a police car came by but neither Carney nor Minor reacted in any way. Officers Kelsey and Fontz jumped out of the car, and Officer Fontz grabbed Carney and wrestled him to the ground. Kelsey told Minor You, bring your black motherfucking ass over here. Minor said he did not throw anything or place his hands in his pocket, and that before he could come down off the fence Kelsey grabbed him from behind and pulled him down to the ground, causing his back and head to strike the ground and suffer injury. Minor was handcuffed and frisked. Additional squad cars arrived and Minor was placed inside one of them. After about ten minutes, Minor was taken out of the car, his pockets were searched, and officers found a small penknife. Ten minutes later, he was again removed from the car and an unidentified police officer pulled Minor's trousers down to his knees and searched the rim of his underwear. At the time of the search, a crowd including a number of females had gathered and saw Minor with his pants down and underwear exposed. No contraband was found in either search. About ten minutes later, Minor was released. Minor suffered from a swollen lower and upper back and a knot on the head from being pulled down to the ground off the fence; he received emergency care, additional medical care for six months, and therapy. Minor further testified that he was embarrassed and humiliated by the way that he was publicly searched. Plaintiff's eyewitnesses Denise Kimlaw and Leroy Mills corroborated Minor's testimony that Steve Carney did not try to run when the officers arrived at the scene and that Minor made no attempt to leave the rail before Officer Kelsey grabbed him from behind and pulled him to the ground. Kimlaw, who witnessed the incident at a distance of 15 to 20 feet, testified that she did not see Minor put his hands in his pockets as the officer approached, nor did she see Minor flip anything in the air after Kelsey grabbed him. Mills stated that he had a clear view of Minor's hands, that Minor did not put his hands in his pockets, and that Minor did not throw any object out of his hands once he was grabbed by the officer. Both stated that there was no grass growing in the area at the time of the incident.
+The District's primary witness was Officer Kelsey, who testified to the following version of events: Kelsey and his partner Officer Fontz received a radio report at approximately 7:45 p.m. stating that two individuals located at the corner of 7th and O Streets, N.W. were selling or holding narcotics. Kelsey testified that the report described the individuals in question as black males, about five feet eleven, in their twenties, wearing black shirts and black pants. They drove the squad car to 7th and O Streets, arriving within two or three minutes, and observed two individuals fitting the report description at the corner in question. Kelsey saw no exchange between Minor and Carney. As soon as the officers exited the vehicle, Carney started running. Kelsey walked toward Minor and told him in a very boisterous way not to move. [4] Kelsey testified that as he approached Minor, Minor made a sudden movement toward his pocket and, concerned about destruction of evidence or a weapon, Kelsey grabbed Minor in a bear hug and pulled him off the fence. Once he had grabbed Minor, a small object came out of Minor's hand and went up in the air, although Kelsey could not see where it landed because of the grass in the area. Kelsey said he never got a chance to look where the object had fallen because an aggressive crowd had formed and he feared for personal safety. Kelsey gave Minor a light pat-down search, found no weapons or contraband, and put him in a scout car. Kelsey testified that he did not search Minor after that. Kelsey's deposition testimony was read in court to contradict this statement. At his deposition, Kelsey testified that he had conducted a public search of Minor in which he unbuckled and dropped Minor's pants and looked in the waistband of Minor's underwear to see if he was hiding narcotics. No drugs, no weapons, and no large sums of money were found on Minor. At trial Kelsey said that he remembered that it was Carney, not Minor, that he had searched in this manner. Kelsey stated that, based on the radio tip regarding the two individuals selling drugs, he only had cause to do an investigatory stop of Minor. He subsequently was arresting Mr. Minor because of what I believed were narcotics that he flipped out of his hand. Although he testified that he had arrested Minor, in the report he filed on the incident Kelsey classified the detention as a stop and frisk, rather than an arrest, because Minor had been released and had never been brought in. This report did not mention the alleged flipping of a small package by Minor that Kelsey suspected to be drugs. Officer Angelo Hicks, one of the police officers with the Narcotics and Special Investigation Division who was involved in providing the tip to Kelsey, also testified. Officer Hicks testified that around 7:30 or 8:00 p.m. on May 19, 1992, he and his partner, Sandy Austin, were in the vicinity of 7th and O Streets and received a tip from a paid informant who had given information concerning two subjects who were possibly holding narcotics [5] and that the informant had given a description of those subjects in the area of 7th and O Streets. [6] That information was relayed to other police units, although Hicks did not know whether he or his partner called in the tip. Hicks did not testify as to the content of the physical description. [7] Hicks, who was still in the vicinity of 7th and O Streets, saw the uniformed units arrive and the intersection quickly filled with 50 to 100 people who were loud and boisterous. Hicks personally saw the subjects but could not recall what they were doing or whether they spoke to one another, and he did not see them exchange anything. Hicks could not testify as to the informant's reliability because his partner was the one dealing with the informant. Expert witnesses for both the plaintiff [8] and the defense [9] testified that, based on a radio tip like that described by Officer Kelsey, an officer would only have reasonable suspicion to stop an individual and not probable cause to arrest under what they termed national standards. Both also agreed that if the facts were as testified to by Kelsey, i.e., that one suspect ran and the other flipped a small packet from his hands, this could raise the level of suspicion to that of probable cause to arrest. Klotz further testified that under national standards, an officer should state explicitly in a stop and frisk report such as Kelsey filled out all the relevant facts including, for example, that the suspect threw an object that matched, in the officer's experience, drug packaging. [10]",facts
+400,2575864,2,3,"Defendant contends that the evidence presented at the guilt phase was insufficient to establish the premeditation element of first degree murder, the lying-in-wait special circumstance, and the conspiracy conviction, and he asserts that basing a conviction or special circumstance finding on insufficient evidence violates his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution to due process of law, a fair trial, and reliable verdicts in a capital case. To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Kipp (2001) 26 Cal.4th 1100, 1128, 113 Cal. Rptr.2d 27, 33 P.3d 450; accord, People v. Silva, supra, 25 Cal.4th at p. 368, 106 Cal.Rptr.2d 93, 21 P.3d 769.) A murder that is premeditated and deliberate is murder of the first degree. (§ 189.) In this context, `premeditated' means `considered beforehand,' and `deliberate' means `formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' ( People v. Mayfield, supra, 14 Cal.4th at p. 767, 60 Cal.Rptr.2d 1, 928 P.2d 485.) An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. ( People v. Stitely, supra, 35 Cal.4th at p. 543, 26 Cal.Rptr.3d 1, 108 P.3d 182.) A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported— preexisting motive, planning activity, and manner of killing—but [t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. ( Ibid. ; see also People v. Combs, supra, 34 Cal.4th at p. 850, 22 Cal.Rptr.3d 61, 101 P.3d 1007; People v. Silva, supra, 25 Cal.4th at p. 368, 106 Cal.Rptr.2d 93, 21 P.3d 769.) The evidence of preexisting motive was ample. During the days before Holloway's murder, defendant had talked to Brian Johnsen and Denise Shigemura about whether they should kill Doug Mynatt, but they had decided not to tell Teresa Holloway about this because of concern that she would reveal it to the police. On the night of the murder, defendant told Johnsen that he had decided to proceed with the plan to kill Mynatt and that it could not wait until Johnsen was released from jail. Teresa Holloway then got on the phone and asked Johnsen whether there was a plan to kill Mynatt. From this evidence, a rational juror could infer that defendant had a motive to kill Holloway, to prevent her from revealing his planned killing of Mynatt. The evidence of planning activity was ample as well. Shortly before the murder, defendant asked Mark Schmidt for a chain. When Schmidt offered defendant an 18-inch length of plastic weed-eater cord, defendant wrapped the cord around his own neck, with one end in each fist clenched at shoulder height, and said: It will do. From these actions, a rational juror could infer that defendant had already decided to use the cord to strangle Holloway. Defendant then asked Schmidt to tell Teresa Holloway to get off the phone because he (Schmidt) needed to leave the apartment. A rational juror could infer that defendant made this request so that Holloway would be forced to leave Schmidt's apartment and then could be lured into Anna Humiston's car, where the fatal attack would take place. In the car, defendant positioned himself directly behind Holloway. A rational juror could infer that defendant did so to facilitate his planned strangulation of Holloway. Because this evidence of preexisting motive and planning activity was by itself sufficient to support the first degree murder conviction on a theory of premeditation and deliberation, we need not review the evidence concerning the manner of killing. The lying-in-wait special circumstance requires proof of an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. ( People v. Morales (1989) 48 Cal.3d 527, 557, 257 Cal.Rptr. 64, 770 P.2d 244; accord, People v. Combs, supra, 34 Cal.4th at p. 853, 22 Cal.Rptr.3d 61, 101 P.3d 1007; People v. Michaels, supra, 28 Cal.4th at p. 516, 122 Cal. Rptr.2d 285, 49 P.3d 1032.) There is sufficient evidence that defendant concealed from Holloway his purpose to kill her. As explained earlier, there is substantial evidence from which a rational juror could infer that defendant had already formed this purpose when he obtained a cord from Mark Schmidt that could be used to strangle Holloway. He did not reveal that purpose to Holloway immediately by attacking her, but instead lured her into Humiston's car. There is sufficient evidence of a substantial period of watching and waiting for an opportune time to act. The place where Teresa Holloway's body was found was two to three miles from Mark Schmidt's apartment. A rational juror could infer that defendant did not attack Holloway immediately after luring her into Humiston's car, but instead waited for a substantial period while the car was driven to a location where there was little risk that the attack would be observed by other motorists or by pedestrians. Finally, there is substantial evidence that once the car reached a suitable location, defendant immediately launched a surprise attack on an unsuspecting victim from a position of advantage. Defendant ensured a position of advantage by occupying the back seat of Humiston's car, directly behind Teresa Holloway. From the blood evidence found in the car, the very nature of the planned attack, and the lack of injury to defendant, Humiston, or Shigemura, a rational juror could infer that Holloway was taken by surprise, with little or no opportunity to escape or fight back. In concluding that the evidence is sufficient to support the lying-in-wait special circumstance, we are guided by this court's decisions in People v. Combs, supra, 34 Cal.4th 821, 22 Cal.Rptr.3d 61, 101 P.3d 1007, and People v. Morales, supra, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244, which involved nearly identical facts. In Combs and Morales, as here, the defendant armed himself with a weapon suitable for use in strangulation, lured an unsuspecting victim into the front seat of an automobile, positioned himself directly behind the victim, waited until the car reached a suitable location, and then launched a surprise attack on the unsuspecting victim. ( People v. Combs, supra, at p. 853, 22 Cal.Rptr.3d 61, 101 P.3d 1007; People v. Morales, supra, at p. 554, 257 Cal.Rptr. 64, 770 P.2d 244.) In Morales, as here, the defendant bludgeoned the victim to death after an initial attempt at strangulation was unsuccessful. ( People v. Morales, supra, at p. 554, 257 Cal.Rptr. 64, 770 P.2d 244.) We consider next defendant's challenge to the sufficiency of the evidence to support the conspiracy conviction. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act `by one or more of the parties to such agreement' in furtherance of the conspiracy. ( People v. Morante (1999) 20 Cal.4th 403, 416, 84 Cal.Rptr.2d 665, 975 P.2d 1071; accord, People v. Russo (2001) 25 Cal.4th 1124, 1131, 108 Cal.Rptr.2d 436, 25 P.3d 641.) Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. ( People v. Russo, supra, at p. 1135, 108 Cal.Rptr.2d 436, 25 P.3d 641.) Here, defendant's plan to attack and kill Teresa Holloway in Anna Humiston's car required the cooperation of Humiston and Denise Shigemura. There is ample evidence that one or both of them did agree or conspire to commit the murder. Shigemura shared defendant's motive to kill Holloway, because she also had been part of the plot to kill Doug Mynatt and, like defendant, would be put at risk if Holloway revealed that plot. Although there is no direct evidence that defendant and Shigemura discussed in advance the killing of Holloway, there was evidence that they were alone together at Mark Schmidt's residence shortly before the killing, during which a discussion and agreement could have taken place. Shigemura's later conduct provided additional evidence that she agreed to the murder. She was driving Humiston's car at the time of the fatal attack, she did not separate herself from defendant or report the killing afterward, and with defendant's help she concocted a false story to explain why, on the night of Holloway's murder, she failed to return to the halfway house where she was then required to live. As for Humiston, there was evidence that defendant engaged in an intense conversation with her at Schmidt's residence, that she allowed Shigemura to drive her car, and that she did not report the murder afterward and continued to associate with defendant. From this evidence, a rational juror could conclude beyond a reasonable doubt that defendant and either Shigemura or Humiston (or both) had the specific intent to agree or conspire to murder Holloway, as well as the specific intent to commit the elements of murder. The overt act requirement was also satisfied. The prosecution alleged five overt acts in support of the conspiracy charge. Two alleged overt acts occurred before Holloway's murder (defendant, Denise Shigemura, and Anna Humiston met with Teresa Holloway at Mark Schmidt's residence and defendant, Shigemura, Humiston, and Holloway left Schmidt's residence in Humiston's car); two alleged acts occurred after the murder (defendant, Shigemura, and Humiston placed Holloway's body in the culvert and walked to a nearby phone from which defendant called to request a ride); and one alleged act was the murder itself. The jury returned not true findings on the preoffense overt acts allegations, but it found each of the other overt act allegations to be true. Commission of the target offense in furtherance of the conspiracy satisfies the overt act requirement. ( People v. Padilla (1995) 11 Cal.4th 891, 966, 47 Cal. Rptr.2d 426, 906 P.2d 388.) Because the jury found that defendant committed the murder itself in furtherance of the conspiracy, and because substantial evidence supports that finding, the overt act requirement is satisfied. Although defendant is correct that the overt act requirement may not be satisfied by conduct occurring after the target offense is complete ( People v. Zamora (1976) 18 Cal.3d 538, 560, 134 Cal.Rptr. 784, 557 P.2d 75), defendant was not prejudiced by the jury's consideration of the invalid postoffense overt act allegations, and the valid finding of a single overt act is sufficient to support the conspiracy verdict. ( People v. Padilla, supra, at pp. 965-966, 47 Cal.Rptr.2d 426, 906 P.2d 388.) Defendant argues that the jury's not true findings on the preoffense overt act allegations conclusively demonstrate the jury's rejection of the prosecution's theory that defendant had agreed with Shigemura or Humiston (or both) to kill Holloway before Holloway was lured into Humiston's car, and that this inconsistency fatally undermines the conspiracy verdict. We disagree. An inconsistency between a not true finding on an overt act and a verdict or another finding is not a ground for overturning the inconsistent verdict or finding. ( People v. Hernandez (2003) 30 Cal.4th 835, 862, 134 Cal.Rptr.2d 602, 69 P.3d 446; see People v. Santamaria (1994) 8 Cal.4th 903, 911, 35 Cal.Rptr.2d 624, 884 P.2d 81 [recognizing that an apparently inconsistent not true finding may be the result of mistake, compromise, or lenity].)",sufficiency of the evidence
+401,4528174,1,1,"A county board of adjustment affirmed the grant of a zoning permit for construction of a new residence within an agricultural intensive district. The district court affirmed. The ultimate issue is whether the proposed residence was a “non-Farm residence” under the zoning regulations. Construing the regulations as a whole and giving them a reasonable construction, we find no abuse of discretion or legal error. Therefore, we affirm the judgment. - 323 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321",introduction
+402,1374241,1,6,"We have conducted the proportionality review pursuant to S.C.Code Ann. § 16-3-25 (1985). The sentence was not the result of passion, prejudice, or any other arbitrary factor; the evidence supports the finding of the aggravating circumstance; and the sentence is not disproportionate to that imposed in similar cases. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996); State v. Thompson, 278 S.C. 1, 292 S.E.2d 581, cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982). For the foregoing reasons, the defendant's conviction and sentence are AFFIRMED. FINNEY, C.J., and MOORE, WALLER and BURNETT, JJ., concur.",conclusion
+403,2558397,3,2,"[¶ 43] Our review of compensatory damage awards, the assessment of which is in the sole province of the fact-finder, is highly deferential. Rutland v. Mullen, 2002 ME 98, ¶ 20, 798 A.2d 1104, 1112. We will disturb an award of damages only when it is plain that there is no rational basis upon which the amount of the award may be supported, that is, when there is no competent evidence in the record to support the award. Id. Damages that are uncertain, contingent, or speculative are not recoverable. Wood v. Bell, 2006 ME 98, ¶ 21, 902 A.2d 843, 851. [S]ome evidence of the amount of the loss sustained must support an award, but damages need not be proved to a mathematical certainty. Reardon, 2004 ME 74, ¶ 8, 852 A.2d at 69; see also Foss v. Ingeneri, 561 A.2d 498, 498-99 (Me.1989) (holding that plaintiff retains the burden of proving damages by a preponderance of the evidence following entry of default judgment); Decesere v. Thayer, 468 A.2d 597, 598 (Me.1983) (Damages must be grounded on established positive facts or on evidence from which their existence and amount may be determined to a probability.). The fact-finder may also act upon probable and inferential ... proof in determining damages. Tang of the Sea, Inc. v. Bayley's Quality Seafoods, Inc., 1998 ME 264, ¶ 10, 721 A.2d 648, 650. [¶ 44] The Chandlers submitted the following evidence in support of their claim of compensatory damages: a. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showed debits from two of Hoch's German bank accounts from the period October 11, 2006, through June 24, 2008, the date on which Hoch died, totaling 177,631.76 euros. The Chandlers identified the payee in each transaction, excluding payments that were identified as reasonable compensation to the Naturhotel for Hoch's room and board and payment for her necessary medical care. We observe that two of these debits, totaling 2,325.06 euros, were made by or to Gudrun Stifel in late 2006. Although these debits occurred before the Stifel POA was executed on January 25, 2007, they occurred well after Hoch was under the exclusive care and control of the Stifels. Based on the allegations of the complaint, deemed to be adjudicated fact following entry of the default judgment, we cannot conclude that the court clearly erred in including them in its compensatory damages calculation. [¶ 45] An additional 54,433.08 euros was debited from one of these accounts after Hoch's death, presumably by virtue of the Stifel POA, given these were debits. b. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showed transfers out of three of Hoch's accounts and corresponding amounts being transferred contemporaneously into accounts owned by the Stifels a month after Hoch's death. The total amounts transferred were 265,701.87 euros. c. Bank records that the Stifels admitted were true and genuine, and summaries thereof (as supported by testimonial evidence), showing the value in May 2008 of Hoch's brokerage account at 2,184,694.15 euros. The evidence further shows that two brokerage accounts owned by the Stifels as of mid-August 2008 were valued at 2,048,032.93 euros. The Stifels admitted that the assets held in Hoch's brokerage account were transferred to the Stifels by operation of law pursuant to Hoch's will. The Chandlers met their burden of showing damages due to the transfer of Hoch's brokerage account assets, valued somewhere between 2,184,694.15 euros and 2,048,032.93 euros. However, the record does not show on what date the transfers occurred or what the value of Hoch's account was on that date. The trial court included 2,184,694.15 euros, the value of Hoch's account as of mid-May 2008, in its compensatory damages calculation. We conclude, however, that valuing damages based on the mid-May 2008 valuation date was speculative and that the better measure of damages in this instance is the mid-August valuation of 2,048,032.93 euros. [8] d. The Stifels admitted that Hoch's German home, which they themselves valued at 80,000 euros, was transferred to them by operation of law under Hoch's German will. A property owner is competent to value his own property, and therefore, competent record evidence supports the inclusion of 80,000 euros in the compensatory damages award. [¶ 46] Accepting the Chandlers' position that these debits or transfers were unauthorized, pursuant to the adjudicated facts in the case and the determination of the Stifels' liability, and were proximately caused by the Stifels' tortious conduct, the record supports the court's determination of compensatory damages with one exception: damages resulting from the transfer of Hoch's brokerage account assets should be 2,048,032.93 euros rather than 2,184,694.15 euros. [¶ 47] The total is thus: -------------------------------------------------- Pre- and Post-Death 232,064.84 euros Debits from Hoch's Bank Accounts -------------------------------------------------- Post-Death transfers 265,701.87 euros from Hoch's accounts into the Stifels' accounts -------------------------------------------------- Value of assets transferred 2,048,032.93 euros from Hoch's brokerage account -------------------------------------------------- Value of Hoch's 80,000 euros German Home __________________________________________________ TOTAL 2,625,799.64 euros -------------------------------------------------- [¶ 48] Applying the exchange rate accepted at trial of $1.4269 per euro, the record supports a compensatory damages award of $3,746,753.50.",sufficiency of the evidence
+404,4535988,1,1,"This is an original action brought by the Counsel for Discipline of the Nebraska Supreme Court against attorney Brandon B. Hanson. This action alleges Hanson violated several provisions of the Nebraska Rules of Professional Conduct and his oath as an attorney by preparing legal documents for his girlfriend without including a “Prepared By” notation as required by Neb. Ct. R. of Prof. Cond. § 3-501.2(c) (rev. 2016). At the time, Hanson was employed as the Valley County Attorney and Hanson’s girlfriend, a former Valley County employee, was involved in a lawsuit as a self-represented litigant regarding the reasons for her termination from the Valley - 568 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 County sheriff’s office. This is the first time Hanson has been the subject of a disciplinary action.",introduction
+405,2067888,1,3,"Based on the foregoing, the judgments of the Superior Court are hereby affirmed.",conclusion
+406,1479911,1,3,"Finally, the Defendants, Merle and Michael Jackson, say that the evidence was insufficient to entitle the jury to find that the Defendants knew that the projector had been stolen and that the Justice should have granted their motions for acquittal at the close of the evidence. M.R.Crim.P., Rule 29(a). The jurors had before them the evidence of the Defendant Michael's unsuccessful attempt to demonstrate the projector for sale, the Defendants' explanation that the projector belonged to Michael's father, Merle's apparent warning of danger when the officer arrived, the hasty exit from the home, their unwillingness to remain with the officer while he made further radio inquiry as to the status of the projector, their later flight from the officer, Michael's attempt to hide the projector in the bushes, Michael's offer to sell the projector for a price far below its fair value, and Ewen's assertion of ownership and his offer to sell to the officer for a figure four times that of Michael's offer to the lady. The jury could properly infer from Defendants' conduct that the Defendants believed the projector was stolen property. State v. Beale, Me., 299 A.2d 921 (1973); State v. Melanson, Me., 325 A.2d 14 (1974). Furthermore, none of the Defendants rested at the close of the State's evidence, and the jury also heard Merle Jackson and Norman Ewen testify that they had found the projector at the North Whitefield dump and that Michael, aware of this alleged explanation of their acquisition, had bought it from them for $35.00. The jury was entitled to weigh this explanation in the light of the other facts of the case. The Defendant Ewen argues to us that there is a complete absence of evidence indicating that he in any way aided in concealing the stolen property. He characterizes his conduct as that of simply sitting in the back of the car with the projector. Mere presence in the car with the property, he reminds us, will not constitute possession of the property. State v. Dall, Me., 305 A.2d 270 (1973). The term aid is defined in Black's Law Dictionary 91 (4th ed.rev. 1968) as [t]o support, help, assist or strengthen ... [s]upplement the efforts of another. The jury was entitled to conclude from the evidence that the three Defendants were engaged in a joint enterprise in which they concealed from the owner the location of his stolen property, knowing it to have been stolen, with the intention of disposing of it as their own for profit. The Defendant Ewen was more than a passive spectator—he asserted his ownership to the officer, offered to sell it to the officer, and, in offering to sell it to the officer, quoted a price which might have been calculated to appear more in keeping with the appearance of innocence than the $50.00 figure they were asking from the occupants of the house. After the Defendant Michael Jackson had left the car with the projector following the miring of the car, it was Ewen who told the State Police officer that the man who had just left the car was an unknown hitchhiker whom they had picked up. Finally, the Defendant Ewen urges that at the close of the case, the State's evidence was not sufficient to exclude, beyond a reasonable doubt, every other hypothesis except that of the Defendants' guilt. In the first place, the sufficiency of proof to withstand a motion for acquittal made at the completion of all the evidence is measured by the totality of the evidence and not by the State's evidence alone. State v. Brewer, Me., 325 A.2d 26 (1974); Glassman, Maine Practice, § 29.3. Secondly, we suggested in State v. Tomer, Me., 304 A.2d 80, 85 (1973) that the often repeated statement that circumstantial evidence must be sufficient to exclude every other reasonable hypothesis except that of the respondent's guilt is but the repetition of a useless ritual which many courts have abandoned and which adds nothing to a jury's understanding of its duties. Later, in State v. Pike, Me., 306 A.2d 145, 149 (1973) we repeated our warning as to the suspect quality of this language. The United States Supreme Court has declared it to be confusing and incorrect as a part of a judge's instruction when the jury has been properly instructed on the standards for proof beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137, 99 L.Ed.2d 150, 166 (1954). We consider that this language is valueless as it suggests a special test concerning sufficiency of circumstantial evidence as distinguished from direct evidence. In either case, the test is the same—that is, whether from all the evidence and from such reasonable inferences as may properly be drawn therefrom the guilt of a defendant has been proved beyond a reasonable doubt. This standard was made abundantly clear to the jurors. The Defendant Ewen offered innocent explanations for his conduct in connection with the stolen projector. It was within the province of the jurors, after assessing credibility of these explanations, to find that they raised no reasonable doubts as to the Defendant Ewen's guilt. The evidence was sufficient to justify the convictions and there was no error in the Justice's denial of the Defendants' motions for acquittal. The entry will be: Appeals denied.",sufficiency of the evidence
+407,2245258,1,3,"The prosecutor failed to comply with a pretrial discovery order in failing to list a Dr. Van Beek upon the State's list of witnesses supplied to the defendant. Defendant was not informed of this witness until January 27, 1975, the day before the trial, whereas by the court's discovery order, such information should have been furnished by January the 13th. The defendant contends that he should have been discharged because of the State's failure to comply with the order or, in the alternative, that Dr. Van Beek should not have been permitted to testify. The sanctions for failure to comply with a discovery order are discretionary, not mandatory. Indiana Rules of Trial Procedure 37. There is no indication that the failure to list this witness was an act of bad faith or deliberate suppression which would warrant a discharge. Moore v. Illinois, (1972) 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706; Evans v. Janing, (8th Cir.1973) 489 F.2d 470. Nor has the defendant shown that he was harmed by the judge's ruling upon this matter. The usual, but not sole, remedy in cases of this nature is a motion for a continuance. Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738; Johns v. State, (1968) 251 Ind. 172, 240 N.E.2d 60. There was no motion for continuance made in this case.",issues
+408,2630440,1,4,"¶ 8 We apply a three-part test to determine whether a governmental entity is immune from suit under the Utah Governmental Immunity Act. The test assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver. [8] In this case, there is no dispute that the UHP troopers were undertaking a governmental function for which the government has waived immunity. There is also no dispute that Peck was incarcerated at the time of the injury. He was arrested, handcuffed, and told to stand in front of the police cruiser. Clearly, he was under the control of the State [9] and unable to be released without some kind of permission. [10] ¶ 9 Thus, the only issue before us is the scope of governmental immunity retained by the incarceration exception, which preserves immunity for any injury that arises out of, in connection with, or results from ... the incarceration of any person in any state prison, county or city jail, or other place of legal confinement. [11] ¶ 10 The first step in any statutory interpretation is to examine the plain meaning of the statute. [O]ur goal is to give effect to the legislature's intent and purpose. [12] Accordingly, we begin with the plain language of the incarceration exception, considering the literal meaning of each term and avoiding interpretations that will render portions of a statute superfluous or inoperative. [13] ¶ 11 The phrase arising out of is very broad, general, and comprehensive. [14] In ordinary usage, it imports a concept of causation and is `ordinarily understood to mean originating from, incident to, or connected with the item in question.' [15] The other phrases in the exception—in connection with and results from—similarly connote a causal link between the injury and the government activity for which sovereign immunity has not been waived. Thus, any injury that is caused by or originates from incarceration in a place of legal confinement falls within the incarceration exception. ¶ 12 In their briefs before this court, both parties focused on the spatial scope of the incarceration exception. To this end, they concentrated their arguments on whether the verbally defined patch of concrete where the troopers told Peck to stand was a place of legal confinement. In so focusing their arguments, the parties have missed the forest for the trees. By concentrating on the meaning of the phrase place of legal confinement, the parties failed to consider the broad introductory phrase that retains governmental immunity for all injuries aris[ing] out of, in connection with, or result[ing] from incarceration in a place of legal confinement. This oversight conflicts with the principle of statutory interpretation that requires us to avoid interpretations that will render portions of a statute superfluous or inoperative. [16] ¶ 13 As we step back and look at the entire incarceration exception, [17] it is clear that it covers Peck's injury because there is a clear causal link between his injury and his incarceration in a place of legal confinement. Peck had been arrested, handcuffed, and asked to stand in front of the cruiser as he awaited imminent transportation to the county jail. In fact, Peck was standing outside of the police cruiser only because the arresting trooper needed to clear the back seat in order to transport Peck to the county jail. Peck's belligerence as he waited was the reason the trooper physically restrained him, and Peck's injury resulted from the restraint. Whether we refer to the police cruiser [18] or the county jail [19] as the place of legal confinement, the causal link between Peck's injury and his incarceration in a place of legal confinement is clear. ¶ 14 Defining the boundaries of the incarceration exception by focusing on the causal link between the injury and incarceration in a place of legal confinement is consistent with our precedent. For example, in Epting v. State, a prisoner escaped from a work release program and killed a woman. [20] Her children brought a negligence claim against the State. We concluded that their claim was barred by governmental immunity because the woman's death either arose out of the discretionary choice of placing the inmate in the work release program or arose out of his incarceration in the state prison. [21] Thus, in applying the term arises out of ... incarceration in a place of legal confinement, we focused on the causal connection between the injury and incarceration in a place of legal confinement, rather than focusing spatially on whether the actual injury occurred within a place of legal confinement. ¶ 15 The court of appeals adopted a similar approach in both Kirk v. State [22] and Pace v. St. George City Police Department. [23] In Kirk, a prison inmate escaped while being transported to the Hall of Justice to attend court proceedings. [24] In the course of his escape, he shot an unarmed bailiff, who then brought a negligence suit against the State for his injuries. Focusing on the causal connection between the injury and incarceration in a place of legal confinement, the court of appeals held that governmental immunity applied because the injury [was] caused by an incarcerated person under the control of the State. [25] Similarly, in Pace, the court of appeals held that governmental immunity applied to a suicide death that occurred in the police department bathroom because the death occurred `in connection with' the individual's incarceration in a `place of legal confinement.' [26] ¶ 16 Due to the clear causal link between Peck's injury and his imminent transportation in a police cruiser to the county jail, we hold that his claim is barred by section 63-30-10(10) because his injury arose out of, in connection with, or resulted from incarceration in a place of legal confinement. We leave for another day whether a trooper or a police officer may create a place of legal confinement by verbally defining physical boundaries and directing an individual to stand within those boundaries.",analysis
+409,2167219,1,1,"The tragic and inexcusable death of Brandon Malstrom arose from what otherwise was a happy occasion for Brandon and his friends. On November 9, 2002, the University of Maryland football team won its Homecoming game against Atlantic Coast Conference rival North Carolina State. That meant it was party time. Brandon spent the day with his brother, Bill. Around 11:30 in the evening, the two of them, along with their friends, Brandon Conheim, Matt Swope, Matt Mitchell, and Paul Speakman, ended up at two parties on Dickerson Avenue, in College Park, a mile or so from the campus. The parties, which had begun around 9:30 that evening, were taking place in adjoining houses and back yards, and seemed to be winding down by the time the group arrived. Another group, consisting of Schlamp, Quan Davis, Robert Fournier, Jacob Adams, and Kenny Brock, who were neither students at the University nor invited guests, were also at the parties. Schlamp, Adams, and Fournier had spent the afternoon at Fournier's house watching the football game on television and drinking beer. Fournier said that he and Schlamp had consumed between 15 and 20 bottles of beer during the day. Adams stated that he had consumed eight or nine bottles of beer. At some point, they made arrangements to go to College Park that evening to join one or more of the parties. On their way, they stopped at a liquor store to replenish their supply, where they encountered Davis and three of his friends. They informed Davis that they were headed to a party and made arrangements for Davis to join them. The Schlamp and Davis groups joined up in College Park and proceeded first to the home of Fournier's friend, Patrick. [2] Some time around midnight, when they finished partying there, they found their way to the parties on Dickerson Avenue. Most of the Schlamp group, including Schlamp, were drunk. Adams testified that, in addition to the beer, Schlamp had begun drinking grain alcohol. There was evidence that the Schlamp group, and Schlamp in particular, acted in a boorish, obnoxious manner, deliberately instigating verbal confrontations with other people at the Dickerson Avenue parties. Scott Ehrlich, who hosted one of the parties at his home, characterized the scene as basically just typical college scene that you might see people acting tough, and one person acting tough, another person acting tough, sort of trying to hold their own ground. There was no evidence of any fights, prior to the encounter during which Brandon was stabbed, because the people confronted either backed off or a third person, often Ehrlich, intervened. Matt Swope confirmed Ehrlich's observation, reciting that, although there was a lot of aggressive talking, and threatening, there was no attacking, or fights. Bill Malstrom said essentially the same thing — that there were a lot of verbal confrontations and that, when someone got in my brother's face, Ehrlich diffused the situation. One particular confrontation that was mentioned occurred when Davis, while in Ehrlich's house, allegedly rubbed against a female guest in a way that made her uncomfortable and one or more of the men demanded that he leave. Most of the 20 to 30 people remaining at the parties seemed to be in the back yards. At one point, Davis showed Adams a knife he was carrying. Adams described it as a Rambo knife — big and sharp, with a serrated edge. Eventually, apparently on the heels of the confrontation with Davis, Ehrlich asked everyone to leave, and, he said, they did. Brandon and his group left the back yard and congregated for a time in the street. While there, Schlamp, with his group in tow, approached Brandon's group, accused them of taking either Schlamp's or Davis's cell phone, and demanded its return or that they empty their pockets for inspection. Brandon responded that no one had the cell phone (and, indeed, no one did), and refused to empty his pockets or turn over his own cell phone. At that time, Schlamp pushed Brandon — Bill Malstrom referred to it as a real weak swing — whereupon Fournier grabbed Brandon from behind to immobilize him. Bill Malstrom and Conheim attempted to pull Fournier off of Brandon. It was allegedly during that encounter, which everyone agreed lasted less than thirty seconds, that Brandon was stabbed. Although Davis was present, and Brandon Conheim said that he seemed to be favoring his hip like that, reaching for something, no one saw the stabbing; no one could say who did it. No one was really sure that it occurred during that encounter. As noted, both Schlamp and Davis were acquitted of murder and first degree assault. While this brief fracas was taking place, a police car turned into the street, Matt Mitchell yelled police, and most of the people scattered. No one knew at that point that Brandon had been stabbed. Conheim and Mitchell told the officer that Schlamp was the one who started the incident, and Schlamp was taken into custody. With the arrival of the police, some of Brandon's group returned, but no one could find Brandon. Eventually, he was discovered in Ehrlich's back yard, on the ground, mortally wounded. He was taken to the hospital, where, despite four or five hours of rescusitative effort, he died. [3]",facts
+410,4540995,1,4,"The respondent is publicly reprimanded. The respondent is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7‑114 and 7‑115 (Reissue 2012) and Neb. Ct. R. §§ 3‑310(P) (rev. 2019) and 3‑323(B) of the disciplinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court. Judgment of public reprimand.",conclusion
+411,853589,1,1,"The facts most favorable to the verdict indicate that on March 5, 1995, Defendant Leslie Hauk and her live-in companion, Daniel Sturgeon, brutally beat James Coffman with a crow bar and stabbed him numerous times with a kitchen knife. Defendant and Sturgeon stole as much as $1,500 from Coffman both after he died and during the course of time they spent drinking with and beating Coffman prior to killing him. After Coffman was dead, Sturgeon gave Defendant $389 and told her to get rid of the knife. Defendant left the crime scene, crashed her car soon thereafter, and was arrested for driving while intoxicated. Prior to suspecting her connection to Coffman's murder, the police found the kitchen knife in Defendant's car and credited her commissary account with the $389. Gregory Anderson, a friend of Sturgeon's, testified that on March 6, 1995, he helped Sturgeon carry Coffman's body out of the house and they placed it in the trunk of Coffman's car. Two days later, Coffman's son located Coffman's car and called for a police officer; the two of them opened the trunk and discovered Coffman's body. On March 13, 1995, the State charged Defendant with Murder, [1] Felony Murder, [2] and Robbery, [3] a class B felony. A jury found Defendant guilty of all three charges, but the trial court merged the Murder and Felony Murder convictions, sentencing Defendant to 55 years for Murder and 20 years for Robbery, the sentences to be served concurrently. Sturgeon was also tried, convicted, and sentenced for his part in this matter. See Sturgeon v. State, 719 N.E.2d 1173 (Ind. 1999). Additional facts will be provided as necessary.",facts
+412,2585410,2,3,"Finally, appellant contends that there was insufficient evidence adduced at trial to support the jury verdict. Our standard of review is whether substantial evidence supports the verdict. See Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993); Bally's Grand Employees' Credit Union v. Wallen, 105 Nev. 553, 555-56, 779 P.2d 956, 957 (1989). Substantial evidence is that which `a reasonable mind might accept as adequate to support a conclusion.' Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998) (quoting State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted))). Where, as in this case, there is conflicting evidence, this court is not free to weigh the evidence, and all inferences must be drawn in favor of the prevailing party. Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530, 532 (1980). Despite the conflicting evidence noted by appellant, there was evidence presented in the form of Naomi's testimony that appellant did in fact engage in sexual activity with her and that she did not consent. The victim testified that she did not try to get away during the incident because she was scared, that she told appellant no in response to his invitation to have oral sex, and that she did not move or otherwise participate during intercourse. Drawing all inferences in the victim's favor, we conclude that a reasonable mind could accept this evidence to support the conclusion that appellant engaged in sexual activity with the victim without her consent. Because there was substantial evidence from the victim's testimony that she was an unwilling participant, we need not decide the issue of whether her consent was presumed. Accordingly, we affirm the jury verdict.",sufficiency of the evidence
+413,1135679,2,1,"The DHS asserts that HRS § 587-82 (1985 and Supp.1992) divests the family court of jurisdiction to issue orders concerning funds not in the DHS's budget. HRS § 587-82 provides: Fiscal responsibility. The court, the department, or other authorized agency shall provide only the care, service, treatment, or support, or the payment for care, service, treatment, or support, as is set forth in the budget of the court, the department, or authorized agency and is authorized by law. HRS § 587-82 does not limit the jurisdiction of the court. Moreover, it is specious to argue that the DHS can control the court's jurisdiction over certain matters by simply rearranging its budget to avoid statutorily imposed responsibilities to care for foster children. Once the court is invested with jurisdiction pursuant to HRS § 587-11 (Supp.1992), it may issue appropriate orders to protect the interests of a foster child. The court's order in the instant case was clearly within its jurisdiction, notwithstanding our opinion that the family court erred.",jurisdiction
+414,4540972,1,2,"Having determined that Price’s assignments of error are either without merit or cannot be considered in this appeal, we therefore affirm Price’s convictions and sentences. Affirmed.",conclusion
+415,1118951,1,1,"Appellant contends that there was evidence before the court showing that it accepted appellees' offer to terminate the lease and that consequently it was reversible error to find otherwise. We agree with appellant that there was some evidence of acceptance of the offer to terminate the lease; however, we hold that such does not warrant a reversal of the judgment. In this case, there is conflicting evidence as to whether or not the lease was terminated. The evidence presented by appellant was that, during February 1985, Mr. Innes orally advised Mr. Baeder that appellant accepted the offer to terminate the lease. The evidence presented by appellees is that they did not receive an acceptance of their offer; they continued to receive lease payments through May 1985; and they deducted the June lease payment from other moneys inadvertently sent to them, without objection by appellant. This Court has frequently stated its standard for appellate review of conflicting evidence to be: On appeal, we accept the evidence presented by the prevailing party as true, leaving out of consideration entirely conflicting evidence presented by the unsuccessful party, giving every favorable inference that may fairly and reasonably be drawn from the successful party's evidence. Wangler v. Federer, Wyo., 714 P.2d 1209, 1216-17 (1986), citing Matter of Abas, Wyo., 701 P.2d 1153 (1985), and Stockton v. Sowerwine, Wyo., 690 P.2d 1202 (1984). We are, therefore, obliged in this case to disregard appellant's conflicting evidence that it accepted appellees' offer to terminate the lease. Giving every favorable inference that may be fairly and reasonably drawn from appellees' evidence, we must accept the finding of the trial court that there was no termination of the lease agreement and that appellees were entitled to the unpaid lease payments. Appellant also contends that the court erred by requiring it to pay for the new price of the computer and lease payments after the lease terminated. This contention is without merit. In the absence of a sale to appellant, appellees, pursuant to the terms of the lease, were the owners and entitled to possession of the leased equipment upon termination of the lease, regardless of how or when termination took place. In any event, judgment was entered against appellant for payment of the value of the equipment which defendant failed to return, not the new price of the computer.",sufficiency of the evidence
+416,4566822,1,4,"1. Deposition Sanctions (a) Standard of Review [1] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon will not be reversed in the absence of an abuse of discretion. 6 6 State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020). - 445 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 (b) Discussion Devers argues that the district court abused its discretion when it terminated Milton’s deposition and denied Devers’ motion in limine to exclude her as a witness. He contends that there are no rules governing depositions that allow a party to bring the trial judge to terminate the deposition. He further contends that because Milton refused to testify at the deposition, the court abused its discretion in denying the motion in limine. [2,3] Devers’ first argument—concerning the lack of discovery rules allowing a judge to terminate a deposition—was not raised to the district court. Appellate courts do not generally consider arguments and theories raised for the first time on appeal. 7 And, as noted by the State, when the district court terminated the deposition, Devers failed to object. Failure to make a timely objection waives the right to assert prejudicial error on appeal. 8 Because Devers failed to object to the termination of the deposition and did not raise the termination argument during his motion in limine hearing, we will not address this argument. Regarding Devers’ second argument, the district court entered an order in compliance with its statutory powers. Pursuant to a criminal discovery statute, Devers filed a motion to take Milton’s deposition. 9 During the deposition, Milton refused to answer questions over concerns for her safety and the district court terminated the deposition. Under another criminal discovery statute, when a party fails to comply with criminal discovery procedures, including the statute authorizing depositions, “the court may” 10 either “[p]rohibit the party from calling a witness not disclosed or introducing in evidence the 7 State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). 8 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). 9 See Neb. Rev. Stat. § 29-1917 (Reissue 2016). 10 Neb. Rev. Stat. § 29-1919 (Reissue 2016). - 446 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 material not disclosed” 11 or “[e]nter such other order as it deems just under the circumstances.” 12 In the district court’s order, it specifically stated that “Devers [was] free to file an additional motion to take [Milton’s] deposition . . . .” Because the court’s order was entered in November 2018 and trial occurred in March 2019, significant time remained in which to depose Milton again. Under these circumstances, we agree with the district court that authorizing a second deposition was a sufficient remedy. Accordingly, the district court did not abuse its discretion in denying Devers’ motion in limine. 2. Relevancy and Unfair Prejudice (a) Standard of Review [4-6] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. 13 A trial court’s determination of the relevancy and admissibility of evidence must be upheld in the absence of an abuse of discretion. 14 Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court. 15 (b) Discussion Because both of Devers’ assignments asserting error in the admission of evidence are based on relevancy and unfair prejudice, we recall general applicable principles. [7,8] Evidence that is irrelevant is inadmissible. 16 “Relevant evidence means evidence having any tendency to make the 11 § 29-1919(3). 12 § 29-1919(4). 13 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). 14 State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). 15 State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019). 16 Neb. Rev. Stat. § 27-402 (Reissue 2016); State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019). - 447 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 existence of any fact that is of consequence to the deter­ mination of the action more probable or less probable than it would be without the evidence.” 17 Relevancy requires only that the probative value be something more than nothing. 18 [9-11] Under Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 19 Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 20 Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into declaring guilt on a ground different from proof specific to the offense charged, commonly on an emotional basis. 21 (i) Controlled Substances Devers makes two arguments concerning the admission of controlled substances seized from the search of his home. Neither is persuasive. First, he argues that evidence of methamphetamine, synthetic marijuana, and packaging materials had little to no probative value. Second, he argues that the minimal probative value of the drug evidence was substantially outweighed by the danger that the jury believed him to be a “trafficker of dangerous narcotics.” 22 And, he asserts, the court’s attempt to cure the problem by means of a contemporaneous limiting instruction did not encompass all of the target evidence, and consequently, he “suffered the full prejudicial effects of this wrongly admitted evidence.” 23 We disagree. 17 Neb. Rev. Stat. § 27-401 (Reissue 2016). 18 State v. Brown, supra note 16. 19 Id. 20 Id. 21 Id. 22 Brief for appellant at 19. 23 Id. at 20. - 448 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 [12,13] Contrary to Devers’ first argument, the admission of the testimony regarding controlled substances was relevant to corroborate the testimony of Milton, Stockdale, and Sullivan. We have recognized that evidence may be relevant because it corroborates other testimony. 24 This follows from a broader principle: The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing. 25 Hanson testified that during the search of Devers’ home, law enforcement seized synthetic marijuana, methamphetamine, and packaging materials. Milton testified that on the night of the incident, she purchased marijuana from Devers. Stockdale testified that during his conversations with Devers, Devers stated that his house was searched and that drugs were found. And Devers told Sullivan that law enforcement seized “K-2” from Devers’ home. The evidence was relevant to corroborate the testimony of an eyewitness and jailhouse informants. In other words, the evidence had substantial probative value to corroborate both Milton’s testimony that she was with Devers the night of the incident and Devers’ statements to Stockdale and Sullivan about the incident. [14,15] Nor was the evidence’s probative value substantially outweighed by unfair prejudice. Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party. 26 But the court’s limiting instruction restricted the use of the evidence only to corroborate the testimony of Milton, Stockdale, and Sullivan. Although the court’s initial limiting instruction, given contemporaneously with Hanson’s testimony, referred only to evidence of “marijuana,” the court’s final jury instructions broadly encompassed the “evidence of seized controlled substances located at [Devers’ home].” In construing an individual jury instruction, the instruction should not be judged in artificial isolation but must be viewed 24 See State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). 25 Id. 26 State v. Thomas, supra note 15. - 449 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 in the context of the overall charge to the jury considered as a whole. 27 Here, the situation resembled that in another case where we said, “The district court’s limiting instruction restricted the jury’s use of the evidence and minimized the tendency to suggest a decision on an improper basis.” 28 Based on the limiting instructions, taken as whole, we cannot say that the district court abused its discretion in admitting the evidence of controlled substances. (ii) Firearm Devers makes two arguments concerning the admission of the firearm seized at Benson Towers. First, he argues that the firearm evidence had minimal probative value and was substantially outweighed by the danger of unfair prejudice, because “the State introduced little, if any, evidence establishing a direct connection between Devers and the handgun . . . at the Benson Towers.” 29 Second, he argues that the prosecutor elicited testimony from Hanson about “‘multiple packages of marijuana’” found in the safe that served only to confuse the issues and unfairly prejudice Devers. 30 To support the first argument, Devers relies upon State v. Sellers. 31 There, the defendant argued that the district court should have admitted the evidence of a handgun seized during the search of the victim. After unsuccessful attempts to serve the victim with a subpoena, the victim was arrested. At the home where the arrest occurred, law enforcement conducted a search and seized several items, including firearms. The district court granted the State’s motion in limine to exclude admission of firearm evidence. On appeal, we reasoned that the probative value of the firearms seized at the arrest was minimal. 27 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). 28 See State v. Perrigo, 244 Neb. 990, 1001, 510 N.W.2d 304, 311 (1994). 29 Brief for appellant at 28. 30 Id. 31 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). - 450 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 There was no proof linking the victim to the handgun, and law enforcement personnel testified that they could not place the handgun as having been in the victim’s possession. We concluded that the minimal probative value was outweighed by the danger of prejudice. Here, however, the State relied upon circumstantial evidence to connect Devers to the firearm seized at Benson Towers. Milton stated that after the incident, Devers drove Goynes to Lemon’s house and that Devers told Goynes that Devers would get rid of something for Goynes. It was known that Devers spent a lot of time with family, including Kenvaughn. The next day, Chae picked up Kenvaughn and Shydale and took them to their mother’s home. Chae saw them wipe down a firearm with a T-shirt. Chae then drove Kenvaughn and Shydale to Benson Towers. Later that evening, Kenvaughn was at Devers’ home when law enforcement executed the search warrant. The following morning, law enforcement received a search warrant for an apartment with a family connection to Kenvaughn and Shydale. Law enforcement seized a handgun wrapped in a T-shirt. Milton described the handgun as black, Chae described the handgun as chrome and black, and Hanson stated that the ammunition found at Devers’ home could be fired by the handgun found at Benson Towers. [16] Devers contends that the circumstantial nature of the firearm evidence had minimal probative value and therefore prejudiced him. Circumstantial evidence is not inherently less probative than direct evidence. 32 Unlike the situation in Sellers, the temporal proximity from the shooting to the seizure of the firearm increased the probative value of the circumstantial evidence. 33 And, here, the evidence of the firearm was relevant to the crimes charged. We cannot say that the circumstantial evidence of the firearm was substantially outweighed by the danger of unfair prejudice. Accordingly, the 32 See State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020). 33 See State v. Sellers, supra note 31. - 451 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 district court did not abuse its discretion in admitting evidence of the firearm. [17] Regarding Devers’ second argument, assuming without deciding that admission of the statement about “multiple packages of marijuana” seized in the safe with the firearm was error, we conclude the error was harmless. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict surely would have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. 34 In the entirety of the trial, the challenged testimony represented only a single isolated statement. Here, the guilty verdicts were surely unattributable to this sole reference. Any error in admitting that evidence was harmless. 3. Sufficiency of Evidence (a) Standard of Review [18] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 35 (b) Discussion (i) Intent to Commit Robbery Devers argues that the jury could not have found him guilty of first degree felony murder, because there was insufficient 34 State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019). 35 State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020). - 452 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 evidence to support that Devers “‘intended that the crime be committed[,] or [Devers] knew that the other person intended to commit the crime[,] or [Devers] expected the other person to commit the crime.’” 36 He contends that Milton’s testimony was not credible because a security guard did not identify Devers as the driver of the vehicle and that video surveillance footage inside Reign Lounge “did not confirm many of Stockdale’s claims.” 37 This, however, merely invites us to pass on credibility or reweigh the evidence. We decline to do so. The evidence adduced at trial showed Devers knew Goynes intended to commit robbery. Because the testimony showed Devers turned Goynes on to the “lick,” refused to return to Reign Lounge while Goynes was gone, implicitly understood why Goynes left the vehicle, and waited for Goynes to return, there was sufficient evidence for the jury to find Devers intended, knew, or expected Goynes to commit the robbery. Viewed in the light most favorable to the prosecution, there was sufficient evidence for any rational trier of fact to find Devers guilty beyond a reasonable doubt. (ii) Intent to Use Firearm Devers argues that the jury could not have found him guilty of use of a firearm to commit a felony. He argues that Milton’s “evidence that Devers was present in the vehicle outside Reign Lounge such that he had an opportunity to know that Goynes both intended to rob LeFlore and intended to use a firearm to do so” 38 was insufficient to support his conviction. The record shows sufficient evidence that Devers knew Goynes intended to use a firearm to commit the robbery. 36 Brief for apellant at 38. 37 Id. at 39. 38 Id. - 453 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 Stockdale testified that Devers said, “‘I just didn’t think my little cousin stupid ass would kill him. . . . I told him to shoot if he act up, but damn.’” Milton agreed that when she was in the vehicle with Devers and Goynes, it was readily apparent that Goynes was armed with a firearm, and she testified that he “had it out the whole time.” This evidence alone is sufficient. [19] Based on Nebraska’s aiding and abetting statute, 39 the State argues an alternative theory that the reasoning in State v. McClain, 40 which in turn relies upon State v. Mantich, 41 applies here. In Mantich, we explained that “one who intentionally aids and abets the commission of a crime may be responsible not only for the intended crime, if it is in fact committed, but also for other crimes which are committed as a natural and probable consequence of the intended criminal act.” 42 There, we determined that using a firearm was a natural and probable consequence of kidnapping, robbing, and terrorizing the victim. And as an aider or abettor of the criminal acts, the defendant could properly be convicted of using a firearm to commit a felony “even if the jury believed that [the defendant] was unarmed.” 43 The same reasoning applies here. The record shows that the State prosecuted Devers as an aider and abettor. Devers intended to rob LeFlore, Goynes shot and robbed LeFlore, Devers aided Goynes by driving the vehicle, and LeFlore died of his wounds. Use of the firearm in the commission of the murder was a natural and probable consequence of the intended act of robbery. Considered in the light most favorable to the prosecution, the evidence was sufficient for any rational trier of fact to find Devers guilty. 39 See Neb. Rev. Stat. § 28-206 (Reissue 2016). 40 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013). 41 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). 42 Id. at 327, 543 N.W.2d at 193. 43 Id. at 328, 543 N.W.2d at 193. - 454 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 4. Ineffective Assistance of Counsel (a) Standard of Review [20] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 44 (b) Legal Framework [21,22] When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective perform­ ance which is known to the defendant or is apparent from the record. 45 Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. 46 [23,24] In order to know whether the record is insufficient to address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough particularity (1) for an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court. 47 When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. 48 44 State v. Lierman, supra note 13. 45 Id. 46 Id. 47 Id. 48 Id. - 455 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 (c) Discussion (i) Limiting Instruction Devers argues that trial counsel was ineffective for failing to object to the allegedly deficient limiting instruction that misdescribed the evidence of controlled substances. He contends that at trial, the district court limited the evidence to “marijuana,” but that Hanson’s testimony included evidence of synthetic marijuana, methamphetamine, and packing materials. The claim is sufficiently alleged, and the record is sufficient to review it. Regarding the admission of evidence of controlled substances, the record shows that the district court gave two limiting instructions. While the original instruction restricted the jury to consider only the evidence of “marijuana” to corroborate witness testimony, the final jury instruction encompassed evidence of all controlled substances. As we previously determined, the limiting instructions, taken as a whole, removed any prejudice regarding the additional controlled substances. We conclude that this argument is without merit. (ii) Motion to Dismiss Devers argues that trial counsel erred in failing to present evidence that he asserted his constitutional right to a speedy trial early and often in communications with his counsel. Devers further argues that counsel was ineffective for failing to file an interlocutory appeal from the denial of his motion to dismiss. We agree with the State that this claim is sufficiently alleged and that the record is sufficient to review it. Devers’ first argument addresses only a purported failure to present evidence on his constitutional speedy trial claim. The State argues that counsel was not ineffective for failing to produce evidence to support Devers’ motion, because Devers did not argue to the district court that he asserted his constitutional right early and often in communications with counsel. 49 Even if we assume that the State’s argument 49 See Johnston v. Mahally, 348 F. Supp. 3d 417 (E.D. Pa. 2018). - 456 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 is incorrect, Devers was not prejudiced. The district court analyzed Devers’ constitutional speedy trial claim and found no unreasonable delay or prejudice. We agree and find that Devers’ trial counsel’s actions did not prejudice Devers; thus, his claim lacks merit. Devers’ second argument also fails. As the U.S. Supreme Court has stated, “application of the principles articulated in [Cohen v. Beneficial Loan Corp. 50] and [Abney v. United States 51] to [constitutional] speedy trial claims compels the conclusion that such claims are not appealable before trial.” 52 Because denial of a motion to dismiss based upon a constitutional speedy trial claim is not a final, appealable order, Devers’ argument lacks merit. (iii) Corrections Officer Hall Devers argues trial counsel was ineffective for failing to present testimony from “Corrections Officer Hall,” who would have testified that “upon learning that Stockdale would be moved into [Devers’] cell, Devers became irate due to his belief . . . Stockdale would use the opportunity to fabricate incriminating statements by Devers in an effort to obtain leniency,” 53 and that Corrections Officer Hall informed Devers he would have to lock Devers down because Devers was so upset about Stockdale’s being moved into his cell. The claim is sufficiently alleged, and the record is sufficient to review part of the claim. Devers’ argument that Corrections Officer Hall would testify that Devers believed that Stockdale would fabricate incriminating evidence is without merit. First, Corrections Officer 50 Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). 51 Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). 52 United States v. MacDonald, 435 U.S. 850, 861, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978). 53 Brief for appellant at 46. - 457 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. DEVERS Cite as 306 Neb. 429 Hall would not be able to testify to Devers’ personal beliefs, pursuant to Neb. Rev. Stat. § 27-603 (Reissue 2016). And any statements that Devers made to Corrections Officer Hall would be inadmissible hearsay, pursuant to Neb. Rev. Stat. § 27-801 (Reissue 2016). Accordingly, the claim is without merit. The record is insufficient to address the claims concerning observations that Corrections Officer Hall made when Devers received the news that Stockdale would be his cellmate and concerning any statements Corrections Officer Hall made to Devers. (iv) Remaining Claims The State concedes that the remaining claims of ineffective assistance of counsel, not addressed above, are sufficiently alleged, but the record is insufficient to review them. We need not address them further.",analysis
+417,2655264,3,1,"The circuit court lacked jurisdiction to award Respondent attorneys’ fees subsequent to Petitioners’ filing of the notice of appeal because Respondent failed to file a motion for the award of fees. The filing of motions for the award of attorneys’ fees and costs is governed by Hawai#i Rules of Civil Procedure (HRCP) Rule 54(d)(2): Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial. . . . Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of an appealable order or judgment; must specify the judgment and the statute, rule, or other grounds entitling 11  NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. (Emphasis added). Additionally, pursuant to HRCP Rule 7(b), a motion may be made orally during a hearing: An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (Emphasis added). In construing statutes or rules, “‘laws in pari materia, or upon the same subject matter, shall be construed with reference to each other.’” Aloha Care v. Ito, 126 Hawai#i 326, 349, 271 P.3d 621, 644 (2012) (alterations omitted) (quoting HRS § 1-16 (1993)). And, “[w]hen faced with ‘a plainly irreconcilable conflict between a general and a specific statute concerning the same subject matter,’ this court invariably favors the specific.” Kinkaid v. Bd. of Review of City & Cnty. of Honolulu, 106 Hawai#i 318, 323, 104 P.3d 905, 910 (2004) (some internal quotation marks omitted) (quoting Metcalf v. Vol. Emps. Ben. Ass’n of Haw., 99 Hawai#i 53, 59, 52 P.3d 823, 829 (2002)). Applying this principle to HRCP Rules 7(b) and 54(d)(2)(A), it is apparent that HRCP Rule 54(d)(2)(A) sets specific requirements for the filing and serving of motions for attorney fees and is the controlling rule. Pursuant to HRCP Rule 54(d)(2)(A), a motion for attorneys’ fees must be filed and served no later than 12  NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  14 days after entry of the judgment, must specify the judgment and the statute, rule, or other grounds entitling the award, and must state the amount or provide a fair estimate of the amount sought. In Respondent’s opposition to Petitioners’ motion for a stay, and during argument, Respondent stressed that he “had not yet” and that he would be filing a motion for attorneys’ fees and costs. Respondent himself did not intend his brief justifications for the award of attorneys’ fees in his March 5, 2012 memorandum in opposition to Petitioners’ motion for a stay, or his discussion of attorneys’ fees and costs during the March 13, 2012 hearing, to constitute the requisite “motion” for attorneys’ fees and costs. Instead, Respondent was simply presenting arguments to justify the inclusion of attorneys’ fees in the calculation of a supersedeas bond. Additionally, Respondent’s March 23, 2012 memorandum regarding the award of attorneys’ fees and costs cannot constitute a motion of attorneys’ fees and costs because it was filed after the circuit court’s March 14, 2012 minute order awarding attorneys’ fees and costs to Respondent. Respondent’s memorandum in opposition to Petitioners’ motion for a stay and his arguments during the March 13, 2012 hearing also fail to meet HRCP Rule 54(d)(2)(A)’s requirements 13  NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  for a motion for attorneys’ fees and costs. Respondent’s memorandum was filed four days prior to the court’s entry of judgment on March 9, 2012; therefore it could not identify the judgment on which the award was based. Respondent’s opposition also identified HRS § 667-33(c) as the grounds for the award and made no mention of assumpsit, which was the basis of the circuit court’s award. During the March 13, 2012 hearing, Respondent argued that the award of attorneys’ fees and costs was justified under the theory of assumpsit, but Respondent failed to “state the amount or provide a fair estimate of the amount sought,” as required under HRCP Rule 54(d)(2)(A). Respondent also failed to identify the judgment on which the award of attorneys’ fees and costs was based. Because Respondent did not file a timely motion for attorneys’ fees and costs prior to the filing of the notice of appeal, the circuit court was without jurisdiction to enter an award of attorneys’ fees and costs subsequent to the filing of the notice of appeal. “The notice of appeal shall be deemed to appeal the disposition of all post-judgment motions that are timely filed after entry of the judgment or order.” HRAP Rule 4(a)(3). “Generally, the filing of a notice of appeal divests the [circuit] court of jurisdiction over the appealed case.” TSA Int’l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 265, 990 P.2d 713, 14  NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER  735 (1999). The circuit court only “retains jurisdiction to determine matters collateral or incidental to the judgment, and may act in aid of the appeal.” Id. Therefore, the circuit court’s April 27, 2012 order awarding attorneys’ fees and costs to Respondent is void for lack of jurisdiction.",jurisdiction
+418,2820082,1,1,"Following the filing of a partition of real estate action, the parties stipulated to a sale by public auction. After the sale, Gary Labenz and Sandra Labenz, husband and wife (collectively the Labenzes), sought confirmation of the sale and asked the court to approve the payment of costs, fees, and expenses. The court awarded the Labenzes’ counsel $5,224 pursuant to the stipulation between the parties regarding the sale of the property. The Labenzes appeal. We affirm.",introduction
+419,4550942,1,2,"The conviction for aggravated battery is reversed, and the case is remanded for a new trial on that charge. The sentence is vacated and the case is remanded for resentencing in accordance with this decision. Judgment of the Court of Appeals affirming the district court is affirmed in part, reversed in part, and vacated in part. Judgment of the district court is affirmed in part, reversed in part, and vacated in part, and the case is remanded with directions. 18 HENRY W. GREEN, JR., J., assigned.1 STEVE LEBEN, J., assigned.2 ________________________ 1 REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 115,990 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson. 2 REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 115,990 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 19",conclusion
+420,4580940,1,2,"Where, as here, a trial court enters special findings and conclusions according to Indiana Trial Rule 52(A), we apply a two-tiered standard of review. Marion Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind. 2012). First, we determine whether the evidence supports the findings and if so, we next determine whether the findings support the Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 6 of 22 judgment. Id. We neither reweigh evidence nor reassess witness credibility; we give deference to the trial court’s factual findings as long as they are supported by evidence and any legitimate inferences therefrom. Id. at 216-17. We will only set aside the findings or judgment of the trial court if they are clearly erroneous. Id. at 216. Discussion and Decision The basic issue presented in this case is not whether Indiana’s tax sale notice statute is constitutional. As we discuss below, it is not our duty to prescribe the form of service the government should follow when certified mail is returned as undeliverable. Rather, we must ensure the basic requirements of due process are met in a particular case. Whether a county auditor could or should search its own records for a better tax sale notice address depends on the information revealed to him or her when mail is returned. Necessarily, it follows that these determinations depend on the facts and circumstances of each case. Here, the parties have understandably challenged the constitutional fortitude of Indiana’s tax sale notice statute. XL Investment and the Auditor argue that the current notice statute complies with constitutional due process requirements and, because the Auditor followed the statute, Trust 4340 was placed on proper notice of the tax sale and cannot now set aside the tax deed. Trust 4340, meanwhile, argues that it received insufficient notice and the General Assembly may not legislate away a due process requirement that an auditor must search its internal records when mail is returned. It is wholly unclear whether the Court of Appeals opinion below actually declared the tax sale notice statute unconstitutional or if the Auditor’s actions in this case simply failed to meet constitutional muster. See Indiana Land Trust, Co., 130 N.E.3d at 637, trans. granted, opinion vacated (noting “regardless of the language of Indiana Code section 6-1.1-24-4, the Auditor is charged with knowledge of the contents of its records and is constitutionally obligated to search those records” but observing “[t]he General Assembly does not have the authority to codify away Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 7 of 22 constitutional protections” which included an auditor’s search of its own records); Indiana Land Trust, Co. v. XL Investment Properties, LLC, 134 N.E.3d 439, 441 (Ind. Ct. App. 2019), on reh’g, vacated (finding the auditor’s office, as an agency of the state, could adequately represent the State’s position in defending the constitutionality of the statute). Observing the “longstanding principle of constitutional avoidance” that weighs against deciding constitutional questions not absolutely necessary to a merits disposition, we find a narrower path to resolution of this case. CitiMortgage, Inc. v. Barabas, 975 N.E.2d 805, 818 (Ind. 2012) (citing Snyder v. King, 958 N.E.2d 764, 768 (Ind. 2011)). Rather than weigh in on the constitutionality of the underlying statute, we will instead focus on whether the Auditor’s actions complied with minimal due process standards. Below, we explore what the Due Process Clause of the Fourteenth Amendment requires, the structure of Indiana’s tax sale notice statute, and the extent to which the Auditor met minimal notice requirements. Finding that the Auditor complied with due process standards, we affirm the trial court’s denial of Trust 4340’s motion to set aside the tax deed for Lot 2. 4
+Amendment sets minimum notice standards for tax sales of delinquent properties. It is an “elementary and fundamental requirement” of the Due Process Clause of the Fourteenth Amendment that before it institutes an action to sell a delinquent property, “a State must provide ‘notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 4 The Court of Appeals below found Trust 4340’s motion to set aside the tax deed was timely filed. Indiana Land Trust Co., 130 N.E.3d at 636. Assuming arguendo that this conclusion is correct, we need not reach this issue because of our determination that the Auditor complied with due process requirements. Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 8 of 22 2706, 2709, 77 L.Ed. 180 (1983) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). Put differently, a party that has a legally protected property interest in a particular parcel is “entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798. Both the Supreme Court of the United States and our own Court have weighed in on what these standards entail. We will review the relevant cases from each court below. A. The Supreme Court of the United States has held that while actual notice is not required, notice must be given in a manner desirous of actually informing the owner. The Supreme Court has addressed the contours of due process in several opinions over the years. For example, in Mennonite Bd. of Missions, a case with Hoosier origins, the Court considered a tax sale in which Elkhart County posted and published notice of a tax delinquency but failed to mail any notice to the mortgagee. The Court determined, inter alia, that publication and posting alone were unlikely to reach those with interest in the property. Id. at 799. The Court’s opinion concluded that personal service or mailed notice was required for a creditor with a legal interest in a property. Id. The Court wrote, “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Id. at 800 (emphasis in original). In Mennonite Bd. of Missions, then, a single letter of notice would have discharged the county’s constitutional obligation to give notice to the party with a legal interest in the property. Id. More recently in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), the Supreme Court confronted an issue not unlike the one our Court faces today. There, a property owner became delinquent on property taxes after he got divorced and moved out of his marital home. Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 9 of 22 The government sent a certified letter to his property to notify the owner of an impending tax sale, but the letter was returned unclaimed. The government made no additional attempts to notify the owner other than publishing notice of the sale in a local newspaper. The property was eventually sold, and the owner was only notified when the purchaser delivered an unlawful detainer notice to the owner’s daughter at the property. Id. at 223-24, 126 S.Ct. at 1712-13. The owner filed suit alleging the government failed to give him sufficient notice of the tax sale in violation of the Due Process Clause of the Fourteenth Amendment. The issue presented to the Supreme Court was framed as “whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner’s property.” Id. at 223, 126 S.Ct. at 1712. Under the circumstances presented in Jones, the Supreme Court answered this question in the affirmative, finding “someone who actually wanted to alert [the property owner] that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done.” Id. at 238, 126 S.Ct. at 1721. The Jones Court made several foundational observations to reach its result. First, the Due Process Clause of the Fourteenth Amendment requires the government to provide “notice and opportunity for hearing appropriate to the nature of the case.” Id. at 223, 126 S.Ct. at 1712 (quoting Mullane, 339 U.S. at 313, 70 S.Ct. at 652). Second, “actual notice” is not required by due process. Id. at 225, 126 S.Ct. at 1713. Rather, due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.” Id., 126 S.Ct. at 1713-14 (quoting Mullane, 339 U.S. at 314, 70 S.Ct. at 652). Third, to assess the adequacy of a particular form of notice, a Court must balance the interest of the State against the individual interest sought to be protected by the Fourteenth Amendment. Id. at 229, 126 S.Ct. at 1715 (quotations omitted). So “when notice is a person’s due … [t]he means Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 10 of 22 employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. (quoting Mullane, 339 U.S. at 315, 70 S.Ct. at 652). Applying the facts of Jones to this framework, the Court wrote that someone desirous of actually informing a property owner that his house was subject to a tax sale would surely take “additional reasonable steps” to give notice if a mailing were returned. Id., 126 S.Ct. at 1716. Because the government in Jones did nothing when the certified letter was returned as unclaimed, the Supreme Court observed that the government “should have taken additional reasonable steps to notify [the landowner], if practicable to do so.” Id. at 234, 126 S.Ct. at 1718. The Jones Court stopped short, however, of prescribing any particular type or form of service. Id. (citing Greene v. Lindsey, 456 U.S. 444, 455, n.9, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982)). It followed, then, that “if there were no reasonable additional steps the government could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing.” Id. Perhaps stated differently, the Supreme Court concluded the “reasonable additional steps” that must be taken when a certified letter is returned “depends upon what the new information reveals.” Id. In the case of a certified letter returned as unclaimed, the Court posited that one viable option would have been for the government to send another letter via regular mail. Id., 126 S.Ct. at 1718-19. Another practical option would have been for the government to post notice on the door of the property. Id. at 235, 126 S.Ct. at 1719. In the Court’s view, either of these options would increase the likelihood the owner would be notified of the impending tax sale on his property. Id. Particularly relevant to today’s decision, the Supreme Court addressed the landowner’s argument that the government should have searched either the phone book or “other government records” to reveal his new address. Id. at 235-36, 126 S.Ct. at 1719. But the Supreme Court did “not believe the government was required to go this far.” Id. at 236, 126 S.Ct. at 1719. “An open-ended search for a new address—especially when the State obligates the taxpayer to keep his address updated with the tax Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 11 of 22 collector[ ]—imposes burdens on the State significantly greater than the several relatively easy options” discussed above. Id. B. Our Court’s decisions echo the findings of the Supreme Court and evaluate the adequacy of notice based on the facts and circumstances of each case. Our own Court has had the opportunity to review Jones under factually similar circumstances in Sawmill Creek, 964 N.E.2d at 213. In that case, the property owner’s business name was incorrectly listed as “Saw Creek” instead of “Sawmill Creek” on several documents filed with the government. Id. at 214. When the property owner moved operations, addresses were updated for Sawmill Creek in the auditor’s system, but not for the “Saw Creek” entity used on the property documents. Id. at 215. The property became delinquent. Id. The county auditor sent a pre-sale notice via certified mail to the address on file for “Saw Creek,” but the notice was returned as ”NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.” Id. The auditor published notice in the newspaper, on its website, and on a list posted outside of the county clerk’s office. Id. After the property was sold, the auditor employed a title company to conduct additional research on the property, but the title company could not locate a “Saw Creek” business entity. Id. Two post-sale notices—one via certified mail and one via first-class mail—were again sent to the address on file, but both mailings were returned as undeliverable. Id. Only when the new property owner’s “for sale” signs appeared on the property did the original owner become aware of the sale and sued to set aside the tax deed. Id. at 216. Applying the analytical framework of Jones referenced above, our Court found the county auditor satisfied due process requirements because, under the circumstances of that case, “the [a]uditor’s actions were reasonably calculated to provide notice to [the landowner].” Id. at 221. Observing “every fact relevant to whether the [a]uditor acted or failed to act ‘as one desirous of actually informing’ [the owner] of the pending tax sale must be considered,” id. at 219, we found that after the certified letter Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 12 of 22 was returned as undeliverable, it would have been unreasonable for the auditor to re-send the same notice via first-class mail. Id. at 220. We also observed that posting notice on bare, unimproved land was not practical. Id. at 221. Ultimately, we were satisfied that the auditor took the required “additional reasonable steps” by engaging a title search company to search government records and the phonebook for additional addresses. Id. Our Court again examined Jones in the case M&M Inv. Group, LLC v. Ahlemeyer Farms, Inc., 994 N.E.2d 1108 (Ind. 2013). Though the facts and procedure of that case are not particularly relevant to today’s decision, our Court’s opinion carefully reviewed the structure and history of Indiana’s tax sale statutes and the decisional law interpreting them. Id. at 1112-17. Focusing on our prior decision in Elizondo v. Read, 588 N.E.2d 501 (Ind. 1992), our Court discussed whether auditors are required to search internal records for a better address when notice to the delinquent property owner is returned. We recounted that in Elizondo, “due process required the auditor to search his or her own records for alternate addresses for the owner of the property.” Id. at 1116 (citing Elizondo, 588 N.E.2d at 505). See also Griffin v. Munco Assoc., 589 N.E.2d 220 (Ind. 1992); Miller Reeder Co. v. Farmers State Bank of Wyatt, 588 N.E.2d 506 (Ind. 1992). After a review of Jones v. Flowers and then-existing statutes, however, we called Elizondo’s viability—at least with respect to property owners—into question. Id. at 1117. We determined that “the portion of Elizondo dealing with a property owner has been abrogated [by Jones v. Flowers] to the extent it implies an auditor may receive a notice back ‘unclaimed’ and then effectively sit on his or her hands and do nothing more…” Id. While “Jones would compel the additional steps of at least mailing the notice by first class mail, posting it on the front door, and/or addressing it to ‘occupant’” if notice to a property owner was returned to a county auditor, our opinion deferred to the legislature’s additional guidance codified at the time the opinion was handed down. Id. In M&M Investment Group, we further observed that notice requirements are different depending on the class of interest at stake. Indiana Supreme Court | Case No. 20S-MI-62 | October 27, 2020 Page 13 of 22 Whether notice was sent to a property owner or a mortgagee proved to be a consequential distinction. We observed that “[w]hile those cases relate to, inform, and persuade each other, it would be erroneous to presume that they control issues and parties beyond their own scope. Each class of interest merits its own analysis.” Id. at 1118. Unlike M&M Investment Group and the remaining viable portion of Elizondo, the present “class of interest” is that of a property owner, not a mortgagee. As we discuss below, this distinction places Elizondo’s internal records search requirement outside the present facts.",standard of review
+421,2207921,1,5,"We have carefully considered the remaining assignments of error urged by the appellants and find them to be without merit. For the reasons previously stated, error predicated on motions in limine regarding unavailable declarants and lay witnesses has not been properly preserved for appeal. On the question of the trial court's refusal to allow surrebuttal evidence proffered by defendants after four weeks of testimony, we fail to find any abuse of discretion. Accordingly, we affirm the judgment of the district court in its entirety, including taxation of costs to the defendants. AFFIRMED.",conclusion
+422,2308093,1,1,"[¶ 2] Viewing the evidence in the light most favorable to Quirion, as the nonmoving party, see Marcoux v. Parker Hannifin/Nichols Portland Div., 2005 ME 107, ¶ 5, 881 A.2d 1138, 1141, the parties' M.R. Civ. P. 56(h) statements of material fact and referenced record evidence reveal the following. See Longley v. Knapp, 1998 ME 142, ¶ 16, 713 A.2d 939, 944. On July 2, 2001, Quirion was staying at the Hampton Inn. While Quirion was standing outside the hotel, an awning was blown from the building and hit her, causing her injury. [¶ 3] The awning was first placed on the building at the time that the building was constructed approximately nine years prior to Quirion's injury. The awning had been attached to the building through clips that were in turn attached to raw bolts embedded in the stucco of the building. Both the medical record from the hospital to which Quirion was taken the day of her injury and a doctor's record of later treatment of her injuries reflect that she informed the doctors that the awning was blown from the building by the wind. In her opposing statement of material facts, submitted in response to the motions for summary judgment, Quirion stated that the only way the `raw bolts' [anchored in the building] could come out of the wall would be to be pulled out by strong wind on the awning. [¶ 4] A little over one month prior to the accident, Geroux had removed the awnings from the building, painted them, and then reattached them to the building. Geroux did not remove the raw bolts from the building, however, nor is there any evidence that he otherwise loosened them. After the awnings were painted and reattached to the building, the manager of the hotel visually inspected the awnings. As a matter of general maintenance, however, the awnings were not periodically checked to determine whether they were secure. [¶ 5] Quirion filed a complaint against Hanover in the Superior Court alleging negligence. Hanover answered the complaint denying that it was negligent, and then filed a third-party complaint against Geroux, alleging that if anyone had been negligent, it was Geroux. After Geroux answered Hanover's complaint, Quirion amended her complaint to include Geroux as a second defendant. [¶ 6] Following discovery, Geroux moved for summary judgment. Both Hanover and Quirion opposed Geroux's motion, and Hanover separately argued that if Geroux was entitled to summary judgment on the negligence claim, then it, too, was entitled to summary judgment. The court entered a summary judgment in favor of Geroux on both Quirion's complaint and on Hanover's third-party complaint. The court noted that both motion opponents agreed that the summary judgment record disclosed no direct evidence of negligence by Geroux. The court concluded that, because the evidence indicated that the incident was caused by a strong wind, the record does not support the aspect of a res ipsa negligence claim that is predicated on evidence (direct or otherwise) that the accident would not have happened in the absence of negligence. [¶ 7] The court concluded that Quirion had provided no evidence that Hanover was negligent in hiring Geroux, or that Geroux was negligent in removing, painting, or replacing the awning. Quirion filed this appeal of the summary judgments entered in favor of both Geroux and Hanover. Hanover and Quirion later entered into a settlement agreement, and thus the appeal from the summary judgment in favor of Geroux is the only matter still before us.",facts
+423,1683707,1,1,"Section 188.039, RSMo Supp.2003, creates an informed consent requirement including a 24-hour waiting period before elective abortions may be performed in Missouri. Planned Parenthood argues that the act is unconstitutional for vagueness. Planned Parenthood also argues that the 24-hour waiting provision violates rights of liberty and privacy under the Missouri Constitution. All of Planned Parenthood's federal claims have been reserved for adjudication in federal court. This case only concerns Planned Parenthood's facial claims under the Missouri Constitution. Planned Parenthood filed this action in the Circuit Court of Boone County against the Missouri Attorney General's Office, the Office of the Circuit Attorney for the City of St. Louis, and the Boone County Counselor. The trial court granted summary judgment finding that there was no constitutional violation. The trial court's order stated, in relevant part: The terms of section 188.039, RSMo Cum.Supp.2003, are not impermissibly vague; ... A knowing violation of section 188.039 RSMo is required to subject an individual to criminal prosecution and/or license revocation pursuant to sections 188.075 and 188.065 RSMo; [and] ... [t]he twenty-four hour waiting period to obtain an abortion does not violate the Missouri or United States Constitution. This Court has exclusive appellate jurisdiction over this case. Mo. Const. art. V, sec. 3. The judgment of the circuit court is affirmed.",introduction
+424,4555625,1,1,"This case is before the court on the voluntary surrender of license filed by respondent, Jon P. Worthman, on June 12, 2020. The court accepts respondent’s voluntary surrender of his license and enters a judgment of disbarment. STATEMENT OF FACTS Respondent was admitted to the practice of law in the State of Nebraska on September 22, 1994. On June 12, 2020, respondent filed a voluntary surrender of license to practice law, in which he stated that on January 7, 2020, he was arrested in Scotts Bluff County, Nebraska, for being in possession of cocaine. Respondent was ultimately charged with “possession of a controlled substance with intent to distribute, to wit; Cocaine, not less than 10 grams but not more than 28 grams,” in violation of Neb. Rev. Stat. § 28-416(7)(c) (Cum. Supp. - 290 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. WORTHMAN Cite as 306 Neb. 289 2018), a Class ID felony. Respondent stated that he freely and voluntarily surrenders his privilege to practice law in the State of Nebraska; waives his right to notice, appearance, or hearing prior to the entry of an order of disbarment; and consents to the entry of an immediate order of disbarment.",introduction
+425,4542603,1,1,"Victor Guzman appeals from convictions, pursuant to jury verdict, and sentences for first degree sexual assault and tampering with a witness. Two issues predominate. We again enforce our requirement that assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. And we resolve the State’s uncertainty whether - 379 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 sentencing error in a criminal case tried in the district court can or must be raised by a cross-appeal—concluding that generally, a cross-appeal is not permitted. We find no merit to Guzman’s claims regarding a motion to suppress, a motion for a mistrial, insufficiency of the evidence, and an excessive sentence for the sexual assault conviction. But we find plain error in the sentence for witness tampering, which should have been an indeterminate rather than a determinate sentence. We vacate that sentence and remand the cause for resentencing, but we otherwise affirm Guzman’s convictions and the sentence imposed for the sexual assault conviction.",introduction
+426,2490897,1,2,"Because the two rephrased certified questions present issues of statutory interpretation, our review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007). Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning. Fla. Dep't of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). In this regard, legislative intent is determined primarily from the text of the statute. Cont'l Cas. Co. v. Ryan, Inc. E., 974 So.2d 368, 374 (Fla.2008). As this Court has previously announced: When the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent. In such instance, the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. Koile v. State, 934 So.2d 1226, 1230-31 (Fla.2006) (citation omitted) (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla.2005)). However, if the statutory intent is unclear from the plain language of the statute, then `we apply rules of statutory construction and explore legislative history to determine legislative intent.' Id. at 1231 (quoting BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003)). Among the basic principles of statutory construction is that statutes relating to the same subject matter must be read together, or in pari materia. Fla. Dep't of State v. Martin, 916 So.2d 763, 768 (Fla.2005) (The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent.).
+",analysis
+427,901264,1,2,"[¶ 6.] The denial of bail pending appeal is reviewed under an abuse of discretion standard. 'We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.' Lakota Community Homes, Inc. v. Randall, 2004 SD 16, ¶9, ___ NW2d ____, ____ (quoting City of Sioux Falls v. Johnson, 2003 SD 115, ¶6, 670 NW2d 360, 362 (citations omitted)). In applying the abuse of discretion standard, `we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.' State v. Aesoph, 2002 SD 71, ¶31, 647 NW2d 743, 754-55 (quoting State v. Fowler, 1996 SD 78, ¶12, 552 NW2d 92, 94-5 (citations omitted)).",standard of review
+428,1657815,1,4,"In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005). The admission of hearsay is controlled by the Nebraska Evidence Rules. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993). An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause, and reviews the underlying factual determinations for clear error. See, U.S. v. Bordeaux, 400 F.3d 548 (8th Cir.2005); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).",standard of review
+429,2510351,1,2,"This Court does not set aside findings of fact unless they are clearly erroneous. Weaver v. Stafford, 134 Idaho 691, 696, 8 P.3d 1234, 1239 (2000). We will not disturb findings of fact that are supported by substantial and competent evidence, even if there is conflicting evidence. Id. Evidence is substantial if a reasonable trier of fact would accept and rely upon it in determining whether a disputed point of fact has been proven. Miller v. Callear, 140 Idaho 213, 216, 91 P.3d 1117, 1120 (2004). However, this Court freely reviews the question of whether the facts found, or stipulated to, are sufficient to satisfy the legal requirements for the existence of an implied easement or a prescriptive easement. Davis v. Peacock, 133 Idaho 637, 640, 991 P.2d 362, 365 (1999).",standard of review
+430,2570165,1,9,"We conclude that suicides may be nonwillful deaths under Nevada's workers' compensation law if they are sufficiently causally connected to an industrial injury. In reaching this conclusion, we adopt the chain-of-causation test to determine whether a sufficient causal connection exists. With respect to the appeals officer's decision in this case, we conclude that it was based on a clearly erroneous application of the chain-of-causation test and is unsupported in the record. Accordingly, we reverse the district court's order denying Vredenburg's petition for judicial review and remand this matter with instructions to the district court to, in turn, remand the matter to the appeals officer for proceedings consistent with the standard announced in this opinion. We concur: GIBBONS, C.J., MAUPIN, HARDESTY, DOUGLAS and CHERRY, JJ.",conclusion
+431,1333326,1,2,"We are asked to review the circuit court's dismissal of Cable's petition for a writ of mandamus. We have repeatedly described the elements required for mandamus relief as follows: A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy. Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Syl. pt. 2, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). In this appeal, the parties' arguments revolve around the first and second elements required for mandamus, which are a clear legal right in the petitioner and a legal duty on the part of the respondent. Furthermore, resolution of the issues presented in this particular case require us to apply the provisions of Rule 3 of the West Virginia Rules of Civil Procedure and W.Va. Code § 59-1-11(a) (1996) (Repl.Vol.1997). [8] There have been no factual issues raised in this appeal. Thus, our review will be de novo. See Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995) (The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo.). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.).",standard of review
+432,4566717,1,3,"Jury Instruction No. 8 Under NFEPA, “It is the policy of [Nebraska] to foster the employment of all employable persons in the state on the basis of merit . . . and to safeguard their right to obtain and hold employment without discrimination . . . .” 6 Section 48-1114 provides in relevant part that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his or her employees . . . because he or she . . . has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state.” [5] In order to show retaliation under NFEPA, a plaintiff must establish (1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse employment action, 2 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 (2018). 3 Id. 4 See id. 5 Id. 6 § 48-1101. - 634 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 and (3) there was a causal connection between the protected conduct and the adverse action. 7 [6,7] We have previously held that a plaintiff alleging he or she was subjected to retaliatory action based upon opposing or refusing to participate in an employer’s practice or action which was unlawful only has to show a reasonable, good faith belief of the act’s unlawfulness. 8 In order for such a belief to be reasonable, the act believed to be unlawful must either in fact be unlawful or at least be of a type that is unlawful. 9 In challenging instruction No. 8, Haffke argues that the required element that he “engaged in a protected activity by opposing or refusing to carry out a practice of [Signal 88] that is unlawful” improperly stated the law. Haffke claims this requirement failed to explain that he only needed to establish a reasonable and good faith belief that Signal 88’s actions were unlawful and instead imposed an additional burden on him to show Signal 88’s actions were actually unlawful. [8-10] When evaluating whether a given instruction adequately states the law, the instruction should not be judged in artificial isolation but must be viewed in the context of the overall charge to the jury considered as a whole. 10 If the instructions given, taken as a whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal. 11 Jury instructions are subject to the harmless error rule, and an erroneous jury instruction 7 See McPherson v. City of Scottsbluff, 303 Neb. 765, 931 N.W.2d 451 (2019). 8 See, Oldfield v. Nebraska Mach. Co., 296 Neb. 469, 894 N.W.2d 278 (2017); Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 (2003). 9 Oldfield, supra note 8; Wolfe, supra note 8. 10 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). 11 See Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). - 635 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 requires reversal only if the error adversely affects the sub­ stantial rights of the complaining party. 12 Instruction No. 8 followed the wording of § 48-1114 in requiring that Haffke prove he engaged in a “protected activity” by opposing or refusing to carry out a practice “unlawful under federal law or the laws of the State of Nebraska.” Instruction No. 9 further defined “[p]rotected activity” to include “opposing or refusing to carry out a practice of Signal 88 that . . . Haffke reasonably and in good faith believed to be unlawful under federal law or the laws of the State of Nebraska” and clarified that “[a]n employee is protected against retaliation for opposing or refusing to carry out unlawful activity even if the conduct complained of is not unlawful.” These instructions provide the required element that Haffke engaged in a protected activity, that such protected activity could include opposing or refusing to carry out an unlawful practice, and that an unlawful practice could include an act Haffke reasonably and in good faith believed to be unlawful without needing to actually be unlawful. We find, when read together, instructions Nos. 8 and 9 correctly state the required elements of the claimed retaliation under § 48-1114. We disagree with Haffke’s contention that instruction No. 8 is misleading by requiring actual unlawfulness when instruction No. 9 only requires a reasonable and in good faith belief of unlawfulness. Instruction No. 8 follows the wording of § 48-1114 and defines a protected activity to include opposing a company’s unlawful actions. Instruction No. 9 clarifies that unlawful actions may include actions which the employee reasonably and in good faith believes to be unlawful, but which do not actually violate the law. These instructions are not contradictory nor misleading. Instead, they are accurate statements and explanations of the law. Because instruction No. 8, when read together with the rest of the instructions, was a correct statement of the law and 12 Id. - 636 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 was not misleading, there is no prejudicial error necessitating a reversal. The district court did not err in giving instruction No. 8 to the jury. Jury Instruction No. 12 Haffke next assigns that the district court erred in giving instruction No. 12, because it instructed the jury regarding the business judgment rule. More specifically, Haffke contends that the business judgment rule does not apply to employment discrimination cases and that instruction No. 12 conflicts with the jury’s ability to find Signal 88’s purported reasons for Haffke’s termination from employment and denial of the subcontractor agreement were pretext and to draw inferences therefrom. Haffke argues that the statutory basis for the business judgment rule, and therefore instruction No. 12, is Neb. Rev. Stat. § 21-2,103 (Cum. Supp. 2016). Because § 21-2,103 directs that “[a] director shall not be liable to the corporation or its shareholders” for any action when made in good faith and pursuant to a reasonable and adequately informed belief as to the best interests of the corporation, Haffke claims the Legislature intended to limit the business judgment rule’s application to corporate governance cases. Haffke therefore argues the business judgment rule, as provided in instruction No. 12, does not apply to employment cases. We agree that § 21-2,103 is inapplicable to the instant action. However, the language of instruction No. 12 does not address the application of § 21-2,103. Instruction No. 12 does not concern a director’s liability to its corporation or shareholders. Additionally, instruction No. 12 does not reduce or eliminate an employer’s liability because an employer terminated an employee pursuant to a good faith, reasonable, and informed belief as to the best interests of the corporation. Instead, instruction No. 12 explains that the jury cannot grant Haffke a verdict simply because the jury finds the termination or denial of the subcontractor agreement harsh and unreasonable. - 637 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 [11] NFEPA is patterned from that part of the Civil Rights Act of 1964 contained in 42 U.S.C. § 2000e et seq. (2012), and it is appropriate to look to federal court decisions construing similar and parent federal legislation. 13 As such, we note that numerous federal courts have long held that the employment discrimination laws have not vested in the federal courts the authority to sit as super personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination. 14 The 11th Circuit has held that a “plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer.” 15 “Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” 16 Additionally, the Seventh Circuit has held that “[i]t is not the role of the court to determine whether an employer’s expectations were fair, prudent, or reasonable.” 17 “So long as its management decision was not a guise for a discriminatory purpose, we must respect that decision.” 18 However, at least one circuit court has recognized that an employer’s business judgment is not an absolute defense to unlawful discrimination. 19 13 Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016). 14 Hutson v. McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995). See, Boss v. Castro, 816 F.3d 910 (7th Cir. 2016); Ya-Chen Chen v. City University of New York, 805 F.3d 59 (2d Cir. 2015); Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000); Verniero v. Air Force Academy Sch. Dist. No. 20, 705 F.2d 388 (10th Cir. 1983). 15 Chapman, supra note 14, 229 F.3d at 1030. 16 Id. 17 Boss, supra note 14, 816 F.3d at 917. 18 Id. 19 Wexler v. White’s Furniture, Inc., 317 F.3d 564 (6th Cir. 2003). - 638 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 These propositions have translated into courts’ determining that employers have the right to have juries instructed on the business judgment rule in employment discrimination cases and that such instructions do not prejudice the employee. 20 In fact, the Eighth Circuit has held that in employment discrimination cases, a business judgment instruction is “‘crucial to a fair presentation of the case.’” 21 The Nebraska Court of Appeals, in a memorandum opinion, has also noted that employment discrimination laws have not vested in the courts the authority “‘“to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimintation.”’” 22 Contrary to the Civil Rights Act of 1964 as interpreted by the described federal courts, Haffke contends that the Nebraska Legislature limited application of the business judgment rule in its enactment of NFEPA. In support of this argument, Haffke compares NFEPA to the County Civil Service Act and cites Blakely v. Lancaster County, 23 wherein we found a county’s business judgment authority was limited by statutory requirements and rules adopted by the county for appointing employees. In Blakely, a county employee contended that the county denied him an opportunity to fairly compete for job vacancies because the county failed to properly comply with the County 20 See, Julian v. City of Houston, Tex., 314 F.3d 721 (5th Cir. 2002); Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998); Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir. 1993); Hancock v. Washington Hospital Center, 13 F. Supp. 3d 1 (D.D.C. 2014). 21 Stemmons v. Missouri Dept. of Corrections, 82 F.3d 817, 819 (8th Cir. 1996), quoting Walker, supra note 20. 22 Stevens v. County of Lancaster, No. A-18-003, 2019 WL 2755097 at  (Neb. App. July 2, 2019) (selected for posting to court website), quoting Bone v. G4S Youth Services, LLC, 686 F.3d 948 (8th Cir. 2012), quoting Hutson, supra note 14. 23 Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012). - 639 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 Civil Service Act. In response to the county’s argument that no one had the authority “‘to sit as a super personnel department reviewing the business judgments made . . . when hiring personnel,’” this court held that by passing the County Civil Service Act, “the Legislature has limited those ‘business judgments’ [and that it was] a court’s duty to enforce those statutory requirements.” 24 However, Haffke has pointed to no statutory or regulatory requirement or limitation which would have limited Signal 88’s business judgment authority to terminate his employment or deny his subcontractor agreement, unlike the statutes involved in Blakely. Contrary to Haffke’s argument, Blakely did not stand for the proposition that employment decisions are never subject to a business’ judgment. The statutes and rules involved in Blakely expressly imposed procedural requirements and limited the ability of the county as to its consideration of certain employment decisions. Because we find no such limiting statutes or rules are at issue here, Blakely and its analysis of the County Civil Service Act do not apply to Haffke’s retaliation claim under NFEPA. [12,13] In line with the described federal courts and the Nebraska Court of Appeals, we too now hold that employment discrimination laws have not vested in the Nebraska courts the authority to sit as super personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination. We further hold that instructing a jury on the business judgment rule in an employment discrimination case is not error when the evidence warrants such an instruction. Haffke also claims instruction No. 12 misled the jury and inhibited its ability to consider and make inferences that Signal 88’s purported reasons for termination of his employment and denial of the subcontract agreement were pretexts. 24 Id. at 673, 825 N.W.2d at 161-62. - 640 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 Haffke argues this instruction contradicts the pretext standard provided by instructions Nos. 10 and 11. [14] In cases involving claims of employment discrimination, this court has recognized the burden-shifting analysis which originated in McDonnell Douglas Corp. v. Green. 25 First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. 26 Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. 27 Third, should the defendant carry the burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. 28 Because Haffke articulated a showing that he was discharged following protected activities of which the employer was aware, he established a prima facie case of retaliatory dismissal. As a result, the burden shifted to Signal 88 to show a legitimate, nondiscriminatory justification for discharging Haffke. Signal 88 met this burden by advancing as justification for Haffke’s discharge his work performance issues. The record adequately substantiates these reasons. Therefore, the presumption of discrimination disappeared, requiring Haffke to prove that the proffered justification was merely a pretext for discrimination. Instructions Nos. 10 and 11 address the jury’s ability to consider whether Signal 88’s reasoning was a pretext to hide retaliation. Specifically, these instructions explain: 25 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006). 26 Riesen, supra note 25; Harris v. Misty Lounge, Inc., 220 Neb. 678, 371 N.W.2d 688 (1985). 27 Id. 28 Id. - 641 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 You may find Defendant would not have [terminated or denied the independent contractor agreement] “but for” Plaintiff’s opposition to or refusal to carry out an unlawful practice of Defendant, if it has been proved that the Defendant’s stated reasons for its decision[s] to [terminate the Plaintiff’s employment or deny the independent contractor agreement] are not the real reasons, but are a pretext to hide retaliation. Instruction No. 12 does not conflict with instructions Nos. 10 and 11 and does not limit the jury’s ability to find Signal 88’s purported reasons were pretexts to hide its real retaliatory reasons. Instruction No. 12 explains that the jury cannot find retaliation simply because it disagrees with Signal 88’s decision or finds it harsh or unreasonable. It does not address the possibility that the jury does not believe Signal 88’s purported reasons were the real reasons. Instead, instructions Nos. 10 and 11 properly instruct that should the jury determine Signal 88’s reasons were pretexts to hide retaliation, the jury could make inferences from that finding and determine Haffke’s opposition or refusal to carry out Signal 88’s allegedly unlawful business practices was the cause of Haffke’s termination from employment or Signal 88’s denial of the subcontractor agreement. We also find instruction No. 12 did not interfere with the jury’s ability to draw inferences if it found termination or denial of the subcontractor agreement was harsh or unreasonable when compared to Signal 88’s purported reasoning. As stated, the jury was properly instructed by instructions Nos. 10 and 11 that it could find Signal 88’s offered reasons were not the real reasons but pretexts to hide retaliation. Additionally, instructions Nos. 1 and 4 explained that the parties’ arguments may have been drawn from legitimate deductions and inferences from the evidence and that the jury had the ability to find facts based upon logical inferences. Instruction No. 12 did not contradict these instructions and prohibit such inferences from being made. - 642 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 Instruction No. 12, when read together with the rest of the instructions, correctly states that the jury could not find retaliation simply because it disagreed with Signal 88’s purported reasons or found them harsh or unreasonable. Instruction No. 12 did not restrict the jury’s ability to draw logical inferences from evidence presented that the termination or denial of the subcontract agreement was harsh or unreasonable and did not restrict the jury’s ability to find the purported reasons were not the real reasons but were pretexts for retaliation under instructions Nos. 10 and 11. The instructions given, taken as a whole, correctly state the law, are not misleading, and adequately cover the submitted issues. Therefore, there is no prejudicial error concerning instruction No. 12 and necessitating a reversal. 29 Based upon the foregoing, this assignment of error is without merit. Defamation [15] A defamation claim has four elements: (1) a false and defamatory statement concerning the claimant, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. 30 Section 25-840.01 addresses this fourth element and states, in relevant part: (1) In an action for damages for the publication of a libel . . . , the plaintiff shall recover no more than special damages unless correction was requested as herein provided and was not published. Within twenty days after knowledge of the publication, plaintiff shall have given each defendant a notice . . . specifying the statements claimed to be libelous . . . and specifically requesting 29 See Rodriguez, supra note 11. 30 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). - 643 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 correction. Publication of a correction shall be made within three weeks after receipt of the request. It shall be made in substantially as conspicuous a manner as the original publication about which complaint was made. . . . The term special damages, as used in this section, shall include only such damages as plaintiff alleges and proves were suffered in respect to his or her property, business, trade, profession, or occupation as the direct and proximate result of the defendant’s publication. Haffke assigns the district court erred in granting Signal 88 a directed verdict on the defamation claim by shifting the burden to Haffke to plead or prove § 25-840.01. Haffke argues Signal 88 was required to raise compliance with § 25-840.01 as an affirmative defense but failed to do so. As such, Haffke claims he was not required to plead or prove special damages under § 25-840.01. [16-19] Nebraska’s pleading rules require that certain enumerated defenses “and any other matter constituting an avoidance or affirmative defense” must be pled in a defendant’s answer. 31 An affirmative defense raises a new matter which, assuming the allegations in the petition to be true, constitutes a defense to the merits of a claim asserted in the petition. 32 It generally avoids, rather than negates, the plaintiff’s prima facie case. 33 The Nebraska Court Rules of Pleading in Civil Actions, like the federal rules, have a liberal pleading requirement for both causes of action and affirmative defenses, but the touchstone is whether fair notice was provided. 34 Here, the pleadings of the parties put the application of § 25-840.01 at issue and gave Haffke fair notice that Signal 88 was alleging its compliance with the statute. In his complaint, 31 Neb. Ct. R. Pldg. § 6-1108(c). 32 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017). 33 Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019). 34 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 N.W.2d 1 (2016). - 644 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 Haffke explicitly claimed Signal 88 failed to comply with § 25-840.01. The complaint alleged that “[u]pon learning of the defamatory disclosure, [Haffke] immediately sent a request to Signal 88 . . . pursuant to [§] 25-840.01 to retract its untrue statements contained within the FDD,” but that “[a]t the time of this filing, the statement has not been retracted and Signal [88] has not released an amended FDD.” Signal 88’s answer admitted Haffke had “requested that Signal 88 retract the statement [in the FDD] that he was terminated from his employment due to his poor performance,” but denied that it had not retracted the statement or released an amended FDD. Moreover, Signal 88’s answer claimed it “has complied with all applicable statutes and regulations and, thus, . . . has not defamed [Haffke]” and that Haffke “did not suffer damages or harm attributable to the action or inaction of [Signal 88] as alleged in [Haffke’s] complaint.” In consideration of these pleadings, there was a known, disputed question of fact about whether Signal 88 issued a correction or amendment, and it was known Signal 88’s compliance with § 25-840.01 was at issue. This case is distinguishable from Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 35 in which we held a “failure to request a retraction under § 25-840.01 constitutes an affirmative defense which must be raised prior to trial.” In Funk, the complaint made an allegation of defamation against the city of Lincoln but made no reference to § 25-804.01. The city’s answer raised various affirmative defenses, but did not raise compliance with § 25-804.01. This court in Funk noted that the city’s argument that the plaintiff was entitled to only special damages because she failed to ask for a retraction was a new matter that raised a new issue. Here, Haffke’s complaint makes it clear that he was alleging that he had sent a request for retraction, that Signal 88 failed to issue a retraction, and that, as such, he was not limited to 35 Id. at 729, 885 N.W.2d at 12. - 645 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports HAFFKE v. SIGNAL 88 Cite as 306 Neb. 625 seeking only special damages. Signal 88’s answer admitted that Haffke sent a request, but it denied the allegation that it failed to amend the statement. Unlike in Funk, supra, Signal 88’s reliance on § 28-804.01 was not a new matter that raised a new issue. The parties’ pleading put § 25-840.01 at issue, and Haffke had fair notice that Signal 88 was alleging it complied with § 25-840.01. Accordingly, the district court did not err in considering the application of § 25-840.01. [20] Additionally, in his appellate brief, Haffke did not argue that Signal 88’s amended FDD failed to comply with § 25-840.01 and argued only that he was not required to plead or prove special damages because Signal 88 did not raise compliance with § 25-840.01 as an affirmative defense. Although Haffke did raise the argument in his reply brief that the amended statement did not comply with § 25-840.01 and argued that this issue raised a question of fact which should have been determined by the jury before it was determined he needed to plead or prove special damages, Haffke failed to assign and argue it in his initial brief. In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed. 36 Finding no such plain error here, we decline to address this issue because Haffke failed to assign and argue it in his initial brief.",analysis
+433,4234521,1,1,"After homeowners repainted their residence in a blue color, a homeowners association sued to enforce restrictive covenants and the district court decreed that the house be repainted in an “earth tone.” The homeowners’ appeal turns on the covenants’ plain language, which does not control the color of repainting. Because the covenants were not ambiguous and did not prohibit the homeowners’ action, we reverse, and remand with directions.",introduction
+434,4534570,1,1,"In both of these consolidated cases, the State filed complaints in county court charging appellants with felonies. The State charged A.D. with first degree sexual assault, a Class II felony. The State charged C.M. with possession of a stolen firearm, a Class IIA felony. Both offenses were alleged to have been committed when appellants were older than 14 years old but younger than 18 years old. Both A.D. and C.M. filed motions asking the county court to transfer their respective cases to juvenile court under Neb. Rev. Stat. §§ 29-1816 (Cum. Supp. 2018) and 43-276 (Reissue 2016). In both cases, the State argued that the county court did not have jurisdiction to decide a motion to transfer to juvenile court in felony cases. And in both cases, after a hearing, the county court issued orders stating that it did not have jurisdiction to rule on a motion to transfer to juvenile court and scheduled preliminary hearings. Before a preliminary hearing was held in either case, appellants filed notices of appeal. We moved the appeals to our docket and consolidated them for oral argument and disposition. - 156 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. A.D. Cite as 305 Neb. 154 ASSIGNMENTS OF ERROR Both appellants claim that the county court erred in one respect: by holding that it lacked jurisdiction to rule on their respective motions to transfer to juvenile court.",facts
+435,1322495,1,4,"Based upon the foregoing, we affirm the circuit court. Affirmed.",conclusion
+436,4105365,1,1,"¶ 1 This is an appeal from a parental-rights termination order entered in the district court. On November 24, 2014, the district court terminated L.E.S.’s parental rights with respect to K.A.S., making K.A.S. legally available for adoption by her stepfather, C.D.M. L.E.S. appealed the termination order to the Utah Court of Appeals, which subsequently certified the case for transfer to the Utah Supreme Court. The issues presented on appeal are a claim of ineffective assistance of counsel and claims to the right to counsel under the Equal Protection Clause of the Fourteenth Amendment, under the Due Process Clause of the Fourteenth Amendment, and under the due process clause of the Utah Constitution. For reasons explained below, we hold that the denial of counsel violated L.E.S.’s federal due process rights and reverse and remand for further proceedings in accordance with this opinion.",introduction
+437,4537649,1,2,"We begin by setting forth the factual background for the crimes charged. Bearing in mind our standard of review, we summarize this evidence in the light most favorable to the State. Additional background relevant to particular errors assigned will be supplied in the analysis. On September 22, 2017, B.G. held a party at her apartment, where she lived with her daughter. One of the invitees, Alexa Thomas, brought a group of eight or nine people whom B.G. did not know, including Guzman. B.G. consumed alcohol to the point of being “drunk.” She also snorted cocaine. B.G. began to feel sick and told everyone to leave. She vomited and then lay down in her bedroom. B.G. heard her bedroom door open and saw a group of unknown males standing in her doorway. She felt her clothing being removed and her arms and legs being held. B.G. testified: “I said no. I said stop. Then I just gave up . . . [b]ecause there was [sic] too many.” Although B.G. did not give permission for anyone to have sex with her, she could tell that more than one male penetrated her vagina. Someone turned her head and inserted his penis in her mouth. According to an attendee at the party, Guzman said he had sex with B.G. After B.G. began crying, the males left. B.G. checked on her daughter and then “passed out.” When B.G. woke, she called - 380 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 her mother and asked her to come to B.G.’s apartment. At some point, B.G. told her mother that she had a party and “got raped.” B.G. went to a hospital and reported to a sexual assault nurse examiner that two assailants penetrated her vagina. A police officer spoke with B.G. at the hospital, and she told the officer that four to five males vaginally penetrated her with their penises. Police conducted an investigation following B.G.’s report of the incident. Thomas shared with police text messages she exchanged with Guzman the morning after the party. In these text messages, Guzman told Thomas that he had video of a group of males having sex with B.G. Thomas asked if Guzman had sex with B.G., but he replied that he “was just [the] camera man.” After meeting with Thomas, an officer prepared an affidavit for a search warrant for Guzman’s cell phones. The next day, officers went to Guzman’s place of employment to interview him and obtain any of his digital devices capable of storing electronic media. Upon questioning by an officer, Guzman consistently denied having sex with B.G. After interviewing Guzman, police arrested him. A forensic examination of one of Guzman’s cell phones uncovered three short videos taken between 6:41 and 6:49 a.m. on September 23, 2017, which showed penile-vaginal intercourse with B.G.; one video additionally showed a penis being inserted into B.G.’s mouth. The tampering with a witness charge arose out of Guzman’s October 2017 jail telephone call to Thomas. Thomas testified that Guzman wanted her to “tell [B.G.] to drop the charges.” Thomas complied, telling B.G. that Guzman wanted B.G. to drop the charges. The jury returned verdicts of guilty on first degree sexual assault and on tampering with a witness, and the court accepted the verdicts. The court imposed a sentence of 12 to 20 years’ imprisonment for the sexual assault conviction and a concurrent sentence of 2 years’ imprisonment for the witness tampering conviction. - 381 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. GUZMAN Cite as 305 Neb. 376 Guzman appealed. The State filed a petition to bypass review by the Nebraska Court of Appeals—which we granted—and asserted a purported cross-appeal in its brief.",facts
+438,2219911,2,1,"Defendant claims that the evidence in this case is insufficient to prove him guilty of first degree murder beyond a reasonable doubt. If he is correct, his conviction must be reversed. The Criminal Code of 1961 provides: A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another[.] 720 ILCS 5/9-1(a)(1), (a)(2) (West 1998). With this statute in mind, we will consider defendant's claim. As this court has noted, [t]he due process clause of the fourteenth amendment to the United States Constitution requires that a person may not be convicted in state court `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' People v. Cunningham, 212 Ill.2d 274, 278, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004), quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). When reviewing a challenge to the sufficiency of the evidence, this court considers whether, viewing the evidence in the light most favorable to the State, ` any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Emphasis in original.)' People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); see also People v. Smith, 185 Ill.2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). The United States Supreme Court has stated that the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318, 99 S.Ct. at 2788-89, 61 L.Ed.2d at 573. This standard of review applies, regardless of whether the evidence is direct or circumstantial [citation], and regardless of whether the defendant receives a bench or jury trial [citation]. People v. Cooper, 194 Ill.2d 419, 431, 252 Ill.Dec. 458, 743 N.E.2d 32 (2000). This court will not retry a defendant when considering a sufficiency of the evidence challenge. People v. Smith, 185 Ill.2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). The trier of fact is best equipped to judge the credibility of witnesses, and due consideration must be given to the fact that it was the trial court and jury that saw and heard the witnesses. Smith, 185 Ill.2d at 541-42, 236 Ill.Dec. 779, 708 N.E.2d 365. Accordingly, a jury's findings concerning credibility are entitled to great weight. Smith, 185 Ill.2d at 542, 236 Ill.Dec. 779, 708 N.E.2d 365. The simple fact that a judge or jury accepted the veracity of certain testimony does not guarantee reasonableness, however. As we have previously stated, [r]easonable people may on occasion act unreasonably and, thus, while a fact finder's decision to accept testimony is entitled to deference, it is neither conclusive nor binding. Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304. Accordingly, a conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of defendant's guilt. Smith, 185 Ill.2d at 542, 236 Ill.Dec. 779, 708 N.E.2d 365. Supporting defendant's conviction, the State argues that, viewed in the light most favorable to the prosecution, evidence at trial showed that: (1) defendant knew and had associated with Hunter and Forrest; (2) Forrest was a likely State's witness in a murder trial against the defendant; (3) defendant's attorney knew that Forrest would likely testify against defendant in the murder trial; (4) defendant found out that Forrest was going to testify against him; (5) defendant told people that he did not want to go to prison; (6) defendant had access to and possessed handguns; (7) two men matching defendant's and Hunter's general descriptions ran away from the murder scene and were spotted by police officers; (8) the police officers gave chase and found defendant hiding in the bushes; and (9) gunpowder residue was found on a jacket that defendant discarded as he fled from police. All of this, the State argues, makes it neither improbable nor irrational that a jury would convict defendant of first degree murder. Defendant, on the other hand, argues that the State's evidence was insufficient to meet its burden of proof. Defendant points out a lack of eyewitnesses. Moreover, defendant believes the lack of forensic evidence to be critical. As noted in the background, no gunshot residue was found on defendant. Though there was a good deal of blood in Forrest's car and evidence indicated he was killed at close range, defendant had no blood on him. While defendant wore soft-soled shoes conducive to picking up glass and the driver's side window of Forrest's car was shattered, leaving glass strewn about the street, the only glass found in defendant's shoes came from some other source. No fingerprints were found tying defendant to the murder. Though some human head hairs were found in the mask and stocking cap recovered by police, those hairs did not belong to defendant. Additionally, defendant attempts to reanalyze the evidence, pointing out situations where the jury could have drawn inferences tending to exculpate defendant. For example, where the State explains the lack of blood found on defendant by noting expert testimony that any blood would have ejected away from the shooter in this situation, defendant notes that the expert refused to say that no blood came from the entrance wound and photos in evidence did show small amounts of blood on the driver's side roof of the car. This, the defense contends, could support an inference that whoever shot Forrest would have been spattered with some blood. Since no blood was found on defendant, then, it could further be inferred that defendant was not the murderer. While defendant's arguments are well-taken, a reviewing court must give the State the benefit of all reasonable inferences. Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304. As already discussed, the evidence analyzed in challenges to the sufficiency of the evidence must be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573; Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304 (citing Jackson for the same proposition). This court has stated that this means the reviewing court must allow all reasonable inferences from the record in favor of the prosecution. Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304. Defendant contends that the State, and the appellate court on review, failed to properly consider all of the evidence. In Jackson, the Supreme Court stated that on appeal the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Emphasis in original.) Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. Defendant thus argues that appellate review must include consideration of all of the evidence, not just the evidence convenient to the State's theory of the case. We agree. However, the mandate to consider all the evidence on review does not necessitate a point-by-point discussion of every piece of evidence as well as every possible inference that could be drawn therefrom. To engage in such an activity would effectively amount to a retrial on appeal, an improper task expressly inconsistent with past precedent. Smith, 185 Ill.2d at 541, 236 Ill.Dec. 779, 708 N.E.2d 365. Indeed, this court has stated that even the trier of fact is not required to disregard inferences which flow normally from the evidence and to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. People v. Hall, 194 Ill.2d 305, 332, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). We have also stated that [t]he trier of fact need not    be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. Hall, 194 Ill.2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521. Accordingly, this court is not required to search out all possible explanations consistent with innocence or be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. On the contrary, we must ask, after considering all of the evidence in the light most favorable to the prosecution, whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. In the present case, we answer that question in the affirmative. Winifred Forrest and Michael Cunningham testified regarding defendant and Hunter's association. Further, Deosha Singleton made a statement to Detective Gannon wherein she stated that she overheard defendant and Hunter speaking on the day of the murder. Considering this evidence in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that defendant and Hunter were associates who both knew Demetrian Forrest. Scott Rueter testified that Forrest was a witness prepared to testify and implicate defendant at defendant's trial for the murder of Angelo Williams. Michael Cunningham testified that he told defendant that if he were in defendant's situation he would pay Forrest not to testify. Cunningham further testified that defendant expressed his desire not to go back to prison. Considering this evidence in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that defendant knew Forrest was prepared to implicate him in the murder of Angelo Williams. From this, it would also be reasonable for a jury to infer that defendant had a strong motive to kill Forrest. Cunningham also testified to seeing defendant in possession of at least one handgun. Considering that testimony in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that defendant possessed or had access to a handgun. Officers Brandel, Street, and Derbort testified to the events surrounding the chase and eventual capture of defendant and Hunter. Moreover, the officers testified to their actions in recovering various items of evidence. Considering this evidence in the light most favorable to the prosecution, it would be reasonable for a jury to infer that defendant and Hunter had just murdered Demetrian Forrest, were running from the scene of the crime when they were seen by police, and thereafter fled, dropping evidence along their path (including the murder weapons and clothing). The officers' testimony also supports the inference that defendant was hiding when he was found in the bushes at 1304 East Clay. Forensic pathologist Travis Hindman and forensic scientist Robert Hunton testified regarding the types of handguns and ammunition they believed were used in the murder of Forrest. Considering their testimony in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that the guns recovered by police were actually used to kill Forrest. Teronica Jones testified regarding her relationship with Hunter, including the fact that she had a child with him. She also testified to the fact that she had lent Hunter her car and picked it up the morning after the murder. At trial, Jones' testimony regarding the location of the car was inconsistent with a written statement she had completed shortly after the murder occurred, which indicated she found it somewhere southwest of the scene of the crime. Considering this evidence in the light most favorable to the prosecution, it would be reasonable for a jury to trust Jones' written statement over her trial testimony and thus infer that defendant was running toward a getaway car when he was caught at 1304 East Clay, southwest of the scene of the crime. Misty Gilman testified that, after hearing gunshots, she looked out her window at 1423 East Prairie and saw five persons, including one wearing a Chicago Bulls jacket. Gilman had completed a written statement, however, that contradicted this testimony and indicated that she only saw three persons. Considering her testimony, as well as her contradictory written statement, in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that her testimony should carry little weight or that two of the persons she reported seeing in her written statement were defendant and Hunter. Tamara Hodges testified that upon hearing gunshots, she looked out her window at 1363 East Prairie Street and saw two men run north on Stone Street, hop into a car, and drive off. She also testified, however, that the car did not squeal its tires or make any remarkable sound as it drove off. Considering this in the light most favorable to the prosecution, it would be reasonable for a jury to conclude that Hodges' testimony shed little light at all on the case, or even that the two individuals she observed jump into a sports car had nothing to do with the murder. The above conclusions and inferences are not the only conclusions and inferences that could be drawn. They are reasonable, however, and taken together they support a finding that defendant was guilty beyond a reasonable doubt of the first degree murder of Demetrian Forrest. This finding is further supported by the fact that this court has consistently held that a conviction may be based solely on circumstantial evidence. People v. Patterson, 217 Ill.2d 407, 435, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005); Hall, 194 Ill.2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521 (Circumstantial evidence is sufficient to sustain a criminal conviction, provided that such evidence satisfies proof beyond a reasonable doubt of the elements of the crime charged). Moreover, we have previously utilized motive and flight in support of a finding that the evidence was sufficient to support a finding of murder beyond a reasonable doubt. People v. Moore, 171 Ill.2d 74, 95-96, 215 Ill.Dec. 75, 662 N.E.2d 1215 (1996). After considering all of the evidence in the light most favorable to the prosecution, then, we hold that the record evidence reasonably supports a finding that defendant was guilty of first degree murder beyond a reasonable doubt in that: (1) defendant or someone for whose conduct he was legally responsible performed acts that caused Forrest's death; and (2) when defendant or someone for whose conduct he was legally responsible performed those acts, he intended to kill or do great bodily harm to Forrest, knew his acts would cause Forrest to die, or knew his acts created a strong probability that Forrest would die or suffer great bodily harm. See 720 ILCS 5/9-1(a)(1), (a)(2) (West 1998).",sufficiency of the evidence
+439,2465153,1,8,"The trial court was also concerned with the inventory notice provided to the subjects of the wiretap orders. Section 16-15-102(8)(d) requires the subjects of a wiretap order to be notified about the interceptions within a reasonable time, but not later than 90 days after the termination of the wiretap. Near the end of the interception period, Chief Judge Samelson granted the Deputy District Attorney additional time to provide notice due to the ongoing nature of the investigation. Nevertheless, no notice was ever given for Subject Telephone One, and the notice eventually given for Subject Telephone Two referred to Subject Telephone Four in the body of the notice. We hold that neither of these issues warranted suppression. Although the failure to provide notice to the named parties in Subject Telephone One violated the statute, in this case, the failure cannot be said to have implicated a provision that plays a substantive role with respect to the judicial authorization of the intercept order. While the notice provision is important, the failure to comply does not make an interception unlawful. Donovan, 429 U.S. at 434, 97 S.Ct. 658. The intent of the notice provision is to ensure that authorized interceptions eventually become known to the subject. Id. at 438, 97 S.Ct. 658. Here, interception on Subject Telephone One was discontinued after ten days because there was no activity to intercept. The intended subject obtained a new cellular telephone, Subject Telephone Two, and was given notice of the resulting wiretap order on that telephone. Consequently, the intended subjects of the Subject Telephone One wiretap did not suffer any prejudice by not receiving notice of the original wiretap because no calls were ever intercepted on Subject Telephone One, and the subjects were properly notified that their calls on the replacement phone had been intercepted. Therefore, the objective of the notice provision was satisfied. As to the other defect in notice, the mislabeling in the body of the notice, we note that if minor clerical errors do not invalidate a wiretap application or order, they also cannot invalidate a letter of inventory notice. The mislabeling that occurred did not prevent the notified parties from learning that their communications had been intercepted. As such, the spirit of the statute was satisfied and the parties were not prejudiced by this error. We hold that the notice issues did not warrant suppression of the evidence.",issues
+440,2507705,1,2,"Appellants argue this Court should reverse the district court's denial of various motions and vacate the district court's order, or in the alternative, remand for a new trial. As to the non-compete covenant, Isaac asserts it is not ambiguous, that it is overbroad and unenforceable, that it is not assignable, and that the jury was improperly instructed on the law. Farm Air asserts there was insufficient evidence on the claims for tortious interference with contract and prospective economic advantage and thus, instructing the jury on those claims was improper. Additionally, Isaac argues Bybee breached the covenant of good faith and fair dealing by sexually harassing her. Finally, Isaac argues judgment should have been entered against Bybee because, as an individual, he did not prevail on any of his claims. We address each of these issues in turn.
+Isaac contends this Court should reverse the district court's denial of the Appellants' motions for directed verdict, judgment notwithstanding the verdict, and new trial on the basis of several errors. [1] When this Court determines whether a motion for a directed verdict or j.n.o.v. should have been granted, we apply the same standard as the court that originally passed on the motion. Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 430, 95 P.3d 34, 48 (2004). This Court exercises free review and does not defer to the findings of the trial court. Id. We must determine whether, admitting the truth of the adverse evidence and drawing every legitimate inference most favorably to the opposing party, there exists substantial evidence to justify submitting the case to the jury. Id. (internal quotations and citations omitted). We review a trial court's order granting or denying a motion for new trial for a manifest abuse of discretion. Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 755, 792 P.2d 315, 320 (1990). This Court reviews the evidence, but does not weigh it as does the trial court. Id. Abuse of discretion is determined by a three part test which asks whether the district court (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its decision by an exercise of reason. Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d 475, 479 (2004). The district court recognized the decision to grant a new trial was a discretionary decision and supported its decision on the various claims of errors with analysis demonstrating an exercise of reason. Therefore, whether the trial court erred by denying the motions for directed verdict, j.n.o.v., and new trial depends on whether the court erred as a matter of law.
+Isaac contends the district court erred by ruling the covenant not to compete is ambiguous. When the language of a contract is clear and unambiguous, its interpretation and legal effect are questions of law. Lamprecht v. Jordan, LLC, 139 Idaho 182, 185, 75 P.3d 743, 746 (2003). When interpreting the contract, we determine the intent of the contracting parties at the time the contract was entered into and do so by viewing the contract as a whole. Id. Whether a contract is ambiguous is a question of law. Id. A contract is ambiguous when it is reasonably subject to conflicting interpretations. Id. Generally, an ambiguous term in a contract requires the fact finder to determine the intent of the parties. Griffith v. Clear Lakes Trout Co., Inc., 143 Idaho 733, 737, 152 P.3d 604, 608 (2007). The covenant not to compete provides: DENISE ISAAC d/b/a DUSTY'S FLYING SERVICE, Shall not compete directly or indirectly against STAN BYBEE d/b/a NYSSA AIR SERVICE for five (5) years From the date hereof within a fifty (50) mile radius of Mountain Home, Idaho. /s/ Denise Isaac, Owner Dusty's Flying Service, Inc. /s/ Stan Bybee, Owner Nyssa Air Service Isaac contends the non-compete covenant is unambiguous and that consequently, testimony as to the intent of the parties should not have been admitted. The contract names Denise Isaac d/b/a Dusty's Flying Service. However, Dusty's Flying Service was a corporation, which is a distinct legal entity. See Jolley v. Idaho Sec., Inc., 90 Idaho 373, 387, 414 P.2d 879, 887 (1966). Thus, it was unclear whether the agreement applied to Isaac as an individual or solely to the corporation, Dusty's Flying Service, Inc. Therefore, we hold the district court did not err by allowing evidence as to that ambiguous term.
+Isaac contends the non-compete covenant is unenforceable as a matter of law. The parties support their arguments with cases involving non-compete agreements in employment contracts; however, the non-compete covenant in this case was ancillary to the sale of a business. [2] Though this Court has said non-compete covenants are disfavored in the employment context, we have not said they are disfavored when ancillary to the sale of a business. Stipp v. Wallace Plating, Inc., 96 Idaho 5, 6, 523 P.2d 822, 823 (1974) (restrictive covenants in contracts limiting an employee's natural right to pursue an occupation and thus support himself and his family will be strictly scrutinized, but courts are less strict in construing the reasonableness of such covenants ancillary to the sale of a business); Marshall v. Covington, 81 Idaho 199, 203, 339 P.2d 504, 506 (1959) (restrictive covenants in employment contracts are more strictly construed than those ancillary to the sale of a business). Covenants not to compete in business purchase agreements are designed to protect the goodwill integral to the business from usurpation by the former owner, while at the same time allowing an owner to profit from the goodwill, which he or she may have spent years creating. 54a Am.Jur.2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 853 (1996) (footnotes omitted). Covenants not to compete are valid when they are reasonable as applied to the covenantor, the covenantee, and the general public. Stipp, 96 Idaho at 6, 523 P.2d at 823. When the covenant not to compete is ancillary to the sale of a business, any decision on the reasonableness of the covenants must recognize that the vendee is usually purchasing the good will of the business and thus is entitled to reasonable protection from competition by the seller. Id. at 6-7, 523 P.2d at 823-24; see also Vancil v. Anderson, 71 Idaho 95, 101, 227 P.2d 74, 77 (1951). A non-compete covenant must be reasonably limited as to time, scope, and territorial extent. Vancil, 71 Idaho at 101, 227 P.2d at 77; 54a Am.Jur.2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 853. A court determines whether the covenantee has a legitimate business interest worthy of protection and if so, whether the covenant is a reasonable means of protecting that interest. Shakey's Inc. v. Martin, 91 Idaho 758, 763-65, 430 P.2d 504, 509-11 (1967); see also Freiburger v. J-U-B Eng'rs, Inc., 141 Idaho 415, 420-21, 111 P.3d 100, 105-06 (2005). Isaac contends the non-compete covenant is overbroad as a matter of law as to scope, duration, and geographical extent. An agreement is unenforceable when it is so vague, indefinite and uncertain that the intent of the parties cannot be ascertained. . . . Griffith, 143 Idaho at 737, 152 P.3d at 608; see also Freiburger, 141 Idaho at 424, 111 P.3d at 109 (holding non-compete covenant in employment contract was unenforceable as a matter of law for overbreadth). However, when viewing the non-compete covenant in this case in the context of the sale of a business, it is not so overbroad and vague as to be unenforceable as a matter of law. As to duration and geographical extent, the covenant prohibits competition for five years and within a fifty mile radius of Mountain Home. There is no support for an argument that these restrictions on their face are overbroad as a matter of law. As to scope, Isaac complains the covenant restricts all competitive activity in any line of business. When this Court interprets a contract, it must view the contract as a whole. The covenant prohibits the covenantor from compet[ing] directly or indirectly with Bybee. Lamprecht, 139 Idaho at 185, 75 P.3d at 746. The non-compete covenant was part of the purchase agreement. The agreement was to sell the inventory of Dusty's Flying Service, Inc. as well as all the rights and interest in the customer contracts, use of the name Dusty's Flying Service, Inc., and all of the rights and interest in any other aspect of the corporation. Viewing the contract as a whole, it is clear the prohibition on competition corresponds to the type of business engaged in by Dusty's Flying Service, Inc. It is true that in the employment context, non-compete covenants should expressly limit the scope of activities the employee is prohibited from performing. Freiburger, 141 Idaho at 422, 111 P.3d at 107; Pinnacle Performance, Inc. v. Hessing, 135 Idaho 364, 368-69, 17 P.3d 308, 312-13 (Ct. App.2001). However, non-compete covenants ancillary to the sale of a business are not subject to as strict of a construction as are those contained in employment contracts. Stipp, 96 Idaho at 6, 523 P.2d at 823; see also Ryska v. Anderson, 70 Idaho 207, 210-11, 214 P.2d 874, 875 (1950) (noting the non-compete clause was combined with the sale of a business and holding the clause was reasonably limited as to scope; the clause at issue did not specifically articulate prohibitive competitive activity). The non-compete clause in this case was part of an agreement to purchase a business, and when viewing the contract as a whole, the prohibition on indirect or direct competition refers to competing in the crop dusting business in which Dusty's Flying Service, Inc. engaged. Thus, we hold the non-compete covenant is not overbroad as a matter of law as to scope of activity. Therefore, because the covenant is not unenforceable as a matter of law and because a determination that the clause is reasonable is supported by substantial and competent evidence in the record, the covenant is enforceable.
+Isaac insists the non-compete covenant in this case is not assignable and that in any case, the assignment had to be in writing and there was no evidence of any assignment between Bybee and Bybee Air. Isaac argues that because a non-compete covenant must be in writing, the assignment of a non-compete covenant must also be in writing. First, there is no support for the statement that a non-compete covenant must always be in writing. The two cases cited by Isaac stand only for the proposition that those particular non-compete covenants needed to be in writing because the duration of the covenants subjected them to the statute of frauds. See Treasure Valley Gastroenterology Specialists, P.A. v. Woods, 135 Idaho 485, 489, 20 P.3d 21, 25 (Ct.App.2001); Frantz v. Parke, 111 Idaho 1005, 1007, 729 P.2d 1068, 1070 (Ct.App.1986). Nor is there authority supporting the argument that because a non-compete covenant is subject to the statute of frauds, its assignment will also always be subject to the statute of frauds. In this case, the covenant prohibited competition for five years, which does fall within the statute of frauds, but Isaac has not shown how this particular assignment of the non-compete covenant from Bybee d/b/a Nyssa Air Service to Bybee Air Service, Inc. is subject to the statute of frauds, i.e., that the assignment itself could not be performed within one year. See I.C. § 9-505. Isaac also argues that as a matter of policy, non-compete covenants are not assignable. This is an issue of first impression in Idaho. Isaac supports this argument with citations to cases from other jurisdictions—however those cases hold only that non-compete covenants in employment contracts are not assignable. [3] The non-compete covenant in this case was not part of an employment contract; it was ancillary to the sale of a business. Generally, a non-compete covenant ancillary to the sale of a business is assignable and an express assignment of the covenant to the subsequent purchaser is unnecessary; the covenant is treated as part of the goodwill of the business sold. 6 Am. Jur.2d Assignments § 42 (1999). Bybee testified that all of the assets and liabilities of Nyssa Air Service went into Bybee Air. Isaac has not produced any evidence demonstrating that an assignment or transfer of assets did not occur. Therefore, the district court's instruction to the jury, that as a matter of law, the change from Stanley Bybee d/b/a Nyssa Air to Bybee Air Service, Inc. had no effect on the agreement, is in alignment with the general rule. Thus, because non-compete covenants ancillary to the sale of a business are assignable absent a provision to the contrary and in this case an express assignment of the covenant was unnecessary, we hold that the district court did not err by failing to make a conclusion to the contrary.
+Isaac argues that the jury was not properly instructed because the district court failed to include an instruction that non-compete agreements are disfavored and must be strictly construed against the employer. This Court exercises free review in determining whether a jury has been properly instructed. Vendelin, 140 Idaho at 432, 95 P.3d at 50. The Court must determine whether the jury instructions as a whole, fairly and adequately present the issues and state the law. Id. (internal quotations and citation omitted). As discussed above, non-compete covenants are only disfavored in the employment context. The covenant at issue here was ancillary to the sale of a business, thus an instruction that the covenant is disfavored and must be strictly construed against the employer is not relevant. We hold the jury instructions as a whole fairly state the law. The jury was instructed that Bybee Air had the burden of proving a contract existed between itself and Isaac, that Isaac violated the contract, and that the covenant not to compete had to be reasonable in duration, geographical area, and scope of activity limited. Therefore, we hold the jury was properly instructed on non-compete covenants.
+Farm Air asserts that there was insufficient evidence to support jury instructions on the issues of tortious interference with contract and tortious interference with prospective economic advantage. In this case, the damages for the separate torts are the same; therefore, because we hold there was tortious interference with contract, the damages stand and it is unnecessary to address tortious interference with prospective economic advantage. Tortious interference with contract has four elements: (1) the existence of a contract; (2) knowledge of the contract on the part of the defendant; (3) intentional interference causing a breach of the contract; and (4) injury to the plaintiff resulting from the breach. Idaho First Nat'l Bank v. Bliss Valley Foods, Inc., 121 Idaho 266, 283-84, 824 P.2d 841, 858-59 (1991) (citing Barlow v. Int'l Harvester Co., 95 Idaho 881, 893, 522 P.2d 1102, 1114 (1974)). Farm Air argues that because it did not lure Isaac away from Bybee Air Service, there was no evidence it intentionally interfered with the contract. The intent of the intentional interference requirement can be inferred by the jury from evidence of conduct substantially certain to interfere with the [contract]. Highland Enters., Inc. v. Barker, 133 Idaho 330, 340, 986 P.2d 996, 1006 (1999). In a case involving a non-compete covenant in an employment contract, this Court held there was support to find lack of intentional interference when the subsequent employer told the former employee not to contact certain customers and further advised the employee not to breach the agreement. Ins. Assocs. Corp. v. Hansen, 116 Idaho 948, 952, 782 P.2d 1230, 1234 (1989). In this case, there was evidence from which the jury could have inferred Farm Air engaged in conduct substantially certain to interfere with the non-compete agreement. Jon Eason, the owner of Farm Air, knew of the covenant, hired Isaac directly after she quit working for Bybee Air, and testified that he did not ask Isaac to refrain from contact with customers of Bybee Air before or after he hired her nor put any limitations on her ability to contact customers. Additionally, there was evidence supporting the remaining three elements of intentional interference with contract. There was testimony showing Isaac entered into a contract, that Eason knew about the contract and knew Nyssa Air Service became Bybee Air, Inc., and there was testimony showing Bybee Air was injured by Isaac's breach of the contract. Thus, we hold there was sufficient evidence to support the jury instruction on intentional interference with contract, and we find it unnecessary to address Farm Air's arguments on tortious interference with prospective economic advantage.
+Isaac argues the implied covenant of good faith and fair dealing in all employment contracts is breached when an employer sexually harasses an employee and that, therefore, the court erred by instructing the jury to disregard the evidence of Bybee's verbal abuse and physical touching of Isaac. The district court did not give Isaac's requested jury instruction that if Isaac was subjected to harassment, there was a breach of the covenant of good faith and fair dealing. Whether the implied covenant of good faith and fair dealing in employment contracts is breached by sexual harassment is an issue of first impression for this Court. In Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989), this Court recognized there is an implied in law covenant of good faith and fair dealing in employment contracts. This covenant is breached by [a]ny action by either party which violates, nullifies or significantly impairs any benefit of the employment contract. . . . Id. at 627, 778 P.2d at 749. However, a breach of this covenant results in contract damages, and not tort damages. Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 192, 108 P.3d 332, 339 (2005); Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 721, 918 P.2d 583, 590 (1996); Metcalf, 116 Idaho at 626, 778 P.2d at 748. Nonetheless, Isaac alleged tort damages and not contract damages for this breach. Without deciding whether sexual harassment violates the covenant of good faith and fair dealing in employment contracts, we hold the district court did not err in refusing to give an instruction on the claim because Isaac failed to request any contract based damages from the alleged violation of the covenant.
+Isaac argues that the district court should have entered a judgment against Bybee as an individual, because he was not entitled to any damages, thus, entitling Isaac to an award of attorney fees. There is no support for an argument that when a party does not prevail on his claims, he should have a judgment entered against him. In substance, Isaac appears to argue that she is the prevailing party as to Bybee and should be awarded attorney fees accordingly. This Court reviews a determination on prevailing parties for an abuse of discretion. Eighteen Mile Ranch, LLC v. Nord Excavating & Paving, Inc., 141 Idaho 716, 718-19, 117 P.3d 130, 132-33 (2005). Abuse of discretion is determined by a three part test which asks whether the district court (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its decision by an exercise of reason. Sun Valley Potato Growers, Inc., 139 Idaho at 765, 86 P.3d at 479. The district court recognized the determination of prevailing parties was within its discretion and supported its conclusion by an exercise of reason. The court is directed to consider the final judgment or result of the action in relation to the relief sought by the respective parties. I.R.C.P. 54(d)(1)(B). The district court observed that Isaac was not awarded damages on any of her counterclaims and had to pay damages on all of the claims brought against her. In this case, two parties brought the same claims against Isaac; Isaac lost on all of those claims. The fact that Isaac had to pay all the damages to one plaintiff and not to the other does not make her a prevailing party. The district court was well within its discretion to hold that when considering the final result of the action Isaac was not the prevailing party. Thus, we hold the district court did not err when it failed to enter judgment against Bybee.",analysis
+441,1290978,1,2,The decisive issue is whether the plaintiffs have standing to seek a writ of certiorari challenging the district court's amended decree.,issues
+442,902096,1,2,"[¶5.] “Statutory interpretation is a question of law, reviewed de novo.” Nodak Mut. Ins. Co. v. McDowell, 2010 S.D. 54, ¶ 7, 784 N.W.2d 483, 485. The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain, and unambiguous, there is no reason for construction, and [this] Court’s only function is to declare the meaning of the statute as clearly expressed. In re Guardianship of S.M.N., T.D.N., and T.L.N., 2010 S.D. 31, ¶ 9, 781 N.W.2d 213, 217-18.",standard of review
+443,1677649,1,2,"This litigation stems from a dispute between majority and minority shareholders of a closely held family corporation. Because sufficiency of the evidence is at issue, a detailed factual statement is necessary. The Mobile warehousing and moving business that became The Finch Companies, Inc., was founded as a proprietorship in 1933 by Thomas W. Finch. Thomas W. Finch was Betty Jo's father and Callahan's uncle. In 1957 Mr. Finch incorporated his business, forming two corporations: Finch Realty Company and Finch Warehouse and Transfer Company, Inc. The former owned the real estate; the latter operated the business. When Callahan was 13 years old, he came to live with Thomas W. Finch and his wife, who reared him as a son. Thus, although they were cousins, the relationship of Callahan and Betty Jo was more like that of brother and sister. As they were growing up, both Betty Jo and Callahan worked in the family business. After graduating from high school and spending two years in the United States Navy, Callahan returned and began working in the business as a dispatcher. In 1964 Mr. Finch died. Callahan, who at the time of Mr. Finch's death was assistant vice president, became president and chief executive officer of both corporations. During Callahan's presidency the business was successful and grew. Operations expanded to Montgomery and Birmingham. Between 1964 and 1985, five new warehouses were built or acquired, increasing the amount of warehousing space used in the business from 50,000 square feet to 650,000 square feet. Callahan also formed two new corporations: Great Southern Corporation and Furniture Leasing Concepts, Inc. During these years, Callahan and the Fultons established two practices. First was the annual distribution of substantially all the earnings and profits of the business. Because the shareholders were also employees, these distributions took the form of salaries and bonuses. The purpose of this arrangement was to avoid the disadvantageous tax consequences of distributing the earnings and profits of the business to the shareholders in the form of dividends. Second was the practice of maintaining advance accounts for directors and officers. Before 1985, Callahan, Betty Jo, Mrs. Finch, and Samuel Fulton (Betty Jo's husband) each maintained draw or advance accounts. These accounts allowed them to withdraw money during the year. At the end of the year, the accounts would be credited with whatever bonuses were declared. If such bonuses were insufficient to cover the advance account, then the negative balance was carried over to the next year. In 1984 Callahan was elected to the United States House of Representatives. Because of strict limits on outside earned income imposed by ethics rules of the House of Representatives, Callahan proposed that the business reorganize and become a Subchapter S Corporation. The Fultons agreed, and four corporations (Finch Realty Corporation, Finch Warehousing and Transfer Company, Inc., Great Southern Corporation, and Furniture Leasing Concepts, Inc.) were consolidated into one corporation called The Finch Companies, Inc. The Callahans and the Fultons elected to make the new corporation a Subchapter S corporation. Unlike a Subchapter C corporation, corporate earnings in an S-corporation pass through and are taxed directly to the shareholders at individual rates. Shareholders of an S-Corporation are taxed on their proportionate shares of the corporation's earnings, regardless of whether the directors declare any dividends. Thus, under this new arrangement Callahan would receive unearned income from the business in the form of dividends taxed to him but not to the corporation. As part of an agreement between the Callahans and the Fultons, Callahan stepped down, and Betty Jo's son Thomas W. Fulton (Thomas) became president of the newly consolidated corporation. The parties agreed that the Fultons would hold a 51% majority of all the shares of the corporation and that the Callahans would hold 49%. The Fultons and the Callahans also agreed to require Callahan's approval for any capital expenditure in excess of $5,000. Other aspects of the agreement, however, were disputed at trial. Callahan testified that he and Betty Jo orally agreed that each year all the earnings and profits of the corporation would be distributed as dividends to the shareholders. Betty Jo denied any such agreement. Undisputed, however, was testimony showing that all of the corporation's profits for 1985, 1986, and 1987 were distributed automatically without formal action on the part of the board of directors. During the first three years that followed the consolidation, relations between Callahan and the Fultons were generally amicable. These were the most profitable years the business had ever known. In a January 1988 board meeting, Thomas proposed that the business expand from warehousing and local drayage into long-haul freight. After reviewing earnings projections prepared and presented by Thomas at the February 1988 meeting, the board unanimously approved the plan. Based on his own investigation and consultation with others in the long-haul freight business, Thomas estimated that with five tractors and eight trailers, the trucking division would generate first-year earnings of $37,599. Although initially opposed to the idea, Callahan voted in favor of the proposal after receiving assurances from Thomas that losses would not exceed $50,000. Thomas also agreed in January 1988 that if the venture did not succeed, he would shut it down. After the decision in 1988 to enter the long-haul freight business, relations between Callahan and the Fultons began to deteriorate, along with the financial strength of the business. Losses from the trucking division mounted. Callahan continued his practice of taking large withdrawals on his advance account, and Callahan and the Fultons initiated difficult negotiations for the buy-out of Callahan's shares. Contrary to Thomas's projections, the plan to enter the long-haul freight business turned out disastrously. From the beginning, the trucking division suffered heavy losses. By April 1989, after 10 months of operation, the trucking division had lost $77,449. Notwithstanding such losses, in 1989 Thomas leased 20 more trucks and additional trailers. By the end of 1989 the trucking division had lost $300,000. In a business plan prepared by Thomas and presented to the board in February 1990, Thomas projected, based on 1989 information, that the trucking division would have net profits of $88,612 in 1990, $148,000 in 1991, and $213,000 in 1992. The division, however, lost approximately $300,000 in 1990. At trial, Thomas testified that he expected the division to lose around the same amount in 1991. By September 1991, after roughly three years of operation, cumulative losses from the trucking division had reached $950,000. In the February 1990 board meeting, Callahan pleaded with the Fultons to get out of the trucking business. The Fultons considered a plan to shut down the division by buying out the leases and selling the equipment. The corporation had acquired its trucks under leases having terms generally between four and five years. When Thomas negotiated these leases, however, he did not include any contractual way of getting out of them before their terms had expired. Thus, when faced with persistent losses, the corporation could not shut the trucking division down without buying out the leases and selling trucks. Because the market was at that time glutted with trucking equipment, Thomas estimated, in a report to the board in 1990, that if the corporation bought out the leases on the trucks and sold them, it would sustain a loss of $300,000. [4] Later that year, in an internal business plan, it was estimated that as of October 30, 1990, it would cost $700,000 to buy out the leases. In the judgment of the Fultons, however, it was better to try to conduct the trucking business at a profit, or at least at lower levels of loss, until the lease terms expired than to try to sell the trucks and trailers at such a loss in an equipment-laden market. At the February 1990 board meeting, Callahan made a motion to look for means to separate the trucking division from the corporation. Asserting that this proposal was impracticable, the Fultons voted it down. After the 1985 consolidation, Callahan began making large withdrawals from his advance account. In July 1985, immediately after the consolidation, Callahan's draw account had a negative balance of $144,381. Callahan withdrew $49,776.12 in 1985 and $156,155.52 in 1986. Callahan's share of net earnings, however, was only $15,496.41 in 1985 and $72,690.00 in 1986. Thus, although Callahan's share of distributed earnings was credited each year to his advance account, the deficit increased. The Fultons thought the withdrawals were excessive and told Callahan that they could not continue. At the January 1988 meeting of the board of directors, the Fultons informed Callahan that he would have to limit his withdrawals to $10,000 per month. Callahan, however, withdrew $214,290 in 1988. His share of distributed earnings for the year was $188,175. This practice continued, and when this action was filed, the negative balance in Callahan's advance account had reached $416,939. When the Fultons informed Callahan at the January 1988 meeting that he would have to limit his draws to $10,000 a month, Callahan told them that he wanted to be bought out. Shortly after this meeting, Thomas sent a letter to one of the corporation's attorneys authorizing him to represent Callahan in the buy-out negotiations. Against the background of escalating losses in the trucking division and increasing financial difficulty, there followed a series of offers and counteroffers in which the principal dispute was the value of Callahan's shares. In April 1988, Callahan proposed that the two families value Callahan's shares at $3,662,753. Callahan based this estimate on the average of two sums arrived at by employing a capitalized income valuation approach and a net asset value valuation approach. In July 1988 Thomas responded with a valuation of $620,605 and a net cash offer of approximately $600,000, representing $1,000,000 less the deficit balance in Callahan's advance account. The Fultons arrived at their valuation by averaging the net income of the three most profitable years the corporation had ever known (a $101,000-per-year average) and calculating the present value of a stream of such income over a 10-year period. The Fultons thus calculated Callahan's shares to be worth about $620,605. In making their net cash offer, they then increased this figure to $1,000,000. Callahan did not accept, and Thomas withdrew the offer in August 1988. At the January 1989 board meeting, Callahan and the Fultons disputed whether corporate income, upon which Callahan had paid income taxes, was his personal property before the actual declaration of a dividend. Until the parties could obtain legal advice, action was postponed until May 1989. It was subsequently determined that no shareholder was entitled to S-corporation earnings and profits until the board declared a dividend. At the May 1989 meeting, over Callahan's objection, the Fultons voted to distribute 100% of the proceeds from the recent sale of a capital asset, but only 50% of the corporation's earnings. This decision was made retroactive to 1988. In addition, the Fultons voted to require that dividends be applied to outstanding balances on advance accounts and to allow advances in the future only for the purpose of paying taxes on corporate income. However, the board did approve an $80,000 loan to Callahan for the first five months of 1989. Because of the large deficit in Callahan's advance account, the effect of these decisions after 1989 was to prohibit Callahan from receiving any more dividend distributions or taking any more advances, other than those necessary to pay taxes. The Fultons also voted to charge Callahan interest on the outstanding balance of his advance account. At the May 1989 meeting Callahan learned that, without formal board approval, the corporation had obtained a bank loan of $57,000 and had signed a lease costing $646,260. Thomas and Betty Jo had signed and delivered resolutions stating that at a meeting the board had approved the loan and lease in question, even though no such meeting ever took place. On cross-examination, however, Callahan admitted that during his presidency, he and Betty Jo routinely signed such resolutions authorizing various corporate actions notwithstanding the absence of formal board approval. Over Callahan's objection at the May 1989 meeting, the board authorized Thomas to borrow an amount not to exceed $100,000 and authorized Thomas and Betty Jo to borrow sums exceeding $100,000. At the May 1989 board meeting, Callahan also became aware of an investment account opened by Thomas for surplus corporate funds. As with other transactions during this period, the Fultons established the account after submitting to Morgan Keegan & Company, Inc., a resolution signed by Thomas and Betty Jo stating that at a meeting the board had authorized the establishment of the account. No such authorization at a meeting, however, had been given. Over the life of the account Thomas invested $165,982 in corporate funds, for a total loss of $70. Some of the investments were made on a margin, which at times equalled $121,732. At trial Callahan introduced expert testimony indicating that it was very unusual for a corporation to make investments of corporate surplus on margin. After the May 1989 board meeting, the buy-out negotiations continued. In September 1989 Callahan proposed that the parties avoid all the wrangling over valuation and simply divide the assets of the corporation. The Fultons, however, viewing the corporation as a single entity, refused to consider at that time the splitting up of the business. Convinced that his shares were worth $3,800,000, Callahan proposed in October 1989 a sale price of $2,900,000 or $593 per share, to be paid over 10 years. [5] The Fultons rejected the offer as not in the ballpark and suggested that their July 1988 offer price of $204.50 per share was more reasonable. In November 1989, to help the parties arrive at a fair price, Callahan renewed an earlier proposal that the parties consider any offer price to be a figure at which the offeror would be willing to sell. With this suggestion, Callahan offered to sell his shares for $2.9 million or, in the alternative, to buy the Fultons' stock for $3.8 million. The Fultons responded by stating, vehemently, that their stock was not for sale at any price. At this point in the negotiations, the Fultons hired the accounting firm Ernst & Young to appraise Callahan's minority share of the corporation for purposes of a buy-out. Betty Jo had originally commissioned Ernst & Young to determine the fair market value of the corporation for gift and estate tax planning purposes because Callahan and the Fultons had failed to reach an agreement after more than a year of negotiations. Since 1986, Betty Jo, who then owned 47.2% of the outstanding shares, had been anxious about emptying her estate of the stock and transferring it by gift to her sons Thomas and Daniel Fulton and their wives. [6] The Fultons, however, apparently changed the stated purpose of the Ernst & Young appraisal from valuing Betty Jo's shares for estate planning purposes to valuing Callahan's minority interest. The Ernst & Young report valued a 100% controlling interest in the corporation at $2 million, and, after applying minority and marketability discounts, appraised Callahan's 48.9% minority interest at $626,000. Ernst & Young reached the $2 million figure by averaging valuations derived from an income capitalization approach and from a market or comparative company approach. Ernst & Young stated that it declined to employ a cost or net asset value approach to valuation because, it said, such an approach failed to take into account the corporation as a going concern and failed to properly consider its future earnings potential. At trial, Callahan disputed the valuation of the Ernst & Young appraisal. Over the Fultons' objection, Callahan introduced testimony from real estate appraisers indicating that of the seven warehouses owned by the corporation, five were worth $6.9 million and the remaining two were worth $1,784,000. Based upon the liabilities shown on the corporation's financial statements, Callahan's counsel proposed to the jury, in closing argument, that the net asset value of the corporation was $6,825,000 and that Callahan's 48.9% interest had a value of $3,344,440. Based on the Ernst & Young appraisal, Thomas sent a letter, dated December 20, 1989, offering Callahan $1 million for his stock in the corporation. In the letter Thomas explained that the Ernst & Young appraisal had been commissioned to value Callahan's shares for possible buy-out and that this valuation would also serve to establish the value of Betty Jo's stock for purposes of her gift and estate planning. The letter cautioned Callahan that once Betty Jo began giving her stock to her sons and their wives at a share value based on the appraisal, the Fultons would be unable to alter substantially their $1 million offer: It is important to know also that, when a price is paid for stock, any estimated valuation, no matter how well defined, automatically becomes the `fair market value.' Should Mom [Betty Jo] begin gifting stock to Danny [Daniel Fulton] & I [Thomas], at the value determined through the analysis of Ernst & Young, for example, any substantially different price paid within three years of the last gifting, changes the value of those gifts, and subjects Mom to tax on the difference. In December 1990 and January 1991, with no buy-out agreement imminent, Betty Jo made transfers of her stock to her sons and daughters-in-law. [7] Her goal in these gift transactions was to take advantage of the federal annual gift tax exclusions. On advice from Ernst & Young, Betty Jo stated the value of the transferred stock at $79.82 per share. Betty Jo admitted at trial that by doing so she impliedly represented that the entire corporation was worth only $800,000. At trial and on appeal, Callahan and the Fultons have disputed the relationship between Betty Jo's estate planning, the Ernst & Young appraisal, and the buy-out negotiations. The Fultons have asserted that they commissioned the accounting firm to appraise Callahan's shares for the dual purpose of breaking the impasse in the negotiations and arriving at a realistic valuation that would satisfy Callahan and the Internal Revenue Service. At trial, however, Callahan tried to show that the Fultons unfairly devalued his stock in an effort to buy him out at less than fair value and to assist Betty Jo with her estate planning. According to Callahan, Betty Jo wanted to convey her stock and voting power to her sons, but had to limit its value in order to avoid adverse gift and estate tax consequences. Thus, according to Callahan, the purchase value of Callahan's shares was unfairly tied to and limited by the Ernst & Young appraisal and requirements of Betty Jo's estate planning. In February 1990, the board of directors met again. As in 1989, the board declared a dividend of 50% of earnings and profits and required that all dividends be applied first to outstanding negative balances on advance accounts. As in the year before, advances were permitted to pay tax liabilities arising from quarterly corporate profits. Over Callahan's strenuous objection, the Fultons voted to increase Thomas's salary, as president of the company, by $20,000. Callahan moved for, but the board failed to pass, a resolution to increase Patrick Callahan's salary by the same percentage as Thomas and Daniel Fulton's salaries. The board, however, voted to allow Callahan's other son Patrick to receive some bonus commissions that the board had provided for Daniel Fulton and voted to continue Scott Callahan's salary of $40,000 while he was on leave of absence working for a realty company in the Mobile area, in anticipation of later doing realty work for The Finch Companies. It was also during this meeting that the Fultons voted down a resolution, introduced by Callahan, to look for means to separate the trucking division from the corporation. Around the time of the February 1990 meeting, the corporation was experiencing financial difficulty due to the combined effect of the heavy losses suffered by the trucking division and Callahan's large advance account withdrawals. [8] On February 6, 1990, First Alabama Bank wrote Thomas to complain about past due loans and to request that the corporation bring them current. Because of its cash flow problems, the corporation was also threatened by overdrafts. In May 1990, another of the corporation's creditors, AmSouth Bank, denied an application for a $100,000 loan to put a new roof on one of the warehouses. Later, in June 1990, AmSouth complained about past due loans and asked the corporation to submit a plan for repayment. Meanwhile, buy-out negotiations continued, and in September 1990 Thomas proposed a $1,600,000 cash-and-notes plan ($327.20/share). In return for Callahan's stock and payment of his $380,000 debt to the corporation, Thomas and his brother Daniel would borrow $1,000,000 and give Callahan $1,000,000 cash down and a $600,000 note payable in seven years with interest. Because of the corporation's cash flow problems and the consequent difficulty in servicing $1,000,000 more in debt, the September 1990 proposal evolved into a plan to split off part of the corporation to Callahan. This plan involved the tax-free split-off of one of the warehouses to a new corporation formed by Callahan and the transfer to this new corporation of certain accounts, sundry warehousing equipment, a non-interest bearing note for $250,000, and a $750,000 cash payment for working capital. By mid-October 1990, Callahan and the Fultons had reached an agreement in principle under these terms. The agreement, however, was contingent on the Fultons' obtaining long-term mortgage financing in the amount of $1,350,000. Because of the corporation's poor earnings performance and general financial weakness, the Fultons were unable to secure the necessary financing. Despite a net operating loss of $146,108, the corporation managed to make a small profit of $5,101 in 1990. At its February 1991 meeting, the board voted, over Callahan's strong opposition, to declare no dividends for 1990. Also over Callahan's objection, the board passed resolutions prohibiting new advances to officers or shareholders in 1991 and discontinuing Callahan's $1,000 per month director's fee. Unlike in 1990, the board did not advance money to pay tax liabilities. As a result, Callahan had to pay, from other sources of income, taxes on income recognized by the corporation due to interest charged on the deficit balance of Callahan's advance account. On April 10, 1991, Callahan filed this action. At the conclusion of the trial, the judge submitted to the jury a special verdict form and two special interrogatories for the purpose of making advisory findings. The special verdict form included four causes of action: (1) A derivative claim on behalf of the corporation alleging waste and mismanagement, (2) A claim alleging wanton breach of a fiduciary duty of care, brought individually by Callahan and derivatively on behalf of the corporation, (3) An individual claim alleging intentional depreciation of Callahan's stock, brought pursuant to § 10-2A-71, Ala.Code 1975, [9] and (4) An individual claim alleging conspiracy to commit these alleged wrongs. On the derivative claim of waste and mismanagement, brought by Callahan on behalf of the corporation, the jury found for the plaintiff corporation, but awarded no damages. On the corporation's and Callahan's claim of wantonness and on Callahan's claim for conspiracy, the jury found for the Fultons. On Callahan's statutory claim of intentional devaluation of his stock, the jury found for Callahan against the Fultons and awarded him $2,927,500 in compensatory damages. The jury also assessed punitive damages of $1,000,000 against the Fultons. To decide the corporations' counterclaim regarding Callahan's advance account, the trial judge submitted a special verdict question, and the jury returned a special finding that the parties had agreed that the account would be paid only out of future corporate earnings. By special interrogatory, the jury also made two advisory findings: (1) that the acts of the defendants had been oppressive and (2) that the defendants had misapplied or wasted the assets of the corporation. After entering a $3,927,500 judgment for Callahan, the trial judge considered the equitable claims. The trial judge adopted the jury's advisory findings and after making his own additional finding that there had been a breakdown of the corporate entente cordiale, the trial judge held that Callahan was entitled to equitable relief. In his initial November 1991 order, the judge removed the existing directors and appointed a new board consisting of a receiver/trustee, a director appointed by the court, two directors named by Callahan, and an additional director appointed by the receiver/trustee. Although retaining the power to do so, the trial judge did not provide for the immediate dissolution and liquidation of the corporation. On the contrary, the initial order granted the receiver/trustee and new board broad powers to conduct the business as a going concern. In December 1991, the trial court amended its November 1991 order, increasing the number of directors from five to seven and allowing the Fultons to appoint two directors to the new board. In January 1992, the trial judge ordered the directors to present to the court a plan to liquidate the corporation. In November 1991, the Fultons filed a post-trial motion requesting the trial court to enter a judgment notwithstanding the verdict or a new trial, or to alter, amend, or vacate the judgment; or, in the alternative, to order a remittitur. The Fultons also moved to stay the trial court's equitable order. Presented with these motions were affidavits from two jurors describing use of dictionaries during the deliberations. After reviewing the parties' briefs and hearing oral argument, the trial judge denied the Fultons' post-trial motion in all respects.
+The first issue is whether the evidence introduced at trial was sufficient to sustain Callahan's claim under § 10-2A-71, Ala. Code 1975, alleging intentional devaluation of his stock by the Fultons. Section 10-2A-71, Ala.Code 1975, states: No president, director or managing officer of any corporation ... shall do or omit to do any act, or shall make any declaration or statement in writing, or otherwise, with the intent to depreciate the market value of the stock or bonds of such corporation, and with the further intent to enable such president, director or other managing officer, or any other person, to buy any such stock or bonds at less than the real value thereof. This statute specifically proscribes unfair stock dealings by directors and officers. Alabama Code 1975, § 10-2A-71, commentary. A cause of action under this statute includes the following elements: (1) A defendant who is a president, director, or managing officer, irrespective of title, (2) An act or a declaration or statement, in writing or otherwise, (3) Intent to depreciate the value of the corporation's stock or bonds, with the further intent to enable the director or officer defendant, or another person, to buy the corporation's stock or bonds at less than their real value, and (4) damage. The measure of damages is the difference between the real and the depreciated value of the stock at the time the defendant perpetrates the wrongfully depreciating act. Belcher v. Birmingham Trust Nat'l Bank, 348 F.Supp. 61, 147 (N.D.Ala.1968), stay denied, 395 F.2d 685 (5th Cir.1968). The trial court denied the defendants' motions for directed verdict and judgment notwithstanding the verdict, on the issue of the sufficiency of the evidence to support Callahan's stock devaluation claim. On appeal, the Fultons make three arguments to demonstrate that Callahan failed to prove a claim under § 10-2A-71. First, they argue that the statute provides only for an equitable remedy to reverse a sale of stock. Second, they argue that because Callahan suffered no loss on a sale of stock that was proximately caused by unfair insider dealing, they are not liable. Third, they contend that because Callahan was aware of all the facts relevant to any valuation of the corporation and its stock, Callahan has failed to prove a claim under § 10-2A-71. Although this Court has never construed this statute, a federal district court sitting in Alabama applied a predecessor to this provision in Belcher v. Birmingham Trust Nat'l Bank, 348 F.Supp. 61 (N.D.Ala.1968) (applying Code of Ala.1940, Tit. 10, § 92), stay denied, 395 F.2d 685 (5th Cir.1968). Although the earlier statute, Tit. 10, § 92, Code of Ala. 1940, was a criminal provision, the language of the former statute and the present one are almost identical. Compare Ala.Code 1975, § 10-2A-71, with Ala.Code 1940, Tit. 10, § 92. In Belcher, the district court construed Tit. 10, § 92, to imply a civil cause of action for violation of the statute. Belcher, 348 F.Supp. at 146. The court held several majority-shareholder directors and officers liable for concealing and failing to divulge the value of timber lands owned by the corporation with the intent of buying another shareholder's shares at less than their real value. Belcher, 348 F.Supp. at 147. The Belcher court viewed the majority-shareholder directors and officers' purchase offers as impliedly representing that the prices offered for the minority shareholders' stock reflected its fair value. See Belcher, 348 F.Supp. at 138, n. 11; see id. at 143-47. The key factor in Belcher was that the defendants knew the [true] underlying values. Id., at 147. The Fultons' first argument, that § 10-2A-71 provides only for an equitable remedy, is without merit. Neither the language and purpose of the statute nor the district court's opinion in Belcher supports this construction. Equally without merit is the Fultons' second argument that to recover damages under § 10-2A-71 a plaintiff must have suffered a loss on a sale of stock, which loss was proximately caused by the defendant's act or statement made to devalue the stock. The language of § 10-2A-71 requires only that the defendant act or make a statement with the intent to devalue the stock with the further intent to enable such president, director or other managing officer, or any other person, to buy such stock or bonds at less than the real value thereof. Ala.Code 1975, § 10-2A-71 (emphasis added); Belcher, 348 F.Supp. at 146-47. It is unnecessary to prove that the defendant purchased the stock; a plaintiff need only prove that the defendant intentionally acted to devalue the stock with the intent to be able to buy the stock at less than its real value. Third, the Fultons argue that Callahan failed to prove a claim because, they say, he was fully aware of the facts relevant to any valuation of his stock. The Fultons' argument mischaracterizes the nature of the wrong that the statute proscribes. The Fultons' argument impliedly analogizes to an action for fraud and assumes thereby that some type of reliance on the part of the plaintiff is required. Section 10-2A-71 provides that directors and managing officers owe a duty not to engage in unfair insider dealings for the purpose of buying shareholder stock at less than real value. The statute constitutes a more specific statutory expression of the general fiduciary duty owed by directors and officers to shareholders under other provisions of the Alabama Business Corporation Act. See Ala.Code 1975, § 10-2A-76 (fiduciary duties of directors); § 10-2A-74 (director's general duty of care). As in an action alleging breach of fiduciary duty, the only relevant facts under § 10-2A-71, for purposes of sufficiency, are the defendant's intent and conduct and the damage incurred by the plaintiff. Thus, even if substantial evidence existed from which a jury could reasonably find that Callahan was indeed aware of all the facts relevant to the value of his stock, he could still recover if the defendants' conduct was otherwise actionable. More generally, the Fultons argue that the evidence is insufficient to sustain a claim of devaluation with an intent to buy at less than real value. The standard of review is whether the nonmoving party has produced substantial evidence to support its claim. Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990); Ex parte Oliver, 532 So.2d 627 (Ala.1988); see also Ala.Code 1975, § 12-21-12. In determining the propriety of a directed verdict or judgment notwithstanding the verdict, this Court must review the entire evidence and indulge every reasonable inference in favor of the nonmoving party. Northeast Alabama Regional Medical Ctr. v. Owens, 584 So.2d 1360, 1365 (Ala.1991). After carefully reviewing the record in the light most favorable to Callahan, this Court concludes that Callahan presented substantial evidence from which a reasonable jury could infer that the Fultons had intentionally devalued the corporation's stock with the intent of buying Callahan's stock at less than its real value. Callahan's evidence of the relationship between Betty Jo's estate planning and the buy-out negotiations with Callahan constituted substantial evidence from which a jury could reasonably infer that the Fultons intended to tie the buy-out price to Betty Jo's estate planning, enabling them thereby to buy out Callahan at less than fair value and allowing Betty Jo to transfer more stock without gift tax consequences. Both Thomas's December 20, 1989, letter to Callahan informing him that the Fultons would be unable to substantially raise their $1 million offer after Betty Jo began gifting her shares and the relatively low $79.82 per share value Betty Jo used when reporting her 1989 and 1990 gifts of stock constitute substantial evidence that the Fultons had depreciated Callahan's stock with the intent to buy it for less than its real value. Moreover, the inference of unfair insider dealing is strengthened by the facts that after the May 1989 meeting Callahan was effectively unable to receive any more income from the corporation and that the Fultons were really the only market for Callahan's stock. In our disposition of this issue, we emphasize the special considerations presented by the fact that Callahan was a minority shareholder in a closely held corporation. Callahan's position in the circumstances of this case illustrates the unique vulnerability of minority shareholders in closely held corporations, especially in buy-out negotiations, when often there is no real market for their shares. Because of the limited marketability of their shares and the right of the majority shareholders to control corporate decision-making in closely held corporations, minority shareholders are restricted in their ability to realize the value of their investment, whether it be in the form of salary, dividends, or proceeds from a sale of their stock. Callahan depended, as minority shareholders generally do, on the Fultons' treating him fairly.
+The second issue for our consideration is whether the trial court erred in denying the Fultons' motion for new trial based on allegations of juror misconduct. Submitted with the Fultons' post-trial motion for new trial were three juror affidavits stating, among other things, that the jury foreperson brought a pocket dictionary into the jury deliberations and consulted it to determine the meaning of key terms in the trial judge's oral charge. The threshold question here is whether, under the facts of this case, this Court will consider juror affidavits for the purpose of impeaching the jury's verdict. The general rule in Alabama, as well as in a majority of jurisdictions, is that affidavits of jurors will not be accepted for the purpose of impeaching their own verdict. Weekley v. Horn, 263 Ala. 364, 365, 82 So.2d 341 (1955); see also Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984); Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961). This general rule is subject to an exception which arises when the affidavits tend to show extraneous facts which have influenced the verdict. Whitten, 447 So.2d at 657; see also Allman, 272 Ala. at 115, 130 So.2d at 198; Weekley, 263 Ala. at 366, 82 So.2d at 342; Leith v. State, 206 Ala. 439, 90 So. 687 (1921). Thus, the exception has two components: (1) presence of extraneous facts before the jury and (2) influence on the verdict. On the question of use of the dictionary, juror V.W.'s affidavit states: 4. In addition to our handwritten notes from the Judge's oral jury charges, the jury forewoman, M.M., brought in a small pocket dictionary which was used to help us understand the meaning of some of the terms used in the judge's oral jury charge and on the jury verdict form. During the course of the jury deliberations, different jurors asked Ms. M. for several word definitions including, to the best of my recollection, the definitions of the words `oppressive', `conspiracy', `waste', and `wantonness.' Ms. M. looked up the requested words and read out the definitions to the members of the jury. These definitions were taken into consideration by me and the other jurors prior to voting and filling out the verdict form. Similarly, juror K.W.'s supplemental affidavit states: 2. During the jury deliberations on the morning of October 29, 1991, M.M., the forewoman, read to the jury the definitions of at least two words from a small dictionary which she had with her. Two of the definitions I recall that she read were for the words `oppressive' and `wantonness'. After Judge Kittrell had given us his charge on the afternoon of October 28, 1991, I was particularly concerned with the definition of the word `oppressive', and I looked up the definition of that word in a dictionary I had at the office, Webster's New World Dictionary, 3rd Collegiate Edition. On the morning of October 29, 1991, during the jury's deliberations, I read to the jury the definition of `oppressive' which I had obtained from the Webster's Dictionary. I believe that those dictionary definitions read to the jury by Mrs. M. and me during the jury deliberations were taken into consideration by me and the other jurors and influenced us in our voting on the verdict in the above case. Definitions of legal terms and concepts... from general reference books ( World Book and American College Encyclopedia Dictionary ) are extraneous matters and fall within the exception to the general rule which, likewise, is well recognized in our case law. Nichols v. Seaboard Coastline Ry., 341 So.2d 671, 673 (Ala.1977) (emphasis in the original). The affidavits of both V.W. and K.W. show that the foreperson, M.M., brought a small pocket dictionary into the jury room and read definitions of terms from the judge's oral charge, such as oppressive, conspiracy, waste, and wantonness. K.W.'s affidavit shows that K.W. also read to the jury definitions he had looked up in a dictionary kept at his office. Both affidavits indicate that the jurors considered these definitions before voting, and K.W. stated that he believed the definitions influenced the voting. Because the affidavits show both the presence of extraneous matters and evidence of influence on the verdict, we consider the affidavits submitted by the Fultons. The principal issue now becomes whether the juror misconduct, in the circumstances of this case, requires the granting of a new trial. In Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), this Court stated the often quoted rule concerning juror misconduct: Juror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law. Whitten, 447 So.2d at 658 (overruling Jones v. McMonigal, 409 So.2d 1381 (Ala.1982), to the extent Jones had excluded, as a ground for granting a new trial, extraneous matters from which prejudice may be presumed); see also Jordan v. Brantley, 589 So.2d 680 (Ala.1991) (quoting the Whitten rule); Nowogorski v. Ford Motor Co., 579 So.2d 586 (Ala.1990) (quoting the Whitten rule); Coots v. Isbell, 552 So.2d 139, 140 (Ala.1989) (quoting the Whitten rule). In each of the cases in which we have held that the trial judge erred in failing to grant a new trial, there has been a common factor— the existence of juror misconduct that could have affected the verdict. Nowogorski, 579 So.2d at 589 (emphasis in the original); Coots, 552 So.2d at 140. Consideration of the prejudicial effect of extraneous matter has been held to be a case-by-case determination to be made in light of the particular facts and attending circumstances. Nowogorski, 579 So.2d at 590; see also Nichols, 341 So.2d at 676-77. [10] Thus, this Court will affirm a trial court's denial of a motion for a new trial if the trial court could have reasonably found that the introduction of the extraneous matter into the jury's deliberations was not prejudicial. Jordan v. Brantley, 589 So.2d 680, 682 (Ala.1991). Callahan argues that the defendants could not have been prejudiced by the jury's reference to the dictionary definitions. After noting that the V.W. and K.W. affidavits refer to only four words, wantonness, conspiracy, oppressive, and waste, Callahan argues: As to wantonness and conspiracy, the jury found in favor of the Fultons. The Fultons surely cannot argue prejudice in that regard. To the extent that `waste' was relevant in a finding against the Fultons on the mismanagement claim, there could be no prejudice because no damages were awarded thereunder. As to the question of oppression and waste, the jury's findings in favor of Callahan were advisory only.  (Emphasis in the original.) The Fultons, however, contend that the verdict was influenced to their prejudice because the terms oppression and wantonness were part of the judge's oral charge to the jury on punitive damages: The law states that punitive damages may not be awarded in a tort action except where it is proven by clear and convincing evidence that the Defendant consciously or deliberately engaged in oppression, fraud, wantonness or malice with regard to the Plaintiff. (Emphasis added.) Relying on Nowogorski and Nichols, the Fultons argue, alternatively, that the dictionary definitions constituted extraneous material that was prejudicial as a matter of law. We hold that it was reversible error to deny the Fultons' motion for new trial on the basis of juror misconduct. Considering the jury's assessment of punitive damages in this case, we hold that the trial court could not have reasonably concluded that the jury's reference to dictionary definitions of oppression and wantonness was not prejudicial. These terms were material to a finding of the type of conduct necessary to support an award of punitive damages. Moreover, the V.W. affidavit and the K.W. affidavit each states that the affiant and the other jurors considered the definitions before voting. K.W.'s affidavit states further that he believed that the definitions influenced [the jury] in [its] voting on the verdict. Because we conclude that the Fultons have shown actual prejudice, we do not reach their argument that the use of the definitions was prejudicial as a matter of law. We believe our holding here is consistent with our recent decisions in Jordan v. Brantley, 589 So.2d 680 (Ala.1991), and Nowogorski v. Ford Motor Co., 579 So.2d 586 (Ala.1990). In Jordan the plaintiffs filed negligence claims against a number of defendants, arising out of the misidentification of the bodies of two men killed in an automobile accident. According to juror affidavits, the jury was unable to reach a verdict until the second day of deliberations, when the jury foreperson used a dictionary to look up the meanings of prudent and reasonable. Because these terms were material to resolving a key issue in the case and because the foreperson told the trial court that the dictionary definitions had influenced the jury, this Court affirmed the trial court's granting of the defendant's motion for new trial, holding that the trial court could have reasonably found that the presence of extraneous matter in the jury deliberations was prejudicial. In Nowogorski, the plaintiff filed a claim under the Alabama Extended Manufacturer's Liability Doctrine in which the critical factual question was whether a tractor sold to the plaintiff's husband was defective. Although the juror affidavits varied, seven of them stated that a dictionary definition of defective was read to the jury during its deliberations. At least one juror stated that before hearing the dictionary definition of defective, he was more in favor of the plaintiff, but that after hearing it he was more in favor of the defendant manufacturer. The jury eventually rendered a verdict against the defendant. Finding that this evidence was sufficient to demonstrate that the juror misconduct could have affected the verdict, this Court held that the trial court had erred in denying the plaintiff's motion for a new trial. As in Jordan and Nowogorski, the juror affidavits in this case indicate that the jury considered dictionary definitions of terms material to a key issue in the case. Moreover, as in Nowogorski, at least one juror affidavit in this case stated that the juror believed that the jury's consideration of the definitions influenced the jury. The Court in Nowogorski held that the statement of the juror who said that he was more in favor of the defendant after hearing the definition than before was sufficient evidence of prejudice, even though the jury eventually rendered a verdict against that defendant: We have carefully examined the record in this case. Mrs. Nowogorski's claim that the jurors' verdict was affected by the reading of some key definitions out of Webster's New Collegiate Dictionary is supported by the affidavits presented. Here, as in Whitten and Nichols, at least one juror testified that this decision about the case was influenced by the extraneous dictionary definitions to be `more in favor' of Ford than in favor of the plaintiff. This evidence is sufficient to prove that the verdict was affected by juror misconduct.  Nowogorski, 579 So.2d at 590 (emphasis added). Thus, the inquiry is whether the dictionary definitions could have influenced the decision-making of the jury, not whether the jury's consideration of the definitions necessarily determined the outcome. Because we find that the juror misconduct in this case could have affected the verdict, we hold that the trial court erred in not granting the Fultons' motion for new trial.
+The Fultons allege various other forms of juror misconduct: bias or prejudice, material alterations of the verdict form, and failure to follow the court's instructions. Because we reverse and remand for a new trial on the basis of the jury's use of a dictionary, we pretermit discussion of these other allegations of juror misconduct.
+The Fultons challenge the trial court's award of equitable relief on two bases. First, the Fultons argue that the trial court's findings were plainly and palpably wrong. Second, the Fultons argue that, notwithstanding the propriety of the trial court's findings, the trial judge did not have the authority under § 10-2A-196, Ala. Code 1975, to dismiss duly elected officers and directors of the corporation and order a procedure for filling their vacancies and continuing the business indefinitely as a going concern. Section 10-2A-195, Ala.Code 1975, grants a circuit court the power to dissolve and liquidate a corporation in an action brought by a shareholder, when it is established: a. That the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock, and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or b. That the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent; or c. That the shareholders are deadlocked in voting power, and have failed, for a period which includes at least two consecutive annual meeting dates, to elect successors to directors whose terms have expired upon the election of their successors; or d. That the corporate assets are being misapplied or wasted; or e. That the corporation is insolvent. Ala.Code 1975, § 10-2A-195(a)(1) (1980 Ala.Acts, No. 80-633, § 108); see also Levine v. Beem, 608 So.2d 373 (Ala.1992). The substance of this Code provision was adopted by Alabama in 1959; see 1959 Ala. Acts, No. 414, § 78, at 1095 (codified at Tit. 10, § 21(78), Ala.Code 1940 (recompiled 1958), repealed, 1980 Ala.Acts, No. 80-633), and like much of the Alabama Business Corporation Act, it is derived from the ABA Model Business Corporation Act. Before 1959, the common law governed involuntary liquidation and the appointment of receivers. Section § 10-2A-196 sets out the procedures and powers of a circuit court in liquidating a corporation: (b) After a hearing had upon such notice as the court may direct to be given to all parties to the proceedings and to any other parties in interest designated by the court, the court may appoint a liquidating receiver or receivers with authority to collect the assets of the corporation.... The Fultons argue first that the trial judge's findings were plainly and palpably wrong. Because the trial court adopted the advisory findings of oppression and waste or misapplication of corporate assets, this Court directs its review as if the trial judge had heard the case unaided by the jury's advice. McCaghren v. McCaghren, 294 Ala. 89, 312 So.2d 384, 385 (Ala.1975); see also Jackie Fine Arts, Inc. v. Berkowitz, 448 So.2d 318, 321 (Ala.1984). This Court will revise the findings of trial judges on questions of fact only where, after making proper allowances and indulging all reasonable intendments in favor of the court below, we reach the clear conclusion that the findings are unsupported by the evidence or that the judgment is palpably wrong as being against the great weight of the evidence. Berkowitz, 448 So.2d at 321. The Fultons argue that under Alabama case law, appointment of a receiver is an extreme remedy, justified only when the facts disclose a scheme on the part of the directors or majority shareholders to wreck the corporation and dissipate its assets and the minority shareholder proves that serious loss and complete ruin is inevitable and imminent. The Fultons contend that Callahan failed to establish either a scheme to wreck the corporation and dissipate its assets or an inevitable and imminent risk of serious loss and complete ruin to the underlying corporate assets that would justify appointment of a receiver. The Fultons' argument emphasizes the extreme nature of the remedy and the traditional view that it is proper only to preserve underlying corporate assets from imminent serious loss caused by the wrongful conduct of those shareholders in control of the corporation. In support of their argument, the Fultons cite decisions of this Court in Phinizy v. Anniston City Land Co., 195 Ala. 656, 71 So. 469 (1916), Gettinger v. Heaney, 220 Ala. 613, 127 So. 195 (1930), and Lost Creek Coal & Mineral Lands Co. v. Scheuer, 222 Ala. 400, 132 So. 615 (1931). In Phinizy, this Court declared the long-standing view of dissolution and appointment of receivers in Alabama: The doctrine which justifies the drastic intervention of equity courts in corporate affairs in the mode here sought is grounded on the theory that the valuable rights of minority stockholders can be rescued, along with those of a recalcitrant majority, from a common ruin. It does not contemplate the infliction of any loss or injury upon the majority stockholders in order that the minority may be benefited. To help the one class by hurting the other would be an indefensible wrong. It needs no argument to show that this power of intervention, however wholesome and necessary its exercise may sometimes be, is extremely dangerous in its tendencies, and should be exercised only in the plainest cases. It is not enough that the past prosecution of the corporate enterprise or business has been a financial failure, nor is it enough that its future prosecution will probably be devoid of profit, however strong the probability may seem. On the contrary, so long as the corporation is a going concern; so long as it possesses the means and ability to pursue one or more of its primary purposes or lines of business; and so long as the conditions exhibited do not demonstrate to a moral certainty that its continuation must by inevitable necessity result in serious loss in the near future, and in complete ruin sooner or later—a court of equity will not and should not deprive the majority stockholders of their right to carry on their business under their chosen management, however speculative and uncertain its prospects may seem to a disapproving and dissentient minority. Those who embark in a corporate enterprise as stockholders do so under an implied agreement that the business shall be controlled and directed by a majority of the stockholders. 195 Ala. at 660-61, 71 So. at 471. In Gettinger v. Heaney , this Court summarized the rule: It is too well settled to permit a doubt that a minority stockholder is entitled to the appointment of a receiver, where the corporation has failed of its purpose, or where the facts disclose a scheme on the part of the directors or a majority stockholder to wreck the corporation and dissipate its assets, and the board of directors, being, as to the stockholders, trustees of the corporate property and affairs, may be deprived of their power, `when, by fraud, conspiracy, or covinous conduct, or extreme management, the rights of minority stockholders are put in imminent peril and the underlying, original, corporate entente cordiale is unfairly destroyed.' 220 Ala. at 617, 127 So. at 198. While these cases remain the law in Alabama, the adoption in 1959 of what is now § 10-2A-195(a)(1) liberalized the law regarding dissolutions and extended the jurisdiction of the court to dissolve and liquidate corporations. Abel v. Forrest Realty, Inc., 484 So.2d 1069, 1072 (Ala.1986); see Belcher v. Birmingham Trust Nat'l Bank, 348 F.Supp. 61, 148 (N.D.Ala.1968) (construing Tit. 10, § 21(78), Ala.Code 1940). The inclusion of illegal, oppressive or fraudulent acts by directors or those in control, as grounds for appointment of a receiver under § 10-2A-195(a)(1), reflects the legislative extension of the remedy to do more than just protect or rescue the underlying assets of the corporation from wilfully destructive conduct of controlling shareholders. Consonant with this legislative expansion of protectible interests is this Court's recognition of a duty on the part of majority shareholders to act fairly toward minority interests. Burt v. Burt Boiler Works, Inc., 360 So.2d 327, 331 (Ala. 1978). Even before the enactment of the provision now codified at § 10-2A-195(a)(1), this Court recognized in Altoona Warehouse Co. v. Bynum, 242 Ala. 540, 7 So.2d 497 (1942), the protection of these interests by appointment of a receiver: That solvent corporations are wrecked for purely selfish and illegal purposes, that minority interests are `frozen out,' that business immorality has run amuck under the assumption that courts are powerless, is too true. But the assumption is wrong. Judicial hesitancy does not mean judicial atrophy or paralysis. The board of directors of a corporation are but trustees of an estate for all the stockholders, and may not only be amenable to the law, personally, for a breach of trust, but their corporate power under color of office to effectuate a contemplated wrong may be taken from them when, by fraud, conspiracy, or covinous conduct, or extreme mismanagement, the rights of [a] minority of stockholders are put in imminent peril and the underlying, original, corporate entente cordiale is unfairly destroyed. It would be a sad commentary on the law if, when the trustee of a corporate estate is making an improper disposition of it, or has shown improper partiality toward one of its conflicting parties, or has put the estate in a fix [because of which] it is liable and likely to be either wasted or destroyed, or [has] mercilessly taken from all and given to a part, a court could not reach out its arm and preserve and administer the estate. 242 Ala. at 546, 7 So.2d at 502 (emphasis added) (quoting 6 Thompson § 4628, at 528 (3d ed. 1927)). In Altoona Warehouse Co., entente cordiale was defined as the mutual confidence in the integrity of purpose and effort to carry on the affairs of the business of the corporation for the benefit of all the stockholders. 242 Ala. at 545, 7 So.2d at 502. Thus, we conclude that Callahan did not have to show that the Fultons willfully wrecked the corporation and dissipated its assets and that the corporation's assets were in imminent danger of serious loss. As § 10-2A-195(a)(1) provides, Callahan only had to prove one of the enumerated grounds for appointment of a receiver. Both the jury, through its special advisory interrogatory, and the court found oppression and waste. With regard to the trial court's finding of a breakdown of entente cordiale, we construe Altoona Warehouse Co. to require proof only that, because of intentional misconduct, the rights of [a] minority of stockholders are put in imminent peril and the underlying, original corporate entente cordiale is unfairly destroyed. 242 Ala. at 546, 7 So.2d at 502. After carefully considering all the facts and circumstances in light of the standard of review, we cannot say that the trial court's findings were not supported by the evidence or were against the great weight of the evidence. From the Fultons' conduct during the buy-out negotiations and other facts and circumstances, the trial court could have inferred that the Fultons had oppressed Callahan. Furthermore, the trial court could have inferred that intentional misconduct by the Fultons had destroyed the corporate entente cordiale and that Callahan's minority rights and interests were in imminent danger of serious loss. The Fultons' second argument is that while § 10-2A-196(b) authorizes the court to appoint a liquidating receiver to collect the assets of the corporation, it does not give the court the power to remove properly elected directors, to order a procedure for appointing a new board, or to appoint receivers to continue the business indefinitely as a going concern. Because a provision of the trial court's January 8, 1992, order directed the new board of directors to present a plan of liquidation, we do not address the issue of the trial court's power under the statute to appoint and authorize a receiver to manage and continue a business as a going concern. What the Fultons are disputing here in their second argument is not so much the court's jurisdiction to liquidate the corporation as the court's authority or power to frame the remedy as it did. The court clearly has the discretion to appoint a liquidating receiver under § 10-2A-196(b) if it makes a finding of one of the jurisdictional grounds of § 10-2A-195(a)(1). Although the language of § 10-2A-196(b) does not specifically give a circuit court the power to remove duly elected directors and appoint new ones, that section does not limit the power of a circuit court to frame its judgment to afford equitable relief. Section 10-2A-76, Ala.Code 1975, preserves unimpaired the court's equitable jurisdiction to prevent or remedy fraud, oppression, and other inequitable conduct: Neither an unqualified statement of rights or powers, nor an unqualified grant of authority herein, shall be taken or construed, to abrogate, repeal, displace, modify or impair ... the jurisdiction of the courts to grant relief by way of injunction or otherwise, in order to forestall, prevent, correct, remedy or allow damages for fraud, oppression, imposition or other inequitable or remedial conduct in conformity with the applicable principles and practices of law. In Abel v. Forrest Realty, Inc., 484 So.2d 1069 (Ala.1986), this Court affirmed a trial court's refusal to dissolve a corporation, stating that the ultimate decision of whether to dissolve a corporation must be made by the trial court, guided by equitable principles, based on the particular facts of each case. 484 So.2d at 1071. Likewise, It is also in the very nature of equity proceedings that the trial court is authorized to mold its decrees so as to adjust the equities of all parties and to meet the obvious necessities of each situation. Coupounas v. Morad, 380 So.2d 800, 803 (Ala.1980) (imposing constructive trust on second newly formed corporation in favor of original corporation to remedy the usurping of a corporate opportunity). We hold that in the circumstances of this case, it was within the equitable jurisdiction of the trial court to frame its judgment to provide for the removal of the existing board of directors and the appointment of a new one to formulate a plan of liquidation.
+Because the trial court committed reversible error in denying the Fultons' motion for a new trial on the basis of juror misconduct, the judgment on the jury verdict must be reversed. There was sufficient evidence to submit the stock depreciation claim to the jury, so the trial court did not err in denying the motion for JNOV. The judgment is affirmed insofar as it grants equitable relief. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. HORNSBY, C.J., and MADDOX, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur. HOUSTON, J., concurs specially.",facts
+444,3134705,1,2,"A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C. , 186 Ill. 2d 542, 550 (1999). Whether a statute is constitutional is a question of law that we review de novo . People v. Fisher , 184 Ill. 2d 441, 448 (1998). “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig , 497 U.S. 836, 845, 111 L. Ed. 2d 666, 678, 110 S. Ct. 3157, 3163 (1990). The confrontation clause permits hearsay evidence to be admitted against a defendant only where either the evidence falls within a firmly rooted hearsay exception or particularized guarantees of trustworthiness assure the reliability of the evidence. Ohio v. Roberts , 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980). Reliability of the Evidence Defendant’s first argument, that the statute violates the confrontation clause, consists of three prongs: (1) the statute does not require the State to establish the unavailability of the crime lab employee before introducing the lab report; (2) the statute neither falls within a firmly rooted hearsay exception nor requires particularized guarantees of trustworthiness; and (3) the statute is not necessary to further an important public policy. We agree with defendant’s second point and thus see no need to address the other two arguments. Defendant’s argument is based primarily on Ohio v. Roberts , 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), in which the Supreme Court held that hearsay evidence must possess certain indicia of reliability. Roberts , 448 U.S. at 65-66, 65 L. Ed. 2d at 607-08, 100 S. Ct. at 2538-39. (footnote: 3) For the third prong of his argument, defendant relies on Craig , 497 U.S. at 850, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166, in which the Supreme Court held that a defendant’s right to confront the witnesses against him may be denied only where that denial is necessary to further an important public policy. The State does not address these arguments on their merits, instead choosing to argue that section 115–15 does not create a confrontation clause problem because subsection (c) of the statute allows defendants to preserve their confrontation rights. We agree with defendant. First, the evidence admissible pursuant to section 115–15 does not fall within a firmly rooted hearsay exception. In the trial court, the State argued that section 115–15 lab reports fall within the business records exception to the hearsay rule. This is unquestionably false. An exception to the business records hearsay exception are those writings or records that have “been made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind.” 725 ILCS 5/115–5(c)(2) (West 1998); People v. Smith , 141 Ill. 2d 40, 72 (1990). The lab reports covered by section 115–15 are prepared during the course of criminal investigations and are requested by the State in anticipation of prosecutions. Second, section 115–15 does not contain particularized guarantees of trustworthiness. Essentially, the preparer of the report merely has to attest that he or she is qualified to conduct the test and that he or she used due caution and acted within established procedures. Indeed, in this case, the only information as to Sandra Brown’s qualifications is her own statement in the affidavit that her “education, training and experience qualify [her] to perform the analyses conducted in this manner.” The statute does not require the State to provide any information as to how the tests are conducted, what the accepted scientific procedures are, and what qualifications and training the crime lab employees must have. In other words, after the defendant has been arrested, the entity that seeks to prosecute him sends the evidence to its own lab for testing. The evidence is then admissible on nothing more than the vague assurances of the prosecuting authority’s own employee that proper testing was done and that the employee is qualified to do the testing. The State does not argue, nor do we discern, that the statute contains particularized guarantees of trustworthiness. In sum, we agree with defendant that the lab reports admissible pursuant to section 115–15 neither contain particularized guarantees of trustworthiness nor fall within a firmly established hearsay exception. We turn next to the question of whether any confrontation clause problems are avoided by subsection 115–15(c), which allows defendants to demand the testimony of the report’s preparer within seven days of a defendant’s receipt of the report. Demand Provision Defendant’s argument with respect to the demand provision of section 115–15(c) consists of two interrelated parts. Defendant argues that section 115–15(c) impermissibly requires defendants to take an affirmative step to secure their confrontation rights or be deemed to have waived them, and that it fails to contain sufficient procedural safeguards to ensure that any such waiver is knowing and voluntary. We agree. The State does not cite any relevant authority to contravene defendant’s argument that defendants cannot be required to take an affirmative step to secure their constitutional confrontation rights. Rather, the State endorses the rationale given by the appellate court in upholding the statute on this basis. The appellate court reasoned that “an accused has a right to put on relevant evidence favorable to him, but he can lose that right by failure to give reasonable required discovery in this regard. [Citations.] By the same logic, a defendant’s right of confrontation can be limited by a requirement to take reasonable action such as that required here.” 301 Ill. App. 3d at 221-22. The United States Supreme Court disagrees. In Taylor v. Illinois , 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988), a case not cited by the appellate court, the Supreme Court considered whether a trial judge’s discovery sanction violated the defendant’s constitutional right to obtain the testimony of favorable witnesses. In that case, the trial court sanctioned the defense by refusing to allow a defense witness to testify because the defense did not disclose that witness in a pretrial discovery request. The court held that such sanctions were not absolutely prohibited by the compulsory process clause of the sixth amendment (U.S. Const., amend. VI). As part of its discussion, the court explained the difference between compulsory process and other rights guaranteed by the sixth amendment: “There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment–its availability is dependent entirely on the defendant’s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case. While those rights shield the defendant from potential prosecutorial abuses, the right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution’s case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.” (Emphasis added.) Taylor , 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653-54. The court elaborated on this principle in a footnote: “As one commentator has noted: ‘The defendant’s rights to be informed of the charges against him, to receive a speedy and public trial, to be tried by a jury, to be assisted by counsel, and to be confronted with adverse witnesses are designed to restrain the prosecution by regulating the procedures by which it presents its case against the accused. They apply in every case, whether or not the defendant seeks to rebut the case against him or to present a case of his own. Compulsory process, on the other hand, comes into play at the close of the prosecution’s case. It operates exclusively at the defendant’s initiative and provides him with affirmative aid in presenting his defense.’ ” (Emphasis added.) Taylor , 484 U.S. at 410 n.14, 98 L. Ed. 2d at 811 n.14, 108 S. Ct. at 653 n.14, quoting P. Westen, The Compulsory Process Clause , 73 Mich. L. Rev. 71, 74 (1974). Thus, contrary to the assertions of the State and the appellate court, the “same logic” that allows a defendant to lose his right to present favorable evidence if he fails to comply with discovery does not allow a state to require a defendant to take affirmative steps to invoke his constitutional right to be confronted with the witnesses against him. The right of a defendant to be confronted with the witnesses against him is guaranteed by the Constitution and arises automatically at the initiation of the adversary process. Taylor , 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653. Subsection (c) of section 115–15 impermissibly requires the defendant to take affirmative action to secure a right that he has already been constitutionally guaranteed or be deemed to have waived that right. We are unaware of any authority that permits the legislature to make a defendant’s confrontation rights contingent upon action by the defendant, and the State has not argued that such authority exists. As stated, if a defendant does not take the procedural step required by subsection (c), he is deemed to have waived a fundamental constitutional right. Defendant argues that any such waiver must be knowing and voluntary, and that subsection (c) lacks sufficient procedural safeguards to ensure that any waiver of the right of confrontation is knowing and voluntary. We agree. “Waiver of a constitutional right is valid only if it is clearly established that there was ‘an intentional relinquishment or abandonment of a known right .’ ” People v. Johnson , 75 Ill. 2d 180, 187 (1979), quoting Johnson v. Zerbst , 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938). Such waivers must not only be voluntary, but must be “ ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Johnson , 75 Ill. 2d at 187, quoting Brady v. United States , 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970). This principle has been specifically applied to a defendant’s confrontation rights. See Boykin v. Alabama , 395 U.S. 238, 243, 23 L. Ed. 2d 274, 279-80, 89 S. Ct. 1709 , 1712 (1969); Barber v. Page , 390 U.S. 719, 725, 20 L. Ed. 2d 255, 260, 88 S. Ct. 1318, 1322 (1968); Brookhart v. Janis , 384 U.S. 1, 3-4,16 L. Ed. 2d 314, 317, 86 S. Ct. 1245, 1246 (1966). If a defendant fails to take the procedural step required by section 115–15(c), he has waived his right to confront and cross-examine the preparer of the report. The statute does not guarantee that this waiver is a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Rather, this waiver automatically occurs if a defendant does not respond within seven days of being served with a lab report. In the absence of this statute, the State would have to secure a knowing waiver of the confrontation right by acquiring a defendant’s stipulation to allow the lab report into evidence without the testimony of the report’s preparer. Unlike section 115–15, these stipulations properly require a defendant to make a voluntary, knowing, and intelligent decision whether he wishes to waive his right to confront the preparer of the report. The State argues that a defendant who fails to comply with the statutory deadline has not lost his confrontation rights because he can always subpoena the preparer of the report and cross-examine him as a hostile witness. We disagree. The United States and Illinois Constitutions guarantee a defendant the right “to be confronted with the witnesses against him.” U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8. The wording of these provisions is significant. They do not say that the accused has a right to confront the witnesses against him; they say that the accused has a right to be confronted with the witnesses against him. This is a mandatory constitutional obligation of the prosecuting authority. It arises automatically at the inception of the adversary process, and no action of the defendant is necessary to activate this constitutional guarantee in his case. Taylor , 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653. Accepting the State’s argument–that a defendant does not lose his confrontation right if a defendant can still subpoena the witnesses against him–would necessarily mean that there would be no constitutional problem with allowing the State to introduce all of its evidence by affidavit as long as a defendant is allowed to bring the prosecution’s witnesses into court himself. (footnote: 4) Trial by affidavit is the primary evil that the confrontation clause was designed to prevent: “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States , 156 U.S. 237, 242-43, 39 L. Ed. 409, 411, 15 S. Ct. 337, 339 (1895). We emphatically reject any notion that the State’s constitutional obligation to confront the accused with the witnesses against him can be satisfied by allowing the accused to bring the State’s witnesses into court himself and cross-examine them as part of his defense. Having determined that defendant’s constitutional confrontation rights were denied when the court refused his request to compel the State produce the testimony of the preparer of the lab report, we must next determine whether defendant’s conviction should be reversed. Confrontation errors do not automatically warrant reversal. People v. Johnson , 116 Ill. 2d 13, 28 (1987). However, before a constitutional error can be held to be harmless, the reviewing court must be able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilt. People v. Smith , 38 Ill. 2d 13, 15 (1967). The burden of proof is on the State to show beyond a reasonable doubt that the constitutional error did not affect the outcome of the proceeding. Chapman v. California , 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 828 (1967); People v. Simms , 121 Ill. 2d 259, 276 (1988). Here, the State has confined its argument to asserting that the statute is constitutional. The State does not argue that, assuming that we find the statute unconstitutional, any error in the admission of the hearsay report was harmless. Accordingly, the State has failed to satisfy its burden of showing beyond a reasonable doubt that the error did not contribute to the guilty verdict. We therefore reverse defendant’s conviction and sentence and remand the cause for a new trial.",analysis
+445,4553858,1,1,"This matter concerns three cases consolidated for purposes of trial and appeal. The relators are BH Media Group, Inc., doing business as Omaha World-Herald (OWH); Lee Enterprises, Inc., doing business as Lincoln Journal Star (LJS); and Amy A. Miller and ACLU of Nebraska Foundation. In October and November 2017, each relator submitted public records requests pursuant to the public records statutes, seeking information related to DCS’ purchase of pharmaceuticals for use in the lethal injection execution protocol. DCS provided responsive documents to each request, and it informed relators that it had additional responsive documents in its possession that would be withheld from disclosure. DCS stated that the withheld records consist of (1) communications between a DCS execution team member and a lethal injection drug supplier, (2) Drug Enforcement Agency (DEA) forms, (3) inventory logs, (4) chemical analysis reports, (5) photographs of packaging, (6) invoices, and (7) purchase orders. DCS responded that these documents would not be disclosed, because they are confidential and exempt from disclosure under Neb. Rev. Stat. § 83-967(2) (Reissue 2014) and because they are not public records as defined under § 84-712.01(1). Each relator petitioned the district court for Lancaster County for a writ of mandamus to compel Frakes, in his official capacity as director of DCS, to produce the withheld records. In each case, the court entered a show cause order and Frakes filed an answer and response. Frakes argued that nondisclosure is justified under § 83-967(2), which makes the identity of all - 784 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members of the execution team confidential and exempt from disclosure under the public records statutes. The matter proceeded to trial. The court heard testimony from Miller, a citizen of Nebraska and an attorney for the ACLU of Nebraska Foundation; JoAnne Young, a reporter for LJS; and Joe Duggan, a reporter for OWH. A previous public records request by Miller and response by DCS from August 16, 2016, was offered into evidence as exhibit 10. Exhibit 10 contains correspondence between Frakes and a drug supplier concerning DCS’ payment for lethal injection drugs, an offer to sell and purchase order, invoices, DEA forms, and photo­ copies of packaging showing the expiration dates of lethal injection drugs. Young testified about her reporting on state government and death penalty issues for the LJS since 2007. She admitted she may attempt to interview DCS’ lethal injection drug supplier if she learned its identity. Duggan testified that if he received information about the supplier, he would attempt to interview the supplier and would ask who else might have information about its transaction with DCS. The relators called Frakes as a witness. Under DCS’ execution protocol, 1 which was received into evidence, the DCS director, the Nebraska State Penitentiary warden, and the Nebraska State Penitentiary public information officer are designated as members of the execution team. In his testimony, Frakes admitted without objection that he is a member of the execution team. In addition, he confirmed the publicly known identities of the warden and public information officer. Frakes did not contend that the lethal injection drug supplier is a member of the execution team. Frakes testified that he would not publicly identify other members of the execution team, because there is the potential for threats or harassment. He testified that the purchase orders and chemical analysis reports were withheld, because they identify a member of the execution team “on their face.” He 1 69 Neb. Admin. Code ch. 11, § 003 (2017). - 785 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 testified that the communication with a supplier, DEA forms, photographs, and invoices were withheld, because they identify the supplier and, if contacted, the supplier could share the identity of a team member. He stated that “since the supplier has direct knowledge of team members, or at least one team member . . . I can . . . draw the connection that [it] would be able to identify a member of the team.” Frakes testified that inventory logs were withheld, because they “contain information that ultimately could lead to identifying the supplier.” He admitted that he had the ability to redact identifying information contained in the records and that he could ask the supplier not to identify any team members. He did not know whether DCS’ contract with the supplier contains a confidentiality or nondisclosure provision. He asserted that the photographs of packaging are attorney work product. In closing arguments, the relators argued that the purchase orders and chemical analysis reports should undergo a redaction process and be disclosed. Regarding the remaining records, they argued that there is no provision under Nebraska law which makes the identity of a lethal injection drug supplier confidential. Frakes argued that because the withheld records name the supplier and the supplier knows the identity of a team member, the withheld records are reasonably calculated to lead to the identity of a team member. On June 18, 2018, the district court entered orders in each case partially granting and partially denying the requests for writs of mandamus. The court found that pursuant to § 84-712.01(3), it was required to liberally construe public records laws in favor of disclosure. The court found the relators met their burden to show a prima facie claim that they were denied access to public records as guaranteed by public records laws. The court interpreted § 83-967(2) as an exemption from disclosure under the public records statutes and found that the burden therefore shifted to Frakes to prove by clear and convincing evidence that the documents sought were exempt from disclosure. The court found that the purchase orders and chemical analysis reports identified execution team - 786 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members on their face and therefore were exempt from disclosure under § 83-967(2). As to the remaining documents, the court found that Frakes failed to meet his burden to show that an exemption applies. The court stated that “[t]he evidence is speculative at best” that disclosure of these documents would lead to the identification of an execution team member. The court found that Frakes had not proved that the photographs of packaging are attorney work product. The court ordered Frakes to disclose within 7 days the communications with the supplier, DEA records, invoices, inventory logs, and photographs of packaging. On June 19, 2018, Frakes filed a notice of appeal. On June 27, relators filed motions to alter or amend the judgments to include an award of attorney fees and costs. The court determined that, despite Frakes’ notice of appeal, it had jurisdiction over the motions to alter or amend. The court found the motions to alter or amend were proper, because relators had requested attorney fees in their petitions. Following a hearing, the court granted relators’ motions for an award of attorney fees and costs. Frakes appealed, and relators crossappealed. We moved the appeals to our docket and consolidated them. ASSIGNMENTS OF ERROR Frakes assigns, restated, that the district court erred in (1) finding relators had established standing and jurisdiction, (2) finding relators had met their burden to show the documents sought are public records as defined by § 84-712.01, (3) finding § 83-967(2) is an exemption from disclosure that the public body must prove applies by clear and convincing evidence, (4) finding Frakes failed to establish by clear and convincing evidence that the withheld documents are reasonably calculated to lead to the identity of an execution team member, (5) finding Young’s public records request was properly submitted, (6) finding the court had jurisdiction to rule on the motions to alter or amend, and (7) finding relators were entitled to attorney fees and costs. - 787 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 Relators assign on cross-appeal that the district court erred in not requiring disclosure of the purchase orders and chemical analysis reports with the redactions of confidential information, in accordance with § 84-712.06.",facts
+446,6329093,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+447,1236555,1,3,"In sum, I concur in that part of the majority's opinion that holds that plaintiffs' complaint fails to state a claim for breach of fiduciary duty and civil conspiracy against defendant attorneys. As against all other defendants, however, plaintiffs' complaint alleges facts that, if proved and considered along with favorable inferences to be drawn therefrom, would establish their right to recover for breach of fiduciary duty and civil conspiracy. I would hold, therefore, that defendants' ORCP 21 A(8) motions should have been denied, except as to defendant attorneys. FADELEY, J., joins in this opinion.",conclusion
+448,4469241,1,4,[1] Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.3 [2] An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court’s findings.4,standard of review
+449,1911149,1,1,"We first address a procedural issue raised by the defendants. They contend that we lack jurisdiction of the appeal because the plaintiff's new trial motion, and her notice of appeal that followed, were untimely. Iowa Rule of Civil Procedure 247 requires motions for new trial to be filed within ten days of the verdict unless the court, for good cause shown and not ex parte, grants an additional time not to exceed thirty days. The jury verdict was returned on November 10, 1993. Because November 20 was a Saturday, the plaintiff had until Monday, November 22, to file her motion for new trial. On November 19, the court orally granted the plaintiff an extension to November 23. While the written order was dated November 24, it is clear by its language that it was granted on November 19. Iowa Rule of Appellate Procedure 5(a) requires appeals to be taken within thirty days from the judgment unless a motion for new trial ... is filed, and then within thirty days after the entry of the ruling on such motions.... The ruling on the plaintiff's motion for new trial was entered on December 13, 1993. Therefore, Van Overbeke had until January 12, 1994, to file her notice of appeal. She filed her notice on January 12, and we therefore have jurisdiction of her appeal.",jurisdiction
+450,1758839,1,1,"Gary Dean Owens challenges the sufficiency of the evidence to support his possession with intent to deliver conviction. We are required to address sufficiency of the evidence questions before all others. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). At the close of the State's evidence, and at the close of all evidence, Gary Dean Owens moved for a directed verdict on the possession with intent to deliver charge. He argued that there was no evidence he had transferred drugs in exchange for money or something of value. The trial court denied the motion. A directed-verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury's verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Misskelley v. State, supra . The record reveals the following pertinent facts. At 12:55 a.m. on December 29, 1993, a warrant was issued allowing a search of the appellants' residence. The warrant was served at 1:15 a.m. Authorities recovered two packets which were later revealed to contain methamphetamine. One packet, found in the west bedroom of the house, contained 909 milligrams of a substance which was seventy-eight percent methamphetamine (approximately 709 milligrams). The other packet, found in the bedroom where Gary Dean Owens was apprehended, contained 1.57 grams of a substance which was fifty-three percent methamphetamine (approximately 832 milligrams). In addition, the search revealed glass jars containing cloudy liquid, all of which contained traces of methamphetamine; a metal spoon and a plastic scoop with traces of the drug; a container which held scales, syringes, spoons and plastic baggies; a container with 13.1 grams of ephedrine, a base ingredient in the manufacture of methamphetamine; and various other items which experts would later testify were consistent with the manufacture of methamphetamine such as Sunshine Super Blend B Vitamins, Liquid Fire, Red Devil Lye, coffee filters, baking soda, a funnel, and salt. Police also seized a gas mask, a paperback book on prescription drugs, and a police scanner which was on when the search took place. This evidence was introduced at trial through David Hyden, and Arkansas State Police officer who participated in the search and Norman Kemper, a forensic drug chemist with the State Crime Lab. The State presented other evidence, including the testimony of Barbara Sparks, which will be discussed later in this opinion. However, the physical evidence is all that is necessary to our consideration of this issue. The argument that Owens makes on appeal is the same narrow argument he made in his directed-verdict motions—the state failed to show that he actually transferred or delivered methamphetamine. It is true that the evidence in this case does not reveal an actual sale or transfer of methamphetamine by Gary Dean Owens. However, such evidence is not necessary to obtain a conviction of possession with intent to deliver. The key element of the crime is the intent to deliver, not actual delivery. See People v. Wolfe, 440 Mich. 508, 489 N.W.2d 748 (1992). Substantial proof of Gary Dean Owens's intent to deliver was presented by the State. We need look no further than the amount of the drug recovered from the Owens residence. In executing the search warrant, officers seized over 1,500 milligrams of unadulterated methamphetamine. Possession of more than two hundred milligrams of methamphetamine gives rise to a presumption of intent to deliver. [2] Ark.Code Ann. § 5-64-401(d) (Repl.1993); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The jury was instructed that they could consider the quantity of the drug possessed in determining Owens's intent. Since Owens possessed methamphetamine in an amount in excess of the statutory presumption, the evidence is sufficient to support his conviction. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995); Sanchez v. State, supra .",sufficiency of the evidence
+451,3205371,1,2,"[1] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.3 That is so even where, as here, no party has raised the issue.4 Neb. Rev. Stat. § 25-1911 (Reissue 2008) gives appellate courts jurisdiction to review “[a] judgment rendered or final order made by the district court . . . for errors appearing on the record.” In this appeal, whether we have jurisdiction to review the district court’s order depends on whether Essex has appealed from either a judgment or a final order. [2] The term “judgment” has a very specific statutory definition in the context of appellate jurisdiction. Under Neb. Rev. 2 See Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013) (court treats motion to reinstate case after order of dismissal as motion to vacate the order). 3 Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007); Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004). 4 Wilczewski v. Charter West Nat. Bank, 290 Neb. 721, 861 N.W.2d 700 (2015). - 580 - Nebraska A dvance Sheets 293 Nebraska R eports DEINES v. ESSEX CORP. Cite as 293 Neb. 577 Stat. § 25-1301(1) (Reissue 2008), “[a] judgment is the final determination of the rights of the parties in an action.” Here, the order vacating dismissal and reinstating the case is not a judgment. It does not address or decide the merits of the action and makes no final determination of the parties’ rights. The order merely returns the case to the court’s active docket for eventual resolution on the merits. Nor was the court’s earlier order dismissing the case for want of prosecution a judgment under § 25-1301. The order of dismissal was without prejudice to a future action,5 so it had no impact on the merits of the action. Although the order dismissed the action for failure to comply with the show cause order and thus effectively ended the case, it did so without finally determining the rights of the parties, and was not a judgment. [3] We next consider whether the order vacating dismissal and reinstating the case is a final order for purposes of interlocutory appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2008). An order is final for purposes of appeal under § 25-1902 if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered.6 [4] In Jarrett v. Eichler,7 we broadly stated that “an order vacating a dismissal made within the same term in which the dismissal was granted is a final and appealable order.” Our opinion in Jarrett, however, concluded the order was final and appealable only after determining it (1) was made in a special proceeding and (2) affected a substantial right. We therefore do not read Jarrett to adopt a blanket rule that every order vacating a dismissal and reinstating a case is final and appealable. Rather, the statutory criteria of § 25-1902 must be applied to determine whether the order appealed from is final. 5 See Neb. Rev. Stat. § 25-601 (Reissue 2008). 6 § 25-1902. 7 Jarrett v. Eichler, 244 Neb. 310, 313, 506 N.W.2d 682, 684 (1993). - 581 - Nebraska A dvance Sheets 293 Nebraska R eports DEINES v. ESSEX CORP. Cite as 293 Neb. 577 We recognize that determining whether an order fits within any of the three categories described in § 25-1902 is often challenging for practitioners and judges.8 However, in this appeal, it is not necessary to decide whether the order vacating dismissal and reinstating the case fits into any of the three categories, because the dispositive issue here is whether the order affects a substantial right in the action. [5,6] Numerous factors determine whether an order affects a substantial right for purposes of interlocutory appeal. Broadly, these factors relate to the importance of the right and the importance of the effect on the right by the order at issue.9 It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.10 Whether the effect of an order is substantial depends on “‘whether it affects with finality the rights of the parties in the subject matter.’”11 It also depends on whether the right could otherwise effectively be vindicated.12 An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.13 Stated another way, an order affects a substantial right if it “‘affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.’”14 In Jarrett,15 we found the order vacating dismissal and reinstating the case affected a substantial right because it destroyed 8 See, generally, John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). 9 See State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015). 10 See id. 11 Id. at 914, 870 N.W.2d at 138. 12 Id. 13 Id. 14 Id. 15 Jarrett v. Eichler, supra note 7. - 582 - Nebraska A dvance Sheets 293 Nebraska R eports DEINES v. ESSEX CORP. Cite as 293 Neb. 577 an affirmative defense that was available to the defendants once the action was dismissed for want of prosecution after the applicable statute of limitations had run. Here, unlike Jarrett, there is nothing in the record to suggest the order vacating dismissal and reinstating the action affects a substantial right of Essex. To the contrary, during oral argument, counsel for Essex agreed the order here did not diminish any claim or defense that was available before the case was reinstated. [7] The order vacating dismissal and reinstating the case merely put the parties back in the same posture as before the action was dismissed for want of prosecution—working toward eventual resolution on the merits. “The fact that an order . . . may move the case forward to trial does not mean that the order affects a substantial right of the opposing party. Ordinary burdens of trial do not necessarily affect a substantial right.”16 The order reinstating the case does not affect with finality the parties’ rights in this action, and nothing in the record suggests any party’s rights will be diminished, undermined, or lost by postponing appellate review.17 We conclude on this record that the order vacating dismissal and reinstating the action is not a final order under § 25-1902, because it does not affect a substantial right.",jurisdiction
+452,2680031,1,2,"[¶6] Woodard’s wife owned, and Woodard operated, Green Bee Redemption in Kittery, Maine. The primary questions for the jury to consider in determining whether a crime had been committed were (1) did Woodard and his wife (who was also tried and ultimately acquitted) redeem certain customers’ bulk container deliveries knowing that the containers were not originally sold in Maine as filled beverage containers and then seek handling fees and reimbursement for refunded deposits from distributors for these non-Maine containers, and (2) did the deposits and handling fees that they received from distributors for redeeming those containers reach felony theft levels. See 17-A M.R.S. § 354(1)(B)(1). [¶7] Viewing the evidence admitted at trial in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Haag, 2012 ME 94, ¶ 2, 48 A.3d 207. [¶8] The Department of Agriculture,2 which is responsible for enforcing the bottle bill, see 32 M.R.S. §§ 1862(6), 1871-B to 1871-D, was tipped off to a possible scheme to redeem non-Maine beverage containers at Green Bee. Resulting surveillance revealed that, on Thursday, March 18, 2010, at about 7:00 p.m., Dennis Reed, the owner of Sports Zone, a large sports complex in 2 At the relevant time, the Department was known as the Department of Agriculture, Food and Rural Resources; it is now the Department of Agriculture, Conservation and Forestry. See P.L. 2011, ch. 657, § W-5 (effective Aug. 30, 2012). 5 Derry, New Hampshire,3 drove a sport utility vehicle away from Sports Zone pulling a trailer filled with large bags full of empty beverage containers. Reed drove the trailer filled with containers to Maine and parked in a lot behind a building located at 230 U.S. Route One Bypass, also known as 230 State Road, in Kittery. The building was located approximately a mile away from Green Bee. Reed exited his vehicle and moved all of the bags of containers from the trailer into a white box truck that was parked at that location. Reed then drove away but was soon pulled over by an officer of the Kittery Police Department. The contents of the white box truck were seized by the Department of Agriculture and placed in a truck supplied for the Department’s use by National Distributors. [¶9] Based on a conversation with Reed, Randy Trahan, a consumer protection inspector from the Department of Agriculture’s Division of Quality Assurance and Regulations, called Woodard on the telephone to inquire about the containers. Woodard did not answer but later returned Trahan’s call, and the two men arranged to meet in person. At that meeting, Woodard admitted to Trahan that Reed would deliver containers to the white box truck and leave a receipt in the cab of the truck. Woodard referred to Reed as coming from New Hampshire. [¶10] Woodard admitted that Green Bee would pay Reed five cents per container by check for the bottles that he delivered. Although Woodard denied 3 New Hampshire does not have a bottle bill. 6 having spoken with Reed on the telephone on the day in question, telephone records that were subpoenaed showed calls between his mobile phone and Reed’s on several occasions, including on that day, both before and after the interception of the containers. [¶11] Between April 2008 and February 2010, Green Bee received at least $3,787.38 in handling fees for bottles redeemed by Reed and by an out-of-state Green Bee employee named Thomas Prybot. With the five-cent-per-bottle redemption amount calculated in, Maine distributors paid Green Bee a minimum of $10,099.68 for redeeming and handling those bottles.4 [¶12] Woodard was charged by indictment with theft by deception (Class B), 17-A M.R.S. § 354(1)(B)(1). He pleaded not guilty and proceeded to a jury trial. During the four-day trial, the State offered testimony from those who had assisted in investigating Woodard’s operations, including Trahan, the redemption recycling manager from Coca-Cola Bottling Company of Northern New England who conducted surveillance of Sports Zone in New Hampshire for Trahan, the Kittery Police Department officer who assisted in locating the trailer when it arrived in Kittery, and the driver supervisor for National Distributors who supplied the truck to pick up the intercepted containers. The State also offered the 4 From the voluminous evidence presented at trial, the jury found that Woodard had committed theft of more than $10,000. Even assuming that all of the bottles delivered by Reed and Prybot were subject to a commingling agreement and, therefore, generated only three cents per bottle in handling fees, the jury could have found that the total accepted from distributors or their agents for those bottles was $10,099.68. 7 testimony of a detective from the Attorney General’s office who assisted in the investigation by obtaining through subpoena (1) bank records from Green Bee that showed several payouts to Reed and Prybot and (2) telephone records that demonstrated contact between Reed and the Woodards several times between 2007 and 2010, including between March 17 and 19, 2010. [¶13] The State offered testimony from employees of the New Hampshire Sports Zone and Green Bee. An employee who began working at Sports Zone in February 2010 testified about container-sorting instructions at Sports Zone that called for setting apart those containers that, although likely purchased at Sports Zone or elsewhere in New Hampshire, had the proper markings for redemption in Maine. Apparently, the containers from beverages sold at this New Hampshire facility were sorted in an effort to exclude containers that could not have been sold to consumers in Maine. The Sports Zone employee also testified that he saw a trailer leave Sports Zone on one Thursday night each month with bags of bottles and then return empty. Thomas Prybot, an employee of Green Bee, testified that he lived in Massachusetts but had received hundreds of dollars for redeemed bottles from Green Bee without having been questioned about where the beverages had been purchased. Other Green Bee employees testified that that they rarely saw Woodard’s wife at the redemption center and identified Woodard as the boss. 8 [¶14] The State also offered evidence from professionals working in the bottle-redemption industry. The chief financial officer of National Distributors testified that National Distributors had paid hundreds of thousands of dollars to Green Bee between 2008 and 2010 to reimburse Green Bee for deposits and to pay Green Bee a handling fee of three cents to three and one-half cents per container. A Pepsi Bottling Company employee who supervised redemption pick-up testified that Pepsi had picked up hundreds of thousands of containers and paid tens of thousands of dollars to Green Bee between April 2008 and February 2010. An employee of Returnable Services, a container collection agency for about 300 distributors, testified that Returnable Services had paid Green Bee $134,000 between April 2008 and February 2010. That employee also testified that several factors should be considered by redemption centers to determine if containers were not purchased in Maine: (1) the presence of out-of-state license plates on the delivering vehicle, (2) the customer’s presorting of the bottles, (3) repeated business, (4) delivery outside normal business hours, and (5) delivery of a high volume of unusual beverage containers. [¶15] During the trial, the court admitted several documentary and photographic exhibits offered by the State, including a series of photographs of the containers that were seized. Certain bottles were identified as bottles that were not sold anywhere in Maine at that time. The court also admitted, over Woodard’s 9 objection, photographs of the barn at Prybot’s residence in Massachusetts where bottles were sorted. Woodard did not offer any testimonial or documentary evidence. [¶16] After the close of evidence, the prosecutor made a closing argument that concluded with remarks that Woodard contends constitute prosecutorial misconduct: This is a theft one nickel and three to 3-1/2 cents at a time. We need to send a message to those who would fraudulently redeem bottles in large quantities from away, we need to send a message that you can’t be ripping off Maine beverage distributors who will pass those costs along to Maine consumers. We ask you to find Tom Woodard guilty of theft by deception in the fraudulent redemption of bottles to Maine distributors. (Emphasis added.) Woodard did not object to this closing argument at trial. [¶17] Before the court charged the jury, Woodard requested a jury instruction that “if the actor in fact believes in the accuracy of the impression created or reinforced he is not guilty of deception even though his belief was stupid or unreasonable.” The court declined to offer this instruction but did provide the following instructions regarding state of mind for this particular crime: Deception occurs when a person intentionally, that is has the conscious purpose or object to do so, intentionally creates or reinforces an impression which is false and which that person does not believe to be true or fails to correct an impression which is false and which a person does not believe to be true and which that person previously created or reinforced. . . . 10 .... Now, on the necessary state of mind in which the State must prove that the actions of each Defendant were intentional, on the subject of intent, intent often cannot be proven directly because there is not always direct evidence of a person’s state of mind, but you may infer a person’s state of mind from surrounding circumstances. In determining whether the State has proven beyond a reasonable doubt that a Defendant acted with intent to deprive of property, you may consider any statement made or any act done or omitted by a Defendant and all other facts in evidence which may indicate a state of mind. The court also instructed, “[S]tatements or arguments of counsel are not evidence.” [¶18] The jury found Woodard guilty of theft by deception of property worth more than $10,000. See 17-A M.R.S. § 354(1)(B)(1). The court sentenced Woodard to twenty-one months in prison, all but twenty-one days suspended, with two years of probation, and ordered him to pay $10,000 in restitution and $25 to the Victims’ Compensation Fund, see 5 M.R.S. § 3360-I (2011).5 Woodard timely appealed pursuant to 15 M.R.S. § 2115 (2012) and M.R. App. P. 2.",facts
+453,2654071,1,13,"This action is governed by the Revised Uniform Arbitration Act.1 The Alaska Supreme Court has counseled that judicial review of arbitration awards is “closely circumscribed.”2 The superior court has limited authority to review awards and may only vacate, modify, or correct an arbitration award pursuant to “narrow statutory parameters.”3 The court may not review the arbitrator’s decision on its merits.4 The arbitrator’s findings of fact and law must be given great deference and the court is 1 See Alaska Bar Rule 40(t); Haeg v. Cole, 200 P.3d 317, 318 (Alaska 2009). 2 Sidney v. Allstate Ins. Co., 187 P.3d 443, 447 (Alaska 2008). 3 Id. 4 A. Fred Miller v. Purvis, 921 P.2d 610, 618 (Alaska 1996).",standard of review
+454,4515757,1,5,"Based upon the preceding analysis, we conclude that it was error to enter summary judgment in favor of EMC and to overrule Gage County’s motion for partial summary judgment. Accordingly, we reverse the district court’s decision and remand the cause for further proceedings consistent with this opinion. Reversed and remanded for further proceedings. 29 See National Cas. Co. v. Western World Ins. Co., 669 F.3d 608 (5th Cir. 2012).",conclusion
+455,6340511,1,1,"Wilkinson Development, Inc. (Wilkinson), filed an action for specific performance of a real estate contract concerning the purchase of commercial real estate located in Lexington, Nebraska. The district court found in favor of Wilkinson and against the seller, Ford & Ford Investments (Ford). PSK, LLC, a subsequent purchaser of the real estate in question, then filed a motion to vacate the decree of specific performance and also sought an order of joinder. The district court denied that motion. PSK appeals. We affirm.",introduction
+456,2634146,1,3,"[¶8] The appellant did not object at trial to any of the alleged errors and thus our review is for plain error. When no objection is made at trial to the evidence challenged on appeal, we apply our plain error standard of review. Plain error will not be found unless: (1) the record clearly reflects the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves that the violation adversely affected a substantial right resulting in material prejudice. Cazier v. State, 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo. 2006). [¶9] Additionally, the appellant raises a claim of ineffective assistance of trial counsel for the first time in this appeal. Because the district court did not hear the claim or make any findings of fact or conclusions of law, this Court must conduct a de novo review of the facts pertinent to the claim of ineffective assistance. Barker v. State, 2006 WY 104, ¶ 16, 141 P.3d 106, 113 (Wyo. 2006).",standard of review
+457,2627965,1,2,"As a preliminary matter, defendant cites, inter alia, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), for the proposition that we should review the factual basis supporting her plea under a heightened reliability standard because she was facing the death penalty at the time of her plea. Defendant is correct that, in the context of a capital sentence, this court has required a heightened degree of reliability. See State v. Kleypas, 272 Kan. 894, 1036, 40 P.3d 139 (2001), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002); see also State v. Bethel, 275 Kan. at 457-58, 66 P.3d 840 (2003). However, where no sentence of death was imposed, this court is not required to review a case under this more stringent standard. See Bethel, 275 Kan. at 457-58, 66 P.3d 840 ([b]ecause of the State's agreement not to pursue the death penalty, [defendant] is not directly affected by it and cannot raise issues concerning its constitutionality). On this review, defendant is entitled to no protections beyond those set forth in K.S.A. 22-3210 and interpreting case law, and those required by due process. As this court has often stated, motions to withdraw plea are governed by K.S.A. 22-3210(d), which reads: A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea. Under this section, the decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the district court. That decision will not be disturbed on appeal absent a showing of abuse of discretion, and the defendant bears the burden of establishing it. Judicial discretion will vary depending upon the character of the question presented for determination. Generally a district judge's decision is protected if reasonable persons could differ about the propriety of the decision, as long as the decision was made within and takes into account any applicable legal standards. An abuse of discretion may be found if a district judge's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. State v. Shopteese, 283 Kan. ___, Syl. ¶ 2, 153 P.3d 1208, 2007 WL 776811 (2007); State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). In evaluating a post-sentencing motion to withdraw a plea, the district court should consider: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. See State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001). Defendant's legal position relies on two arguments that merit discussion. First, she argues that new evidence can require post-sentencing withdrawal of a plea. Second, she argues that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea. With regard to her first argument that new evidence can require post-sentencing withdrawal of a plea, we note first that new evidence is not among the explicit considerations in K.S.A. 22-3210(d), even as supplemented by case law and due process requirements. However, we have discussed the withdrawal of a guilty plea based on newly discovered evidence. In State v. Walton, 256 Kan. 484, 489, 885 P.2d 1255 (1994), Robert S. Walton alleged that evidence discovered after the entry of his plea exonerated him, thus providing good cause under K.S.A. 22-3210(d) for granting his presentencing motion to withdraw. The district court conducted a full hearing, considered all the evidence, and concluded that Walton's plea was informed and voluntary. Furthermore, because the new evidence did not exonerate Walton, there was no basis for withdrawing the plea. More recently, in Bey, 270 Kan. at 558-59, 17 P.3d 322, the defendant sought to withdraw his plea, arguing new evidence allowed him to do so. He pointed to statements allegedly made by the jail mate of a codefendant, which implicated the codefendant rather than the defendant in the victim's shooting death. The district court considered the statements and determined that they did little to exonerate the defendant. On appeal, the defendant urged this court to draw an analogy between his motion and one for new trial. We did not clearly adopt his invitation on the way to affirming, Bey, 270 Kan. at 557-59, 17 P.3d 322, but we acknowledged that there must be a factual basis for a plea and that a district court determining whether such a factual basis exists must establish that all elements of the charged crime are present. Bey, 270 Kan. at 546, 17 P.3d 322 (citing State v. Shaw, 259 Kan. 3, Syl. ¶ 1, 910 P.2d 809 [1996]). It is obvious that, if new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant's burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 22-3210(d) and comports with due process. Defendant's further argument that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea is simply without merit. Even if we assume for the moment that the evidence adduced at the hearing on her motion to withdraw plea was sufficient to establish the current existence of reasonable doubt, at the time the district judge accepted defendant's plea, his charge was to determine the existence of a factual basis for it at that time and in that place. He was not required to foretell the future and anticipate its effect on the fire science underlying the task force conclusion. Defendant's argument reflects a basic misunderstanding of the plea process. Entry of a plea of guilty or nolo contendere necessarily implies acknowledgment by all concerned—the defendant, the State, and the court—that a jury could go either way and that a risk-benefit analysis has taken place on both sides. The prosecution and the defense have something to gain and something to lose in any plea bargain. They make their peace with the trade-off in exchange for reducing the uncertainty of their situation. Instead of leaving it up to a jury to acquit or convict, to recognize or fail to see any reasonable doubt that may exist, they cut a deal. The requirement that a judge confirm the factual basis of a plea is not a mandate that he or she sit in place of a jury and evaluate reasonable doubt as a matter of law. It merely requires the judge to ensure that the State has enough proof to support each element of the crime. It is not necessary that the proof be particularly persuasive, even at that time and in that place, much less that it will stand the test of time and advancing human understanding. It need only be sufficient for a reasonable factfinder to arrive at a guilty verdict. On the facts of this case, we conclude that the district court did not abuse its discretion in denying defendant's motion to withdraw her plea. The district court appropriately considered whether defendant was represented by competent counsel; whether she was misled, coerced, mistreated, or unfairly taken advantage of; and whether her plea was fairly and understandingly made. See Bey, 270 Kan. at 545, 17 P.3d 322. Relevant to these standards, we observe in particular that defendant was represented by three very experienced attorneys; she was not misled about the quality of the State's evidence against her; and the mere existence of the death penalty as a potential penalty for the offenses with which she was charged did not amount to coercion. Further, her articulate colloquy at the plea hearing demonstrated that her plea was fairly and understandingly made. Most important, however, in view of defendant's specific argument, we hold that defendant has not brought forward new evidence. At best, she has developed a competing interpretation of old evidence. Hurst's testimony about advances in fire science and their potential effect on the reasoning and conclusion of the task force did not disprove an element of any of the crimes on which defendant entered her plea. DeHaan's and Campbell's testimony demonstrated that arson was still very much alive as an explanation for the fire. It was not ruled out; it was merely challenged. In addition, we are compelled to note that defendant's focus on advances in fire science ignores the inescapable. The task force conclusion was far from the only evidence supporting the aggravated arson and other charges. The State's proffer included an abundance of other evidence pointing to the defendant's guilt. Its largely circumstantial nature would not have detracted from its value in support of any ultimate conviction. See State v. Dixon, 279 Kan. 563, 621, 112 P.3d 883 (2005); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004). Given all of the above, we hold that defendant did not meet her burden to demonstrate that the factual basis for her plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. There was no manifest injustice to correct, and the district judge did not abuse his discretion in so ruling. Affirmed.",analysis
+458,2110929,1,4,"Issue preclusion prevents the parties from relitigating issues previously resolved in prior litigation if certain prerequisites are established. See West v. Wessels, 534 N.W.2d 396, 397 (Iowa 1995). There are four well-established preliminary requirements for the use of issue preclusion: (1) The issue concluded must be identical; (2) The issue must have been raised and litigated in the prior action; (3) The issue must have been material and relevant to the disposition of the prior action; and (4) The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. Brown v. Kassouf, 558 N.W.2d 161, 163 (Iowa 1997) (quoting Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981)). If these prerequisites are met, the doctrine is available to any party to the prior litigation or those in privity to a party. See Harris v. Jones, 471 N.W.2d 818, 819 (Iowa 1991). One is in privity with a party if he or she after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession or purchase. Hunter, 300 N.W.2d at 123 n. 3. In the present case, Nuckoll's was not a party to the injunction action, nor was it in privity with a party to that action. We have stated that it is a due process violation for a litigant to be bound by a judgment when the litigant was not a party or a privy in the first action and therefore never had an opportunity to be heard. Harris, 471 N.W.2d at 820 (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552, 559 n. 7 (1979)). Notwithstanding this general statement, we have held that a nonparty has had an opportunity to be heard where the party against whom the doctrine of issue preclusion is defensively invoked has a `community of interest with, and adequate representation by, the losing party in the first action.' Opheim v. American Interinsurance Exch., 430 N.W.2d 118, 121 (Iowa 1988) (quoting Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098, 1102 (1978)). Here, VOCC and the Van Oorts claim that Nuckoll's had a community of interest with them in their enforcement action against Randall Van Oort because they had the same interests in that case. On the other hand, Nuckoll's asserts the plaintiffs did not actually have the same interests as Nuckoll's, and that VOCC and the Van Oorts certainly did not adequately represent Nuckoll's interests in the enforcement action. The district court made the following findings on this disputed issue of fact: Although [VOCC] brought the [enforcement] action against Randall, the principals of VOCC, Randall Van Oort and all witnesses were related. The principals of VOCC are two brothers and a sister, and a brother-in-law of the defendant Randall. Jerry Van Oort's view of the matter was that Randall should be allowed to earn a living by working for M. Peterson and Jerry was not concerned about the allegation of Randall's violation of his covenant. In fact all of the principals in [VOCC] had a motive to just go through the motions of enforcing the covenant. That would allow Randall to keep his job and would give the appearance that VOCC was in good faith attempting to enforce the covenant. The motive was there not to ask Randall the hard questions concerning his formation and alleged employment by Central Redi-Mix, Inc. and in fact the hard questions were not asked.... There is evidence in fact that Jerry Van Oort suggested that Randall use the Central Redi-Mix corporation as a defense to the claim of the violation of the covenant. As the court's discussion makes clear, the district court found that VOCC and the Van Oorts did not have the same interests as Nuckoll's with respect to enforcement of Randall's covenant not to compete. It is also implicit in the court's decision that VOCC did not adequately represent Nuckoll's interests in the enforcement proceeding. Based on the district court's express and implicit findings that the plaintiffs did not share a community of interest with Nuckoll's and did not satisfactorily represent Nuckoll's interests in the enforcement action, the district court refused to apply the doctrine of issue preclusion. Our review of the record reveals substantial evidence to support the district court's findings and, therefore, they are binding on appeal. See Iowa R.App. P. 14(f)(1). Given these findings, the district court correctly ruled that Nuckoll's was not precluded from litigating whether Randall violated his covenant not to compete.",issues
+459,1386465,1,2,"In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court set forth the test for determining the propriety of issuing a writ of prohibition. Therein we held: In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). When considering the issuance of a writ of prohibition arising from a circuit court's ruling on a motion for disqualification, this Court has consistently found the same to be an appropriate method of challenge. See State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 296, 430 S.E.2d 569, 575 (1993); State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 311, 557 S.E.2d 361, 365 (2001); State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 589, 482 S.E.2d 204, 206 (1996)(per curiam). The rationale for such a finding was succinctly set forth in Ogden Newspapers, wherein we stated: The reason that a writ of prohibition is available in this Court to review a motion to disqualify a lawyer is manifest. If a party whose lawyer has been disqualified is forced to wait until after the final order to appeal, and then is successful on appeal, a retrial with the party's formerly disqualified counsel would result in a duplication of efforts, thereby imposing undue costs and delay. See State ex rel. DeFrances v. Bedell, 191 W.Va. at 516, 446 S.E.2d at 909. Conversely, if a party who is unsuccessful in its motion to disqualify is forced to wait until after the trial to appeal, and then is successful on appeal, not only is that party exposed to undue costs and delay, but by the end of the first trial, the confidential information the party sought to protect may be disclosed to the opposing party or made a part of the record. Even if the opposing party obtained new counsel, irreparable harm would have already been done to the former client. The harm that would be done to the client if it were not allowed to challenge the decision by the exercise of original jurisdiction in this Court through a writ of prohibition would effectively emasculate any other remedy. State ex rel. Ogden Newspapers, Inc., 198 W.Va. at 589-90, 482 S.E.2d at 206-7.",standard of review
+460,1346004,1,3,"On a motion for judgment non obstante veredicto, or notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the evidence. McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996); Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996). In order to sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Id.",standard of review
+461,6320109,1,1,"Kenneth M. Kipple was convicted of two counts of child enticement and one count of tampering with a witness. No direct appeal was filed. Kipple retained new counsel and filed a postconviction motion that alleged ineffective assistance of counsel in various particulars, including trial counsel’s failure to file a direct appeal. The district court granted Kipple a new direct appeal. This is that appeal. - 657 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654 We affirm Kipple’s convictions for child enticement and for witness tampering, and we also affirm Kipple’s sentences for child enticement. We vacate Kipple’s sentence for witness tampering and remand the cause for further proceedings.",introduction
+462,2539099,1,2,"(A) Did the trial courts violate the defendants' state constitutional right to a jury trial when they imposed firearm enhancements after the juries found by special verdict that the defendants committed their crimes using deadly weapons? (B) Under our statutes and precedent, may harmless error analysis apply in the above situation?",issues
+463,2561941,1,3,"[¶ 12] The parties disagree on the appropriate standard of review. Mr. Britton did not object to the introduction of Exhibit 10 at trial. On that basis, the State asserts that the plain error standard of review should apply, citing Dettloff v. State, 2007 WY 29, ¶ 34, 152 P.3d 376, 385 (Wyo.2007), among other cases. [¶ 13] Mr. Britton points out that, in previous cases, we have established that a defendant's pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b) may serve as an objection to the introduction of such evidence. Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo.2002). Although Mr. Britton did not file a demand, the district court issued a scheduling order that required the State to provide notice of any proposed W.R.E. 404(b) evidence. Mr. Britton contends that the court's order served the same purpose as a defendant's request for notice, and so also preserved his objection to the admission of evidence under W.R.E. 404(b). On that basis, Mr. Britton urges us to review for abuse of discretion, citing Johnson v. State, 936 P.2d 458, 462 (Wyo.1997), among other cases. [¶ 14] It is unnecessary for us to choose between the two standards of review, because the result is the same under either standard. The district court's letter, written soon after trial, stated that the admission of Exhibit 10 violated the order excluding such evidence. Without deciding this issue, we accept the district court's conclusion that Exhibit 10 was admitted into evidence in error. We will consider that error sufficient, for purposes of this case, to establish an abuse of discretion under the standard of review advocated by Mr. Britton. See Johnson, 936 P.2d at 462. We will also treat that error as sufficient, in this case, to establish an error clearly demonstrated in the record, and the violation of a clear and unequivocal rule of law, satisfying the first two requirements of the plain error standard advocated by the State. See Guy v. State, 2008 WY 56, ¶ 9, 184 P.3d 687, 692 (Wyo.2008). [¶ 15] Under both standards of review, the next step is to consider whether the error was prejudicial or harmless. The test is the same under either standard: we will reverse if there is a reasonable possibility that the verdict would have been more favorable to the Appellant if the error had not been made. [3] The dispositive question in this case, then, is whether the admission into evidence of Exhibit 10, with its references to bruising, resulted in material prejudice to Mr. Britton.",standard of review
+464,6328934,1,2,"In the underlying quiet title and declaratory relief action, appellant TRP Fund VI, LLC, sought a preliminary injunction to enjoin respondents PHH Mortgage Corporation and Federal National Mortgage Association from foreclosing under the first position deed of trust on its property. On March 10, 2022, the district court entered an order denying the preliminary injunction, and TRP Fund appealed. TRP Fund filed in this court an emergency motion for stay and/or injunction on March 21, seeking relief before a foreclosure sale scheduled for April 1, and paid the filing fee the next day. See NRAP 3(e) (requiring the payment of a filing fee); NRAP 45(f) (The clerk shall not be required to file any paper or record in the clerk's office or docket any proceeding until the fee required by law and these Rules has been paid.). An NRAP 27(e) certificate, which must accompany emergency motions, was not attached to the stay motion but was attached to a simultaneously filed motion to exceed the page limit. In the stay motion, TRP Fund asserted that it was clearlY impracticable to seek a stay pending appeal in the district court as set forth in NRAP 8(a) because the district court had just refused to grant it a preliminary injunction seeking similar relief, such that it would be a waste of time and resourcee to ask that court for a stay. Respondents timely filed a response to the stay motion,' arguing that the stay motion should be summarily denied because TRP 1TRPFund's and respondents motions for leave to file a stay motion and an opposition thereto that exceed the NRAP 27(d)(2) page limits are SUPREME COURT OF NEVADA 40) 1947A vigelx4 2 Fund failed to include the NRAP 27(e) certificate with the emergency motion and failed to first seek stay relief in the district court or to demonstrate that doing so was impracticable. In the response, respondents contend that TRP Fund did not attempt to comply with the NRAP 27(e) requirement to notify them of its intent to seek emergency relief before it filed the stay motion.",facts
+465,2789707,1,3,"Summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, and we therefore review grants of summary judgment de novo.10 In a review of agency action we substitute our judgment for that of the agency when interpreting the Alaska Constitution and deciding issues of law.11 But “[w]hen the interpretation of a statute or other question of law implicates ‘agency expertise as to complex matters or as to the formulation of fundamental policy,’ we defer to the agency’s interpretation so long as it has a ‘reasonable basis’ in the law.”12 If “a case may be fairly decided on statutory grounds or on an alternative basis, we will not address the constitutional issues.”13 When 10 Gilbert v. State, Dep’t of Fish & Game, Bd. of Fisheries, 803 P.2d 391, 394 (Alaska 1990) (citing Southeast Alaska Constr. Co. v. State, Dep’t of Transp., 791 P.2d 339, 342 (Alaska 1990); Grand v. Municipality of Anchorage, 753 P.2d 141, 143 n.3 (Alaska 1988)). 11 Alaska Fish & Wildlife Conservation Fund v. State, Dep’t of Fish & Game, Bd. of Fisheries, 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)). 12 Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460, 465 (Alaska 2008) (quoting Rose v. Commercial Fisheries Entry Comm’n, 647 P.2d 154, 161 (Alaska 1982)). 13 Id. (citing State, Dep’t of Health & Soc. Servs. v. Valley Hosp. Ass’n, 116 P.3d 580, 584 (Alaska 2005)). -5- 6992 a regulation is adopted in accordance with the Administrative Procedure Act and the legislature intended to give the agency discretion, our review is limited to ascertaining whether the regulation is consistent with its authorizing statutory provisions and whether it is reasonable and not arbitrary.14",standard of review
+466,6322264,1,4,"In his first assignment of error, Juan assigns that the district court erred in violating his due process rights by issuing a harassment protection order against him. Specifically, Juan asserts that he was not provided with sufficient notice and an opportunity to be heard regarding the harassment protection order, in violation of his procedural due process rights protected by the U.S. and Nebraska Constitutions. We agree. 1. Due Process and Protection Orders [2,3] While the concept of due process defies precise definition, it embodies and requires fundamental fairness. 4 Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker. 5 1 Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). 2 Id. 3 Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018). 4 Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007), disapproved on other grounds, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). 5 Id. - 757 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 [4] When it comes to protection orders, we have recognized that because the intrusion on a respondent’s liberty interests is relatively limited, the procedural due process afforded in a protection order hearing is likewise limited. 6 But while the procedures required in a protection order proceeding may not reflect the full panoply of procedures common to civil trials, we have held that due process does impose some basic requirements. 7 A brief explanation of prior opinions concerning protection orders and due process is helpful to understand the due process rights afforded to the parties in protection order proceedings. In 2010, the Nebraska Court of Appeals considered a due process claim regarding the entry of a harassment protection order in Sherman v. Sherman. 8 Susan Sherman filed a petition and affidavit to obtain a domestic abuse protection order against her ex-husband, Scott Sherman, under Neb. Rev. Stat. § 42-924 (Reissue 2008). The lower court issued an ex parte order against Scott that same day. Scott requested a hearing. At that hearing, Scott moved to dismiss the ex parte domestic abuse protection order; in response, the court sua sponte requested the bailiff to retrieve a harassment protection order and stated that Susan “‘want[ed] to amend it to that.’” 9 The court later entered a harassment protection order pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2008) against Scott for a period of 1 year. On appeal, the Court of Appeals found that Scott had not properly preserved the due process issue for appellate review, but noted that the lower court had indeed crossed the line into advocacy because it had made the determination of which theory to pursue, rather than allowing Susan to make that choice herself. The court then laid out instructions for how a 6 See Mahmood v. Mahmud, supra note 1. 7 Id. 8 Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010). 9 Id. at 344, 781 N.W.2d at 619. - 758 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 court should act under these circumstances so that the rights of both parties could be protected without the court’s acting as an advocate for either side, stating: In order to prevent crossing the line into advocacy for a pro se litigant, when presented with a situation in which an ex parte domestic abuse protection order has been entered, but at the hearing, it becomes apparent that the matter may more properly be considered as a harassment protection order, the judge should explain the requirements for both domestic abuse and harassment protection orders and allow the petitioner to choose which theory to pursue. If the petitioner chooses to pursue the alternative theory to the petition and affidavit filed, and the respond­ ent objects, the court should inquire if the respondent is requesting a continuance, which should be granted, if so requested, while leaving the ex parte protection order temporarily in place. Following this procedure ensures that a judge does not cross the line from judge to advocate in assisting the pro se litigant while at the same time protecting the rights of the opposing party. 10 In a later case, Linda N. v. William N., 11 this court considered a due process claim regarding a domestic abuse protection order. The mother, Linda N., had requested a protection order on behalf of her minor daughter, seeking protection against the daughter’s father, William N. An ex parte domestic abuse protection order was issued by the district court, and William requested a show cause hearing on the ex parte order, which was upheld by the district court after the show cause hearing. William appealed, stating that the district court erred in considering his conduct “abuse” for purposes of Neb. Rev. Stat. § 42-903 (Cum. Supp. 2014). Linda cross-appealed, arguing that a harassment protection order should be entered if the evidence did not sustain the domestic abuse protection order entered by the trial court. 10 Id. at 347-48, 781 N.W.2d at 620-21. 11 Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014). - 759 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 On appeal, this court held that William’s conduct did not constitute abuse and reversed the decision of the district court. In consideration of Linda’s cross-appeal, we stated that a trial court has discretion, authority, and jurisdiction to issue a harassment protection order, even though the petitioner had filed a petition for a domestic abuse protection order, but the legal theory supporting a domestic abuse protection order is significantly different from the theory underlying a harassment protection order. 12 Thus, it was improper for Linda to attempt to induce this court to change legal theories at the appellate level. We went on to distinguish Sherman, stating that the procedure it laid out which allowed for a change of legal theories was proper in that it occurs before the trial court makes a final decision, requires the petitioner to make an informed choice of legal theory, and protects the due process rights of both parties by trying the case only on the theory elected by the petitioner and by offering a continuance if the petitioner does elect to change his or her theory. 13 Such procedure, however, was inapplicable “where a petitioner, as informed by counsel, pursues a domestic abuse theory and the potential application of a harassment theory does not become ‘apparent’ to either the petitioner or the trial court.” 14 Accordingly, Linda’s cross-appeal was without merit. Most recently, this court again considered due process as it related to protection orders in a 2019 case, D.W. v. A.G. 15 In D.W., a woman petitioned the court for a sexual assault protection order based on her allegations that the respond­ ent, A.G., had subjected her to sexual intercourse when she was incapacitated. D.W. further alleged that A.G. had violated contact restrictions imposed by the university they both 12 Id. 13 Id. 14 Id. at 619, 856 N.W.2d at 446. 15 D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019). - 760 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 attended, “‘interfering with [her] educational experience.’” 16 An ex parte sexual assault protection order was entered against A.G., who then requested a show cause hearing on whether the sexual assault protection order should remain in place. After the close of evidence at the hearing, the trial court stated that the sexual assault protection order would not remain in effect, but that it would “enter a protection order.” 17 The trial court subsequently dismissed the sexual assault protection order and, after sua sponte filing D.W.’s petition and affidavit under a new case number, entered a harassment protection order in that case. On appeal, we held that the respondent, A.G., was not provided with sufficient notice and an opportunity to be heard and that the entry of the harassment protection order had violated A.G.’s right to procedural due process. In our analysis, we discussed and distinguished both Linda N. and Sherman. We stated: “Inherent in both Linda N. and Sherman is a recognition that a respondent in a protection order proceeding must be notified of the grounds upon which a protection order is sought and provided with an opportunity to respond to those grounds at the show cause hearing.” 18 In accordance with reasoning supplied by the Linda N. and Sherman opinions, we found that A.G. was not provided with sufficient notice and an opportunity to be heard regarding a harassment protection order. The original petition, ex parte order, and show cause hearing had all either alleged a sexual assault or focused on whether the sexual assault protection order entered against A.G. should remain in place. D.W. did not request a harassment protection order or make allegations sufficient to give notice that she sought such an order, and no evidence could be identified at the show cause hearing that tended to show A.G. harassed D.W. 16 Id. at 44, 926 N.W.2d at 654. 17 Id. at 43, 926 N.W.2d at 654. 18 Id. at 50, 926 N.W.2d at 657. - 761 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 After again noting the issues of advocacy by the court, as previously discussed in Sherman, this court explained that the procedure had been insufficient where A.G. had “requested a show cause hearing as to whether a sexual assault protection order should remain in effect.” 19 It was not until after the close of evidence that the trial court “brought up the harassment protection order on its own initiative.” 20 We found that by the time A.G. was aware that the court was considering a harassment protection order in place of a sexual assault protection order, A.G. no longer had the opportunity to present a case that such an order was not warranted. Further, we discussed how the procedure followed by the lower court was not meaningfully different from that of Linda N., a procedure which we found to be inconsistent with due process. We noted, again: Whether a new theory for a protection order is asserted for the first time on appeal or after the close of evidence at the show cause hearing, the respondent does not have an opportunity to defend against the entry of the protection order on the new theory and is denied procedural due process. 21 Because the entry of a harassment protection order did not comply with procedural due process, we reversed entry of the harassment protection order and remanded the cause with directions to vacate it. 22 2. Neb. Rev. Stat. § 28-311.11 (Supp. 2019) After D.W. was decided, the Legislature amended Neb. Rev. Stat. § 28-311.11 (Supp. 2019) on May 30, 2019, and Yerania asserts that D.W. therefore does not control this case as it was decided prior to these amendments. Conversely, Juan 19 Id. at 51, 926 N.W.2d at 658 (emphasis supplied). 20 Id. 21 Id. at 51-52, 926 N.W.2d at 658. 22 D.W. v. A.G., supra note 15. - 762 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 argues that the amendments to § 28-311.11 “[do] not relieve a trial court from giving the respondent notice that it is considering a harassment protection order . . . in lieu of the sexual assault protection order and an opportunity to defend against such new theory.” 23 We agree with Juan. Simply because the statute has been amended does not mean that Juan’s rights were not violated under the amended statute, and such amendment does not render our prior opinion inapplicable where the process utilized was deficient for similar reasons. (a) Insufficient Notice In this case, the facts mirror those in D.W. 24 Yerania submitted a petition and affidavit seeking a sexual assault protection order, which was granted ex parte by the district court. The ex parte sexual assault protection order served upon Juan informed him that “[i]f [he] wishes to appear and show cause why this order should not remain in effect or be renewed for a period of one year,” he could submit a request for hearing. (Emphasis supplied.) Included with the ex parte protection order was a form entitled “Protection Order Information - Sexual Assault.” Under the heading “Notice to Respondent,” this form stated: If there has been an Ex Parte Protection Order served upon you and you wish to request a hearing to show cause why the order should not remain in effect, you must request a hearing on the provided “Request for Hearing” form . . . . If there is a hearing scheduled [and] if you fail to appear, a final order may be entered against you for the relief requested in the petition. (Emphasis supplied.) While the form elsewhere briefly mentioned that the court may on its own motion or at the request 23 Reply brief for appellant at 1. 24 See D.W. v. A.G., supra note 15. - 763 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 of the petitioner treat a petition for a sexual assault protection order as a request for a domestic abuse protection order or harassment protection order, fulfilling the requirements of the amended § 28-311.11, it did not make clear to Juan that such action was applicable where an ex parte protection order had already been entered against him. Instead, the forms served upon Juan seemed to indicate that such action was applicable only if the judge had set the petition for hearing to allow the parties to present evidence prior to issuing an order. As a result, this notice did not reasonably inform Juan of the subject and issues involved in the proceeding. (b) Insufficient Opportunity to Be Heard Based on the language of the protection order with which he was served, Juan requested a show cause hearing to “show cause why this order should not remain in effect or be renewed for a period of one year.” At the show cause hearing, testimony and evidence of both parties addressed only whether a sexual assault or sexual harassment had occurred. There was no discussion regarding harassment or domestic abuse protection orders and no indication that an alternate order would be entered; rather, the sole focus was whether the ex parte sexual assault protection order should be continued based on the evidence presented. It was not until after the close of evidence that the trial court sua sponte refiled the petition under a new case number and entered a harassment protection order. Much like the respondent in D.W., 25 by the time Juan learned that a harassment protection order was under consideration by the court, he no longer had the opportunity to present a case that such an order was not warranted. This deprived Juan of any meaningful opportunity to defend himself or be heard on the issue of harassment. 25 See id. - 764 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 (c) Fundamental Fairness and Advocacy by Court Yerania has suggested that the language of § 28-311.11 sufficiently made clear the court may issue a harassment protection order rather than a sexual assault protection order if such is deemed appropriate based on the facts in the petition, affidavit, and evidence presented at a show cause hearing and that thus, Juan’s rights were not violated because he was given a show cause hearing on the matter. But even if Juan had himself understood that § 28-311.11, as amended, granted the court authority to consider a different form of protection order as the result of evidence provided at the show cause hearing, after such hearing had concluded, and even when an ex parte order had already been entered, his due process rights would still have been violated. [5] With its amendments, § 28-311.11(8) grants the court authority to consider an alternative protection order, even after the show cause hearing has concluded and without a request by the petitioner, as long as it makes specific findings. To satisfy the requirement of specific findings, the court must set forth the reasoning for its order, explaining why its conclusion is appropriate; specific findings cannot be satisfied by simply quoting the statutory language. 26 Here, the district court did not make specific findings: Within the harassment protection order entered against Juan, it included a statement of general findings, i.e., that it had jurisdiction of the parties and the subject matter and that “a Harassment Protection Order is more appropriate,” but left blank the portion of the form in which the court is apparently meant to enter its specific findings. Such failure to make specific findings, on its own, is already enough to warrant a reversal of the protection order entered against Juan. 26 See, Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391 (2015); Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007). - 765 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 However, even where trial courts have made such specific findings, they should be attentive to potential issues of due process. [6] First, we have previously stated that the legal theories supporting either a sexual assault, domestic abuse, or harassment protection order are significantly different from one another and each require different offerings of proof. 27 For example, a domestic abuse protection order requires proof of abuse between family or household members. 28 A harassment protection order requires proof that the petitioner was seriously terrified, threatened, or intimidated, for no legitimate purpose, as a result of a knowing and willful course of conduct by the respondent. 29 And a sexual assault protection order requires proof that the petitioner was subjected to sexual contact or penetration by the respondent without consent. 30 Despite the different offerings of proof required to support entry of any of these types of protection orders, the court, per the amended statute, is allowed to sua sponte change theories after the close of evidence and at a time when the defendant is no longer able to respond or present a defense regarding the newly selected theory, as long as it gives a good reason on the record. 31 Accordingly, the only way that a respondent in this situation could adequately prepare his or her defense is to prepare to defend against all possible theories that may be raised at a show cause hearing. To uphold our longstanding principles of due process, which embody and require a fundamental fairness to all parties, 32 courts should ensure, prior to 27 See Linda N. v. William N., supra note 11. 28 See §§ 42-903(1) and 42-924 (Cum. Supp. 2020). 29 See Neb. Rev. Stat. §§ 28-311.02 (Reissue 2016) and 28-311.09(1) (Cum. Supp. 2020). 30 See § 28-311.11(1) and (14) (Cum. Supp. 2020). 31 See § 28-311.11 (Supp. 2019). 32 D.W. v. A.G., supra note 15. Accord In re Interest of Spencer O., 277 Neb. 776, 765 N.W.2d 443 (2009). - 766 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 foreclosing a party’s opportunity to be heard, that the party has been notified of the ultimate theory and has had a fair opportunity to address it. [7,8] Courts should also be attentive to another fundamental principle of due process: a hearing before an impartial decision­maker. 33 For this reason, we have repeatedly held that a judge must be careful not to appear to act in the dual capacity of judge and advocate. 34 A judge’s official conduct must be free from even the appearance of impropriety, and a judge’s undue interference in a trial may tend to prevent the proper presentation of the cause of action. 35 In Sherman, the Court of Appeals noted that the judge’s actions had crossed the line into advocacy when it made the determination of which theory to pursue. 36 To avoid advocacy, the Sherman court suggested that the judge in such situation should explain the requirements for the different types of protection orders and allow the petitioner to choose which theory to pursue. In Linda N., we approved of Sherman’s suggested procedure, noting that it “preserves the adversarial system” and protects the rights of both parties by requiring a petitioner to make an informed choice regarding the theory to be pursued while also granting a continuance to the respondent if an alternate theory is selected. 37 In Torres v. Morales, 38 we held that the trial court judge had not acted as an advocate when it merely informed a party of the legal consequences of a protection order but did not direct the party’s decision. But in D.W., we noted that the court’s decision to enter a harassment protection order in lieu of a 33 See Zahl v. Zahl, supra note 4. 34 Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014). 35 In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019). 36 Sherman v. Sherman, supra note 8. 37 Linda N. v. William N., supra note 11, 289 Neb. at 619, 856 N.W.2d at 446. 38 Torres v. Morales, supra note 34. - 767 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 sexual assault protection order “on its own initiative” raised questions as to the source of the harassment protection order theory, stating: The trial court appears to have correctly sensed that there was something standing in the way of its entering a harassment protection order in the case filed by D.W. We can discern no other reason why the trial court would take the puzzling step of sua sponte refiling D.W.’s initial petition under a new case number and then entering the harassment protection order in that case. 39 There is a danger that by sua sponte selecting an alternate theory and form of protection order by making specific findings, but without a request by the petitioner, a court may erroneously act as an advocate for the petitioner. Simply put, the amendments made to § 28-311.11 in 2019 and since that time do not relieve courts of their duty to ensure the due process described by this court in D.W. and Linda N. and by the Court of Appeals in Sherman. To avoid future due process violations, courts faced with similar circumstances should continue to utilize the procedure as laid out by Sherman: When presented with a situation in which an ex parte protection order has been entered, but at the hearing, it becomes apparent that the matter may more properly be considered as a different type of protection order than the type previously entered ex parte, the judge should explain the requirements for each type of protection order and allow the petitioner to choose which theory to pursue. If the petitioner chooses to pursue an alternative theory to the petition and affidavit filed, and the respondent objects, the court should inquire if the respondent is requesting a continuance, which should be granted if so requested, while leaving the ex parte protection order temporarily in place. Here, Juan was not provided with sufficient notice informing him of the court’s authority to consider a harassment 39 D.W. v. A.G., supra note 15, 303 Neb. at 51, 52, 926 N.W.2d at 658. - 768 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749 protection order in lieu of the ex parte sexual assault protection order previously entered against him. After such order was under consideration by the court, Juan no longer had a meaningful opportunity to respond to or be heard on the issue of harassment. Accordingly, we find that the procedure utilized in this case deprived Juan of sufficient notice and an opportunity to be heard in violation of his due process rights. For these reasons, we reverse the decision of the district court and remand the cause with directions to vacate the harassment protection order. Having remanded the cause with directions to vacate the order, we need not consider Juan’s other assignments of error.",analysis
+467,2509156,1,13,"The Board must review final decisions of the Department of Revenue on application of any interested person adversely affected. Wyo. Stat. Ann. ง 30-11-102.1(c). Taxpayers are specifically authorized to appeal final decisions of the Department concerning oil and gas valuation amendments. Wyo. Stat. Ann. ง 39-14-209(b)(v). The taxpayer's appeal must be filed with the Board within thirty days of the Department's final decision. Wyo. Stat. Ann. ง 39-14-209(b)(iv); Rules, Wyoming State Board of Equalization, Chapter 2, ง 5(a). This case arises from the Department of Revenue's assessment of additional severance taxes and increase in taxable valuation on Petitioner's gas production following an audit by the Wyoming Department of Audit. Wyo. Stat. Ann. ง 39-14-208(b).",jurisdiction
+468,2634480,1,1,"[¶ 2] Wyo. Stat. Ann. § 16-3-114(a) (LexisNexis 2003) requires that a party must be aggrieved or adversely affected in fact to seek judicial review of an agency action. Likewise, the doctrine of ripeness prevents courts from `entangling themselves' in an administrative proceeding until a decision has been `formalized and its effects felt in a concrete way by the challenging parties.' Industrial Siting Council of State of Wyo. v. Chicago & North Western Transp. Co., 660 P.2d 776, 779 (Wyo.1983) ( quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). In light of these principles, the issue we must consider is whether this Court should review the Commission's finding regarding Jacobs' chronic abdominal pain, when he has not been denied benefits for his chronic abdominal pain.",issues
+469,900869,1,1,"[¶ 4.] Walter L. Brownlee (Walter) died testate on August 17, 1997. Walter executed his Last Will and Testament and a Revocable Trust Agreement on March 10, 1997. Three provisions of those documents are important: Article I of the Will provides: I direct that all federal estate taxes chargeable to my taxable estate, including any taxes arising from the transfer or receipt of assets which are not part of my probate estate, shall be paid from the balance of my estate remaining after complying with the hereinafter sections of my Will. Any South Dakota inheritance tax that is charged against a beneficiary shall be the obligation and responsibility of the individual as to the assets they are to receive. Article III of the Will provides: [d]uring my lifetime I have established a Trust for the benefit of individual parties and they are to receive those assets as set forth in the said Trust. Walter's Trust provides in part: I direct that all inheritance tax, estate and other similar taxes of the United States, or any state thereof, assessed against my taxable estate or recipients thereof, whether passing by this Trust or otherwise, shall be charged to the principal of my Trust without reimbursement or contribution from any person. [¶ 5.] The conflict between the provisions of the Will and Trust concerning the payment of estate and inheritance taxes are the heart of this dispute. The trial court found that the Will and Trust provisions were unambiguous and irreconcilable. He also determined that the Will provision controlled the apportionment of federal estate and state inheritance taxes. [¶ 6.] The parties were unable to come to an agreement as to the order of abatement. According to South Dakota's abatement statute, SDCL 29A-3-902, the trial court held that abatement would proceed in the following order: 1) intestate property; 2) property held in the residuary of the estate; 3) property that was not specifically devised; 4) property specifically devised; 5) the Trust, joint tenancy accounts and individual retirement accounts; and 6) multiple party bank accounts. [¶ 7] Randy is Walter's son. He began working for Walter's gravel crushing business in 1971. Walter retired in 1989 and Randy continued the business. Apparently, they had an agreement whereby Randy retained possession of the business equipment and paid Walter whatever he wants each year, plus whenever he wanted a car ... it all depended on how good a year we had. There was no written agreement. Walter structured the transaction as a lease to avoid the tax consequences of an outright sale of the equipment. However, Randy argues on appeal that Walter's actual intent was that the transaction was a sale. [¶ 8.] Three days before drafting his Will and Trust, Walter executed a Bill of Sale to Randy which described certain construction equipment. Walter left the Bill of Sale with his attorney for delivery to Randy after Walter died. Three of the items described in the Bill of Sale were certificates of title to vehicles which had already been transferred into Randy's name. These three items were labeled exhibits A, B and C. The trial court held that they were effectively transferred to Randy, but that the remaining items in the Bill of Sale were an attempt to gift the property to Randy which failed due to lack of delivery. [¶ 9.] Richard Bohls, the CPA for Walter and Randy, testified on behalf of Randy at the hearing. After Bohls was dismissed as a witness, counsel for Weekley cross-examined Randy on whether he had any gift tax returns to support his contention that some of the property had already been gifted to him. Randy's counsel asked for a continuance so that Bohls could be recalled to testify as to three gift tax returns. However, these gift tax returns did not include property involved in this estate, but referred to other property which had previously been gifted to Randy and his family. The court refused to continue the proceeding but stated that if Bohls could be in court before the close of the proceeding, it would consider taking him out of order. Counsel for Weekley rested, the hearing was concluded and Bohls was not re-called. The next morning Randy found the gift tax returns although he had previously stated were unobtainable because they were iced in. Randy's counsel filed a motion to reopen the hearing. The trial court entered findings of fact and conclusions of law denying the motion. [¶ 10.] Weekley appeals two issues: 1. Whether the trial court erred in determining that the Will and Trust provisions regarding apportionment of taxes could not be reconciled and that the Will controls apportionment. 2. Whether the trial court erred in interpreting South Dakota's abatement statute, SDCL 29A-3-902. [¶ 11.] By notice of review, Randy appeals two issues: 3. Whether the trial court erred in determining that the Bill of Sale was an ineffective gift and that the construction equipment remained in the residuary estate. 4. Whether the trial court abused its discretion in denying Randy's motion to reopen the hearing to allow him to present evidence of previous gifts from Walter to Randy and others. [¶ 12.] We affirm the trial court on Issues 3 and 4, modify Issue 1, and need not decide Issue 2.",facts
+470,880082,1,5,A. Did the district court properly set aside the IDL’s denial of Application 219-B? B. Did the district court properly set aside the IDL’s denial of Application 219-C? C. Is Kaseburg entitled to attorney’s fees?,issues
+471,2359097,1,2,"[¶ 3] The parties married on February 14, 2000, and three children were born into the marriage. Although the divorce complaint is not included in the record on appeal, the clerk's index indicates that it was filed by Husband on January 15, 2009. After a trial, which apparently was not reported, the district court issued a decision letter granting the divorce and awarding primary physical custody of the children to Wife. [¶ 4] The decision letter also divided the assets and liabilities of the marriage. The primary asset was commercial property, from which Husband claimed he operated a construction business. The property was valued at $132,700. The trial evidence indicated that Wife's mother, Kathy Judd, had loaned the parties $140,000, and they still owed a balance of $131,300 on the loan. The district court set over one half of the outstanding debt to each party and ordered the property be sold to pay the debt. The district court further ordered: Each party shall apply their respective proceeds from the sale of this property to the debt owed to Kathy Judd. . . . If each party does not receive sufficient funds to retire their portion of the debt in full, then Kathy Judd shall have judgment against each party for the remainder. Husband appealed from the district court's judgment.",facts
+472,1454438,1,1,"Jaime Soto Vasquez (defendant) was arrested for unlawful possession of cocaine after police searched his jacket during an investigation of a family fight. Defendant moved to suppress the cocaine, alleging that the police should have limited their search of the jacket to hard objects that could have been weapons. The state argued that the search was proper as a protective pat-down search. The state also argued that the officer had probable cause to arrest defendant and authority to transport him, without regard to defendant's lack of consent. After an evidentiary hearing, the trial court denied defendant's motion to suppress. The court of appeals reversed, holding the search illegal. We granted review pursuant to A.R.S. § 12-120.24 and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3). We conclude that the search was legal and, therefore, we vacate the court of appeals' opinion and affirm the trial court.",jurisdiction
+473,2581377,1,1,"Jenkins argues the State failed to present sufficient evidence to support his convictions of involuntary manslaughter. This court in State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000), explained the standard of review for sufficiency of evidence: When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.] The jury convicted Jenkins of the version of involuntary manslaughter requiring proof of the unintentional killing of a human being committed recklessly. See K.S.A. 2000 Supp. 21-3404(a). The trial court instructed the jury on the following definition of recklessness: Reckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms `gross negligence,' `culpable negligence,wanton negligence' and `wantonness' are included within `reckless.' The above definition is substantially similar to the definition of reckless conduct found at K.S.A. 21-3201(c). Based on the State's theory, the issue is whether a rational factfinder could have found that Jenkins demonstrated a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger when he decided to drive his car prior to the fatal collision. Jenkins argues that his history of accidents caused by seizures was not sufficient evidence to support the jury's verdict. Jenkins relies on State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998). This court in Huser reviewed the State's appeal from the trial court's dismissal of two counts of reckless aggravated battery. The Huser court affirmed the district court, holding that evidence of driving under the influence does not, standing alone, amount to reckless behavior. 265 Kan. at 234. The Huser court relied on and quoted extensively from State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983). The Mourning court considered whether reckless driving and driving under the influence of alcohol or drugs were the same offense for double jeopardy purposes. The Mourning court concluded that the two crimes required different evidence. 233 Kan. at 681. In its analysis, the Mourning court addressed the State's argument that any time a person under the influence of alcohol or drugs operates a vehicle he does so in willful or wanton disregard for the safety of others. 233 Kan. at 682. The Mourning court rejected this argument by pointing out that driving under the influence only requires driving when impaired, not swerving or driving recklessly. 233 Kan. at 682. Jenkins would have this court interpret Huser as standing for the proposition that there can be no criminal liability for reckless behavior anytime a person drives knowing he or she suffers from any condition that might preclude his or her ability to safely operate a vehicle. Such cannot be the law. The better interpretation of Huser is simply that the mere proof of driving under the influence is insufficient to prove recklessness. The State has presented sufficient evidence of recklessness. The State's evidence showed that Jenkins' history of past accidents was caused by his susceptibility to seizures. The State provided evidence of seven such accidents. This case is different from Huser. In Huser, there was no evidence that the defendant had a conscious disregard for a known danger. The Huser court also pointed out that [o]ne's behavior is only reckless if he or she realizes that his or her conduct creates imminent danger to another person but consciously and unjustifiably disregards the danger. [See K.S.A. 21-3201(c).] 265 Kan. at 234. Jenkins' seven prior collisions provided sufficient evidence to show that Jenkins knew of the imminent danger he created for other motorists. Based on Huser, Jenkins is correct to note that driving in an impaired condition is alone insufficient evidence of recklessness. Had the seizure been Jenkins' first, he would not have had any criminal liability because he would not have had any reason to believe he was putting other motorists in danger by driving. Here, the jury understandably found that Jenkins knew of the imminent danger before driving and consciously disregarded it. The seizure was not a surprise to Jenkins.",sufficiency of the evidence
+474,6348671,1,2,"Bryce David Dion worked for Langley Productions, Inc. (Langley), as a sound technician on the filming crew for the “COPS” television program. In the summer of 2014, Dion - 526 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 was part of a two-person crew that, pursuant to an agreement between Langley and the City of Omaha (City), rode with and filmed the activities of two Omaha Police Department (OPD) officers. On August 26, 2014, while at the scene of a robbery in progress at a fast-food restaurant, Dion was hit by a bullet fired by OPD officers as they aimed and shot at the suspect after the suspect had threatened the officers by pointing what appeared to be a firearm at them. It was later determined that the handgun the suspect brandished was not, in fact, an actual firearm. 1. Agreement Under the agreement signed by the City’s mayor and the producer of COPS (Agreement), the City granted Langley access to OPD and its personnel. It allowed video and audio to be recorded during production “in all circumstances and locations” and gave the COPS crew “reasonable access to officers and situations such officers encounter.” All film activity was “subject to and under [the] control of the [OPD] officer in charge,” and Langley agreed to “comply with all instructions and restrictions as directed by [OPD].” Paragraph 5 of the Agreement provided for a duty to defend and indemnify as follows: [Langley] agrees that it shall indemnify, defend and hold harmless, the City, its officers, agents, employees and administrators from and against any and all claims for damage and liability for injury to or death of persons; and for damage to or destruction of property occurring during and arising out of the acts or omission of [Langley], its employees and/or agents with regard to [Langley’s] filming; and shall pay the reasonable cost of defending lawsuits resulting therefrom, including, but not limited to, reasonable attorneys fees, court costs and any judgment awarded to a third party as the result of such suit. In accordance with the foregoing, [Langley] also agrees to indemnify, defend and hold harmless the City from - 527 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 and against all claims related to intellectual property claims arising out of [Langley’s] filming activities. Another portion of paragraph 5 stated that the City shall be named an additional insured on Langley’s comprehensive general liability insurance policy. 2. Complaint for Wrongful Death Dion’s estate (Estate) filed a wrongful death action against the City, alleging that OPD owed Dion a special duty of care and protection and that its police officers negligently shot Dion while acting within the scope of their employment. The Estate alleged, summarized, that OPD did not provide adequate protection of the filming crew through various alleged deficiencies of general training and instruction of OPD personnel and the crew. It also alleged that on August 26, 2014, OPD failed to adequately monitor and communicate to other officers the filming crew’s whereabouts, give the filming crew adequate instructions for its safety, or carry out OPD duties in a manner that accounted for the presence of the filming crew at the scene. Finally, the Estate alleged that the OPD officers at the scene failed to identify the proper target before discharging their firearms, used excessive force, and acted unreasonably in light of the presence of innocent bystanders. Prior to filing its action, the Estate had timely filed a notice of its claim in accordance with the Political Subdivisions Tort Claims Act (PSTCA). The claim was not acted upon by the City and was withdrawn more than 6 months after it was filed. The City filed an answer affirmatively alleging sovereign immunity as a defense, on the grounds that the Estate’s claim arose out of an intentional tort of battery. Alternatively, the City alleged that the use of force was objectively reasonable and privileged. Further, the City alleged that Dion assumed the risk associated with filming law enforcement personnel while on duty and that Dion voluntarily and without notifying the officers had placed himself within an active armedrobbery situation. - 528 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 3. Third-Party Complaint Against Langley The City filed a third-party complaint against Langley for breach of contract. It also brought a claim against Langley for promissory estoppel, which is not at issue in this appeal. The City had sent a letter to Langley requesting that it forward the wrongful death complaint to its insurance carrier for defense against the Estate’s claims. Langley’s insurance carrier thereafter notified the City it was denying the City’s request for defense and indemnification under the commercial general liability policy issued to Langley. The City alleged in its third-party complaint that Langley was contractually required to indemnify the City against any claim for damages and liability for injury to or death of persons, defend the City against any claim for injury to or death of persons, name the City as an additional insured in Langley’s general liability insurance policy, and abide by a duty of fair dealing. 4. Motions For Summary Judgment The City moved for summary judgment against the Estate on the grounds that it was immune from the wrongful death suit, which arose out of a battery, as set forth in Neb. Rev. Stat. § 13-910(7) (Reissue 2012), which provides in relevant part that the PSTCA shall not apply to “[a]ny claim arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Langley moved for summary judgment against the City on the third-party claims against it. The City filed a cross-motion for summary judgment against Langley. (a) Wrongful Death The district court denied summary judgment in favor of the City on the Estate’s wrongful death action. At the hearing on the motion, the City had argued that the historical facts were undisputed and that a battery occurred by virtue of the officers’ intentional act of firing at the - 529 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 suspect. The City relied on a standard from the Restatement (Second) of Torts, 1 quoted in Britton v. City of Crawford, 2 that an actor is subject to liability to another for battery if (1) he or she acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) a harmful contact with the person of the other directly or indirectly results. The City argued that it was undisputed that the City intended to cause harmful contact to the suspect, a third person, which indirectly caused harmful contact to Dion. The Estate argued, among other things, that the actions of the officers lawfully using their firearms in the course of duty would not constitute an intentional tort. It was also discussed that the officers were exonerated by a grand jury of any criminal activity in connection with placing the filming crew in harm’s way. In denying summary judgment against the Estate, the court reasoned that our opinion in Phillips v. Liberty Mut. Ins. Co. 3 stands for the proposition that actions for injuries to bystanders by law enforcement in the course of pursuing a suspect are not immune under § 13-910(7). And the court found there was a genuine issue as to whether OPD acted reasonably in relation to the events leading to Dion’s death. (b) Breach of Contract The court granted Langley’s motion for summary judgment as to the City’s claim against Langley for breach of contract, which was based on paragraph 5 of the Agreement. The court reasoned that the contract did not affirmatively and unambiguously protect the City from its own negligence and that the duty to be named an additional insured was immaterial because Langley’s policy included only operations performed by Langley or on Langley’s behalf and excluded 1 Restatement (Second) of Torts § 13 (1965). 2 Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011). 3 Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361 (2016). - 530 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 bodily injury arising out of operations performed for the state or municipality. (c) Promissory Estoppel The court denied Langley’s motion for summary judgment on the City’s claim for promissory estoppel. It generally denied the City’s cross-motion for summary judgment against Langley. 5. Wrongful Death Verdict The court bifurcated for separate bench trials the Estate’s wrongful death action against the City and the City’s thirdparty action against Langley for promissory estoppel. The trials were held before a different judge than the judge who presided over the summary judgment hearing. The court ultimately issued a verdict in favor of the City on the Estate’s wrongful death claim, first, on the grounds of sovereign immunity and, alternatively, on the failure to prove negligence. (a) Findings of Fact In its order following the trial on the Estate’s wrongful death claim, the court summarized the relevant evidence and made findings of historical facts. The court found that the only explicit restriction OPD and the City placed upon the filming crew was that it was not to exit the patrol car during large crowd disturbances involving more than 10 people. Otherwise, OPD and the City generally expected that the crew would follow and observe the officers’ orders. On the day in question, Dion and Mike Lee, the cameraman for the two-person filming crew, were riding with OPD officers Brooks Riley and Jason Wilhelm. The court found that Dion had ridden with Riley and Wilhelm several times previously over the course of the preceding 8 weeks and had developed a cooperative and professional relationship with them. The officers were aware that the filming crew always exited the patrol car and followed them everywhere they - 531 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 went while on duty. Dion had advised the officers they should act like the crew was not there, although the officers testified the crew would take direction from officers and follow officers’ commands or directives. On the night in question, OPD detective Darren Cunningham radioed that a robbery suspect had entered a fast-food restaurant. Cunningham waited for responding officers to arrive in order to set up a perimeter around the restaurant. Riley and Wilhelm, who were only a few blocks away, proceeded directly to the scene. When Riley and Wilhelm arrived, they exited their patrol car. A civilian in the parking lot yelled to Wilhelm and Riley, “Help, help, they need help inside.” Riley and Wilhelm did not give any instructions to Dion and Lee. As Riley and Wilhelm approached Cunningham, they did not identify Dion and Lee to Cunningham, who assumed they were law enforcement, because they were wearing dark clothing and were with Riley and Wilhelm. Cunningham did not observe the video camera, boom microphone, and audio equipment carried by Dion and Lee. Dion and Lee did not wear any clothing identifying themselves as media. Cunningham and Riley entered the restaurant on the east side of the building through the south vestibule door, followed by Lee. Wilhelm circled around the building to enter through the western entrance. There was a customer at the service counter and an employee standing behind the service counter handing money from the cash register to the suspect, who was behind the counter. Riley testified he saw neither the customer nor the employee. Cunningham and Wilhelm saw the employee. When Cunningham and Riley entered the area behind the counter and confronted the suspect, the suspect drew what appeared to be a black handgun, pointed it at Cunningham and Riley, and pulled the trigger. Although the suspect’s weapon was later determined to be a pellet gun, the court found that the officers reasonably believed it was a real firearm. - 532 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 Cunningham discharged his firearm once and retreated into the hallway in order to avoid endangering the employee, who was in his line of fire. The suspect also exited into the hallway, where he again pointed his firearm at Cunningham. Cunningham attempted to discharge his firearm at the suspect, but it briefly malfunctioned. The suspect fled toward the east vestibule doors, pointing his firearm at Riley, who, in turn, discharged his firearm at the suspect. Wilhelm, seeing the suspect attempting what he believed to be deadly force against Cunningham and Riley, also discharged his firearm at the suspect. The three officers discharged their firearms at the suspect as he exited the restaurant through the east vestibule doors and ran through the parking lot. The suspect was no longer firing what was believed to be a deadly weapon at that time, but the officers believed the suspect continued to pose a threat to their lives and the lives of others, including other officers who could be responding to assist and the members of the public at large. The court noted that all three officers testified that they were aiming and shooting directly at the suspect while he fled. The officers testified that they did not accidentally pull the trigger of their guns or drop their firearms, but instead intended to use deadly force against the suspect. The court found that the officers’ shots were fired in a directed manner and not in a haphazard manner. The court found that none of the officers saw Dion at any point after entering the scene and that they were not aware of where Dion might be. The three officers were not even aware Dion had entered the restaurant until after they had all ceased discharging their weapons. All three officers testified that had they seen Dion within their line of fire, they would not have discharged their firearms and would instead have changed their position so as to obtain a clear line of fire toward the suspect. The court specifically found the officers’ testimony to be credible and supported by the evidence. - 533 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 The court found that although the suspect was initially in the vicinity of an employee and a customer, he moved away from both in his attempt to escape. The court found that although there were civilians present in the northeast corner of the restaurant’s parking lot, civilians were not congregating around the east entrance when the suspect fled, and there was no evidence the suspect was near any civilians outside. The officers discharged their weapons a combined total of 36 times. The majority of the bullets, 24, were fired as the suspect exited through the east vestibule. It could not be determined which officer fired the single bullet that killed Dion. Dion was later found slumped on the floor in the middle of the east vestibule. However, the court found there was no evidence as to Dion’s precise location or body positioning when he sustained the bullet wound. Nor, found the court, did the evidence rule out the possibility that Dion was struck by a bullet that had ricocheted or initially struck the suspect. (b) Sovereign Immunity The court concluded, as a threshold matter, that the Estate’s action was barred by sovereign immunity. The court did not agree with the prior judge’s reading of Phillips as it pertained to § 13-910(7). 4 The court concluded that the elements of battery had been met because the officers intended to cause harmful contact with the suspect, which resulted in harmful contact with Dion. The court relied on the definition of battery from Britton as an infliction of unconsented contact with another, 5 as well as case law from other jurisdictions holding that under a theory of transferred intent, an actor may still be found liable for battery when the harmful contact occurs to a third person 4 See Phillips v. Liberty Mut. Ins. Co., supra note 3. 5 Britton v. City of Crawford, supra note 2. - 534 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 who was not the intended target of the contact. 6 The court also relied upon the Restatement (Second) of Torts’ statement that an actor is liable for battery if the actor intended to cause harmful or offensive contact with the person of the other or a third person, or imminent apprehension of such contact, and a harmful contact with the person of the other directly or indirectly results. 7 In this analysis, the court did not consider whether the officers could have committed a battery if their acts of shooting at the suspect were privileged. The court reasoned that to fall under § 13-910(7), the underlying action need not be an action “for” one of the listed intentional torts, but need only be any claim “arising out of” one of those intentional torts. Even if the complaint alleged acts of negligence, concluded the court, the wrongful death action was inextricably linked to a battery and thus was barred by sovereign immunity. (c) Negligence Alternatively, the court concluded that the Estate had failed to prove negligence. The court found no special relationship between Dion and the City creating a heightened duty of care. Rather, it found that OPD owed Dion an ordinary duty of reasonable care under the circumstances. The court reasoned that Dion was neither a party nor a third-party beneficiary to the Agreement and that case law did not generally support a special duty to protect a bystander from the intentional conduct of an employee of the defendant. The court utilized negligence propositions from Phillips describing the balancing of the duty of law enforcement to apprehend violators against the duty of care to the general 6 See, Hensley on behalf of North Carolina v. Price, 876 F.3d 573 (4th Cir. 2017); Hensley v. Suttles, 167 F. Supp. 3d 753 (W.D.N.C. 2016); Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975). 7 See Restatement, supra note 1. - 535 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 public, as well as the privilege to use reasonable force in effecting a lawful arrest, which extends to harm caused to innocent bystanders unless the officers’ actions were unreasonable under the circumstances. 8 The court found under these propositions that the officers acted reasonably. Therefore, the officers did not breach the applicable duty of care. The court rejected the Estate’s argument that the officers should have refrained from engaging the suspect until they affirmatively ascertained Dion’s whereabouts. The court stated: It is unreasonable to expect an officer, when faced with a suspect who is within close proximity to the officer and pulling the trigger on what appears to be a real firearm, to simply stand there or try to take cover merely because a third-person, who the officer does not observe, but who could possibly be somewhere in the vicinity, may be present. The court also rejected the Estate’s contention that the suspect had fled through a “crowded thoroughfare,” given the lack of evidence that civilians were in the parts of the parking lot affected by the line of fire. In any event, the court weighed the surrounding circumstances for determining whether the act of shooting into a crowded thoroughfare is privileged, including the nature of the crime, the harm that may ensue if the officer does not act, and the officer’s skill in the use of the weapon. The court found these factors weighed heavily in favor of the City. The suspect was engaging in violence, including what the officers reasonably believed to be attempted homicide; it was reasonable to conclude that such a suspect might also shoot at other responding officers or innocent civilians; and all three officers specifically aimed at the suspect and not merely in his general vicinity. The court also found that the Estate had failed to prove proximate causation. The court explained that there was no 8 See Phillips v. Liberty Mut. Ins. Co., supra note 3. - 536 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports DION v. CITY OF OMAHA Cite as 311 Neb. 522 evidence for it to come to a conclusion, absent speculation or conjecture, that Dion’s death was caused by any failure of the City or OPD to advise him to remain outside the restaurant or to wear any clothing that identified him as media. 6. Verdict on Promissory Estoppel The court found that in light of its verdict against the Estate on its wrongful death action, there was no actual case or controversy with respect to a claim under promissory estoppel for indemnification. As for the duty to defend, the court found that promissory estoppel, which was based on oral statements made before the written contract, was not a viable theory of recovery because the written contract covered the same subject matter. The court alternatively found that the alleged statements on Langley’s behalf were too vague and indefinite to support a claim for promissory estoppel. Finally, the court found that it was not reasonable for the City to rely upon statements made on Langley’s behalf during negotiations of a contract.",facts
+475,1160207,1,2,"1. Whether there were material factual issues in dispute, rendering summary judgment improper. 2. Whether the trial court, in ruling on the summary judgment motion, should have considered issues not raised in the movant's briefing. 3. Whether the trial court should have granted relief under Rule 60(b) I.R.C.P. and extended to appellants notice and an opportunity to be heard before considering an issue not raised by respondents, but utilized by the trial court in disposing of this cause in summary fashion.",issues
+476,2150750,1,1,"Under the facts of this case, the resolution of this issue is determined entirely by the trial court's assessment of the credibility of the witnesses. In this case, there were three witnesses. The owner of the store and his wife had an opportunity to observe the defendant in the store for a period of ten minutes during the robbery. Both identified the defendant by photographs, prior to trial; and both identified him at the trial. We have reviewed the record and are of the opinion that a detailed review of the testimony in this opinion would serve no useful purpose. The various factors raised by the defendant concerning the identification by the two witnesses has been considered. We find their testimony to be believable and in no way incredible. While the specific testimony of the witnesses, referred to by the defendant, may affect the weight to be accorded their testimony, it can not be said as a matter of law that their testimony was so insufficient that no trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt. Lock v. State (1966), 31 Wis. 2d 110, 114, 115, 142 N. W. 2d 183. On review, it is not the function of the appellate court to decide which witnesses are to be believed. That is the exact function of the trier of fact, be such trier of fact the judge or a jury. Where credibility of witnesses is at issue, the trier of fact has an opportunity to observe the witnesses, their manner of testifying and their demeanor on the witness stand. These are the nuances that do not appear in a printed record. State v. Christopher (1969), 44 Wis. 2d 120, 127, 170 N. W. 2d 803. The proprietor's eighty-three-year-old aunt was also present while the armed robbery in question was in progress. The defendant urges that the unexplained failure of the state to call her as a witness raises an inference against the state that if called, she would have testified unfavorably to the state's case. Reliance is placed upon the general rule in civil cases. Feldstein v. Harrington (1958), 4 Wis. 2d 380, 388, 90 N. W. 2d 566. Under the facts of this case, we do not concur with this assertion. Defendant was positively identified at the trial by two eyewitnesses. The trial court found their testimony sufficient to establish the defendant's guilt beyond a reasonable doubt. This court has held that the state does not have the burden of producing every possible eyewitness. Dillon v. State (1909), 137 Wis. 655, 119 N. W. 352; Farino v. State (1931), 203 Wis. 374, 234 N. W. 366; Brown v. State (1965), 28 Wis. 2d 383, 388, 137 N. W. 2d 53. The absence of an available witness does not as a matter of law render the testimony of others insufficient to sustain a finding of guilt. Brown v. State, supra ; State v. Clarke (1967), 36 Wis. 2d 263, 153 N. W. 2d 61.",sufficiency of the evidence
+477,3154830,1,3,"¶8 Absent an exception to the exclusionary rule, evidence obtained in violation of the Fourth Amendment’s protections against unreasonable searches and seizures should be excluded. Davis v. United States, 131 S. Ct. 2419, 2426–28 (2011); Mapp v. Ohio, 367 U.S. 643, 655 (1961); State v. Strieff, 2015 UT 2, ¶¶ 15–19, 357 P.3d 532. Mr. Anderson argues that the sheriff’s deputies violated his Fourth Amendment rights when they seized his vehicle without sufficient justification. He further contends that the warrant and subsequent search of his vehicle that yielded the marijuana and drug paraphernalia evidence were a direct result of this unconstitutional seizure. Mr. Anderson therefore asserts that the district court should have excluded the evidence as a fruit of a police seizure that violated his Fourth Amendment rights. ¶9 In examining Mr. Anderson’s claims, we must first determine whether the deputies effected a seizure by pulling behind his parked vehicle with their cruiser’s red and blue lights flashing. Because we determine that Mr. Anderson was seized, we next decide whether this seizure was justified by the community caretaking doctrine.
+¶10 There can be no violation of the Fourth Amendment’s prohibition against unreasonable seizures in the absence of an actual seizure executed by a state actor. United States v. Drayton, 536 U.S. 194, 200–01 (2002). “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, ‘“by means of physical force or show of authority,”’ terminates or restrains his freedom of movement . . . .” Brendlin v. California, 551 U.S. 249, 254 (2007) (citation omitted). A show of authority is sufficient to constitute a 3 ANDERSON v. STATE Opinion of the Court seizure if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 255 (citation omitted). Thus it is a hypothetical reasonable person’s interpretation of an officer’s actions—not the officer’s intent—that determines whether an individual has been seized by an officer through a show of authority. ¶11 The question presented here is whether a reasonable person parked on the side of an empty highway at night would believe that she was free to leave if a police vehicle with its red and blue overhead lights engaged pulled over directly behind her car. The State argues that a reasonable person in this situation would feel free simply to drive away. In support of this contention, the State correctly notes that a police vehicle’s overhead lights are not always used as a show of authority. They may be used for officer or public safety and to convey to the occupants of a vehicle that the approaching officer does not present a threat. The State contends that a reasonable motorist in the circumstances of this case would know that a police officer was using the overhead lights for safety purposes and not as a show of authority meant to detain the motorist. ¶12 The State supports this argument by citing a terse Minnesota Supreme Court opinion, State v. Hanson, 504 N.W.2d 219 (Minn. 1993). In that case, the court held that a police officer did not seize a car parked on the shoulder of a highway at night when the officer pulled behind the vehicle with the police car’s flashing red lights engaged, reasoning that a reasonable person would know that the officer’s lights were being used for safety purposes. Id. at 219–20. ¶13 But most courts that have examined whether police have seized a parked vehicle under similar circumstances have agreed with the Kansas Supreme Court that “[f]ew, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.” State v. Morris, 72 P.3d 570, 577 (Kan. 2003) (citation omitted); see also id. at 578 (noting that “most appellate courts considering the issue have concluded a seizure occurs when the officer activates emergency lights” behind a parked car and collecting cases from Arkansas, California, Connecticut, Florida, Maryland, Oregon, Tennessee, Vermont, Virginia, and Washington); People v. Cash, 922 N.E.2d 1103, 1114 (Ill. App. Ct. 2009) (“[W]e note that the cases are legion in other jurisdictions in which the activation of lights or siren or both has been deemed a sufficient show of authority to result in the seizure of a parked car.”). The Utah Court of Appeals has similarly held that an officer parked behind a vehicle on the side of a road “detained [the 4 Cite as: 2015 UT 90 Opinion of the Court motorist] by a display of authority when he activated the overhead lights on his vehicle.” State v. Davis, 821 P.2d 9, 12 (Utah Ct. App. 1991). ¶14 We agree with the court of appeals and the majority of courts that have held that an officer’s use of overhead lights behind a vehicle parked on the side of the road may constitute a seizure. Even though we may presume that a reasonable person knows that police officers may use their overhead lights for reasons other than as a command to stop, that does not mean that the average motorist under the facts of this case would assume that the officers had no interest in detaining the vehicle and would feel free to drive away. At best, the use of a police vehicle’s overhead lights while pulling behind a car parked on the side of the road is ambiguous. The lights may signal the presence of a police vehicle for safety reasons, or they may convey the message that the officers wish to seize the vehicle parked in front of them. Faced with this ambiguity, “[f]ew, if any, reasonable citizens, while parked, would simply drive away” upon an assumption that the police did not wish to detain them. Morris, 72 P.3d at 577 (citation omitted). The consequences of wrongly guessing the officer’s intent in engaging the overhead lights and driving away could, in theory, be severe. Attempting “to flee or elude a peace officer” after receiving “a visual or audible signal from a peace officer to bring the vehicle to a stop” is a third-degree felony. UTAH CODE § 41-6a-210(1). The potential of even being accused of a felony would constrain a reasonable motorist from driving away under the facts of this case. See Morris, 72 P.3d at 577 (citing Kansas’s fleeingan-officer statute as a reason why a reasonable person would not feel free to leave); Lawson v. State, 707 A.2d 947, 951 (Md. Ct. Spec. App. 1998) (citing a Maryland statute for the same purpose). ¶15 We note that the question of whether a reasonable person would feel free to leave turns on the particular circumstances of each case. Under the specific facts presented here—where an officer engages overhead flashing lights while pulling directly behind a car parked on the side of a highway—we find that the sheriff’s deputies seized Mr. Anderson. We therefore must determine whether this seizure was justified under the Fourth Amendment.
+¶16 The U.S. Supreme Court first relied upon a police officer’s community caretaking function to justify a search of a vehicle in Cady v. Dombrowski, 413 U.S. 433 (1973). In that case, the Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a parked car because they reasonably believed that the trunk contained a loaded gun that could endanger the public 5 ANDERSON v. STATE Opinion of the Court if it fell into the wrong hands. Id. at 447–48. The Court reasoned that police officers “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441. ¶17 Although the Supreme Court has not yet addressed the question of whether a police officer’s community caretaking duties may also justify the seizure of a vehicle to ensure the safety of the occupants, many state courts have held that these duties may justify such a seizure in appropriate circumstances. Rowe v. State, 769 A.2d 879, 890 (Md. 2001) (collecting cases); State v. Smathers, 753 S.E.2d 380, 384 (N.C. Ct. App. 2014) (“Since the Supreme Court’s decision in Cady, a large majority of state courts have recognized the community caretaking doctrine as a valid exception to the warrant requirement of the Fourth Amendment.”). The leading case in Utah on this subject is the court of appeals opinion in Provo City v. Warden, 844 P.2d 360 (Utah Ct. App. 1992). In that case, the court of appeals held that the seizure of a vehicle is justified by the community caretaking doctrine if (1) “a reasonable officer [would] have stopped a vehicle for a purpose consistent with community caretaker functions” under the circumstances and (2) “based upon an objective analysis, . . . the circumstances demonstrate an imminent danger to life or limb.” Id. at 364. Upon certiorari review, this court agreed with the reasoning and the result of the court of appeals opinion, effectively endorsing the community caretaking standard adopted by it. Provo City v. Warden, 875 P.2d 557, 557 (Utah 1994). ¶18 The State argues that the “imminent danger to life or limb” portion of the standard adopted in the Warden case is unduly restrictive and should be overruled. Thus, the first question before this court is whether the Warden “life or limb” standard should stand. Because we conclude that subsequent U.S. Supreme Court opinions have fatally undermined the Warden standard, we abandon it. We therefore articulate a new community caretaking standard and apply this new standard to the facts of this case. A. The Continuing Validity of the Warden “Life or Limb” Standard ¶19 As noted above, the U.S. Supreme Court has not yet applied the community caretaking doctrine to police stops of motorists. But it has applied a similar doctrine—the emergency aid doctrine—to justify an officer’s warrantless entry into a home. ¶20 In Brigham City v. Stuart, for example, officers observed an altercation in a house through a screen door and windows. 547 U.S. 398, 401 (2006). The officers saw an individual strike another in the 6 Cite as: 2015 UT 90 Opinion of the Court face, causing the victim of the blow to spit blood into a sink. Id. Several other individuals then restrained the aggressor by pinning him to a refrigerator. Id. The officers then entered the home in order to restore order and to ascertain whether the victim needed assistance. Id. The Supreme Court held that the warrantless entry was justified because under the emergency aid doctrine “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Id. at 403. ¶21 Although a perceived or threatened injury must be “serious” to justify the application of the emergency aid doctrine, id. (“One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.”); Mincey v. Arizona, 437 U.S. 385, 392 (1978) (warrantless entry justified to “avoid serious injury” (citation omitted)), the injury need not be life-threatening. In Michigan v. Fisher, for example, officers observed through a window that a man was screaming and throwing things in his own home. 558 U.S. 45, 46 (2009) (per curiam). The officers saw that the man had a cut on his hand and asked him whether he needed medical attention, but the man ignored the officers’ inquiries “and demanded, with accompanying profanity, that the officers go to get a search warrant.” Id. One of the officers then entered the home without the requested warrant. Id. Under these facts, the Supreme Court rejected the Michigan Court of Appeals’ reasoning that the cut hand was not serious enough to justify an officer’s uninvited and warrantless entry into the home. Id. at 48–49. Noting that “[t]he only injury police could confirm in Brigham City was [a] bloody lip,” the Court held that “[o]fficers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” Id. at 49. Instead, “[i]t sufficed to invoke the emergency aid exception that it was reasonable to believe that [the man with the cut hand] had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide.” Id. ¶22 Both Brigham City and Fisher undermine the “life or limb” standard this court endorsed in Warden. In Brigham City, a bloody lip coupled with the potential for further fist fighting justified a warrantless entry into a home. In Fisher, a cut hand was sufficient. Neither of these cases involved an “imminent danger to life or limb” that the Utah Court of Appeals held was required to justify a community caretaking stop. See Warden, 844 P.2d at 364. This incongruence between Utah and Supreme Court precedent regarding the closely related community caretaking doctrine and the 7 ANDERSON v. STATE Opinion of the Court emergency aid doctrine casts considerable doubt on the continuing validity of the Warden standard. ¶23 Granted, Brigham City and Fisher involved warrantless entries into a home, while Warden dealt with the justification needed to temporarily seize a motorist. But this distinction does not justify more robust restrictions on an officer’s ability to seize a motorist than on an officer’s ability to enter a home without a warrant. To the contrary, “less stringent warrant requirements have been applied” to the search and seizure of automobiles than to the search of a home or office. Cardwell v. Lewis, 417 U.S. 583, 589–90 (1974). Consequently, a lesser showing of reasonable, articulable suspicion is required to stop a motorist, while a greater showing of probable cause is required for a police officer to enter and search a home. State v. Applegate, 2008 UT 63, ¶ 9, 194 P.3d 925 (a police officer’s “reasonable, articulable suspicion” of criminal activity is necessary for an investigatory stop of a vehicle); Johnson v. United States, 333 U.S. 10, 13–14 (1948) (a probable cause finding by “a neutral and detached magistrate” is required for a warrant to search a residence); United States v. Arvizu, 534 U.S. 266, 274 (2002) (when courts make reasonable-suspicion determinations, “the likelihood of criminal activity need not rise to the level required for probable cause”). Because less justification is required to temporarily seize a motorist than to enter and search a home, it makes little sense for Utah to maintain a more stringent standard for police to stop a motorist for public safety reasons than the standard the Supreme Court has articulated for police to enter a home without a warrant for similar reasons. ¶24 We therefore conclude that the “life or limb” standard this court effectively endorsed in 1994 is out of step with subsequent Supreme Court precedent closely related to the community caretaking doctrine. Thus, we abandon the Warden “life or limb” standard and articulate a new standard for determining whether a seizure of a vehicle for community caretaking purposes violates the Fourth Amendment. B. The Community Caretaking Standard for Seizing a Motorist and the Application of this Standard to this Case ¶25 The Fourth Amendment does not prohibit all police seizures. It forbids only “unreasonable” seizures. U.S. CONST. amend. IV. Thus, “[t]he touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness’” of the seizure. Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977) (citation omitted). “The reasonableness of a seizure under the Fourth Amendment is determined ‘by balancing its intrusion on the individual’s Fourth 8 Cite as: 2015 UT 90 Opinion of the Court Amendment interests against its promotion of legitimate government interests.’” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 187–88 (2004) (citation omitted); accord Terry v. Ohio, 392 U.S. 1, 21 (1968) (“[T]here is ‘no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.’” (citation omitted)). Greater intrusions upon an individual’s freedom of movement require a concomitant greater showing of a legitimate government interest to justify the intrusion, while a lesser intrusion may be justified by a lesser showing of a government interest. That is why a highly intrusive arrest requires probable cause, while a less intrusive Terry stop requires a less stringent reasonable suspicion standard. Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 21, 24–27. ¶26 This balancing between an individual’s interest in being free from police intrusions and the State’s legitimate interest in the public welfare that underpins a court’s scrutiny of a seizure based upon suspicion of criminal activity also animates the community caretaking doctrine. Provo City v. Warden, 844 P.2d 360, 363 (Utah Ct. App. 1992) (seizure of a motorist for community caretaking reasons requires “the balancing between the legitimate governmental interest in aiding a motorist and an individual’s right to be free from arbitrary interferences from law enforcement officers”). In applying this balancing test in the context of a community caretaking stop, courts must first evaluate the degree to which an officer intrudes upon a citizen’s freedom of movement and privacy. In doing so, courts should look to both “the degree of overt authority and force displayed” in effecting the seizure, id. at 364 (citation omitted), and the length of the seizure. Second, courts must determine whether “the degree of the public interest and the exigency of the situation” justified the seizure for community caretaking purposes. Id. (citation omitted). In other words, how serious was the perceived emergency and what was the likelihood that the motorist may need aid? If the level of the State’s interest in investigating whether a motorist needs aid justifies the degree to which an officer interferes with the motorist’s freedoms in order to perform this investigation, the seizure is not “unreasonable” under the Fourth Amendment. ¶27 Under the first step of this inquiry, we determine that the deputies’ seizure of Mr. Anderson vehicle was minimally invasive of his “right to be free from arbitrary interferences from law enforcement officers.” See id. at 363. Mr. Anderson was parked, rather than traveling down the highway, when he was seized, lessening (although not entirely eliminating) the deputies’ interference with his right to go about his business without 9 ANDERSON v. STATE Opinion of the Court unnecessary police intrusions. Additionally, the “degree of overt authority and force displayed” was not unduly excessive. See id. at 364 (citation omitted). The show of authority through the use of the flashing overhead lights was minimal. The deputies did not, for example, approach with weapons drawn or while shouting commands. Finally, the officers detained Mr. Anderson for community caretaking purposes only long enough to approach his vehicle and ask whether he needed aid. 1 ¶28 Evaluating the second step of the community caretaking inquiry—the seriousness of the perceived emergency and the likelihood that the motorist needs aid—under the facts of this case, we conclude that a reasonable officer would have cause to be concerned about the welfare of a motorist in Mr. Anderson’s situation. Mr. Anderson was parked on the side of highway with his hazard lights flashing just before 10:00 p.m. Because it was late December, it was dark and very cold. Although the district court did not make a finding of fact regarding the precise temperature, it noted that the State indicated that it was 7 degrees below zero and that defense counsel agreed. 1 We emphasize that for the purpose of applying the community caretaking doctrine to the facts of this case, we evaluate only the period of time from the initial seizure up until when the deputies approached his vehicle and asked whether he required assistance. Once the deputies engaged in conversation with Mr. Anderson, they noticed that his eyes appeared to be bloodshot and that he did not know in which direction he was travelling. At this point, the deputies became suspicious that Mr. Anderson was driving under the influence of an illegal substance, and the nature of the detention changed from a community caretaking stop to an investigatory detention. Upon further investigation, the deputies then believed that they had probable cause to arrest Mr. Anderson and search his vehicle, which led to the marijuana and drug paraphernalia evidence. Each successive stage of the deputies’ investigation must independently meet the reasonableness requirement imposed by the Fourth Amendment. And as the infringements upon Mr. Anderson’s freedoms increased—from a brief community caretaking stop to a longer investigatory detention and, finally, a warrant authorizing his arrest and the search of his vehicle—the degree of governmental interest required to justify the infringement likewise increased. Because Mr. Anderson did not challenge the investigatory detention or the warrant in this appeal, we confine our analysis to the community caretaking stop. 10 Cite as: 2015 UT 90 Opinion of the Court ¶29 A motorist may have many motivations for pulling to the side of a highway and engaging hazard lights, ranging from the mundane to the life-threatening. The motorist could be lost, disciplining rowdy children, sleeping, or answering a cell phone call. But there is also a good chance that the motorist has run out of gas, has mechanical problems, or, worse, is experiencing a medical emergency. The fact that it is very cold and dark would exacerbate the duress of a motorist in need of aid. Given the decent odds that a motorist in this situation may need help, an officer would have reason to be concerned and to at least stop to determine whether assistance is needed. ¶30 Weighing the minimal interference with Mr. Anderson’s freedom of movement occasioned by the deputies’ brief seizure against the State’s interest in determining whether any occupants of the vehicle required aid under these circumstances, we determine that the community caretaking doctrine justified the seizure. In so doing, we balance an officer’s laudable impulse to assist the public against a citizen’s important constitutional right to be free from unreasonable seizures. In this case, we determine that Mr. Anderson’s seizure was a reasonable exercise of the deputies’ community caretaking function and affirm the district court’s ruling that the deputies’ acquisition of the marijuana and drug paraphernalia was not the fruit of a violation of his Fourth Amendment rights. We therefore affirm Mr. Anderson’s conviction. 11",analysis
+478,2005220,1,4,"At the time of Christian's death, Blair's brother Jason Blair (Jason), Elizabeth Frederick (Liz), Joshua Jones (Josh), and Edward Simpson, Jr. (Eddie), were living in the house with Blair and Christian. The three bedrooms upstairs were used by Blair, Jason, and Christian. Testimony was offered that during the 3 days preceding Christian's death, Blair was visiting friends and smoking methamphetamine, and that she did not see Christian between Monday evening, June 7, 2004, and Wednesday morning, June 9.",facts
+479,2371857,1,3,"We disagree with appellants' contention that the trial court abused its discretion by prematurely granting the adoption petition over their objection. On its face, L.H. and D.P.'s plea for a little more time to prepare themselves to effectively parent their children, appears compelling and reasonable, given their considerable efforts to address their respective addictions and other barriers to parenting their children. However, the legal standard by which we are bound to review this case is the best interests of the child. [10] See In re S.C.M., 653 A.2d 398, 405 (D.C.1995). Based on our analysis of the statutory factors and applicable case law, we conclude that the trial court did not abuse its discretion. The first statutory factor we must consider is the children's need for continuity of care and caretakers and for timely integration into a stable and permanent home. D.C.Code § 16-2353(b)(1). The children's birth father, D.P., contends that this factor should weigh in favor of the appellants since, except for D.H., the other children have not been in foster care that long, and in any event, they have been in the stable environment of petitioners' home and have not been shuffled between numerous foster homes. However, D.P.'s characterization of the childrens' placements in the neglect system is misguided. Timely integration into a stable and permanent home is arguably the most important factor when considering the best interests of the child. In viewing the evidence in a light most favorable to the petitioners, we conclude that the evidence supports the trial court's finding that adoption of the H children by the petitioners satisfies their need for continuity of care and stability. D.H. and M.H. have either been in foster care or under court protective supervision continually since 1996. Similarly, E.H. has been in either foster care or under court protective supervision continually since 1997, and T.H. has been in either foster care or under court protective supervision continually since 2002. The trial court found, based on the testimony at the show cause hearing, that the H children have become a part of the petitioners' family and have developed relationships with them. Petitioners and the H children operate as a family and attend church together, go vacationing, and attend family functions. The petitioners have been placement resources for the H children since the first time they were removed from L.H.'s home in 1996, and have been the one stable factor in their lives ever since. See, e.g., In re J.L., 884 A.2d 1072, 1078 (D.C.2005) (holding that the trial judge did not abuse his discretion in concluding that this statutory factor weighed in favor of waiving the mother's consent to adoption because the adoptive couple provided the children with a stable and permanent family home for nearly four years, whereas, despite sincere efforts, the biological mother had not shown that she can stay sober, and this demonstrated an inability to provide for the children's physical, mental, and emotional needs). On the other hand, neither the mother, L.H., nor the father, D.P., has been able to provide their children with the same type of stability and permanence displayed by petitioners. Both L.H. and D.P. have admitted to their protracted history of substance abuse. Moreover, L.H. has a long history of leaving her children with unwilling and unable caretakers and when offered a second chance to care for her children in 1999 and 2000, L.H. relapsed and again left her children with unwilling caretakers. Viewing the record before us in the light most favorable to the government, as we must, the trial court did not abuse its discretion by considering L.H.'s and D.P.'s history of neglect and instability, and determining that they were withholding consent contrary to the best interests of their children. We discern no abuse of discretion in the trial court refusing to place the children back in L.H.'s home and subject them to a degree of uncertainty and the risk that such neglect would occur again. This is a gamble that the court should not make. In re L.L., 653 A.2d 873, 887 (D.C.1995) (courts will not gamble with a child's future) (internal quotations and citations omitted). The second factor we consider is the physical, mental, and emotional health of all parties involved. D.C.Code § 16-2353(b)(2). The trial court found that this factor also weighed in favor of the petitioners and concluded that there were no compelling physical or mental health issues regarding the parties involved. Although L.H. has problems with her knees and D.P. suffers some physical health problems, there is no indication that these conditions have any impact on their ability to parent. Further, the parents do not dispute that the petitioners have been able to meet all of the children's physical, mental, and emotional needs. Because the evidence supports these findings, they should not be disturbed. See, e.g., Hill v. United States, 627 A.2d 975, 979 n. 3 (D.C.1993) (We give considerable deference, as we must, to these factual findings, and we may not disturb them unless they are plainly wrong or without evidence to support them.) ( citing D.C.Code § 17-305 (2001) (citation omitted)). The third factor to be considered is the quality of the interactions between the parties involved. D.C.Code § 16-2353(b)(3). None of the parties dispute the fact that the children love their parents, as well as the petitioners. The record reveals that L.H. and D.P. have a warm and respectful relationship with the petitioners. As between the H children and the petitioners, it is undisputed by all parties that this relationship has been altogether favorable. The evidence is clear that the petitioners' home exudes a sense of warmth, that the children are happy living there, and that they affectionately refer to the petitioners as mom and dad. Additionally, as between the H children and their parents, the record reveals that the quality of the interactions between them has improved. However, D.P. admitted that his relationship with his children was fragmentary until September 2004, and that he did not have much of a relationship with his children before this time. The trial court found that this third factor weighed in favor of the petitioners. Because the record supports each of these findings, we find no abuse of discretion by the trial court in determining that the quality of the interactions between the parties involved is satisfactory. The fourth statutory factor to be considered is the children's opinion of their best interests. D.C.Code § 16-2353(b)(4). Although none of the H children testified at the show cause hearing, the Magistrate Judge looked to the behavior of the children, as described by other witnesses at the show cause hearing, and adduced that while the children enjoyed visiting with their parents, they were well adjusted to the petitioners' home. In evaluating this fourth factor, the trial court properly considered the testimony of other witnesses who had directly observed the children. While it is preferable for judges to hear directly from the children involved in such proceedings if it is at all feasible to do so, In re J.L., supra, 884 A.2d at 1080 (internal citation and quotation marks omitted), [t]he statute does not say the judge must derive this opinion even partly from questioning of the child himself. In re T.W., 623 A.2d 116, 117 (D.C.1993); see also In re I.B., 631 A.2d 1225, 1232 (D.C.1993). The fifth and final factor we consider is whether there was continued drug use in the children's home environment. D.C.Code § 16-2353(b)(5). We have held that the phrase home environment refers to the home where a child would reside if returned to his or her mother. See In re D.R., 673 A.2d 1259, 1264 (D.C.1996). Because the record supports the fact that both L.H. and D.P. are currently drug free, we accept the trial court's finding that this factor should not be allocated any weight. [11] See Hill, supra, 627 A.2d at 979 n. 3. In summary, a weighing of the statutory factors does not support appellants' contention that the adoption decree was granted prematurely or improperly over their objection. L.H. contends that she should have been given more time to show that she would abstain from drugs and be able to function as a good parent. [12] L.H.'s continuous contact with her children and her numerous efforts at drug rehabilitation make the facts of this case somewhat more compelling than previous cases we have decided where birth parents sought additional time to address an addiction or other issue impeding their ability to parent. Cf. In re W.E.T., 793 A.2d 471, 478 (D.C. 2002) (court upheld adoption decree where the child's natural mother had not involved herself in the child's life to any extent and returning the child to the mother's care would involve numerous risks and uncertainties about the mother's ability to stay off drugs and maintain a home); In re Petition of P.S., supra, 797 A.2d 1219 (finding that it would be inappropriate to risk a child's health and very life on the future intentions of parents who continued to struggle with cocaine addiction and had demonstrated little commitment to preparing themselves to meet the special needs of the child); see also In re L.L., supra, 653 A.2d at 881. In the instant case, L.H., in particular, has maintained an ongoing relationship with her youngest child and has taken other steps to prepare herself to be able one day to care for all of her children on her own. However, we have repeatedly rejected the wait and see approach as contrary to the best interests of the child. In In re J.G., supra , we stated: Notwithstanding the presumption in favor of the birth parent, however, we have repeatedly held that the parent's rights may and must be overridden when such a drastic measure is necessary in order to protect the best interests of the child. It is the court's first duty . . . to protect [a child] from any unwarranted danger of harm. Furthermore, there is a strong public policy, enhanced by federal legislation, disfavoring the protracted retention of children in foster care, and a wait and see option indefinitely deferring adoption or termination of parental rights (leaving a child in legal limbo for the foreseeable future) is inappropriate where a birth parent's ability to reunite with the child within a reasonable time is entirely speculative. 831 A.2d at 1001 (internal quotations and citations omitted). We have similarly held in other cases that the trial court did not abuse its discretion in holding that the birth parents had been given sufficient time to attempt reunification with their children. [13] The H. children have been in foster care for almost a decade. The trial court considered L.H.'s most recent success in addressing her drug abuse, but the court also refused to discount her past actions in predicting her future behavior. We conclude that the trial court did not err in looking to L.H.'s past actions to predict her future ability to care for her children. See, e.g., In re L.L., supra, 653 A.2d at 881 (Parental unfitness is a personal characteristic which, ordinarily, does not vanish overnight. . . .) (citation omitted). [14] Similarly, the trial court refused to ignore D.P.'s criminal and drug use history, even while recognizing his efforts to put his life back on the right track. Although we commend both L.H. and D.P on their recent attempts to straighten out their lives, it is the best interests of the H children that is our paramount concern. As such, we cannot adopt the wait and see approach that L.H. and D.P. suggest. In conclusion, we discern no abuse of discretion by the trial court in terminating L.H.'s and D.P.'s parental rights over their objection and allowing the children to be adopted by the petitioners, who have cared for them nearly all of the last ten years. Accordingly, the decision of the trial court is hereby affirmed.",analysis
+480,1292831,1,1,"Respondent, Ronald J. Palagi, was admitted to the practice of law in the State of Nebraska on January 28, 1975, and at all times relevant hereto was engaged in the private practice of law in Omaha, Nebraska. On October 21, 2004, formal charges were filed against respondent. The formal charges set forth three counts that collectively included charges that the respondent violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violating disciplinary rule); Canon 2, DR 2-106(A) (charging excessive fee); Canon 5, DR 5-103(B) (improperly advancing or guaranteeing financial assistance to client); and Canon 9, DR 9-102(B)(4) (failing to return property of client), as well as his oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 1997). On January 20, 2005, respondent filed a conditional admission under Neb. Ct. R. of Discipline 13 (rev. 2002), in which he knowingly admitted the truth of the allegations that he violated DR 1-102(A)(1), DR 2-106(A), DR 5-103(B), and DR 9-102(B)(4), as well as his oath of office as an attorney, and waived all proceedings against him in connection therewith in exchange for a stated form of consent judgment of a public reprimand. Upon due consideration, the court approves the conditional admission and orders that respondent be publicly reprimanded.",introduction
+481,6105292,1,4,"I. Bajakajian holds that when the unlawful conduct is a failure to report, the Eighth Amendment bars the trial court from imposing a penalty that is grossly disproportionate to the failure to report—not to some other unadjudicated conduct 31 U.S.C. § 5316(a)(1)(A) requires a person to “report” when they are transporting more than $10,000 outside of the United States. Specifically, that reporting statute provides: (a) Except as provided in subsection (c) of this section, a person… shall file a report under subsection (b) of this section when the person, agent, or bailee knowingly— (1) transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time— (A) from a place in the United States to or through a place outside the United States . . . . 31 U.S.C. § 5316 (emphasis added). Under 31 U.S.C. § 5322(a), a “willful[]” violation of this “knowing” failure to report statute carries a fine of “not more than $250,000, or imprison[ment] for not more than five years, or both.” A separate 3 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) criminal statute requires the trial court to forfeit the entire amount “involved in such offense.” 18 U.S.C. § 982(a)(1). 1 Hosep Bajakajian attempted to board a plane leaving the United States. A customs inspector approached him and his wife and told them that they were required to report all money in excess of $10,000 in their possession or in their baggage. Bajakajian, 524 U.S.at 324. Bajakajian responded that he was carrying $8,000 and his wife had another $7,000, but that they had no other currency to declare. Id. at 324-25. The customs inspectors, however, found $357,144 in currency that Bajakajian was carrying, much of it in a false-bottomed piece of luggage. Id. at 325, 353 (Kennedy, J., dissenting) 2; United States v. Bajakajian, 84 F.3d 334, 335 (9th Cir. 1996), aff’d, 524 U.S. 321(1998). The government charged Bajakajian with three felonies: “willfully” failing to report that he was transporting more than $10,000 outside the United States in 1 “The court, in imposing sentence on a person convicted of an offense in violation of section . . . 5316, . . . shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.” Former 18 U.S.C. § 982(a)(1) (1990). 2 The facts in that case were not in dispute, but their significance was. See Bajakajian, 524 U.S. at 353 (Kennedy, J., dissenting) (“The majority ratifies the District Court’s see-no-evil approach. The District Court ignored respondent’s lies in assessing a sentence.”). 4 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a), 3 making a material false statement to the United States Customs Service in violation of 18 U.S.C. § 1001, and for criminal forfeiture of the entire $357,144 pursuant to 18 U.S.C. § 982(a)(1). Id. at 325. The federal district court convicted Bajakajian of failing to report, but it concluded that the statute at issue was a reporting statute and that full forfeiture of the nonreported currency would violate the excessive fines clause of the Eighth Amendment. Id. at 326. The Ninth Circuit Court of Appeals affirmed. Id. The United States Supreme Court agreed and held that forfeiture of the amount the government sought—that is, the entire amount that Bajakajian failed to report—would have violated the excessive fines clause because it was “grossly disproportional to the gravity of [the] defendant’s offense.” Id. at 334. The statute in this case is the same type of reporting statute as the statute at issue in Bajakajian. GMA violated the FCPA. 4 Specifically, the trial court ruled— 3 To violate section 5316(a)(1)(A) the person must have “knowledge” that they are transporting over $10,000 in currency out of the United States—but the statute does not require affirmative knowledge of the need to report. However, section 5322(a) creates higher penalties if the person “willfully” fails to report. Bajakajian was alerted to the need to report by the customs inspector and chose not to do so. Therefore, the government charged him with, and he pleaded guilty to, a willful violation. Bajakajian, 524 U.S. at 325. 4 The trial court found, and we affirmed, that GMA committed five violations of the FCPA, based on four separate provisions. State v. Grocery Mfrs. Ass’n, 195 Wn.2d 442, 451, 477, 461 P.3d 334 (2020). The violations were 5 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) and this Court affirmed—that GMA violated the mandatory reporting provision of the FCPA: (1) In addition to the information required under RCW 42.17A.205 and 42.17A.210, on the day the treasurer is designated, each candidate or political committee must file with the commission a report of all contributions received and expenditures made prior to that date, if any. Former RCW 42.17A.235(1) (2018) (emphasis added). The statute in this case also carries the same kind of severe penalties for intentional failures to report that the statutes in Bajakajian carried for willful failures to report. Former RCW 42.17A.765(5) (2010). And the trial court followed the FCPA statute: it determined GMA’s fine by starting with the amount that GMA failed to report—$11 million. 5 RCW 42.17A.750(1)(e); former RCW “a. Failing to timely register with the Public Disclosure Commission as a political committee in violation of RCW 42.17A.205; “b. Failing to timely identify a treasurer and [bank] account in violation of RCW 42.17A.205; “c. Failing to timely and regularly disclose contributions it received from its members in the Defense of Brands Account in violation of RCW 42.17A.235; “d. Failing to timely and regularly disclose expenditures it made from the Defense of Brands Account in violation of RCW 42.17A.240; and “e. Concealing the true sources of the contributions it received and expenditures it made in opposing Initiative 522[]” in violation of RCW 42.17A.435. Id. (footnote omitted). 5 The trial court based this fine specifically on GMA’s failure to report: 6 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) 42.17A.765(5); Majority at 6-7. The trial court then reduced that fine because it found significant mitigating factors—imposing a base penalty of $6 million. Clerk’s Papers (CP) at 4072. Finally, the trial court trebled that base penalty because it found that GMA acted intentionally. Id. The trial court ultimately fined GMA $18 million for its failure to report. Id.; former RCW 42.17A.765(5). The majority now affirms. This result stands in direct conflict with the result in Bajakajian. Bajakajian was criminally charged, and the United States Supreme Court held that forfeiture of the entire amount that he did not report would have been excessive under the Eighth Amendment—because he could be punished only for the crime of conviction, which was a failure to report. GMA violated a civil, regulatory statute and is being fined for the entirety of the amount that it failed to report, plus $7 1. Defendant Grocery Manufacturers Association shall pay the amount of $6,000,000.00 as a civil penalty for multiple violations of the state campaign finance disclosure law, RCW 42.17A[,] specifically for • concealing the amount accumulated in the Defense of Brands Account; • concealing the source of contributions to the Defense of Brands Account; • the 60 disclosure reports that were not timely or properly filed identifying the finance activity of the Defense of Brands Account; and • the number of days required reports were filed late. Clerk’s Papers at 4072. 7 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) million more. Bajakajian holds that when the unlawful conduct is a failure to report, the Eighth Amendment bars imposition of a penalty that is grossly disproportionate to the failure to report—no matter how knowing, willful, or criminal the failure to report is. II. The majority improperly weighs the Bajakajian factors by declining to treat the FCPA violation at issue as a reporting violation The Bajakajian Court noted that the main inquiry in an Eighth Amendment excessive fines clause case is proportionality. The Court ruled that the “amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Bajakajian, 524 U.S. at 334 (emphasis added). Thus, the first question for an Eighth Amendment proportionality inquiry under the excessive fines clause asks, What is the nature “of the offense that [the fine] is designed to punish?” Id. We examine four factors to determine the answer to this question and to the related question of whether the penalty is grossly disproportionate to that “offense”: “‘(1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused.’” 6 The Bajakajian Court did not identify four distinct factors. But courts have 6 extrapolated factors based on the case. City of Seattle v. Long, 198 Wn.2d 136, 167, 493 P.3d 94 (2021). This court adopted the Ninth Circuit’s test to determine whether a fine is grossly disproportional. Id. The four factors above are not exhaustive because Bajakajian does not require the consideration of “any rigid set of factors in deciding 8 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) State v. Grocery Mfrs. Ass’n, 195 Wn.2d 442, 476, 461 P.3d 334 (2020) (quoting United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004)). In this case, the impermissible conduct was GMA’s failure to file a report. 7 This is the conduct that GMA should be fined for, not the amount of money that GMA otherwise lawfully received and spent on campaign speech.
+To determine the nature and extent of the crime, we start as the United States Supreme Court did: with the elements of the statute that the entity violated. Bajakajian, 524 U.S. at 337. Bajakajian was convicted of “willfully” and “knowingly” failing to file a currency transportation report in violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a). Those are felony, criminal statutes. But those statutes did not make the currency transported illegal—they punished only the failure to report. That was critical to the Bajakajian Court’s decision. Id. (“It was permissible to transport the currency out of the country so whether a punitive fee is” proportional to the offense. United States v. Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003). 7 See supra note 5; former RCW 42.17A.235(1) (“In addition to the information required under RCW 42.17A.205 and 42.17A.210, on the day the treasurer is designated, each candidate or political committee must file with the commission a report of all contributions received and expenditures made prior to that date, if any.”) 9 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) long as he reported it.”). The dissent accurately recited the legislative history and purpose of that currency reporting and forfeiture statutes: it was undisputed that the purpose of those statutes was to prevent money laundering, tax evasion, and drug trafficking, serious criminal problems that garnered national, federal concern. 8 But the reporting statute did not punish those crimes—separate criminal statutes did. So the Bajakajian majority ruled that the failure-to-report crime was the one to which the forfeiture must be compared, not the money laundering, tax evasion, and drug trafficking that the failure-to-report crime was designed to combat. Id. at 338. Here, the majority takes a different approach. It looks to the “declaration of policy” in the FCPA to find that GMA’s offense “was grave and the extent was broad.” Majority at 11-13. But the majority in Bajakajian did not look to the policy 8 The dissent in Bajakajian noted that smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, money laundering, and tax evasion all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government. 524 U.S. at 351 (Kennedy, J., dissenting). Additionally, the dissent noted that because money laundering and drug smuggling are so difficult to prove, and “[o]ne of the few reliable warning signs of some serious crimes is the use of large sums of cash,” Congress made a strategic decision to punish all cash smuggling or nonreporting with heavy fines, so long as the conduct was “willful.” Id. at 353-54. 10 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) provisions of 31 U.S.C. § 5316 to determine whether the fine was excessive. The majority looked to the elements of the crime that Bajakajian was convicted of and the specific conduct giving rise to that crime—failing to file a report. Bajakajian, 524 U.S. at 337 (despite differing facts emphasized by the majority and dissent, the majority held that “Respondent’s crime was solely a reporting offense”). It was the Bajakajian dissent that focused on the uncodified policy choices that convinced Congress to pass the reporting crime and forfeiture statutes. This court, of course, is bound by the Bajakajian majority. I therefore conclude that the nature and extent of the crime in this case was a failure to report, just like in Bajakajian. 9 This tends to show that the fine imposed in this case— which related primarily to the amount of money that GMA failed to report rather than to the failure to report itself—was excessive. 9 As the Supreme Court explained in Bajakajian, 524 U.S. at 334, under the Eighth Amendment, “The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. See Austin v. United States, 509 U.S. [602,] 622623[, 113 S.Ct. 2801, 2812 (noting Court of Appeals’ statement that “‘the government is exacting too high a penalty in relation to the offense committed’”); Alexander v. United States, 509 U.S. 544, 559[, 113 S. Ct. 2766, 2776, 125 L. Ed. 2d 441] (1993) (“It is in the light of the extensive criminal activities which petitioner apparently conducted . . . that the question whether the forfeiture was ‘excessive’ must be considered”)”. (Emphasis added and fourth alteration in original.) 11 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) B. Second factor: whether the violation was related to other illegal activities A federal grand jury indicted Bajakajian on three counts, including making false statements to a customs officer. Bajakajian, 524 U.S. at 325. In exchange for his guilty plea to failure to report, the government dismissed the false statements charge. Bajakajian, 84 F.3d at 335. The forfeiture count was then tried to the court. Id. at 336-37. So Bajakajian’s crimes of conviction (failure to report and criminal forfeiture) could be said to have been related to the false statements charge that the government dismissed. They could even be said to have been related to the problem of drug trafficking and money laundering, which the reporting statutes were designed to attack. But the majority of the Supreme Court did not say that. Instead, the majority said that there were really no other crimes directly related to the crime of conviction because it “was permissible to transport the currency out of the country so long as he reported it.” Bajakajian, 524 U.S. at 337. “Thus, the essence of respondent’s crime is a willful failure to report the removal of currency from the United States.” Id. The clear lesson of that decision is that courts risk Eighth Amendment violations if they compare huge fines to unadjudicated crimes and harms, rather than to the elements of the violation itself. 12 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) Here, GMA violated only the civil FCPA. Similar to Bajakajian, if GMA had filled out the reports, then all of its transactions and campaign activities would have been permissible. Additionally, the trial court found that GMA had no prior violations of the FCPA, that GMA is not a repeat violator, and that GMA cooperated with the Public Disclosure Commission. Majority at 6 (citing CP at 4069). The relationship to other related criminal activities in this case seems far more questionable than the relationship to related criminal activities in Bajakajian—especially since GMA’s campaign receipts, campaign expenditures, and campaign speech, like Bajakajian’s transport of currency, was otherwise totally lawful. This also tends to show that the fine imposed in this case was excessive. C. Third factor: the other penalties that may be imposed for the violation Our next question asks, What other penalties that might be imposed for the violation? That question is designed as another possible indicator of rough proportionality. Under the FCPA, the other penalties that might have been imposed on GMA are all tethered to the actual conduct of failing to report. Former RCW 42.17A.750(1) (2011) identifies a range of possible civil penalties for violations of 13 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) any provision of the FCPA. One section provides for the civil penalty of “not more than ten thousand dollars for each violation” of any provision of the FCPA. Former RCW 42.17A.750(1)(c). Another section provides the civil penalty of “ten dollars per day for each day” that a person fails to file a “properly completed statement or report.” Former RCW 42.17A.750(1)(d). And the court has the option to enjoin or compel performance of “any act required herein.” Former RCW 42.17A.750(1)(f). To be sure, subsection (e) provides that “[a] person who fails to report a contribution or expenditure as required by this chapter may be subject to a civil penalty equivalent to the amount not reported as required.” Former RCW 42.17A.750(1) (emphasis added). But when analyzing this factor, even the majority must acknowledge that the other penalties that the FCPA authorizes for the violation are all more modest, measured by more specific statutory amounts, and completely dependent on the conduct of failing to report. Lower federal courts applying the Bajakajian decision have noted the proportionality benefits that such definite statutory calculations produce. For example, the D.C. Circuit court held that Bajakajian “was primarily concerned that the potential penalty for illegal export of currency would be indefinite and unlimited—and disproportionate to the offense—if the government could seize whatever amount of currency the unwitting ‘exporter’ happened to be carrying 14 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) when caught.” Grid Radio v. Fed. Commc’ns Comm., 349 U.S. App. D.C. 365, 278 F.3d 1314, 1322 (2002). That problem is eliminated when a statute fixes fines and “incorporates statutorily required factors for computation of fines.” Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm’n, 983 F. Supp. 2d 1, 18-19 (D.D.C. 2013), aff’d, 417 U.S. App. D.C. 414, 795 F.3d 151 (2015). Here, the legislature provided a more definite fine that calculates the penalty based on the conduct itself, not just the amount that a violator failed to report. For example, if the trial court had instead used the “ten dollars per day for each violation” scheme, GMA would have received a $622,820 base fine that would be trebled to about $1.87 million. Suppl. Br. of Pet’r GMA at 14 (citing RCW 42.18A.750(1)(c), (d)). This would still have been the largest FCPA fine ever imposed in Washington State history. 10 In other words, the other penalties that might be imposed for the nonreporting violations in this case are far less than $18 million. In fact, they are far less than $6 million. Once again, this tends to show that the fine imposed in this case was excessive. 10 Enforcement of Campaign Finance Laws, https://www.atg.wa.gov/enforcementcampaign-finance-laws (last visited Jan. 13, 2022). 15 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) D. Factor four: the extent of the harm caused The majority asserts that the “harm was substantial and struck at the heart of the principles embodied in the FCPA.” Majority at 16 (citing RCW 42.17A.001). And the majority is certainly correct that undermining democracy, campaign fairness, and the integrity of the vote are “substantial” problems. But that is not what GMA was adjudicated to have done. The government alleged, and the trial court ruled, that GMA failed to report campaign contributions. Failure to report campaign contributions can certainly cause harm. But failure to report currency transport can also cause harm: the currency reporting statutes were enacted for the purpose of deterring and catching drug dealers and profiteers. But Bajakajian was not charged or convicted of money laundering or drug trafficking, and so Bajakajian could not be fined for those offenses. Bajakajian, 524 U.S. at 339, 353-55 (Kennedy, J., dissenting). Similarly, GMA was not found to have violated a law that punishes the undermining of democracy, so it cannot be fined for this alleged conduct. A reporting offense is a reporting offense. That means that the extent of the harm caused by the failure to report in this case is comparable to the extent of the harm caused by the failure to report in Bajakajian: depriving the government, and in this case the people, of information. If that harm did not meet the $357,144 16 State v. Grocery Mfrs. Ass’n, No. 99407-2 (Gordon McCloud, J., dissenting) threshold sought by the government in Bajakajian, it certainly does not meet the $18 million threshold imposed by the trial court here.",analysis
+482,6344719,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+483,4375163,1,1,"On July 6, 2017, the Douglas County coroner certified to the Douglas County District Court that Bearheels “died while being apprehended by or while in the custody of a law - 130 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 enforcement officer or detention personnel.”1 The district court called a grand jury and appointed a special prosecutor from the Nebraska Attorney General’s office. The grand jury convened and returned “A True Bill,” which indicated that at least 12 of the 16 grand jurors found probable cause to believe that a crime had been committed by the two police officers.2 On its own motion and without a hearing, pursuant to Neb. Rev. Stat. § 29-1407.01(2)(b) (Reissue 2016), the district court ordered that a transcript of the grand jury proceedings be prepared and made available for public review in the office of the clerk of district court. The following day, the special prosecutor filed a motion requesting that the grand jury documents not be publicly disclosed. The special prosecutor’s motion maintained that public disclosure is appropriate only when the grand jury does not return an indictment, known as a “no true bill,”3 and that disclosure of the transcript containing the testimony of 20 witnesses and 847 exhibits presented to the grand jury would undermine the pending criminal prosecutions of the two individuals who were indicted. The court held a hearing on the matter. The special prosecutor appeared, as well as counsel for each police officer and counsel for the Omaha World-Herald and KETV Channel 7 (the media). The court heard arguments, received evidence, took the matter under advisement, and issued a written order in which it maintained its previous ruling based upon its interpretation of the plain and ordinary meaning of § 29-1407.01(2)(b), which provides: In the case of a grand jury impaneled pursuant to subsection (4) of section 29-1401, a transcript, including any exhibits of the grand jury proceedings, shall be prepared at court expense and shall be filed with the court where 1 See Neb. Rev. Stat. § 29-1401(4) (Reissue 2016). 2 See Neb. Rev. Stat. §§ 25-1633, 29-1406(2)(e), and 29-1416(1) (Reissue 2016). 3 See § 29-1406(2)(g)(ii). - 131 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 it shall be available for public review. Such transcript shall not include the names of grand jurors or their deliberations. Based upon its understanding of the requirements of § 29-1407.01(2)(b), the court instructed the clerk to “upon a request, make a location available for the requesting individual to review said transcript and exhibits and complete said review within a reasonable time.” The court’s order did not allow for dissemination or photocopying of the transcript. The special prosecutor argues on appeal that there is a lack of clarity regarding the mandate of public disclosure under § 29-1407.01(2)(b). The special prosecutor points to the Legislature’s adoption of 2016 Neb. Laws, L.B. 1000, which amended § 29-1407.01(2)(b) to make grand jury transcripts available for public review for all in-custody deaths, and amended § 29-1406(2)(g), which makes a grand jury report and transcript for in-custody deaths publicly available when a grand jury returns no true bill. The special prosecutor argues that the Legislature intended to create transparency in a grand jury proceeding in which a police officer is exonerated, but did not anticipate that the grand jury transcript and exhibits would be made public when a true bill is returned and the indictment process is ongoing. The special prosecutor stated that the exhibits before the grand jury included investigative reports, autopsy and toxicology reports, photographs, and digital media. The special prosecutor acknowledged that it filed this appeal to protect the record and to provoke legislative change. We moved the case to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this State.4 ASSIGNMENTS OF ERROR The special prosecutor assigns, restated, that the district court erred in interpreting § 29-1407.01(2)(b), and related 4 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018). - 132 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports IN RE GRAND JURY OF DOUGLAS CTY. Cite as 302 Neb. 128 s­tatutes, to require that the grand jury transcript and exhibits be made publicly available. In particular, the special prosecutor argues that grand jury records should not be made public when the grand jury is impaneled pursuant to § 29-1401(4) and the grand jury returns a true bill.",facts
+484,2460248,1,1,"¶ 1 This case involves a water rights dispute between Salt Lake City Corporation (the City) and Big Ditch Irrigation Company (Big Ditch). The dispute has its roots in a 1905 water exchange agreement (the Agreement or the 1905 Agreement) between the City and Big Ditch. In the Agreement, Big Ditch conveyed its Big Cottonwood Creek water right to the City in exchange for the City's commitment to supply Big Ditch with a specified quantity of irrigation-quality water from City sources. ¶ 2 Concerned that Big Ditch was infringing upon the City's water rights, the City initiated this case against Big Ditch and four Big Ditch shareholders [1] (the Shareholders) in the Utah district court. The City sought a declaratory judgment on the following issues: (1) that the City was not in breach of the Agreement, (2) that the City holds title to the water rights conveyed in the Agreement, (3) that Big Ditch has only a contractual right to receive from the City sufficient water to satisfy the irrigation needs of its shareholders, and (4) that neither Big Ditch nor the Shareholders have a right to file change applications with the State Engineer involving the water rights. Big Ditch and the Shareholders responded with counterclaims alleging, among other things, breach of the 1905 Agreement and violation of the Utah Antitrust Act. ¶ 3 The district court granted summary judgment in favor of the City on most major issues. Big Ditch and the Shareholders appealed. We hold that the district court properly dismissed the antitrust counterclaims and correctly concluded that the City holds title to the water rights conveyed in the Agreement. But we hold that the district court erred in determining that Big Ditch did not have a right to file change applications. And it further erred in determining that the parties had modified the 1905 Agreement or, alternatively, that Big Ditch was estopped from enforcing its right to the amount of water specified in the Agreement. Finally, we hold that the district court erred when it refused to dismiss the City's claims against the Shareholders.",introduction
+485,1210782,1,1,"Prior to transfer of this case from the Court of Appeals, the Court of Appeals questioned appellate jurisdiction based on the Board's second order affirming the agency's dismissal of Humphreys, which was filed subsequent to the filing of the notice of appeal in this case. In light of the subsequent order, the Court of Appeals requested the parties to brief the issue of jurisdiction. KDOT responded that the appellate courts lack jurisdiction to review the district court's remand order because Humphreys did not appeal the Board's subsequent and final order affirming her dismissal. Humphreys asserted that the appellate courts' interest in judicial economy warrants review of the issue at this time. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (Kansas Judicial Review Act), K.S.A. 77-601 et seq., provides the exclusive means of obtaining judicial review of an agency action. See K.S.A. 77-606. Only those persons who have exhausted their administrative remedies may seek review under the Act. W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm'n, 241 Kan. 744, 751, 740 P.2d 585 (1987). Those who appeal an agency action to the district court pursuant to the Act may appeal the district court decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623. Here, Humphreys exhausted her administrative remedies. KDOT appealed from the Board's final order. The district court remanded the case to the Board. The district court's decision was final. Humphreys appealed the district court's order to the Court of Appeals. This she is permitted to do by K.S.A. 77-623. Although the Board's second order was signed on May 1, 1997, according to the order, it was considered on April 1, 1997. In light of Humphreys' appeal, the Board did not have jurisdiction to redetermine Humphreys' case. Therefore, the Board's second order affirming Humphreys' dismissal was without effect and does not impair this court's jurisdiction to hear Humphreys' appeal.",jurisdiction
+486,1355375,1,2,"This case comes to us in an unusual procedural posture. Generally, an investigation of the Commission that finds merit in a complaint of judicial misconduct follows one of two paths: (1) informal proceedings, in which the judge may be afforded a personal appearance before the Commission, or (2) formal proceedings before a special master. See In re Thoma, 873 S.W.2d 477, 483-84 (Tex.Rev.Trib.1994) (setting out comprehensively the procedures for handling judicial-misconduct complaints). Judges dissatisfied with the Commission's decision after informal proceedings may appeal to a special court of review composed of three courts-of-appeals justices appointed by the Chief Justice of the Texas Supreme Court. See id. at 483. The special court of review functions as a trial court, providing a trial de novo from which there is no further appeal. See Tex. Gov't Code Ann. § 33.034(e), (i) (Vernon Supp.2003). Judges dissatisfied with the Commission's decision after formal proceedings may appeal to a review tribunal composed of seven courts-of-appeals justices appointed by the Chief Justice of the Texas Supreme Court. See In re Thoma, 873 S.W.2d at 484. The review tribunal functions as an appellate court that reviews the proceedings before the special master; further review may be sought from the Texas Supreme Court. See id. The procedure here is a hybrid. The Commission prosecuted respondent in formal proceedings, but respondent has sought and obtained a trial de novo before a special court of review. This raises a jurisdictional question we must first address before proceeding: Does the Texas judicial discipline system provide for a special court of review after formal proceedings? Even though no party has questioned our jurisdiction, an appellate court is obligated to determine the threshold question of jurisdiction. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex.App. — Houston [1st Dist.] 2002, pet. denied). Viewing the charts that accompanied the publication of the Rules for Removal or Retirement of Judges, particularly Exhibit C, it appears that no appeal was contemplated from the Commission's order of public censure entered after formal proceedings. See RULES FOR THE REMOVAL OR RETIREMENT OF JUDGES, 56 Tex.B.J. 823, 829-31 (1993), Exhibits A-C (reproduced at the end of this opinion). Nevertheless, section 33.034(a) of the Texas Government Code provides that [a] judge who receives from the commission any type of sanction is entitled to a review of the commission's decision as provided by this section. Tex. Gov't Code Ann. § 33.034(a) (Vernon Supp.2003) (emphasis added). However, sanction is defined for purposes of Chapter 33 of the Texas Government Code (entitled State Commission on Judicial Conduct) as including only a private or public admonition, a warning, a reprimand, or a requirement that a person obtain additional training or education. See Tex. Gov't Code Ann. § 33.001(a)(10) (Vernon Supp.2003). Thus, sanction has a technical, legal meaning in the area of judicial misconduct that does not include censure. Indeed, censure is defined separately as an order of denunciation issued by the Commission under Article V, Section 1-a(8) of the Texas Constitution or an order issued by a review tribunal under Article V, Section 1-a(9) of the Texas Constitution. Tex. Gov't Code Ann. § 33.001(a)(1) (Vernon Supp.2003). Article V, Sections 1-a(8) and 1-a(9) of the Texas Constitution refer to censure only within the context of formal proceedings, while sanctions are contemplated under Section 1-a(8) in the context of informal proceedings. Tex. Const. art. V, §§ 1-a(8), 1-a(9). Therefore, we conclude that an appeal to a special court of review is provided only after informal proceedings and not after formal proceedings resulting in a public censure. The published cases demonstrate that the practice has been consistent with the view that only special courts of review follow informal proceedings and only review tribunals follow formal proceedings. See In re Davis, 82 S.W.3d 140 (Tex.Spec.Ct.Rev.2002) (special court of review following informal proceedings); In re Jones, 55 S.W.3d 243 (Tex.Spec.Ct.Rev.2000) (same); In re Bell, 894 S.W.2d 119 (Tex.Spec.Ct.Rev.1995) (same); In re Jimenez, 841 S.W.2d 572 (Tex.Spec.Ct.Rev.1992) (same); In re Sheppard, 815 S.W.2d 917 (Tex.Spec.Ct.Rev.1991) (same); cf. In re Barr, 13 S.W.3d 525 (Tex.Rev.Trib.1998) (review tribunal following formal proceedings); In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib.1998) (same); In re Thoma, 873 S.W.2d 477 (Tex.Rev.Trib.1994) (same). We acknowledge that it may seem counterintuitive that a judge would have a right to appeal, by special court of review, for lesser sanctions, but have no right to appeal for the more serious censure. [3] Nevertheless, the right to appeal is not of constitutional magnitude, but is derived entirely from statute. See Rushing v. State, 85 S.W.3d 283, 285 (Tex.Crim.App.2002). That which the Legislature may withhold altogether, it may withhold in part. Id. at 285-86. Thus, our lawmakers may deny the right to appeal entirely, the right to appeal only some things, or the right to appeal all things only under some circumstances. Id. Here, the Legislature has provided an appeal by special court of review only for the Commission's sanctions assessed as a result of informal proceedings. The Rules for the Removal or Retirement of Judges have provided an appeal by a review tribunal after formal proceedings only for recommendations of removal or retirement. See TEX. R. REM'L/RET. JUDG. 12(a) (West 2003). These Rules have not provided for any appeal when the Commission recommends a public censure after formal proceedings. We do note, however, that a judge assessed a censure will have been given a public hearing before either the Commission or a special master. See RULES FOR THE REMOVAL OR RETIREMENT OF JUDGES, 56 Tex.B.J. at 831 (Exhibit C). Accordingly, we hold that we do not have jurisdiction to review by trial de novo the Commission's Order of Public Censure after formal proceedings. Because we do not have jurisdiction, we can only dismiss this appeal. See Walker Sand, 95 S.W.3d at 514.",jurisdiction
+487,2639255,1,1,"The following facts were found by the Commission. Leanne Cheung, an electrical engineer, became employed by Wasatch Electric in July of 1995. She worked as project manager at the Minidoka Dam rehabilitation project near Rupert, Idaho, and resided in Rupert. In April of 1997, the Minidoka project was winding down, and Cheung was assigned new responsibilities at the AMI project in Pocatello, some seventy miles from Rupert. Cheung thereafter worked at both projects as needed during the transition period and traveled between the two project sites in her personal vehicle. As of May 9, 1997, when she first went to work at the AMI site, she was paid in addition to her salary $100 a week for travel time and expenses and was given a company credit card to use to pay for her gas and oil to drive to and from the two job sites. On May 12, 1997, Cheung picked up some fire-alarm equipment at the AMI site and transported it to Minidoka at about 6:00 p.m. While at the Minidoka site, she loaded a wooden stool that the AMI project engineer had requested into her car to transport to Pocatello and then went to her home for the evening. On the next morning, May 13, she drove on Interstate 86 from her home in Rupert toward Pocatello. Along the way, at about 7:30 a.m. Cheung stopped her vehicle on the shoulder, evidently to put on her sunglasses, and her automobile was struck from behind by another vehicle. Cheung's car was demolished and she suffered severe injuries including concussion, fractured vertebrae and a lacerated liver, which precluded her from returning to work until July 28, 1997, part time. She returned to full time work on October 1, 1997. Cheung filed a complaint for worker's compensation benefits on November 7, 1997. After a hearing, the Industrial Commission issued its findings, conclusion and order holding that Cheung was a traveling employee within the exception to the coming and going rule and therefore she was entitled to worker's compensation benefits. The employer and the surety sought reconsideration of the decision. In its decision on reconsideration, the Commission explained that notwithstanding the fact that Cheung was going directly from her home to work in Pocatello on the morning of the accident, she was a traveling employee even though her travel between the two project sites was interrupted by a night's stay at home. The parties entered a stipulation of facts and an agreement to bifurcate the issues. On May 5, 2000, the Commission entered findings, conclusions and an order awarding Cheung twenty-eight percent whole man permanent partial disability. From this final decision, the employer and the surety filed this appeal, seeking reversal of the finding that Cheung was a traveling employee and the conclusion that Cheung's injuries had arisen from and were in the course of her employment.",facts
+488,2739309,1,1,"The relevant facts are procedural. In July 1980, petitioner was convicted of two counts of first-degree rape, and one count each of first-degree kidnapping and firstdegree sodomy; he was sentenced to 20 years’ imprisonment on each count, consecutive to each other and to previous sentences for attempted murder and first-degree robbery. On the same day, petitioner was convicted of third-degree robbery and sentenced to three years’ imprisonment, consecutive to the other sentences. In 1990, petitioner was convicted of supplying contraband while he was incarcerated, and he was sentenced to 15 months in prison for that offense, consecutive to his previous sentences. In September 2008, the board conducted an exit- interview hearing to determine whether petitioner was suitable for parole on his projected release date—March 2009—or whether his circumstances warranted a two-year postponement of that date. Before the hearing, the board obtained a psychological evaluation from Dr. Frank Colistro. In that evaluation, Dr. Colistro diagnosed petitioner as having a “severe” “Antisocial Personality Disorder” with a “very high degree of psychopathy.” In Colistro’s opinion, petitioner’s personality disorder continued “to predispose [petitioner] to the commission of crimes to a degree rendering him an ongoing threat to the health and safety [of] the community.” No other psychological evaluation was submitted to the board. After the exit-interview hearing, the board issued a Board Action Form (BAF) that postponed petitioner’s release 190 Jenkins v. Board of Parole date for 24 months pursuant to ORS 144.125(3) (1977),4 which authorized the board to postpone parole release dates for inmates who suffer from a present severe emotional disturbance (PSED). The BAF explained that, “[b]ased on the doctor’s report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to the health or safety of the community.” Petitioner sought administrative review of that decision; in response to that request, the board issued a more detailed administrative review response (ARR) that provided, in part: “On September 24, 2008, the board conducted an exit interview with you. After considering all of the evidence presented at this hearing, including a psychological evaluation prepared by [Dr. Calistro], and applying the substantive standard in effect at the time you committed your crime as well as the applicable procedural rules, the board found that you were suffering from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community. “     “To the extent that you are alleging that the board lacks authority to defer your parole release date past the termination of your original prison term set, the board is unpersuaded by your arguments. The board acted under ORS 144.125(3) (1977) and OAR 254-50-015(3) (7/19/1978), postponing your projected release date on the basis of your severe emotional disturbance and dangerousness.” Ultimately, the board denied reconsideration in the ARR, and it advised petitioner at the conclusion of the ARR: “YOU HAVE EXHAUSTED YOUR ADMINISTRATIVE REMEDIES. PURSUANT TO ORS 144.335, YOU MAY PETITION THE COURT OF APPEALS FOR JUDICIAL 4 ORS 144.125(3) (1977)—which was the version of the statute in effect when petitioner committed his crimes—provided: “If a psychiatric or psychological diagnosis of present severe emotional disturbance has been made with respect to the prisoner, the board may order the postponement of the scheduled parole release until a specified future date.” Cite as 356 Or 186 (2014) 191 REVIEW OF THIS ORDER, WITHIN 60 DAYS OF THE MAILING DATE OF THIS ORDER.” Petitioner sought judicial review in the Court of Appeals, asserting that the board’s order did not provide substantial reason because the board failed to “explain its findings or the reasoning supporting its conclusion” in the order. The board responded that the order was legally sufficient for two reasons. First, the board argued that ORS 144.335(3) exempted the board’s order from the substantialreason requirement. Second, and alternatively, the board argued that the final order, including the board’s administrative review response, contained substantial reason and was otherwise sufficient, because it “provided petitioner with a legal basis for deferring his parole release, as well as a factual foundation for its legal conclusion,” by referring to and relying on Colistro’s evaluation. The Court of Appeals reversed. The court held that, notwithstanding the 1999 amendment to ORS 144.335(3), the substantial reason requirement continued to apply to the board’s parole release postponement orders. Jenkins v. Board of Parole, 258 Or App 430, 443, 309 P3d 1115 (2013). The court further held that the board’s order in this case lacked substantial reason, because it “offer[ed] a mere conclusion” and did not permit a reviewing court “ ‘to determine if the board’s findings, reasoning, and conclusions demonstrate that it acted in a rational, fair, and principled manner in deciding to defer petitioner’s parole release.’ Id. at 444 ” (quoting Gordon v. Board of Parole, 343 Or 618, 634, 175 P3d 461 (2007)). The dissent would have affirmed. Jenkins, 258 Or App at 444-52 (Armstrong, P. ., dissenting). After J examining the statutory text, context, and legislature history of the 1999 amendment, the dissent concluded that “the legislature intended to relieve the board of the substantialreason requirement otherwise implicit in the judicial-review provisions of ORS 183.482(8).” Id. at 452.",facts
+489,2556429,1,2,"A property settlement agreement that is not merged into a divorce judgment retains the characteristics of a contract. Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I.1991). The existence of ambiguity in a contract is a question of law. Paul v. Paul, 986 A.2d 989, 993 (R.I.2010). We review questions of law de novo. Lajayi v. Fafiyebi, 860 A.2d 680, 686 (R.I.2004). A reviewing court has no need to construe contractual provisions unless those terms are ambiguous. A.F. Lusi Construction, Inc. v. Peerless Insurance Co., 847 A.2d 254, 258 (R.I.2004). When contract language is clear and unambiguous, words contained therein will be given their usual and ordinary meaning and the parties will be bound by such meaning. Singer v. Singer, 692 A.2d 691, 692 (R.I.1997) (mem.). [T]his Court will deem agreements to be ambiguous when they are reasonably and clearly susceptible to more than one rational interpretation. A.F. Lusi Construction, Inc., 847 A.2d at 258. In making this determination, the court should view the agreements in their entirety and give the contractual language its `plain, ordinary and usual meaning.' Id. (quoting W.P. Associates v. Forcier, Inc., 637 A.2d 353, 356 (R.I.1994)).",standard of review
+490,894780,1,2,"The Civil Practice and Remedies Code provides that [a] party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions of [chapter 15 of the Civil Practice and Remedies Code]. TEX. CIV. PRAC. & REM.CODE § 15.0642. [This] language . . . seems to contemplate a review of the merits of the trial court's decision on mandatory venue. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex.1999). Aggregate has challenged our jurisdiction to hear this case, arguing that the trial court's order denying Applied Chemical's motion to transfer venue (which did not specify a reason for the decision) may not have been based on the merits of the venue statute but rather on the due-order-of-pleading rule. See TEX.R. CIV. P. 86(1) (stating that venue objections are waived if not filed prior to or concurrently with any other pleading). In addition to challenging the applicability of section 15.011, Aggregate argued before the trial court that the amended venue motions (which corrected the errors in the original motion) violated the due-order-of-pleading rule because the amended motions were filed after Applied Chemical's answer. Because the trial court did not specify in its written order whether it was denying the venue motion on its merits or based on the due-order-of-pleading rule, Aggregate contends we cannot be certain that mandamus jurisdiction is proper in this case. We disagree. While it is true that the trial court's order did not specify the grounds upon which it denied Applied Chemical's venue motion, the record of the hearing shows that the court explicitly overruled Aggregate's due-order-of-pleading argument, stating that it's this [c]ourt's holding that the motion to transfer venue can be amended. The [c]ourt will consider same. Accord In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.App.-Texarkana 2002, no pet.) (holding that an original timely motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion, and that the properly-filed amended motion relates back to and supersedes the original motion to transfer venue). In addition, the court conducted a lengthy discussion with counsel on the merits of the venue statute and subsequently explained his ruling from the bench. The record is clear that the trial court's order denying Applied Chemical's motion to transfer venue was a decision on the merits and, accordingly, we have mandamus jurisdiction under the authority of Civil Practice and Remedies Code section 15.0642.",jurisdiction
+491,8065939,1,4,"In this appeal, Keadle does not argue that the evidence adduced at trial was insufficient to convict him of second degree murder. 3 Instead, his only assignment of error is that the evidence adduced was insufficient to establish the corpus delicti of homicide beyond a reasonable doubt. We limit our analysis accordingly, and we begin with a review of the corpus delicti requirement in Nebraska. 1. Corpus Delicti [2] The “corpus delicti” is the body or substance of the crime—the fact that a crime has been committed, without regard to the identity of the person committing it. 4 For more than a century, Nebraska cases have recognized a corpus delicti requirement for criminal convictions. 5 While we have considered the corpus delicti requirement in cases involving murder, 6 1 State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021). 2 State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020). 3 See Neb. Rev. Stat. § 28-304(1) (Reissue 2016) (“[a] person commits murder in the second degree if he [or she] causes the death of a person intentionally, but without premeditation”). 4 State v. Edwards, 278 Neb. 55, 65, 767 N.W.2d 784, 795 (2009). 5 See, e.g., Dodge v. The People, 4 Neb. 220, 230-31 (1876) (“[a] confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed, and the confession should only be allowed for the purpose of connecting the defendant with the offense”). 6 See, e.g., State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018); Edwards, supra note 4; Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1 (1950); Egbert v. State, 113 Neb. 790, 205 N.W. 252 (1925); Cryderman v. State, 101 Neb. 85, 161 N.W. 1045 (1917). - 931 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 we have also considered it in cases involving receiving a stolen automobile, 7 larceny, 8 forgery, 9 arson, 10 embezzlement of public money, 11 possession of cocaine, 12 destruction of property, 13 and leaving the scene of an accident, 14 to name a few. [3-5] We have described the corpus delicti requirement as being composed of two elements: the fact or result forming the basis of a charge and the existence of a criminal agency as the cause thereof. 15 Nebraska requires that the corpus delicti of a crime must be established by evidence beyond a reasonable doubt, but it may be proved by either direct or circumstantial evidence. 16 Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists. 17 [6] When describing the type of evidence that will satisfy the corpus delicti requirement, our rule has changed over time. 18 7 Limmerick v. State, 120 Neb. 558, 234 N.W. 98 (1931). 8 Smith v. State, 17 Neb. 358, 22 N.W. 780 (1885). 9 Blacker v. State, 74 Neb. 671, 105 N.W. 302 (1905). 10 Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944). 11 Haines v. State, 170 Neb. 304, 102 N.W.2d 609 (1960). 12 State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993). 13 State v. Babajamia, 223 Neb. 804, 394 N.W.2d 289 (1986). 14 State v. Nichols, 175 Neb. 761, 123 N.W.2d 860 (1963). 15 Edwards, supra note 4. 16 Id. See, also, State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019); Golyar, supra note 6; Gallegos, supra note 6. 17 Stubbendieck, supra note 16. 18 Compare rule as explained in Dodge, supra note 5 (providing that corpus delicti must be proved by evidence other than defendant’s confession), with Limmerick, supra note 7 (providing that confessions may be considered with other evidence to establish corpus delicti), and Egbert, supra note 6, 113 Neb. at 795, 205 N.W. at 254 (providing that corpus delicti may be proved by extrajudicial confession along with “slight corroborating circumstances”). - 932 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 But our modern cases recite that although a conviction cannot be sustained solely upon a defendant’s extrajudicial admission or voluntary confession, “either or both are competent evidence of [corpus delicti] and may, with corroborative evidence of facts and circumstances, establish the corpus delicti and guilty participation of the defendant.” 19 [7-9] In homicide cases, the corpus delicti requirement is not established until it is proved that a human being is dead and that the death occurred as a result of the criminal agency of another. 20 But “the body of a missing person is not required to prove the corpus delicti for homicide.” 21 We have explained that “[t]o require that the victim’s body be discovered would be unreasonable; it would mean that a murderer could escape punishment by successfully disposing of the body, no matter how complete and convincing the other evidence of guilt.” 22 Moreover, the failure to recover a body may, itself, be circumstantial evidence of corpus delicti: “The fact that [the victim’s] body was never recovered would justify an inference by the jury that death was caused by a criminal agency. It is highly unlikely that a person who dies from natural causes will successfully dispose of his [or her] own body. Although such a result may be a theoretical possibility, it is contrary to the normal course of human affairs. “The fact that a murderer may successfully dispose of the body of the victim does not entitle him [or her] to an 19 Stubbendieck, supra note 16, 302 Neb. at 719, 924 N.W.2d at 724. See, also, Egbert, supra note 6. 20 Edwards, supra note 4. See, also, Golyar, supra note 6; Gallegos, supra note 6. 21 Edwards, supra note 4, 278 Neb. at 66, 767 N.W.2d at 796. 22 Id. - 933 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 acquittal. That is one form of success for which society has no reward.” 23 We have, in two prior cases, found that circumstantial evidence associated with a missing person’s disappearance was sufficient to establish a death by criminal agency, and thus sufficient to establish the corpus delicti of homicide. 24 Both cases are instructive. In State v. Edwards, 25 the victim disappeared suddenly after telling a friend that she was on her way to see the defend­ant. The defendant was charged with murder in connection with the victim’s disappearance, and the jury ultimately convicted him of second degree murder. On appeal, the defendant argued there was insufficient evidence to establish the corpus delicti of homicide, because the victim’s body had not been found, he had not confessed to the victim’s murder, and there was no direct evidence that any death was caused by criminal agency. [10,11] We found there was sufficient circumstantial evidence to prove corpus delicti, explaining: The law is clear that in the absence of a body, confession, or other direct evidence of death, circumstantial evidence may be sufficient to support a conviction for murder. There is no reason to treat the crime of murder differently from other crimes when considering the use of circumstantial evidence to establish their commission, 23 Id. at 66-67, 767 N.W.2d at 796, quoting People v. Manson, 71 Cal. App. 3d 1, 139 Cal. Rptr. 275 (1977). See, also, Limmerick, supra note 7, 120 Neb. at 560, 234 N.W. at 99 (remarking that “[g]uilty men would often escape just punishment if the rule prevailed, as in early times, that a conviction could not be obtained in a homicide case unless the corpus delicti was proved by direct evidence which necessitated the finding of the victim’s body in every case” and that such a rule “made murderers safe if the body of the victim was burned or placed in the bottom of the sea”). 24 See, Golyar, supra note 6; Edwards, supra note 4. 25 Edwards, supra note 4. - 934 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 and “[t]he presence or absence of a particular item of evidence is not controlling. The question is whether from all of the evidence it can reasonably be inferred that death occurred and that it was caused by a criminal agency.” The presence of a confession, admission, or incriminating statement is a distinction without a difference. 26 In discussing the circumstantial evidence establishing the corpus delicti, Edwards noted there was evidence that the victim’s habits and relationships had been abruptly severed without explanation, that she had abandoned all of her personal effects and her pet, and that she had not picked up her paycheck or used her bank account since her disappearance. We described this as persuasive circumstantial evidence of an involuntary disappearance and death by foul play. Additionally, Edwards noted that evidence of “what was almost certainly [the victim’s] blood . . . found in [the defend­ ant’s] bedroom and the trunk of his automobile is highly suggestive of an unlawful killing.” 27 Edwards also found circumstantial evidence of corpus delicti based on evidence that the defendant had taken steps to conceal the victim’s disappearance and to cover up the blood evidence, explaining that the “fact that such evidence also bears on who is guilty does not detract from its efficacy at establishing the corpus delicti.” 28 Edwards thus concluded that despite the absence of a confession or admission from the defendant, the circumstantial evidence was easily sufficient to prove the corpus delicti of homicide. In State v. Golyar, 29 the victim also disappeared suddenly and unexpectedly and her body was never found. Four years later, the defendant, who considered the victim a romantic rival, was charged with first degree murder in connection 26 Id. at 68-69, 767 N.W.2d at 797. 27 Id. at 67, 767 N.W.2d at 797. 28 Id. at 68, 767 N.W.2d at 797. 29 Golyar, supra note 6. - 935 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 with the victim’s disappearance. The defendant was convicted after a bench trial, and she appealed, arguing, among other things, that the evidence was insufficient to prove the victim was dead. Our opinion in Golyar cited Edwards for the settled propositions that the body of a missing person is not required to prove the corpus delicti of homicide and that circumstantial evidence associated with the victim’s disappearance can be sufficient to establish the victim’s death. With respect to corpus delicti, the defendant in Golyar was challenging only the sufficiency of proof that a death had occurred, and we limited our analysis accordingly. We noted there was evidence that the victim abruptly ended her contacts with her teenage son, her parents, her employer, and her boyfriend, and had not been seen for years. There was evidence that the victim’s money had not been accessed since her disappearance, aside from the use of her debit card on one occasion (which was later linked to the defendant). The victim’s own blood was found in her abandoned vehicle. There was evidence that the defendant had been posing as the victim online and in social media in an attempt to conceal the victim’s disappearance. And there were photographs of what appeared to be body parts with tattoos identical to those of the victim discovered on the memory card from a cell phone belonging to the defendant. We concluded that a rational trier of fact, viewing this circumstantial evidence in the light most favorable to the State, could have concluded beyond a reasonable doubt that the victim was no longer alive. In this case, Keadle argues that the State failed to prove the corpus delicti of homicide beyond a reasonable doubt. When making this argument below, Keadle purported to rely primarily upon our well-settled rule that criminal convictions cannot be sustained solely upon extrajudicial admissions or confessions. 30 To that end, Keadle urged that if his 30 See Stubbendieck, supra note 16. - 936 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 extrajudicial admissions had been excluded from consideration, the remaining evidence adduced by the State would have been insufficient to establish that Thomas’ death was the result of criminal conduct. But he did not preserve such an argument for appeal. In neither his appellate briefing, nor during his oral argument, did Keadle argue that the district court erred in considering his extrajudicial admissions when it determined that the evidence was sufficient to establish the corpus delicti of homicide. Instead, he argues more broadly that the evidence adduced at trial was insufficient to prove the corpus delicti of homicide beyond a reasonable doubt. In that respect, the corpus delicti arguments he raises now resemble those raised in Edwards and Golyar. We pause here to observe that in a case where the conviction is not based solely on a confession or extrajudicial admission, it is not clear what purpose the corpus delicti requirement serves that is not already served by requiring the State to prove each material element of the charged crime beyond a reasonable doubt. But ultimately, because no one here has asked us to reconsider the utility of the corpus delicti requirement in such a case, that is a question for another day. With this background in mind, we now turn to Keadle’s argument that the evidence in this case was insufficient to prove the corpus delicti of homicide. 2. Evidence of Corpus Delicti To determine whether the corpus delicti requirement was satisfied in this case, we view the evidence in the light most favorable to the State and consider whether any rational trier of fact could have found that Thomas is dead and that her death resulted from a criminal act. 31 On this record, we find ample circumstantial evidence to prove the corpus delicti of homicide beyond a reasonable doubt. 31 See, Golyar, supra note 6; Edwards, supra note 4. - 937 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 The evidence showed that Thomas was a young, active college student who regularly participated in extracurricular activities, often spoke with family members, and socialized with peers. But since Thomas’ disappearance on December 3, 2010, none of her friends or family members have heard from her. Her habits and relationships were abruptly severed without explanation, and she left behind her driver’s license, birth certificate, Social Security card, keys, debit cards, a gift card, and a sizable check. Her credit history shows no financial activity since her disappearance, aside from a failure to pay student loans. Based upon this evidence, a reasonable fact finder could conclude beyond a reasonable doubt that Thomas is dead. However, we do not understand Keadle’s argument on appeal to dispute there was sufficient evidence that Thomas is dead. Instead, the primary focus of his argument is that the evidence adduced was insufficient to prove that her death was the result of a criminal act. Keadle argues that unlike Edwards, the State offered “no blood evidence, other biological evidence, or any other kind of physical evidence” 32 to suggest Thomas’ death was caused by a criminal act. Keadle is correct that Edwards found bloodstain evidence to be persuasive circumstantial proof that the victim in that case was dead and that her death was the result of the criminal act of another. But Edwards neither mandated nor suggested that blood or other biological evidence must be present for the State to prove corpus delicti in a homicide case where the body is never found. To the contrary, Edwards clarified that “‘[t]he presence or absence of a particular item of evidence is not controlling’” 33 as to whether the corpus delicti requirement has been satisfied. The fact that the circumstantial evidence in this case did not include blood or DNA evidence is simply not dispositive of the corpus delicti requirement. Instead, “‘[t]he 32 Brief for appellant at 72. 33 Edwards, supra note 4, 278 Neb. at 68, 767 N.W.2d at 797, quoting People v. Bolinski, 260 Cal. App. 2d 705, 67 Cal. Rptr. 347 (1968). - 938 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 question is whether from all of the evidence it can reasonably be inferred that death occurred and that it was caused by a criminal agency.’” 34 We find ample circumstantial evidence to support the conclusion that Thomas died as a result of a criminal act. First, the fact that Thomas’ body was never recovered is, in and of itself, circumstantial evidence that her death was caused by a criminal act. As noted in Edwards, “‘[i]t is highly unlikely that a person who dies from natural causes will successfully dispose of his [or her] own body.’” 35 Moreover, the fact that Thomas was a social, active young woman with many close personal relationships makes it unlikely that without another’s involvement, she would simply disappear without a trace. There was also physical evidence supporting criminal activity in this case. As noted, law enforcement observed what appeared to be drag marks leading to the river in the area where Keadle admitted being with Thomas on the night she disappeared. And Keadle’s own admissions provide strong circumstantial evidence that Thomas’ death resulted from criminal acts which he committed. Keadle admitted that he saw Thomas walking to her dorm the night she disappeared and that he thought she looked intoxicated. Keadle admitted that even though he and Thomas did not get along, he picked her up in his vehicle, drove her to the river, and engaged in sexual activity with her. He also admitted that he and Thomas had a physical altercation at the river, that Thomas may have sustained bruising during the altercation, and that during the altercation, Thomas threatened to accuse him of rape. He admitted that he left Thomas at the river after the altercation and that he drove back to his dorm where he showered to “get [Thomas’] DNA off of him,” before heading back to the river a second time. This timeline was corroborated by the bank surveillance video. Keadle also admitted to police that he was concerned 34 Id. 35 Id. at 66, 767 N.W.2d at 796, quoting Manson, supra note 23. - 939 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 about his criminal liability and had researched whether fingerprints can show up on bodies that have been submerged in water. From these admissions, a rational trier of fact could infer that when Keadle left the river that night, he did not leave Thomas alive. Moreover, in the days following Thomas’ disappearance, Keadle tried to procure an alibi from two PSC students and asked another student to hold a gun for him. And after Thomas’ disappearance, Keadle told his cellmate that he “‘[f]ucked [Thomas] and left her at the dock,’” but “‘will never go to prison because they will never find the body.’” Based on this evidence, a rational trier of fact could find beyond a reasonable doubt that Thomas’ death was the result of Keadle’s criminal agency. On this record, we find the evidence adduced at trial was easily sufficient to establish the corpus delicti of homicide beyond a reasonable doubt. Keadle’s sole assignment of error is without merit. For the sake of completeness, we note that Keadle also argues that the circumstantial evidence adduced at trial may support noncriminal explanations for Thomas’ death, including that she “may have purposely or accidentally hurt herself.” 36 Keadle points to evidence that Thomas was experiencing relationship problems and that on the night of her disappearance, she was intoxicated, angry, and “inappropriately dressed for the cold.” 37 He argues that “[s]he was so desperate to get to Omaha, she offered a sexual favor to someone she disliked.” 38 And he suggests that after she was “[l]eft at the river in the cold and the darkness while drunk and angry, anything could have happened to her. She might have fallen in the river. She might have jumped in the river.” 39 36 Brief for appellant at 72. 37 Id. at 73. 38 Id. 39 Id. - 940 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. KEADLE Cite as 311 Neb. 919 [12] Keadle made similar arguments to the jury in this case, and the jury rejected those arguments by returning a verdict finding Keadle guilty of second degree murder. Moreover, to the extent Keadle is suggesting that in order to prove the corpus delicti of homicide using circumstantial evidence, the State had to disprove all theories inconsistent with criminal agency, he is simply incorrect. Nebraska has rejected the accused’s rule, and thus has abandoned “‘any notion that before an accused may be convicted on the basis of circumstantial evidence alone, the State must disprove every hypothesis but that of guilt.’” 40 The accused’s rule has no application when reviewing the sufficiency of circumstantial evidence to support a criminal conviction, and it has no application when reviewing the sufficiency of circumstantial evidence to establish corpus delicti.",analysis
+492,1297343,1,1,"In Appeal No. 93-26, appellant, State Farm Mutual Automobile Insurance Company, states numerous claims of error: 1. Is an insurer entitled to reasonably pursue a debate respecting the amount of damages the insured is legally entitled to recover from an uninsured motorist, when the amount of damages has not been determined, without exposure to a claim of violation of the duty of good faith and fair dealing? 2. Does the insured have the burden of proving that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability? 3. Does a claim for uninsured motorist benefits become ex contractu and thus payable only after the extent of damages recoverable from the uninsured motorist has been determined? 4. Under Wyoming law can an insured bring a direct action against the insurer to adjudicate the amount of damages an insured is legally entitled to collect from the driver of an uninsured vehicle? 5. Can attorney fees and interest be recovered under W.S. § 26-15-124(c) for an insurer's refusal to pay a fairly debatable claim? 6. Did the District Court err by denying Appellant's motion under W.R.C.P. Rule 42(b) for a separate trial of Appellee's claim for injuries arising out of the automobile accident? 7. In an uninsured motorist case is it permissible to litigate in the same jury trial, over the objection of the insurer, issues respecting the negligence of the uninsured motorist; the amount insureds were legally entitled to recover from the uninsured motorist; alleged bad faith refusal to settle uninsured motorist claims; alleged unreasonable refusal to pay an uninsured motorist claim; the elements and amount of damages insureds sustained as a result of bad faith; and, alleged wrongdoing which would justify an award of punitive and exemplary damages? 8. Under the circumstances of this case, was it error to instruct the jury that obligations of good faith and fair dealing encompass qualities of decency and humanity inherent in the responsibilities of a fiduciary; that insurers hold themselves out as fiduciaries, etc.? 9. Was Instruction No. 23 defining good faith and fair dealing inconsistent, misleading and confusing in relation to other instructions given by the court? 10. Did the District Court err in Instruction No. 25 concerning the role of investigation in insurer good faith, because it omitted the principle that lack of investigation without more is not sufficient basis for recovery if the insurer had a reasonable basis to deny or delay payment; and if such basis exists, there is no bad faith? 11. Was it error to give Instruction No. 26 concerning the duty of an insurer to make disclosure of all benefits and coverage provided by an applicable policy for the reason that the disclosure duties set out in the instruction are too broad and contrary to the rule contained in Darlow? 12. Where Appellant had neither refused to pay a claim nor made any subsequent payment, was it error to instruct the jury: Only a showing of an initial bad faith refusal to pay a claim, not a showing of its ultimate nonpayment, is a required element of the breach of the duty of good faith? 13. Did the District Court err in instructing the jury on the elements of loss of enjoyment of life, emotional distress or mental anguish as damages recoverable for bad faith? 14. Did the District Court commit error by refusing to instruct the jury on the full text of W.S. § 26-15-124 concerning the 45-day rule and unreasonable failure to pay a claim? 15. Was it error to give a special verdict form under the circumstances of this case with a question whether State Farm breached its statutory duty by unreasonably and without cause refusing to pay the full amount of the loss covered by the policy? 16. Did the District Court err in awarding prejudgment interest beginning from December 21, 1989? 17. Did the District Court err in awarding attorney fees greater than the amount Appellees agreed to pay pursuant to a contingent fee agreement? Appellees, Donna R. Shrader and Terry Shrader, summarize the issues in Appeal No. 93-26: 1.) Given the public policy of Wyoming Statute § 31-10-101, must the insureds under uninsured motorist coverage reduce their claim to judgment before they can proceed against their insurance company for its breach of contract and bad faith? 2.) Does the commission of the tort of bad faith recognized in McCullough carry the responsibility of damages generally assessed for tortuous conduct in Wyoming? 3.) Are uninsured motorist carriers entitled to special procedural privileges in bad faith cases? 4.) Did the jury instructions as given prejudice the rights of State Farm under the law? 5.) Did the trial court abuse its discretion in assessing costs and attorney's fees against State Farm? In Appeal No. 93-27, appellants, Donna R. Shrader and Terry Shrader, state one issue: When a jury verdict of first party bad faith is supported by substantial evidence and that bad faith was intentional, dishonest, and institutionalized, should the trial court be allowed to disregard that same jury's verdict of willful and wanton misconduct. Appellee, State Farm Mutual Automobile Insurance Company, rephrases: Was the jury's finding that the Shraders were entitled to punitive damages unsupported by substantial evidence, such that the District Court correctly granted Appellee State Farm's motion for directed verdict on the issue of punitive damages? In Appeal No. 93-27, amicus curiae, Farmers Insurance Exchange, finds three issues: 1. Did the district court properly determine that the evidence adduced at trial would not sustain [a] finding of willful and wanton misconduct or an award of punitive damages. 2. Did the Plaintiffs have a valid cause of action for bad faith or should their claims have been limited to an action for contractual benefits, thereby making any claim for punitive damages moot as a matter of law. 3. Did the district court commit error when it instructed the jury that insurers are fiduciaries and does this error compromise the jury's finding of bad faith, thereby rendering the jury's finding of willful and wanton misconduct erroneous as well.",issues
+493,1940600,1,2,"Assman operates a retail establishment in Mission, South Dakota. He sells farm machinery and acts as a dealer for J.I. Case Corporation (Case). Assman and Case Credit, a wholly owned subsidiary of Case, entered into a Retail Financing Agreement on November 1, 1973. Assman sold three new Case tractors to Otto Huber & Sons, Inc., (Hubers) on March 14, 1975. This sale was subject to a Retail Installment Contract (Security Agreement), which Assman later assigned to Case Credit. Subsequently, Farmers State Bank, of Kilgore, Nebraska, commenced foreclosure proceedings against Hubers. Case Credit was named as a party defendant. On July 22, 1977, Case Credit obtained a judgment against Hubers for $109,758.35. This amount represented Hubers' outstanding balance on (1) the three Case tractors sold by Assman; (2) one Case 1370 tractor; (3) one Case 1070 tractor; (4) one 990 David Brown tractor; and (5) one Case bottom plow. Hubers then filed for bankruptcy, which stayed collection of the judgment. As of April 1977, the amount Hubers owed on the three tractors was $78,221.87. [1] Bankruptcy trustee, Robert Warder, and Case Credit agreed that the three tractors would be sold at a Bankruptcy Court auction sale on October 14 and 15, 1977. It was also decided that Case Credit's liens would be applied to the proceeds of the sale and sale expenses would be prorated. At the auction sale, which Assman attended, Case Credit purchased the three tractors for $76,000. [2] To enforce the Huber security agreement, Case Credit expended $5,554.94 in legal fees. Case Credit, relying on the Retail Financing Agreement, debited Assman's dealer reserve account, controlled by Case Credit, [3] to cover legal fees and the deficiency experienced by Case Credit when it purchased the three tractors at the auction sale. Case Credit then sold the three tractors to Case Power and Equipment of Pierre, South Dakota, for $76,000. [4] Case Power proceeded to resell the tractors and realized a total net profit of $4,973.47. Assman initiated action against Case Credit by service of a Complaint, filed February 14, 1980. An Amended Complaint was filed on May 27, 1981. Case Credit submitted a Motion for Judgment on the Pleadings which was denied, post Hearing held on May 27, 1981. A trial to the court was held before the Honorable Marvin S. Talbott, Todd County, South Dakota. Assman was awarded a money judgment of $18,061.38. The circuit court ruled: (1) Case Credit could not hold Assman liable for attorney's fees ($5,554.94). (2) Assman was entitled to the profit experienced by Case Power when it resold the three tractors ($4,973.47), which amount would be reduced by the deficit Case Credit suffered when it purchased the tractors at the auction sale ($2,221.87) to equal $2,751.60. (3) Assman was also entitled to interest on the total ($8,306.54) of (1) ($5,554.94) and (2) ($2,751.60). Pursuant to SDCL §§ 54-3-5 and 54-3-16, interest on $8,306.54 was computed and $9,754.84 in interest was added to the judgment for a total judgment as of July 9, 1986, of $18,061.38. Case Credit appeals.",facts
+494,1345941,1,2,"The Court of Appeals concluded that State Farm did not file a timely notice of appeal because none was filed after the ruling on the motion for attorney fees. Although neither party raised the issue, the Court of Appeals had a duty to consider jurisdiction on its own motion and, if the record disclosed a lack of jurisdiction, to dismiss the appeal. McArthur v. Glass King Mfg., Inc., 11 Kan. App.2d 35, 36, 711 P.2d 774 (1986). The manner in which the jurisdiction of the Court of Appeals is invoked is set out at K.S.A. 1989 Supp. 60-2102, which provides in part: Invoking jurisdiction of court of appeals. (a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from: .... (4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable. (b) Other appeals. When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. (Emphasis added.) In discussing K.S.A. 1989 Supp. 60-2102(a)(4), Judge Spencer A. Gard in his text on civil procedure noted that the term final decision is not defined but is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case. Comments, 2 Gard's Kansas C. Civ. Proc.2d Annot. § 60-2102 (1979). In resolving the issue of jurisdiction, we are called upon to determine whether a K.S.A. 40-256 motion or request for attorney fees alleged in the petition is a part of the merits of the underlying action. In our view such a motion or request is not. Attorney fees are not part of the compensation for a plaintiff's injury. Attorney fees traditionally have been regarded by the legislature as costs awarded to the prevailing party. The appeal filed by State Farm in this action was not a premature notice of appeal contemplated by Rule 2.03 (1989 Kan. Ct. R. Annot. 6). The notice was not filed between announcement of the judgment to be entered by the court and the actual entry of judgment, but was filed after the entry of judgment documenting the jury verdict. The only issue that remained to be decided, and which the Court of Appeals concluded made the appeal interlocutory, was the issue of attorney fees. In Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983), this court concluded that it had jurisdiction to consider an appeal even though the notice of appeal was filed before the trial court decided a motion for reconsideration. The journal entry of final judgment in Roth was filed October 5, 1982. Plaintiffs filed a notice of appeal November 2, 1982. Previously, on October 15, 1982, plaintiffs had filed a motion for reconsideration of the October 5 order, which was denied on November 10, 1982. No additional notice of appeal was filed. We held that defendants showed no prejudice from the allegedly premature filing of the notice of appeal. A unanimous court, speaking through Justice Holmes, stated: Considering the liberal construction to be given our procedural statutes and rules and the intent of our code of civil procedure and our appellate rules, we find no fatal jurisdictional defects and will proceed to determine the appeal on the merits. See K.S.A. 60-102; Supreme Court Rule 2.03 (230 Kan. xlv). 233 Kan. at 939-40. We adopt the rationale of Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L.Ed.2d 178, 108 S.Ct. 1717 (1988). A decision on the merits is final for purposes of appeal even if a request or motion for attorney fees attributable to the case has not yet been determined. The petitioner in Budinich initially filed an action in Colorado state court to recover employment compensation. Respondent removed the case to the United States District Court for the District of Colorado on the basis of diversity of citizenship. A jury awarded petitioner $5,000 in damages, much less than what had been sought. The judgment of the jury award was entered on March 26, 1984. Petitioner filed new trial motions, challenging numerous rulings by the District Court, and a motion for attorney fees. Pursuant to Colorado law, petitioner was entitled to receive a reasonable attorney fee as part of the costs of the action. On May 14, 1984, the District Court denied the new trial motions and found that petitioner was entitled to attorney fees but requested briefing and documentation before awarding a specific amount. The District Court issued its final order concerning attorney fees on August 1, 1984. Petitioner filed a notice of appeal on August 29, 1984. Pursuant to 28 U.S.C. § 1291 (1982), all final decisions of the district courts are appealable to the courts of appeals. (Emphasis added.) In Budinich, the Court concluded that the meaning of the phrase final decisions was an issue of federal law and not intended by Congress to rest upon state law concepts. Thus, the question was whether a decision on the merits is a final decision as a matter of federal law under § 1291 when the recoverability or amount of attorney fees for the litigation remains to be determined. 486 U.S. at 199. In answering this question, a unanimous Court stated: [W]e think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action. At common law, attorney's fees were regarded as an element of `costs' awarded to the prevailing party, see 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil § 2665 (1983), which are not generally treated as part of the merits judgment, cf. Fed. Rule Civ. Proc. 58 (`Entry of the judgment shall not be delayed for the taxing of costs'). 486 U.S. at 200-01. The United States Supreme Court recognized that attorney fees could be distinguished between those requested pursuant to statutes, which may cause them to be part of the merits relief, and those specifying that they are to be taxed and collected as costs. 486 U.S. at 201. But the Court, emphasizing the need for reserving operational consistency and predictability in the overall application of § 1291, concluded: The time of appealability, having jurisdictional consequences, should above all be clear. We are not inclined to adopt a disposition that requires the merits or nonmerits status of each attorney's fee provision to be clearly established before the time to appeal can be clearly known. Courts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a `final decision' for the purposes of § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case. 486 U.S. at 202-03. No jurisdiction existed for the appeal in Budinich because petitioner's judgment on the merits was final and appealable when it was entered. The notice of appeal filed after a decision awarding attorney fees was untimely. Both the Kansas statute and its federal counterpart, 28 U.S.C. § 1291, employ the same critical term final decision as the basis for appellate jurisdiction. K.S.A. 1989 Supp. 60-2102 provides: Invoking Jurisdiction of Court of Appeals. (a) As of right. ... the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from: .... (4) A final decision in any action.... (Emphasis added.) The federal statute provides: Final decisions of district courts. The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts.... (Emphasis added.) 28 U.S.C. § 1291. Although we are not bound by the Budinich interpretation of the federal statute governing appeals, we recognized in Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 128, 415 P.2d 398 (1966), that the federal statute was similar to ours by providing for appeals from final decisions. We noted that federal decisions construing § 1291 are entitled to persuasive weight in interpreting our state statute. In Budinich, the Court reasoned that, at common law, attorney fees were regarded as an element of costs, which are not treated as part of the merits judgment. 486 U.S. at 200. Fed. R. Civ. Proc. 58 states that the entry of the judgment shall not be delayed for the taxing of costs. The comparable Kansas provision, K.S.A. 60-258, has omitted that statement from its adoption in 1963 to the present. Instead, Kansas provides a separate article on costs. K.S.A. 60-2001 et seq. Pursuant to K.S.A. 60-2001(d), other fees and expenses to be assessed as court costs, in addition to the docket fee, are to be approved by the court unless specifically fixed by statute. These other fees shall include, but not be limited to, witness fees, ... attorneys' fees, ... and any other fees and expenses required by statute. The subsection further provides: All additional court costs shall be taxed and billed against the parties as directed by the court. Under the provisions of K.S.A. 60-2002(a), costs shall be allowed to the party in whose favor judgment is rendered unless a statute provides otherwise. The clerk of the court taxes the costs, subject to review by the judge on timely motion by an interested party. K.S.A. 60-2002(c). Among those items listed under the section titled Items allowable as costs are [s]uch other charges as are by statute authorized to be taxed as costs. K.S.A. 60-2003(6). Commenting upon this section, Judge Gard states: This section needs no explanation. The taxing as costs of most of the items listed here would follow as a matter of course under the authorization of other statutes. But it is helpful to have the taxable items gathered together in one place, subject, however, to reference to other statutes for authority to tax as costs such things as appraisers' and attorneys' fees, costs on appeal, and the like. Comments, 2 Gard's Kansas C. Civ. Proc.2d Annot. § 60-2003 (1979). K.S.A. 60-2002 and 60-2003 indicate the intent of the legislature to award attorney fees as costs in the action. Although the legislature could explicitly require a trial court to decide the issue of attorney fees as part of the merits of the case, the statutes now treat attorney fees as an element of costs to be awarded to the prevailing party. The legislature has characterized an award of attorney fees as something separate from the merits of the underlying case. We find the reasoning of Budinich persuasive. We believe a bright-line rule that a decision on the merits is a final judgment for appeal purposes despite any remaining question as to attorney fees is necessary and appropriate. We are aware that the rule we have adopted may lead to an occasional piecemeal appeal of a judgment on the merits and an award of attorneys fees. The problem of the piecemeal appeal may be avoided if trial judges delay entering judgment on the merits until the fee question is resolved and dispose of both the merits and the attorney fees in a single judgment. The better practice will be to resolve all fee questions in a timely fashion. This will allow an appeal to proceed more expeditiously. We conclude, however, that a decision on the merits is a final decision for purposes of appeal whether or not a request or motion for attorney fees attributable to the case remains to be adjudicated. A question of whether to award attorney fees under Kansas statutes is to be regarded as the assignment of costs rather than the termination of a right or liability or grant or refusal of a remedy. Our alignment with Budinich also carries the value of procedural uniformity for state and federal practice in this jurisdiction. Our resolution of this jurisdictional issue follows the course recently charted by Colorado and Connecticut when faced with similar situations. Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1073-74 (Colo. 1988) (reversing Court of Appeals ruling similar to that entered herein); Paranteau v. DeVita, 208 Conn. 515, 520-23, 544 A.2d 634 (1988). Supersedeas Bond — Docketing Statement State Farm also argued that its supersedeas bond filed on May 9, 1988, and the docketing statement filed on May 18, 1988, should be viewed as a second notice of appeal. The Court of Appeals disagreed with this analysis, pointing out that the mandatory requirements for invoking the jurisdiction of the appellate courts of this state are set out at K.S.A. 1989 Supp. 60-2103. The Court of Appeals was correct in concluding that the docketing statement and supersedeas bond do not satisfy the requirements of filing the notice with the clerk of the district court and in rejecting this argument. The Cross-Appeal Finally, concerning notices of appeal, the Court of Appeals concluded that the cross-appeal of Snodgrass and Hartford must also be dismissed. The first issue raised by Snodgrass and Hartford involves the refusal to give certain instructions, which the Court of Appeals dismissed as moot. The notice of cross-appeal was filed prior to the entry of judgment on the attorney fees issue. The instruction issue may be considered on remand as the notice of cross-appeal was timely filed after the final decision. The second issue raised by Snodgrass and Hartford concerned the amount of attorney fees awarded. The notice of cross-appeal did not specify the fee amount as an issue. The Court of Appeals concluded that the issue was not preserved for appeal and would not be considered. We agree. Attorney Fees No appeal or cross-appeal was taken from the May 2, 1988, order awarding attorney fees; consequently, attorney fees are no longer an issue on appeal. The remaining issues raised in the appeal and cross-appeal are to be considered by the Court of Appeals on remand. Reversed and remanded to the Court of Appeals with directions to reinstate the appeal and cross-appeal. ALLEGRUCCI, J., dissenting: I respectfully dissent. As the Court of Appeals noted, attorney fees became an issue in this case upon the filing of the petition. Since the verdict of the jury mandated the allowance of attorney fees, the judgment was not final until the court determined the amount of attorney fees to be awarded to the plaintiffs. Therefore, the Court of Appeals correctly found that State Farm's appeal of the district court's decision was not timely since it did not file a notice of appeal after the district court determined the attorney fees. The majority finds persuasive the holding in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L.Ed.2d 178, 108 S.Ct. 1717 (1988), which was that a decision on the merits is final for purposes of appeal even if a request for attorney fees attributable to the case has not yet been determined. As noted by the majority, although we are not bound by the interpretation in Budinich of the federal statute governing appeals, 28 U.S.C. § 1291 (1982), in Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 128, 415 P.2d 398 (1966), we recognized that the federal statute was similar to ours and, therefore, federal decisions construing § 1291 are entitled to persuasive weight. 197 Kan. at 128. However, I do not find the decision in Budinich persuasive for several reasons. First, Fed. R. Civ. Proc. 54(d) provides for costs to be awarded to the prevailing party. The comparable Kansas provision on judgments (K.S.A. 1989 Supp. 60-254) omitted this subsection. 1 Gard's Kansas C. Civ. Proc.2d Annot. § 60-254 (1979). Fed. R. Civ. Proc. 58 states that the entry of the judgment shall not be delayed for the taxing of costs. K.S.A. 60-258(a) contains no similar language. Instead, the Kansas rules provide a separate article on costs, found at K.S.A. 60-2001 et seq. Under K.S.A. 60-2001(d), other fees and expenses to be assessed as court costs in addition to the docket fee are to be approved by the court unless specifically fixed by statute. These other fees shall include, but not be limited to, witness fees, ... attorneys' fees, ... and any other fees and expenses required by statute. The subsection further provides: All additional court costs shall be taxed and billed against the parties as directed by the court. In this case, K.S.A. 40-256 allows an award of attorney fees only if the prevailing party is able to establish that the insurance company refused without just cause or excuse to pay the full amount of the loss sought against the insurance company. The award of attorney fees is based not just upon the meritorious nature of plaintiff's claim, but upon the insurance company's refusal to pay the claim. Further, the Court in Budinich recognized that attorney fees could be distinguished between those requested pursuant to statutes, causing them to be part of the merits relief, and those specifying that they are to be taxed and collected as costs. 486 U.S. at 201. However, the Court, emphasizing the need for reserving operational consistency and predictability in the overall application of § 1291, chose not to make that distinction in order to fashion a bright-line rule. Finally, we note that on a number of occasions this court has construed the meaning of final decision under K.S.A. 1989 Supp. 60-2102(a)(4). Professor Edward Robinson, commenting upon 60-2102(a)(4), states: The court has clearly indicated its position as to the meaning of `final' with respect to an `order' or `decision.' After pointing out that its decisions construing the expression `final order' as it appeared in G.S. 1949, 60-3302 and 3303 became obsolete with the repeal of those sections by the adoption of the new code, the Kansas court ruled that the word `final' is to be given its ordinary meaning and an order or a judgment is to be considered as final if all the issues in the case are determined, not just part of the issues Connell v. State Highway Commission, 1964, 192 Kan. 371, 374, 388 P.2d 637, 641. Likewise a final order is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action: Cusintz v. Cusintz, 1965, 195 Kan. 301, 302, 404 P.2d 164. With the exception of the rare instances for interlocutory appeal provided by K.S.A. 60-2102(b), intermediate and piecemeal appeals which tend to extend and prolong litigation are out of place under the new code whose purpose and policy are to secure the just, speedy and inexpensive determination of every action: Connell v. State Highway Commission, supra. Authors' Comments, § 2102.2, 6 Vernon's Kansas C. Civ. Proc. § 60-2102 (1967). In Gulf Ins. Co. v. Bovee, 217 Kan. 586, 538 P.2d 724 (1975), the appellant attempted to appeal from the order of the district court overruling his motion to quash an order of garnishment. In dismissing the appeal for lack of jurisdiction, we said: Under Article 3, § 3 of the Kansas constitution this court has only `such appellate jurisdiction as may be provided by law.' Insofar as it is applicable here that law (K.S.A. 60-2102) provides that an appeal from the district court will lie as of right only from a `final decision' of that court. No definition of `final decision' is contained in the statute but this court has previously construed it to mean, `one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.' Bates & Son Construction Co. v. Berry, [217 Kan. 322, 324, 537 P.2d 189]; Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164. See also, Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.... . As stated in Connell v. State Highway Commission, supra (p. 374), `The policy of the new code [of civil procedure] leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.' To allow an appeal from an interlocutory order such as is presented in this case would be contrary to the policy of the code and set a precedent for future appeals which would serve only to delay and render more expensive the judicial process. 217 Kan. at 587. In the present case, the district court reserved the question of the awarding of attorney fees for further action by the court and, therefore, precluded appeal as of right until that question was resolved. To hold otherwise would require a second appeal of the court's ruling on the issue of attorney fees, thus resulting in piecemeal appeals and extending and prolonging the appeal process. I would decline to adopt the rule as annunciated by the United States Supreme Court in Budinich and affirm the Court of Appeals.",jurisdiction
+495,2293386,1,1,"[¶ 2] We present the evidence and the trial court's findings in the light most favorable to A.E. Robinson as the prevailing party. See Lyman v. Huber, 2010 ME 139, ¶ 2, 10 A.3d 707. Porter is the sole shareholder in County Forest, a corporation that has existed since 1986. In 2004, Porter spoke with a vice president of A.E. Robinson at a charity golf event. Subsequently, the two orally agreed that A.E. Robinson would begin delivering fuel products to G.R. Porter & Sons, [1] another corporation with which Porter was involved. In 2005, Porter began operating a fuel delivery business as Porter Cash Fuel but never registered that name with the Secretary of State. Porter testified that he intended to operate Porter Cash Fuel as a trade name of County Forest and not as a separate sole proprietorship. The record reveals that Porter ordered fuel and gas over the phone from A.E. Robinson in a series of transactions that continued for three years and eventually gave rise to this suit. [¶ 3] Several types of writings confirmed these oral agreements. Within two days after A.E. Robinson delivered its products, it mailed invoices directed to Porter Cash Fuel. A.E. Robinson also regularly sent Porter Cash Fuel statements of account. Further, an authorization for direct payment listed Porter Cash Fuel and bore two signatures, one of which belonged to Porter. None of the writings made any reference to County Forest and none indicated the corporate status of Porter Cash Fuel. All of A.E. Robinson's dealings were with Porter or with Porter Cash Fuel; it had no reason to believe it was dealing with County Forest. [¶ 4] Over the years of this business relationship, A.E. Robinson added terms to the bottom of its invoices asserting its entitlement to financing charges, collection costs, attorney fees, and court costs. Although Porter never expressly agreed to these terms, when Porter paid sporadically, some of the payments were applied to financing charges, and Porter never complained. Ultimately, the business relationship deteriorated, and A.E. Robinson refused to deliver any more products. A.E. Robinson sued County Forest and Porter seeking payment on the account. Following a non-jury trial, the court entered judgment for A.E. Robinson jointly and severally against County Forest and Porter in the amount of the invoices plus financing charges and attorney fees. County Forest and Porter appeal from the entry of that judgment.",facts
+496,2620540,1,3,"21 Fondren North Renaissance, 749 So. 2d at 983 (quoting Faircloth, 592 So. 2d at 945). 10 ¶31. Because the city planning commission ignored its own definition, past practices, and all of the relevant evidence when it denied Psycamore’s certificate of occupancy, we find that the denial was clearly arbitrary and capricious. Accordingly, we affirm the ruling of the Jackson County Circuit Court reversing the decision of the City, and we remand this case to the City for further proceedings consistent with this opinion. ¶32. AFFIRMED. WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING. 11",conclusion
+497,1665551,1,1,"Bell asserts that, without his confession and a hearsay statement made by S.C., both of which he claims were improperly admitted, the evidence was insufficient to support the verdict. Although this point on appeal was listed fifth among Bell's points, double jeopardy considerations require this court to consider a challenge to the sufficiency of the State's evidence prior to the other issues raised in the case. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007). We first note the State's assertion that this issue was not properly preserved for appeal due to the untimeliness of Bell's renewed motion for directed verdict. The State correctly notes that a directed-verdict motion is to be made at the close of the evidence offered by the prosecution and renewed at the close of all the evidence. See Ark. R.Crim. P. 33.1(a) (2007). Failure to challenge the sufficiency of the evidence at those times will waive the issue for appellate review: A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. Ark. R.Crim. P. 33.1(c). The State is also correct in pointing out that a renewal made after the jury has been instructed is untimely. See Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006). Our court has dismissed sufficiency challenges as not preserved for appeal when defense counsel waited until after the jury instructions to renew the motions for directed verdict. See, e.g., id.; Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). In the instant case, the defense offered no testimony or evidence. Thus, the close of the State's case and the close of all the evidence occurred simultaneously. Under these circumstances, we conclude that a renewal of the directed-verdict motion made at the close of the State's case was unnecessary. We have stated that [a] defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled waives any further reliance upon the former motion. Thomas v. State, 315 Ark. 504, 506, 868 S.W.2d 483, 485 (1994). Here, the defense did not waive reliance on the earlier directed-verdict motion by the production of additional evidence. A renewal of the directed-verdict motion was therefore not required. Consequently, we deem the sufficiency challenge to be properly preserved for our review. Our standard of review for a sufficiency challenge is well settled. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Furthermore, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Bell asserts that his statement to police and a hearsay statement by S.C. should not have been admitted. He claims that, without these two statements, the evidence was insufficient. His argument on this point is without merit. When dealing with sufficiency-of-the-evidence challenges, our court considers evidence both properly and improperly admitted. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).",sufficiency of the evidence
+498,3066813,1,2,"I. MHSAA is not a state agency entitled to deference. ¶13. MHSAA argued in its initial brief that its “eligibility decisions are entitled to the substantial evidence standard of review given to its member school boards. At the beginning of this case, [MHSAA] filed a motion in limine requesting the chancery court to adopt this appellate standard and exclude evidence not considered by [MHSAA].” (Emphasis added.) HHS countered that MHSAA was not a state agency and that the proceeding in chancery court “was not an appeal of a decision following a proper administrative hearing conducted by a legislatively created state agency.” (Emphasis added.) HHS also argued that the only way it could “get a review of the MHSAA proceedings was to file an independent action against the Association for injunctive or equitable relief.” ¶14. We agree with HHS that MHSAA is not a state agency. We also find that there is no right of appeal from MHSAA’s decisions. Because these issues are so closely intertwined, we discuss them together. 5 We note that MHSAA has been a party before this Court on very few occasions, and this Court never has addressed the precise question presented today. See MHSAA v. Trail, 163 So. 3d 274 (Miss. 2015); MHSAA v. Coleman, 631 So. 2d 768 (Miss. 1994); and MHSAA v. Farris, 501 So. 2d 393 (Miss. 1987). 6 ¶15. First, simply put, there is no authority—statutory or otherwise—that authorizes an appeal of right from the decisions of a voluntary, private organization. And while it is true that one may pursue an appeal in chancery court when there is no adequate remedy at law, that avenue is available only when appealing a state board or agency decision. See, e.g., Prisock v. Perkins, 735 So. 2d 440, 443 (Miss. 1999) (“where there is no statutory scheme for appeal from a decision of a state board or agency and the injured party does not have a full, plain, complete and adequate remedy at law, the chancery court has jurisdiction for judicial review of the board or agency decision.”) (Emphasis added.) ¶16. We disagree with MHSAA’s argument that it is similar to an administrative agency—specifically, a school board—and is therefore entitled to deferential treatment on appeal. First, school boards were specifically created by the Mississippi Legislature, and their functions are strictly regulated by statutory law. In other words, as HHS argues, state statutory law “provide[s] due process and legal protection for students, parents, employees, staff, the administration and the public transacting business with the school districts.” Such is not true for MHSAA, as it is a “non-profit organization in which membership is voluntary.” Mississippi High Sch. Athletic Activities Assoc. v. Coleman, 631 So. 2d 768, 771 n.1 (Miss. 1994). ¶17. Secondly, we have found no other case in which this Court has granted an agency-like right of appeal from the decisions of a private organization, along with the deference that accompanies that right. On the contrary, this Court previously has specifically denied agency-like deference to other private, nongovernmental organizations. See Owens Corning v. Mississippi Ins. Guar. Assoc., 947 So. 2d 944, 945-46 (Miss. 2007) (“MIGA is not a state 7 agency, and therefore its interpretation of the Insurance Guaranty Act is not entitled to deference . . . . MIGA is not an entity akin to the Mississippi Division of Medicaid or any other administrative agency.”) and Mississippi Windstorm Underwriting Ass’n v. Union Fire Insurance Co., 86 So. 3d 216, 222 (Miss. 2012) (“Like MIGA, MWUA is not an administrative agency and, thus, is not entitled to deference.”) ¶18. Finally, MHSAA places much emphasis on this Court’s decision in Mississippi High School Athletic Activities Association v. Coleman, 631 So. 2d 768 (Miss. 1994). There, this Court was faced with constitutional challenges to MHSAA’s recruiting rule. Id. at 772-73. The Coleman Court did state that the “power to regulate athletic programs is conferred upon the local school boards by the Mississippi Legislature,” and that the “school boards, in turn, delegated this authority to [MHSAA].” Id. at 774. But this statement was made in the context of determining whether MHSAA’s conduct was “state action” for purposes of the constitutional analysis. Id. Coleman simply does not stand for the proposition that MHSAA should be treated as a state agency. Delegation by the member school boards of their authority to regulate athletes and athletic events simply does not extend so far as to also “delegate” their agency status. ¶19. In short, MHSAA is a private “non-profit organization in which membership is voluntary.” Coleman, 631 So. 2d at 771 n.1. As such, it is not a state board or administrative agency, and the common-law right of appeal to chancery court is therefore unavailable. The parties have pointed to no authority—and we cannot find any—that authorizes an appeal of right from the decisions of a voluntary, private organization. II. HHS did not allege a legally cognizable claim. 8 ¶20. We now turn to the issue contemplated by this Court’s question on supplemental briefing—when may parties challenge the decisions of a private, voluntary organization in chancery court? Stated differently, does an aggrieved athlete, parent, or school ever have recourse from an adverse decision made by a private organization like MHSAA? The answer is simple: yes, if they allege a cognizable legal claim. ¶21. The courts of this state “are not authorized to resolve every claim and dispute that may arise between our citizens. The plaintiff must file a complaint which alleges some cognizable claim or cause of action against the defendant.” In Re Bell, 962 So. 2d 537, 541 (Miss. 2007) (emphasis added). “And even though Section 159 of the Mississippi Constitution gives chancery courts jurisdiction over ‘[a]ll matters in equity,’ that jurisdiction has limits.” Greater Fairview Missionary Baptist Church v. Hollins, 160 So. 3d 223, 229 (Miss. 2015) (citing Miss. Const. art. 6, § 159). ¶22. “It is true of course that, in a proper case, restraining orders and injunctions are within the jurisdiction of our chancery courts.” In Re Bell, 962 So. 2d at 541 (emphasis added). “But these and other cases require that an application for injunctive relief be predicated upon some legal or equitable claim which will, at some point, proceed to the merits.” Id. (emphasis added). “Indeed, an applicant for injunctive relief must demonstrate, inter alia, a substantial likelihood of prevailing on the merits of the claim.” Id. (emphasis added). ¶23. The entirety of HHS’s cause of action as stated in its complaint reads as follows: 10. Despite the minor Plaintiffs having met the necessary residency requirement, MHSAA has wrongfully denied approving them for athletic participation. 9 11. The Association’s actions and conduct did not follow its own rules and regulations regarding residency determination of the minor Plaintiffs. 12. The MHSAA’s actions in denying the minor Plaintiffs eligibility for competition in athletic activities were arbitrary and capricious. 13. The MHSAA did not have any substantial basis to deny the minor Plaintiffs eligibility for athletic activities. 14. The MHSAA failed to follow its own rules, by-laws, and constitution in that it did not properly investigate and consider the matter as required by said rules, by-laws and constitution. 15. [HHS] has no other adequate remedies at law or otherwise and that [HHS] will suffer irreparable harm, damage and injury, unless the Defendants’ acts complained of are enjoined. The minor Plaintiffs will not be able to practice or participate in team competition and will not be covered by insurance. T.M.G. will lose her ranking as Mississippi top female student athlete in Girls Basketball for the 2011-2012 Season, and prohibit her ranking as a Dandy Dozen Student Athlete for the State of Mississippi. Nowhere in its complaint does HHS allege a breach of contract, a tort, fraud, or any other legally cognizable claim. Contrary to the dissents’ position, there simply is no cause of action for “arbitrariness,” in the absence of a contractual provision or some other legal duty requiring otherwise. For example, MHSAA could decide arbitrarily to paint all of its office doors chartreuse, but unless some contractual provision or other legal duty mandates otherwise, no cause of action arises. As such, HHS’s complaint for injunctive relief was not “predicated upon some legal or equitable claim which will, at some point, proceed to the merits,” and therefore was not within the Forrest County Chancery Court’s jurisdiction. In Re Bell, 962 So. 2d at 541. ¶24. Chief Justice Waller argues that we reach a decision that “stands in direct conflict with longstanding precedent recognizing that a member of a private, voluntary association may 10 seek relief in court from the association’s arbitrary decision.” Waller Dis. at ¶36. First, the “longstanding precedent” cited by Chief Justice Waller is mostly nonbinding decisions from other jurisdictions and from our court of appeals. And although Chief Justice Waller does cite two cases written by this Court, those cases are easily distinguishable. ¶25. In Lowery v. International Brotherhood of Boilermakers, 130 So. 2d 831 (Miss. 1961), Walter Lowery sued The International Brotherhood of Boilermakers in chancery court, requesting that the court reinstate him to his former membership in the union and to award damages for his wrongful suspension. Id. at 832 (emphasis added). This Court also noted that the chancery court had jurisdiction over the case, because “it was alleged that there were funds or property in the hands of a third party belonging to the appellee.” Id. at 834 (emphasis added). Clearly then, Lowery had alleged a breach of contract,6 as well as a dueprocess type of argument. It was in the context of reviewing those claims that this Court acknowledged that it would not interfere with the union’s decisions absent arbitrariness. Id. at 836. In fact, in the sentence immediately following the portion quoted by Chief Justice Waller, this Court said: The courts will, however, grant relief where property rights are involved or where there is not a provision for a hearing under the contract, and will determine whether or not a hearing was contrary to natural justice or was had without proper notice. “When property rights of members of voluntary associations are involved, the courts will lend assistance for their protection.” 6 “It is now a well-settled rule that a Union Constitution is a contract between the members of the union and the association. ‘The articles of agreement of a labor union, whether called a constitution, charter, by-laws, or any other name, constitute a contract between the union and its members, as well as a contract between the members of the union, which the courts will enforce, if not immoral or contrary to public policy or the law of the land.’” Id. at 834 (citation omitted). 11 Id. (emphasis added) (citation omitted). In short, the Lowery Court was not simply reviewing the union’s decisions for “arbitrariness,” as intimated by the dissents. ¶26. And in Multiple Listing Service of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So. 2d 982 (Miss. 1980), this Court again faced a due-process argument: “The authorities are in general agreement that judicial review of disciplinary proceedings of a voluntary association should be limited to determining only whether the member disciplined received procedural due process as required by the Fourteenth Amendment to the United States Constitution . . . .” Id. at 983. And again, it was in the context of reviewing whether an association member had been afforded due process during a disciplinary proceeding that this Court quoted Lowery and its “arbitrariness” language. Id. at 984. There simply was no independent “review for arbitrariness,” contrary to Justice Chief Justice Waller’s assertions. Waller Dis. Op. at ¶40. ¶27. So a fair and thorough reading of both Lowery and MLS reveals that they do not conflict with our holding today. Neither case holds that this Court has the authority simply to review the decisions of a private, voluntary organization for “arbitrariness.” Rather, the plaintiffs in those cases presented legally cognizable causes of action that were brought properly in the trial court and then argued before this Court on appeal. ¶28. Chief Justice Waller also claims that we reach a decision that “conflicts with this Court’s barely six-month-old decision upholding a student’s standing to sue the MHSAA for misapplying its rules in an eligibility decision.” Waller Dis. Op. at ¶ 36. This accusation is easily dismissed as well. Simply put, the one and “only issue before [this Court in Trail was] 12 whether a high school athlete has standing to challenge adverse decisions concerning the student’s eligibility to participate in high school athletics.” Mississippi High Sch. Activities Ass’n, Inc. v. Trail, 163 So. 3d 274, 275 (Miss. 2015) (emphasis added). So as this Court itself specifically acknowledged, the sole issue before it in Trail was standing. ¶29. This Court held ultimately in Trail that students had standing as third-party beneficiaries to challenge MHSAA’s eligibility decisions. Id. at 280. As such, this Court acknowledged that a contract exists between the member schools and MHSAA, and that this contract could be breached. And it was in that context that this Court made the statement relied on so heavily by the dissents: “once a school decides to create a sports program and establish eligibility rules, the school—or as in this case, MHSAA—has a duty to follow those rules; and it may be held accountable when it does not do so.” Id. at 280; Waller Dis. Op. at ¶36; King Dis. Op. at ¶79. ¶30. What this Court did not do, though, is make any findings about what the schools or students had to allege, or what they had to prove in order to proceed in chancery court with a challenge to MHSAA’s eligibility decisions. No one raised the issue of whether Trail had stated a legally cognizable claim, and this Court therefore did not review Trail’s complaint or pass on its sufficiency. But that is the question we face today in this appeal. ¶31. As a final note, both dissents argue strenuously that HHS asserted a claim for breach of contract. But it is clear from the record that the parties did not proceed below as if a breach-of-contract claim had been pleaded. And nowhere in the chancellor’s sixty-sevenpage order does she analyze a breach-of-contract claim; in fact, the phrase “breach of 13 contract” is never used. Rather, the chancellor analyzed MHSAA’s actions to determine only if her decision was arbitrary and/or supported by substantial evidence (i.e., the agencyappeal standard), finding: It stands to reason that [if] decisions of school boards (which are administrative bodies) are subject to review, then the actions of the MHSAA should be subject to review and their decisions will not be disturbed “unless said decision appealed from was unsupported by substantial evidence; was arbitrary or capricious; was beyond the (association’s) scope of peers; or violated the constitutional or statutory rights of the aggrieved party . . . MHSAA offered plaintiffs no adequate administrative remedies to appeal its agency decisions. When no adequate administrative remedy is available, exhaustion is not required . . . The reviewing court is charged to study the record and the legislative facts to which the challenged order points and divine a rational basis upon which the administrator may have acted. ¶32. In sum, we reaffirm the sound principles espoused by this Court in In Re Bell. HHS’s complaint for injunctive relief was not “predicated upon some legal or equitable claim which will, at some point, proceed to the merits,” and it therefore was not within the Forrest County Chancery Court’s jurisdiction. In Re Bell, 962 So. 2d at 541. And none of this Court’s decisions cited by the dissents conflicts with our holding today.",analysis
+499,1624833,1,3,The appeal is dismissed for a lack of jurisdiction. All concur.,conclusion
+500,2189497,1,1,"MICHAEL A. WOLFF, Judge. Tracy Gilliland sued the Missouri Athletic Club under the Missouri Human Rights Act alleging he was sexually harassed by another male, a manager for the club. The jury returned a verdict for $60,000 in actual damages for constructive discharge and a verdict declaring the athletic club liable for punitive damages. The trial court entered judgment for Gilliland on the verdict, granted the athletic club judgment notwithstanding the verdict on punitive damages, awarded Gilliland $22,000 in attorneys' fees, and denied equitable relief. The case was submitted to the jury on Gilliland's claims that the athletic club discriminated against him on the basis of sex and race, that a club manager had sexually harassed and assaulted him in the workplace, and that he was constructively discharged. The constructive discharge claim, which was not submitted to the jury under the human rights act, was the only claim on which the jury found in favor of Gilliland. On Gilliland's other claims, the jury found in favor of the athletic club. This case comes here solely on Gilliland's appeal of the judgment notwithstanding the verdict on punitive damages, the denial of equitable relief in the form of front pay benefits or reinstatement, and the allegedly inadequate attorneys' fee award. The Missouri Athletic Club chose not to appeal and satisfied the judgment, which included the $60,000 in damages.",introduction
+501,2629781,1,1,This case presents the following issues: (1) Whether there is substantial evidence that the plaintiff commenced her professional negligence action against Epstein within one year of the date that she discovered or with due diligence should have discovered the factual basis of her claim; and (2) Whether knowledge of suspected professional negligence as to one health care provider necessarily triggers the medical malpractice discovery rule of RCW 4.16.350 as to all other health care providers who treated the plaintiff.,issues
+502,1924748,1,1,"In this case, Joe E. Rice, Jr., (hereinafter Rice) appeals from a decision of the Madison County Chancery Court denying his claim of adverse possession of certain land and upholding good and clear record title to the disputed land to the appellee, Kenneth F. Pritchard, (hereinafter Pritchard). Pritchard filed suit in the Chancery Court to confirm and quiet title to 2.4 acres of Madison County property. Rice claimed that he was the record title owner of the property, and alternatively, even without record title, obtained the property by adverse possession for the statutory period. The Chancellor found that the property in question was included within the calls of Pritchard's deed. He also found that Rice failed to prove by clear and convincing evidence the elements of adverse possession as required by Miss. Code Ann. § 15-1-13 (1972). On appeal, Rice challenges principally the denial of his adverse possession claim.",introduction
+503,4544384,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+504,1237882,1,1,"At oral argument DHSS first argued the circuit court lacked jurisdiction to assess costs pursuant to sec. 814.245, Stats. Section 814.245(6) states that a party seeking an award under this section shall, within 30 days after final judgment in the action, submit to the clerk an itemized application for fees and other expenses. DHSS asserts Sheely failed to apply for costs within thirty days after the circuit court's remand became final and therefore the circuit court lacked jurisdiction. We disagree. Section 814.245, Stats., contains substantially similar language as that in 5 USC sec. 405(c)(2) (1985). [8] Under the Federal Equal Access to Justice act [EAJA] the thirty-day time limit is a jurisdictional question. MacDonald Miller Co. v. N.L.R.B., 856 F.2d 1423, 1424 (9th Cir. 1988). See also J-I-J Const. Co. v. U.S., 829 F.2d 26, 29 (Fed. Cir. 1987); Sonicraft, Inc. v. N.L.R.B., 814 F.2d 385, 386 (7th Cir. 1987); Clifton v. Heckler, 755 F.2d 1138, 1144 (5th Cir. 1985). This jurisdictional question cannot be waived and may be first raised on appeal. See Cassata v. Federal Savings & Loan Ins. Corp., 445 F.2d 122, 126 (7th Cir. 1971) (The bar of a judgment for costs against the United States under the doctrine of sovereign immunity presents a jurisdictional question which cannot be waived and may be first raised on appeal.). [3] There appear to be different approaches in the federal courts as to which moment is significant when measuring the thirty day jurisdictional requirement. Some courts permit the taxation of costs if a party successfully obtains a remand from a federal district court. See Bohn v. Heckler, 613 F. Supp. 232 (E.D. Ill. 1985); Sizemore v. Heckler, 608 F. Supp. 911 (E.D. Ill. 1985). The majority of federal courts, however, hold a party is eligible to receive fees and costs pursuant to the EAJA only after the matter is disposed of in favor of them on remand. When a court vacates an administrative decision and remands the matter for reconsideration, the successful party generally should not recover attorney's fees at that particular time since the claimant's rights and liabilities and those of the government have not yet been determined. Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3rd Cir. 1984). Fees may be awarded `only to a party who has established his entitlement to some relief on the merits of his claims.' Id. at 883 quoting Hanrahan v. Hampton, 446 U.S. 754, 757 (1980) (per curiam) (a civil rights case). See also McGill v. Secretary of Health and Human Services, 712 F.2d 28, 32 (2nd Cir. 1983), cert. denied 465 U.S. 1068 (1984) ([plaintiff) will not become a prevailing party unless and until she is awarded benefits, at which time her application for appropriate attorney's fees may again be considered.). This position has been adopted by the United States Seventh Circuit Court of Appeals, Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1986); a Wisconsin federal district court, Hutchinson v. Heckler, 612 F. Supp. 264 (E.D. Wis. 1985); and the Wisconsin Court of Appeals in Kitsemble, 143 Wis. 2d at 863. We conclude the later position followed by the majority of courts to be the soundest and so we adopt it. [4] Here, Sheely concurrently petitioned the circuit court for both a final judgment and an award of fees and costs. In Auke Bay Concerned Citizen's v. Marsh, 779 F.2d 1391, 1393 (9th Cir. 1986), the court held an application of fees is timely if the applicant files no more than thirty days after the final judgment and the applicant is able to show they are a prevailing party; eligible to receive an award under the EAJA. In Auke, a motion pursuant to the EAJA was submitted eight months prior to the formal-final judgment in the case. Other circuits have also held applications filed prior to the entry of final judgment are timely. See Miller v. United States, 753 F.2d 270, (3rd Cir. 1985), Matter of Esmond, 752 F.2d 1106, 1109 (5th Cir. 1985); But see Guthrie v. Schweiker, 718 F.2d 104, 106 (4th Cir. 1983) (when no final judgment is filed by the district court on remand, claimant's attorney may refile for costs and fees when a final judgment is entered). We conclude the application for costs and fees with a request for the circuit court to enter final judgment is timely here. This approach of concurrent motions for final judgment and an award of costs under the EAJA has been approved and adopted by a federal district court in Wisconsin. Andino v. Heckler, 609 F. Supp. 293, 295 (E.D. Wis. 1985). Thus Sheely's application for costs and fees pursuant to sec. 814.245, Stats., was timely and the circuit court retained jurisdiction to award such fees and costs. DHSS also argues that the determination of whether Sheely is a prevailing party presents a jurisdictional question. We disagree. Whether a party is a prevailing party is a question on the merits of the case as to whether that party received the benefits or relief requested. Here Sheely is a prevailing party. She asked the circuit court to review DHSS's determination that she was not disabled and not qualified for medical assistance. The circuit court held DHSS had incorrectly determined her status and ordered a remand. Subsequently a federal administrative judge concluded Sheely was disabled and she received medical assistance pursuant to sec. 49.46(1)(a), Stats. DHSS did not refute this disability determination and closed its file. Sheely ultimately received the result and relief she initially requested and therefore she is a prevailing party. DHSS urges this court to adopt the position that the circuit court must explicitly state it is retaining jurisdiction to assess costs and fees when it remands a matter back to it for further proceedings on the merits of the case. We find no reason for such a requirement.",jurisdiction
+505,4561101,1,1,"The State Bar of Arizona entered a “Final Judgment and Order” regarding the respondent, Christine M. Schild, on April 17, 2020. The Counsel for Discipline of the Nebraska Supreme Court, the relator, filed a motion for reciprocal discipline against the respondent. We grant the motion for reciprocal discipline and impose a suspension of 6 months and 1 day.",introduction
+506,906355,1,1,"This case is before the court on the voluntary surrender of license filed by respondent, Kevin K. Stephenson, on April 16, 2013. The court accepts respondent’s voluntary surrender of his license and enters an order of disbarment. STATEMENT OF FACTS Respondent was admitted to the practice of law in the State of Nebraska on October 27, 2006. On February 13, 2013, after a 2-day jury trial before the district court for Greeley County, Kansas, the jury found respondent guilty of two counts of theft arising out of respondent’s representation of an estate. See State v. Stephenson, Greeley County District Court, case No. 2011 CR 28. On May 3, the district court for Greeley County filed its journal entry of sentencing, which was modified by its nunc pro tunc order filed on May 15. Respondent’s sentence began April 30, and he was sentenced to 16 months’ imprisonment with 4 days’ credit for time served and 24 months’ postrelease supervision. Respondent was also ordered to pay restitution of $117,408.68 to the estate. After his convictions, respondent self-reported this matter to the Counsel for Discipline of the Nebraska Supreme Court. On April 16, 2013, respondent filed a voluntary surrender in which he stated that he is aware that the Counsel for Discipline is currently investigating the events surrounding his convictions in Kansas. Respondent further stated that he does not contest the truth of the suggested allegations Nebraska Advance Sheets 28 286 NEBRASKA REPORTS being made against him. Respondent further stated that he freely, knowingly, and voluntarily waived his right to notice, appearance, or hearing prior to the entry of an order of disbarment and consented to the entry of an immediate order of disbarment.",introduction
+507,2218953,1,11,"However, since we lack jurisdiction to entertain appeals from other than final orders, In re Interest of L. W., 241 Neb. 84, 486 N.W.2d 486 (1992), we are required to determine on our own inquiry whether the orders granting appellees' motions for summary judgment against Mercury are final. Ordinarily, an order in a civil action, that is to say, in a cause brought under the provisions of chapter 25 of our statutes, is final when no further act of the trial court is required to dispose of the cause. Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989); In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991); Neb.Rev.Stat. § 25-1902 (Reissue 1989). Generally, an interlocutory summary adjudication of liability alone, which does not decide the question of damages, is not appealable. Hart v. Ronspies, 181 Neb. 38, 146 N.W.2d 795 (1966). However, an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment is final. In re Interest of R.G., supra . Here, the policy obligates Mercury to defend any suit alleging bodily injury and seeking damages payable under its terms. Thus, the summary judgments in these cases affect one of Mercury's substantial rights and prevent a judgment in its favor on that issue. Accordingly, the judgments are final and appealable. West American Insurance Co. v. Vago, 197 Ill. App.3d 131, 143 Ill.Dec. 195, 553 N.E.2d 1181 (1990), appeal denied 133 Ill.2d 574, 149 Ill.Dec. 340, 561 N.E.2d 710 (order declaring insurers had duty to defend but dismissing without prejudice the issue as to duty to indemnify held to be final and appealable).",jurisdiction
+508,2679904,1,1,"[¶2] When “[v]iewed in the light most favorable to the jury’s verdict, the record supports the following facts.” See State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336. In November 2010, John Savage began dating Katrina Windred. They planned to have dinner at Windred’s home the evening of November 20, 2010, so that they could meet each other’s children. That day, Windred took several phone calls from Arnold Diana, a former boyfriend whom she had recently stopped seeing. She left her home in the afternoon to pick up her son from his father’s house and to drop off groceries for Diana, telling Savage that she would see him in an hour. When she did not return that night and could not be reached by phone, Savage called the police. [¶3] Tiffany Walker, Windred’s close friend, knew Diana. When Walker awoke on the morning of November 21, she had phone messages from Diana saying that Windred’s son was with him but Windred was not there. Walker later spoke to Diana; he told her that Windred’s car was at his apartment with her dog locked inside. Diana said that Windred had gone out to meet a boyfriend the previous night, leaving her son with him, and never returned. Fearing that something had happened to Windred, Walker also called the police. [¶4] Windred’s son, age twelve at the time of the trial, testified that Diana had once been his mother’s boyfriend. On the last day he saw his mother, she 3 picked him up and they went to the grocery store, planning to drop groceries off at Diana’s residence and then go home to have dinner with Savage. They drove to Diana’s apartment and he came out to meet them. Windred went inside with Diana but the boy stayed in the car reading comic books. After a long time, Diana came out and told him that his mother was upstairs sleeping, which the boy thought was unusual because she had not slept at Diana’s apartment before. The boy went up to Diana’s apartment, leaving the dog in the car, which was also unusual. [¶5] Once in the apartment, Windred’s son saw that the bedroom door was closed. Diana told him that Windred was sleeping and he should be careful not to wake her. As the boy watched a movie, Diana went in and out of the bedroom frequently. That evening Diana took him to the bank where Diana withdrew cash. When they returned to the apartment, the bedroom door was still closed. The boy resumed watching movies. [¶6] When it became quite late, Windred’s son and Diana went into the dark bedroom to go to sleep. The boy saw what he described as “[t]he form of what looked like my mother on the bed” with a blanket pulled completely over her head. Both of those observations struck him as very unusual because his mother was a cancer patient who had to fall asleep in a sitting position with her arm propped up on pillows to prevent swelling, and she never had covers over her face. Windred’s ex-husband confirmed Windred’s sleeping habits when he testified. The boy tried 4 to sleep beside Diana on the floor next to the bed. When the boy could not get to sleep, Diana sent him out of the room and closed the door. When Diana let the boy back in, he told him to sleep on the bed; the “form” that the boy believed was his mother was then on the floor. When the boy awoke the next morning, Diana was already up and the form was gone; Diana told him that his mother had gone out with friends. [¶7] A deputy and a detective from the Knox County Sheriff’s Office were assigned to try to locate Windred on the morning of November 21. They found her car locked in the parking lot outside Diana’s apartment building with her dog inside. Eventually they made contact with Diana and conducted a twenty-minute search of his apartment at the request of Diana’s probation officer. The officers saw, but did not seize, a pillow with a red-brown stain on a closet shelf. That evening, Diana was interviewed by a Maine State Police detective and his apartment was searched again after he signed a consent form. Diana agreed to give the detective the pillow that had been seen earlier, and another detective located a second stained pillow. The stains on both pillows proved to be blood that a forensic DNA analyst at the State Police crime laboratory matched to Windred. [¶8] On November 23, a State Police detective located, in a dumpster area outside Diana’s building, a bag of trash that contained a purple towel, a note with the word “Arnold” written on it, cigarette butts containing Diana’s DNA, and a 5 jacket containing hair and blood that were later DNA-matched to Windred. That day, a man walking his dog about two miles from Diana’s apartment discovered Windred’s body wrapped in a quilt in the woods near a quiet road. An expert testified at trial that, in his opinion, two strips of purple towel that were tied around the quilt came from the purple towel found in the trash bag outside Diana’s building. The Chief Medical Examiner testified that Windred died from asphyxia due to strangulation, most likely a manual strangulation. The degree of rigor mortis she observed was consistent with a time of death three days before the body was discovered. [¶9] On November 24, a search warrant was executed at Diana’s apartment. Inside a seat cushion found in a kitchen trash can, detectives discovered Windred’s eyeglasses, cell phone, driver’s license, social security card, medical and debit cards, and a wallet containing one of her checks. Diana was interviewed for a third time on November 27. He was charged with Windred’s murder following the interview. [¶10] After he was indicted by the grand jury, Diana filed motions to suppress statements he made to police and any evidence derived from the searches of his apartment. Following a hearing the court suppressed some of Diana’s statements, but it declined to suppress evidence resulting from the searches. The case went to trial in July 2012 and the jury returned a verdict of guilty. At a later 6 sentencing hearing the court entered judgment, imposing a sentence of forty-five years’ imprisonment and $2747.46 in restitution. Diana appealed and filed an application to allow an appeal of his sentence, which the Sentence Review Panel granted.",facts
+509,2523441,1,2,"The Department of Child Services has appealed this matter under Indiana Rule of Appellate Procedure 4(A)(1)(b), which states that this Court shall have mandatory and exclusive jurisdiction over appeals of Final Judgments declaring a state or federal statute unconstitutional in whole or in part. The order being appealed is a final judgment declaring several state statutory provisions unconstitutional. A.B. contends this matter was improperly appealed under Indiana Appellate Rule 4(A)(1)(b), and the only proper appeal was under Indiana Appellate Rule 14.1. Rule 14.1 is titled, Expedited Appeal for Payment of Placement and/or Services and governs I.C. § 31-34-4-7(f), I.C. § 31-34-19-6.1(f), I.C. § 31-37-5-8(g), and I.C. § 31-37-18-9(d). It provides that all other appeals concerning children alleged to be in need of service or children alleged to be delinquent are not covered by this rule. Ind. Appellate Rule 14.1(A). Indiana Code sections 31-34-4-7(f) and 31-34-19-6(f) apply only in situations where a child is a child in need of services, not a delinquent child like A.B., thus they are not applicable to A.B.'s jurisdictional argument. Indiana Code section 31-37-5-8(g) applies only to services and programs provided prior to an entry of a dispositional decree; thus, it too falls outside the scope of A.B.'s jurisdictional claim. That leaves Indiana Code section 31-37-18-9(d), which states that if the juvenile court enters findings and a decree under subsection (b), the department may appeal the juvenile court's decree under any available procedure provided by the Indiana Rules of Trial Procedure or Indiana Rules of Appellate Procedure to allow any disputes arising under this section to be decided in an expeditious manner. Ind.Code § 31-37-18-9(d) (2010 Supp.). Thus, the only statute applicable to A.B. under Rule 14.1, Indiana Code section 31-37-18-9(d), states the department may appeal the juvenile court's decree under any available procedure provided by the Indiana Rules of Appellate Procedure. Therefore, DCS may appeal under Appellate Rule 4(A)(1)(b).
+We first address the trial court's ruling that Indiana Code section 31-40-1-2(f) is unconstitutional under Article 4, Section 19 of the Indiana Constitution, which limits legislative acts to one subject. Article 4, Section 19 states, An act, except an act for the codification, revision or rearrangement of laws, shall be confined to one subject and matters properly connected therewith. The 2009 First Special Session of the 116th General Assembly passed P.L. 182-2009, An Act to amend the Indiana Code concerning State and local administration and to make an appropriation, which amended Indiana Code section 31-40-1-2(f) to its present reading. Indiana Code section 31-40-1-2(f) relates to the state budget and reads, The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director's designee. Ind.Code § 31-40-1-2(f) (2010 Supp.) Public Law 182-2009ss, Sec. 387 added is not recommended or approved by the director of the department or the director's designee, replacing the previous language, does not comply with the conditions stated in I.C. § 31-34-20-1(b) or I.C. § 31-37-19-3(b). The amendment to Indiana Code section 31-40-1-2(f) addresses appropriations, namely, whether DCS is financially responsible for the placement of a juvenile. This amendment relates to the other items in the bill. The amendment to Indiana Code section 31-40-1-2(f) relates to appropriations and the state budget and does not violate Article 4, Section 19 of the Indiana Constitution limiting acts to one subject.
+We next determine if the three statutes violate Article 3, Section 1 of the Indiana Constitution. Article 3, Section 1 of the Indiana Constitution, commonly known as the separation of powers provision, states, The powers of the Government are divided into three separate departments; the Legislative, the Executive, including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. Ind. Const. art. 3, § 1. A.B. argues the challenged statutes allow the director of DCS to supplant the juvenile court judge in making dispositional decrees affecting children under his jurisdiction. DCS responds that the challenged statutes did not take away power from the juvenile court judges and further argues that these statutes are not about child placement, but about who will pay for a child's placement. [6] We believe these statutes do not violate the separation of powers provision of the Indiana Constitution. The statutes still provide an avenue for judicial review of placement and do not usurp the powers of the trial court or the judiciary, and they do not impermissibly shift those powers to the executive branch. We first determine whether the law has the effect of a coercive influence on the perceived usurped branch of government. The purpose of the separation of powers provision is to rid each separate department of government from any influence or control by the other department. State ex rel. Black v. Burch, 226 Ind. 445, 463, 80 N.E.2d 294, 302 (1948). Upon review, the statutes in question do not allow DCS to control the duties of the judiciary. Instead, they determine assistance for payment of a juvenile placement and costs associated with rehabilitating children. In other words, the statutes in question do not limit a judge's power to place a child where the judge determines is in the child's best interest. Rather, the statutes deal with how the state, through DCS, funds each child's placement. As our Court of Appeals correctly wrote, Each department of government possesses a legitimate, exclusive sphere of influence, and if any department fails to perform its duty[,] the remedy is not to be found in the attempt of some other department to perform such duties. ... Such attempt would be usurpation, more dangerous to free government than the evil sought to be corrected. Logansport State Hosp. v. W.S., 655 N.E.2d 588, 590 (Ind.Ct.App.1995) (quoting Hovey, Governor v. State ex rel. Schuck, 127 Ind. 588, 599, 27 N.E. 175, 178 (1891)). However, we are mindful that [i]f the separation of powers is to be maintained, it is essential that the judicial branch [of] government not be throttled by either the legislative or administrative branches, and that the courts be empowered to mandate what is reasonably necessary to discharge their duties. McAfee v. State ex rel. Stodola, 258 Ind. 677, 681, 284 N.E.2d 778, 782 (1972). Webster's defines throttle as to choke or strangle. Webster's II New College Dictionary 1150 (2nd ed.1995). Although this law does not throttle the judiciary by way of the administrative branch, it comes dangerously close to stifling the inherent empowerment our juvenile courts have always enjoyed in making decisions in the best interest of juveniles. It is acceptable that the legislature has established a process for the state to pay for placement and a process for the county to be ultimately responsible. However, justice demands that consideration be given not only to which entity is going to pay, but what the costs and per diem are for the various placement options, as well as all other relevant and pertinent factors focused on the best interest of the child. As the Court of Appeals eloquently wrote, It is not within the scope of the powers granted to the executive branch of government that it should sit as a superjudiciary to decide which laws and judicial determinations it will obey and which it will not. State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue Bd., 144 Ind.App. 63, 96, 253 N.E.2d 725, 736 (1969). To the extent that DCS can veto a juvenile court's out of state placement determination by withholding funds, DCS is moving very close to usurping the judiciary's authority when it comes to dealing with the lives of children. Indiana Code section 31-37-18-9(a) and (b) do not violate the separation of powers provision of Article 3, Section 1 of the Indiana Constitution. Indiana Code section 31-37-18-9(a) begins with the statement the juvenile court shall accompany the court's dispositional decree with written findings and conclusions upon the record concerning approval, modification, or rejection of the dispositional recommendations submitted in the predispositional report. ... Ind.Code § 31-37-18-9(a) (2010 Supp.) (emphasis added). The legislature is not mandating that the judiciary concur with the predispositional report filed by DCS from the executive branch. Subsection (a) delineates specific findings for the juvenile court to make in its dispositional decree. However, the legislature is not directing the judiciary what to find. There is no usurpation of judicial power in subsection (a). Further, we find Indiana Code section 31-37-18-9(b) does not violate the separation of powers provision of Article 3, Section 1. Subsection (b) outlines the procedure taken if the juvenile court does not concur with the department. It directs the juvenile court to make written findings if it disagrees with DCS and to preserve a complete record should DCS choose to appeal. Here, the legislature has not usurped the power of the juvenile court. In fact, the legislature has established a mechanism to address the scenario when the juvenile court disagrees with DCS. Facially, there is not a violation of separation of powers. In sum, Indiana Code section 31-37-18-9 allows each department to operate in its sphere of influence. It allows the executive branch, through its administrative agency, DCS, to propose to the juvenile court placement recommendations for a child. It also allows a juvenile court to disagree with the recommendations of DCS and provides the mechanism for that disagreement, and an ability for DCS to appeal the juvenile court's contrary decision. Indiana Code section 31-37-17-1.4 does not violate the separation of powers provision of Article 3, Section 1 of the Indiana Constitution. It outlines the procedure DCS and the probation officer undertake when preparing a recommendation for the juvenile court. If the probation officer makes a recommendation on placement, programs, or services that would be payable by DCS under Indiana Code section 31-40-1-2, the probation officer must allow DCS time to review and either concur with the recommendations in the predispositional report or offer an alternative proposal to the recommendations. The department then shall either concur with the predispositional report from the probation officer or communicate with the probation officer an alternative proposal regarding programs and services. None of the language of Indiana Code section 31-37-17-1.4 usurps the power of the judiciary or promotes interference by one branch of government with another branch of government. Indiana Code section 31-37-17-1.4 describes tasks and duties of DCS and the probation officers in preparing various proposals and recommendations in a predispositional report. The statute is silent on the ultimate decision as to placement. Ultimately, the juvenile court judge makes the final decision either agreeing or disagreeing with recommendations found in the predispositional report. In sum, Indiana Code section 31-37-17-1.4 does not usurp the power of the juvenile court judge to ultimately make the decisions in his or her courtroom. Indiana Code section 31-40-1-2(f) does not violate the separation of powers provision of Article 3, Section 1 of the Indiana Constitution. The statute in question states, The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director's designee. Ind.Code § 31-40-1-2(f). This provision does not prevent the juvenile court from placing a child outside the state of Indiana. First and foremost, the director of DCS or the director's designee could approve placement outside the state and thus be responsible for the payment. In the alternative, a juvenile court judge could pay for the placement from the county's funds or could order the parents or guardians of the child to pay for the placement outside Indiana. Ultimately, we conclude that these statutes do not violate the separation of powers provision of the Indiana Constitution. The juvenile court judge still has and shall continue to have the final authority in making decisions for the juveniles.
+Having determined that the laws as applied are constitutional, we turn to the placement decision by the juvenile court and action by DCS in overruling that placement decision. In 2008, the General Assembly specified in Indiana Code section 31-40-1-2(f) that DCS was not responsible for the cost of out-of-state placements or services unless the juvenile court made certain written findings based on clear and convincing evidence that there was not a comparable facility with adequate services in Indiana or that the placement was within fifty miles of the child's residence. As discussed above, the 2009 amendment to Indiana Code section 31-40-1-2(f) changed this specification to provide that DCS is not responsible for the cost of out-of-state placement or services unless the placement is recommended or approved by DCS's Director or the Director's designee. The 2009 amendment to section 31-40-1-2(f) applies only to out-of-state placements. DCS argues that the 2009 amendment gives it absolute control over when the State will pay for out-of-state placements; that is, the Director's decisions are not subject to the expedited appellate review procedures implemented by Appellate Rule 14.1. We agree with DCS that the effect of the 2009 amendment is to remove from the expedited appellate review procedures adopted in 2008 those out-of-state placements and services that the DCS Director does not recommend or approve. The language of those provisions authorizes appeals from court decisions with which DCS does not concur. It would not be logical to apply those provisions to decisions made, not by the court, but by DCS itself. For similar reasons, we think that a disapproving decision by the DCS Director cannot be overruled by the juvenile court at which it is directed. But we cannot agree that the new provision is immune from any judicial review whatsoever. It is well established that Article 7 section 4 of the Indiana Constitution confers plenary appellate jurisdiction on this Court. Troue v. Marker, 253 Ind. 284, 288, 252 N.E.2d 800, 803 (1969). (The action of this Court is based upon its inherent constitutional duty to act as the final and ultimate authority in stating what the law in this state is.); cf. Durousseau v. United States, 10 U.S. 307, 6 Cranch 307, 314, 3 L.Ed. 232 (1810) (opinion for the Court by Marshall, C.J.) (Finding that the appellate powers of this court are not created by statute but are given by the constitution). Given that the General Assembly apparently intended that the DCS Director have the authority to override the determination of a juvenile court with respect to the costs of out-of-state placements and services, what standard of appellate review is appropriate? Without the legislature providing any procedural machinery for an appeal or review, Warren v. Indiana Telephone Co., 217 Ind. 93, 108, 26 N.E.2d 399, 405 (1940), how should we proceed to assure that our review of the DCS Director's decision here is guided by principled and clear standards? After all, [u]niformity in the interpretation and application of the law is the keystone of our system of jurisprudence. Id. One possible approach would be to follow the methodology adopted for appellate review under Appellate Rule 14.1. We begin with a CHINS action, In re T.S., 906 N.E.2d 801 (Ind.2009), to examine this present issue. T.S. was our first foray into Indiana Appellate Rule 14.1 and the review of juvenile court decisions about placement recommendations made by DCS. DCS requested the child T.S. be reunited with his parents, but the juvenile court decided it would be contrary to T.S.'s best interests to follow the DCS recommendation, and T.S. remained in foster care until the end of the school year. Id. at 802. DCS appealed that decision pursuant to Appellate Rule 14.1. Id. DCS challenged the court's placement order, contending that its recommendations had been neither unreasonable based on the facts and circumstances of the case, nor contrary to the welfare or best interests of the child. Id. T.S. considered the proper standard of review of an expedited appeal, and found that it was specifically delineated by Indiana Code section 31-34-19-6.1(d): The juvenile court shall accept each final recommendation of [DCS] ... unless the juvenile court finds that a recommendation is: (1) unreasonable, based on the facts and circumstances of the case; or (2) contrary to the welfare and best interests of the child. T.S. at 803. Indiana Code section 31-34-19-6.1(d) and the statute covering delinquency cases, Indiana Code section 31-37-18-9(b), are similar. Pursuant to Indiana Code section 31-37-18-9(b), if the juvenile court does not follow the department's recommendations, the juvenile court shall accompany the court's dispositional decree with written findings that the department's recommendations contained in the predispositional report are: (1) unreasonable, based on the facts and circumstances of the case; or (2) contrary to the welfare and best interests of the child. The standard in both delinquency and CHINS cases is the same. Ind.Code § 31-37-18-9(b). As stated in T.S., the statute creates a presumption of correctness for DCS, meaning any contrary disposition by the juvenile court must be supported by a preponderance of the evidence. In re T.S., 906 N.E.2d at 804. After the juvenile court has considered the DCS recommendations and reached a contrary conclusion, Indiana Trial Rule 52 governs: the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Id. (citing Ind. T.R. 52(A)). Although we continue to adhere to this standard of review for appeals brought under Appellate Rule 14.1, we believe it gives insufficient deference to disapproving decisions made by the DCS Director under Indiana Code section 31-40-1-2(f). The 2009 amendment gave the DCS Director the authority to override juvenile court determinations that previously were required to be based on clear and convincing evidence. It would be contrary to legislative intent, we believe, for an appellate court to overturn a DCS Director's disapproving decision based only on a conclusion that the juvenile court's determination was not clearly erroneous. Rather than review a DCS Director's disapproving decision using the clearly erroneous standard of Appellate Rule 14.1, we believe the appropriate standard is provided by Indiana's Administrative Orders and Procedures Act (AOPA), Indiana Code section 4-25.1. While we recognize that the General Assembly has not directed that disapproving decisions made by the DCS Director under Indiana Code section 31-40-1-2(f) are subject to AOPA, AOPA does in fact provide that [t]his article creates minimum procedural rights and imposes minimum procedural duties. Ind.Code § 4-21.5-2-1 (1986). This article applies to an agency, except to the extent that a statute clearly and specifically provides otherwise. Id. § 4-21.5-2-3. None of the questioned statutes provide that DCS is not subject to judicial review under the Indiana Administrative Orders and Procedures Act. We note that Indiana Code section 4-21.5-2-6 states, This article does not apply to the formulation, issuance, or administrative review (but does apply to the judicial review and civil enforcement) of any of the following: (1) except as provided in I.C. 12-17.2-4-18.7 and I.C. 12-17.2-5-18.7, determinations by the division of family resources and the department of child services. Ind.Code § 4-21.5-2-6. The statute states clearly that the article applies to judicial review of DCS determinations. This is consistent with our common law. The director's designee had the discretion to approve the out-of-state placement. Ind.Code § 31-40-1-2(f). We do not believe it is necessary to hold that disapproving decisions made by the DCS Director under Indiana Code section 31-40-1-2(f) are subject to AOPA. It is enough that we will apply its standards in appellate review of those decisions. AOPA specifies five instances under which judicial relief should be granted due to prejudice by an agency action: if the agency action is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Ind. Code 4-21.5-5-14(d) (2009); see also Ripley County Bd. Zoning Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198, 203 (Ind. Ct.App.1996), trans. denied. An arbitrary and capricious decision is one which is patently unreasonable and is made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion. City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind.Ct.App.1998). In reviewing the actions of DCS in making placement recommendations that are not in agreement with the trial court, we will review the DCS action to determine if it was in conformity with Indiana Code section 4-21.5-5-14. This Court has previously held that the judicial branch of government may only interfere with acts of the administrative branch whenever a judicial question is involved, as in arbitrary or capricious action by an administrative body. Pub. Serv. Comm'n v. Ind. Bell Tel. Co., 232 Ind. 332, 347, 112 N.E.2d 751, 753 (1953). As this Court held as early as 1935, an arbitrary or capricious decision by an administrative body would call for judicial action, even if there is no statute authorizing an appeal. Peden v. Bd. of Review of Cass County, 208 Ind. 215, 224, 195 N.E. 87, 90 (1935). Justice Shake wrote on these issues in this Court's decision in Warren v. Ind. Telephone Co., 217 Ind. 93, 26 N.E.2d 399 (1940), a workmen's compensation action that brought to light questions of when the judiciary continues to have control over an administrative agency. His words then are still relevant today, The matters presented challenge us to consider some very serious and important questions, among which may be mentioned, the place of the Supreme Court in the judicial system of the state; the power of the General Assembly with respect to administrative agencies. ... Warren, 217 Ind. 93, 100-101, 26 N.E.2d 399, 402 (1940). This Court wrote that an administrative agency is properly vested with power to determine facts and exercise their power under due process of law. Id. at 104, 26 N.E.2d at 404. It is not necessary to the exercise of due process that the facts be determined by a court, so long as there is provided or exists an opportunity for a judicial review. Id. The words of this Court then are prescient now: [O]rders of an administrative body are subject to judicial review and ... they must be so to meet the requirements of due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers; that substantial evidence supports the factual conclusions; and that its determination comports with the law applicable to the facts found. Id. at 105, 26 N.E.2d at 404. If, however, it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis; or that the result of the hearing must have been substantially influenced by improper considerations, the order will be set aside, not because incompetent evidence was admitted, but rather because the proof, taken as a whole, does not support the conclusion reached. Id. at 118, 26 N.E.2d at 409. We also find an apt analogy with the case of State ex rel. Smitherman v. Davis, 238 Ind. 563, 151 N.E.2d 495 (1958). In this action, the Superintendent of Schools twice denied the request for children to transfer schools to a different school in the district. Id. at 566, 151 N.E.2d at 496. Transfer of pupils was discretionary with the school officials. Id. at 568, 151 N.E.2d at 497. This Court found that the refusal to grant transfer to pupils, although discretionary, was still subject to judicial review. Id. at 569, 151 N.E.2d at 497. This Court cited Warren, supra , that it is well settled law that a decision of an administrative officer is not final in Indiana. Id. at 569, 151 N.E.2d at 497. This Court held that the law is well settled that all discretionary acts of public officials, which directly and substantially affect the lives and property of the public, are subject to judicial review where the action of such official is ... arbitrary or capricious ... Id. at 569, 151 N.E.2d at 498. The power that is vested in the public officer in making discretionary determinations is not for his benefit, but for the benefit of the public. Id. at 570, 151 N.E.2d at 498. Similar to the Superintendent in Smitherman, the actions of the DCS director or his agent in recommending or approving the probation department's recommendation for placement is discretionary. The word discretionary is defined by Black's Law Dictionary as (of an act or duty) involving an exercise of judgment and choice, not an implementation of a hard-and-fast rule. Black's Law Dictionary, 534 (9th ed.2009). We find the statutes relating to juvenile delinquency placement void of any hard-and-fast rule that does not allow for out-of-state placement. Furthermore, as in Smitherman, we hold that the power of recommending or approving the probation department's recommendation for placement shall be done not for the benefit of DCS, but for the benefit of the child. Such recommendation shall be subject to judicial review where the recommendation of DCS is arbitrary or capricious. Under Indiana Code section 31-40-1-2(a), DCS pays the cost of any child services provided by or through the department for any child or the child's parent, guardian, or custodian. In this case, the DCS Director did not approve the placement, triggering subsection (f)'s provision that [t]he department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director's designee. Ind.Code § 31-40-1-2(f). Despite the fact that DCS did not recommend or approve the out-of-state ROP facility, the juvenile court ordered, The St. Joseph County Department of Child Services, as administrator of the Family and Children's Fund, shall pay for said placement. In reaching this conclusion, the juvenile court followed protocol under Indiana Code section 31-37-18-9 in making findings that the recommendation in the predispositional report was (1) unreasonable, based on the facts and circumstances of the case; or (2) contrary to the welfare and best interests of the child. Ind.Code § 31-37-18-9. In making those findings, the juvenile court found that the per diem charge for ROP is $171.70, with a warranty period of one-third of the placement provided and aftercare provided at no additional cost. The court found that the next closest program in price was Christian Haven at $190.55, with warranty determined on a case-by-case basis and no aftercare provided. Other programs cost $196.50 per diem, $199 per diem, and $361 per diem. None of the other programs guarantee a warranty period, nor include aftercare. An aftercare program and a warranty period would logically seem to be in the best interest of the child. The juvenile court further made findings that the child, the child's parent, the child's custodian, the child's probation officer, and the child's attorney all agreed with placement at ROP was in the best interest of the child. The juvenile court found that ROP offered a high quality of treatment, which matched the needs of the child, had a residential treatment program for males with conduct disorders, and had a success rate of 88% in 2008 and a 79% success rate over the past 5 years, better than the success rate of the DCS recommended placements. Thus, the trial court found the out of state placement was superior to the in state options for the reasons stated in the record. In this particular fact scenario, the agency action in denying out of state placement was arbitrary and capricious. The placement at ROP is more cost effective than any placement option in Indiana, and ROP was offering a scholarship to help defray the costs. The per diem for ROP is $171.70, while placement at Christian Haven is $190.55, Midwest is $189.30, White's is either $162.50 or $196.50 depending on the type of placement, and the cost of YOC is $199.00. Furthermore, the per diem of ROP included costs of transition out of the restrictive placement and costs of aftercare services, while none of the other placements either provided or could guarantee those same services would be provided. The only rationale for DCS opposing the recommendations appears to be based on the decision to keep A.B. in Indiana. While a significant factor, this was not deemed critical to the plan for A.B. by the juvenile probation officers. Instead, the juvenile probation officer believed placement out of state would help A.B. as he had absconded from previous placements in Indiana and independent living was the likely best outcome for A.B. now that he was approaching 18 years of age. Furthermore, for the members of A.B.'s family who want to maintain a relationship with A.B., ROP offers video conferencing and even airplane flights and hotel rooms for family to visit ROP. ROP also allows for A.B. to learn vocational skills, complete his education, learn independent living skills, and transition to obtaining employment, and explore secondary education opportunities. From our review of the record, ROP could provide for all of these needs of A.B. better than the other recommendations. The probation department reported that the child was not going to return to his mother and that he would take independent living classes. In making its recommendation, the probation department noted that although A.B.'s custodian had participated in his treatment, A.B.'s mother had not been participating. A.B. was an older teenager whose future plan included independent living, not reunification. In fact, it was arguably better for A.B. to get out of his home surroundings, which resulted in him fleeing previous placements. The crux of the matter is the final phrase of Indiana Code section 31-40-1-2(f), if the placement is not recommended or approved by the director of the department or the director's designee. This recommendation or approval is subject to appellate review, as discussed previously. DCS's refusal to approve the ROP placement was unreasonable and contrary to the evidence in this case that would have lead the reasonable person to determine ROP was the best placement for A.B. It appears as if the overriding factor—perhaps the only factor considered by DCS in not approving ROP as a placement—was that it was in Arizona and not in Indiana. When combined with the fact that ROP is less expensive than the Indiana options, the child and family's willingness to go to ROP, and the fact that the plan is for independent living, the refusal to approve of ROP is arbitrary and capricious. DCS cannot be the final arbitrator of all placement decisions. Because we conclude that DCS's failure to approve ROP was arbitrary and capricious, we agree with the trial court's determination that DCS is responsible for the payment. DCS should have concurred with the decision to place A.B. at ROP. If DCS approved placement at ROP, they would have been responsible for payment. Ind.Code § 31-40-1-2(f). Because its decision to not approve ROP was arbitrary and capricious it is responsible for payment.",jurisdiction
+510,2364385,1,1,"¶ 1 At the age of sixteen, Appellant, Ricky Angilau, was charged as an adult in the district court with several crimes, including murder. Immediately following his arrest, Mr. Angilau was detained in a juvenile detention facility. After three months in the juvenile facility, he was transferred to an adult detention center where he has remained awaiting trial. In this appeal, Mr. Angilau argues that incarcerating him as a child in the adult detention center violated both the Utah Code and the state and federal constitutions. ¶ 2 Following oral argument in this case, but before this opinion was issued, the Utah Legislature amended relevant statutes regarding the pretrial incarceration of children in adult facilities. [1] Additionally, since oral argument Mr. Angilau has turned eighteen years of age and has become an adult under Utah law. ¶ 3 As a result of these changes, Mr. Winder contends that all of the issues raised by Mr. Angilau in this appeal are moot. In contrast, Mr. Angilau argues that his claims are not moot and that resolution of the issues he has raised may still affect his rights. He also argues, in the alternative, that even if some of his claims are moot, we should determine whether his incarceration violated the Utah Code or the unnecessary rigor clause of the Utah Constitution under the public interest exception to the mootness doctrine. ¶ 4 First, we hold that all of the issues presented by Mr. Angilau are moot because even if we were to resolve the issues he has raised in his favor, we could not grant the relief he has requested. Second, we decline to address his statutory and unnecessary rigor claims under the public interest exception to the mootness doctrine, because we hold that the statutory claims are unlikely to recur and that the unnecessary rigor claim is inadequately briefed.",introduction
+511,1144435,1,2,"`We review this case de novo, applying the oft-stated principles governing appellate review of a trial court's grant or denial of a summary judgment motion: `We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. `Substantial evidence' is `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.'  American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)). General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala.2002).
+Bockman and WCH agree that under § 6-5-253(a), Ala.Code 1975, the debt owed under the note and secured by the first mortgage on the property was a lawful charge to be applied to the redemption cost. However, Bockman argues that the trial court erred in entering a summary judgment for WCH on the issue whether the amount due under the note included interest upon unpaid interest. A promissory note is a form of contract; therefore, it must be construed under general contract principles. See 11 Am. Jur. 2d Bills and Notes § 2 (1997) (Bills and notes . . . are contracts; accordingly, the fundamental rules governing contract law are applicable to the determination of the legal questions which arise over such instruments. (footnotes omitted)); William D. Hawkland and Lary Lawrence, UCC Series § 3-119, Official Comment (1994) (As between the immediate parties a negotiable instrument is merely a contract. . . .). `General contract law requires a court to enforce an unambiguous, lawful contract, as it is written. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So.2d 928, 931 (Ala.1985). See also McDonald v. U.S. Die Casting and Development Co., 541 So.2d 1064 (Ala.1989).' Dawkins v. Walker, 794 So.2d 333, 339 (Ala.2001) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 35-36 (Ala.1998)). In support of its motion for a summary judgment, WCH argued that the note in this case expressly provided for charging interest upon unpaid interest. The note stated: Each payment shall be applied first to the payment of acrued [sic] interest and the balance as a credit on the principal. Said principal and interest . . . shall bear interest from maturity at said rate until paid.  (Emphasis added.) The express terms of the note provide that accrued interest and matured principal would bear interest at 10 percent until paid. Because the note expressly provided for the payment of interest upon unpaid interest, WCH met its burden of presenting substantial evidence indicating that the amount due under the note included interest upon unpaid interest. Bockman, however, argues that the trial court's judgment was not supported by the evidence. Bockman contends that the mortgagees could not have intended that interest upon unpaid interest be applied to the debt owed on the note because, he says, Hartley and the mortgagees agreed in the 1997 agreement that the amount actually due under the note and first mortgage was $750,000. Bockman further argues that, if the mortgagees had been charging interest upon unpaid interest, the amount due on the note at the time the 1997 agreement was executed would have been $1,033,000. Lastly, Bockman argues that the affidavits of the mortgagees make it clear that the original parties to the 1989 note and mortgage did not charge interest on unpaid interest. Contrary to Bockman's assertions, the affidavits of the mortgagees do not make it clear that the note did not provide for interest upon unpaid interest. Rather, the mortgagees testified that in 1997 they entered into an agreement with Hartley to amend the terms of the note and the first mortgage by establishing and fixing the outstanding balance due under the Note at $750,000. The 1997 agreement was the result of a compromise between Hartley and the mortgagees in anticipation of full payment. The evidence indicates that the 1997 agreement was an amendment and that the $750,000 figure did not reflect the actual amount owed under the original terms of the note. Bockman insisted to the trial court, and both parties conceded, that the 1997 agreement was not to be considered in determining the redemption amount. Further, the express terms of the note stipulated that the debtor, Hartley, promised to pay interest upon unpaid interest. Bockman failed to present sufficient evidence to overcome WCH's motion for a summary judgment on the issue whether the note provided for charging interest upon unpaid interest. Bockman also argues that there is no common law or statutory authority for charging interest upon unpaid interest on the debt owed on the note. Bockman argues that under this Court's holding in Burgess Mining & Construction Corp. v. Lees, 440 So.2d 321, 338 (Ala.1983), the interest applied should have been simple interest and nothing more. However, the facts of Burgess are distinguishable from the facts of this case. In Burgess, there was no written contract between the parties setting out the controlling interest rate. Burgess, 440 So.2d at 338 (Consequently, the Court holds that where, as in this case, no written contract controls the interest rate, thereby precluding the 8% rate of [§] 8-8-1, the legal rate of prejudgment interest is 6% per annum.). In contrast, in this case, the language of the note expressly states that interest upon unpaid interest would be charged to the debt owed under the note. Further, our common law provides authority for charging interest upon unpaid interest. In Smith v. Penn Mutual Life Insurance Co., 244 Ala. 610, 614, 14 So.2d 690, 694 (1943), this Court addressed whether it was permissible for parties to a loan to expressly agree to compute the amount due by charging interest upon unpaid interest. This Court held: While there is considerable diversity of opinion on the subject, the rule of our decisions is that an express agreement to pay interest on interest, especially when such agreement is made after the maturity of the original principal, is not unlawful unless the interest so computed exceeds the legal rate for the time, and impinges the statute against usury. 244 Ala. at 614, 14 So.2d at 694. Bockman even concedes that [t]he only way that [WCH's] calculations could possibly be correct is if there is express language in the agreement between Hartley Silica and the Mortgagees to allow for interest on unpaid interest. Further, Bockman has not cited any authority stating that a mortgagee cannot charge interest upon unpaid interest. We hold that the trial court did not err in entering a summary judgment for WCH on the issue whether interest upon unpaid interest was to be applied to the debt owed on the note.
+WCH argues that, under the plain meaning of § 6-5-253(a)(4), the trial court erred in excluding the unpaid balance, plus accrued interest, of the fifth mortgage from the costs of redemption. We disagree. `In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.' Ex parte Shelby County Health Care Auth., 850 So.2d 332, 337 (Ala.2002) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998)). The plain language of § 6-5-253(a)(4) states: (a) Anyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments . . . and all other lawful charges, also with interest as aforesaid; lawful charges are the following: . . . . (4) Any other valid lien or encumbrance paid or owned by such purchaser or his or her transferee or if the redeeming party is a judgment creditor or junior mortgagee or any transferee thereof, then all recorded judgments, recorded mortgages and recorded liens having a higher priority in existence at the time of the sale . . . .  Ala.Code 1975, § 6-5-253 (emphasis added). WCH contends that the § 6-5-253(a)(4) unambiguously states that the redemption costs include [a]ny other valid lien or encumbrance paid or owned by such purchaser; therefore, WCH argues, the unpaid balance of the fifth mortgage should be included in the redemption costs under § 6-5-253(a)(4). However, because Bockman is a junior mortgagee, the second portion of subsection (a)(4) applies. The statute clearly provides that the lawful charges of a junior mortgagee include recorded mortgages having a higher priority. Because the fifth mortgage is lower in priority than Bockman's second mortgage, it should not be included in the costs of redemption under § 6-5-253(a)(4). Therefore, the trial court did not err in entering a summary judgment for Bockman on the issue whether the unpaid debt on the fifth mortgage should be excluded from the redemption amount.",standard of review
+512,4524233,1,1,"In 2004, Hessler was convicted by a jury of first degree murder, kidnapping, first degree sexual assault, and use of a firearm to commit a felony. He was sentenced to death on the murder conviction. He unsuccessfully challenged his convictions and sentences on direct appeal 4 and in two prior postconviction proceedings. 5 On January 12, 2016, the U.S. Supreme Court decided Hurst. 6 Hurst found that Florida’s capital sentencing scheme was unconstitutional, because it required the trial court alone to find both that sufficient aggravating circumstances existed to justify imposition of the death penalty and that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. Roughly 10 months after Hurst was decided, Hessler filed this successive motion for postconviction relief. The motion asserts: Jurisdiction is proper in this Court as the decision in Hurst v. Florida . . . was issued by the United States Supreme Court on January 12, 2016 and . . . Hessler is asserting that Hurst is applicable in his case and therefore has one year from the date of that decision to file this motion pursuant to . . . § 29-3001 . . . . 2 State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018). 3 Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). 4 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). 5 State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011); State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014). 6 Hurst, supra note 1. - 453 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. HESSLER Cite as 305 Neb. 451 Hessler’s motion relies on Hurst and alleges that Nebraska’s capital sentencing statutes 7 violate the 6th, 8th, and 14th Amendments. It specifically alleges the Sixth amendment is violated because the Nebraska statutes allow a panel of judges, and not a jury, to “make factual findings in imposing a death sentence.” The motion further alleges “to the extent that Nebraska’s death-penalty statutes do not require a unanimous recommendation from a jury regarding whether a sentence of death should be imposed, [the statutes] violate[] the 8th and 14th Amendments.” Identical 6th, 8th, and 14th Amendment claims based on Hurst were raised in a successive motion for postconviction relief in Lotter, 8 and we rejected them in an opinion released September 28, 2018. We reasoned that the Nebraska Postconviction Act contains a 1-year limitations period for filing a verified motion for postconviction relief, which runs from one of four triggering events or from August 27, 2011, whichever is later. 9 The triggering events under § 29-3001(4) are: (a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal; (b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence; (c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action; (d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the 7 See Neb. Rev. Stat. §§ 29-2521 to 29-2522 (Cum. Supp. 2018). 8 Lotter, supra note 2. 9 § 29-3001(4). - 454 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. HESSLER Cite as 305 Neb. 451 newly recognized right has been made applicable retroactively to cases on postconviction collateral review[.] Like Hessler’s postconviction claims, the claims alleged in Lotter regarding the 6th, 8th, and 14th Amendments were all based on Hurst, and the defendant in Lotter relied on the triggering event in § 29-3001(4)(d) to contend the claims were timely. We rejected this contention. We held in Lotter that Hurst could not trigger the 1-year statute of limitations under § 29-3001(4)(d), because Hurst did not announce a new rule of law and merely applied the constitutional rule from the 2002 case of Ring v. Arizona. 10 Lotter also held that the “plain language of Hurst reveals no holding that a jury must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating circumstances.” 11 Finally, Lotter reasoned that even if Hurst announced a new rule of law, it would not apply retroactively to cases on collateral review, because it was based on Ring and the U.S. Supreme Court has held that Ring announced a procedural rule that does not apply retroactively. 12 Having concluded in Lotter that Hurst did not announce a new rule of law, we rejected the defendant’s contention that Hurst could trigger the 1-year statute of limitations under § 29-3001(4)(d), and we found the defendant’s postconviction claims were time barred. 13 The defendant’s petition for a writ of certiorari was denied by the U.S. Supreme Court on June 17, 2019. 14 Citing to our analysis and holding in Lotter, the district court here found that Hessler’s motion was time barred, and it dismissed the motion without an evidentiary hearing. Hessler timely appealed. 10 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). 11 Lotter, supra note 2, 301 Neb. at 144, 917 N.W.2d at 864. 12 Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). 13 Accord State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019). 14 Lotter v. Nebraska, ___ U.S. ___, 139 S. Ct. 2716, 204 L. Ed. 2d 1114 (2019). - 455 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. HESSLER Cite as 305 Neb. 451 ASSIGNMENT OF ERROR Hessler assigns, restated, that the district court erred in denying his postconviction motion without an evidentiary hearing, because Nebraska’s capital sentencing scheme violates Hurst and the 6th, 8th, and 14th Amendments to the U.S. Constitution.",facts
+513,889274,1,4,"¶ 50 Did Ankeny's trial counsel provide effective assistance? ¶ 51 Ankeny contends that his trial counsel provided ineffective assistance because counsel failed to object to the admission of hearsay statements allegedly made by Carter to Nisbet; the admission of the 9-1-1 tapes made by Nisbet; and the prosecutor's numerous references to her belief in Ankeny's guilt. ¶ 52 Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. State v. Gunderson, 2010 MT 166. ¶ 66, 357 Mont. 142, 237 P.3d 74 (citing State v. Crosley, 2009 MT 126, ¶ 27, 350 Mont. 223, 206 P.3d 932, overruled in part by Robinson v. State, 2010 MT 108, 356 Mont. 282, 232 P.3d 403; State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, 70 P.3d 738). Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee an individual the right to the effective assistance of counsel in all criminal prosecutions. When this Court reviews claims of ineffective assistance of counsel, we employ the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gunderson, ¶ 67 (citing Crosley, ¶ 54; State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095). This test requires that the defendant establish (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. Gunderson, ¶ 67. ¶ 53 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy both parts of the Strickland test. Gunderson, ¶ 68 (citing Whitlow v. State, 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861; Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601). Consequently, if a defendant makes an insufficient showing regarding one part of the test, there is no need to address the other part. Gunderson, ¶ 68. ¶ 54 As to the first part of the test, Strickland provides that a reviewing court `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and the defendant `must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). And, as to the second part of the test, we have stated that [a] reasonable probability is a probability sufficient to undermine confidence in the outcome. Crosley, ¶ 55 (quoting State v. Harris, 2001 MT 231, ¶ 19, 306 Mont. 525, 36 P.3d 372, overruled in part by Robinson v. State, 2010 MT 108, 356 Mont. 282, 232 P.3d 403). ¶ 55 Before this Court may reach the merits of an ineffective assistance of counsel claim on direct appeal, we must determine whether the allegations are properly before us. Gunderson, ¶ 70 (citing Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, 973 P.2d 233). If the claims of ineffective assistance of counsel are based on facts of record, they must be raised on direct appeal. But, if the claims cannot be documented from the record, then they must be raised in a petition for postconviction relief. Gunderson, ¶ 70. ¶ 56 We stated in Gunderson that [t]he test to determine if an ineffective assistance claim is properly brought on direct appeal is whether the record contains the answer to `why' counsel took, or failed to take, action in providing a defense. State v. Upshaw, 2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d 579 (citing State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340). If the record on appeal explains why, we will then address the issue on appeal. If, however, the claim is based on matters outside the record on appeal, we may refuse to address the issue on appeal and allow the defendant to file a postconviction proceeding where the defendant can develop a record as to why counsel acted as alleged, thus allowing the court to determine whether counsel's performance was ineffective or merely a tactical decision. Kougl, ¶ 14 (We also pointed out in Kougl that it is sometimes unnecessary to ask why in the first instance as when counsel is faced with an obligatory, and therefore non-tactical, action. The question then is not why but whether counsel acted, and if so, if counsel acted adequately.). Gunderson, ¶ 71. ¶ 57 In the case sub judice, Ankeny complained that his trial counsel failed to object to the admission of hearsay statements allegedly made by Carter to Nisbet; the admission of the 9-1-1 tapes made by Nisbet; and the prosecutor's numerous references to her belief in Ankeny's guilt. Because such claims involve omissions, they are frequently ill-suited for direct appeal. Gunderson, ¶ 77 (citing State v. Taylor, 2010 MT 94, ¶ 21, 356 Mont. 167, 231 P.3d 79). ¶ 58 As to the admission of the hearsay statements allegedly made by Carter to Nisbet, there is a record-based explanation for why counsel did not object. And, as the State points out in its brief on appeal, that record-based explanation actually shows proficient performance by defense counsel rather than deficient performance. After a discussion with the judge on the record, defense counsel conceded that this was not hearsay because it was a prior inconsistent statement. [1] Ankeny now concedes this point in his reply brief on appeal. ¶ 59 As to Ankeny's other claims of ineffective assistance of counsel regarding counsel's failure to object to the admission of the 9-1-1 tapes made by Nisbet and the prosecutor's numerous references to her belief in Ankeny's guilt, the record in this case contains no information on whether counsel's failure to object was reasonable under the circumstances or due to deficient performance. Accordingly, we hold that these claims are best suited for review in a postconviction proceeding and we dismiss these claims without prejudice.",issues
+514,1133642,1,1,Under the current rules of procedure there is no established method for death-sentenced defendants to challenge interlocutory discovery orders issued during rule 3.850 proceedings. We are nevertheless convinced that an expedited appeal with necessary record attachments to challenge interlocutory discovery orders issued during rule 3.850 hearings is necessary to prevent the disclosure of information that would irreparably harm a defendant and render appellate review inadequate. A pleading that falls within this Court's existing jurisdiction is therefore needed to address this inequity in capital collateral litigation.,jurisdiction
+515,2080649,1,1,"Defendant and the victim were next-door neighbors in the same apartment building in the Bronx for nearly 40 years, virtually their entire lives. Their families were close until 1994 or 1995, when a dispute — with ultimately tragic consequences — arose over cable and telephone wiring. The victim and his family believed that defendant was siphoning off their services, even after the service providers found that the suspicion was without basis. In 1997, following a heated verbal exchange, the victim stabbed defendant in the back, hospitalizing him for two days. Although the families remained next-door neighbors, separated only by a common wall, from 1997 to 1999 the victim repeatedly threatened to shoot, stab or otherwise injure defendant. He made these threats to defendant's face, to his father and to neighbors — at one point even brandishing a boxcutter. On December 21, 1999, defendant and the victim argued through the shared bedroom wall between their apartments. Using a metal pipe, defendant knocked an indentation into his side of the wall. The victim then left his apartment to go downstairs and open the building's front door for the police, who responded to the 911 call his mother had made about defendant. Defendant, inside his apartment, walked to his front door several times, opening it and looking into the public hall until he saw the victim there with a friend. Still holding the metal pipe he had earlier used to hit the wall, defendant (while remaining in his doorway) then engaged in an angry argument with the victim. [1] According to defendant's trial testimony, he continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant's face nose to nose, and said he was going to kill him. Believing he was about to be stabbed again, defendant struck the victim on his head with the metal pipe, killing him. As defendant requested, the trial court instructed the jury as to the Penal Law § 35.15 defense of justification, including that a person may nevertheless not use defensive deadly physical force if he knows he can with complete safety to himself avoid such use of deadly physical force by retreating. Immediately after this instruction, defendant asked the court to charge the jury that if a defendant is in his home and close proximity of a threshold of his home there is no duty to retreat. The trial court denied the request, ruling [defendant] said he was at the doorway and I don't consider that being inside his home . . . . The jury acquitted defendant of murder but convicted him of manslaughter in the first degree, and he was sentenced to a determinate term of 16 years. The Appellate Division affirmed, as do we.",facts
+516,2690773,1,2,"{¶ 8} We confront an appeal from an order of the BTA in which the BTA found that it lacked jurisdiction to grant the requested relief. Jaeger argues that the continuing-complaint provision of R.C. 5715.19(D) conferred jurisdiction on the BTA, but we disagree. Because the BTA lacked jurisdiction, we affirm. A. Jaeger contends that R.C. 5715.19(D) required the BTA to order a carryover of the stipulated value to later years {¶ 9} Jaeger predicates both the jurisdiction of the BTA and its substantive argument on R.C. 5715.19(D) and on the case law that applies it. First, Jaeger cites R.C. 5715.19(D)’s carryover mandate: “Liability for taxes and recoupment charges for such [i.e., the current tax] year and each succeeding year until the complaint is finally determined    shall be based upon the determination, valuation, or assessment as finally determined.” (Emphasis added.) Jaeger asserts that this carryover mandate requires that the stipulated value for 2008 be carried forward to tax years 2009, 2010, and 2011, because the tax-year-2008 case was pending until 2011, and also because those years are in the same sexennial period—i.e., 2012 is a reappraisal year in Cuyahoga County. {¶ 10} Second, Jaeger cites R.C. 5715.19(D) again for its continuingcomplaint provision, which provides that when a complaint has not been determined by the board of revision “within the time prescribed for such determination,” i.e., 90 days, see R.C. 5715.19(C), then the complaint and the connected proceedings shall be “continued by the board as a valid complaint for any ensuing year until such complaint is finally determined by the board or upon any appeal from a decision of the board,” thereby obviating the need for the complainant to file a fresh complaint for the later year. Jaeger relies on this provision to maintain that the appeal of the 2008 tax year to the BTA permitted the BTA to decide the value for tax years 2009, 2010, and 2011, given that the 3 SUPREME COURT OF OHIO 2008-tax-year complaint had not yet been finally determined and was still pending in those later years. {¶ 11} Finally, Jaeger cites case law applying the carry-forward and the continuing-complaint provision. In Oberlin Manor, Ltd. v. Lorain Cty. Bd. of Revision, 69 Ohio St.3d 1, 629 N.E.2d 1361 (1994), we held that the BTA acted unreasonably and unlawfully when it failed to order that the value it determined for the first year of an interim period should be carried forward to the remaining two years of that period. Oberlin Manor relied on Wolf v. Cuyahoga Cty. Bd. of Revision, 11 Ohio St.3d 205, 465 N.E.2d 50 (1984), in which we stated that “the original complaint [for tax year 1979] becomes a carry-over complaint until it is finally determined,” with the result that the BTA erred by failing to recognize that “tax years 1980 and 1981 were at issue before the BTA, along with tax year 1979.” Id. at 207. Although the property owner had asked the BTA for separate (and lower) valuations for 1980 and 1981 on the theory that R.C. 5715.19(D) created continuing-complaint jurisdiction, we held that under the circumstances, R.C. 5715.19(D) required the BTA to carry forward the value determined for 1979 to the other two years of the interim period. Because the BTA had done so, we affirmed. Id. at 208. {¶ 12} On the basis of Wolf and Oberlin Manor, Jaeger argues that it was unreasonable and unlawful for the BTA not to determine and carry forward the stipulated value for tax year 2008 to 2009, 2010, and 2011.1 But see AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. of Revision, 127 Ohio St.3d 44, 2010-Ohio4468, 936 N.E.2d 472 (carry-forward provision of R.C. 5715.19(D) must be harmonized with auditor’s statutory duties to amend property valuations); accord Oberlin Manor at 2 (BTA had a duty to order that the value be carried forward 1. In Cuyahoga County, 2009 was an update year that initiated a new triennium. 4 January Term, 2012 where there was no evidence of record that the property was changed in the last two years of the triennium). {¶ 13} The BTA did not reach Jaeger’s substantive argument, because it held that it lacked jurisdiction to do so. B. The BTA correctly concluded that it lacked jurisdiction to modify its decision after expiration of the 30-day appeal period 1. The BTA loses jurisdiction to vacate or modify its decision if the 30-day appeal period expires without the filing of an appeal {¶ 14} Unlike the situation in Wolf and Oberlin Manor, Jaeger is not presenting the issue of the BTA’s duties through an appeal from the BTA’s dispositional order, which in this case was the order issued on February 1, 2011.2 Instead, Jaeger asked the BTA to exercise jurisdiction long after the expiration of the appeal period from its February 1 decision. {¶ 15} Consistent with administrative-law principles generally, the BTA “has control over its decisions until the actual institution of an appeal or the expiration of the time for an appeal.” Natl. Tube Co. v. Ayres, 152 Ohio St. 255, 89 N.E.2d 129 (1949), paragraph one of the syllabus; see also MB West Chester, L.L.C. v. Butler Cty. Bd. of Revision, 126 Ohio St.3d 430, 2010-Ohio-3781, 934 N.E.2d 928, ¶ 18. Under this doctrine, the BTA loses jurisdiction to modify or vacate its decision if there is a timely appeal from that decision to a court pursuant to R.C. 5717.04 or if the appeal period expires without an appeal having been filed. Because Jaeger did not file its motion until July 2011, the BTA had no jurisdiction to take further substantive action in that case.3 2. In Oberlin Manor, the record on appeal reveals that within 30 days of entry of the original dispositional order, the taxpayer filed a notice of appeal from both the dispositional order and the BTA’s denial of a reconsideration motion. 3. Jaeger derives no benefit from our decision in MB West Chester, 126 Ohio St.3d 430, 2010Ohio-3781, 934 N.E.2d 928. Because the board of education in that case had been notified neither of the pendency of the BTA appeal nor of the BTA’s decision, we held that the BTA did have 5 SUPREME COURT OF OHIO {¶ 16} Against this straightforward reasoning, Jaeger contends that the “continuing complaint” provision of R.C. 5715.19(D) conferred jurisdiction on the BTA to take further action in spite of the usual administrative-law principles that impose closure on an administrative proceeding. We now address that contention. 2. After a BTA decision becomes final and unappealable, the continuingcomplaint provision operates at the board-of-revision level, not the BTA {¶ 17} As noted, R.C. 5715.19(D) provides that when the board of revision fails to decide a complaint within the 90-day time frame prescribed by R.C. 5715.19(C), “the complaint and any proceedings in relation thereto shall be continued by the board [of revision] as a valid complaint for any ensuing year until such complaint is finally determined by the board or upon any appeal from a decision of the board.” The statute makes clear that under those circumstances “the original complaint shall continue in effect without further filing.” {¶ 18} The plain language of the statute establishes that continuingcomplaint jurisdiction applies at the boards of revision—in its essence, the provision allows the auditor’s valuation for a later year to be challenged before the board of revision without the filing of a new complaint. Jaeger argues that the provision not only extends the jurisdiction of the boards of revision with respect to the original tax year’s complaint, but also supersedes the usual rule that the BTA’s jurisdiction in a case ends with the expiration of the period for appealing from its decision. We disagree. {¶ 19} To be sure, the continuing-complaint provision does imply an extension of the BTA’s own jurisdiction to later years, but only during the pendency of the original BTA appeal. Cases like those previously cited, Oberlin jurisdiction to entertain the board of education’s motion to vacate, even though the motion was filed after the ordinary expiration of the 30-day appeal period. Unlike MB West Chester, there is no issue of statutory notice in the present case. 6 January Term, 2012 Manor and Wolf, establish that once the board of revision’s disposition of the complaint for the original tax year is pending at the BTA, the BTA can (and in some cases must) exercise jurisdiction over the subsequent years during which the BTA case itself is still pending. {¶ 20} But the case law also establishes that after the BTA case has terminated, the taxpayer may invoke the continuing-complaint provision at the board of revision itself after the BTA has issued a final, dispositive order for the original tax year. That is precisely what happened with respect to tax year 2005 in AERC, 127 Ohio St.3d 44, 2010-Ohio-4468, 936 N.E.2d 472. The taxpayer’s complaint for tax year 2002 was resolved on appeal at the BTA in 2006, and the BTA adopted a value stipulated by the parties for tax year 2002. The auditor, who had reassessed the property for tax year 2005 based on a sexennial reappraisal, changed the 2005 value from the newly appraised value to the value stipulated for tax year 2002—an act that increased the value assigned for 2005. Because the March 31, 2006 deadline for challenging the valuation for tax year 2005 had passed, the taxpayer demanded that the BOR review the auditor’s carryforward as part of the continuation of the complaint for tax year 2002. The BOR did so, and when the case arrived at this court, we held that the board of revision did have jurisdiction to entertain AERC’s challenge under the continuingcomplaint provision. AERC, ¶ 10-14. {¶ 21} The situation with respect to tax year 2005 in AERC parallels the situation in the present case: the BTA has fully and finally decided the case for the original tax year and has not specifically addressed subsequent tax years.4 Just as in AERC, the board of revision in this case would (absent some other countervailing circumstance) be obliged to entertain Jaeger’s challenge for 2009, 4. To be sure, in AERC, the BTA’s order adopting the stipulated value did recite that the value should be carried forward “in accordance with law,” but as we stated in AERC, this statement did not constitute a mandate that the value be applied in any specific year. AERC, ¶ 15, fn. 2. 7 SUPREME COURT OF OHIO 2010, and 2011 as part of the continuing complaint for tax year 2008. Moreover, subject to the usual jurisdictional limits, Jaeger in this case (like the taxpayer in AERC) would have the right to appeal an adverse ruling by the board of revision to the BTA—not as part of the former BTA case, but as a brand-new BTA appeal. {¶ 22} No doubt the best practice in a continuing-complaint situation is for the complainant, whenever appropriate, to seek a BTA order that addresses the scope of carry-forward in the appeal that relates to setting the value for the original tax year. See Cleveland Mun. School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 105 Ohio St.3d 404, 2005-Ohio-2285, 827 N.E.2d 306, ¶ 24 (recommending that boards of revision and the BTA “specify the years covered by their orders”). But in the absence of such an action, AERC demonstrates that the continuing complaint furnishes the means of presenting the carry-forward issue to the boards of revision themselves. {¶ 23} Finally, Jaeger’s characterization of its motion as asking to cure a “technical defect” is unavailing. Jaeger asserts legal error in the BTA’s failure to address the later years in its decision, but it cites no authority that such a legal error constitutes a defect that is exempt from the usual jurisdictional limitations. {¶ 24} The foregoing discussion shows that the continuing-complaint provision does not expand the BTA’s jurisdiction beyond the usual limits prescribed by the jurisdictional statutes and administrative-law principles.",analysis
+517,901124,1,1,"[¶ 2.] On June 12, 2000, the State filed a three count complaint charging Cottrill with one count of procuring or promoting prostitution and two alternative counts of pimping. The following constitutes a chronology of other significant events pertinent to this appeal: June 13, 2000—Cottrill's first appearance on the complaint. July 13, 2000—Indictment filed. August 7, 2000—Cottrill is arraigned on the indictment. August 25, 2000—Service and filing of defense motion to suppress evidence. August 29, 2000—Motion hearing before Judge Fitzgerald. Trial date set for October 30 and 31, 2000. September 13, 2000—Order filed denying defense motion to suppress evidence. October 30 and 31, 2000—Due to a scheduling conflict, trial dates are rescheduled by court administrator for December 14 and 15, 2000. December 2000—Due to a trip taken by Judge Fitzgerald, December trial dates are rescheduled by court administrator for February 1 and 2, 2001. Prosecutor contacts defense counsel to discuss the 180 day rule. Defense counsel indicates his client will waive the rule. December 10, 2000-180 calendar days after Cottrill's June 13 first appearance. December 29, 2000-180 days after Cottrill's June 13 first appearance if nineteen days are excluded for the defense motion to suppress evidence. January 29 & 31, 2001—Discovery/status hearing begins on January 29 and is continued on January 31. On January 31, defense counsel indicates Cottrill has kidney stones and was in the emergency room earlier that day. Counsel expresses concern that Cottrill might vomit during the trial set to commence the next day. Judge Fitzgerald denies a continuance and indicates that the trial will proceed. After the hearing, Cottrill goes to her doctor's office where she is given medication and a referral to a urologist. The doctor also provides Cottrill with a written excuse from court the following day. Defense counsel takes the excuse to Judge Fitzgerald who postpones the February 1 and 2 trial dates at Cottrill's request. February 12, 2001—Status hearing. Cottrill is excused from appearing at the hearing because of illness. Judge Fitzgerald announces, [t]his case is going to start on March 7th and 8th. For reasons not clear in the record, the trial date is actually set for April 11 and 12, 2001. March 27, 2001—Judge Fitzgerald has eye surgery. April 2001—Because of Judge Fitzgerald's eye surgery, the court administrator reschedules the April trial dates for May 10 and 11, 2001. May 3, 2001—Status hearing. Extensive discussion of the 180 day rule. Judge Fitzgerald states he thought the 180 day rule was waived and mentions the case was set for trial and the defendant was medically unable to have a trial. Judge then states he had an eye operation on March 27 and is not up to having a jury trial on May 10 and 11. Again the judge indicates, I really thought the 180 days—I think it's still been waived anyway. Judge Fitzgerald also mentions the possibility of getting another judge, but indicates that he would not really like doing that. The judge expresses his preference to continue the case to a date in June that would be certain. At that point, Judge Fitzgerald asks if the State has any objection. The prosecutor replies that he has no objection and that, I believe the Court has set forth good cause for this delay at this point. The prosecutor then asks defense counsel if he has any objection and defense counsel replies, I relayed this to my client. Judge Fitzgerald asks Cottrill directly if she has any objection and she replies, No. No, I wasn't sure on the reason for the delay. I had—I was under the impression that it was because of reluctant witnesses in the beginning for the first two delays. Cottrill continues stating, [n]ow that I understand—I do understand. At that point, the judge mentions his mandate to get cases disposed of and again proposes a June trial date agreeable to everyone. Cottrill replies, Yes. Yes. Judge Fitzgerald mentions dates of June 13 and 14 and Cottrill states, I have problems with my witnesses. The judge then proposes June 27 and 28 and asks if that is agreeable. Cottrill answers, [t]hat's fine. Her counsel also adds, that's fine. May 4, 2001—Defense counsel files a motion to modify Cottrill's bond conditions. The motion recites that, speedy trial has been waived. June and July, 2001—Judge Fitzgerald's health problems necessitate rescheduling trial dates. July 3, 2001—Judge Fitzgerald dies. Case is later assigned to Judge Kern. July 20, 2001—At Judge Kern's request, defense counsel sends Judge Kern a letter confirming Cottrill's waiver of her speedy trial rights. The letter recites in pertinent part: Upon request of the Court, who by and through her attorney ... respectfully confirms the oral waiver of our right to a speedy trial which had been originally scheduled for February 1 and February 2, 2001 and canceled upon Defendant's request showing that she had been hospitalized and unable to undergo trial at that time. The trial was canceled upon oral waiver of speedy trial. Rescheduling of the trial to April 11 and 12, 2001 was made upon the illness of the trial Judge, again to May 10 and 11, 2001, and both parties agreed there had been an oral waiver of Defendant's speedy trial rights again at those times. The last trial was rescheduled until July 5 and 6, 2001 and not reset due to the illness and death of presiding Judge Fitzgerald. August 20, 2001—Defense counsel files a motion to dismiss under the 180 day rule. August 30, 2001—The State serves and files a response to the motion to dismiss and a motion to toll the 180 day rule. August 31, 2001—Telephonic hearing before Judge James Anderson (at some point assigned to the case) on the motion to dismiss. Judge Anderson denies the motion finding an open ended waiver of the 180 day rule. September 6, 2001—Cottrill's trial begins. [¶ 3.] Cottrill was convicted and sentenced to concurrent sentences of eighteen months in the penitentiary on the two counts. She appealed and the State filed a motion to remand the matter to the trial court to conduct an evidentiary hearing to determine the cause of the delay in the case. This Court entered its order of remand on May 21, 2002, and the trial court conducted its remand hearing on July 17. On August 14, the trial court entered findings of fact and conclusions of law again determining Cottrill waived her rights under the 180 day rule. The matter is once again before this Court.",facts
+518,1596326,1,4,"In July 1993 the Clinton city council adopted five separate safety standards ordinances (building, fire, electrical, mechanical, and plumbing). After petitions with sufficient qualified electors' signatures had been filed, the city council voted not to repeal the ordinances. As provided by the home rule charter, the city then directed the ordinances be forwarded to the Auditor to be placed on the ballot at the November 1993 municipal election. When the Auditor refused to submit the referendum to a vote, the city petitioned for declaratory judgment and injunctive relief. The petition asked the court to declare the initiative and referendum provisions of the city's home rule charter to be constitutional and to prohibit the Auditor from refusing to submit the referendum issues requested by the city. After the requested injunctive relief had been denied, the declaratory judgment petition was submitted to the district court. The district court held article VI of the charter is contrary to state law. The court found provisions of the City Code of Iowa and the election laws of Iowa were inconsistent with the initiative and referendum provisions of the Clinton charter.",facts
+519,4539266,1,4,"[3,4] The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline evaluated under the particular facts and circumstances of the case. 4 With respect to the imposition of attorney discipline in an individual case, each attorney discipline case must be evaluated in light of its particular facts and circumstances. 5 [5] When no exceptions to the referee’s findings of fact in an attorney discipline case are filed, the Nebraska Supreme Court may consider the referee’s findings final and conclusive. 6 Because the relator filed no exceptions, we consider the referee’s findings that Hanson did not violate §§ 3-501.11 and 3-503.3 final and conclusive. Likewise, Hanson did not file an exception to the finding that he violated his oath of office. We therefore consider the finding that Hanson violated § 7-104 to be final and conclusive. 1 State ex rel. Counsel for Dis. v. Chvala, 304 Neb. 511, 935 N.W.2d 446 (2019). 2 Id. 3 Id. 4 State ex rel. Counsel for Dis. v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753 (2019). 5 State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, 893 N.W.2d 694 (2017). 6 Id. - 572 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 Scope of Representation. Section 3-501.2(c) provides: A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are “Prepared By” and the name, business address, and bar number of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as “pro se,” but shall not be signed by the lawyer preparing the filing. Hanson admits to violating this rule by drafting pleadings and providing legal advice to C.S. regarding her termination of employment from the sheriff’s office without including the required “Prepared By” notation. He asserts that he was merely trying to ensure C.S.’ documents were well drafted and that his failure to include the notation was an inadvertent mistake. Hanson also notes that after the mistake had been brought to his attention, he corrected it on the amended complaint and terminated his assistance to C.S. Although we find that Hanson’s failure to include the required notation was unintentional, he clearly violated § 3-501.2(c). [6] This court is mindful of the increase in self-­represented litigants and the need for limited scope representation. Attorneys who are willing to answer questions, discuss the information required on court forms, and provide advice on how to draft and file legal documents provide an invaluable resource in promoting greater access to justice. We are not suggesting that § 3-501.2(c) requires a “Prepared By” stamp every time a lawyer assists a self-represented litigant in this way. Rather, under § 3-501.2(c), a “Prepared By” notation is required only when an attorney actually prepares for a client a pleading, brief, or other document that is to be filed with the court. Here, however, Hanson’s involvement was not limited in this way. He does not dispute that he actually prepared the - 573 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 documents in question or that an attorney-client privilege relationship existed. Conflict of Interest. Under § 3-501.7(a), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Section 3-501.7(b) provides: Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. The referee found Hanson’s representation of C.S. was a conflict of interest and, thus, a violation of § 3-501.7(a) and (b). The referee determined that Hanson had represented C.S. as a client, based on Hanson’s assertion of attorney-client privilege. The referee further found that this representation was a concurrent conflict of interest with Hanson’s employment as the Valley County Attorney. The referee noted that Valley - 574 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 County was not a party to C.S.’ lawsuit against G.B. However, the referee concluded that preparing pleadings for C.S. and advising her posed a significant risk that Hanson’s representation of the county would be materially limited by his duty to C.S., because the lawsuits involved the reasons for C.S.’ termination from the Valley County sheriff’s office. Hanson filed an exception to the referee’s finding that a conflict of interest existed. Hanson asserted that no conflict of interest existed, because the relevant lawsuit was not against Valley County; the lawsuit was between two private individuals, C.S. and G.B. At oral argument, however, Hanson acknowledged that his assistance to C.S. was likely a conflict of interest with his duties as the Valley County Attorney. [7] The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard of another or where a lawyer’s representation of one client is rendered less effective by reason of his or her representation of another client. 7 Hanson testified that as the county attorney, he provided advice to county agencies and their officials and spoke to the sheriff about general employment issues. He also admitted to assisting C.S. with advice about pleading theories and courtroom decorum in regard to the lawsuits. While Valley County was not a party to the lawsuit, the underlying issues focused on C.S.’ termination from the Valley County sheriff’s office and subsequent statements made regarding her termination. Further, the Valley County sheriff was deposed during the litigation, and outside counsel had been appointed. Based on the evidence presented, along with Hanson’s own admissions, we find there is clear and convincing evidence demonstrating that Hanson’s assistance to C.S. was a concurrent conflict of interest with his representation of Valley County, in violation of § 3-501.7(a) and (b). 7 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). - 575 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 Dealing With Unrepresented Persons. Section 3-504.3 provides, in relevant part: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Hanson argues that failing to include the “Prepared By” notation does not constitute a statement of disinterest. He further asserts that § 3-504.3 was not violated, because he made no statements to G.B. regarding the case and had no personal interaction with G.B. to imply that he was disinterested. The referee found that Hanson’s failure to include the notation was unintentional and that when Hanson learned of the failure, he corrected the error. But the referee concluded that Hanson violated § 3-504.3 after finding Hanson had not notified G.B. that he was assisting C.S. until he filed the motion to quash deposition. The referee reasoned that Hanson had an affirmative duty to inform G.B. of his involvement and that his failure to do so caused the lawsuit to proceed in a “fundamentally unfair manner” for G.B. However, the record demonstrates G.B. was aware of Hanson’s involvement before the subpoena for deposition was issued. The initial complaint regarding the lawsuit between C.S. and G.B. was filed on April 9, 2018. G.B. was notified of Hanson’s involvement on May 2, when, after learning of his error, Hanson included the following notation on the amended complaint: “Prepared By: Brandon B. Hanson, NSBA #24675.” Hanson’s motion to quash deposition was not filed until July 23. G.B. was clearly aware of Hanson’s assistance to C.S. prior to Hanson’s assertion of attorney-client privilege, because the subpoena for deposition issued by G.B. requested that - 576 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 Hanson bring the legal documents he had prepared for C.S. to the deposition. Moreover, the American Bar Association (ABA) has advised that an attorney���s failure to disclose behind-the-scenes assist­ ance to a pro se litigant “will not secure unwarranted ‘special treatment’ for that litigant or otherwise unfairly prejudice other parties to the proceeding.” 8 The ABA has stated that in the absence of a law requiring disclosure, “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.” 9 [8] In this case, there was no evidence presented to refute Hanson’s claim that he neither made statements to G.B. regarding the case nor had personal interaction with G.B. The failure to include a “Prepared By” notation does not itself constitute a violation of § 3-504.3. Therefore, we find that the evidence presented does not establish a violation of § 3-504.3. Misconduct. Pursuant to § 3-508.4, it is professional misconduct for a lawyer to “(a) violate or attempt to violate the Rules of Professional Conduct[,] knowingly assist or induce another to do so or do so through the acts of another; [or] (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Hanson admits that failing to include a “Prepared By” notation constitutes misconduct under § 3-508.4(a), but denies violating § 3-508.4(c). He asserts that he merely forgot to include the notation and that he had no intent to mislead, be dishonest, or otherwise be deceitful. 8 ABA Comm. on Ethics & Prof. Responsibility, Formal Op. 07-446 at 3 (2007) (discussing undisclosed legal assistance to pro se litigants). 9 Id., Formal Op. 07-446 at 1. - 577 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 The referee found Hanson had violated both subsections (a) and (c) of § 3-508.4. The referee concluded that Hanson’s failure to notify G.B. of his attorney-client relationship until being issued a subpoena constituted misrepresentation under § 3-508.4(c). [9] This court has held that proof of actual intent to deceive or defraud is not required to demonstrate an attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. 10 Instead, “[t]he focus of the inquiry is on the effect of the lawyer’s conduct . . . .” 11 In this case, there was no evidence presented to show that G.B. was unaware of Hanson’s assistance to C.S. Further, as discussed above, the record refutes the referee’s conclusion that Hanson failed to notify G.B. of his involvement prior to being issued a subpoena. We find that Hanson violated § 3-508.4(a) by failing to include the required notation, but we further conclude that there is insufficient evidence to demonstrate Hanson violated § 3-508.4(c). This conclusion is supported by the ABA’s Formal Opinion 07-446, 12 in which the ABA opined that an attorney’s failure to disclose the preparation of documents for a pro se litigant does not constitute conduct involving dishonesty, fraud, deceit, or misrepresentation. Sanctions. [10] The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline under the circumstances. 13 Neb. Ct. 10 State ex rel. Special Counsel for Dis. v. Shapiro, 266 Neb. 328, 665 N.W.2d 615 (2003). 11 Id. at 336, 665 N.W.2d at 623. 12 Formal Op. 07-446, supra note 8. 13 State ex rel. Counsel for Dis. v. Ubbinga, supra note 5. - 578 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 R. § 3-304 provides that the following may be considered as discipline for attorney misconduct: (A) Misconduct shall be grounds for: (1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court; or (6) Private reprimand by the Committee on Inquiry or Disciplinary Review Board. (B) The Court may, in its discretion, impose one or more of the disciplinary sanctions set forth above. 14 To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, we consider the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respondent’s present or future fitness to continue in the practice of law. 15 [11] As stated above, each attorney discipline case must be evaluated in light of its particular facts and circumstances. 16 For purposes of determining the proper discipline of an attorney, we consider the attorney’s actions both underlying the events of the case and throughout the proceeding, as well as any aggravating or mitigating factors. 17 In this case, the evidence establishes that while he was the county attorney for Valley County, Hanson produced legal documents for C.S., his self-represented girlfriend, without 14 See, also, Neb. Ct. R. § 3-310(N) (rev. 2019). 15 State ex rel. Counsel for Dis. v. Ubbinga, supra note 5. 16 State ex rel. Counsel for Dis. v. Pivovar, 288 Neb. 186, 846 N.W.2d 655 (2014). 17 State ex rel. Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804 (2017). - 579 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566 including a “Prepared By” notation as required by § 3-501.2(c). The legal documents were filed by C.S. in the county court for Valley County between April 9 and May 2, 2018. While Valley County was not a party to the lawsuit, a concurrent conflict of interest existed because the issues involved focused on the reasons for C.S.’ termination from the Valley County sheriff’s office. As mitigating factors, we note that Hanson has had no prior disciplinary complaints; he was cooperative throughout these disciplinary proceedings; he has accepted responsibility for his actions; and there was no evidence of harm to Valley County, G.B., or C.S. We also find, as did the referee, that Hanson is fit to practice law, his violations were unintentional and arose from an isolated incident, he corrected his error when it was brought to his attention, and he appears to have learned his lesson. Notably, we find no aggravating factors. [12] We have said that it is necessary to consider the discipline that we have imposed in cases presenting similar circumstances. 18 For cases involving conflicts of interest and no other violations, the relator correctly notes that this court has generally imposed just a public reprimand. 19 While this case also involves the violation of § 3-501.2(c), we recognize the violation was unintentional, and we have no comparative cases, because the failure to include a “Prepared By” notation is an issue of first impression in Nebraska. Taking into account all of the mitigating factors, the absence of aggravating factors, the short period of time during which the violations occurred, and the unique nature of this case, we determine that the appropriate sanction is a public reprimand. 18 State ex rel. Counsel for Dis. v. Seyler, 283 Neb. 401, 809 N.W.2d 766 (2012). 19 See, State ex rel. Counsel for Dis. v. Peppard, 291 Neb. 948, 869 N.W.2d 700 (2015); State ex rel. NSBA v. Frank, 262 Neb. 299, 631 N.W.2d 485 (2001). - 580 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. COUNSEL FOR DIS. v. HANSON Cite as 305 Neb. 566",analysis
+520,2301253,1,3,"Our review of a Circuit Court's denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691, 693 (1997); Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312, 568 A.2d at 22. In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining first-level facts. Lancaster v. State, 86 Md.App. 74, 95, 585 A.2d 274, 284 (1991); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356, 358 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous. McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430, 435 (1992); Riddick, 319 Md. at 183, 571 A.2d at 1240. Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183, 571 A.2d at 1240; Munafo v. State, 105 Md.App. 662, 669, 660 A.2d 1068, 1071 (1995).",standard of review
+521,4544413,1,1,"After Kirk E. Brumbaugh obtained a jury verdict for less than the statutory minimum, he moved for attorney fees authorized but not mandated by statute. The district court denied the request. On appeal, we decline Brumbaugh’s invitation to abandon our longstanding procedure and to instead require that a trial court provide an explanation of its reasons regarding a fee decision. Finding no abuse of discretion, we affirm the district court’s judgment awarding no fees or costs.",introduction
+522,1966093,1,2,"The defendant makes two arguments on appeal. First, he argues that the hearing justice abused his discretion and violated defendant's state and federal constitutional right to counsel of his choice when he refused to grant a motion for a continuance. Second, he argues that the hearing justice misinterpreted Rule 35 when he corrected the original order and ordered defendant to serve three years on the 2003 case.",analysis
+523,6105292,1,1,"Washington voters have the constitutional right to propose laws and, when the legislature does not enact their proposals, vote on final passage. WASH. CONST. art. II, § 1. Using this power, Washington voters proposed and passed Washington’s Fair Campaign Practices Act (FCPA or act), ch. 42.17A RCW. The FCPA is an attempt to make elections and politics as fair and transparent as State v. Grocery Mfrs. Ass’n, No. 99407-2 possible; and to accomplish that goal, the act requires candidates, political committees, and lobbyists to disclose their campaign contributions and spending. LAWS OF 1973, ch. 1 (codified in part at chapter 42.17A RCW); see also Voters Educ. Comm. v. Pub. Disclosure Comm’n, 161 Wn.2d 470, 479-80, 166 P.3d 1174 (2007). The FCPA establishes that it is “the public policy of the State of Washington . . . [t]hat political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided” and “[t]hat the public’s right to know of the financing of political campaigns . . . far outweighs any right that these matters remain secret and private.” LAWS OF 1973, ch. 1, § 1(1), (10) (currently codified at RCW 42.17A.001(1), (10)). The FCPA compels disclosure and “compelled disclosure may encroach on First Amendment rights by infringing on the privacy of association and belief.” Voters Educ. Comm., 161 Wn.2d at 482 (citing Buckley v. Valeo, 424 U.S. 1, 64, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)). To guard against infringing on these First Amendment rights, laws mandating disclosure “must survive ‘exacting scrutiny.’” Id. (quoting Buckley, 424 U.S. at 64). FCPA’s compelled registration and disclosure requirements have been upheld by state and federal courts many times over the years. See id. at 497-98; State v. Evergreen Freedom Found., 192 Wn.2d 782, 801, 432 P.3d 805 (2019); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 994-95, 1005 (9th Cir. 2010) (rejecting an initiative-opponent’s First 2 State v. Grocery Mfrs. Ass’n, No. 99407-2 Amendment challenge to FCPA under the exacting scrutiny standard of Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010); U.S. CONST. amend. I). We are not the only state where the voters have the power to propose and pass legislation. In 2012, Proposition 37 was presented to California voters. This proposition would have required some manufacturers to disclose whether packaged food contained genetically modified organisms (GMO). The Grocery Manufacturer’s Association (GMA) and many of its member companies successfully campaigned against Proposition 37, and some received negative responses from the public for doing so. In the wake of the Proposition 37 campaign, Washington sponsors filed Initiative 522. Like Proposition 37, this initiative would have required GMO labels on packaged food and like Proposition 37, GMA opposed it. GMA developed a campaign strategy to work against the initiative while shielding its member companies from the sort of negative public response that happened in California. As part of that campaign strategy, GMA created a segregated “Defense of Brands” strategic account that would hold and disburse contributions raised to oppose labeling requirements. GMA staffers explained that “‘state GMO related spending will be identified as coming from GMA which will provide anonymity and eliminate state filing requirements for contributing members.’” Clerk’s Papers 3 State v. Grocery Mfrs. Ass’n, No. 99407-2 (CP) at 4054 (quoting Ex. 15). Nothing in the record or briefing suggests GMA brought a declaratory judgment action under chapter 7.24 RCW to determine whether and how the FCPA would apply to its campaign work. GMA raised more than $14 million to oppose GMO labeling efforts. GMA in turn contributed $11 million to the “No on 522” campaign from the Defense of Brands strategic account. Despite its political activities in Washington, GMA did not register as a political committee with the Public Disclosure Commission (PDC) and did not make any PDC reports until after this lawsuit was filed. In response to the suit, GMA registered “under duress” but, as of the time of trial, still had not filed all of the required reports. The State sued, contending that GMA intentionally, flagrantly, and repeatedly violated the FCPA. GMA filed a separate lawsuit against the State for injunctive and declaratory relief, arguing that the State was unconstitutionally attempting to enforce Washington’s fair campaign laws. The suits were consolidated. At summary judgment, the trial court found that GMA was a political committee subject to the FCPA and that it had broken the law by failing to register with the PDC and failing to file disclosure reports. Concluding there were factual issues about whether GMA had intentionally violated the law (which would permit statutory punitive treble damages), the judge reserved the penalty for trial. 4 State v. Grocery Mfrs. Ass’n, No. 99407-2 After a bench trial, the trial court found that GMA had intentionally violated Washington’s campaign finance laws. It found that GMA and its board intended to use the Defense of Brands account “to shield the contributions made from GMA members from public scrutiny” and to “eliminate the requirement and need to publicly disclose GMA members’ contributions on state campaign finance disclosure reports.” CP at 4059. It also concluded that GMA concealed the amount and source of contributions, registered 224 days late, and did not properly or timely file at least 47 reports. The trial court specifically rejected testimony from GMA officers that they had not intended to violate the law, finding “it is not credible that GMA executives believed that shielding GMA’s members as the true source of contributions to GMA’s Defense of Brands Account was legal.” CP at 4068. The State asked for a base penalty of $14,622,820 based largely on the amount of campaign funds that GMA had collected and concealed. Basing the penalty on the amount intentionally concealed is explicitly authorized in the FCPA. RCW 42.17A.750(1)(g). The State also asked the trial judge to impose punitive treble damages for a total of $43,868,460, which is also explicitly authorized under the act. RCW 42.17A.780. GMA asked for “a [m]odest, [p]artially [s]uspended, [p]enalty.” CP at 3476. 5 State v. Grocery Mfrs. Ass’n, No. 99407-2 The trial court rejected both approaches. It entered several relevant unchallenged findings of fact: 106. In exercising its discretion in determining an appropriate penalty in this case, the court should and did review the applicable statutes, administrative code provisions, case law and penalties imposed by other courts. Although the court would not allow testimony or argument on penalties in other cases, the court has reviewed all of the briefing submitted, including GMA’s briefing and arguments regarding penalties imposed in other cases. The court has considered all of that in making its determination regarding a penalty. 107. Mitigating factors in this case include lack of any prior violations by GMA, that GMA is not a repeat violator and that GMA cooperated with the PDC once this case was filed. Those factors weigh in favor of a smaller penalty. 108. There are also factors that weigh in favor of the court imposing a more substantial penalty, including trebling of damages. Those factors include: violation of the public’s right to know the identity of those contributing to campaigns for or against ballot title measures on issues of concern to the public, the sophistication and experience of GMA executives, the failure of GMA executives to provide complete information to their attorneys, the intent of GMA to withhold from the public the true source of its contributors against Initiative 522, the large amount of funds not reported, the large number of reports filed either late or not at all, and the lateness of the eventual reporting just shortly before the 2013 election. CP at 4069. Based on these aggravating and mitigating factors, and based on former RCW 42.17A.750(1)(f) (2013), 1 the trial court imposed a $6 million base penalty. 1 Former RCW 42.17A.750(1)(f) (2013) has been recodified without change at RCW 42.17A.750(1)(g). LAWS OF 2018, ch. 304, § 12. For convenience, we will refer to the current code provision unless otherwise noted. 6 State v. Grocery Mfrs. Ass’n, No. 99407-2 Since the violation was intentional, the trial court imposed treble damages. See RCW 42.17A.780 (allowing for punitive treble damages for intentional violations of FCPA). It also imposed attorney fees. GMA appealed both liability and damages, arguing, among other things, that it was not a political committee and that, even if it was, requiring it to register and disclose contributions and expenditures violated Washington’s campaign financing laws and several constitutional provisions. State v. Grocery Mfrs. Ass’n, 195 Wn.2d 442, 454, 461, 461 P.3d 334 (2020) (GMA II). The Court of Appeals affirmed the trial court’s decision that GMA was a political committee subject to FCPA and that FCPA was constitutionally applied, but it found that treble damages were inappropriate under the act. State v. Grocery Mfrs. Ass’n, 5 Wn. App. 2d 169, 176-77, 209, 425 P.3d 927 (2018) (GMA I) (citing former RCW 42.17A.765(5) (2010)). GMA I did not reach GMA’s argument that the penalty violated the excessive fines clauses of the state and federal constitutions. Id. at 177 n.2. This court largely affirmed the trial court, holding that Washington’s campaign finance laws were constitutional as applied to GMA, that the trial court had applied the correct standard to determine whether GMA had intentionally violated the law, and that treble damages were permissible under the statute. GMA II, 195 Wn.2d at 448-49. We remanded the case to the Court of Appeals to 7 State v. Grocery Mfrs. Ass’n, No. 99407-2 consider whether the penalty was based on constitutionally permissible considerations and whether it violated the excessive fines clauses. Id. at 449. On remand, the Court of Appeals affirmed the constitutionality of the penalty. State v. Grocery Mfrs. Ass’n, 15 Wn. App. 2d 290, 294, 475 P.3d 1062 (2020). We granted review. Order, No. 99407-2. Amici briefs in support of GMA have been filed by the Building Industry Association of Washington (joined by Enterprise Washington, Washington Farm Bureau, Washington Retail Association, National Electrical Contractors Association, and Washington Food Industry Association) (BIAW), the Institute for Free Speech, and the National Association of Manufacturers (joined by the Chamber of Commerce of the United States of America). Seven current and former Washington State legislators (CFWSL) have filed an amici brief urging the court to adopt additional factors when considering whether a penalty that has potential First Amendment implications violates the excessive fines clause and urging the court to consider the impact of recent legislation on this case. 8 State v. Grocery Mfrs. Ass’n, No. 99407-2",facts
+524,3134930,2,1,"Defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. A criminal conviction will not be set aside on appeal unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. The question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational fact finder could have found defendant guilty beyond a reasonable doubt. People v. Brown , 185 Ill. 2d 229, 247 (1998); People v. Eyler , 133 Ill. 2d 173, 191 (1989). We note that this standard of review applies in all criminal cases, whether the evidence is direct or circumstantial. People v. Gilliam , 172 Ill. 2d 484, 515 (1996); People v. McDonald , 168 Ill. 2d 420, 444 (1995). Applying this standard to the present case, we must conclude that there was sufficient evidence to support defendant’s conviction. Defendant argues that the testimony of his accomplice Donald “was confused, conflicted, and unworthy of belief.” Defendant points to “numerous instances where he [Donald] does not understand questions, pauses for long periods of time and continually qualifies his testimony with ‘I think’ and ‘I believe.’ ” Defendant also argues that Donald’s testimony “was substantially impeached by his prior record and his plea agreement with the prosecutor.” Defendant also attacks the credibility of Donald’s brother, Michael Lippert. Defendant points to inconsistencies between Michael’s testimony and the other evidence. Defendant argues that Michael would support Donald’s version of events to save Donald from the death penalty. According to defendant, these facts would cast doubt on the veracity of Michael’s testimony. When considering a challenge to the sufficiency of the evidence of a defendant’s guilt, it is not the function of this court to retry the defendant. People v. Smith , 177 Ill. 2d 53, 73 (1997); McDonald , 168 Ill. 2d at 443. Rather, it is the function of the jury as the trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. It is also for the trier of fact to resolve conflicts or inconsistencies in the evidence. People v. Bull , 185 Ill. 2d 179, 204-05 (1998); People v. Young , 128 Ill. 2d 1, 51 (1989). “A conviction will not be reversed ‘simply because the defendant tells us that a witness was not credible.’ ” People v. Brown , 185 Ill. 2d 229, 250 (1998), quoting People v. Byron , 164 Ill. 2d 279, 299 (1995). Therefore, this court will not substitute its judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses. McDonald , 168 Ill. 2d at 448-49; Young , 128 Ill. 2d at 51. Defendant’s arguments against Donald and Michael address functions of the jury and not of this court. Having heard Donald’s testimony, the jury was fully aware of its alleged infirmities. The jury knew of Donald’s criminal background and of his plea agreement with the State. The trial court instructed the jury that accomplice testimony was subject to suspicion and, therefore, should be viewed with caution. See Illinois Pattern Jury Instructions, Criminal, No. 3.17 (3d ed. 1992). It was the jury’s function to draw conclusions based on the evidence and to decide whether there was a reasonable doubt as to defendant’s guilt. Defendant also argues that he “presented a more credible case” that Lane, Jenkins, and Salter actually murdered the victim. Defendant notes that he presented much of the evidence presented by the prosecution in Lane’s trial for this offense, which resulted in Lane’s conviction. However, an assertion that another person committed the offense does not necessarily raise a reasonable doubt as to the guilt of the accused. See People v. Manning , 182 Ill. 2d 193, 211 (1998). “The jury in this case was not required to accept any possible explanation compatible with the defendant’s innocence and elevate it to the status of reasonable doubt.” People v. Herrett , 137 Ill. 2d 195, 206 (1990); accord McDonald , 168 Ill. 2d at 447. Defendant contends that Donald’s testimony “was not corroborated in any significant manner.” Defendant argues that there is no corroboration that he accompanied Donald to the victim’s house that night. Defendant posits that Donald could have committed the offense alone, or with someone other than defendant. Defendant also contends that no physical evidence corroborated Donald’s testimony or otherwise linked defendant to the victim’s murder. We recognize that the testimony of an accomplice witness has inherent weaknesses and should be accepted only with caution and suspicion. Nevertheless, the testimony of an accomplice witness, whether corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt. Smith , 177 Ill. 2d at 74; accord Young , 128 Ill. 2d at 47-48. In this case, Donald’s testimony was sufficient to sustain defendant’s conviction. Donald knew details of the crime that only a person present at the crime scene could know. Additionally, other evidence presented at trial corroborated Donald’s testimony in several respects. The victim’s physical injuries were consistent with Donald’s testimony. Defendant confessed his involvement in the crime to Michael Lippert. Also, many of the victim’s belongings were found in storage, in the box labeled “Ed” and in the dresser that defendant used. We note that this case is distinguishable from People v. Smith , 185 Ill. 2d 532 (1999). In Smith , we agreed with the defendant “that the weakness of the State’s chief witness, along with the lack of other direct evidence linking defendant to the crime, required a not guilty verdict as a matter of law.” Smith , 185 Ill. 2d at 542. There was only one witness who identified defendant as the gunman. Based on the serious inconsistencies in, and the repeated impeachment of, her testimony, we found that no reasonable trier of fact could have found her testimony credible. Further, we concluded that the circumstantial evidence that purportedly linked the defendant to the murder merely narrowed the class of individuals who may have killed the victim, but did not point specifically to the defendant. Smith , 185 Ill. 2d at 545. In this case, however, we conclude that Donald’s testimony was sufficient to sustain defendant’s conviction. Also, the other evidence presented at trial sufficiently linked defendant to the murder. We have reviewed all of the evidence presented in defendant’s trial in the light most favorable to the prosecution. We note that the evidence against defendant was not overwhelming. However, we conclude that a rational trier of fact could have found defendant guilty beyond a reasonable doubt.",sufficiency of the evidence
+525,885254,1,2,"file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-531%20Opinion.htm (4 of 12)3/30/2007 2:45:35 PM file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-531%20Opinion.htm ¶16 Our standard of review of appeals from summary judgment is de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. We apply the same criteria which is applied by the district court pursuant to Rule 56 (c), M.R.Civ.P. Spinler v. Allen, 1999 MT 1960, ¶ 14, 295 Mont. 139, ¶ 14, 983 P.2d 348, ¶ 14. The moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Hadford v. Credit Bureau of Havre, Inc., 1998 MT 179, ¶ 14, 289 Mont. 529, ¶ 14, 962 P.2d 1198, ¶ 14. Once the moving party has met its burden, the opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact. Hadford, ¶ 14.",standard of review
+526,853073,2,4,"French contends that he was denied his fundamental right to require the State to prove each element of the offense charged beyond a reasonable doubt, in violation of the United State Constitution and the Indiana Constitution. French was charged with dealing in cocaine as a Class A felony for delivering cocaine within 1000 feet of 9th Street Park and/or St. Bartholomew Catholic Parish Pre-School. French argues that the dealing in cocaine charge should not have been enhanced to a Class A felony because there was insufficient evidence to prove French dealt cocaine within 1000 feet of school property.
+French contends that there was no evidence to support the proposition that St. Bartholomew Preschool was school property for purposes of the enhancement provided by Indiana Code section 35-48-4-1 for dealing within 1000 feet of a school. Section 35-41-1-24.7 provides, in relevant part, that the term school property includes a building or other structure owned or rented by ... [a] private school (as defined in IC 20-9.1-1-3). Section 20-9.1-1-3 defines a private school as any school which is not supported and maintained by funds realized from the imposition of a tax on property, income or sales. The Director of St. Bartholomew Preschool testified that the preschool is part of the St. Bartholomew's Catholic Church. She testified that the school was a private school, did not receive state funding, and was privately sponsored by the church. She also stated that the children at the school range in age from twenty months to six years; they learn their numbers and alphabet, sing songs, go on field trips, and play. She testified that the building in which the school is located is owned by the parish. French contends that based on this information, one may speculate that St. Bartholomew was nothing more than a church run babysitting service. We disagree. We think that this kindergarten level institution falls within the definition of school property. In any event, the information charged French with dealing in cocaine within 1000 feet of a school or park. French has made no argument that the evidence was insufficient to show that Wilson Street Park was a park. Consequently, the enhancement to a Class A felony was proper.
+French argues that the evidence was insufficient to establish the distance between the transaction and either the school or the park. Shawn Plummer, an auto CAD technician for the City Engineer's office, testified that the distance from the address where the dealing took place was 790 feet from St. Bartholomew's pre-school and 661 feet from the Wilson Street park. Plummer's job entails making city maps, putting new subdivisions on the maps, and keep[ing] the map accurate with the city. He stated that he enters an address into the computer, and his computer calculates everything within a 1000 feet radius of that address and produces a map. On cross-examination, Plummer admitted that he did not physically measure the distance in this case, did not write the computer program, did not know how the program worked, and did not know whether it was accurate. French objected to the map, because no one actually went out there and physically measured [the distance and] there's no foundation laid that these distances are actually the distances that that computer generated. We assume the computer generated map could be established to be reliable. In any event, before trial resumed the following day, Officer Curt Beverage physically measured the distance between the place of the dealing and the pre-school and the place of dealing and the park. He used a one-hundred-foot heavy-duty steel tape that he calibrated by comparison with a separate twenty-five foot tape. He also checked the accuracy of the twenty-five foot tape against a twelve-inch ruler. Beverage testified that the distance from the place of dealing and just past the property line of the school was 652 feet and to the far end of the school building was 964 feet. Beverage stated that the distance from the place of dealing and the park was 717 feet. This evidence was sufficient.",sufficiency of the evidence
+527,1707762,1,5,"The people of this State recognized the value of having a town on sixteenth section land when they adopted the amendment to Art. 8, § 211 in 1944, and authorized a 99-year lease for a gross sum rental. The Legislature likewise recognized it when they passed 1946 Miss. Laws Chap. 443, 1948 Miss. Laws Chap. 497, 1956 Miss. Laws Chap. 290. Also, Dodds v. Sixteenth Section Development Corp., 232 Miss. 524, 99 So.2d 897 (1958). In sum, in the 1940s the Legislature, our people, and especially our people who lived in municipalities situated on sixteenth section lands, wanted to put the question of title at rest. They wanted to encourage development and improvement of the city land. Thereby the City of Forest and other similarly situated could better hope for growth of their town. It is that simple. There is no question in this case but that the letter of § 211 of the Constitution was scrupulously adhered to, as were all the technical requirements of the statutes passed thereunder. The factual situation in this case is unique. We have had no sixteenth section land cases like this before. By perfectly sound trust law, II A.W. Fratcher, Scott on Trusts, § 181, 4th Ed. (1987), this Court could render immeasurable benefit to Forest and its municipal separate school district in unanimously affirming the chancery court decree. The purpose of a school trust is to bring in revenue for the school. A dollar to a school is a dollar, no matter its source, and whether it comes directly or indirectly. It should be readily apparent that, aside from a gold or silver mine, or a producing oil or gas well, the very best prospect for revenue for a school district is to have a town sitting on top of it. Who will be willing, however, to build a permanent residence or commercial building when the title is uncertain and of short duration? No one, if he has any choice. Seen in this light, the civic leaders made a prudent decision in 1947, and trustees in the true and accurate sense of the word. The amicus curae brief filed by Mississippi Valley Title Insurance Company warned this Court of the serious consequences which would follow a reversal of the chancery court, wisdom the majority is ill-advised to ignore. The leaseholders stuck with a sizable investment already made on their leaseholds will have to do the best they can. They will be looking for the first, least expensive exit. No new investments in residences (other than tents, shacks or mobile homes) can be expected. No commercial structures, in which Forest can take pride, are likely to be made. Mr. Thompson's building, which would easily produce $1,500-$2,500 annually in city and county tax revenue, is now a discarded dream. The people of Forest and Scott County made the decision in setting gross rentals at $7.50 for a 99-year lease on a town lot. As to Lackey's leases, there has been no showing that there was ever any justifiable expectation of getting more than the district received, which should bind the district. Kramme v. Mewshaw, 147 Md. 535, 128 A. 468 (1925). Having spent my adult life in a small town very much like Forest, I can understand the awful conditions that prevailed in small towns in Mississippi in the late 1940s and 1950s, and wondering where our next meal was coming from. Had my home town been on sixteenth section land, and we been faced with the same choice as that facing Forest, I am confident I would have advocated essentially the same course chosen by Forest and Scott County. [7] The beneficiaries of this sixteenth section are not this Court or any other official in Jackson. The sole beneficiaries are the people who live in the Forest school district, the children who go to school there, and their parents and taxpayers who must pay for their education. They are the ones involved. We should bear in mind that there has been no protest from any of these beneficiaries. The contest of Thompson's confirmation suit arose entirely from outside the district. The 1978 Act may prove beneficial. It was designed, however, to deal with school leases as they expire. There is nothing about the Act to suggest it is a mandate for a state or county official to disturb leases executed prior to 1978. The Act neither adds nor diminishes the duty every such official already had (with the exception of the secretary of state, who by virtue of the abolition of the office of state land commissioner assumed the duties of that office). Because there are men and women and business enterprises who do own homes, commercial buildings and fixed improvements on this section, I do not doubt the majority's holding will bring in revenue. These unfortunate people have no choice. I am just as convinced it will be a Pyrrhic windfall. Investment in this area will be catastrophically reduced. Investment is based upon confidence, sometimes overconfidence, but never upon fear. This Court might exercise a little humility and acknowledge that the leasing policy of sixteenth section town lots, when done honestly and in good faith, is a matter best left entirely in the hands of the people who live there, who after all, will either be enriched together or suffer together. As this Court should know, small towns in Mississippi continue in a desperate struggle to keep afloat. We should affirm the chancery court, and insofar as this Court goes, quietly shut the door and leave the people of Forest to make their own future. SULLIVAN, J., joins this opinion.",conclusion
+528,2499841,1,6,"Respondent took and subscribed the oath of admission and was admitted to the bar of the Colorado Supreme Court on May 20, 1987. She is registered upon the official records, Attorney Registration No. 16561, and is therefore subject to the jurisdiction of this Hearing Board in these disciplinary proceedings pursuant to C.R.C.P. 251.1(b). Respondent's registered business address is P.O. Box 22135, Denver, Colorado 80222.",jurisdiction
+529,1637866,1,3,"In Baldridge , the Court of Appeals held literal compliance with the statute is necessary. Id. at 431. Appellant argues, however, that the City of Florence had actual notice of her accident: a city employee had taken pictures of the area just after Appellant's fall, there was a Fire Department/Ambulance report, and the city had prepared, signed, and dated incident reports on January 20, 2006. However, actual or constructive notice of the incident on the part of the city is not enough—Appellant still must have met the dictates of KRS 411.110 before properly filing suit against the city. Reibel v. Woolworth, 301 Ky. 76, 190 S.W.2d 866 (1945). In order to satisfy KRS 411.110, Appellant was required to state the time of her accident. We look to the plain language and the purposes of the statute in order to determine whether Appellant strictly complied with the statute by stating that her accident occurred on or about January 18, 2006. As we explained in City of Louisville v. O'Neill, the purposes of KRS 411.110 are: to give the city an opportunity to investigate the scene of an accident and correct any defective condition, if such exists, to enable the city to investigate and evaluate the case so that if liability exists it might have an opportunity to settle it without long and expensive litigation, and to give the city an opportunity to protect its funds against unjust and illegal claims. 440 S.W.2d 265, 266 (Ky.1969). Here, however, we must construe the date given in connection with the language on or about. As our predecessor court explained in Render v. Commonwealth, [t]he common understanding of the words `on or about,' when used in connection with a definite point of time, is that they do not put the time at large, but indicate that it is stated with approximate accuracy. 206 Ky. 1, 266 S.W. 914, 916 (1924) (citation omitted). Therein, the court stated that a period of three or four months was not within the referenced time frame. Id. While Render concerned a date in a criminal indictment, its construction of the term on or about is pertinent here. We also addressed the term on or about in James v. Commonwealth, noting that: [o]n or about the date could have covered a period of several days. 482 S.W.2d 92, 93 (Ky.1972). As our precedents make clear, whether a particular date reasonably falls within the window of time created by the term on or about is a fact-intensive review which is relative to the circumstances of the particular case—the window may be as small as several days, but may not be as large as three to four months and depends entirely on the circumstances of the individual case. Clearly, however, two (2) days is within the span of several days and thus, notice that an accident occurred on or about January 18, 2006 includes January 20, 2006. We also note that the notice in Baldridge did not contain the on or about language as did Appellant's notice in the case at hand. 613 S.W.2d at 431. Simply put, this is not a case of substantial compliance; it is one of actual compliance. Appellant therefore complied with the statutory requirement that she state the time of her accident in her notice to the city and met the statute's purpose of protecting public safety by apprising the city as to a defective condition so they had an opportunity to investigate and correct it. Furthermore, we note that Appellant complied with the ninety (90) day period in which she had to give the city notice. The statute speaks to this point: notice must be given within ninety (90) days of the date of the incident. KRS 411.110.",analysis
+530,2654917,2,6,"Jenkins argues that the evidence was insufficient to sustain his convictions for conspiracy, obstruction of justice, and CPWL. Viewing the evidence, as we must, in the light most favorable to upholding the jury‟s verdict,79 we agree only to the extent that we find there was insufficient evidence to convict Jenkins of CPWL. 77 The evidence of Israel‟s commission of the shootings on Columbia Road would have been probative of his motive to kill Evans and render him unavailable to testify against him, and the evidence of Israel‟s participation in the conspiracy to kill Evans would have been relevant to show consciousness of guilt with respect to the Columbia Road incident. See Ford v. United States, 647 A.2d 1181, 1184 n.5 (D.C. 1994) (“[E]vidence of each joined offense would be admissible in a separate trial of the other” when the evidence “reflect[s] consciousness of guilt about the other charges.”); Hazel v. United States, 599 A.2d 38, 42 (D.C. 1991) (evidence of the other crimes properly admitted under the motive exception to Drew). 78 See McCoy v. United States, 760 A.2d 164, 185 n.28 & n.29 (D.C. 2000). 79 Sutton v. United States, 988 A.2d 478, 482 (D.C. 2010). 49 The conspiracy and obstruction of justice charges required the government to prove, in essence, that Jenkins plotted to prevent Evans from assisting the police and testifying with respect to the Columbia Road shootings, and that Jenkins killed Evans to accomplish that goal. The jury had ample evidence to find the government had met its burden of proof. To recapitulate, the evidence showed that Evans in fact had been cooperating with the investigation of the shootings, that this was no secret, and that Jenkins had pulled a gun on Evans and accused him of “snitching” on Israel. Moreover, the jury reasonably could understand Jenkins‟s recorded phone conversations with Israel to reveal that Jenkins and Israel had plotted to prevent Evans from being a witness against Israel. The evidence further proved that Jenkins was the last person seen with Evans, that they went off together just a few hours before Evans was murdered, and that his murderer left the scene of the crime in a vehicle that looked like Jenkins‟s SUV. Forensic analysis of the tire tracks left at the scene of the murder added to the likelihood that Jenkins‟s vehicle was involved. While the evidence was circumstantial, and “direct or physical evidence” (as Jenkins puts it) was lacking, that did not render the government‟s proof insufficient; nor was the government obliged to disprove every possible theory of innocence that Jenkins put forward.80 Finally, the fact that 80 Smith v. United States, 809 A.2d 1216, 1221 (D.C. 2002). 50 the jury hung with respect to the first-degree murder charge does not impeach his conviction for obstruction, even assuming the two outcomes are not easily reconciled.81 We do not find sufficient evidence to uphold Jenkins‟s conviction for carrying a pistol without a license,82 however. The government argues that the evidence permitted the jury to infer that Jenkins participated in the armed murder of Evans and therefore carried a firearm at that time, and it is uncontested that Jenkins was unlicensed, but that does not end the inquiry. To convict Jenkins of CPWL, there needed to be proof that the firearm Jenkins carried was a “pistol,” a statutorily-defined term meaning that the firearm‟s barrel had to be less than 12 inches in length.83 The government presented no evidence that the firearm was a pistol; it was not recovered, no witness professed to have seen it, and no forensic evidence shed light on the nature of the firearm used to kill Evans. Consequently, Jenkins‟s conviction for CPWL must be reversed for insufficiency of the evidence. 81 See Whitaker v. United States, 617 A.2d 499, 503 (D.C. 1992) (noting that conviction for possession of a firearm during a crime of violence may stand even though the jury deadlocked on the predicate charge of assault with a dangerous weapon.) 82 See former D.C. Code § 22-4504(a) (2001). 83 See former D.C. Code § 22-4501(a) (2001). 51",sufficiency of the evidence
+531,4540988,1,4,"We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals.",jurisdiction
+532,1873849,1,3,"Cox asserts that the evidence offered by the State was not sufficient to support the verdict of guilty. The standard of review for challenges to the legal sufficiency of the evidence is provided in Benson v. State, 551 So.2d 188 (Miss. 1989). The Court stated: Recently in McFee v. State, 511 So.2d 130 (Miss. 1987), this Court repeated its standard of review for challenges to the legal sufficiency of the evidence. When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the case for the prosecution — in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty and weight that, having in mind the beyond the reasonable doubt standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See e.g., Gavin v. State, 473 So.2d 952, 956 (Miss. 1985); May v. State, 460 So.2d 778, 781 (Miss. 1984). McFee at 133-134. See also Winters v. State, 449 So.2d 766 (Miss. 1984). Benson, 551 So.2d at 193. Cox' challenge to the legal sufficiency of the evidence of his arson conviction rests on the argument that Danny Sullivan set the initial fire in the Sullivan home. The testimony of Fire Marshall White and Lt. Strauser shows that Danny Sullivan may have originally started the first fire. However, the two also testified that Cox stated to them that he started one of the fires by taking a burning rag from another fire and throwing it into a closet. Miss. Code Ann. § 97-17-1 (1972) states: Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house ... It is clear from the evidence that Cox participated as a principal with Danny Sullivan in burning the Sullivan home. The evidence in the record does not support Cox' argument that reasonable persons could find him not guilty of arson beyond a reasonable doubt. Disturbance of this verdict is beyond the authority of this Court.",sufficiency of the evidence
+533,878887,1,4,"The wife argues that the District Court did not state the reason for refusing to grant her attorneys fees, therefore this Court should grant her attorneys fees. This Court has held that in a divorce case a district court must indicate its reasons for refusing to grant attorneys fees. Hammeren v. Hammeren (Mont.1982), 663 P.2d 1152, 1154, 39 St.Rep. 2222, 2223. In this case the District Court at Finding no. 37, states after considering the financial resources of both parties, the Court finds that both parties have the ability to pay their own attorney's fees and should do so. This is a clear indication of the court's reasoning, therefore the denial of attorneys fees is upheld.",issues
+534,862517,1,2,"I. WHETHER THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY REFUSING TO ALLOW THE JURY TO RECEIVE THE PROPOSED JURY INSTRUCTION ON ENTRAPMENT WHICH WAS SUBMITTED TO THE COURT. ¶9. In his first assignment of error, McCollum contends that the trial court improperly denied his jury instruction on entrapment. Law The defense of entrapment is available where criminal intent did not originate in the mind of the accused, or stated differently, where the accused was not predisposed to commit the crime. Where, however, the intent to commit the crime already existed in the mind of the accused so that the inducement merely served to give him an opportunity to commit that to which he was already disposed, the entrapment defense does not lie. King v. State, 530 So.2d 1356, 1358 (Miss.1988) (citations omitted).",issues
+535,1847657,1,3,"¶ 7. The issue of whether a dismissal of a criminal proceeding on constitutional grounds may be considered a favorable termination necessary to support a subsequent malicious prosecution action comes to this Court on first impression. ¶ 8. In order to prevail in a malicious prosecution suit, the plaintiffs, Cong, Ut, Lan, and Minh, must prove all six elements of the tort by a preponderance of the evidence. The elements of a malicious criminal prosecution are: (1.) The institution or continuation of original judicial proceedings, either criminal or civil; (2.) by, or at the insistence of the defendants; (3.) the termination of such proceeding in plaintiff's favor; (4.) malice in instituting the proceedings; (5.) want of probable cause for the proceedings; and (6.) the suffering of damages as a result of the action or prosecution complained of. Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 73 (Miss.1996); Bankston v. Pass Road Tire Ctr., Inc., 611 So.2d 998, 1004 (Miss. 1992); C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099-1100 (Miss.1992); Page v. Wiggins, 595 So.2d 1291, 1293 (Miss.1992); Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991). ¶ 9. The issue in the present case pertains solely to the third element of the cause of action. The trial judge in the case sub judice dismissed plaintiffs' malicious prosecution action due to lack of favorable termination of the prior criminal proceeding. This Court conducts a de novo review of orders granting or denying summary judgment, and the evidence must be viewed in the light most favorable to the party against whom the motion was made. Pro-Choice Mississippi v. Fordice, 716 So.2d 645, 649-50 (Miss.1998). The trial judge in this case was presented with no binding authority as to the present issue; therefore, whether summary judgment was proper depends upon our ruling. Due to an absence of case law in Mississippi concerning whether dismissal of a criminal action due to speedy trial violations should qualify as a final determination in favor of the plaintiff, it is necessary to examine the views of other states regarding this issue. ¶ 10. The Second Circuit Court of Appeals, interpreting New York state law, thoroughly addressed the question at hand in Murphy v. Lynn, 118 F.3d 938 (2d Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1051, 140 L.Ed.2d 114, (1998). Although the New York Court of Appeals has not yet decided this precise issue, the Second Circuit found the intermediate state appellate courts have generally concluded that such dismissals on speedy trial grounds are favorable to the accused. Murphy, 118 F.3d. at 949 ( citing Loeb v. Teitelbaum, 432 N.Y.S.2d 487, 77 A.D.2d 92 (2d Dep't 1980); Campo v. Wolosin, 211 A.D.2d 660, 622 N.Y.S.2d 291(2d Dep't 1995)). The rationale in support of this view is as follows: Part of the rationale for viewing a dismissal for the prosecution's failure to prosecute in timely fashion as favorable to the accused is that the failure to proceed to the merits compels an inference of such an unwillingness or inability to do so as to imply a lack of reasonable grounds for the prosecution. Loeb v. Teitelbaum, 77 A.D.2d at 101, 432 N.Y.2d [N.Y.S.2d] at 494; see generally Halberstadt, 194 N.Y. at 10-11, 86 N.E. at 803-04. Further, to view a dismissal for failure to prosecute within the time allowed as a termination not favorable to the accused would have the effect of unfairly compel[ling] one charged with a criminal offense to waive his constitutional or statutory right to a speedy trial in order to preserve his right to civil retribution for a demonstrated wrong. Lenehan v. Familo, 79 A.D.2d at 77, 436 N.Y.S.2d at 476. Id. at 949-50. ¶ 11. The Second Circuit distinguished among the causes of abandonment and how the underlying cause affects whether there has been a favorable termination of the proceedings. Relying on section 660 of the Restatement Second of Torts, the Court found the prevailing view is if the abandonment was the result of a compromise to which the accused agreed, or an act of mercy requested or accepted by the accused, or misconduct by the accused, it is not a termination in favor of the accused for purposes of a malicious prosecution claim. Murphy, 118 F.3d at 949. Mississippi has followed this view with regard to an act of mercy, finding no favorable termination where the judge elected to dismiss the charges on the grounds of mercy and leniency. See Stewart v. Southeast Foods, Inc., 688 So.2d 733 (Miss.1996). Also in line with the prevailing view, this Court has held that a dismissal reached as a result of a voluntary settlement or compromise does not constitute a termination in favor of the accused. [1] Jones v. Donald Co., 137 Miss. 602, 102 So. 540, (Miss.1925). ¶ 12. In contrast, the Second Circuit recognized that abandonment brought about by the accused's assertion of a constitutional privilege such as the right to a speedy trial does not fall within the aforementioned categories, ... for the accused should not be required to relinquish such a privilege in order to vindicate his right to be free from malicious prosecution. Murphy, 118 F.3d at 949. ¶ 13. Other states including California, Illinois, and Montana have considered the issue at hand and have concurred with the result reached by New York [2] . The Supreme Court of Montana, citing California law, ruled that a dismissal for lack of speedy trial reflects on the merits and could be considered a termination in favor of the accused. In so holding, the Court reasoned: It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits. However, termination must reflect on the merits of the underlying action ... A dismissal for failure to prosecute ... does reflect on the merits of the action ... The reflection arises from the natural assumption that one does not simply abandon a meritorious action once instituted. Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 896 P.2d 411, 432 (Mont.1995) ( quoting Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 395 (Cal.1980)). ¶ 14. The record in the instant case contains no indication as to why the prosecution did not provide the defendants in the initial action with a timely and speedy trial. However, according to the Circuit Court's order dismissing the indictments, the prosecution as well as the defendants presented evidence and arguments to the lower court concerning dismissal on the grounds of speedy trial. Since this information was not provided, we may not speculate as to any cause underlying the abandonment of the present case. ¶ 15. The true issue at hand is whether the delay by the prosecution properly reflects on the merits of the case. If so, a determination that dismissal on speedy trial grounds is a favorable termination sufficient to support a malicious prosecution action would be justified by the reasoning of other courts. Although an answer in the affirmative necessarily requires speculation in every case absent findings on the record indicating reasons for delay, we feel the conclusion reached by other states on this issue is the only proper conclusion. ¶ 16. At first glance, it appears that no malicious prosecution action could possibly stand in light of the fact that neither a trial judge nor a jury technically ruled on the merits of the case. The very existence of the tort of malicious prosecution relies on the existence of an innocent defendant who was maliciously accused, wrongly suffered through court proceedings, and was damaged by the process. How, then, can we let the accused sue in a subsequent suit for malicious prosecution if the basis of the claim— the innocence of the accused—has not been proven? On the contrary, how can we allow the prosecution to delay the proceedings long enough to cause the case to be dismissed and then prevent a person wrongly accused from bringing a subsequent suit for malicious prosecution? There is no simple answer, but it is helpful to approach this problem by considering what result should be avoided rather than what result should be reached. We cannot ignore the possibility that the State could wrongly accuse a person, later conclude the case lacks merit, and simply wait for the case to be dismissed rather than endure an expensive and time consuming trial to determine lack of merit. If the accused has been damaged by the process but lacks recourse to compensate those damages, the result would be unjust. Moreover, there lies the possibility that someone wrongly accused would waive the right to a speedy trial in an effort to retain the option of bringing a subsequent malicious prosecution cause of action. This too would bring a harsh result. ¶ 17. By finding that the State's failure to prosecute properly reflects on the merits of a criminal action and therefore qualifies as a termination in favor of the plaintiff, the accused is given the opportunity to have his day in court by way of a subsequent trial. The accused/plaintiff would then carry the burden of proving the elements of malicious prosecution by a preponderance of the evidence. Whether a plaintiff was maliciously prosecuted is a question of fact properly decided by the jury, not the trial judge. ¶ 18. If we were to adopt a different logic which would effectively bar a subsequent malicious prosecution action, there would inevitably be some criminal defendants left with no remedy for a maliciously instituted suit. We believe this result should be avoided.",analysis
+536,2716934,1,3,"
+The Relevant Statutes The two statutes at issue in this appeal are § 12-1-12(a) and § 12-1-12.1(a). At the time of the trial justice’s decision, § 12-1-12(a) provided as follows: “Any fingerprint, photograph, physical measurements, or other record of identification, heretofore or hereafter taken by or under the direction of the attorney general, the superintendent of state police, the member or members of the police department of any city or town or any other officer authorized by this chapter to take them, of a person under arrest, prior to the final conviction of the person for the offense then charged, shall be destroyed by all offices or departments having the custody or possession within sixty (60) days after there has been an acquittal, dismissal, no true bill, no information, or the person has been otherwise exonerated from the offense with which he or she is charged, and the clerk of court where the exoneration has taken place shall, consistent with § 12-1-12.1, place under seal all records of the person in the case including all records of the division of criminal identification established by § 12-1-4; provided that the person shall not have been previously convicted of any felony offense. Any person who shall violate any provision of this section shall be fined not exceeding one hundred dollars ($100).” -4- Similarly, at that time, § 12-1-12.1(a) provided as follows: “Any person who is acquitted or otherwise exonerated of all counts in a criminal case, including, but not limited to, dismissal or filing of a no true bill or no information, may file for the sealing of his or her court records in the case, provided, that no person who has been convicted of a felony shall have his or her court records sealed pursuant to this section.”6 A disposition amounting to exoneration is one of the preconditions for relief under both of these statutes, and the parties agree that defendant was clearly “exonerated” of Count One in the 1994 information due to the fact that the state dismissed that charge. The defendant asserts that the hearing justice erred in denying the motion to seal because, defendant submits, §§ 12-1-12(a) and 12-1-12.1(a) are in conflict. The defendant posits that the conflict exists because § 12-1-12(a) provides for the sealing of all court records by the clerk of the court within sixty days after exoneration, provided the person has not previously been convicted of a felony and, therefore, the sealing of her court record pertaining to Count One, 6 Sections 12-1-12(a) and 12-1-12.1(a) were amended by the General Assembly effective July 15, 2013 by P.L. 2013, ch. 301, § 1. The amendment did not result in any material, substantive changes that would affect the instant case. The amended portion of § 12-1-12(a) reads as follows: “(2) Any person previously convicted of any felony offense shall not be entitled to relief under this section except for those records in cases of acquittal after trial.” “(3) Any person who shall violate any provision of this section shall be fined not exceeding one hundred dollars ($100).” As amended § 12-1-12.1(a) reads: “Any person who is acquitted or otherwise exonerated of all counts in a criminal case, including, but not limited to, dismissal or filing of a no true bill or no information, may file a motion for the sealing of his or her court records in the case, provided, that no person who has been convicted of a felony shall be entitled to relief under this section except for those records in cases of acquittal after trial.” -5- pursuant to § 12-1-12(a), is mandatory and not discretionary. However, § 12-1-12.1(a) provides for the sealing of all court records only when a person is exonerated of “all counts in a criminal case.” According to defendant’s reading of the statutes, § 12-1-12(a) requires the sealing of court records that § 12-1-12.1(a) does not allow to be sealed. The defendant avers that, because of the alleged conflict, this Court should not rely merely on the plain language of the statute. The state counters, contending that the plain language of § 12-1-12.1(a) clearly requires exoneration of all counts in a criminal case in order for the individual to be eligible to have his or her record sealed. Moreover, the state argues, § 12-1-12(a) deals with the destruction of physical identification records whereas § 12-1-12.1(a) deals with court records. The state also points out that the only time that court records are mentioned in § 12-1-12(a), a specific reference to the sealing requirements of § 12-1-12.1(a) is made. Consequently, the state contends: (1) that there is no conflict between the two statutory provisions; and (2) that this Court should affirm the trial justice’s decision because it is based on the plain language of § 12-1-12.1(a). Pursuant to our canons of statutory construction, we first address whether or not the statute in question has a plain meaning and is, as such, unambiguous. See DeMarco, 26 A.3d at 617; State v. DiCicco, 707 A.2d 251, 253 (R.I. 1998). If we find the statute to be unambiguous, we simply apply the plain meaning and our interpretive task is done. See, e.g., State v. Graff, 17 A.3d 1005, 1010 (R.I. 2011) (“[W]e have indicated that a clear and unambiguous statute will be literally construed.”) (internal quotation marks omitted); State v. Oliveira, 882 A.2d 1097, 1110 (R.I. 2005) (“[W]hen we examine an unambiguous statute, there is no room for statutory construction and we must apply the statute as written.”) (internal quotation marks omitted). We end the process of statutory construction upon concluding that a statute has a plain meaning because “our ultimate goal is to give effect to the General Assembly’s intent,” and we have -6- repeatedly observed that the plain language of a statute is the “best indicator of [legislative] intent.” Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527, 534 (R.I. 2012) (internal quotation marks omitted); see also Martone v. Johnston School Committee, 824 A.2d 426, 431 (R.I. 2003) (“[O]ur ultimate goal is to give effect to the General Assembly’s intent    [and] [t]he best evidence of such intent can be found in the plain language used in the statute.”); Fleet National Bank v. Clark, 714 A.2d 1172, 1177 (R.I. 1998) (“If the language is clear on its face, then the plain meaning of the statute must be given effect and the Court should not look elsewhere to discern the legislative intent.”) (internal quotation marks omitted); Little v. Conflict of Interest Commission, 121 R.I. 232, 237, 397 A.2d 884, 887 (1979) (“It is a primary canon of statutory construction that statutory intent is to be found in the words of a statute, if they are free from ambiguity and express a reasonable meaning.”). We begin by scrutinizing § 12-1-12.1(a), an enactment that relates to judicial records. That statute expressly requires a dismissal of all counts in a criminal case for an individual to be eligible to have his or her record of a dismissed charge sealed: “Any person who is acquitted or otherwise exonerated of all counts in a criminal case    may file a motion for the sealing of his or her court records in the case    .” (Emphasis added.) We detect no ambiguity in the General Assembly’s use of the words “all counts.” The General Assembly certainly “has not sounded an uncertain trumpet” since the plain language of § 12-1-12.1(a) clearly requires that an individual be exonerated of all counts in a criminal case in order to have the record in that case sealed. State v. Calise, 478 A.2d 198, 201 (R.I. 1984) (“In the case at bar the Legislature has not sounded an uncertain trumpet.”). Any other interpretation would require this Court to ignore the statute’s pellucid “all counts” language and, in essence, rewrite the statute—thereby flying in the face of the fundamental principle that a court should not rewrite a statute enacted by the General -7- Assembly. See Calise, 478 A.2d at 201 (stating that the Court has “neither the authority nor the competence to rewrite” a statutory definition); see also Dodd v. United States, 545 U.S. 353, 359 (2005) (stating that a court is simply “not free to rewrite [a] statute that Congress has enacted”). Moreover, we have repeatedly held that a Court may not “broaden statutory provisions by judicial interpretation unless such interpretation is necessary and appropriate in carrying out the clear intent or defining the terms of the statute.” State v. Santos, 870 A.2d 1029, 1032 (R.I. 2005) (internal quotation marks omitted); see also Rivera v. Employees’ Retirement System of Rhode Island, 70 A.3d 905, 910 (R.I. 2013) (“[W]e have noted that [w]here there is no ambiguity, we are not privileged to legislate, by inclusion, words which are not found in the statute.”) (internal quotation marks omitted); Iselin v. Retirement Board of the Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008) (“[O]ur assigned task is simply to interpret the act, not to redraft it    .”) (internal quotation marks omitted). Accordingly, we conclude that the hearing justice appropriately applied the plain language of § 12-1-12.1(a) in denying defendant’s motion to seal, as she was required to do. See State v. Manocchio, 743 A.2d 555, 558 (R.I. 2000) (stating that the Superior Court does not possess an “inherent power to disregard the specific criteria and limitations on the expungement and sealing of    records that are set forth in the statute”); see generally Green v. Biddle, 21 U.S. (8 Wheat.) 1, 89-90 (1823) (“[W]here the words of a law    have a plain and obvious meaning, all construction, in hostility with such meaning, is excluded.”); see also Graff, 17 A.3d at 101012 (finding error in a trial justice’s overly expansive interpretation of a statute). When we apply the plain language of § 12-1-12.1(a), we reach precisely the same conclusion as did the hearing justice: pursuant to that statute, defendant was not entitled to have her record pertaining to Count -8- One sealed because she opted to plead nolo contendere to Count Two, and, consequently, she was not exonerated of “all counts[.]” The defendant contends that, in spite of the plain language of § 12-1-12.1(a), we must go beyond the plain meaning in our analysis because the just cited statute, in defendant’s view, is in conflict with § 12-1-12(a). Upon review of both statutes, however, we are unable to perceive the presence of any conflict. The pertinent language of § 12-1-12(a), which defendant submits is in conflict with § 12-1-12.1(a), reads as follows: “[W]ithin sixty (60) days after there has been an acquittal, dismissal, no true bill, no information, or the person has been otherwise exonerated from the offense with which he or she is charged, the clerk of court where the exoneration has taken place shall, consistent with § 12-1-12.1, place under seal all records of the person in the case including all records of the division of criminal identification established by § 12-1-4    .” (Emphasis added.) Even if we assume arguendo that defendant’s contention is correct and that § 12-1-12(a) is mandatory, there is no conflict created in view of the clear reference in § 12-1-12(a) to § 12-1-12.1. It is a basic canon of statutory construction that “the Legislature is presumed to have intended each word or provision of a statute to express a significant meaning, and the court will give effect to every word, clause, or sentence, whenever possible.” State v. Bryant, 670 A.2d 777, 779 (R.I. 1996); see also State v. Reis, 430 A.2d 749, 752 (R.I. 1981). The General Assembly specifically and unambiguously required that the sealing of records under § 12-1-12(a) be consistent with § 12-1-12.1. Accordingly, we conclude that there is no conflict between § 12-1-12(a) and § 12-1-12.1(a) because § 12-1-12(a) requires the sealing of court records only when doing so would be permissible under § 12-1-12.1(a). As a result, we hold that the hearing justice did not err by hewing to the plain language of § 12-1-12.1(a) when passing upon defendant’s motion to seal. -9-
+The Defendant’s Further Arguments The defendant has set forth some further arguments to support her contention that the hearing justice’s order was in error. We address these arguments briefly. The defendant contends that § 12-1-7 is also in conflict with § 12-1-12.1(a) because § 12-1-7 requires that the Attorney General maintain only a record of information of “all persons who shall be or shall have been convicted of [a] felony, or imprisoned for violating any of the military, naval, or criminal laws of the United States or of any state, and of all well-known and habitual criminals from wherever procurable.” According to defendant, the duty of the Attorney General pursuant to § 12-1-7 does not include the maintenance of records of those individuals who have been convicted of a misdemeanor or had charges against them dismissed. The defendant posits that § 12-1-7 is in conflict with § 12-1-12.1(a) because § 12-1-12.1(a) prohibits the sealing of records that § 12-1-7 does not require the Attorney General to maintain. However, we perceive no conflict between the fact that the Attorney General is required by statute to maintain only records of felony convictions and the fact that the courts are prohibited from sealing a dismissed felony charge when there was a plea of nolo contendere to an accompanying misdemeanor charge, as occurred in the instant case. Each of the two statutory provisions clearly applies to an entirely different governmental body, and consequently the statutes are not even arguably in conflict. See Olamuyiwa, 45 A.3d at 534 (stating that, when a statute is clear and unambiguous the Court gives the words in the statute their plain and ordinary meaning). Moreover, defendant’s contention that these two statutes are in conflict, even if it were meritorious, does not change the conclusion that this Court has made—viz., that the plain language of § 12-1-12.1(a) requires - 10 - exoneration on all counts in a criminal case before an individual is eligible to have his or her record sealed. Finally, defendant further argues that the General Assembly “did not intend for those individuals with a companion misdemeanor charge to be prohibited from destruction of all other ‘felony’ charges that they were exonerated of    .” The defendant, citing the difficulties that an individual encounters when there is a record of his or her arrest, contends that there is no legitimate law enforcement purpose in maintaining the record of charges on which she has been exonerated. Once again, while we do not minimize the challenges that a record of arrest can pose, defendant’s contentions are unavailing due to the plain language of § 12-1-12.1(a)—and a statute’s plain language is “the best indicator of legislative intent.” Graff, 17 A.3d at 1010; see also Santos, 870 A.2d at 1032. We are not the branch of Rhode Island government responsible for policy-making; accordingly, any remedy to such hardship as may result from the application of the plain language of § 12-1-12.1(a) would fall within the competence of the General Assembly. See Air Distribution Corp. v. Airpro Mechanical Co., Inc., 973 A.2d 537, 542 (R.I. 2009); see generally, Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 757-58 (1st Cir. 1976). Accordingly, we hold that the hearing justice did not err when she denied the defendant’s motion to seal Count One, pursuant to § 12-1-12.1(a), because the defendant had not been exonerated of all counts in the criminal case. V",analysis
+537,2613558,1,9,"Aikins argues that the evidence was insufficient to convict him of aggravated robbery and felony murder. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994). Aikins contends that the evidence was insufficient to find him guilty of aggravated robbery and felony murder because the State's key witness, Damon McGlory, was shown to be unreliable time and time again by defense counsel. Aikins points to the trial testimony of McGlory where, in a span of a few minutes, the defense counsel was able to force McGlory to admit to 12 instances where he had lied regarding this case. Thus, Aikins asserts that the testimony of McGlory cannot and should not be believed. As such, Aikins argues that the State's evidence against him, without the testimony of its unreliable key witness, was insufficient to prove he committed these crimes. Aikins further contends that there are many other examples of the State's witnesses lying in regards to this case. From McGlory's testimony, it is abundantly clear that McGlory lied about numerous facts and on numerous occasions. It is also clear from the cross-examination of McGlory that he had the opportunity and the motive to change his story so that it would implicate Aikins. However, [i]n reviewing the sufficiency of the evidence this court will not reweigh the evidence. It is the jury's function, not ours, to weigh the evidence and determine the credibility of witnesses. State v. Johnson, 258 Kan. 475, 483-84, 905 P.2d 94 (1995). Aikins' defense counsel did an excellent job of cross-examining McGlory and pointing out all of the numerous inconsistencies in his testimony. The jury heard all of these inconsistencies and presumably evaluated them. Yet, a jury is not bound to accept the defendant's version of the [facts] in question and, having convicted the defendant, the jury is presumed to have believed the State's evidence and to have drawn from it all inferences favorable to the State. State v. Brunson, 13 Kan. App.2d 384, Syl. ¶ 2, 771 P.2d 938, rev. denied 245 Kan. 786 (1989). Looking at McGlory's testimony in the manner we are required to view it, it becomes clear that the evidence was sufficient to convict Aikins of aggravated robbery and felony murder. McGlory testified that he, Nash, and Aikins knew that Kelly brought a gun with them on the trip from Parsons to Olathe. McGlory testified that twice he heard Nash, Kelly, and Aikins talking about robbing a liquor store the day of the robbery. Further, Jessica Smith's testimony supported McGlory's testimony. She testified that she asked Aikins to give her a ride home from his apartment. According to Smith, Aikins said he would give her a ride home, then he looked over his shoulder to Nash and Kelly, said they had something to do first, and started laughing as if they had an inside joke. Smith testified that on the ride home, she thought there was going to be a robbery because Aikins and Kelly were acting secretive. According to Smith, the group stopped at a liquor store and Nash said there was too much light. At that time, Aikins said that he knew where another liquor store was and he drove to it. Smith testified that at the second liquor store, Aikins noticed it was closed and asked Smith where another liquor store was. Smith told the group about Martin's Liquor Store. According to Smith, Aikins parked the car next to the strip mall. Kelly got out of the car and walked with a limp to the liquor store. Smith testified that Aikins said, He's in, he's in. Then Smith heard gunshots and Kelly came running out of the liquor store. According to Smith's testimony, Kelly got in the car and threw the gun in the back seat. The gun hit Smith in the eye. Smith testified that Aikins asked what it looked like, and Kelly told Aikins it was like when the clerk got shot in the movie, Menace to Society. Smith testified that Aikins drove away and asked Kelly how much money he stole. Smith also testified that Kelly threw the gun out the window and that Kelly's hat and bandannas came off while he was running back to the car. According to Smith, Nash told Aikins how to get back to Aikins' apartment, and the group drove back there. Viewing this evidence in the light most favorable to the prosecution, a rational factfinder could have found Aikins guilty of aggravated robbery and felony murder beyond a reasonable doubt.",sufficiency of the evidence
+538,4563020,1,4,"The motion for reciprocal discipline is granted. The respond­ ent is suspended from the practice of law for 6 months and 1 day to be served starting on May 1, 2020. The respondent shall comply with all notification requirements by suspended members provided by Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, shall be subject to punishment for contempt of this court. The respondent is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2019) and 3-323(B) of the disciplinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court. Judgment of suspension.",conclusion
+539,1608509,1,3,"¶ 59. During 19 days of trial, the chancellor heard all of the witnesses, weighed the testimony, and made specific findings in his opinion. The only error we find is that the chancellor incorrectly ordered Donna to stop recording telephone conversations between Mark and Erin. However, this alone does not rise to the level of reversible error and is harmless considering our holding in part III(C). For all of the foregoing reasons, we find that the chancellor should be affirmed whereas his findings were supported by substantial credible evidence in the record. Anderson, 507 So.2d at 36. The judgment of the Scott County Chancery Court is affirmed. ¶ 60. AFFIRMED. PITTMAN, C.J., BANKS, P.J., MILLS, WALLER, DIAZ AND EASLEY, JJ., CONCUR. McRAE, P.J., AND COBB, J., CONCUR IN RESULT ONLY.",conclusion
+540,1755276,1,3,"Angela Brodine was insured under a group policy of health insurance issued by Blue Cross Blue Shield of Nebraska (Blue Cross). The operative Master Group Contract issued to Brodine's employer contained the following provisions concerning procedures for filing claims under the policy: A. NOTICE OF CLAIM/PROOF OF LOSS: A Covered Person must notify [Blue Cross] when they have received health care Services for which this Contract will pay benefits. This notice is called a claim. The claim must give written proof of the Services provided. The claim may be filed directly by the Covered Person, the Hospital, the Physician or whoever provided the Service. . . . B. TIME LIMIT FOR FILING A CLAIM: A claim should be filed within 90 days of the time the Services are provided, or as soon thereafter as is reasonably possible. If the claim is not filed within 18 months of the date of service, and it was reasonably possible to do so, benefits will not be paid. The contract also contained the following limitations provision: LEGAL ACTIONS: The Employee/Member cannot bring a legal action to recover under the Contract for at least 60 days after written proof of loss is given to [Blue Cross]. The Employee/Member cannot start a legal action after three years from the date written proof of loss is required. Brodine had been issued a certificate of coverage in the form of a booklet entitled A Guide to Your Blue Preferred Health Benefits. The booklet was designed to help participants understand their coverage under the group policy. Participants were admonished that the booklet contained only a partial description of the benefits, exclusions, limitations, and other terms of the Master Group Contract to which [the booklet] refers. It describes the more important parts of that document in a general way. . . . The Master Group Contract controls the coverage for your group. (Emphasis omitted.) The booklet described the limitations period in the following manner: A lawsuit may not be filed less than 60 days after the claim is filed; nor more than three years from the time the claim is required to be filed. Brodine received various medical treatments from January 9 to May 7, 1999, and her health care providers filed claims for services. Blue Cross denied the claims because it alleged the treatments were fertility related and therefore excluded by the terms of the policy and because the treatments were not medically necessary. By July 2, all claims for services at issue in this case had been processed by Blue Cross. Brodine filed suit against Blue Cross in the U.S. District Court for the District of Nebraska on April 23, 2002. She sought recovery under the Employee Retirement Income Security Act of 1974 (ERISA), see 29 U.S.C. § 1001 et seq. (2000 & Supp. III 2003), for the benefits Blue Cross had denied. Upon a joint motion of the parties, the action was dismissed on November 25. The insurance policy had been issued for employees of the Nebraska State Education Association/Omaha Public Schools, a political subdivision. Because political subdivisions were not subject to ERISA, the parties questioned whether the federal court had jurisdiction. On December 22, 2003, Brodine filed suit against Blue Cross in the district court for Douglas County. Blue Cross asserted that Brodine's claim was time barred by the 3-year limitations period set forth in the contract as described above. Blue Cross moved for summary judgment, and the court sustained this motion and dismissed Brodine's action. The court concluded that the appropriate limitations period was 3 years plus 18 months. The court also held that the limitations period was not tolled during the pendency of the federal lawsuit. Because May 7, 1999, was the last date on which Brodine had received medical treatments, the court determined that she was required to file her action no later than November 7, 2003, or 3 years 18 months from May 7, 1999. Brodine timely appealed, and this court moved the appeal to its docket on its own motion, in accordance with the court's authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).",facts
+541,1286606,2,3,"The Appellant argues that the circuit court erred by not granting his post-trial Motion for Judgment of Acquittal when the Appellee produced no evidence of a conspiracy occurring in Calhoun County. The Appellant maintains that because Mr. Jones denied his involvement in the conspiracy during his testimony at trial when he testified that the did not manufacture the methamphetamine or purchase the ingredients, there was no evidence that a conspiracy had occurred. The Appellant argues that based on the evidence, he should have been convicted of operating a clandestine laboratory, and manufacturing a controlled substance, but not conspiracy. In contrast, the Appellee argues that while Mr. Jones testified that he had no knowledge of the Appellant placing methamphetamine precursors and material to produce the drug in his home, Mr. Jones pleaded guilty to conspiracy. The Appellee also asserts that Mr. Jones testified that he smelled something funny in his home while the Appellant was staying at his home and that a meth lab might be at his home. Finally, there was other circumstantial evidence introduced during trial including pictures of all the evidence seized by the West Virginia State Police, testimony by the troopers involved in the search of Mr. Jones's residence, and the testimony from Lieutenant Goff, an expert regarding the chemistry related to methamphetamine, who testified that in his expert opinion a methamphetamine was manufactured at Mr. Jones's home. Consequently, the Appellee maintains that there was sufficient circumstantial evidence to sustain the Appellant's conviction. The Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence. LaRock, 196 W.Va. at 304, 470 S.E.2d at 623. As this Court has further explained: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover, [a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. Syl. Pt 3, in part, Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169. Utilizing the foregoing standards, we now examine whether there was sufficient evidence to support the Appellant's conviction, keeping in mind that all the evidence must be viewed in the light most favorable to the prosecution. Id. As previously mentioned, in order to convict the Appellant of conspiracy to manufacture methamphetamine, the Appellee had the burden of proving that the Appellant agreed with others to commit the crime of manufacturing methamphetamine, and that some overt act was taken by a member of the conspiracy to effect the object of the conspiracy, which was the manufacture of methamphetamine. See Burd, 187 W.Va. at 416, 419 S.E.2d at 677, Syl. Pt. 3. The Appellee offered evidence that both the Appellant and Mr. Jones purchased precursors or items that are used in the manufacture of methamphetamine. Additionally, Mr. Jones testified that the Appellant was staying at Mr. Jones's home, that Mr. Jones had smelled something funny in his home while the Appellant was staying there, and that a meth lab might be at his home. There was other circumstantial evidence introduced during the Appellant's trial including pictures of all the evidence seized by the West Virginia State Police, testimony by the troopers involved in the search of Mr. Jones's residence, and the testimony from Lieutenant Goff that in his expert opinion methamphetamine was manufactured at Mr. Jones's home. There was also a stipulation that at least one of the samples obtained during the search of Mr. Jones's home was methamphetamine. Even though Mr. Jones testified at trial that he was not involved in the conspiracy, he also testified that he had pleaded guilty to the conspiracy. Consequently, given that a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt[,] there is overwhelming evidence to sustain the jury's verdict convicting the Appellant of conspiracy. Syl. Pt 3, in part, Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169. Thus, the circuit court did not err in denying the Appellant's Motion for Judgment of Acquittal.",sufficiency of the evidence
+542,4550984,2,1,"¶ 20. The parties dispute the jurisdictional limits of the Environmental Division as established by § 8503(e). As a threshold matter, however, the parties disagree on whether the Environmental Division ruled on the validity of Rule 2(C)(1)(a). The Environmental Division explained that it “did not rule on the general lawfulness, enforceability, or validity of Rule 2(C)(1)(a).” Distinguishing between as-applied and facial challenges, the Environmental Division claimed that it concluded that “Ms. Hall’s suggested application of Rule 2(C)(1)(a) to the specific facts of this case” would exceed the statutory definition of person for the purposes of development. (Emphasis added.) ¶ 21. Ms. Hall argues that, despite the Environmental Division’s conclusion that it was not invalidating the Rule, it “in effect found the rule unenforceable.” The Resort argues in response that the Environmental Division did not declare Rule 2(C)(1)(a) “invalid or unlawful on its face.” 11 Instead, the Resort argues the court construed the rule in a way that would not improperly expand Act 250 jurisdiction. We agree with Ms. Hall that the Environmental Division ruled on the validity of Rule 2(C)(1)(a). ¶ 22. “The distinction between facial and as-applied challenges . . . goes to the breadth of the remedy . . . .” Gross v. United States, 771 F.3d 10, 14-15 (D.C. Cir. 2014) (first alteration in original) (quotation omitted). In a facial challenge, a litigant argues that “no set of circumstances exists under which [a statute or regulation] [c]ould be valid.” See State v. VanBuren, 2018 VT 95, ¶ 19, ___ Vt. ___, 214 A.3d 791 (quotation omitted); see also, e.g., Lucks Bros., Inc. v. Agency of Transp., 2014 VT 59, ¶ 18, 196 Vt. 584, 99 A.3d 997 (explaining that plaintiff had brought “facial challenge to the Agency’s claims process, arguing that it [was] void and unenforceable”). The remedy in a successful facial challenge is that a court will invalidate the contested law. See Killington, Ltd v. State, 164 Vt. 253, 261, 668 A.2d 1278, 1284 (1995) (explaining that plaintiff’s request for monetary relief was “inconsistent with a facial challenge” because facial challenges usually result in “invalid[ating] the regulation”). In an as-applied challenge, however, a party claims that a statute or regulation is invalid as applied to the facts of a specific case. See In re LaBerge NOV, 2016 VT 99, ¶¶ 25-26, 203 Vt. 98, 152 A.3d 1165; see also, e.g., Aranoff v. Bryan, 153 Vt. 59, 65, 569 A.2d 466, 470 (1989) (concluding that petitioner had brought as-applied challenge because she “attack[ed] the canon as it [was] applied and interpreted by her supervisor”). The scope of the remedy is an as-applied challenge is narrower. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). Although a court grants relief “to the parties before the Court,” it does not necessary invalidate the contested law in its entirety. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477 (1995). ¶ 23. The Environmental Division claimed that it determined only that applying Rule 2(C)(1)(a) to the facts of this specific case would expand the statutory definition of “person” for the purposes of development in § 6001(14). The problem with this reasoning is that the 12 Environmental Division’s conclusion did not rely on a specific set of facts to determine that Rule 2(C)(1)(a) expanded the statutory definition of person. The Environmental Division made a legal conclusion that Rule 2(C)(1)(a) expanded the statutory definition of person because it “conflat[ed] a ‘person’ involved in partition or division of land and a ‘person’ for purposes of development.” This legal conclusion applies under every set of facts, not simply this one. Accordingly, despite its reasoning to the contrary, the Environmental Division concluded that Rule 2(C)(1)(a) was invalid to the extent that it expanded the statutory definition of person for the purposes of development in § 6001(14). ¶ 24. The question on appeal is accordingly whether the Environmental Division had jurisdiction to determine the validity of Rule 2(C)(1)(a). The Vermont Constitution provides that “[t]he judicial power of the State shall be vested in a unified judicial system which shall be composed of a Supreme Court, a Superior Court, and such other subordinate courts as the General Assembly may from time to time ordain and establish.” Vt. Const. Ch. II, § 4. Unlike the Supreme Court, whose jurisdiction is defined by the Vermont Constitution, “[t]he jurisdiction of the trial courts is shaped by the legislature.” State v. Saari, 152 Vt. 510, 518, 568 A.2d 344, 349 (1989). The Vermont Constitution specifically provides that all inferior courts “shall have original and appellate jurisdiction as provided by law.” Vt. Const. Ch. II, § 31. ¶ 25. Consistent with its authority to establish subordinate courts, the Legislature created the Environmental Division of the Vermont Superior Court, which has exclusive jurisdiction over, among other things, all appeals of “acts or decisions of the Secretary of Natural Resources, district environmental coordinators, and District Commissions.” 10 V.S.A. §§ 8501(1), 8503(a); Gould v. Town of Monkton, 2016 VT 84, ¶ 10, 202 Vt. 535, 150 A.3d 1084. Section 8503(e), however, specifies that the Environmental Division does not have jurisdiction over “appeals from [Act 250] rulemaking decisions by the [Natural Resources Board (NRB)].” 10 V.S.A. § 8503(e). Instead, appeals from Act 250 rulemaking decisions by the NRB are governed by the Vermont 13 Administrative Procedure Act (VAPA). Id. § 6025(b) (providing that NRB “may adopt substantive rules, in accordance with the provisions of 3 V.S.A. chapter 25, that interpret and carry out the provisions of [Act 250]”); 3 V.S.A. § 801(a) (explaining that chapter 25 “may be cited as the ‘Vermont Administrative Procedure Act’ ”). VAPA, in turn, provides that “[t]he validity or applicability of a rule may be determined in an action for declaratory judgment in the [Civil Division of the] Washington Superior Court.”9 3 V.S.A. § 807; see also 12 V.S.A. § 4711 (Declaratory Judgment Act) (“Superior Courts within their jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”). ¶ 26. Construing all these statutory provisions together, Ms. Hall argues that the Environmental Division lacks jurisdiction to invalidate Act 250 Rules. She contends that § 8503(e), in conjunction with VAPA, indicates that the exclusive way to challenge an Act 250 Rule is a declaratory-judgment action in the Civil Division of the Washington Superior Court. We disagree. The plain language of § 8503(e) and the larger statutory scheme lead us to conclude that parties may challenge an NRB rulemaking decision in accordance with VAPA by bringing a declaratory-judgment action in the Civil Division of the Washington Superior Court. There is no indication, however, that by establishing this avenue for challenging Act 250 rulemaking decisions, the Legislature intended to divest the Environmental Division of jurisdiction to invalidate an Act 250 regulation when exercising its exclusive jurisdiction over the subject matters outlined in § 8503. 9 VAPA predates Vermont’s Unified Court System. 4 V.S.A. § 1. Under Vermont’s Unified Court System, the Civil Division of the Superior Court has “original and exclusive jurisdiction of all original civil actions, except as otherwise provided.” Id. §§ 30, 31. Although § 807 of VAPA refers generally to the Washington Superior Court, 4 V.S.A. § 31 specifies that the Washington Superior Court’s Civil Division has jurisdiction over an § 807 proceeding. 14 ¶ 27. “Our objective in statutory interpretation is to construe and effectuate legislative intent behind a statute.” Northfield Sch. Bd. v. Wash. S. Educ. Ass’n, 2019 VT 26, ¶ 13, ___ Vt. ___, 210 A.3d 460 (quotation omitted). “In accomplishing this, our first step is to examine the statute’s language because we presume that the Legislature intended the plain, ordinary meaning of the statutory language.” Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215. “[W]here there is ambiguity [in a statute], we look to the general context of the statutory language . . . .” Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998). ¶ 28. Beginning with the plain text, § 8503(e) provides that the Environmental Division does not have jurisdiction over “appeals from [Act 250] rulemaking decisions by the [NRB].” 10 V.S.A. § 8503(e). By its plain text, the jurisdictional limitations in § 8503(e) apply to “appeals” of “rulemaking decisions by the [NRB].” The present case, however, does not involve an appeal of an NRB rulemaking decision; rather, it involves an appeal of a decision by a district coordinator, i.e., the issuance of a binding jurisdictional opinion pursuant to 10 V.S.A. § 6007. Because this case does not involve an appeal of an NRB rulemaking decision, the jurisdictional limitations in § 8503(e) do not apply. ¶ 29. Contrary to Ms. Hall’s suggestion, the larger statutory scheme confirms our reading of § 8503(e). While the Legislature explained that the purpose of creating the Environmental Division was to “consolidate existing appeal routes,” it specifically emphasized in several different sections that it did not intend to replace the procedures outlined in VAPA for adopting or challenging rules. See 10 V.S.A. § 8501(1) (providing that the purpose of creating the Environmental Division was to “consolidate existing appeal routes” but specifically “excluding . . . the adoption of rules under [VAPA]”); id. § 8503(a) (excluding challenges to “rulemaking” from the Environmental Division’s jurisdiction); id. § 6025 (providing that NRB “may adopt substantive rules, in accordance with the provisions of [VAPA], that interpret and carry out the 15 provisions of [Act 250]”). The Environmental Division does not have jurisdiction over challenges to Act 250 rulemaking decisions by the NRB because those challenges are governed by VAPA. ¶ 30. VAPA provides that parties “may” bring declaratory judgment actions in the Civil Division of the Washington Superior Court “if it is alleged that [a] rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff.” 3 V.S.A. § 807. We have never explicitly addressed whether § 807 of VAPA provides the exclusive way to challenge an agency regulation. See Miller v. IBM, 163 Vt. 396, 398 n.2, 659 A.2d 1126, 1126 n.2 (1995) (declining to address defendant’s arguments that that exclusive way to challenge agency rule is “declaratory judgment under 3 V.S.A. § 807”); Appeal of Stratton Corp., 157 Vt. 436, 440, 600 A.2d 297, 299 (1991) (declining to address Attorney General’s argument that “the exclusive method to challenge the validity of a rule is by declaratory judgment action in Washington Superior Court as provided in 3 V.S.A. § 807”). However, the plain text of § 807, and our case law explaining why the Legislature created a declaratory-judgment remedy, indicate that § 807 of VAPA is not the exclusive way to challenge agency regulations. ¶ 31. Section 807 provides that parties “may” bring a declaratory judgment action in the Civil Division of the Washington Superior Court. The use of the word “may” indicates that a plaintiff is permitted, but not required, to file a declaratory judgment action to challenge an agency regulation. See May, Black’s Law Dictionary (11th ed. 2019) (defining “may” as “[t]o be permitted to” and “[t]o be a possibility”). VAPA establishes a discretionary avenue for challenging regulations because a declaratory judgment action “is a cumulative remedy.” Farm Bureau Mut. Auto. Inc. v. Houle, 118 Vt. 154, 158, 102 A.2d 326, 329 (1954). In fact, the Legislature created this additional remedy to correct “deficiencies in legal procedure.” Poulin v. Town of Danville, 128 Vt. 161, 163, 260 A.2d 208, 209 (1969); see also 10B C. Wright & A. Miller, Federal Practice & Procedure § 2751 (4th ed. 2020) (“The declaratory-judgment remedy enlarges the judicial 16 process and makes it more pliant and malleable by putting a new implement at the disposal of the courts.”). ¶ 32. The specific deficiency the Legislature intended to correct by creating the declaratory-judgment remedy was “the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating a suit at his leisure or—never.” C. Wright & A. Miller, supra, § 2751 (quoting Japan Gas Lighter Ass’n v. Ronson Corp., 257 F. Supp. 219, 237 (D.N.J. 1966)) (interpreting Federal Declaratory Judgment Act); see also 12 V.S.A. § 4725 (explaining that Vermont’s Declaratory Judgment Act “shall be so interpreted . . . as far as possible to harmonize with federal laws and regulations on the subject of declaratory judgments”). The declaratory-judgment remedy therefore “afford[s] one threatened with liability an early adjudication without waiting until an adversary should see fit to begin an action after the damage has accrued.” C. Wright & A. Miller, supra, § 2751; Cooperative Fire Ins. Ass’n of Vt. v. Bizon, 166 Vt. 326, 330, 693 A.2d 722, 726 (1997) (“The [Declaratory Judgment] Act opened to plaintiffs at an early stage of the controversy a right to petition for relief not heretofore possessed.” (alteration and quotation omitted)). ¶ 33. By establishing in VAPA that parties “may” challenge regulations via declaratory judgment actions, the Legislature did not intend to create an exclusive avenue for challenging regulations. Justice Dooley, post, ¶¶ 55-61, provides several additional persuasive reasons why VAPA is not the exclusive way to challenge agency regulations. Rather than creating an exclusive avenue for challenging agency regulations, VAPA merely establishes the Civil Division of the Washington Superior Court as the venue that hosts declaratory-judgment challenges to regulations. ¶ 34. The statutory scheme therefore confirms our reading of § 8503(e)’s plain text. The Legislature expressly provided that the Environmental Division does not have jurisdiction over challenges to Act 250 rulemaking decisions by the NRB because VAPA establishes a separate scheme for those challenges: a declaratory-judgment action in the Civil Division of the 17 Washington Superior Court. But, because VAPA is not the exclusive avenue for challenging agency regulations, the Environmental Division retains jurisdiction to consider the validity of Act 250 regulations to resolve particular disputes within its exclusive jurisdiction. ¶ 35. In sum, in § 8503(e) the Legislature merely reinforced that if parties want to challenge Act 250 rulemaking decisions by the NRB, they must follow the general procedures outlined in VAPA for challenging agency regulations. Reinforcing that challenges to Act 250 rulemaking decisions, like all direct challenges to agency regulations, are governed by VAPA in no way suggests that the Legislature intended to divest the Environmental Division of jurisdiction to invalidate agency regulations to resolve disputes within its exclusive jurisdiction. To hold otherwise would produce an absurd result: the Environmental Division would be required to apply Act 250 rules without regard to their validity.",jurisdiction
+543,4577841,1,5,"1. Type of Action The county court characterized the proceeding below as an “equity action,” that is, a suit in equity. We do not read the parties’ briefs as challenging that classification. But two allegations were inconsistent with a suit in equity. First, an action for conversion sounds in law. 10 Second, a claim for unjust enrichment is a quasi-contract claim for restitution. 11 And we have held that any quasi-contract claim for restitution is an action at law. 12 [8] Because the county court treated the matter as an equity action, it necessarily tried the case on some basis other than conversion or unjust enrichment. Cases are determined in an 5 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). 6 Hochstein v. Cedar Cty. Bd. of Adjustment, 305 Neb. 321, 940 N.W.2d 251 (2020). 7 In re Estate of Radford, 304 Neb. 205, 933 N.W.2d 595 (2019). 8 Neb. Rev. Stat. §§ 30-401 to 30-406, 30-701 to 30-713, 30-2201 to 30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, 30-4101 to 30-4118, and 30-4201 to 30-4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019). 9 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). 10 Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015). 11 See City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011). 12 See id. - 657 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 appellate court on the theory upon which they were tried. 13 Thus, we will determine the appeal based on the theory utilized in the court below. [9,10] Heiden sought to recover property that Adelung received but which Heiden asserted belonged to the decedent’s estate. In other words, she sought an accounting. An action for an accounting of estate property is in equity. 14 Because the action sounded in equity, we must review it accordingly. This requires us to review the county court’s judgment de novo on the record. Despite de novo review, when credible evidence is in conflict on material issues of fact, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. 15 2. Jurisdiction Adelung presents two arguments challenging the county court’s jurisdiction of this proceeding. One is based on the nature of Heiden’s claims. This has two components: the extent of the county court’s probate jurisdiction and its jurisdiction over powers of attorney. The other stems from the court’s failure to charge and collect a filing fee. In both arguments, he claims the court lacked subject matter jurisdiction. Before turning to his specific arguments, we recall general principles, change in probate jurisdiction, and the development of jurisdiction regarding powers of attorney. (a) General Principles [11,12] Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with 13 Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994). 14 Cheloha v. Cheloha, 255 Neb. 32, 582 N.W.2d 291 (1998), disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). 15 Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). - 658 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 the general subject matter involved. 16 Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. 17 (b) Probate Jurisdiction [13] We have said that generally, the county court has exclusive original jurisdiction over all matters relating to decedents’ estates. 18 But this is not as simple as it sounds. Adelung directs us to Lambie v. Stahl, 19 where in 1965 this court recognized that a title dispute between an estate repre­ sentative and a third person with an adverse claim was “ordinarily decided in another forum,” 20 that is, not in the ­probate court. There, we said, “Jurisdiction to enforce a right of retainer does not imply jurisdiction to render a personal judgment.” 21 In a later case, describing the legal regime prior to 1970, we explained, “At least since 1879, the county court has had exclusive original jurisdiction in all matters of probate and the settlement of decedents’ estates, and the District Court has had exclusive original jurisdiction in equity cases.” 22 Thus, at the time of the Lambie decision, a county court simply had no jurisdiction in equity cases. [14-17] Shortly after Lambie, however, that changed, as we explained in a 1985 case where we articulated three important concepts: 23 First, the county courts, in exercising exclusive original jurisdiction over estates, may apply equitable principles 16 Christine W. v. Trevor W., supra note 4. 17 Id. 18 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). See Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2018). See, also, § 30-2211(a). 19 Lambie v. Stahl, 178 Neb. 506, 134 N.W.2d 86 (1965). 20 Id. at 507, 134 N.W.2d at 87. 21 Id. at 508, 134 N.W.2d at 87. 22 In re Estate of Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 785, 295 N.W.2d 275, 280 (1980). 23 See In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985). - 659 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 to matters within probate jurisdiction. 24 Second, applying the constitutional avoidance canon, we determined that the county court’s jurisdiction under §§ 24-517(1) and 30-2211 cannot be “exclusive” 25 as to matters within the district court’s “chancery and common law jurisdiction” conferred by Neb. Const. art. V, § 9. Finally, we acknowledged that the grant of jurisdiction to the district court under article V, § 9, while original, is not exclusive. 26 Under the doctrine of jurisdictional priority, when different state courts have concurrent original jurisdiction over the same subject matter, basic principles of judicial administration require that the first court to acquire jurisdiction should retain it to the exclusion of another court. 27 In the modern era, we have upheld a county court’s jurisdiction over matters related to a decedent’s estate in numerous situations. These include partitioning real estate belonging to a decedent, 28 adjudicating a claim against a decedent’s estate based upon an alleged oral contract to execute a will leaving the decedent’s business to the claimant employee, 29 determining the title to personal property possessed by the decedent where ownership was asserted by another, 30 resolving a claim by a decedent wife’s personal representative of a share of ownership of bearer bonds allegedly owned as tenants in common as against a decedent husband’s personal represent­ ative, 31 and recovering an improper distribution from a pending estate 32 pursuant to a probate statute. 33 In each instance, 24 Id. 25 See id. at 332, 377 N.W.2d at 85. 26 Id. 27 Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019). 28 See In re Estate of Kentopp. Kentopp v. Kentopp, supra note 22. 29 See In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981). 30 See In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984). 31 See In re Estate of Steppuhn, supra note 23. 32 See Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006). 33 See § 30-24,106. - 660 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 jurisdiction arose from the county court’s jurisdiction under § 24-517(1). (c) Powers of Attorney Section 24-517(13) confers upon the county court “[c]oncurrent original jurisdiction with the district court in any matter relating to a power of attorney and the action or inaction of any agent acting under a power of attorney.” Adelung makes a complex argument, but before considering it, some history is helpful. At the time of the 2008 power of attorney, powers of attorney were governed by the Uniform Durable Power of Attorney Act (UDPAA) 34 and by the common law. 35 The provisions of the UDPAA were quite limited, focused mainly on validating a durable power of attorney—“thereby trumping the common law agency principle that the authority of the agent ceased upon the disability of the principal.” 36 The sections of the UDPAA were, in turn, included in the definition of the Nebraska Probate Code. 37 In the UDPAA, the only statute conferring jurisdiction to a county court stated, “The county court and the district court of the principal’s domicile shall have concurrent jurisdiction to determine the validity and enforceability of a durable power of attorney.” 38 But the UDPAA lacked any provision for judicial review of an agent’s conduct or any authorization for an agent to make gifts. Thus, in 2008, the only forum for a challenge to an agent’s conduct was the district court. 39 34 See Neb. Rev. Stat. §§ 30-2664 to 30-2672 (Reissue 2008). 35 See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act and Power of Attorney Act: A New Era Begins, 46 Creighton L. Rev. 499 (2013). 36 Id. at 506. 37 See § 30-2201 (Reissue 2008). 38 § 30-2671. 39 See, Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (2008); Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003). - 661 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 In 2012, the Legislature repealed the UDPAA and enacted the NUPOAA. 40 The 2012 legislation also repealed the Nebraska Short Form Act, 41 which provided numerous definitions that could be included in powers of attorney by reference to “[s]hort form expression[s].” 42 All of the sections of the NUPOAA were included within the scope of the Nebraska Probate Code. 43 The NUPOAA conferred concurrent jurisdiction on the county court and the district court “to determine the validity and enforceability of a power of attorney.” 44 But the NUPOAA also greatly expanded the statutory scope: The Uniform Law Commission “designed the [uniform act] to be comprehensive in nature, addressing the many issues that arose with the increased utilization of the durable power of attorney.” 45 And among the statutory provisions included in the NUPOAA was one authorizing a “petition [to] a court to construe a power of attorney or review the agent’s conduct and grant appropriate relief.” 46 Thus, when the NUPOAA conferred concurrent jurisdiction “to determine the validity and enforceability of a power of attorney,” 47 it did so in a much broader context than the same words had conveyed under the UDPAA. 48 At the time the Legislature adopted the NUPOAA, it made no corresponding change to § 24-517. The Legislature remedied this omission in 2015, 49 adding the above-quoted § 24-517(13). With this understanding, we turn to Adelung’s jurisdictional arguments. 40 See 2012 Neb. Laws, L.B. 1113. 41 See Neb. Rev. Stat. §§ 49-1501 to 49-1562 (Reissue 2010). 42 See § 49-1504(5). 43 See § 30-2201. 44 § 30-4006(1). 45 Volkmer, supra note 35 at 506. 46 § 30-4016(1). 47 § 30-4006(1). 48 See § 30-2671. 49 See 2015 Neb. Laws, L.B. 314. - 662 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (d) Adelung’s Jurisdictional Arguments (i) Power of Attorney Adelung posits that the 2015 legislation adding § 24-517(13) changed the county court’s jurisdiction contrary to the Legislature’s purpose. He asserts that the 2012 grant of jurisdiction in § 30-4006(1) is “limited to determining ‘the validity and enforceability of a power of attorney.’” 50 Reading the 2015 addition of § 24-517(13) as recognizing jurisdiction “in any matter relating to a power of attorney and the action or inaction of any agent acting under a power of attorney” 51 would, he asserts, render § 30-4006(1) superfluous. [18,19] Adelung relies on two well-established principles of law. First, a collection of statutes pertaining to a single subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. 52 Second, a court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 53 Next, asserting that the difference between § 24-517(13) and § 30-4006(1) creates ambiguity, Adelung relies on legislative history to show that L.B. 314—which added § 24-517(13)— was not intended to make any substantive changes to county court jurisdiction. He first notes the introducer’s statement that the purpose of L.B. 314 was “to clearly define the jurisdiction of the County Court in one statutory section.” 54 He 50 Brief for appellant at 27 (quoting § 30-4006(1)). 51 § 24-517(13). 52 Shelter Mut. Ins. Co. v. Freudenberg, 304 Neb. 1015, 938 N.W.2d 92 (2020). 53 Id. 54 Introducer’s Statement of Intent, L.B. 314, Judiciary Committee, 104th Leg., 1st Sess. (Jan. 29, 2015). - 663 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 also ­emphasizes the introducer’s testimony to the Judiciary Committee that the amendment “clarifies that the jurisdiction is not changing but only becoming clearly stated. [The amendment] does not change the jurisdiction of any court.” 55 We do not agree that the legislative history is as definitive as Adelung claims. The committee statement asserted that the amendment would “establish the county court’s concurrent original jurisdiction with the district court in a number of areas, including any matter relating to a power of attorney and the inaction of any agent acting under a power of attorney.” 56 [20] But more important, in the absence of ambiguity, we do not consult legislative history. An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 57 And we need not do so here. The premise of Adelung’s ambiguity argument is flawed. He compares only §§ 24-517(13) and 30-4006(1) and reads the latter in isolation. But when § 24-517(13) is read in the context of all of the NUPOAA, § 30-4006(1) cannot be described as superfluous. The words “validity and enforceability” therein must be read together with the other sections governing virtually every aspect of a power of attorney. In light of the broad scope of the NUPOAA and its “comprehensive . . . nature,” 58 the plain language of these sections becomes consistent, harmonious, and sensible. And they certainly confer county court jurisdiction to “construe a power of attorney or review the agent’s conduct and grant appropriate relief.” 59 55 Judiciary Committee Hearing, L.B. 314, 104th Leg., 1st Sess. 11 (Jan. 29, 2015). 56 Committee Statement, L.B. 314, Judiciary Committee, 104th Leg., 1st Sess. (Jan. 29, 2015). 57 Shelter Mut. Ins. Co. v. Freudenburg, supra note 52. 58 Volkmer, supra note 35 at 506. 59 § 30-4016(1). - 664 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (ii) Probate Jurisdiction Adelung’s arguments regarding the probate court’s jurisdiction of Heiden’s suit for an equitable accounting fare no better. Several statutory provisions apply. First, with certain specified exceptions, § 24-517(1) confers jurisdiction of “all matters relating to decedents’ estates” to the county court. Second, contrary to positions taken at oral argument, statutory authority for related proceedings appears in the Nebraska Probate Code. Section 30-2405 authorizes interested persons to “petition the court for orders in formal proceedings within the court’s jurisdiction including but not limited to those described in this article.” (Emphasis supplied.) This section also confers upon the county court “jurisdiction of all proceedings to determine how decedents’ estates subject to the laws of this state are to be administered, expended and distributed.” 60 Section 30-2464(c) granted Heiden, as personal representative, the “same standing to sue and be sued in the courts of this state . . . as his or her decedent had immediately prior to death.” Before the decedent’s death, she had the right to seek a review of the agent’s conduct and appropriate relief. 61 And § 30-2470 empowered the personal representative to “maintain an action to recover possession of property or to determine the title thereto.” Third, § 30-2476(22) authorized Heiden to “prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate.” She certainly could have commenced this action in the district court, which had concurrent jurisdiction. But at that point, the district court’s jurisdiction had not been invoked. [21,22] These statutory provisions conferred ample authority to pursue the equitable action against Adelung. He was a devisee of the estate. As the decedent’s agent pursuant to the power of attorney, he stood in a fiduciary relationship with 60 § 30-2405. 61 See § 30-4016(1). - 665 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 the decedent. As we said prior to enactment of the NUPOAA, an agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal. 62 The NUPOAA places an agent under a power of attorney in a fiduciary relationship with his or her principal. 63 To escape the county court’s statutory jurisdiction over all matters relating to decedents’ estates, Adelung relies on several cases; but none supports his argument. One was merely an example of a common-law or equitable action initiated in a district court. 64 Another pertained to nonprobate property, where the property was transferred by contract and was not testamentary in nature. 65 One addressed the jurisdiction over statutory fair and equitable distribution of tort claim proceeds subject to subrogation for workers’ compensation benefits paid by or on behalf of an employer. 66 One simply had no relationship to a decedent. 67 And one, which also had no relationship to a decedent’s estate, attempted to use a different subsection of § 24-517 to support injunctive relief in a county court action. 68 [23] In common-law and equity actions relating to decedents’ estates, the county court has concurrent original jurisdiction with the district court. 69 This is such a case. (iii) Filing Fee Adelung’s jurisdictional argument asserts that because Heiden did not pay a filing fee at the time she filed her petition, the 62 Crosby v. Luehrs, supra note 39. 63 See § 30-4014. 64 See Crosby v. Luehrs, supra note 39. 65 Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250 (1982). 66 See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016). 67 See Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990). 68 See Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) (addressing § 24-517(4)). 69 See In re Estate of Steppuhn, supra note 23. - 666 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 court did not acquire jurisdiction. Heiden responds that the court did not charge a filing fee. Adelung cites no authority for the proposition that a county court does not acquire subject matter jurisdiction of an original proceeding where no filing fee is paid. Certainly, the Legislature understands how to make the payment of a fee jurisdictional. 70 We find no merit to this argument. Because Adelung addressed the matter purely as an issue of jurisdiction, we express no opinion regarding any fees which may be owed to the county court. 71 Having concluded that all of Adelung’s arguments challenging the county court’s jurisdiction lack merit, we turn to the substantive issues. 3. Power of Attorney: Underlying Questions Before addressing specific questions regarding Adelung’s liability to the decedent’s estate, we resolve two issues regarding the 2008 power of attorney. (a) General Assignment Adelung generally assigns that that county court “fail[ed] to apply” several provisions of the NUPOAA, which he lists by section number. We agree with Heiden that the court’s decision does not disclose any erroneous recitation from the NUPOAA. We do not address this general assignment further. (b) UDPAA and Common Law, or NUPOAA? Adelung used the 2008 power of attorney both before and after the operative date of the NUPOAA on January 1, 70 See, Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals from district court to Court of Appeals or Supreme Court); Neb. Rev. Stat. § 25-2729 (Cum. Supp. 2018) (appeals from county court to district court). 71 See Neb. Rev. Stat. § 33-125(1)(a)(ii) (Reissue 2016) (establishing fee for “any other proceeding under the Nebraska Probate Code for which no court fee is established by statute”). - 667 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 2013. 72 Heiden does not dispute that the NUPOAA applies to acts after that date. But the parties disagree whether it applies to actions taken before that date. Adelung argues that it does. We disagree. One section of the NUPOAA controls its effect, both retroactively and prospectively. 73 Although it contains four subsections, only three apply here. And the dispute focuses on the last one. The first specifies that unless the act provides otherwise, the NUPOAA applies to a power of attorney created before, on, or after January 1, 2013. 74 By this language, the NUPOAA would apply to the 2008 power of attorney. The second states that the NUPOAA applies to a judicial proceeding concerning a power of attorney commenced on or after that date. 75 Because Heiden’s petition was filed over 3 years after the operative date, the NUPOAA applied to the proceeding. The last subsection, which the parties dispute, states that “[a]n act done before January 1, 2013, is not affected by the [NUPOAA].” 76 Although § 30-4045 is patterned after a provision of the Uniform Power of Attorney Act, 77 which was adopted in over half of the states, our research did not uncover an examination by any court of language similar to that in § 30-4045(4). To aid in interpretation, Adelung directs us to the Nebraska Uniform Trust Code (NUTC), 78 which contains a substantially similar statute regarding its retroactive scope. 79 Our case 72 See 2012 Neb. Laws, L.B. 1113, § 48. 73 See § 30-4045. 74 § 30-4045(1). 75 § 30-4045(2). 76 § 30-4045(4). 77 See Unif. Power of Attorney Act § 403, 8B U.L.A. 262 (2014). 78 Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & Cum. Supp. 2018). 79 See § 30-38,110(a). - 668 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 law shows that we have applied the NUTC to trusts created prior to the NUTC’s enactment. 80 And we have recognized that § 30-38,110(a)(3) required application of the NUTC to judicial proceedings commenced prior to its operative date “except in those instances where we determine that such application would ‘substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties,’ in which instance, we must apply prior law which has been superseded by the NUTC.” 81 But the NUPOAA equivalent to § 30-38,110(a)(3)— § 30-4045(3)—does not apply here. Section 30-4045(3) governs the treatment of a judicial proceeding commenced before January 1, 2013. Here, the proceeding was commenced in 2016, well after the NUPOAA’s operative date. Instead, this proceeding is governed by § 30-4045(2), which applies the NUPOAA to any judicial proceeding commenced after the NUPOAA’s operative date. Thus, the NUPOAA applies to this proceeding. But that does not end our inquiry. Like the NUPOAA, the NUTC states that “an act done before [the operative date] is not affected by the [NUTC].” 82 And in none of those cases did we apply or interpret the NUTC equivalent to § 30-4045(4). In one case, the equivalent subsection was not mentioned. 83 In another, the law was the same before and after the operative date. 84 For assistance regarding § 30-4045(4), we turn to a comment to the Uniform Trust Code which provides further guidance regarding retroactivity. It states: 80 See, In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007); In re Trust Created by Inman, 269 Neb. 376, 693 N.W.2d 514 (2005). 81 In re Trust Created by Inman, supra note 80, 269 Neb. at 381, 693 N.W.2d at 519. 82 § 30-38,110(a)(4). 83 See In re Margaret Mastny Revocable Trust, supra note 80. 84 In re Trust Created by Inman, supra note 80. - 669 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 This Code cannot be fully retroactive, however. Constitutional limitations preclude retroactive application of rules of construction to alter property rights under trusts that became irrevocable prior to the effective date. Also, rights already barred by a statute of limitation or rule under former law are not revived by a possibly ­longer statute or more liberal rule under this Code. Nor is an act done before the effective date of the Code affected by the Code’s enactment. 85 [24] We agree with Adelung that § 30-4045—the provision of the NUPOAA governing retroactivity—should be construed similarly to § 30-38,110—the comparable provision of the NUTC. But we disagree with his conclusion. While the NUPOAA applies to this proceeding, the plain language of the statute makes it clear that the NUPOAA does not apply retroactively to acts done before its effective date. 86 To the extent that Adelung’s actions as an agent prior to January 1, 2013, may have violated a duty he owed to the decedent under the UDPAA or the common law, applying the NUPOAA would prejudice the decedent’s rights. And of course, as personal representative of the decedent’s estate, Heiden stands in the decedent’s shoes to assert those rights. Because the plain language of the statute makes it clear that the NUPOAA does not apply retroactively to acts done before its effective date, Adelung’s use of the power of attorney prior to January 1, 2013, is not governed by the NUPOAA but his actions after that date are. 4. Liability Issues We now turn to the other substantive issues raised by Adelung’s appeal and Heiden’s cross-appeal. Because of the county court’s factual findings, it seems expedient to address the issues in four segments of time. 85 Unif. Trust Code § 1106, comment, 7D U.L.A. 380 (2018) (emphasis supplied). 86 See § 30-4045(4). - 670 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (a) Before August 2010: Heiden’s Cross-Appeal The county court determined that Adelung was not liable to the estate for either farm rents he collected or checks he wrote to himself or his family members prior to August 2010, when the decedent moved to an assisted living facility. Heiden’s cross-appeal, by separate assignments, challenges both of those conclusions. The court specifically found that the decedent was “very competent and aware of her surroundings and situation” during this period of time. Here, our standard of review becomes critical. We have reviewed the record de novo. But we are permitted to consider and give weight to the county court’s observation of the witnesses and credibility assessments. Having done so, we find no merit to Heiden’s cross-appeal. In light of the county court’s findings, we are not persuaded that Adelung acted contrary to the decedent’s express instructions or in contravention of her wishes. We affirm that portion of the county court’s judgment. (b) August 2010 Through January 2012: Statute of Limitations Although Adelung raised the statute of limitations below, the county court’s judgment made no mention of it. The parties agree that Neb. Rev. Stat. § 25-207 (Reissue 2016) governs this proceeding. Under that statute, an action must be brought within 4 years. Adelung argues that Heiden’s petition was filed on February 1, 2016; that the decedent “initiated and always knew about the money [Adelung] was receiving”; and that the county court erred in allowing Heiden to recover for transactions which occurred before February 1, 2012. 87 Heiden acknowledges the rules that a statute of limitations begins to run as soon as the claim accrues and that an action in tort accrues as soon 87 Brief for appellant at 28. - 671 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 as the act or omission occurs. 88 But she argues that in certain categories of cases, the injury is not obvious and the individual is wholly unaware that he or she has suffered an injury or damage. 89 In such cases, it is manifestly unjust for the statute of limitations to begin to run before a claimant could reasonably become aware of the injury. Heiden argues that Adelung “did not present sufficient evidence to demonstrate . . . that [the decedent] was even aware that such money was being taken.” 90 We disagree. [25,26] First, we have already determined that the parties tried this case as an action in equity for an accounting of estate property. The statute of limitations for an action in equity for an accounting of estate property is 4 years. 91 The accrual of a cause of action means the right to maintain and institute a suit, and whenever one person may sue another, a cause of action has accrued and the statute begins to run, but not until that time. So whether at law or in equity, the cause of action arises when, and only when, the aggrieved party has a right to apply to the proper tribunal for relief. 92 For the sake of completeness, we note that a probate statute prevents a cause of action belonging to a decedent, which had not been barred as of the date of the decedent’s death, from being barred sooner than 4 months after death. 93 Because this action was commenced more than 4 months after the decedent’s death, that statute does not apply here. Second, we think the evidence is essentially undisputed that the decedent initiated the practice of Adelung’s retaining the farm rents. The decedent initially signed the checks for gifts to Adelung and his family members. Coupled with the county 88 See Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007). 89 See Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002). 90 Brief for appellee at 28. 91 See Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319 (1962). 92 Id. 93 See § 30-2409. - 672 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 court’s finding that the decedent was “very competent and aware of her surroundings and situation,” this evidence establishes that the decedent was aware of these transactions at the times they were occurring. Thus, the cause of action accrued with each transaction. As personal representative, Heiden stands in the decedent’s shoes. The decedent’s knowledge binds the estate. Upon our de novo review, we conclude that the statute of limitations bars any recovery for money Adelung received prior to February 1, 2012. (c) February Through December 2012: Before NUPOAA’s Operative Date [27,28] In this section, we address the money Adelung received from or on behalf of the decedent prior to the operative date of the NUPOAA. The 2008 power of attorney was in effect throughout this period. A power of attorney authorizes another to act as one’s agent. 94 An agency is a fiduciary relationship resulting from one person’s manifested consent that another may act on behalf and subject to the control of the person manifesting such consent and, further, resulting from another’s consent to so act. 95 (i) Duty Under Power of Attorney [29,30] During this period of time, the duty of an agent under a power of attorney was well established; thus, we recall the general principles establishing that duty. An agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal, to act solely for the principal’s benefit in all matters connected with the agency, and to adhere faithfully to the instructions of the principal, even at the expense of the agent’s own interest. 96 An attorney in fact, under the duty of loyalty, always has the obligation to act in the best interest 94 Crosby v. Luehrs, supra note 39. 95 Id. 96 Archbold v. Reifenrath, supra note 39. - 673 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 of the principal unless the principal voluntarily consents to the attorney in fact’s engaging in an interested transaction after full disclosure. 97 [31,32] With respect to gifts, we articulated a related rule. No gift may be made by an attorney in fact to himself or herself unless the power to make such a gift is expressly granted in the instrument and there is shown a clear intent on the part of the principal to make such a gift. 98 The basic policy concern underlying the law that forbids self-dealing is not linked to any duty an agent may have to third parties, but is primarily addressed to the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, especially after the principal becomes incapacitated. 99 [33] Closely related is a rule of strict construction. Powers of attorney are by necessity strictly construed, and broad encompassing grants of power are to be discounted. 100 (ii) Collection of Farm Rents Adelung argues that he did not use the power of attorney to collect the farm rents. Thus, he argues, his duty to the decedent under the power of attorney was not implicated. We disagree. Adelung relies upon our decision in Eggleston v. Kovacich, 101 but he reads it too broadly. There, we stated that the defend­ ant did not use the power of attorney when the principal herself signed signature cards and the defendant also signed them but only as a co-owner on a multiple-party account that provided for a right of survivorship. In other words, because the principal acted on her own behalf and the agent did not 97 Crosby v. Luehrs, supra note 39. 98 Id. 99 Id. 100 Archbold v. Reifenrath, supra note 39. 101 Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007). - 674 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 sign for the principal, we said he did not “use” the power of attorney. 102 That case does not stand for the proposition that an agent’s status must be disclosed or that express reference must be made in using a power of attorney. There, the principal acted directly and the agent did not act as an agent regarding those accounts. [34] The record here is clear that at all times, the decedent owned a life estate in the farm. A life tenant is entitled to and owns by absolute title everything in the nature of income, profit, and gain realized or accrued from the property during his or her tenancy. 103 There is no evidence that she ever terminated the life estate before her death. Nor is there any evidence that at any time after she began allowing Adelung to collect the rents, she collected any rents herself. [35] Even before the 2008 power of attorney, Adelung collected the farm rents as the decedent’s agent. An agency relationship may be implied from the words and conduct of the parties and the circumstances of the case evidencing an intention to create the relationship irrespective of the words or terminology used by the parties to characterize or describe their relationship. 104 The circumstances here show that an agency relationship existed prior to the 2008 power of attorney. The 2008 power of attorney simply created a more extensive, formal agency relationship. [36] Other than Adelung’s relationship as the decedent’s agent, the record does not establish any basis during the decedent’s lifetime enabling Adelung to collect the farm rents. An agent has a duty to account to his or her principal for all property or funds which he or she has received or paid out on behalf of the principal. 105 That is precisely the nature of this action. 102 Id. at 594, 742 N.W.2d at 484. 103 See Slocum v. Bohuslov, 164 Neb. 156, 82 N.W.2d 39 (1957). 104 Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009). 105 Cheloha v. Cheloha, supra note 14. - 675 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (iii) Power of Attorney We read all of Adelung’s arguments regarding the 2008 power of attorney to rely upon the NUPOAA. We have already rejected Adelung’s argument that the NUPOAA applies to his actions under the power of attorney prior to the NUPOAA’s operative date. Strictly construing the power of attorney in light of the common law that controlled his duties to the decedent at that time, we see no merit to any arguments he asserts regarding his liability for actions taken prior to January 1, 2013. (iv) Laches Adelung asserts that we should apply the equitable defense of laches. He asserts that if the decedent “had truly wanted [him] to stop receiving the money involved in this action, [she] would have been guilty of inexcusable neglect for allowing these transactions to go on so long and allowing so much potential monetary liability to accumulate.” 106 We disagree. [37-39] The defense of laches is not favored in Nebraska. 107 Laches occurs only if a litigant has been guilty of inexcusable neglect in enforcing a right and his or her adversary has suffered prejudice. 108 Laches does not result from the mere passage of time, but because during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or prejudice of another. 109 We are not persuaded that laches has any application here. We have already determined that the statute of limitations applies to bar collection of money Adelung received prior to February 1, 2012. His argument seems to be focused on the years of his life when he devoted his time and attention to keeping the decedent on the farm. But that changed in 2010, 106 Brief for appellant at 42. 107 Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). 108 Id. 109 Id. - 676 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 when the decedent moved to an assisted living facility. We see nothing about his circumstances between February 1, 2012, and January 1, 2013, that would support a laches defense. (d) January 2013 to Decedent’s Death: After NUPOAA’s Operative Date (i) Effect of NUPOAA As we have already explained, the NUPOAA applies to powers of attorney created before its operative date. 110 The NUPOAA also applies to a judicial proceeding commenced, as this one was, after that date. 111 And, obviously, the provision of § 30-4045(4), regarding acts done before the operative date, does not apply to the time period we consider in this part of our analysis. a. Rule of Strict Construction Adelung argues that § 30-4024(5) altered the ­common-law rule of strict construction of powers of attorney. That section states, “Subject to subsections (1), (2), and (4) of [§ 30-4024], if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.” 112 At least as to gifts made by an agent, we disagree. First, by its terms, § 30-4024(5) is “[s]ubject to” § 30-4024(1). And § 30-4024(1) authorizes an agent to “[m]ake a gift,” but, in relevant part, “only if the power of attorney expressly grants the agent the authority.” The plain language of the statutory text requires an express grant of authority. The comment to the section of the uniform act corresponding to § 30-4024(1) explains that the uniform act “enumerates the acts that require an express grant of specific authority and which may not be inferred from a grant of general authority.” 113 This approach, the comment explains, “follows a 110 See § 30-4045(1). 111 See § 30-4045(2). 112 § 30-4024(5). 113 Unif. Power of Attorney Act § 201, comment, 8B U.L.A. 226 (2014). - 677 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 growing trend among states to require express specific authority for such actions as making a gift.” 114 The comment identifies the ration­ale for this approach: “the risk those acts pose to the principal’s property and estate plan. Although risky, such authority may nevertheless be necessary to effectuate the principal’s property management and estate planning objectives.” 115 We do not perceive any legislative intention to shield gift making under a power of attorney from strict construction. Indeed, the uniform act’s comment suggests otherwise. Second, the comment notes, “Ideally, these are matters about which the principal will seek advise [sic] before granting authority to an agent.” 116 Here, the attorney who drafted the 2008 power of attorney testified that he “drafted this document for [Adelung]” and that he “[n]ever met, never talked to [the decedent].” He recalled that there “may have been some conversation,” presumably with Adelung, about “whether there need[ed] to be a gifting clause or not.” He could not recall the purpose for including the gifting clause, but testified there “had to be some type of a conversation that led [him] to believe there needed to be the gifting clause.” And, again, he confirmed that the conversation was not with the decedent. Obviously, the decedent did not seek that attorney’s advice. Third, the comment goes on to state that “[n]otwithstanding a grant of authority to perform any of the enumerated acts . . . , an agent is bound by the mandatory fiduciary duties set forth in [the uniform act’s equivalent of § 30-4014(1)] as well as the default duties that the principal has not modified.” 117 These include acting in accordance with the “principal’s best interest,” 118 in “good faith,” 119 and “only within the scope 114 Id. 115 Id., 8B U.L.A. at 226-27. 116 Id., 8B U.L.A. at 227. 117 Id. 118 § 30-4014(1)(a). 119 § 30-4014(1)(b). - 678 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 of authority granted, or reasonably implied by, the grant of authority in the power of attorney.” 120 [40] Finally, § 30-4021 states that “[u]nless displaced by a provision of the [NUPOAA], the principles of law and equity supplement the act.” We are not persuaded that the drafters of the uniform act or the Nebraska Legislature intended to loosen the rule of strict construction with respect to gift making. Thus, we hold that the rule of strict construction regarding authority under a power of attorney to make gifts continues under the NUPOAA. b. Authority to Make Gifts Omitting the exoneration clause, we recall the specific language employed in the 2008 power of attorney. It stated: Gifting. To carry out on my behalf any plan or pattern of gifting to my issue, including gifting to my Agent, which had apparently been established or clearly contemplated by myself. In determining whether to initiate or continue any such gifting plan, my Agent shall give consideration to the size of my estate in light of what might reasonably be anticipated as my future needs and the potential federal estate taxes which may be due upon my death in order that such taxes may be lessened or eliminated. If a gifting plan has not been initiated by me, my Agent shall have complete discretion to make gifts to my issue, including making gifts to my Agent, after consideration of the foregoing factors. This gifting clause was, at most, a general grant. It did not specifically refer to the farm rentals. Nor did it refer to checks payable to Adelung or his spouse or child. [41] The NUPOAA limits gifts made via a general grant of authority in two ways. First, § 30-4040(2) states that “language in a power of attorney granting general authority with respect to gifts” authorizes gifts, as applicable here, only “(a) . . . in an amount per donee not to exceed the annual 120 § 30-4014(1)(c). - 679 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 dollar limits of the federal gift tax exclusion.” But more important, § 30-4040(3) permits a gift “only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors.” The statute identifies five specific factors, including the value and nature of the principal’s property; the principal’s foreseeable obligations and need for maintenance; minimization of taxes; eligibility for a benefit, program, or assistance; and the principal’s personal history of making gifts. 121 As the comment to this section of the uniform act makes clear, to the extent a principal’s objectives “may potentially conflict with an agent’s default duties under the [NUPOAA], the principal should carefully consider stating those objectives in the power of attorney, or altering the default rules . . . , or both.” 122 Adelung does not claim that the 2008 power of attorney altered the default rules. The stated objectives did not support the gifts. The power of attorney stated only two: “what might reasonably be anticipated as [the decedent’s] future needs” and lessening or eliminating federal estate taxes. Neither objective was furthered by these gifts. Heiden testified that Adelung told her the decedent “had less than $50,000 in the bank, because [the decedent] was broke.” A certified public accountant testified that “currently, you could pass through your estate over 12 million without any federal estate tax.” Upon our de novo review, we are not persuaded that the provisions of the NUPOAA authorized the gifts Adelung made on the decedent’s behalf. In reaching this conclusion, we give weight to the county court’s factual findings. c. Exoneration Clause Adelung also relies upon the exoneration clause of the 2008 power of attorney, which states: 121 See § 30-4040(3)(a) to (e). 122 Unif. Power of Attorney Act § 217, comment, 8B U.L.A. 248 (2014). - 680 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 No individual or entity shall have the right, by court action or otherwise, to compel the initiation or continuation of any type of gifting plan by my Agent and no individual or entity shall have any claim or right of reimbursement from my Agent for initiating or continuing a gifting plan or for not initiating or continuing a gifting plan; it being my intention hereby that my Agent shall have absolute discretion and shall bear no liability for any decision made. Adelung focuses on § 30-4015(1), which states that a provision “relieving an agent of liability for breach of duty is binding on the principal . . . except to the extent the provision: (a) [r]elieves . . . for breach of duty committed dishonestly, with an improper motive, or with reckless indifference[.]” He claims not to have acted in any of these ways. [42] In passing, Adelung acknowledges § 30-4015(1)(b). Under § 30-4015(1)(b), an exoneration clause in a power of attorney will not relieve an agent of liability if the clause was “inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.” He asserts that at the time of the 2008 power of attorney, he “was not in a confidential or fiduciary relationship with [the decedent].” 123 We disagree. The comment to the uniform act provision mirroring § 30-4015(1) explains that the language in subsection (1)(b) “provides . . . an additional measure of protection for the principal.” 124 But the Nebraska Legislature was not satisfied with only that measure of protection. It supplemented the uniform act by adding § 30-4015(2), which states that an “exculpatory term drafted or caused to be drafted by an agent is invalid as an abuse of fiduciary or confidential relationship unless the agent proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the principal.” 123 Brief for appellant at 36. 124 Unif. Power of Attorney Act § 115, comment, 8B U.L.A. 208 (2014). - 681 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 At the time of the 2008 power of attorney, Adelung had already been acting for some years as the decedent’s agent in collecting the farm rents. That activity imposed upon him a fiduciary relationship. This alone seems sufficient under § 30-4015(1)(b) to defeat the exoneration clause. But § 30-4015(2) reinforces our conclusion. By hiring his own attorney to draft the power of attorney, Adelung “caused [the exoneration clause] to be drafted.” 125 Section 30-4015(2) imposed upon him the burden to prove that the clause was fair and adequately communicated to the decedent. He did not do so. The attorney who prepared it never spoke with the decedent. The notary public who administered the decedent’s acknowledgment did not recall discussing with her what the document authorized Adelung to do and denied that he would “normally” do so. Even Adelung did not claim that he provided any explanation to the decedent regarding its contents and meaning. He merely left it with her the day before it was signed and recalled her statement that she “had looked it over.” Adequate communication required more than this. Adelung also asserts that Heiden waived the right to contest the exoneration clause, by failing to attack it in her petition. He relies upon a rule of pleading recited in a case long ago, that “where the illegality of an agreement is not suggested by the plaintiff’s pleadings or proofs it must, in order to be available to the adverse party, be especially pleaded.” 126 We are not sure that this rule survives under our current pleading rules, 127 but, in any event, the challenge to the exoneration clause was asserted by the proofs. We find no merit to Adelung’s arguments attempting to rely upon the exoneration clause. The Legislature demanded an extra measure of protection regarding such provisions. This appeal illustrates why it did so. 125 See § 30-4015(2). 126 Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463, 485, 62 N.W. 899, 907 (1895). 127 See Neb. Ct. R. Pldg. § 6-1109 (rev. 2008) (pleading special matters). - 682 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 d. Arguments Not Raised Below [43] On appeal, Adelung raises two arguments for the first time. He argues that the NUPOAA authorizes an agent to perform the acts necessary to maintain the customary standard of living of the principal’s close family members, including the principal’s children. He also contends that under the NUPOAA, agents are entitled to reasonable compensation, and that he is not liable for the decedent’s subsequent qualification for Medicaid. Because appellate courts do not consider arguments and theories raised for the first time on appeal, 128 we decline to further consider these arguments. (ii) Laches As we discussed in a preceding section, Adelung relies upon the defense of laches. There, we determined that it did not apply to the period from February through December 2012. For the same reasons, it does not apply to the time period from January 2013 to the decedent’s death.",analysis
+544,4536011,1,1,"The Douglas County District Court dissolved the marriage of Ariana Bernal Sabino and Juan Carlo Genchi Ozuna and awarded full custody of the parties’ child to Sabino. Sabino sought specific findings of fact for purposes of special immigrant juvenile (SIJ) status under federal law. The district court declined to make such findings, and Sabino appealed. We reverse, and remand for further proceedings.",introduction
+545,2512667,2,1,"
+(2) Welfare and Institutions Code section 602, subdivision (a) provides in relevant part: [A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court. (Italics added.) Thus, as a matter of state law, the Legislature has granted juvenile courts the authority to declare juveniles wards of the court on the basis of acts that violate state or federal criminal law. Jose C. contends this jurisdictional grant is necessary but not sufficient; that under the supremacy clause (U.S. Const., art. VI, cl. 2), state court jurisdiction depends as well on whether Congress has withdrawn from state courts the power to exercise jurisdiction. As a constitutional matter, it has long been settled that Congress has the power to constrict state court jurisdiction, at least with respect to federal matters. ( Howlett v. Rose (1990) 496 U.S. 356, 368, fn. 15 [110 L.Ed.2d 332, 110 S.Ct. 2430]; Claflin v. Houseman, Assignee (1876) 93 U.S. 130, 137 [23 L.Ed. 833]; The Moses Taylor (1866) 71 U.S. 411, 429-430 [18 L.Ed. 397]; Martin v. Hunter's Lessee (1816) 14 U.S. 304, 337 [4 L.Ed. 97].) Relying on title 18 United States Code section 3231 (hereafter section 3231), Jose C. argues that Congress has done so here and thereby expressly preempted the instant proceeding. The first sentence of section 3231 provides: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. This portion of the statute establishes two general principles: first, federal district courts may exercise jurisdiction over federal criminal offenses, and second, state courts may not do so. At a minimum, therefore, section 3231 displaces state court jurisdiction over the direct prosecution, conviction, and imposition of federal criminal punishment for violations of federal criminal statutes. Jose C. contends section 3231 goes further and precludes state courts from interpreting and adjudicating in any proceeding whether a federal criminal statute has been violated. In contesting whether the language of the statute bars adjudication of federal criminal conduct in the context of a state wardship petition, the People and Jose C. debate at length whether a state wardship petition gives rise to a civil or criminal proceeding. Wardship proceedings have at different times, and for different purposes, been characterized as de facto criminal (e.g., In re Gault (1967) 387 U.S. 1, 27-31, 36-37 [18 L.Ed.2d 527, 87 S.Ct. 1428]; In re Kevin S. (2003) 113 Cal.App.4th 97, 108-109 [6 Cal.Rptr.3d 178]; In re Gregory K. (1980) 106 Cal.App.3d 164, 168 & fn. 2 [165 Cal.Rptr. 35]) and as genuinely civil (e.g., In re Derrick B. (2006) 39 Cal.4th 535, 540 [47 Cal.Rptr.3d 13, 139 P.3d 485]; People v. Sanchez (1985) 170 Cal.App.3d 216, 218 [216 Cal.Rptr. 21]; Welf. & Inst. Code, § 203). In truth, they are hybrid proceedings, and the question whether a wardship proceeding is de facto criminal or civil has no single answer; rather, it depends on the purpose for which the question is asked. Here, faced with a preemption question, we conclude the precise characterization is immaterial because, whether characterized as civil or criminal, wardship proceedings that determine whether a federal criminal statute has been violated are not preempted by section 3231.
+Taking first the view that wardship proceedings are properly characterized as civil, we follow the United States Supreme Court's lead in Tafflin v. Levitt (1990) 493 U.S. 455 [107 L.Ed.2d 887, 110 S.Ct. 792] and find no preemption. In Tafflin, the Supreme Court considered whether state courts have concurrent jurisdiction over civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. §§ 1961-1968). Civil RICO is an unusual statute, in that a civil RICO claim may depend upon proof that one of an enumerated list of federal criminal laws has been violated. ( Id., §§ 1961(1), 1962, 1964(c); Cianci v. Superior Court (1985) 40 Cal.3d 903, 909 [221 Cal.Rptr. 575, 710 P.2d 375].) Thus, to adjudicate whether a civil RICO claim has been established, a court or jury may need to determine whether a federal criminal violation has occurred. The Tafflin plaintiffs, arguing for exclusive federal court jurisdiction over such claims, contended permitting a state court to make this predicate determination would violate section 3231's grant of exclusive federal criminal jurisdiction and thus be incompatible with federal interests. The United States Supreme Court found no incompatibility. [C]oncurrent jurisdiction over [18 U.S.C.] § 1964(c) suits, it explained, is clearly not incompatible with § 3231 itself, for civil RICO claims are not `offenses against the laws of the United States,' § 3231, and do not result in the imposition of criminal sanctions—uniform or otherwise. ( Tafflin v. Levitt, supra, 493 U.S. at p. 464.) It went on to conclude that state courts interpreting and applying federal criminal law posed no threat to federal interests, as state courts would be bound by federal precedent and their interpretations would be subject to direct review in the United States Supreme Court. ( Id. at pp. 465-466; see also id. at p. 468 (conc. opn. of White, J.) [opining that federal misapplication of state law under RICO posed greater risk than the reverse].) The Tafflin court asserted its full faith in the ability of state courts to handle the complexities of civil RICO actions ( Tafflin, at p. 465) and declined to denigrate the respect accorded coequal sovereigns by concluding jurisdiction must be withheld ( id. at p. 466). (3) In short, though a civil proceeding such as civil RICO may require adjudication of whether a federal criminal law has been violated, that determination does not of itself convert the civil proceeding into an offense[] subject to the exclusive jurisdictional bar of section 3231. Rather, Tafflin makes clear, a proceeding involves adjudication of an offense only if, at a minimum, it also involves the imposition of criminal sanctions. ( Tafflin v. Levitt, supra, 493 U.S. at p. 464.) Assuming, as we do at present, that a state wardship proceeding involves only civil sanctions and is, like civil RICO, primarily remedial rather than punitive ( Tafflin, at p. 464; see In re Charles C. (1991) 232 Cal.App.3d 952, 955 [284 Cal.Rptr. 4]), the identical reasoning applied here demonstrates that adjudication of federal criminal violations in the course of a state wardship proceeding does not convert those proceedings into offenses and render jurisdiction preempted by section 3231. [1]
+We now consider the contrary characterization, that for purposes of preemption under title 18 United States Code section 3231, a state wardship proceeding under Welfare and Institutions Code section 602 is properly viewed as fundamentally criminal. This characterization changes our reasoning, but not our conclusion that section 3231 does not preempt state wardship proceedings. (4) First, it has always been understood that the several states are independent sovereigns possessing inherent police power to criminally punish conduct inimical to the public welfare, even when that same conduct is also prohibited under federal law. [2] The Constitution leaves in the possession of each State `certain exclusive and very important portions of sovereign power.' ( Heath v. Alabama (1985) 474 U.S. 82, 93 [88 L.Ed.2d 387, 106 S.Ct. 433], quoting Hamilton, The Federalist No. 9 (Cooke ed. 1961) p. 55.) Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code. ( Heath, at p. 93.) This understanding is at the root of the dual sovereignty exception to the United States Constitution's double jeopardy clause, which recognizes that because individual states and the United States are two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory, each may punish the same act without offending double jeopardy principles. ( United States v. Lanza (1922) 260 U.S. 377, 382 [67 L.Ed. 314, 43 S.Ct. 141].) [3] Thus, Congress may pass a law barring a particular act and imposing a specific punishment, and a state Legislature may pass a state law barring the same act and imposing a different specific punishment, as well as vesting jurisdiction over violations of the state law in its state courts, without encroaching upon the exclusive jurisdiction of the federal courts to adjudicate violations of the federal law and impose the federal punishment. [4] (5) Section 3231 embraces these settled principles. It provides in its second sentence: Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof. (Italics added.) Thus, while the section grants federal courts exclusive jurisdiction over the prosecution of federal offenses, it does not do so over the punishment of acts criminalized by federal law; to the extent state law also establishes sanctions for those acts, state courts retain jurisdiction under their own state laws to hear cases and impose punishment. (See In re Dixon (1953) 41 Cal.2d 756, 764 [264 P.2d 513].) [5] Second, whether a state Legislature exercises its sovereign power to impose independent state criminal punishment for an act by writing its own statute prohibiting it, or by writing a statute incorporating an existing federal criminal prohibition, is immaterial. The distinction is a purely formal one. A state or territory that elects to incorporate portions of federal criminal law into its own criminal code may establish state jurisdiction to try violations as state crimes without offending section 3231. ( U.S. v. Lee (9th Cir. 2006) 472 F.3d 638, 642-643; cf. People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1446 [7 Cal.Rptr.3d 226] [acknowledging that while a state cannot directly enforce federal criminal law, it can reach conduct subject to the federal criminal law by incorporating the conduct into the state law].) [6] (6) This is, in essence, what Welfare and Institutions Code section 602 does. It incorporates by reference federal criminal law, rendering it a basis for the imposition of independent state sanctions, and grants state courts authority to adjudicate such matters. It recognizes the independent state interest in rehabilitating juveniles within this state who are unable to conform their conduct to the requirements of the law—whether that law be local ordinance, state statute, or federal enactment. [7] Section 3231 does not deprive state courts of jurisdiction granted under their own state laws to impose independent state sanctions. Jose C. objects that under this interpretation of section 3231, states may augment federal criminal statutes in any way they please, adding on various civil or criminal piggyback remedies or sanctions that might conflict with federal dictates. But whether Congress has preempted state court jurisdiction is not to be confused with whether it has preempted state legislative action. The former involves only the question whether a state court has the power to entertain a particular cause; the latter involves the further question whether a state may enact substantive legislation governing the subject matter of the particular cause. (See Houston v. Moore, supra, 18 U.S. at pp. 24-25 [drawing the identical distinction in the course of concluding that state regulation, but not state jurisdiction, was preempted].) Section 3231, as interpreted in Tafflin v. Levitt, supra, 493 U.S. 455, does not preempt jurisdiction over a proceeding that entails adjudication of the elements of an underlying federal criminal statute. Whether it preempts the substantive state enactment imposing an additional civil (or criminal) remedy—here, the authorization of state juvenile sanctions upon a finding a federal crime has been committed—is a discrete question we deal with separately below. (See pt. II.B., post. ) Jose C. also relies on two sister-state decisions that have addressed this issue and concluded section 3231 does in fact preempt state court jurisdiction. In State v. Tidwell (1982) 32 Wn.App. 971 [651 P.2d 228], a juvenile was convicted in state juvenile court of violating title 18 United States Code section 241, a federal civil rights statute, after burning a cross on an African-American family's lawn. The Washington Court of Appeals concluded the state court lacked jurisdiction, even in a juvenile proceeding, to determine whether someone had violated federal law. It reasoned that because section 3231 granted federal courts exclusive jurisdiction over federal offenses, it preempted the Washington statute granting state juvenile courts jurisdiction over violations of federal law. Violations of title 18 United States Code section 241 were offenses only against the federal sovereign and could not be punished by the state. Instead, the state court could consider only a state criminal trespass charge. ( Tidwell, at pp. 230-232.) In Matter of Welfare of J.J.T. (Minn.Ct.App. 1997) 559 N.W.2d 714, 715-716, the Minnesota Court of Appeals followed Tidwell and without any independent reasoning concluded a state court could not declare a juvenile a delinquent based on a petition alleging federal criminal violations. State v. Tidwell, supra, 651 P.2d 228, predates Tafflin v. Levitt 's determination that state courts are competent to decide whether a federal criminal law has been violated, section 3231 notwithstanding, if the proceeding is not itself a criminal prosecution. ( Tafflin v. Levitt, supra, 493 U.S. at pp. 464-466.) It also fails to consider whether the Washington Legislature had made, or could make, offenses against federal sovereignty into matters of independent state concern by incorporating federal law into its state juvenile delinquency scheme. Accordingly, we do not find it persuasive. (7) In sum, whether characterized as civil or criminal, wardship proceedings that entail adjudication of whether a federal criminal statute has been violated are not expressly preempted by section 3231. [8]",jurisdiction
+546,1201220,1,8,"Defendant argues that the evidence presented was insufficient to permit a reasonable juror to find defendant guilty of the murders beyond a reasonable doubt. Additionally, because the evidence of guilt was allegedly insufficient, defendant contends the evidence was insufficient for the jury to find the aggravating circumstance as to each murder, namely, that defendant engaged in a course of conduct which included the commission of another crime of violence; here, the first-degree murder of another person. We disagree. When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citations omitted), cert. denied, 546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005). If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion. Id. (citation omitted). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citations and internal quotation marks omitted). The State's evidence was sufficient. Witnesses testified that defendant bragged while in jail that he was going to f him [Gillard] up for not paying money owed, money that would have allowed defendant to be released from the detention center. In the days following defendant's release, he attempted to make telephone contact with Gillard at least eight times, leaving a message on Gillard's voice mail inviting him to see a motorcycle and ordering him to come alone. Shortly before his death, Gillard told others that he was going to purchase a motorcycle. On 9 October 2001, Gillard and Leavy left Leavy's residence together, and Leavy's girlfriend later called Gillard's mobile phone and was told that they were busy and would return her call later. This call was routed through the southwest panel of the cellular phone tower nearest defendant's residence. Moreover, certain evidence indicated that the murders did not occur in the vehicle containing the bodies or in the area where the vehicle was found. In defendant's yard there were two areas of roughly twenty to thirty square feet each where fresh soil was spread over the grass. Under the soil, the ground smelled of gasoline and putrid blood. During the 2007 sentencing hearing, evidence was presented that a part of the soil tested positive for blood. A piece of concrete found several inches in the ground tested positive for human blood. Two spent nine millimeter projectiles were found in the ground at defendant's residence, along with spent nine millimeter casings. The projectiles recovered from the victims' bodies and from defendant's yard were fired from a weapon with a left-hand twist and nine lands and grooves. Approximately one week after the murders, defendant asked a friend to pawn a gold ring with a black onyx stone. The ring was similar to one owned by Gillard and purchased by him several months earlier from the same pawnshop. Defendant basically attempts to interpret the evidence in a light most favorable to him, detailing other plausible explanations for the evidence presented by the State at trial. However, `[w]hen ruling on a motion to dismiss for insufficient evidence. ... [a]ny contradictions or conflicts in the evidence are resolved in favor of the State and evidence unfavorable to the State is not considered.' State v. Wilkerson, 363 N.C. 382, 427-28, 683 S.E.2d 174, 202 (2009) (quoting Miller, 363 N.C. at 98, 678 S.E.2d at 594 (alterations in original) (citations omitted by court)). These assignments of error are overruled.",sufficiency of the evidence
+547,1811971,1,1,"I concur in the rationale of the main opinion except as to the discussion in that opinion of the discoverability and relevance of evidence of Vulcan's financial condition in the context of a Hammond/Green Oil analysis. [5] Even as to that issue, however, I agree with the result reached by the main opinion—that any information concerning Vulcan's financial condition other than what it already has produced or promised to produce is not properly discoverable. More than enough information (including, for example, ample information concerning Vulcan's income and net worth) to allow the plaintiff to address Vulcan's financial condition in a Hammond/Green Oil hearing already has been made available or promised by Vulcan. The plaintiff's remaining discovery requests in this regard are unduly broad and burdensome. It is on this basis that I believe the result reached by the main opinion can and should rest. I decline to join the main opinion to the extent it goes further to explain that any information concerning Vulcan's financial condition would necessarily be irrelevant in a Hammond/Green Oil hearing. In Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), the Court established seven factors that, as a matter of state law, a trial court may consider in a postjudgment review of a jury's punitive-damages award. Factor number 4 is the financial position of the defendant. 539 So.2d at 223. The analysis in the main opinion is based on the fact that the defendant in this case disavowed any reliance on this particular factor as a basis for a reduction of the punitive-damages award, even though it sought a reduction of that award on the basis of several other factors identified in Green Oil. By disavowing any reliance on its financial condition, the defendant essentially stipulates that its financial condition is not so weak as to warrant a reduction in a punitive-damages award of a given amount. That is altogether different than stipulating that its financial condition is not so strong as to warrant maintaining the award at the level set by the jury—or at least at a greater level than that to which the trial court, in the absence of any knowledge of a defendant's financial condition, might be inclined to reduce the award. To hold otherwise, which is the effect of the main opinion, puts the defendant in the self-serving position of stipulating that some reduced award amount being considered by the trial court will still be large enough to serve its purpose. It is the plaintiff, not the defendant, who naturally has the interest in seeing that that is true. Logically, it is only the plaintiff who should be in the position of stipulating that a reduction of a punitive-damages award being considered by the trial court will still leave the award at a high enough level.",introduction
+548,1175465,1,1,"Defendant, Gerald Arthur Whitney, appeals his convictions for one count of kidnapping, a Class 2 felony, A.R.S. § 13-1304 and one count of aggravated assault, a Class 3 felony, A.R.S. § 13-1204(A)(2), (B). Because the aggravated assault was found to be a dangerous nature offense and committed while defendant was on parole, the trial court sentenced defendant to life imprisonment. A.R.S. § 13-604.02(A). He was also sentenced to 15.75 years imprisonment for the kidnapping conviction. A.R.S. § 13-604.02(B). The two terms were ordered to run concurrently with one another, but consecutively to the sentence imposed in another case in Maricopa County Cause No. CR-137394. A.R.S. § 13-604.02. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.",jurisdiction
+549,1541994,1,2,"The applicant appeals the denial of his application for postconviction relief, arguing that the hearing justice should have granted his application based on allegations of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution and article 1, section 10, of the Rhode Island Constitution. The applicant asserts that the alleged errors detailed above should constitute enough cumulative error for this Court to grant a new trial.",analysis
+550,1201197,1,2,"The alleged error presents a question of law which will be reviewed de novo. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.); see also Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (A circuit court's entry of summary judgment is reviewed de novo. ).",standard of review
+551,2032086,1,1,"Defendant argues that his right to substantive due process was violated when we transferred this case from the appellate court. He contends that this court does not have jurisdiction to hear his post-conviction appeal and that proper jurisdiction lies with the Fourth District Appellate Court. Defendant bases his argument on Supreme Court Rule 651(a) (87 Ill.2d R. 651(a)), which provides in pertinent part: An appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located. Although Rule 651(a) is concerned with post-conviction appeals, we interpret article VI, section 4(b), of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 4(b)), the Illinois death penalty statute (Ill. Rev. Stat. 1983, ch. 38, par. 9-1 et seq. ), and Supreme Court Rule 603 (87 Ill.2d R. 603) to mandate uniform statewide appellate review of cases in which the death sentence has been imposed, even when those cases reach the post-conviction appeal stage. Article VI, section 4(b), of the Constitution provides in pertinent part: Appeals from judgments of Circuit Courts imposing a sentence of death shall be directly to the Supreme Court as a matter of right. Ill. Const. 1970, art. VI, sec. 4(b). Section 9-1(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i)) provides: The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court. Supreme Court Rule 603 provides in pertinent part: [A]ppeals by defendants from judgments of the circuit courts imposing sentence of death shall lie directly to the Supreme Court as a matter of right. All other appeals in criminal cases shall be taken to the Appellate Court. 87 Ill.2d R. 603. Defendant's brief states: Death penalty cases are certainly significant and controversial cases, but they should not be handled on an ad hoc basis. We agree with the defendant that death penalty cases are too important to be handled on an ad hoc basis. It is for this very reason that we cannot accept defendant's position. If we were to allow appeals from post-conviction hearings in death cases to go to the appellate court, those cases might not receive a uniform review. The defendant, as well as this court, is concerned about ad hoc handling of death penalty cases. The defendant argues that at some future date this court, relying on Rule 651, may not take a case directly on a post-conviction appeal, thereby treating a death case on an ad hoc basis. However, if defendant's argument regarding jurisdiction were correct, defendant or some other defendant who has been sentenced to death could lose a post-conviction appeal in the appellate court and this court could then deny the petition for leave to appeal. In this respect there could be ad hoc treatment of a death penalty case. Also, a defendant whose petition for leave to appeal was denied could allege that he was denied equal protection or denied his right to uniform statewide appellate review of his death sentence. The Constitution, the legislature and this court have made special provisions for death cases because of their significance. To treat a post-conviction appeal in a death penalty case differently than a direct appeal in a death penalty case would be inequitable. In two other cases now pending before this court, People v. Gaines (1984), 105 Ill.2d 79, and People v. Ruiz, No. 60303, we have granted the State's motion to transfer the case from the appellate court to this court. So to date, there has not been ad hoc treatment of any death penalty post-conviction appeal by this court.",jurisdiction
+552,4700761,1,2,"[1] Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. 1 1 State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021); State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020). - 620 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports STATE v. BILLINGSLEY Cite as 309 Neb. 616",standard of review
+553,4545793,1,1,"A noncustodial parent appeals from a modification of a filiation judgment granting the custodial parent “leave to remove the minor child from the State of Nebraska and to determine his primary place of residence” without specifying where the child could be moved or placing any limitation on further moves. Two questions predominate. First, did a deployment of the custodial parent’s new military spouse for 1 year to a base near Washington, D.C., coupled with a change in employment conditions after the deployment ended, constitute a legitimate reason for leaving the state? It did. Second, did the district court’s open-ended permission violate the standard for approval and, thus, amount to an improper delegation of judicial authority? It did. Because the court did not otherwise abuse its discretion, we affirm the order below as modified to limit the permission to move the child only to the military base near Washington, D.C.",introduction
+554,862725,1,2,"¶5. The chancellor dismissed this matter on May 25, 1995. The DHS filed its motion to set aside the final judgment on March 10, 1997, a year and nine months after the judgment. Miss. R. Civ. P. 60(b)(6) allows a trial court to set aside a final judgment for any . . . reason justifying relief from the judgment. However, the motion must be made within a reasonable time. Helton claims that the year and nine month period between the final judgment and the motion was not within a reasonable time. ¶6. Relief under Rule 60(b)(6) is available only in extraordinary and compelling circumstances. Briney v. U.S. Fidelity & Guar. Co., 714 So. 2d 962, 966 (Miss.1998). However, the Rule is a grand reservoir of equitable power to do justice in a particular case. Burkett v. Burkett, 537 So. 2d 443, 445 (Miss. 1989) (quoting Bryant, Inc. v. Walters, 493 So. 2d 933 (Miss. 1986)). ¶7. In Briney, this Court discussed the reasonableness of a motion filed three years after the judgment became final. The Court cited the following analysis from Wright and Miller's Federal Practice and Procedure: What constitutes reasonable time must of necessity depend upon the facts in each individual case. [Footnote omitted.] The courts consider whether the party opposing the motion has been prejudiced by the delay in seeking relief [footnote omitted] and they consider whether the moving party had some good reason for his failure to take appropriate action sooner. [Footnote omitted.] 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2866 (1995), quoted in Briney at 967. The facts in the matter at hand show that the DHS waited for a year and nine months to file the Rule 60(b)(6) motion. The only reasons offered for the delay were that there had been personnel changes in the Leake County DHS office and that the original attorney handling this matter for the DHS had left the Department and a new attorney unfamiliar with the case had replaced her. Ordinarily, those reasons would be completely insufficient to justify a delay of this length. But this particular case is exceptional because of the interests of the child in this matter and because Helton has not suffered any prejudice from the delay. ¶8. Protecting the best interests of a child is the paramount concern in actions to which a child is a party. Dept. of Human Services v. T.H.G. and L.D.G., 614 So. 2d 377, 383 (Miss. 1992). It is the goal of utmost import in any judicial proceeding. Dept. of Human Services v. Jones, 627 So. 2d 810, 811 (Miss. 1993). ¶9. In Dept. of Human Services v. Jones, 627 So. 2d at 810, this Court considered the failure of the DHS to file timely motions for blood testing. The Court discussed the inflexible public policy of protecting a child's best interests, id. at 811, and held that protection of the children's best interests as expressed in this state's policy statutes must override any concern over timeliness. Id. at 812. ¶10. We hold that under the very limited circumstances presently before the Court, it was an abuse of discretion for the chancellor to deny the motion to set aside the judgment as untimely. The best interests of the child involved required that this matter be heard. ¶11. The chancellor's decision to dismiss was based on the DHS's failure to prosecute. The order dismissing this matter mentions only the repeated continuances and the failure of the DHS to deliver a copy of the blood test results to Helton. Helton claims that there had been a decision on the merits. The record reveals otherwise. After initially stating his intention to deny the motion and proceed to the merits, the chancellor heard further argument and apparently changed his mind. The chancellor stated based on the delay . . . I think that this man has been mistreated. The judge concluded that I think your rights have been violated in this case and I think, procedurally, you [Helton] are entitled to a dismissal. (Emphasis added.) The order, signed the same day, mentions only the numerous continuances and the failure of the DHS to serve a copy of the blood test results on Helton. The chancellor did not find that the DHS had failed to meet its burden of proof. No witnesses were called and no evidence was presented. The parties did discuss the blood test during the motion hearing, but only in the context of the failure of the DHS to serve Helton with a copy of that report. Additionally, the only motion before the court was Helton's motion to dismiss for the delays resulting from the continuances, which was filed before the hearing. It is clear that the judge's decision was procedural in nature and that there was no decision on the merits. ¶12. The dismissal for lack of prosecution was based on Mississippi Rule of Civil Procedure 41(b). This Court recently discussed the requirements for dismissal under Rule 41(b) in American Tel. and Tel. Co. v. Days Inn, 720 So. 2d 178 (Miss. 1998). Those requirements are a finding of contemptuous or contumacious conduct on the part of the plaintiff and a finding that lesser sanctions would not remedy the situation. Id. at 181. Additionally, the court should consider the following aggravating factors: the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. Id. (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)). Under these standards, dismissal clearly was not warranted. ¶13. There is no indication that the conduct of the DHS attorneys was anything other than neglectful. There is nothing contemptuous or contumacious about requesting continuances. Helton never objected to the continuance requests and the chancellor granted each continuance. The judge could have denied any of the motions for continuance and proceeded to trial. Or the chancellor could have attempted lesser sanctions. Sanctions or the threat of sanctions probably would have had a great effect toward advancing this matter on the docket. Thus, neither of the two requirements has been shown. ¶14. Finally, the aggravating factors are absent. Two-year-old Austin Blay clearly was not responsible for the delays. The conduct of the DHS attorneys is not attributable to him, and he should not have to pay for their neglect. Other than a delayed decision on his paternity of Austin, Helton cannot show that he has suffered actual prejudice in this matter. This Court has held that a mere delay in asserting the right to determine parentage is not sufficient to deprive the child of his day in court. Miss. Dept. of Human Services v. Molden, 644 So. 2d 1230, 1233 (Miss. 1994). Yet no evidence of any prejudice whatsoever was presented. In Molden, a delay of twelve years was not so prejudicial as to require dismissal. Helton's right to an adjudication was delayed for less than two years. The only real prejudice in this matter has been to the child. Finally, there has been no showing that the delay was intentional rather than negligent. The aggravating factors simply are not present. ¶15. I do not condone the performance of the DHS attorneys in this matter. The interests of Austin Blay were not diligently represented. The DHS sought continuances on eleven occasions. It took the DHS almost a year to get the blood test results, and the DHS apparently never saw that Helton received a copy of those results. Sanctions might be appropriate. But the neglectful conduct of the DHS attorneys does not justify the harsh result reached by the chancellor. Dismissal with prejudice is an extreme measure. [D]ismissal of a litigant's suit is the toughest sanction that can be imposed upon him. Harris v. Fort Worth Steel and Machinery, Co., 440 So. 2d 294, 296 (Miss. 1983). This Court has consistently held that the law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed reluctantly. Watson v. Lillard, 493 So. 2d 1277, 1278 (Miss. 1986). Helton failed to show that he was entitled to a dismissal under Rule 41(b). The chancellor erroneously dismissed this case, and that decision is reversed. ¶16. Additionally, as discussed above, the chancellor completely failed to take into account the best interests of the child which is the goal of utmost import in paternity and child support actions. Dept. of Human Services v. Jones, 627 So. 2d at 811. The best interest of Austin Blay in this matter was to have his paternity determined. That interest takes priority over Helton's right to a prompt adjudication of this matter. Because the preeminent concern in matters like this is the best interest of the child, the dismissal of the paternity action is reversed.",analysis
+555,1895037,1,2,"The issues that must be addressed by this court are as follows: (1) Did the court of appeals err in reversing the trial court on the question of whether the police honored the defendant's right to counsel and in determining that the defendant initiated conversations with the police during the police interrogation which occurred on June 27, 1984, thereby waiving his right to counsel? (2) Did the appeals court err in affirming the trial court's holding that Turner's right to remain silent was not scrupulously honored on June 27 so as to render his consent to a search of his quarters at the halfway house invalid, thereby justifying the suppression of the evidence seized during that search? (3) Did the appeals court err in holding that the police failed to scrupulously honor Turner's right to remain silent when they reinterrogated him on June 28, the second day that he was in police custody? (4) Finally, did the appeals court err in reversing the trial court's decision that inculpatory statements made by the defendant during the second day of interrogation ought to be suppressed due to involuntariness?",issues
+556,3134885,1,3,"For the reasons stated above, the order of the appellate court dismissing the appeal is reversed and the cause is remanded to the appellate court for consideration of the merits of the appeal. Reversed and remanded. JUSTICE RARICK took no part in the consideration or decision of this case.",conclusion
+557,2010709,1,5,"Sydow contends that this court lacks jurisdiction because the district court stated that it did not determine any issues regarding the actual creation of an endowment fund. Sydow argues that the district court left an issue to be decided and that this appeal is not from a final order. A party may appeal from a court's order only if the decision is a final, appealable order. Airport Auth. of Village of Greeley v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000). When no further action of the court is required to dispose of a pending case, the order is final. City of Omaha v. Morello, 257 Neb. 869, 602 N.W.2d 1 (1999). Sydow sought two forms of relief: (1) a writ of mandamus and (2) a declaratory judgment that the measure proposed by the petition is a subject which may be enacted by the initiative petition process and is otherwise validly and legally proposed under the applicable provisions of law. Although the district court stated that it was not addressing the City's argument regarding the validity of the endowment fund, the district court granted Sydow's requests for mandamus and a declaratory judgment. The district court completely disposed of the case. We conclude that there is a final order and that we have jurisdiction.",jurisdiction
+558,2170937,1,1,"Martin first argues that the trial court erred in denying his motion for a directed verdict on the charges of rape and first-degree violation of a minor. Particularly, he contends that there was insufficient evidence that any act of rape occurred on the dates charged in the information, September 1, 1996, and April 5, 1998. As for the charge of first-degree violation of a minor, Martin contends that the evidence was insufficient to show that he was this child's guardian, or a temporary caretaker, or a person in a position of trust or authority over the child. We find no merit to either argument. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003); Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998, 121 S.Ct. 495, 148 L.Ed.2d 466 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. With this standard in mind, we review the evidence in this case. Cassy testified at trial that Martin began having sexual intercourse with her in the summer of 1996, when she was twelve years old and had just completed the sixth grade. On that occasion, Cassy was lying on her bed when Martin came in, pulled down her pants, and started rubbing his penis on her. She stated that she told him not to put it in, but he did it anyway. She stated further that she tried to get up, but he would not let her. The last time that Cassy and Martin had intercourse was on February 17, 2001, four days before she reported the abuse to her school counselor. On that date, she stated that she was washing dishes when Martin came up behind her and put his hands on her vagina. They then went into her bedroom, where Martin took down her pants and had sex with her for ten or fifteen minutes. She testified that Martin called that a quickie. Between the first and last times, Cassy stated that Martin routinely had sex with her. She explained: At first, it was about once a week, and that went on for about a month or two, and then it was every time my mom went to work. She then reiterated that Martin had sex with her while she was in the seventh, eighth, ninth, tenth, and eleventh grades. She stated that they had sex in her bedroom, in her mother's bedroom, in Martin's truck, and in the barn. She stated that the last time they had sex it was in her bedroom. In addition to Cassy's testimony, the State presented evidence from Melissa Myhand, an analyst employed by the Arkansas State Crime Laboratory. Myhand stated that she had conducted DNA testing on a fitted sheet taken from Cassy's bed during the police search. Myhand stated that she found a semen stain on the sheet that had the same markers as the blood sample submitted by Martin. She stated that the probability of selecting another person at random from the general population that had the same markers was approximately 1 in 528 million in the Caucasian population. Myhand also tested semen stains from the comforter and quilt taken from Cassy's bedroom and they matched Martin's DNA. For these items, Myhand stated that the probability of selecting another person at random from the general population that had the same markers was approximately 1 in 36 million in the Caucasian population. Martin argues that despite the foregoing testimony, the evidence was insufficient to demonstrate that any act of rape occurred on the two dates listed in the amended information. The State contends that the exact dates of the offenses are immaterial in this case, because the proof clearly shows that Martin had sexual intercourse with Cassy while she was under the age of fourteen. We agree with the State. Generally, the time a crime is alleged to have occurred is not of critical significance, unless the date is material to the offense. See Ark.Code Ann. § 16-85-405(d) (1987); Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995); Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992). That is particularly true with sexual crimes against children and infants. Id. at 317, 829 S.W.2d at 416. Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Wilson, 320 Ark. 707, 898 S.W.2d 469 (citing Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990)). In cases of rape, the evidence is sufficient if the victim gave a full and detailed accounting of the defendant's actions. Id. Moreover, where the defense is that the sexual acts never occurred and were entirely fabricated, the lack of exact dates are not prejudicial to the defendant. See Harris, 320 Ark. 677, 899 S.W.2d 459; Fry, 309 Ark. 316, 829 S.W.2d 415. Martin was charged with a single count of rape, for which the prosecutor alleged two approximate dates in the information. The dates were apparently derived from the victim's testimony. The first date, September 1, 1996, coincides with the victim's testimony that the first act of sexual intercourse occurred in the summer of 1996, when she was twelve years old and had just finished the sixth grade. The second date offered by the prosecution, April 5, 1998, is the last date for which the charge of statutory rape would be applicable, as the victim turned fourteen years old on April 6, 1998. In using this latter date, it appears that the prosecutor was attempting to demonstrate a range of time during which the acts of rape occurred. Again, this is consistent with the victim's testimony that for a month or two after the first time, Martin had sex with her about once a week and, thereafter, every time her mother was at work. Martin's defense was that he did not commit the crimes, and that the victim had fabricated the events in order to get him removed from the home. Given this defense, the exact dates of the sexual acts were immaterial to the offenses, and Martin suffered no prejudice. More importantly, the victim gave a full and detailed account of Martin's actions, and her testimony alone constitutes substantial evidence to support the rape conviction. See Mills, 351 Ark. 523, 95 S.W.3d 796; Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002); Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002). Accordingly, we reject Martin's argument on this point. Likewise, we reject Martin's argument that the evidence was insufficient to convict him of the offense of first-degree violation of a minor. He argues that the State failed to prove that he was the child's guardian or temporary caretaker, or that he occupied a position of trust or authority over the victim. The statute under which he was convicted, Ark.Code Ann. § 5-14-120 (Repl.1997) [1] , provided in part: (a) A person commits the offense of violation of a minor in the first degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is more than thirteen (13) years of age and less than eighteen (18) years of age, and the actor is the minor's guardian, an employee in the minor's school or school district, a temporary caretaker, or a person in a position of trust or authority of the minor. Contrary to Martin's argument, the evidence clearly demonstrated that he occupied a position of trust or authority over Cassy during the time that he lived with her and her mother. Several witnesses, including Martin, testified that he had repeatedly disciplined Cassy because of her poor grades at school. Moreover, Cassy testified that she had a close relationship with Martin during the years that he lived with her and her mother. She also stated that she called Martin Daddy, and that she considered him to be her father. This evidence is sufficient to support the conclusion that Martin was either Cassy's guardian [2] or was, at least, a person in a position of trust or authority over the minor girl. We thus affirm the trial court's denial of a directed verdict.",sufficiency of the evidence
+559,4518076,1,1,"The issue in this error proceeding1 is whether a probation violation allegation asserting a law violation from a 1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018). - 54 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. JEDLICKA Cite as 305 Neb. 52 new charge of possession of methamphetamine constitutes a “substance abuse . . . violation”2 having a prerequisite of 90 days of cumulative custodial sanctions. The district court determined it does and sustained Parris R. Jedlicka’s motion to quash an information for revocation of probation. Because we conclude that this allegation of a law violation is not a “substance abuse” violation for revocation of probation purposes, we sustain the exception and remand the cause for further proceedings.",introduction
+560,2599343,1,1,"This is an eminent domain case arising from the construction of a light rail line as part of the Transportation Expansion Project (T-REX) of Interstate 25 (I-25) in the Denver Metropolitan area. The Colorado Department of Transportation (CDOT) and the Regional Transportation District (RTD) appeal the court of appeals' decision in Department of Transportation v. Marilyn Hickey Ministries, 129 P.3d 1068 (Colo.App. 2005), and argue that there is no compensable right for lost visibility to determine property value in eminent domain proceedings. We granted certiorari to determine whether the court of appeals erred in ruling that the landowner, part of whose property is being taken by eminent domain for a state transportation project, may recover damages for the impairment of passing motorists' view of the remainder of the landowner's property. We reverse the court of appeals and hold that motorists' visibility of property is not a compensable right under the Colorado Constitution.",introduction
+561,1712194,1,3,"The county asserts the district court erred in failing to find § 23-114.03 ambiguous. A statute is open for construction when the language used requires interpretation or may reasonably be considered ambiguous. Sydow v. City of Grand Island, ante 263 Neb. 389, 639 N.W.2d 913 (2002). In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Id. In construing a statute, an appellate court should consider the statute's plain meaning in pari materia and from [its] language as a whole to determine the intent of the Legislature. Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260 Neb. 63, 70, 615 N.W.2d 460, 466 (2000). See, also, In re Interest of DeWayne G. & Devon G., supra . Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. In re Interest of S.B., supra . Section 23-114.03, enacted in 1967, requires counties to adopt a county-wide comprehensive development plan prior to enacting zoning regulations. It also directs counties to obtain specific recommendations from the county planning commission concerning any proposed zoning regulations. The statute then lists 14 factors a county should consider in formulating zoning regulations. Thus, § 23-114.03 provides Nebraska counties with a statutory framework to use when adopting zoning regulations. The disputed language in the present appeal occurs in a separate paragraph of § 23-114.03 which addresses the division of a county into districts and the procedure for adopting official district maps. Within this paragraph, § 23-114.03 grants the counties the power to regulate, restrict, or prohibit the erection, construction, reconstruction, alteration, or use of nonfarm buildings or structures and the use, conditions of use, or occupancy of land. Applying the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of the others), the positive grant of authority in § 23-114.03 to regulate the erection, construction, reconstruction, alteration, or use of nonfarm buildings or structures prohibits the county from exercising this same regulatory power with respect to farm buildings. See Pfizer v. Lancaster County Bd. of Equal., 260 Neb. 265, 272, 616 N.W.2d 326, 335 (2000). Farm buildings are then effectively defined by § 23-114.03 as buildings utilized for agricultural purposes on a farmstead of twenty acres or more which produces one thousand dollars or more of farm products each year. There is no dispute that Premium Farms' hog confinement facility is a farm building pursuant to § 23-114.03. The issue before this court is the breadth of the farm building exemption contained in § 23-114.03. Premium Farms argues the district court correctly found that § 23-114.03 prohibits counties from enacting any zoning regulations regarding farm buildings. The county disagrees, contending that the district court's plain meaning interpretation of § 23-114.03 conflicts with language contained elsewhere in § 23-114.03. We first note that § 23-114.03 on its face simultaneously grants counties the authority to regulate all use of land, while denying the authority to regulate use of farm buildings. The county asserts these two propositions are inherently conflicting. The district court in its order addressed the county's contention by determining that for purposes of § 23-114.03, the use of a farm building, i.e., the interior within the confines of the roof, walls, and flooring, does not constitute the use of land within the meaning of § 23-114.03. We do not agree. Land use does not stop at the walls of a building. Instead, land use is inextricably interwoven with what occurs on the inside and the outside of buildings. As noted in the district court's order, the use or consequences of use of [a] building affect land use because the consequences of the building use may exit therefrom onto, across, or under the land. Furthermore, § 23-114.03 does not state that the county's authority to regulate land use stops at the farm building walls. In fact, the word nonfarm does not appear in the clause of § 23-114.03 granting counties the authority to regulate land use. Additionally, when § 23-114.03 is considered in pari materia with other related statutes, further conflicts arise. Section 23-114.03 states that it operates [w]ithin the area of jurisdiction and powers established by section 23-114.... At the same time § 23-114.03 was enacted, Neb.Rev. Stat. § 23-114 (Cum.Supp.1998) was also amended to specifically grant counties the authority to regulate the uses of land for agriculture. § 23-114(2)(g). The broad authority to regulate agricultural land use contained in § 23-114 conflicts with the plain meaning of § 23-114.03 because regulating agricultural land use and regulating farm building use are clearly intertwined. The plain meaning of § 23-114.03 as found by the district court also cannot be reconciled with Neb.Rev.Stat. § 23-174.10 (Reissue 1997). Section 23-174.10, enacted 4 years prior to the enactment of § 23-114.03, grants counties the authority to regulate, inter alia, the construction... [of] sheds, stables, [and] barns. Section 23-114.03 would, under the district court's interpretation, clearly prohibit the county from regulating the construction of all sheds, stables, and barns utilized for agricultural purposes on a farmstead of twenty acres or more which produces one thousand dollars or more of farm products each year. This interpretation, by implication, would effectively repeal portions of § 23-174.10. Repeal by implication is strongly disfavored, unless made necessary by the evident intent of the Legislature. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995); Hamilton v. Hamilton, 242 Neb. 687, 496 N.W.2d 507 (1993); Hammond v. City of Broken Bow, 239 Neb. 437, 476 N.W.2d 822 (1991); Nebraska Equal Opp. Comm. v. State Employees Retirement Sys., 238 Neb. 470, 471 N.W.2d 398 (1991). Regarding statutory construction, we are guided by the presumption that the Legislature intended a sensible, rather than an absurd, result in enacting the statute. Nicholson v. General Cas. Co. of Wis., 262 Neb. 879, 636 N.W.2d 372 (2001). Applying the plain meaning of § 23-114.03 as found by the district court does not lead to a sensible result in this case. As discussed above, regulating land use is inextricably interwoven with regulating the use of buildings. Additionally, the district court's interpretation of § 23-114.03 conflicts with the regulatory authority granted to Nebraska counties under §§ 23-114(2)(g) (authorizing counties to regulate agricultural land use) and 23-174.10 (authorizing counties to regulate construction of sheds, stables, and barns). A statute is ambiguous when the language used cannot be adequately understood either from the plain meaning of the statute, or when considered in pari materia with any related statutes. Fontenelle Equip. v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534 (2001); Affiliated Foods Co-op. v. State, 259 Neb. 549, 611 N.W.2d 105 (2000); State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999). Accordingly, because § 23-114.03 cannot be adequately understood from the plain meaning of the statute or when considered in pari materia with related statutes, we determine that § 23-114.03 is ambiguous. When a statute is ambiguous and must be construed, the principal objective is to determine and give effect to the legislative intent of the enactment. Fontenelle, supra . See, also, In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982). In construing a statute, a court must look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served. Central States Found. v. Balka, 256 Neb. 369, 590 N.W.2d 832 (1999). The court must place on the statute a reasonable construction which best achieves the statute's purpose, rather than a construction which would defeat the statute's purpose. Id. In construing an ambiguous statute, a court may examine the legislative history of the act in question to assist in ascertaining the intent of the Legislature. Sydow v. City of Grand Island, ante 263 Neb. 389, 639 N.W.2d 913 (2002); In re Estate of Eickmeyer, 262 Neb. 17, 628 N.W.2d 246 (2001). Section 23-144.03 was enacted as part of L.B. 463. In its original form as presented to the Committee on Government and Military Affairs, L.B. 463 stated in pertinent part: [T]he county board may ... regulate, restrict, or prohibit the erection, construction, reconstruction, alteration, or use of buildings, or structures, and the use, conditions of use, or occupancy of land.... ... The county board shall provide for enforcement of the zoning regulations within its county by requiring the issuance of permits prior to the erection, construction, reconstruction, alteration, repair, or conversion of any building or structure within a zoned area.... At the committee hearing on L.B. 463, several people testified. One of the persons testifying was Senator Doug Bereuter, who stated: I would like to emphasize again that we are not under this bill authorizing zoning by counties. The counties already have that power. They have the power to regulate agriculture land use, industrial land use, commercial land use, residential land use zoning, and they are doing it now. The only point is, are they doing it properly? One of the things that is included in here is provisions relating to the securing of building permits existing under legislation now. An amendment which, a series of amendments in fact, which have been introduced at the request of a number of bodies including another state agency and two farm organizations are here and we are in complete agreement with them. One of the things they do [is] exempt farm buildings from building permits. Ordinarily this is done by the county if they do the job properly like Seward County or Cass County but by putting it into the legislation we're [e]nsuring that farm buildings are exempted from zoning permits. .... ... The feeling presented here is that farm buildings, farming itself is such a changing occupation and that many times buildings are built very rapidly and torn down just as rapidly and there are restrictions placed upon the location of these such as they must be set back so many yards from the highway. These still hold but the actual reconstruction or conversion of an existing dwelling unit or a building of a new one, in most cases, these things are exempt from building permits. So we have written it into the statutes that way at the request of general individuals. Committee Records, 77th Leg. 17 (Mar. 9, 1967). Commissioner John Klinker, farmer and member of the Douglas County Planning Commission, stated: In Douglas County, of course, we require no permits on farm buildings but we do require a permit on a farm dwelling. We do require the farm buildings to conform to our other regulations as far as set back and this sort of thing which is also to the benefit of the farmer. Id. at 27. The following pertinent amendments were thereafter added to L.B. 463 by the Committee on Government and Military Affairs, as indicated by italics: [T]he county board may ... regulate, restrict, or prohibit the erection, construction, reconstruction, alteration, or use of nonfarm buildings, or structures, and the use, conditions of use, or occupancy of land.... [Enacted as part of § 23-114.03.] ... The county board shall provide for enforcement of the zoning regulations within its county by requiring the issuance of permits prior to the erection, construction, reconstruction, alteration, repair, or conversion of any nonfarm building or structure within a zoned area.... [Enacted as part of § 23-114.04.] Later, when L.B. 463 was first presented to the full Legislature, its introducer, Senator Rick Budd, stated: This bill ... is permissive and the county board takes this action [of adopting zoning regulations] only if they so desire. If they do, why then they can set up this planning commission and what it [L.B. 463] does then is define the guidelines which they will follow. In the second section of the bill, it points out the limitations of the commission as we go into the third section, it sets out exactly what a comprehensive plan is and this is necessary for good planning and zoning. The fourth section defines the zoning regulations and of course this is all approved then by the county board. And we get into taking the farm buildings out of the bill, it requires that building permits be—if they adopt a comprehensive plan then it is necessary to have building permits. But of course, the farm buildings are excluded from this. It also makes it possible that they can have a building inspector and section 6 sets out the penalties for failure to comply.... Floor Debate, 77th Leg. 1735 (May 3, 1967). L.B. 463, among other things, authorized counties to issue building permits pursuant to Neb.Rev.Stat. § 23-114.04 (Reissue 1997). Section 23-114.04 states that the county board shall require the issuance of permits prior to the erection, construction, reconstruction, alteration, repair, or conversion of any nonfarm building or structure. We note that while the word permit does not appear in § 23-114.03, building permits were clearly included in that portion of L.B. 463 enacted as § 23-114.04. The fact that the Legislature added the word nonfarm to §§ 23-114.03 and 23-114.04 supports the comments made during the committee hearing on L.B. 463, which indicate that the purpose of amending L.B. 463 to include the word nonfarm was to exempt farm buildings from county building permit requirements. The legislative history further shows that the reason for exempting farm buildings from county building permit requirements is that farm buildings are frequently constructed, reconstructed, and altered due to the changeable nature of farming. The legislative history does not support the contention that § 23-114.03 exempts farm buildings from all county zoning regulations. As Senator Bereuter stated in his comments, there are restrictions placed upon the location of these [farm buildings] such as they must be set back so many yards from the highway. These still hold.... Committee Records, L.B. 463, 77th Leg. 17 (Mar. 9,1967). As this court has often stated, a court will construe statutes relating to the same subject matter together so as to maintain a consistent, harmonious, and sensible scheme. See, In re Interest of DeWayne G. & Devon G., ante p. 43, 638 N.W.2d 510 (2002); In re Estate of Eickmeyer, 262 Neb. 17, 628 N.W.2d 246 (2001). Interpreting § 23-114.03 to exempt farm buildings from county building permit requirements creates a consistent, harmonious, and sensible scheme. Under such an interpretation, counties may regulate land use pursuant to §§ 23-114(2)(g) and 23-114.03 without concerns that such regulations will run afoul of the farm building exemption contained in § 23-114.03. This interpretation is also harmonious with § 23-174.10 because nothing contained in § 23-174.10 authorizes or requires counties to issue building permits for farm buildings. Finally, this court's conclusion that the farm building exemption contained in § 23-114.03 was intended to apply to county building permit requirements is consistent with the legislative history of § 23-114.03. Accordingly, based upon the foregoing analysis, we determine that the farm building exemption contained in § 23-114.03 prohibits counties from requiring building permits on buildings utilized for agricultural purposes on a farmstead of twenty acres or more which produces one thousand dollars or more of farm products each year. HOLT COUNTY ZONING REGULATIONS The county also asserts the district court erred in finding that certain portions of the Holt County zoning regulations were invalid. We agree. The validity of a zoning ordinance will be presumed in the absence of clear and satisfactory evidence to the contrary. Gas ` N Shop v. City of Kearney, 248 Neb. 747, 539 N.W.2d 423 (1995). Upon reviewing the Holt County zoning regulations, we find no provisions which require Premium Farms to obtain a building permit from the county prior to commencing construction of a CLO. Instead, the regulations require Premium Farms to obtain a conditional use permit to operate a CLO. The requirements for obtaining the use permit do not set forth any standards related to construction, reconstruction, or alteration of a farm building. Instead, the regulations primarily require CLO's to adhere to certain standards concerning manure removal and setbacks. These land use regulations are within the statutory authority of the county pursuant to § 23-114(2)(g), § 23-114.03, and § 23-174.10. We therefore determine that the zoning regulations declared invalid by the district court do not exceed the county's authority pursuant to § 23-114.03. CROSS-APPEAL Given our determination regarding Holt County's assignments of error, we find Premium Farms' cross-appeal to be without merit.",analysis
+562,2020501,1,2,"A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill.2d 542, 550, 239 Ill.Dec. 572, 714 N.E.2d 491 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Whether a statute is constitutional is a question of law that we review de novo. Malchow, 193 Ill.2d at 418, 250 Ill.Dec. 670, 739 N.E.2d 433. This appeal is controlled by our decision People v. Walden, 199 Ill.2d 392, 264 Ill.Dec. 91, 769 N.E.2d 928 (2002). In Walden, this court concluded that the 15-year sentencing enhancement for armed robbery while in possession of a firearm violates the proportionate penalties clause of the Illinois Constitution and therefore is unenforceable. Walden, 199 Ill.2d at 397, 264 Ill.Dec. 91, 769 N.E.2d 928. Given the identity of issue between this appeal and Walden, we hold that the trial court's order invalidating the 15-year enhancement in this case was proper.",analysis
+563,1996441,1,4,"Webb contends that the court erred in its factual findings. Webb relies on Joy's presence in Montana at the time of her death and that she had registered a vehicle there. In particular, Webb emphasizes that Joy obtained a Montana driver's license and received mail from the Social Security Administration at her Montana address. Webb also disagrees with the court's determinations about the credibility of the witnesses. Thomas, however, counters that the evidence was contradictory about Joy's intention to move and argues that the court correctly considered the credibility of the witnesses. Although there are various statutory procedures relating to the determination of domicile, the probate statutes do not provide a definition of domicile. See, e.g., Neb.Rev.Stat. § 30-2411 (Reissue 1995). We have said that `[t]he term domicile is difficult of accurate definition, and it has been stated that the concept cannot be successfully defined so as to embrace all its phases. Its meaning, in each instance, depends upon the connection in which it is used.' In re Estate of Meyers, 137 Neb. 60, 64, 288 N.W. 35, 37 (1939). It is universally held, however, that to acquire a domicile by choice, there must be both (1) residence through bodily presence in the new locality and (2) an intention to remain there. See, Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1989); In re Estate of Meyers, supra . Consequently, domicile is obtained only through a person's physical presence accompanied by the present intention to remain indefinitely at a location or by the present intention to make a location the person's permanent or fixed home. Huffman v. Huffman, supra . We have stated that to change domicile, there must be an intention to abandon the old domicile. In re Estate of Meyers, supra . In addition, because the intent of a person is not readily susceptible of analysis, all of the surrounding circumstances and the conduct of the person must be taken into consideration to determine his or her domicile. Id. In In re Estate of Meyers, the decedent owned a ranch in Arthur County, but had been living in Omaha, Douglas County. He was listed in the Omaha city directory and maintained a bank account in Omaha. There was evidence that he changed his residence to Omaha to benefit his health and obtain education for his daughter. But he also continued to maintain his business in Arthur County and was registered to vote there. The trial court determined that the decedent was domiciled in Arthur County. On appeal, we stressed that the decedent was registered to vote in Arthur County and noted that all of the circumstances must be considered. We further stated that `[a] change of residence for the purpose of benefiting one's health does not usually effect a change of domicile. Such a change is looked upon as temporary merely, even though the actual time spent in the new residence may be long.' 137 Neb. at 67, 288 N.W. at 38. Here, the court recognized evidence indicating that Joy may have intended to change her domicile to Montana. But the court also considered conflicting evidence. Although Joy obtained a Montana driver's license and registered a vehicle in Montana, she also listed her move as temporary on a form she filled out with the postal service. The record also contains photographs showing that Joy left a substantial amount of her belongings at her home in Nebraska. Although Webb testified that Joy intended to permanently relocate to Montana, others testified that Joy would have told them if that were the case. The record also allows the court to infer that Joy went to Montana to receive medical care. Thus, there was conflicting evidence about Joy's intent to change her domicile. In particular, there was evidence that she did not abandon her Nebraska domicile. The court could reasonably infer that Joy traveled to Montana to receive long-term medical care but did not intend to permanently change her domicile. Webb argues, however, that the court's determinations about the credibility of the evidence and the witnesses were in error. But the credibility of witnesses and the weight to be given their testimony are for the trier of fact. In re Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994). The county court's decision is not clearly erroneous. Accordingly, we affirm. AFFIRMED.",analysis
+564,2570265,1,1,"
+On November 14, 2000, Petitioner Office of Disciplinary Counsel (the ODC) petitioned the Board to recommend sanctions against Au based on alleged violations of the Hawai'i Rules of Professional Conduct (HRPC) in three separate disciplinary matters.
+The ODC alleged that, in the course of representing a client before the Circuit Court of the First Circuit, State of Hawai'i, Au drafted and filed two documents that cited to Sherry v. Ross, 846 F.Supp. 1424 (D.Haw. 1994) ( Sherry ). Au made the following representations to Circuit Court Judge Daniel G. Heely: • that Sherry was decided on the attorney-client crime-fraud provisions [of Rule 503 of the Hawai'i Rules of Evidence (HRE)] and the Fraudulent Conveyance Act ... [under] HRS 651 C-4; • that, in Sherry, the debtor conveyed real property to his wife with the help of an attorney who prepared the conveyance; • that the United States Court of Appeals for the Ninth Circuit upheld the Federal Court; and • that the Court [presumably the Ninth Circuit] found that fraudulent intent was not proven under the fraudulent conveyances provision as under the common law provision. In fact, Au's description of Sherry was not accurate because • Sherry addresses neither the attorney-client privilege nor the crime-fraud exception to the attorney-client privilege; • Sherry does not mention a relationship between an attorney and a client, nor does it mention an attorney or an attorney assisting in a conveyance; • Sherry was decided under neither the Fraudulent Conveyance Act nor the Uniform Fraudulent Transfer Act, but rather, Sherry was decided under the common law; • in Sherry, a third party (not the debtor) conveyed property to a debtor's wife, and a subsequent creditor challenged the conveyance; and • Magistrate Judge Francis I. Yamashita of the United States District Court for the District of Hawaii authored Sherry, and there was no Ninth Circuit opinion. The circuit court judge and opposing counsel complained separately to the ODC about Au's misconduct.
+The ODC alleged that, with respect to several different clients, Au committed the following misconduct: • improperly deposited his clients' settlement proceeds into his office account; • improperly paid costs from his client trust account; • improperly deposited unearned fees into his office account; • improperly reimbursed his trust account; • failed to withdraw funds from his client trust account; • improperly deposited clients' settlement proceeds into his office account; • falsely certified in his annual registration statements for the Hawai'i State Bar Association (HSBA) that he was maintaining clients' funds and property in compliance with HRPC Rule 1.15; and • paid fees to a non-lawyer runner in exchange for the non-lawyer runner's referral of clients for legal services to Au.
+The ODC alleged that, with respect to a particular client, Au improperly deposited unearned fees into his office account.
+On December 18, 2000, Au answered the ODC's petition for discipline. On March 19, 2002, Au filed a first amended answer to the ODC's petition for discipline.
+On September 28, 2001, the Board appointed three persons to serve as the hearing committee for the ODC's petition against Au: (1) attorney Paul Alston (Chairperson Alston) as the chairperson of the hearing committee; (2) attorney Christobel Kealoha, as a member; and (3) Terri Needles, Ph.D., as a member. During the next year, the parties conducted discovery under the supervision of the hearing committee. The hearing committee held pre-hearing conferences to address disputes and controversies regarding evidence that the parties intended to introduce. For example, one controversy involved the ODC's allegations that a non-lawyer, Wayne Yoshimoto (Yoshimoto), had an agreement with Au under which Yoshimoto found legal clients and referred them to Au in exchange for Au's payment of five percent of the gross amount of any settlement that Au recovered for the clients. The ODC intended to prove the allegations by introducing copies of some of Au's checks to Yoshimoto, settlement statements, witness testimony, as well as some audiotapes and corresponding transcripts from some of Yoshimoto's conversations with Au that Yoshimoto surreptitiously recorded on August 16 and 29, 1994. Yoshimoto recorded the conversations with Au because Au was allegedly not paying Yoshimoto some of the client referral fees that Au owed to Yoshimoto, and Yoshimoto wanted to obtain proof that Au acknowledged the existence of their agreement for client referral fees. Au contested the authenticity of Yoshimoto's tape recordings and corresponding transcripts. Au also claimed that someone had deleted exculpatory statements from Yoshimoto's tape recordings. Consequently, on October 24, 2002, the hearing committee issued a pre-hearing order that provided, among other things, that, by November 17, 2002, Au could submit to the hearing committee an annotated copy of the transcripts that would show: (1) the portions of the transcripts that Au accepted as accurate; (2) the portions of the transcripts that Au contended were audible but incompletely or inaccurately transcribed, as well as Au's suggested changes to remedy the incompleteness or inaccuracy; and (3) the portions of the transcripts that Au contended were inaudible and therefore inaccurately transcribed. However, Au did not submit an annotated copy of the transcripts to the hearing committee.
+The hearing committee held formal evidentiary hearings on January 21, January 22, and April 29, 2003. At these hearings, the ODC adduced substantial evidence in support of the ODC's various allegations relating to Au's misrepresenting the holding of a published case, mishandling client funds, misusing a client trust account, and paying a non-lawyer runner a fee in exchange for client referrals. The ODC's evidence included, among other things, Yoshimoto's testimony that he had an agreement with Au under which Yoshimoto found and referred several legal clients to Au in exchange for Au's payment of five percent of the gross amount of any settlement that Au recovered for the clients. The ODC also adduced copies of some of Au's checks to Yoshimoto for his referral fees, Au's settlement statements, as well as the audiotapes and corresponding transcripts from the conversations with Au that Yoshimoto surreptitiously recorded on August 16 and 29, 1994. One of the clients whom Yoshimoto referred to Au was Cindy Labrador (Labrador). Labrador had two personal injury matters. Au eventually settled Labrador's two personal injury matters for (1) $27,000.00 and (2) $19,000.00, or a total settlement amount of $46,000.00. At about the time when Au settled the second of Labrador's two personal injury matters, Au gave Yoshimoto a check for only $500.00. Yoshimoto learned from Labrador that Au had settled the two personal injury matters for a total amount of $46,000.00. Consequently Yoshimoto met with Au on August 16 and 29, 1994, for the purpose of discussing various unpaid fees that Au owed Yoshimoto, including Yoshimoto's five percent fee for Labrador's two personal injury matters. Following the discussions, Au wrote Yoshimoto two checks, dated August 29, 1994, in the amounts of $850.00 and $950.00. Although writing on the two checks purported that the checks were payments for Yoshimoto's investigative services in Labrador's personal injury matters, Au's three payments (i.e., $500.00, $850.00 and $950.00) to Yoshimoto for his services in Labrador's two personal injury matters added up to $2,300.00, which was exactly five percent of the $46,000.00 settlement amount. In contrast to the ODC's evidence, Au testified, among other things, that Au did not have an agreement with Yoshimoto to pay Yoshimoto a fee in exchange for client referrals. For example, Au claimed that he paid Yoshimoto in Labrador's two personal injury matters because Yoshimoto had performed investigative services. At the conclusion of the evidentiary hearing on April 29, 2003, Chairperson Alston told the ODC and Au to submit their proposed findings of fact and conclusions of law to the hearing committee. However, on October 28, 2003, Chairperson Alston ordered the parties to appear at a newly scheduled hearing on October 31, 2003. Chairperson Alston informed the parties that the hearing committee would address the following two issues at the October 31, 2003 hearing: If the Panel determines that the Respondent [Au] has given false testimony and/or made frivolous arguments and/or made groundless accusations against witnesses, to what extent may the Panel consider such matters in deciding (1) the Respondent [Au]'s guilt; and (2) the appropriate discipline, if any[?] Chairperson Alston began the October 31, 2003 hearing by informing Au that the hearing committee members believed Au's prior testimony was not truthful, and that Au had an improper client referral agreement with Yoshimoto: THE CHAIRMAN: We have convened this morning to do one thing, Mr. Au, and that is to listen to portions of the audiotape, and to get your comment on what we hear in those audiotapes. I will tell you that, as we sit here this morning, it's the unanimous view of the Panel that, in fact, you have not testified truthfully today. I think it is the unanimous view of the Panel, subject to the outcome of today's proceeding, that, in fact, you had an agreement with Mr. Yoshimoto. And before we make our decisions based on those view, I wanted to give you—the Panel wanted to give you an opportunity to speak directly to the content of the tape because there has been a lot of paper and a lot of argument about the accuracy of the transcript, and the content of the tape, but what we hear in your own words appears to be very damning to you. We wanted to hear you speak directly to those matters. All right? (Emphases added.) In response to Chairperson Alston's opening statement, Au asserted, once again, that he did not have an agreement with Yoshimoto to pay Yoshimoto in exchange for client referrals. Near the conclusion of the hearing, Chairperson Alston indicated to Au that the hearing committee did not believe Au's testimony: THE CHAIRMAN: Mr. Au, I'm going to give you one final opportunity— MR. AU: To comment. THE CHAIRMAN: No. To consider recanting your testimony today and the position you've taken in this hearing about whether there was an agreement with this fellow to pay him referral fees. Nevertheless, Au denied that he paid client referral fees to Yoshimoto.
+Six days later, on November 6, 2003, Au moved the hearing committee for the recusal or disqualification of Chairperson Alston and the designation of a new panel of members for the hearing committee. Au asserted that Chairperson Alston's and Au's pecuniary interests in two disputes created conflicts of interest that required Chairperson Alston's recusal or disqualification under Canons 2 and 3(E) of the Code of Judicial Conduct.
+The first purported conflict of interest involved a dispute between Au and Chairperson Alston's law firm, Alston, Hunt, Floyd & Ing (AHFI), over the apportionment of an award of $176,287.80 in attorneys' fees that Alteka Co., Ltd. (Alteka), won in an appeal entitled Shanghai Investment Company, Inc., v. Alteka Co., Ltd., 92 Hawai'i 482, 993 P.2d 516 (2000) [1] (hereinafter referred to as the Alteka Matter). The Alteka Matter involved two consolidated cases and multimillion-dollar contract claims: (a) Alteka and Shanghai Investment Company, Inc. (Shanghai), in Shanghai Investment Company, Inc. v. Alteka Co., Ltd ., Civil No. 94-2683-07; and (b) Alteka and Windward Park, Inc. (Windward), in Alteka Co., Ltd. v. Windward Park, Inc., et al., Civil No. 95-3483-09. Au represented Alteka in these consolidated cases while they were pending before a trial court. According to Au, he had a contingent fee agreement with Alteka. Alteka prevailed in some, but not all, of the disputed claims. For example, although the trial court awarded Alteka $1,171,949.76 on Alteka's breach of contract claim against Windward, the trial court awarded Windward $5,000,000.00 on Windward's breach of contract counterclaim against Alteka. See Shanghai Investment Company, Inc., v. Alteka Co., Ltd., 92 Hawai'i at 491, 993 P.2d at 525. Furthermore, the trial court denied Alteka's motion for an award of attorneys' fees, even though Alteka successfully defended itself against all of Shanghai's claims. Id. Although Alteka intended to appeal from the judgment, Au withdrew as Alteka's counsel, and Chairperson Alston and his law firm, AHFI, appeared as Alteka's substitute counsel. On behalf of Alteka, Chairperson Alston and AHFI appealed to this court. On appeal, Chairperson Alston and AHFI succeeded in convincing us that the trial court erred in (1) awarding Windward $5 million in damages against Alteka; and (2) denying Alteka's request for attorney fees and costs in successfully defending against the claims made by Shanghai.... We therefore vacate the $5 million damage award to Windward and remand to the trial court with instructions to (1) enter judgment in favor [of] Alteka for $1,171,949.76 plus interest and (2) determine and award reasonable attorneys' fees to Alteka against Windward and Shanghai in accordance with this opinion.... Shanghai Investment Company, Inc., v. Alteka Co., Ltd ., 92 Hawai'i at 505, 993 P.2d at 539 (emphasis added). Because Alteka prevailed in the appeal, we awarded attorneys' fees in the amount of $176,287.80 to Alteka: Upon careful consideration of Defendant-Appellant Alteka Co., Ltd.'s First Request for Attorneys' fees, the papers in support and opposition, and the records and files in this case, IT IS HEREBY ORDERED that the motion is granted in part, and attorneys' fees totaling $176,287.80 are approved and awarded to Alteka. Said sum shall be imposed against Shanghai Investment Company, Inc. and Windward Park, Inc., jointly and severally. (Emphasis added.) Although Au had withdrawn as Alteka's counsel prior to the appeal, Au believed that he was entitled to a portion of Alteka's award of attorneys' fees pursuant to Au's contingent fee agreement with Alteka. Based on Alteka's refusal to give Au a portion of the award of attorneys' fees, Au asserted that he had a financial dispute with Chairperson Alston that warranted Chairperson Alston's disqualification in the ODC's disciplinary proceedings. In an attempt to show the hearing committee the alleged dispute between Au and Chairperson Alston, Au submitted, among other things, a photocopy of a letter that Au had written to Alston more than three and one-half years earlier, dated March 29, 2000, in which Au threatened to impose a lien on Alteka's award of attorneys' fees resulting from Alteka's successful appeal: Dear Mr. Alston: Have you had an opportunity to discuss our claims for attorney's fees in the Shanghai case[?] I am certainly open to any reasonable arrangement. If we cannot reach an agreement by Friday, March 31, 2000, I am compelled to file an attorney's lien on the case. I appreciate your personal efforts. May I hear from you[?] Sincerely, [Signature] RONALD G.S. AU (Emphasis added.) Au additionally submitted a letter from Chairperson Alston to Au, also dated March 29, 2000. In the March 29, 2000 letter, Chairperson Alston stated, on behalf of Alteka, (1) that the attorney-client agreement between Au and Alteka did not entitle Au to receive any additional attorneys' fees from Alteka and (2) that Au's mistakes as Alteka's trial counsel contributed to the trial court's initial judgment against Alteka: Dear Mr. Au: I have received your letter dated March 29[, 2000]. I still have not received any decision from Alteka about your demands, so I cannot promise it will be possible to reach any agreement by the end of the month (two days from now). In any event, you are not now owed any money based upon my reading of the agreements, so I am not sure what causes your sense of urgency. In addition, there are troublesome questions about how the failure timely to raise the penalty/liquidated damages issue in the trial court contributed to (1) the judgment against Alteka, and (2) the cost of the appeal. I do not think it is in your interest to provoke discussion of those issues. I will follow up with Mr. Matsumura tomorrow and report to you as soon as possible on the progress Alteka is making toward making a decision on your demands. PAUL ALSTON (Emphases added.) Despite the three-year delay between (1) the commencement of the purported conflict between Chairperson Alston and Au in the Alteka Matter and (2) Au's motion to disqualify Chairperson Alston in the disciplinary proceedings, Au explained that he did not raise the issue of Chairperson Alston's alleged conflict prior to, or during, the disciplinary hearings because Respondent [Au] had the highest degree of respect for the integrity and impartiality of ALSTON[.]
+The second purported conflict of interest arose out of Au's August 2003 appearance on behalf of a client, Gary Shigemura, in a foreclosure action in which both Shigemura and AHFI's client, Beneficial Hawaii, Inc. (Beneficial), foreclosed on their respective mortgages against the same debtor, Donald Kida, and, inevitably, Shigemura and Beneficial disputed the priority of their respective mortgages (hereinafter referred to as the Kida Matter). The Kida Matter arose out of two consolidated cases: (a) Donald M. Kida v. Michele Kobayashi, et al., Civil No. 97-4838-11, and (b) Beneficial Hawaii, Inc. v. Donald Mueno Kida, et al., Civil No. 01-1-2275-08. Au did not initially represent any of the parties in the Kida Matter. For example, while the hearing committee was conducting the disciplinary hearings regarding Au on January 21, January 22, and April 29, 2003, Au was not yet involved in the Kida Matter. However, in August 2003, Au began appearing as legal counsel for Shigemura in the Kida Matter. At that time, the circuit court required Shigemura to hire an attorney because, after Shigemura had rendered several years of legal services on Kida's behalf, Kida had allowed Shigemura to obtain a second mortgage on Kida's real property in an amount equivalent to the attorney's fees that Kida owed Shigemura. Beneficial held the first mortgage on Kida's real property. When Shigemura's mortgage became an issue in the Kida Matter, the circuit court required Shigemura to hire an attorney to advocate on behalf of Shigemura's mortgage interest. On September 15, 2003, Au moved the circuit court (on Shigemura's behalf) to disqualify Chairperson Alston's law firm, AHFI, from representing Beneficial in the Kida Matter. Kida joined the motion. The circuit court denied Au's motion to disqualify AHFI and ordered the parties in the case to participate in mediation prior to trial. The mediation concluded with the parties agreeing to settle the litigation.
+On November 26, 2003, the hearing committee denied Au's motion for the recusal or disqualification of Chairperson Alston.
+On November 26, 2003, the hearing committee also filed its forty-seven-page findings of fact, conclusions of law, and recommendation for discipline. The hearing committee found, among other things, that Au falsely testified • that Au first paid his clients and then deposited the clients' settlement checks into Au's office account, • that Au had no client referral agreement with Yoshimoto, and • that the fees Au paid Yoshimoto for Labrador's two personal injury matters were for Yoshimoto's investigative services. The hearing committee further found that, instead of testifying truthfully, Au attempted to mislead and deceive the ODC and the hearing committee regarding his dealings with Yoshimoto. When the hearing committee gave Au opportunities to recant his false testimony, Au refused. The hearing committee concluded that Au violated the HRPC as follows:
+With respect to ODC XX-XXX-XXXX, the hearing committee concluded that Au misrepresented the holding of a published court opinion, Sherry v. Ross, 846 F.Supp. 1424 (D.Haw.1994), to Judge Heely in violation of: • HRPC Rule 1.1 (requiring a lawyer to provide competent representation); • HRPC Rule 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal); and • HRPC Rule 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
+With respect to ODC XX-XXX-XXXX, the hearing committee concluded that, in several instances, Au improperly deposited his clients' settlement proceeds into his office account in violation of: • HRPC Rule 1.15(a)(1) (requiring a lawyer to maintain a client trust account into which the lawyer must deposit all funds that are entrusted to the lawyer's care); • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds or misappropriating such funds for the lawyer's own use or benefit); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer); and • HRPC Rule 1.15(d) (requiring a lawyer to deposit intact into a client trust account all funds entrusted to the lawyer except for non-refundable retainers earned upon receipt). [2] The hearing committee concluded that, in several instances, Au paid for certain litigation costs by using funds from his client trust account in violation of: • HRPC Rule 1.15(a)(1) (requiring a lawyer to maintain a client trust account into which the lawyer must deposit all funds that are entrusted to the lawyer's care); • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer, but additionally requiring the lawyer to withdraw any portion belonging to the lawyer when due); and • HRPC Rule 1.15(e) (requiring that, when a lawyer withdraws earned fees from a client trust account, the lawyer must distribute the earned fees by check to the named lawyer). The hearing committee concluded that Au improperly deposited unearned fees into his office account, rather than his client trust account, in violation of: • HRPC Rule 1.15(a)(1) (requiring a lawyer to maintain a client trust account into which the lawyer must deposit all funds that are entrusted to the lawyer's care); • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds or misappropriating such funds for the lawyer's own use or benefit); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer); and • HRPC Rule 1.15(d) (requiring a lawyer to deposit intact into a client trust account all funds entrusted to the lawyer except for non-refundable retainers earned upon receipt). [3] The hearing committee concluded that Au improperly reimbursed his client trust account in violation of: • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer, but additionally requiring the lawyer to withdraw any portion belonging to the lawyer when due); and • HRPC Rule 1.15(e) (requiring that, when a lawyer withdraws earned fees from a client trust account, the lawyer must distribute the earned fees by check to the named lawyer). The hearing committee concluded that Au failed to withdraw funds from his client trust account in violation of: • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer, but additionally requiring the lawyer to withdraw any portion belonging to the lawyer when due); and • HRPC Rule 1.15(e) (requiring that, when a lawyer withdraws earned fees from a client trust account, the lawyer must distribute the earned fees by check to the named lawyer). The hearing committee concluded that Au falsely certified that he had complied with client trust account requirements in violation of: • HRPC Rule 8.4(a) (prohibiting a lawyer from violating or attempting to violate the HRPC); and • HRPC Rule 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The hearing committee concluded that Au improperly paid fees to a non-lawyer runner in exchange for client referrals, and, in so doing, Au also inflated his contingency fee in violation of: • HRPC Rule 1.5(c) (requiring that a contingent fee agreement must be in writing and must state the method by which the fee is to be determined); • HRPC Rule 7.2(c) (prohibiting a lawyer from giving anything of value to a person for recommending the lawyer's services); • HRPC Rule 8.4(a) (prohibiting a lawyer from violating or attempting to violate the HRPC); and • HRPC Rule 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty).
+With respect to ODC XX-XXX-XXXX, the hearing committee concluded that Au deposited a client's payment for legal fees into Au's personal business account before Au earned the fees in violation of: • HRPC Rule 1.15(a)(1) (requiring a lawyer to maintain a client trust account into which the lawyer must deposit all funds that are entrusted to the lawyer's care); • HRPC Rule 1.15(c) (prohibiting a lawyer from commingling client funds with the lawyer's own funds or misappropriating such funds for the lawyer's own use or benefit); • HRPC Rule 1.15(c) (requiring a lawyer to deposit into a client trust account any funds that belong in part to a client and in part presently or potentially to the lawyer); and • HRPC Rule 1.15(d) (requiring a lawyer to deposit intact into a client trust account all funds entrusted to the lawyer except for non-refundable retainers earned upon receipt). [4]
+The hearing committee recommended that this court impose two forms of discipline against Au: (1) public censure for (a) all of Au's misconduct in ODC XX-XXX-XXXX and (b) Au's mishandling of clients' funds in ODC XX-XXX-XXXX and ODC XX-XXX-XXXX; and (2) disbarment for Au's improper use of a non-lawyer runner to obtain client referrals in ODC XX-XXX-XXXX.
+When Au's case proceeded to the Board, Au obtained the Board's permission to file a brief regarding, among other things, his prior motion to disqualify Chairperson Alston. Au appended additional documents to his brief that showed in greater detail how Chairperson Alston and Au had disputed whether Au was entitled to any of Alteka's award of attorneys' fees. After reviewing the evidence, the Board accepted the hearing committee's order denying Au's motion for the recusal or disqualification of Chairperson Alston from the hearing committee. The Board also accepted the hearing committee's findings of fact and conclusions of law. However, the Board rejected the hearing committee's recommendation to publicly censure and disbar Au. Instead, the Board recommended that this court suspend Au from the practice of law for two years.",facts
+565,852042,1,3,"The Indiana Tax Court was established to develop and apply specialized expertise in the prompt, fair, and uniform resolution of state tax cases. Ind. Dep't of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d 174, 176 (Ind.2010). This Court extends cautious deference to decisions within the special expertise of the Tax Court, and we do not reverse unless the ruling is clearly erroneous. Id. We extend the same presumption of validity to Tax Court rulings on summary judgment and apply the same standard of review. Id. at 176-77; Ind. Dep't of State Revenue v. Bethlehem Steel Corp., 639 N.E.2d 264, 266 (Ind.1994). That is, [w]hen a summary judgment involves a question of law within the particular purview of the Tax Court, cautious deference is appropriate. Bethlehem Steel, 639 N.E.2d at 266 (quoting Ind. Dep't. of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1313 (Ind.1992)). We will set aside the Tax Court's determinations of tax law on summary judgment only if we are definitely and firmly convinced that an error was made. Id.",standard of review
+566,1373065,1,6,"Appellant argues that the evidence was not sufficient to support the verdict. This enumeration of error is also without merit. Several witnesses, who observed appellant shoot his wife, testified at the trial. There was also evidence that appellant and his wife often argued about his drinking and that on one occasion, three or four years prior to the homicide, appellant attacked his wife with a butcher knife. Although the evidence regarding appellant's sanity was conflicting, there was sufficient evidence to authorize the verdict of the jury. See Powell v. State, 235 Ga. 208, 210 (1) (219 SE2d 109) (1975). Judgment affirmed. All the Justices concur.",sufficiency of the evidence
+567,2455395,1,2,¶ 5 1. Did the Board improperly disregard evidence or elevate some GMA goals over others? ¶ 6 2. Did the Board properly determine that the County failed to develop a written record explaining the rural element of its Plan? ¶ 7 3. Did the Board improperly employ a bright line rule regarding rural densities? ¶ 8 4. Did the Board properly find that the County failed to protect rural character? ¶ 9 5. Did the Board properly conclude that the County failed to provide for a variety of rural densities? ¶ 10 6. Did the Board properly find that the County's development regulations allow for urban densities and uses in its designated agricultural land? ¶ 11 7. Did the Board properly determine that the County's land use decisions around its airports violate the GMA? ¶ 12 8. Did the Board properly determine that the County failed to protect water by not requiring disclosure of common ownership in subdivision applications?,issues
+568,3159995,2,1,"As in all cases where a death sentence has been imposed, we begin by conducting an independent review of the sufficiency of the evidence to sustain the conviction for first degree murder. Commonwealth v. Perez, 93 A.3d 829, 840 (Pa. 2014); Commonwealth v. Zettlemoyer, 454 A.2d 937, 942 n.3 (Pa. 1982). Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). 4 As described in detail infra, to refute the torture aggravator during the penalty phase of trial, Appellant presented the testimony of a medical expert. [J-2-2015] - 9 “In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt.” Commonwealth v. Fears, 836 A.2d 52, 58-59 (Pa. 2003). The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Spell, 28 A.3d 1274, 1278 (Pa. 2011). Further, the trier of fact is free to believe all, part, or none of the evidence. Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014). Accordingly, to sustain Appellant's conviction of first-degree murder, we must conclude that the evidence established beyond a reasonable doubt the three elements of first-degree murder: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011). First-degree murder is an intentional killing, i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(a), (d); Commonwealth v. Burno, 94 A.3d 956, 969 (Pa. 2014). Appellant contends there was insufficient evidence demonstrating the requisite specific intent to kill for first degree murder.5 He argues there were no eyewitnesses to Jaques’s assault, and no evidence detailing the nature of the assault such as where it occurred, how long it lasted, or when the child was rendered unconscious. He proffers that absent evidence of such details, it is mere speculation to conclude that he beat Jaques with the intent to kill him. According to Appellant, he could have acted in a rage 5 This contention is set forth in Issue VI in Appellant’s brief, which challenges the trial court’s denial of a motion seeking the dismissal of the charge of first degree murder based upon the lack of evidence of the specific intent to kill. See Brief for Appellant at 38-39. [J-2-2015] - 10 in a short period of time, not realizing the consequences of his actions, especially considering the great disparity of size between himself and the two-year-old victim. He submits that his efforts to seek aid for Jaques, by asking neighbors for help and attempting CPR, further suggest that he lacked the requisite intent to kill. Appellant concludes that the Commonwealth’s evidence was insufficient to prove even a prima facia case that he intended to kill the victim, and that the trial court erred not only by sustaining his conviction of first degree murder, but also by denying his pretrial motion to dismiss that charge. The Commonwealth refutes Appellant’s sufficiency challenge and contends that the record establishes both a prima facie case and sufficient evidence to sustain his first degree murder conviction. It asserts that the prima facie case against Appellant was premised on his deliberate and prolonged beating of Jaques, which was demonstrated by the autopsy report, autopsy photos of fresh bruises covering most of Jaques’s body, the preliminary hearing testimony of forensic expert nurse Emily Huggins who created a body map of Jaques’s bruises, and Appellant’s statements that he had struck Jaques while he acted as caregiver during the time period that the fatal injuries were inflicted. This evidence was further supplemented, the Commonwealth contends, by Dr. Land’s trial testimony that Jaques suffered the laceration to his liver hours before his death, and later suffered the brain injury at or around the time of death, and that both injuries could have each, individually, been fatal. The Commonwealth reiterates Dr. Land’s medical conclusion that the cause of death was multiple blunt force trauma, not accidental drowning, and that the manner of death was homicide. Further, the Commonwealth submits that this Court has consistently rejected the premise that there must be evidence of a single fatal blow in order to find the specific intent to kill in cases where death results from the prolonged beating of the victim. See [J-2-2015] - 11 Commonwealth v. Chambers, 980 A.2d 35, 46-48 (Pa. 2009) (confirming the lack of merit to the “final fatal blow” argument and finding specific intent to kill where the defendant engaged in a continued pattern of child abuse and ultimately threw the three-year-old child across the room into a radiator and left her to suffocate between a bed and a wall); Commonwealth v. Powell, 956 A.2d 406 (Pa. 2008) (rejecting claim of lack of evidence of specific intent to kill where the defendant repeatedly beat his six-year-old son, causing a seizure that resulted in death by asphyxiation because there is nothing in law requiring a final fatal blow to demonstrate a specific intent to kill); Commonwealth v. Smith, 675 A.2d 1221 (Pa. 1996) (plurality) (finding sufficient evidence of first degree murder where a five-month-old baby died while in the defendant’s care and expert medical testimony established that the cause of death was six to ten blows to the baby’s head). The Commonwealth concludes that, consistent with this case law examining the defendant’s entire course of conduct in child abuse murder cases, there is sufficient evidence that Appellant possessed the specific intent to kill. The trial court agreed with the Commonwealth and held there was sufficient evidence of a specific intent to kill to support both the charge of first degree murder and the conviction. It cited Chambers and Powell, supra, for the proposition that physical child abuse resulting in death is sufficient to sustain a jury’s finding that the defendant possessed the specific intent to kill, despite the medical examiner’s inability to diagnose the “final blow” that caused the death. The trial court held that, viewed in the light most favorable to the Commonwealth as verdict winner, the evidence established that Appellant was angry with Hayley for leaving her children at his home and beat her son to death. It reasoned that the jury was free to infer Appellant’s specific intent to kill from his use of deadly force on Jaques’s body. The court relied on the autopsy photos depicting Jaques’s extensive and recent bruises, Dr. Land’s comprehensive testimony on the [J-2-2015] - 12 cause and manner of death, and the fact that Appellant was about four times the size of the two-year-old victim. Based on the medical evidence, the trial court opined that Appellant placed Jaques in the bathtub after fatally beating him, evidencing an attempt to mask the true cause of death by suggesting that the child drowned accidentally in the bathtub. These facts, the court concluded, were more than sufficient to establish the requisites of first degree murder. Upon careful scrutiny of the record, we agree with the trial court that there is sufficient evidence to support Appellant’s conviction of first degree murder. When viewed in the light most favorable to the Commonwealth as verdict winner, the evidence establishes that Jaques was unlawfully beaten to death, that Appellant was responsible for the killing, and that Appellant acted with malice and a specific intent to kill as demonstrated by his use of deadly force upon the helpless two-year-old victim that he was entrusted to protect. We reject Appellant’s claim that his conviction was based upon mere speculation because there was no evidence describing with particularity how the beatings were carried out and at what point the defenseless toddler was rendered unconscious from Appellant’s vicious attack. This Court rejected a similar contention in Powell, supra, where we upheld the jury’s finding of specific intent to kill where the defendant repeatedly beat his six-year-old son, causing a seizure that resulted in death by asphyxiation, but where there was no evidence relating to the final blow that ultimately caused the death. We stated: There is nothing in the law, logic, or human experience that provides, as a matter of law, that specific intent cannot be found when the medical examiner cannot point to a specific blow as the definitive cause of death. The very personal nature of a beating such as this negates the notion that a specifically identifiable killing blow is required to prove specific intent. After each beating, indeed, after each blow, appellant had time to reflect on what he was doing to his son. And, with the final stomping he administered to [J-2-2015] - 13 various vital parts of the child's body, appellant had ample time to appreciate the lethality of his conduct. The jury acted well within its authority in finding specific intent. Powell, 956 A.2d at 417. We reaffirmed this principle in Chambers, supra, where we found the specific intent to kill where the defendant engaged in a continued pattern of child abuse and ultimately threw a three-year-old child across the room into a radiator, and proceeded to catapult her again, leaving her between a bed and a wall to suffocate to death. We stated that “[t]he fact that appellant argues that he ‘only’ intended to abuse [the child victim] in the days before her murder does not mean the jury was obliged to believe that theory (for which there was no testimonial support), nor does it somehow negate a finding that he decided later to kill her.” Id., 980 A.2d at 47. We emphasized that “[t]he jury is no less able to measure the totality of the circumstances against the settled definition of specific intent in child-abuse murders than it is in other first-degree murder prosecutions.” Id. See also Commonwealth v. Tharp, 830 A.2d 519, 527 (Pa. 2003) (holding that by causing her young daughter’s death through a prolonged period of abuse and starvation, the defendant exhibited not a lack of a specific intent to kill, but rather a “unique type of coldness and deliberation,” which “reveals the sort of premeditation and deliberation that separates first degree murder from other killings”). We reach the same conclusion here. The expert medical testimony of Dr. Land established that hours before Jaques died, during the period in which he was in Appellant’s exclusive care, Jaques was struck with such force that his liver was lacerated between the right and left lobes with the tear extending almost completely through the liver, causing a significant amount of blood to pool into Jaques’s abdomen. N.T. (Trial), Volume IV, Oct. 22, 2013, at 900. Dr. Land compared the amount of force used to that which occurs in a severe motor vehicle accident. Id. at 902. Dr. Land explained that the liver laceration would cause Jaques significant pain, nausea, vomiting, and loss of bowel [J-2-2015] - 14 control, and concluded that such injury could cause death. Id. at 929. He further opined that hours later, near the time of death, again while in the exclusive care of Appellant, Jaques was struck in the head with such force as to cause bilateral subdural hemorrhages, which is bleeding on both sides of the brain. Id. at 896-97. Dr. Land testified that Jaques’s brain trauma could have occurred by striking Jaques’s head or by hurling the child’s head about in a forceful manner. Id. at 898. He opined that the head injury was the final injury inflicted at the time of death, and was fatal. Id. at 926-27, 931. This medical evidence repudiates Appellant’s theory that he may have acted in a rage, causing Jaques’s injuries in a short amount of time without realizing the devastating effects of his behavior, thereby disproving any specific intent to kill. Rather, the Commonwealth’s medical evidence establishes that Jaques was beaten over a period of hours until the child succumbed to the fatal blows. The fact that Appellant sought aid for the child whom he fatally bludgeoned does not negate his specific intent to kill. While the jury was free to believe the defense medical expert that Jaques’s death resulted from accidental drowning, it did not do so, and Appellant’s sufficiency challenge fails. Because the evidence was sufficient to establish the elements of first degree murder, it likewise was sufficient to demonstrate the lesser standard of a prima facie case of guilt. See Commonwealth v. Karetny, 880 A.2d 505, 514 (Pa. 2005) (holding that, at the preliminary hearing stage of a criminal prosecution, the Commonwealth need only put forth sufficient evidence to establish a prima facie case of guilt, which exists when there is evidence of each of the material elements of the crime charged and probable cause to warrant the belief that the accused committed the offense). Accordingly, we further reject Appellant’s contention that the trial court erred by denying his pretrial motion to dismiss the charge of first degree murder.",sufficiency of the evidence
+569,6220967,1,1,"Kenneth M. Kipple was convicted of two counts of child enticement and one count of tampering with a witness. No direct appeal was filed. Kipple retained new counsel and filed a postconviction motion that alleged ineffective assistance of counsel in various particulars, including trial counsel’s failure to file a direct appeal. The district court granted Kipple a new direct appeal. This is that appeal. - 657 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654 We affirm Kipple’s convictions for child enticement and for witness tampering, and we also affirm Kipple’s sentences for child enticement. We vacate Kipple’s sentence for witness tampering and remand the cause for further proceedings.",introduction
+570,1933751,1,2,"Palmer also asserts that the evidence before the jury was insufficient to support his convictions. Our review of the evidence is to determine `whether, based on that evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged.' State v. Graves, 609 A.2d 717, 719 (Me.1992) (quoting State v. Barry, 495 A.2d 825, 826 (Me.1985)). As we have previously held, [c]orroboration beyond the testimony of the prosecutrix is not required under our law to prove the crime of rape. State v. Graves, 609 A.2d at 719 (quoting State v. Field, 170 A.2d 167, 169 (Me. 1961)). After reviewing the evidence before the jury in the case at bar, we conclude that based on the victim's testimony, as well as that of Dr. Ricci who examined the victim, the jury rationally could find beyond a reasonable doubt the elements of the charged offenses.",sufficiency of the evidence
+571,4511529,1,2,"12. Defendants argue that North Carolina is an inconvenient forum and that Cardiorentis’s claims should be heard, if at all, in England.2 On that basis, they ask the Court to stay this case under section 1-75.12. Cardiorentis responds that North Carolina is not only a convenient forum but also the forum with the most substantial connection to the case. 13. Section 1-75.12 codifies the doctrine of forum non conveniens. If a trial court finds “that it would work substantial injustice for [an] action to be tried in a court of 2In the alternative, Defendants argue that this case should be heard in Switzerland where Cardiorentis maintains its principal place of business. (Compl. ¶ 11; Mem. in Supp. 2.) The Court need not address this alternative position because it finds, based on the parties’ briefs and affidavits, that England is “a convenient, reasonable and fair place of trial.” N.C. Gen. Stat. § 1-75.12(a). this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State.” N.C. Gen. Stat. § 1-75.12(a). Put another way, when it appears that this State “is an inconvenient forum and that another is available which would better serve the ends of justice and the convenience of [the] parties, a stay should be entered.” Motor Inn Mgmt., Inc. v. Irvin-Fuller Dev. Co., 46 N.C. App. 707, 713, 266 S.E.2d 368, 371 (1980) (citing Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361 (N.Y. 1972)). 14. In deciding whether to grant a stay, our courts usually consider a series of convenience factors and policy considerations, including (1) the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations. Lawyers Mut. Liab. Ins. Co. of N.C. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 356, 435 S.E.2d 571, 573 (1993) (citing Motor Inn, 46 N.C. App. at 713, 266 S.E.2d at 371). These factors parallel the public and private interest factors that federal courts use to decide motions premised on forum non conveniens. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947); DiFederico v. Marriott Int’l, Inc., 714 F.3d 796, 804–08 (4th Cir. 2013); see also Motor Inn, 46 N.C. App. at 713, 266 S.E.2d at 371. 15. It is not necessary to consider each factor or to find that every factor weighs in favor of a stay. See Muter v. Muter, 203 N.C. App. 129, 132–33, 689 S.E.2d 924, 927 (2010); Wachovia Bank v. Deutsche Bank Tr. Co. Ams., 2006 NCBC LEXIS 10, at  (N.C. Super. Ct. June 2, 2006). Rather, the trial court must be able to conclude that (1) a substantial injustice would result in the absence of a stay, (2) the stay is warranted by the factors that are relevant and material, and (3) the alternative forum is convenient, reasonable, and fair. See Bryant & Assocs., LLC v. ARC Fin. Servs., LLC, 238 N.C. App. 1, 5, 767 S.E.2d 87, 91–92 (2014). 16. With these principles in mind, the Court turns to the relevant factors, beginning with Cardiorentis’s choice of forum. A. Plaintiff’s Choice of Forum 17. Our courts generally begin with the presumption that a plaintiff’s choice of forum deserves deference. See Wachovia Bank, 2006 NCBC LEXIS 10, at ; see also Wordsworth v. Warren, 2018 NCBC LEXIS 107, at  (N.C. Super. Ct. Oct. 15, 2018); La Mack v. Obeid, 2015 NCBC LEXIS 24, at –17 (N.C. Super. Ct. Mar. 5, 2015). The amount of deference due, though, varies with the circumstances. 18. When a plaintiff elects to sue outside its home forum, its “choice deserves less deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). This is not to disfavor foreign litigants; there is simply less reason to believe that a litigant would choose a foreign forum for reasons of convenience. As the United States Supreme Court has observed, “[w]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable.” Id. at 255–56. 19. That is the case here. Cardiorentis, a Swiss company, brought this suit thousands of miles from its home. Absent a contrary showing, it is not reasonable to assume that Cardiorentis chose North Carolina because of its convenience. 20. Cardiorentis argues that it was faced with a choice between two inconvenient forums, North Carolina and England, and that it chose North Carolina as the more convenient of the two. (See Opp’n 2.) The Court is not persuaded. It appears that Cardiorentis conducted its pre-suit communications through English counsel. (See Mem. in Supp. Ex. 7 ¶ 1.8, ECF No. 20.8.) The decision to handle pre-suit activity in England but then to bring suit in North Carolina hints at forum shopping rather than convenience. Indeed, in other filings, Cardiorentis itself has complained about the inconvenience that results from a six-hour time difference and the associated complexity of cross-Atlantic communications. (See Pl.’s Resp. Defs.’ Mot. Extend Time ¶ 3, ECF No. 78.) 21. The Court therefore gives reduced deference to Cardiorentis’s choice of forum. This factor weighs against granting a stay, but only slightly. B. Location of Witnesses and Evidence 22. The clinical trial for Ularitide was a global undertaking, involving doctors, patients, and hospitals around the world. As a result, this litigation is likely to involve a number of witnesses and reams of evidence from a variety of locations—an important consideration because “the touchstone of forum non conveniens analysis is convenience.” La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). 1. Convenience of Witnesses and Convenience and Access to Another Forum 23. The location of witnesses is “always a key factor in forum non conveniens cases.” Manu Int’l, S.A. v. Avon Prods., Inc., 641 F.2d 62, 66 (2d Cir. 1981). The Court must consider not only the number of witnesses but also the materiality and importance of the witnesses. See, e.g., Bos. Telecomms. Grp., Inc. v. Wood, 588 F.3d 1201, 1209 (9th Cir. 2009); Reid-Walen v. Hansen, 933 F.2d 1390, 1396 (8th Cir. 1991). 24. Materiality turns on the nature of Cardiorentis’s allegations. In its complaint, Cardiorentis attributes the trial’s failure primarily to the enrollment (and subsequent concealment) of patients who did not meet the trial protocol. (See Compl. ¶¶ 7, 8, 49, 51.) This protocol established the criteria by which a patient was included in or excluded from the trial. (Compl. ¶¶ 31–32.) Enrollment of ineligible patients could affect the validity of the trial data, and IQVIA employees and affiliates were required to report any protocol deviations to Cardiorentis. (See Compl. ¶¶ 33, 35; Reply Br. Ex. 3 ¶¶ 12, 15.) IQVIA UK also performed source data verification to ensure that the reported data matched patient records. (See Reply Br. Ex. 3 ¶¶ 18– 19.) Defendants’ alleged failure to identify and report protocol deviations and perform source data verification forms the basis of this suit. 25. These duties were largely performed by three groups of potential witnesses: the trial investigators, the Clinical Research Associates (“CRAs”), and the Clinical Project Management Team (“CPM team”). (Reply Br. 5–6.) The investigators are the doctors who treated the patients at each study site. (Reply Br. Ex. 3 ¶ 7.) They screened potential trial participants and determined a patient’s eligibility. (Compl. ¶¶ 30, 34; Reply Br. Ex. 3 ¶ 7.) The CRAs, in turn, had responsibility for training the investigators, overseeing them, and monitoring the trial sites, along with identifying protocol deviations and performing source data verification. (Reply Br. Ex. 3 ¶¶ 12, 15, 18–19.) The CPM team had overall responsibility for managing and operating the trial, including oversight responsibility for training investigators, monitoring sites, and addressing protocol deviations. (Mem. in Supp. Ex. 5 ¶ 8; Reply Br. Ex. 3 ¶¶ 7, 14.) In short, these individuals have personal knowledge of the conduct giving rise to the allegations in the complaint. Not all will be called as witnesses, but the key witnesses are likely to come from their ranks. 26. These witnesses are scattered across the globe, but with significant concentrations in Europe. Of the 179 investigators, forty-four percent were located in the European Union. Only one was located in North Carolina. (Mem. in Supp. Ex. 4 Suppl. 5–9, ECF No. 20.5.) Of the roughly 100 CRAs, seventy-two were in Europe and two were in North Carolina. (Reply Br. Ex. 1 ¶ 6, ECF No. 81.2.) Twenty-two of the twenty-nine CPM team members were located in Europe while only two members were in North Carolina. (Reply Br. Ex. 1 ¶ 5.) 27. These witnesses and the work they performed were also managed from Europe. Three of the five Global Clinical Project Managers (“Global CPMs”), who were responsible for the overall operation of the study sites, were in Europe. (Reply Br. Ex. 3 ¶¶ 8–10.) None were located in North America. (Reply Br. Ex. 3 ¶ 10.) The Global CPMs were supervised by two Line Managers, one located in England and the other in France. (Reply Br. Ex. 3 ¶ 9.) 28. Other teams that played relevant roles in the trial also appear to be concentrated in Europe. By way of example, a fifteen-member Executive Committee designed the trial protocol. (Mem. in Supp. Ex. 4 1957.) Eight of these team members were in Europe, none in North Carolina. (Mem. in Supp. Ex. 4 Suppl. 2.) When the investigators and CRAs ran into medical issues, including issues of protocol interpretation, the Medical Advisors provided guidance. (Mem. in Supp. Ex. 5 ¶ 9.) Two of the seven were in North Carolina, but four were in Europe. (Reply Br. Ex. 1 ¶ 7.) The investigators collected and processed patient data using a system developed by the Data Management team, every member of which was located in France. (Mem. in Supp. Ex. 5 ¶ 11; Reply Br. Ex. 1 ¶ 8.) The Biostatistician team was in charge of designing the trial’s statistical analysis plan and had seven members located in Europe. (Mem. in Supp. Ex. 5 ¶ 12; Reply Br. Ex. 1 ¶ 9.) It seems clear that some of these individuals will be material witnesses; Cardiorentis has sought extensive information about their roles in the trial in its discovery requests. (Mem. in Supp. Ex. 8 ¶¶ 4, 5, 20(g), 44, ECF No. 20.9.) 29. Cardiorentis says little about these potential witnesses, instead emphasizing Defendants’ quality assurance operations. Cardiorentis points to the Clinical Event Validation and Adjudication (“CEVA”) system, a North Carolina-based team that Cardiorentis alleges trained the investigators and assisted with reporting protocol deviations. (Opp’n Ex. A ¶ 14(c)–(d), ECF No. 75.1.) But Defendants have supplied evidence showing that the CPM team, CRAs, and investigators performed these duties, not CEVA. (Reply Br. Ex. 3 ¶¶ 7–12.) In addition, a separate Quality Assurance team conducted all of the trial’s audits (thirty in Europe, two in North Carolina), and its members were located in Finland, Belgium, and Texas. (Reply Br. Ex. 2 ¶¶ 1, 3, 9–10, 12, ECF No. 81.3.) 30. CEVA appears to be an administrative data compilation tool that provided information to the Clinical Events Committee (“CEC”) and Data Safety Monitoring Board (“DSMB”). These two teams played a role in ensuring patient safety. When a patient suffered a certain medical event, including death, the CEC analyzed the cause. (Reply Br. Ex. 4 ¶¶ 4–6, ECF No. 81.5.) The DSMB also evaluated patient safety data and was the body that ultimately recommended discontinuing the trial. (Reply Br. Ex. 4 ¶¶ 10–12.) The CEC team members are located entirely in Scotland, and three of the four DSMB team members were located in Europe. (Mem. in Supp. Ex. 4 Suppl. 3.) 31. Cardiorentis also alleges that ten other witnesses, all high-level IQVIA NC officers and employees, are located in North Carolina. (See Compl. ¶ 45(a)–(j); Opp’n 7, 12, 14.) According to Cardiorentis, these employees made or approved every medical and financial decision throughout the course of the trial. (Opp’n 7; Opp’n Ex. A ¶¶ 24, 25.) But the complaint does not clearly tie any of its allegations of wrongdoing to these IQVIA NC employees. In addition, IQVIA NC has supplied affidavits demonstrating that several of the witnesses had no day-to-day role in the trial. (See Mem. in Supp. Ex. 10 ¶¶ 10–13, ECF No. 20.11.) 32. The Court concludes, based on the complaint’s allegations, that the more material witnesses are the trial personnel who were involved in drafting the protocol, training investigators, monitoring trial sites, identifying and reporting protocol deviations, and performing source data verification. As discussed above, most of these witnesses are located in Europe and few are located in North Carolina. It is therefore clear that England would be a far more convenient forum than North Carolina for the majority of the relevant witnesses. 33. Cardiorentis observes, correctly, that England and Europe are not synonymous and that most of these witnesses are not located in England. (Opp’n 9– 10.) But the weight of authority holds that a European forum is more convenient when the preponderance of witnesses is concentrated in Europe. See, e.g., Schertenleib v. Traum, 589 F.2d 1156, 1165 (2d Cir. 1978); Vivendi S.A. v. T-Mobile USA, Inc., 2008 U.S. Dist. LEXIS 118529, at –35 (W.D. Wash. June 5, 2008); Delta Brands, Inc. v. Danieli Corp., 2002 U.S. Dist. LEXIS 24532, at –26 (N.D. Tex. Dec. 19, 2002). Practically speaking, it is certainly easier for witnesses residing in Europe to travel to England than it is for the same witnesses to travel to North Carolina. 34. This is bolstered by the fact that many of the most material witnesses are third parties. The investigators, CEC team, and DSMB team members are not employees of IQVIA UK or IQVIA NC. (See Mem. in Supp. Ex. 4 Suppl. 5–9; Reply Br. 6; Reply Br. Ex. 4 ¶¶ 5, 10.) These witnesses are more likely to participate in the case if it proceeds in a European forum. See Marnavi Splendor GmbH & Co. KG. v. Alstom Power Conversion, Inc., 706 F. Supp. 2d 749, 757 (S.D. Tex. 2010). And courts often give greater weight to the convenience of nonparty witness. See Morris v. Chem. Bank, 1987 U.S. Dist. LEXIS 8031, at –14 (S.D.N.Y. Sept. 10, 1987); see also Banco de Seguros del Estado v. J.P. Morgan Chase & Co., 500 F. Supp. 2d 251, 262 (S.D.N.Y. 2007); Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 775 (E.D. Tex. 2000). 35. In short, the balance of witnesses with pertinent, firsthand information are in Europe, and England is a more convenient forum for those witnesses than North Carolina. The convenience of witnesses favors a stay. 2. Relative Ease of Access to Sources of Proof 36. Given the difficulty and expense associated with gathering evidence in a foreign jurisdiction, the relative ease of access to sources of proof has been considered particularly important in the forum non conveniens analysis. See Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003). In analyzing this factor, a court should first consider the evidence required to prove or disprove each claim and then assess the likely location of that evidence. See J.C. Renfroe & Sons, Inc. v. Renfroe Japan Co., Ltd., 515 F. Supp. 2d 1258, 1270 (M.D. Fla. 2007). 37. Here, the Court has the benefit of reviewing Cardiorentis’s discovery requests, which seek extensive discovery of evidence located largely in Europe. For example, Cardiorentis seeks information about the protocol, along with the identity of personnel involved with, and documents and communications related to, protocol deviations and the source data verification process. (Mem. in Supp. Ex. 8 ¶¶ 4–7, 13– 15, 18, 25; Mem. in Supp. Ex. 9 ¶¶ 4, 5, 8–10, ECF No. 20.10.) Other discovery requests ask for information regarding the trial sites and associated staff, site visits, and site management. (Mem. in Supp. Ex. 8 ¶¶ 8–12, 16–18, 44; Mem. in Supp. Ex. 9 ¶¶ 6, 7, 11.) And Cardiorentis seeks the meeting minutes of the CEC and the DSMB (whose members are primarily in Europe); information about a Blind Data Review Meeting (held in Scotland); and all documents related to inspections by Dutch and Swiss regulatory authorities. (Mem. in Supp. Ex. 5 ¶¶ 5, 14; Mem. in Supp. Ex. 8 ¶¶ 28, 29, 49.) The bulk of this information relates to European locations and personnel. (Reply Br. Ex. 3 ¶¶ 8–10.) 38. It will be much easier for the parties to access relevant sources of proof from England. Importantly, the Services Agreement that gives rise to all of IQVIA UK’s trial responsibilities was executed in Reading, England. (Mem. in Supp. Ex. 1 ¶ 5, ECF No. 20.2; Services Agreement at 18.) England is also closer to much of the relevant evidence that will need to be collected from the study sites. 39. Conversely, North Carolina is not likely to be a significant source of evidence. Cardiorentis seeks, for example, discovery of all audits performed by Defendants. (Mem. in Supp. Ex. 8 ¶¶ 31, 32; Mem. in Supp. Ex. 9 ¶ 12.) Only two took place in North Carolina; the other thirty were in Europe. (Reply Br. Ex. 2 ¶¶ 9– 10.) Documents related to CEVA may be based in North Carolina, but as discussed earlier, CEVA is likely to be less material than the Europe-centric teams it supported. (Reply Br. Ex. 4 ¶¶ 6, 8, 11.) 40. Additionally, if this case were to proceed in England, the parties may be able to take advantage of European Council Regulation No. 1206/2001. This regulation simplifies the exchange of evidence between members of the European Union. See In re Air Crash Over the Mid-Atl. on June 1, 2009, 760 F. Supp. 2d 832, 844 n.8 (N.D. Cal. 2010); Vivendi S.A., 2008 U.S. Dist. LEXIS 118529, at . To the extent it is available, this method of obtaining evidence slightly favors an English forum because it is preferable to obtaining evidence through the more “time-consuming and expensive” procedures of the Hague Convention. Crosstown Songs U.K., Ltd. v. Spirit Music Grp., Inc., 513 F. Supp. 2d 13, 17 (S.D.N.Y. 2007); see also Rabbi Jacob Joseph Sch. v. Allied Irish Banks, P.L.C., 2012 U.S. Dist. LEXIS 121438, at  (E.D.N.Y. Aug. 27, 2012).3 41. Given the worldwide nature of the clinical trial, Cardiorentis and Defendants will be required to undergo extensive and burdensome evidence production from abroad whether the case proceeds in North Carolina or England. But there is little relevant evidence in North Carolina, and England is much closer to important sources of proof. This factor favors a stay. 3. Availability of Compulsory Process 42. Both North Carolina and England allow courts to compel unwilling witnesses to attend trial proceedings. Federal courts have generally found that this factor favors dismissal from an American forum when, as here, a large number of witnesses are located overseas beyond the reach of a court’s compulsory process. See 3Cardiorentis argues that the United Kingdom’s anticipated exit from the European Union casts doubt on the availability of European Council Regulations, but this argument is speculative. (Opp’n 15–16.) The timing and details of the so-called Brexit remain unsettled, and there is uncertainty as to whether the relevant procedural mechanisms (and many other EU regulations) would or would not continue to apply. MicroAire Surgical Instruments, LLC v. Arthrex, Inc., 2010 U.S. Dist. LEXIS 70191, at  (W.D. Va. July 13, 2010). 43. However, where the moving party fails to allege that nonparty witnesses would participate only if compelled to do so, the availability of compulsory process “should be given little weight in the overall balancing scheme” of the forum non conveniens analysis. DiFederico, 714 F.3d at 806; see also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1231 (9th Cir. 2011); Duha v. Agrium, Inc., 448 F.3d 867, 877 (6th Cir. 2006); Peregrine Myan. Ltd. v. Segal, 89 F.3d 41, 47 (2d Cir. 1996). Neither side has identified any involuntary witnesses here. In the absence of meaningful evidence of the need for compulsory process, the factor is neutral. C. Applicable Law 44. State and federal courts alike agree that the need to apply foreign law favors a stay in a forum non conveniens analysis. See, e.g., Manuel v. Gembala, 2012 N.C. App. LEXIS 359, at  (N.C. Ct. App. Mar. 20, 2012) (upholding stay on appeal because, “most notably,” the claims were governed by federal law and other States’ laws); see also Piper Aircraft, 454 U.S. at 260 n.29 (citing cases); NLA Diagnostics LLC v. Theta Techs. Ltd., 2012 U.S. Dist. LEXIS 108779, at –13 (W.D.N.C. Aug. 3, 2012). 45. Cardiorentis’s claims for breach of contract will be governed by English law. The Services Agreement specifies that it must be construed and applied “in accordance with the laws of England and Wales,” (Services Agreement § 28.0), and North Carolina courts generally honor choice-of-law clauses. See IPayment, Inc. v. Grainger, 2017 N.C. App LEXIS 1087, at , 808 S.E.2d 796, 800 (2017). The Quality Agreement does not have its own choice-of-law provision but, as an outgrowth of the Services Agreement, will also be governed by the law of England and Wales. (Quality Agreement § 1.) Cardiorentis does not dispute that either agreement is governed by English law. 46. While American courts can and do apply foreign law, they regularly hold that English courts are better equipped to apply English law. See, e.g., Rabbi Jacob Joseph Sch., 2012 U.S. Dist. LEXIS 121438, at –14; Denmark v. Tzimas, 871 F. Supp. 261, 271 (E.D. La. 1994). Moreover, applying and proving foreign law can impose significant costs on parties in terms of time and money and can also increase the administrative burden on the court. See Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1181 (10th Cir. 2009); In re Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1339 (S.D. Fla. 2010); Stroitelstvo Bulg., Ltd. v. Bulgarian-Am. Enter. Fund, 598 F. Supp. 2d 875, 889 (N.D. Ill. 2009). Therefore, that the contract claims are governed by English law favors a stay. 47. As to Cardiorentis’s remaining claims, the parties vigorously dispute the applicable law. Generally, lex loci delicti “is the appropriate choice of law test to apply to tort claims,” including fraud. Harco Nat’l Ins. Co. v. Grant Thornton LLP, 206 N.C. App. 687, 692, 698 S.E.2d 719, 722 (2010). The appropriate test for claims asserted under the Unfair and Deceptive Trade Practices Act is unsettled, however. Compare Harco Nat’l, 206 N.C. App. at 698, 698 S.E.2d at 726 (applying lex loci), with Andrew Jackson Sales v. Bi-Lo Stores, Inc., 68 N.C. App. 222, 225, 314 S.E.2d 797, 799 (1984) (applying “most substantial relationship” test). 48. To evaluate this factor, the Court need not definitively determine which law governs, particularly when leaving the question open would avoid “unnecessarily addressing an undecided issue of [state] law.” Galustian v. Peter, 561 F. Supp. 2d 559, 565 (E.D. Va. 2008). It suffices to note that North Carolina law is unlikely to apply to any of the tort claims. 49. Under the lex loci test, tort claims are governed by the law of the place of injury, which is sustained in the jurisdiction where the last act giving rise to the injury occurred. See Harco Nat’l, 206 N.C. App. at 694, 698 S.E.2d at 724; Stetser v. TAP Pharm. Prods. Inc., 165 N.C. App. 1, 14, 598 S.E.2d 570, 580 (2004). The last act is often “the suffering of damages.” M-Tek Kiosk, Inc. v. Clayton, 2016 U.S. Dist. LEXIS 67036, at  (M.D.N.C. May 23, 2016) (alterations and quotation marks omitted). There is no bright-line rule that a corporate plaintiff suffers injury in the forum where it maintains its principal place of business. See Harco Nat’l, 206 N.C. App. at 697, 698 S.E.2d at 725–26. But in this case, Cardiorentis asserts injury in the form of costs it paid to mount the trial, other costs and expenses associated with the trial, and lost profits. (Compl. ¶¶ 83–84.) Cardiorentis likely suffered these losses at its corporate home in Switzerland. (Compl. ¶ 11.) Therefore, it appears that Swiss law would govern all of Cardiorentis’s tort claims if the Court applied lex loci. 50. If the Court were required to apply the most significant relationship test to the unfair trade practices claim, the question would be which forum has the strongest ties to the case. See, e.g., Andrew Jackson, 68 N.C. App. at 225, 314 S.E.2d at 799. Cardiorentis’s claim is primarily fraud-based, essentially alleging that Defendants improperly concealed their breaches of a contract between English and Swiss companies and governed by English law. (See, e.g., Compl. ¶¶ 104(b)–(c), 104(e).) Under this test, it seems likely that English or Swiss law would govern, not North Carolina law. 51. At this stage, it is evident there will be substantial questions of English law. It also appears likely that a court will need to apply Swiss law to at least some of Cardiorentis’s claims and unlikely that North Carolina law will govern any of the claims. Therefore, this factor favors a stay. D. Local Concern and Nature of the Case 52. The Court must also consider the nature of the case and whether either forum has a local interest in resolving the controversy. At its root, this case concerns the performance of a global clinical trial pursuant to a contract (the Services Agreement) that is between English and Swiss companies and governed by English law. England therefore has a clear, strong interest. See NLA Diagnostics, 2012 U.S. Dist. LEXIS 108779, at –13. 53. By contrast, North Carolina has a weaker interest. Most of the conduct giving rise to the claims occurred in Europe, not North Carolina. The sole tie to North Carolina is the fact that IQVIA NC is located in this State. (Compl. ¶ 12.) Although our courts have a general interest in providing a forum to hear disputes involving injuries caused by citizens of the State, see Reid-Walen, 933 F.2d at 1400, this interest is diminished when the lion’s share of relevant activity occurred abroad and when the controversy is unlikely to be governed by North Carolina law. 54. Thus, the Court concludes that England possesses the stronger interest in resolving this dispute. See, e.g., Gullone v. Bayer Corp., 484 F.3d 951, 959 (7th Cir. 2007); Pollux Holding, Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 76 (2d Cir. 2003). These factors favor a stay. See La Mack, 2015 NCBC LEXIS 24, at . E. Fair and Reasonable Forum 55. As a prerequisite to the entry of a stay, the moving party “must stipulate his consent to suit in another jurisdiction.” N.C. Gen. Stat. § 1-75.12(a). This condition is met here. IQVIA UK and IQVIA NC have stipulated their consent to suit in either England or Switzerland. (Mem. in Supp. 23.) 56. Section 1-75.12(a) also requires that the alternative forum be reasonable and fair. This, too, is satisfied. Cardiorentis does not contend that England is an unreasonable or unfair forum. (Opp’n 3.) Indeed, England is “a forum that American courts repeatedly have recognized to be fair and impartial.” Haynsworth v. Corp., 121 F.3d 956, 967 (5th Cir. 1997); see also Tarasewicz v. Royal Caribbean Cruises, Ltd., 2015 U.S. Dist. LEXIS 84779, at –40 (S.D. Fla. June 30, 2015); Capital Mkts. Int’l v. Gelderman, Inc., 1998 U.S. Dist. LEXIS 12488, at  (N.D. Ill. Aug. 7 1998).",analysis
+572,2048282,1,4,"On redirect examination, F.B.I. Agent Bell, the witness who identified the latent fingerprints found at the scene of the crime as those of the Defendant, was asked whether he thought exhibits 5 and 6, the latent fingerprints, could have been tampered with. Defendant objected, but the trial court overruled his objection, and Bell testified that, in his opinion, they had not been the subject of tampering. Defendant concedes that the scope of redirect examination is within the discretion of the trial court, Dooley v. State, (1981) Ind., 428 N.E.2d 1, 6, but, nonetheless, contends that the court's ruling constituted an abuse of discretion and denied him a fair trial in that Bell's testimony was beyond the scope of his cross-examination and the line of questioning on redirect examination, called undue emphasis to the validity and sufficiency of such evidence. Although the question and the response it evoked were beyond the scope of cross-examination and, therefore, should not have been allowed, Defendant has not shown how he was harmed by this testimony. Several other witnesses had testified that the exhibits had not been altered in any way. We find no reversible error.",issues
+573,2584509,1,5,"[¶ 23] The Trustees contend first that the district court was without jurisdiction to enter its order directing the Trustees to reimburse the Family Trust. Specifically, the Trustees argue that once they filed their notice of appeal in Garwood I, the district court was without jurisdiction to rule on Mr. Garwood's motion for removal of Trustees and recovery of attorneys' fees expenditures by the Trustees. We disagree. [¶ 24] District courts are entitled to a presumption of regularity when exercising their general jurisdiction. KC v. KM, 941 P.2d 46, 50 (Wyo.1997); First Wyoming Bank, N.A.-Cheyenne v. First Nat'l Bank & Trust Co., 628 P.2d 1355, 1362 (Wyo.1981). The question of attorneys' fees and costs in a given civil action is a common issue that a trial court may address, and it does not, as suggested by the Trustees, require the filing of a separate action or a motion to amend a judgment. See Wyo. Stat. Ann. § 1-14-126 (LexisNexis 2009) (discretion of court in awarding costs and attorneys' fees); W.R.C.P. 54(d) (procedures for post-judgment cost and fee applications). The issue may be addressed as an element of damages, or it may be addressed, as it was in this case, through the filing of a post-judgment motion, as described in Rule 54. See W.R.C.P. 54. [¶ 25] The issue of attorneys' fees and costs was properly placed before the district court by Mr. Garwood's timely filing of a post-judgment application for fees and costs, and the court thus had authority to address the issue in the action before it. The question remains, then, whether the district court lost its jurisdiction to address the issue once the Trustees filed their notice of appeal from its original judgment. We conclude that it did not. [¶ 26] Rule 6.01 of the Wyoming Rules of Appellate Procedure governs jurisdiction after an appeal is docketed. It provides: The appellate court shall acquire jurisdiction over the matters appealed when the case is docketed. In all cases, the trial court retains jurisdiction over all matters and proceedings not the subject of the appeal, including all matters covered by Rules 4 and 5, unless otherwise ordered by the appellate court. W.R.A.P. 6.01(b). Consistent with Rule 6.01, we have held that during the pendency of an appeal, the district court has the right and power to enforce its decrees and orders and to protect the parties as to any rights they acquired in the district court proceedings. KC, 941 P.2d at 50-51; Moore v. Moore, 809 P.2d 255, 258 (Wyo.1991); Coones v. F.D.I.C., 848 P.2d 783, 796 n. 18 (Wyo.1993). [¶ 27] The district court's judgment did not address attorneys' fees and costs. Because those issues were not the subject of the Trustees' appeal, the district court did not lose jurisdiction to address them. [¶ 28] Additionally, we find no inordinate delay in the district court's handling of the attorneys' fees and costs issue. Mr. Garwood filed his application for fees and costs the day after the district court entered its judgment, well within the fourteen days permitted by W.R.C.P. 54. It was only through addressing Mr. Garwood's fee and cost application that the district court learned that the Trustees had, without application to the court for an award of fees and costs, withdrawn funds from the Family Trust to pay their own fees and costs. The Trustees' attempt to bypass the fee application process did not deprive the trial court of its authority to address the Trustees' entitlement to fees and costs. [¶ 29] Nor do we accept the Trustees' suggestion that the district court's delay in deciding the issue until after this Court's decision in Garwood I is indicia that the district court was acting outside its authority. As we will discuss below, the Uniform Trust Code requires that an award of fees and costs from a trust fund be premised on a finding that the action benefitted the trust. The district court thus acted prudently in delaying its consideration of the issue until this Court had ruled on the Garwood I appeal. [¶ 30] The district court had jurisdiction to address the attorneys' fees and costs issues presented to it, and it acted reasonably in delaying its decision on the issues until this Court had decided the appeal from the district court's original decision.",jurisdiction
+574,860004,1,1,"¶5. Morrison marketed two types of products to poultry farmers -- water filters and magnets. The water filters were manufactured by Eco Resources, and the magnets were distributed by a company operating under the name of Magnetic Marketing Group. Morrison's relationship with each company was not formal; he simply attended meetings sponsored by the companies and qualified to sell their products. The water filters were intended to remove chlorine, lead and other contaminants from water piped into poultry houses. Different magnets were marketed for a number of purposes, including the clean and efficient use of water and of fuel in the operation of chicken houses. ¶6. In April of 1990, Means purchased a water filter from Morrison. The two agreed Means would be allowed to purchase the water filter on a conditional basis: he made a $500 down payment on the purchase price, was allowed several months to evaluate the filter's performance, and then had the option to either pay the balance due or return the filter in exchange for a complete refund. Means used the water filter for several months without complaint; however, as the chickens grew, so as to require more drinking water, and as the season turned to summer, so as to require cooling by means of evaporative foggers, Means complained that the filter unacceptably restricted the water pressure required for the chicken houses. ¶7. All efforts made to remedy the problem ultimately proved unsatisfactory to Means. At trial, Means testified that by mid-summer 1990 he first requested a refund of his $500 down payment. In contrast, Morrison testified that after the modifications in April of 1990, Means voiced no more complaints regarding the water filter until shortly before the filing of the underlying lawsuit. ¶8. In the early Spring of 1990 (contemporaneous with installation of the water filter), Morrison first provided magnets to Means for use on one fuel line to the heater in a chicken house. The magnets were provided on a trial basis in order to allow Means to evaluate their effectiveness. The magnets were placed on the fuel line for the purpose of increasing the efficiency with which the chicken house was heated. Means testified that, based upon his records as to the historical cost of heating the chicken house, the magnets worked. Means never paid any money for this group of magnets. At the time of trial, they were still installed in his chicken house. ¶9. In January of 1991(approximately the time heating poultry houses again gained significance) Means contacted Morrison in regards to purchasing magnets for the fuel lines in the remainder of his chicken houses. Morrison testified at trial that he had ceased selling water filters and magnets altogether. He further testified that he agreed to arrange for the purchase of additional magnets through the company he previously represented as an accommodation to Means. In return, he was to receive $100 from Means for his costs and labors. Morrison testified that Means knew Morrison was no longer a distributor for the magnet company. Means, however, testified that he had no knowledge that Morrison was not a representative of the magnet company until the time of trial. Regardless, the testimony of both parties established that Morrison wrote a check to Means in the amount of the purchase price of the magnets plus $100. Morrison in turn purchased money orders for the amount of the purchase price made payable to the magnet company. ¶10. The magnets actually received by Means differed from those ordered through Morrison. The magnets Morrison installed on the fuel line in the Spring of 1990 were identified under the product codes M2 and FE1. The 21 magnets Means later purchased were Model FC Petro-Plus, a model with which Morrison had no familiarity. Means dealt directly with the manufacturer, and unbeknownst to Morrison, agreed to the substitution of the FC-Petro Plus magnets in light of the company's inability to supply the magnets actually ordered. It was not until sometime later that Morrison first learned from Means that Means had accepted magnets different from those previously provided on a trial basis. Dissatisfied with the 21 FC Petro-Plus magnets, Means demanded a further refund from Morrison. ¶11. In his suit Means demanded a refund not only of the $956.80 (including Morrison's $100 fee) paid for the 21 magnets, but also the $500 down payment on the water filter. Morrison refused to refund the $856.80 paid to Magnetic Marketing Group. He was willing to refund the $100 Means paid for Morrison's effort and expense. And he was willing to refund the $500 down payment on the water filter. However, from this total of $600 he deducted $340 -- his cost for the magnets Means admitted were provided on a trial basis, admitted worked, and admitted he never paid for. Morrison executed and mailed a check in the amount of $260 to Means. Means never cashed the check. I. WAS THERE EVIDENCE SUFFICIENT TO SUPPORT AN AWARD OF DAMAGES FOR MENTAL ANGUISH. ¶12. Mental anguish(1) is a nebulous concept (yet, all of us have suffered such anguish) and requires substantial proof for recovery. The standard required for mental anguish is elusive. However, the Restatement (Second) of Torts likens it to that required for entitlement to an award of punitive damages. It requires conduct so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts § 46. ¶13. This Court has held that recovery for mental anguish can be allowable even when there is no presence of a physical injury. Where there is something about the defendant's conduct which evokes outrage or revulsion, done intentionally - or even unintentionally yet the results being reasonably foreseeable - Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury. Sears, Roebuck & Co. v. Devers, 405 So. 2d 898, 902 (Miss. 1981). Stated another way, the standard is whether the defendant's behavior is malicious, intentional, willful, wanton, grossly careless, indifferent or reckless. Leaf River Forest Products, Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss. 1995). If there is outrageous conduct, no injury is required for recovery for intentional infliction of emotional distress or mental anguish. Id. If the case of ordinary garden variety negligence, the plaintiff must prove some sort of injury, whether it be physical or mental. See Wirtz v. Switzer, 586 So. 2d 775, 784 (Miss. 1991); and Devers, 405 So. 2d at 902. If the conduct is not malicious, intentional or outrageous, there must be some sort of demonstrative harm, and said harm must have been reasonably foreseeable to the defendant. Strickland v. Rossini, 589 So. 2d 1268, 1275 (Miss. 1991). ¶14. The first aspect we must consider is what type of conduct occurred between Morrison and Means. Morrison argues that he conducted himself like an honest farmer who expects a man's handshake to be every bit as significant as his signature at the bottom of a contract. It is Morrison's argument that he allowed Means to use his products on a trial basis, he afforded Means generous payment terms, and he assisted Means in securing additional magnets at Means' request. ¶15. Morrison contends that Means' distress does not rise to the level of anxiety or anguish required to support an award for emotional distress. Means asserts that Morrison's injurious conduct was the refusal to honor a guaranteed refund. It was this alleged refusal that Means claims caused him the stress and anxiety of trying to determine how he could make ends meet without the refund. As a young farmer, Means states that the refund (he claims to be $1,456.80) was a significant part of his family's income. This loss, Means asserts, caused him emotional strain and many sleepless nights. ¶16. There is no other evidence in this case to support a claim for mental anguish. The only evidence of Morrison's conduct was that he did not refund the entire $1,456.80 requested by Means. This is not willful, wanton, grossly careless behavior. Moreover, the evidence tends to support Morrison's explanation of the amount he offered Means as a refund. If anything, the evidence shows that Morrison tried to accommodate Means. Morrison testified at trial that he agreed to arrange for the purchase of additional magnets through the company he previously represented as an accommodation to Means. Thereafter, Means dealt directly with the manufacturer of the magnets. ¶17. The magnets actually received by Means differed from those ordered through Morrison. The magnets Morrison installed on the fuel line in the Spring of 1990 were identified under the product codes M2 and FE1. The 21 magnets Means purchased were Model FC Petro-Plus, a model with which Morrison had no familiarity. Means dealt directly with the manufacturer, and unbeknownst to Morrison, agreed to the substitution of the FC-Petro Plus magnets in light of the company's inability to supply the magnets actually ordered. It was not until sometime later that Morrison first learned from Means that Means had accepted magnets different from those previously provided on a trial basis. Dissatisfied with the 21 FC Petro-Plus magnets, Means demanded a further refund from Morrison, not the manufacturer he had been dealing with. Morrison's conduct simply does not rise to the level of malicious, intentional, willful, wanton, grossly careless, indifferent, or reckless. Leaf River, 662 So. 2d at 659. ¶18. Even if this Court were to find Morrison's conduct to be of such a nature to meet the standard set by our precedent, there is not enough evidence presented to support the claim of mental anguish as a result of the conduct due to a lack of an injury. Means testified that he lost some sleep. He stated that, [i]t has affected me emotionally in that I have not been able to sleep many nights because I feel like I've been done wrong. I've been cheated out of money that I need to help support my family. These two sentences out of the entire transcript offered in support of this claim are hardly enough evidence to support a verdict that amounts to $3543.20 in damages for mental anguish. ¶19. In Strickland v. Rossini, 589 So. 2d 1268 (Miss. 1991), we held that evidence that the plaintiff was very depressed . . . [and] very upset over all this and emotional. . . . [and] not able to sleep, was insufficient to sustain a damages for mental anguish. Strickland, 589 So. 2d at 1275-76 (emphasis added). The testimony towards mental anguish in the Strickland case was the equivalent, if not more convincing, to that in the case sub judice. However, we did not find it adequate enough to support the award of damages for mental anguish, nor can we now hold that the evidence in the case at hand supports an award of damages for mental anguish. The jury below was erroneous in its award of damages. ¶20. Under our prevailing case law, there is no evidence of mental anguish in this case. Morrison's conduct did not reach the level of outrageous conduct this Court has required for mental anguish. Moreover, Means did not prove any evidence of an injury resulting from Morrison's conduct. Thus, the jury verdict of $5,000 must be reversed and the case remanded. ¶21. REVERSED AND REMANDED. LEE, C.J., PRATHER AND SULLIVAN, P.JJ., BANKS, ROBERTS, SMITH, AND MILLS, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.",facts
+575,2924446,1,1,"A 21-year-old intoxicated Hooper Bay resident committed suicide while he was detained in a holding cell by the City of Hooper Bay. His mother filed a wrongful death action against the City, alleging that the City’s negligence led to her son’s death. She sought damages in her individual capacity and on behalf of her son’s estate and her son’s minor children. The case proceeded to a jury trial and the jury returned a $1,078,233 judgment against the City. The City appeals, raising a number of issues, and we affirm the superior court’s rulings in many respects. But we vacate the jury’s damages award and remand for further proceedings on the issue of allocation of fault between the City and the deceased under AS 09.17.080.",introduction
+576,1929279,2,6,"Although Morris has not separately raised the issue of sufficiency of the evidence, we have an independent obligation to review the record. See Jennings v. State, 718 So.2d 144, 154 (Fla.1998). Initially we note that Morris took the stand in his own defense. Although he denied that he committed the murder, he admitted to being at the scene and to thereafter coming into possession of the items that were later identified as belonging to the victim. The evidence presented by the State included physical evidence linking Morris to the crime scene and the murder. First, from the biological fluids that were obtained from the victim's body and from the blood stain on the kitchen curtain, it was determined that the probability that the DNA was not Morris's was between 1 in 220,000 and 1 in 71 million. Second, Morris left a fingerprint on the lightbulb on the porch outside the victim's apartment. Third, Morris possessed various items taken from the victim's residence. Finally, Sastre testified that Morris admitted that he committed the murder and burglarized the home. The record in this case thus contains competent substantial evidence to support Morris's convictions.",sufficiency of the evidence
+577,1119601,1,3,"Generally, review of an appeal from an administrative decision is governed by the provisions of Wyo. Stat. Ann. § 16-3-114(c)(ii)(C) (LEXIS 1999), which directs a reviewing court to [h]old unlawful and set aside agency action, findings and conclusions found to be    [i]n excess of statutory jurisdiction, authority or limitations or lacking statutory right[.] Russell v. State ex rel. Wyoming Workers' Safety and Compensation Division, 944 P.2d 1151, 1155 (Wyo. 1997). In this case, however, the Division claims that we need not reach the substance of Wright's claims because Wright waived his right to challenge the expedited procedure. While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law. 28 Am.Jur.2d, Estoppel and Waiver § 174, at 864-65 (1966); see also Intermountain Brick Company v. Valley Bank, 746 P.2d 427, 431 (Wyo.1987). We review rulings on questions of law de novo. Pohl v. The Bailey Company, 980 P.2d 816, 819 (Wyo.1999); Mortenson v. Scheer, 957 P.2d 1302, 1305 (Wyo.1998). Moreover, when considering an appeal from a district court's review of agency action, we accord no special deference to the district court's conclusions but review the case as if it had come directly to us from the administrative agency. Matter of Fisher, 914 P.2d 1224, 1226 (Wyo.1996).",standard of review
+578,2079998,1,1,"This Court is required to review the sufficiency of the evidence to sustain a conviction in every case of murder in the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964). We have often stated the test to be applied: [W]hether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); see Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972). In the late afternoon of April 22, 1973, a gas station in Lehigh County was robbed and the gas station attendant abducted. Police discovered spent cartridges at the scene of the robbery. The following day, the attendant's body was found covered with a blanket in a deserted area of Berks County. Medical examiners established that gunshot wounds were the cause of death. Appellant surrendered to police on April 25, 1973, and confessed to the robbery-murder. He stated that he had driven his father's car and had used a blanket found in the trunk of the car to cover the body, that he shot the victim shortly after abducting him, and that he had used his brother's gun, which he later hid in a hotel room. Police verified the details of appellant's confession and located the weapon. A ballistics expert testified that both the fatal bullets and the cartridges found at the gas station had been fired from the gun found in the hotel room. The statute applicable to this case defines murder in the first degree as follows: All murder which shall be perpetrated by means of. . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any . . . robbery. . . shall be murder in the first degree. Act of June 24, 1939, P.L. 872, § 701, as amended (formerly codified as 18 P.S. § 4701. [2] The evidence here is sufficient for the jury to conclude beyond a reasonable doubt that appellant killed decedent in the perpetration of a robbery. Appellant argues that the facts of this case preclude a conviction of felony-murder because, according to appellant, he had already completed the robbery and fled the scene of the crime before the homicide was committed. The trial judge refused appellant's point for charge which incorporated this theory. In order for the felony-murder rule to apply, there must be `such actual legal relationship between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it.' Commonwealth v. Kelly, 333 Pa. 280, 285-86, 4 A.2d 805, 807 (1939) (quoting 13 R.C.L. § 148); accord Commonwealth v. Robinson, 450 Pa. 145, 147-48, 299 A.2d 220, 222 (1973). Thus, appellant may be found guilty of felony-murder if there was no break in the chain of events between the killing and the robbery such that the homicide had an ultimate relation [to] and close connection with the felony. Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240, 242 (1951). Accord Commonwealth v. Alston, ___ Pa. ___, 317 A.2d 229, 232 (1974); Commonwealth v. Kelly, supra at 280, 4 A.2d at 805. As Professor Perkins stated: Under the prevailing view if the killing resulted from the perpetration of the design it falls within the rule even if the felony itself had been completed before the fatal blow was struck. R. Perkins, Criminal Law at 42 (2d ed. 1969); see W. LaFave and A. Scott, Criminal Law § 71 (1972). The evidence presented here was sufficient for the jury to find that there was no break in the chain of events and that the homicide resulted from and was closely connected to appellant's design to perpetrate a robbery. Therefore, the trial court properly refused appellant's point for charge, and appellant could have been found guilty of murder in the first degree based upon a felony-murder theory.",sufficiency of the evidence
+579,2611835,1,1,"A brief paragraph introducing the parties is necessary. Connie Linn Leavell is sister to Bennie L. Linn, Peter V. Linn, and Eugene A. Linn (Linn brothers). Harold Leavell is Connie's husband. Mary Pat Linn, Trudy Linn, and Ellen W. Linn are the spouses of the Linn brothers. Connie Leavell and her brothers owned a ranch in Teton County as tenants in common. The Leavells initiated this litigation, seeking to establish that the relationship between Connie Leavell and her brothers, as it related to ownership of the ranch, was a partnership. Her goal was to dissolve the partnership and/or to partition the ranch property. The Linn brothers viewed her action as a breach of the provision of the agreement they had jointly executed which waived partition of the ranch for a period of forty years. Based on that alleged breach of contract, the Linn brothers sought to recover attorney's fees incurred in the defense of this lawsuit. As appellants in Case No. 93-189, the Leavells ask that this court reverse the district court's conclusion that no partnership was formed and remand the case to the district court for supervision of the dissolution and winding up process under the Uniform Partnership Act, Wyo.Stat. §§ 17-13-101 (1989) et seq. The Linn brothers respond that the district court did not commit reversible error in holding that no partnership existed between the cotenants of the Linn Ranch. As appellants in Case No. 93-190, the Linn brothers state this issue: Did the district court err in failing to grant them attorney's fees because the Leavells initiated an action for partition even though their agreement prohibited such action. The Leavells contend they did not breach the non-partition provision of the agreement and, therefore, the Linn brothers are not entitled to recover attorney's fees.",issues
+580,3171446,1,4,"For the above reasons, the judgment of the district court is affirmed. AFFIRMED.",conclusion
+581,1910968,1,1,"In October 1991 James Becker, the principal plaintiff, was criminally charged in Benton County with child endangerment and assault causing injury based on allegations that he physically abused Robert Rickels, the son of Christina Rickels with whom Becker was living. The criminal investigation was conducted by Peter Wright, a detective of the Benton County sheriff's department. Wright was supervised by the Benton County sheriff, Kenneth Poppenhagen. A related child-in-need-of-assistance action was also brought in Benton County. Robert Rickels and Christina Rickels' other three children (one of whom she had by Becker) were subpoenaed to attend medical examinations at a Cedar Rapids hospital to determine whether abuse, physical or sexual, could be detected. The criminal charges against Becker were dismissed in April 1992. In March 1993 Becker, Rickels, and the four children filed a petition in Linn County against Wright, Poppenhagen and Benton County. The plaintiffs alleged that all parties resided in Benton County and that Becker was improperly charged and investigated in Benton County. They alleged various counts but, as they describe in their appellate brief, they were principally claiming malicious prosecution. The petition further alleged, Plaintiffs' damages have occurred in Benton and Linn Counties. The defendants moved for a change of venue, arguing (1) the bases for the claims were events that occurred in Benton County, (2) all parties resided in Benton County, (3) two of the defendants were public officials of Benton County who, pursuant to Iowa Code section 616.3 (1993), must be sued where the cause arose—Benton County, (4) plaintiffs' alleged damages in Linn County were not supported by factual allegations in the petition, and (5) pursuant to Iowa Code section 616.17, personal actions must be brought in a county where some of the defendants reside—again Benton County. Plaintiffs resisted the motion. They asserted venue was proper under Iowa Code section 616.18 as that section allowed suit in the county where defendants resided or where injury or damage was sustained. They also alleged that, had suit been brought in Benton County, they would have been entitled to a change of venue under Iowa Rule of Civil Procedure 167(a) because the county was a party. Becker and Rickels submitted affidavits in support of their claim that injury or damage was sustained in Linn County: Rickels averred that she worked in Linn County and that a newspaper article about the criminal action against Becker was circulated by a person at her place of employment. She asserted she and the children had to go to Linn County to see their attorney. She also stated her employment was disrupted due to absences required by seeing her attorney and attending legal proceedings in Benton County. Becker avowed that he knew people in Linn County. He also asserted his ex-wife denied him visitation with his children, who resided in Linn County. Finally, Becker stated he had to pay his attorney, whose office was in Linn County. The Linn County district court ruled that venue should be changed to Benton County. It concluded all events triggering the plaintiffs' lawsuit occurred in Benton County. It rejected plaintiffs' allegations that they sustained injury or damage anywhere but in Benton County. The court rejected the argument that venue should not be changed because of rule 167(a). It noted, however, that the plaintiffs could raise the issue in Benton County. The action was moved to Benton County. The plaintiffs did not move for a change of venue pursuant to rule 167(a). The matter proceeded to jury trial and the jury returned verdicts against the plaintiffs. The plaintiffs then moved for a new trial alleging, among other things, that the Linn County court erred in granting the change of venue motion. The new trial motion was overruled in its entirety and the plaintiffs appeal.",facts
+582,2624979,1,2,"In reviewing an order granting or denying a motion to suppress evidence, this Court will defer to the trial court's factual findings unless clearly erroneous. State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093 (1995). However, free review is exercised over a trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Id., 898 P.2d at 1096 (citing State v. Weber, 116 Idaho 449, 451-52, 776 P.2d 458, 460-61).",standard of review
+583,888679,1,2,"¶ 7 The standard of review for a district court's granting of summary judgment is de novo. Ruckdaschel v. State Farm Mut. Automobile Ins., 285 Mont. 395, 398, 948 P.2d 700, 702 (1997). We review the facts presented to the district court to determine whether the prevailing party is entitled to judgment as a matter of law. Gentry v. Douglas Hereford Ranch, Inc., 1998 MT 182, ¶ 23, 290 Mont. 126, 962 P.2d 1205.",standard of review
+584,1825664,1,2,"¶ 4. Bynum asserts we should consider his appeal in the light of Crawford, in which the United States Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine, regardless of whether the court deems such statements reliable. Crawford, 541 U.S. at 54, 124 S.Ct. at 1354. The Court of Appeals, noting Crawford was decided some seven months after Bynum's conviction, opined that this Court has not spoken on the retroactivity of Crawford. . . . Bynum, 2005 WL 894796, at , 929 So.2d at 333. We grant certiorari in this case to correct this statement regarding our prior application of Crawford. ¶ 5. In Clark v. State, 891 So.2d 136, 138-39 (Miss.2004), the defendant had no opportunity to cross-examine an alleged accomplice, who refused to testify at trial. Relying on Crawford, we held the trial court erred in admitting the accomplice's testimonial statement. Id. at 140. However, after considering the overwhelming weight of admissible evidence, we found the Confrontation Clause violation to be harmless error. Id. at 142. While we did not specifically proclaim in Clark that Crawford is to be applied retroactively, we clearly relied on Crawford and applied its holding retroactively. ¶ 6. Accordingly, because Bynum lacked the opportunity to cross-examine his co-defendant, we find the trial court erred in allowing the police officer to testify concerning the co-defendant's statement. However, upon careful review of the evidence, we find the erroneous admission of the statement was harmless error. Harmless errors are those which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We find the impact of the erroneously admitted statement was so insignificant that it could not have contributed in any meaningful way to the guilty verdict. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (the impact of the erroneously admitted evidence should be weighed to determine what errors are harmless). The overwhelming evidence of guilt includes the victim's and two eyewitnesses' identification of Bynum, testimony that Bynum threw the victim's property out of the car window, and the presence of the victim's change purse in the get-away car. Considering the evidence, we find beyond a reasonable doubt that the trial court's error in admitting the co-defendant's statement was harmless.",analysis
+585,4427291,1,3,"The law flows like water, down the path of least resistance. The Edlers request this Court flow uphill in adopting an unnecessary exception when longstanding Missouri easement law suffices. This Court declines to adopt such an exception and holds the established common law applies, denying riparian rights to landowners abutting artificial bodies of water. The circuit court’s order directing the Edlers to remove their dock is affirmed. But the circuit court erred in finding “special circumstances” supporting the award of attorney’s fees to the trustees. That portion of the judgment is reversed. _____________________________ LAURA DENVIR STITH, JUDGE All concur. 15",conclusion
+586,1444899,1,3,"In defendant's next assignment of error, he argues that the trial court erred in denying his motion to declare him ineligible for the death penalty. [8] He asserts that the sentencing jury's verdict in the Smith murder trial precluded the state from relitigating the issue of his future dangerousness and, thus, from seeking the death penalty for the Molalla Forest murders. Pursuant to ORS 163.150(1)(b) (1987), [9] the sentencing jury in the Smith homicide trial returned the following verdict on the three penalty-phase questions submitted: One, was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result? Answer. No. Two. Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society? Answer. No. Three. Was the conduct of defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith? Answer. Yes. Because one or more questions were answered no, defendant was not subject to the death penalty for the aggravated murder of Smith. The sentencing jury in the present case was asked the same three statutory penalty-phase questions with regard to the deaths of the Molalla Forest victims and answered each question yes, and defendant therefore was sentenced to death. Defendant argues that the state was precluded from relitigating the second question, i.e., the issue of his future dangerousness, because the Smith homicide sentencing jury had answered that question in the negative. Defendant argues that all the elements necessary for the application of issue preclusion [10] are satisfied: the parties are the same, the state and defendant; the issue, defendant's future dangerousness, is the same; the state had a full and fair opportunity to litigate the issue; and the issue actually and necessarily was decided in the prior prosecution. Defendant contends that the preclusion doctrine on which he relies is embodied in Oregon statutory and constitutional provisions, as well as in the prohibition against double jeopardy guaranteed him by the Fifth and Fourteenth Amendments to the United States Constitution. In State v. Dewey, 206 Or. 496, 504-08, 292 P.2d 799 (1956), this court held that ORS 43.160, which states a rule of issue preclusion that has its genesis in the common law, applies in criminal cases. ORS 43.160 provides: That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto. In discussing the application of issue preclusion in the criminal context, the Dewey court stated: Where the second prosecution is for another offense, `the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. Thus an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.' State v. Dewey, supra, 206 Or. at 508, 292 P.2d 799 (quoting 2 Freeman on Judgments 1364-65, § 648 (5th ed. 1925). See also State v. George, 253 Or. 458, 462-63, 466, 455 P.2d 609 (1969) (following State v. Dewey, supra ; conviction of a defendant for murder of one of two victims reversed, because the defendant previously had been acquitted of the murder of the other victim and both had died from the same bullet). The federal prohibition against double jeopardy prevents the state from seeking the death penalty in a retrial of a capital case when the sentencing jury refused to impose the death penalty at the first trial. Bullington v. Missouri, 451 U.S. 430, 444-46, 101 S.Ct. 1852, 1860-62, 68 L.Ed.2d 270 (1981) (because the penalty phase of a capital trial is like a trial on the issue of guilt or innocence, a verdict against the state demonstrates the jury's conclusion that the state failed to prove its case and is entitled to the same finality that characterizes an acquittal, even one on an erroneous ground). The federal Double Jeopardy Clause does not prevent the state from seeking the death penalty in a separate prosecution of the defendant for a different crime. See United States v. Felix, ___ U.S. ___, 112 S.Ct. 1377, 1382, 118 L.Ed.2d 25, 33 (1992) (At its root, the Double Jeopardy Clause forbids the duplicative prosecution for the `same offence.' U.S. Const., Amdt. 5). There is also an issue preclusion component of the federal Double Jeopardy Clause. [W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). In Ashe, the defendant was indicted in connection with the robbery of six players in a poker game. Id. at 437-38, 90 S.Ct. at 1190-91. Initially, he was tried for the robbery of one of the six players. Id. at 438, 90 S.Ct. at 1191. After he was acquitted, the state tried him for the robbery of another of the players. Id. at 439, 90 S.Ct. at 1191. The trial record from the first prosecution revealed that the sole issue litigated was whether the defendant was one of the robbers. Id. at 444-45 & n. 9, 90 S.Ct. at 1194-95 & n. 9. Because the first jury's verdict was premised on the state's failure to prove the defendant's identity as one of the robbers, the Court held that the state was precluded from relitigating that issue, and the second prosecution was barred. Id. at 445-46, 90 S.Ct. at 1195-96. As noted above, the rule of issue preclusion is essentially the same in Oregon. State v. George, supra, 253 Or. at 462-63, 455 P.2d 609; State v. Dewey, supra, 206 Or. at 508, 292 P.2d 799. The question here is whether the issue decided in the prior trial for the Smith homicide is the same issue that was presented to the jury in this case. The sentencing jury in the Smith case was instructed (as was the sentencing jury in the present case) as follows with regard to the second penalty-phase question: The second question asked by the law is: Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? In determining this issue, you must consider any mitigating circumstances received in evidence, including, but not limited to, defendant's age, the extent and severity of the defendant's prior criminal conduct, and the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed. [11] The issue presented by the second question in the present case differs from the second-question issue in the Smith case, because the sentencing jury in each case had to determine whether, based on everything in defendant's life to that point in time (including the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed), defendant likely would be dangerous in the future. See State v. Moen, 309 Or. 45, 73, 786 P.2d 111 (1990) (Evidence of all of a defendant's prior conduct, bad and good, is precisely the type of evidence that the jury needs to make this determination); Wagner II, supra, 309 Or. at 19, 786 P.2d 93 (all aspects of a defendant's character and background are `relevant to sentence'). The trial in the present case took place nearly one year after the Smith homicide trial. Because everything that has occurred in a defendant's life may be relevant to a determination of that defendant's future dangerousness, the second-question determination necessarily incorporates a temporal element. The jury must determine a defendant's future dangerousness from the day on which the jury makes its determination forward, based on the defendant's life from that day backward. The year of defendant's life between the two trials and defendant's subsequent conviction in the guilt phase of this case had not yet occurred at the time the Smith homicide jury rendered its verdict. [12] In the present case, the second-question issue was, based on defendant's conduct and character up to the time of trial and the convictions and the circumstances of the aggravated murders of the six Molalla Forest victims, [13] whether defendant would pose a continuing threat to society. That issue is not the same issue decided by the Smith homicide jury. Because the sentencing juries were making their determinations at different times and based on different evidence—some of which was not available at the time of the Smith homicide trial—the sentencing verdicts in the two cases are neither inconsistent nor irreconcilable. Because the second-question issue by its nature involves a temporal element—the future—and is based on a broad inquiry into a defendant's life bounded only by the present, the point at which the jury decides the issue, the issue to be decided changes continuously with time. Issue preclusion therefore is not available to defendant. The trial court did not err in denying defendant's motion to be declared ineligible for the death penalty.",issues
+587,2011339,1,3,"In sum, we conclude that Local Law 1 does not impose on landlords a continuous and affirmative duty to inspect for the residence of children under seven. The law, however, does allow landlords to be charged with notice of dangerous lead conditions in their building. Whether a landlord has satisfied its duty to remedy a hazardous lead condition is governed by a standard of reasonableness. Here, defendant had constructive notice of the hazardous lead condition in apartment 4C; there is no issue as to the reasonableness of its abatement efforts — it made none; and no triable issue of fact exists as to causation. Only the narrow question of notice of the residency of a child under seven remains open for determination. Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs' cross motion for partial summary judgment as to liability with respect to defendant Mayaghor Realty, Inc., denied and the certified question answered in the negative. Order reversed, etc.",conclusion
+588,4536103,1,4,"Argyrakis violated § 3-508.4(b) (misconduct) and his oath of office as an attorney. It is the judgment of this court that Argyrakis is disbarred from the practice of law in the State of Nebraska, effective immediately. He is directed to comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, he shall be subject to punishment for contempt. Judgment of disbarment.",conclusion
+589,828424,1,6,"A trial court’s ruling on a motion for summary disposition presents an issue of law that is reviewed de novo on appeal. Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d 695 (2010). The interpretation of statutes also constitutes a question of law that this Court reviews de novo on appeal. Eggleston v BioMed Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).",standard of review
+590,1258031,1,2,"We review a circuit court's order dismissing a case for inactivity pursuant to Rule 41(b) under an abuse of discretion standard. We stated in Dimon v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996): Traditionally, our scope of review, even where reinstatement [of an action which is dismissed for failure to prosecute] is timely sought, is limited. It is only where there is a clear showing of an abuse of discretion that reversal is proper. Only where we are left with a firm conviction that an error has been committed may we legitimately overturn a lower court's discretionary ruling. Covington v. Smith, 213 W.Va. 309, 322, 582 S.E.2d 756, 769 (2003). See also, Intercity Realty Co. v. Gibson, 154 W.Va. 369, 377, 175 S.E.2d 452, 457 (1970) (Where the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firm conviction that an abuse of discretion has been committed.)",standard of review
+591,6335809,1,1,"Isacc John appeals his convictions and sentences for first degree murder and use of a deadly weapon, not a firearm, to commit a felony. John asserts that, as the trier of fact, the district court for Douglas County erred in finding he did not prove his insanity defense. Further, John asserts trial counsel was ineffective in waiving his right to jury trial and in stipulating to the underlying facts of the killing. Finding no merit to the appeal, we affirm John’s convictions and sentences.",introduction
+592,884247,1,2,"We review a district court's findings of fact relating to child custody and visitation matters to determine whether the findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021 (citation omitted). We will not overturn the district court's decision unless a clear abuse of discretion is shown. Marriage of Dreesbach, 875 P.2d at 1021 (citation omitted).",standard of review
+593,2356190,1,2,"On appeal, respondent argues that the state's evidence failed to prove the alleged sexual contact between Jennifer and respondent beyond a reasonable doubt. Specifically, respondent argues that because of the inconsistencies in Jennifer's testimony, as well as the circumstances leading up to Jennifer's accusation, the trial justice erred in concluding that respondent sexually assaulted Jennifer. The respondent also maintains that the Registration Act compromises the confidentiality inherent in the juvenile-justice system and, therefore, renders the juvenile delinquency adjudication tantamount to an adult criminal conviction. Accordingly, respondent contends, either the Registration Act is unconstitutional as applied to juveniles or respondent was entitled to a jury trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and article 1, sections 2 and 10, of the Rhode Island Constitution.",analysis
+594,8065934,1,5,"[5,6] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. 5 Generally, an order of dismissal is a final, appealable order. 6 [7-10] Under Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp. 2020), an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, is a final order. A substantial right is an essential legal right, which includes those legal rights that a party is entitled to enforce or defend. 7 A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken. 8 An order that completely disposes of the subject matter of the litigation in an action or proceeding both is final and affects a substantial right because it conclusively determines a claim or defense. 9 Here, the district court’s March 2021 order of dismissal completely disposed of the subject matter of the litigation and, as such, was a final, appealable order over which we have jurisdiction. § 25-601 Having determined that we have jurisdiction over this appeal, we move to the merits of the case. Appellants argue that the district court erred in dismissing their case because, at the time they filed their voluntary dismissal, a final submission had occurred, which divested Appellants of their 5 Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018). 6 Id. 7 See, Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012); State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006). 8 Big John’s Billiards, supra note 7. 9 Id. -7- Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 statutory ability to voluntarily dismiss their case under § 25-601. We agree. [11-13] The ability of a plaintiff to dismiss his or her claim(s) without prejudice is codified in § 25-601 and Neb. Rev. Stat. § 25-602 (Cum. Supp. 2020). Generally, under these statutes, a plaintiff has the right to dismiss an action without prejudice before final submission of the case, subject to compliance with conditions precedent as may be imposed by the court. 10 We have stated that the statutory right to voluntary dismissal under §§ 25-601 and 25-602 is not a matter of judicial grace or discretion, but neither is it absolute or without limitation. 11 After a final submission, dismissal without prejudice requires leave of court. 12 A final submission of an action contemplates 10 Beals v. Western Union Telegraph Co., 53 Neb. 601, 74 N.W. 54 (1898); Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285 (1896). See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 730, 592 N.W.2d 894, 907 (1999) (holding plaintiff’s right to voluntary dismissal before final submission “is not absolute”); Horton v. State, 63 Neb. 34, 88 N.W. 146 (1901). See, also, Sheedy v. McMurtry, 44 Neb. 499, 502, 63 N.W. 21, 23 (1895) (explaining “the right of a plaintiff to dismiss at any time during the pendency of a cause, as a general proposition, must be qualified, and is not absolute in the sense that it takes the subject without the control of the court in which the cause is pending, so that it cannot, within its discretion, impose the condition of the payment of costs as obligatory and precedent to a dismissal of the action”). 11 Millard Gutter Co., supra note 3; Holste, supra note 10. 12 See Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948). See, e.g., Millard Gutter Co., supra note 3; Collection Specialists v. Vesely, 238 Neb. 181, 469 N.W.2d 549 (1991) (plaintiff loses statutory right to dismiss without prejudice after final submission, but court has discretion to allow such dismissal depending on facts and circumstances of case); Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935) (same); Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927) (holding dismissal of action after final submission must be by leave of court and cannot be accomplished by mere act of plaintiff alone); Nelson v. Omaha & C. B. Street R. Co., 93 Neb. 154, 139 N.W. 860 (1913); Bee Building Co. v. Dalton, 68 Neb. 38, 93 N.W. 930 (1903) (plaintiff loses right to voluntarily dismiss action without prejudice after there has been final submission, but court has discretion to permit dismissal). -8- Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 submission upon both law and facts, and it only exists when nothing remains to be done to render it complete. 13 In support of their argument that a ruling on a motion for summary judgment is a final submission which deprives a party from being able to voluntarily dismiss their case, Appellants direct us to our recent decision in Millard Gutter Co. v. American Family Ins. Co. 14 In Millard Gutter Co., the defendant prevailed on summary judgment regarding three of the plaintiff’s four claims. Then, on the morning of trial, the plaintiff filed a voluntary dismissal under § 25-601. The voluntary dismissal was not styled as a motion, but the district court held a hearing to determine the effect of the filing. Ultimately, the court entered a judgment that dismissed without prejudice the claim set for trial, made final the prior summary judgments entered in favor of the defendant, and taxed certain costs to the plaintiff. The plaintiff appealed, arguing that once it filed the voluntary dismissal, the court’s jurisdiction over the case terminated and the court lacked the ability to tax costs. The district court rejected the plaintiff’s argument, finding that there was a final submission that precluded voluntary dismissal under § 25-601 and that there was a setoff that precluded voluntary dismissal under § 25-602. [14] On appeal, we held in Millard Gutter Co. that a summary judgment motion can be a final submission that will prevent voluntary dismissal under § 25-601. We also found that due to the granting of the appellee’s motion for partial summary judgment, there was a final submission regarding some, but not all, of the appellant’s claims in the case. As such, because the summary judgments in favor of the appellee were the product of final submissions that had neither been revised nor set aside, we concluded that the appellant lacked the statutory authority under § 25-601 to voluntarily dismiss those claims. 13 See, Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980); Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 259 N.W. 367 (1935). 14 Millard Gutter Co., supra note 3. -9- Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 As described by one commentator, our holding in Millard Gutter Co. was the correct conclusion because a “plaintiff should not be allowed to dismiss claims without prejudice after the claims have been rejected. Otherwise, the plaintiff could avoid an adverse decision on one or more claims by simply dismissing those claims without prejudice and reasserting them in a new action.” 15 Additionally, Nebraska is far from alone in treating summary judgments as final submissions that can limit a plaintiff’s statutory right to voluntarily dismiss without prejudice. 16 Likewise, here, the district court granted partial summary judgment in favor of Appellees on their claim of fraud in the inducement. Therefore, under the reasoning set forth in Millard Gutter Co., there was a final submission regarding one, but not all, of Appellants’ claims. Accordingly, because the partial summary judgment in favor of Appellees was the product of a final submission that had neither been revised nor set aside, Appellants had no statutory right under § 25-601 to voluntarily 15 See, John P. Lenich, Nebraska Civil Procedure § 34:4 at 1479 (2022). 16 See, e.g., Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995) (holding that summary judgment is final submission, but court retains discretion to grant voluntary dismissal without prejudice); Mary Morgan, Inc. v. Melzark, 49 Cal. App. 4th 765, 57 Cal. Rptr. 2d 4 (1996) (holding voluntary dismissal without prejudice not permitted as matter of right after summary judgment hearing has commenced); Brandt v. Joseph F. Gordon Architect, Inc., 998 P.2d 587 (Okla. 1999) (holding that summary judgment is final submission of claim for purposes of voluntary dismissal statute and forecloses plaintiff’s unfettered right to dismiss claim without prejudice); Bio-Medical Applications, Inc. v. Coston, 272 Va. 489, 634 S.E.2d 349 (2006) (finding voluntary dismissal was untimely when made after court announced ruling on defendant’s motion for summary judgment; at that point, case had been submitted to court for decision); Beritich v. Starlet Corporation, 69 Wash. 2d 454, 458, 418 P.2d 762, 764 (1966) (holding plaintiff loses right to voluntarily dismiss without prejudice after motion for summary judgment has been ruled upon, otherwise “[t]he summary judgment procedure, at least from the defendant’s viewpoint, would become a virtual nullity if a plaintiff can ‘exit stage left’ upon hearing an adverse oral decision of the trial judge on the summary judgment motion”). - 10 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 dismiss that claim without prejudice. Consequently, the district court’s authority to make further rulings in the case was unaffected by the filing of the voluntary dismissal. The dissent of our learned colleague recognizes that a court has discretion when considering whether to refuse to dismiss a case and must consider the protection of any rights which have accrued to the defendant. 17 The dissent goes on to note that Appellees took no steps to seek the protection of their rights and that therefore, Appellants’ dismissal should have been absolute. However, the very fact that Appellees could have taken steps to protect their rights and the court could have entered an order preserving a counterclaim or the restitution of property of which a party has been deprived or ordering the recovery of Appellants’ costs makes it clear that a plaintiff’s right to dismiss after a final submission is not absolute. For the sake of completeness, we note that our opinion should not be construed as holding that a final submission on one claim forecloses a plaintiff from voluntarily dismissing other claims which have not yet been finally submitted. But in this case, Appellants attempted to do much more than that; they filed a voluntary dismissal purporting to dismiss the entire action without prejudice, which necessarily included the fraud claim which had been finally submitted and decided on summary judgment. While the final submission on the fraud claim did not affect whether Appellants could voluntarily dismiss their undue influence claims, it did affect whether they could voluntarily dismiss the entire action pursuant to § 25-601. In other words, after one of several claims has been finally submitted, the plaintiff retains the right under § 25-601 to voluntarily dismiss other claims which have not yet been finally submitted, but they lose the statutory right to voluntarily dismiss the entire action. 17 See Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002). - 11 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 § 25-602 [15] Appellants also argue that, pursuant to § 25-602, they did not have a statutory right to dismiss their case because Appellees included a counterclaim in their amended answer. Under § 25-602, a plaintiff loses the right to voluntarily dismiss a claim without prejudice when a counterclaim or setoff has been filed by the opposing party. Because we have already determined that there was a final submission in this case that divested Appellants of their statutory right to dismissal under § 25-601, we do not find it necessary to discuss whether a counterclaim or setoff had been filed. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the case and controversy before it. 18 Reinstatement Lastly, we consider Appellants’ argument that the trial court had statutory authority to reinstate the case after the voluntary dismissal was filed. [16,17] Generally, an order of dismissal or dismissal by operation of law divests a court of jurisdiction to take any further action in the matter. 19 Moreover, when a case is voluntarily dismissed by a party, the controversy between the parties upon which a trial court may act ends. 20 [18] But, in civil cases, a court of general jurisdiction has inherent power to vacate or modify its own judgment at any time during the term in which the court issued it. 21 Additionally, under § 25-2001(1), this inherent power allows a court to “vacate or modify its judgments or orders . . . after the end of the term, upon the same grounds, upon a motion filed within six months after the entry of the judgment or order.” A 18 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 (2022). 19 Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013). 20 See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726 (2004). 21 Molczyk, supra note 19. - 12 - Nebraska Supreme Court Advance Sheets 312 Nebraska Reports SCHAAF V. SCHAAF Cite as 312 Neb. 1 court treats a motion to reinstate a case after an order of dismissal as a motion to vacate the order, and a court generally has jurisdiction over a motion to vacate an order of dismissal and reinstate a case. 22 Here, we have already determined that because Appellants did not have a statutory right to dismissal under § 25-601, the district court’s authority to make further rulings in the case was unaffected by the filing of the voluntary dismissal. Additionally, Appellants timely filed their motion to reinstate under § 25-2001(1). Moreover, although the district court “granted” Appellants’ motion to dismiss, the court also had jurisdiction over the motion to reinstate and properly exercised its discretion in vacating the dismissal and reinstating the case. 23 Thus, its subsequent order reinstating the case was not a nullity, and the district court erred in determining that the case “[stood] dismissed pursuant to [Appellants’] voluntary dismissal.”",jurisdiction
+595,900464,1,2,"[¶ 4.] We review the trial court's findings of fact under the clearly erroneous standard. In re Estate of O'Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139. Clear error is shown only when, after review of all the evidence, `we are left with a definite and firm conviction that a mistake has been made.' Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724 (citations omitted). Conclusions of law are reviewed de novo. Id. Statutes are interpreted `under a de novo standard of review without deference to the decision of the trial court.' Id. (quoting In re Estate of Jetter, 1997 SD 125, ¶ 10, 570 N.W.2d 26, 28 (citations omitted)).",standard of review
+596,2273833,1,1,"We accepted discretionary review of this case primarily to resolve whether a trial court could properly enforce, through its contempt powers, an obligation under a divorce decree to make payments to a creditor on a marital debt even after the former husband, who had been ordered to make the payments, received a post-decree Chapter 7 bankruptcy discharge, and the former wife failed to institute an adversary proceeding in bankruptcy court. We conclude that the trial court could properly enforce the former husband's divorce obligation through contempt proceedings. Following recent amendments to the federal bankruptcy code, this obligation is excepted from discharge in bankruptcy with no requirement for an adversary proceeding in bankruptcy court. This case also presents the issue of whether a motion for modification of child support was properly denied, especially in light of the fact that the amount of child support established in the divorce decree was based upon the parent's imputed income as a result of a finding of voluntary under-employment. We conclude that the trial court properly denied the motion for modification because the evidence presented on the motion for modification did not establish a material and continuing change in circumstances. On a third issue, we find no error in the trial court's awarding attorney's fees to one party. As a consequence of our analysis, we affirm the decision of the Court of Appeals affirming the rulings of the trial court on these three issues.",introduction
+597,2460567,1,2,"[¶ 3] Torres began working for Home Depot in Cheyenne as a supervisor in the area of door and window installation in December 2000. His employment duties included, among other things, lifting and moving heavy merchandise. Since 2004, Torres has submitted three injury reports concerning his back. [¶ 4] In July 2004, Torres claimed he injured his low back when he bent over to pick up a coffee cup and something in his back went pop. On that occasion, Torres sought medical treatment from his family physician, complaining of pain in his low back and buttocks area, pain radiating down his left leg and across the anterior shin, and numbness in both legs to the knees. An MRI performed on Torres' lumbar spine on July 7, 2004, revealed a degenerative back condition. In particular, the MRI showed diffuse disc desiccation, with slightly more marked desiccation and loss of disc height at the L4-L5 level, and disc desiccation and bulging at the L5-S1 level of the spine. In September 2005, Torres claimed to have injured his back while moving a heavy pallet. Torres did not seek medical attention because he deemed the injury to be insignificant. [¶ 5] The third reported injury, which is the focus of this appeal, occurred on December 28, 2006. Torres claimed he injured his low back, as well as his right shoulder and wrist, in a slip-and-fall accident in the Home Depot parking lot. [1] Torres saw Dr. Cynthia Choy at Healion Emergent Care in Cheyenne, complaining of low back pain and bilateral anterior thigh numbness. An x-ray and MRI taken of Torres' lumbar spine revealed the degenerative disc disease, but showed no evidence of acute injury. The radiologist, Dr. Jason Lindsey, noted mild degenerative changes at the L4-L5 level of the spine, with no significant disc bulge, protrusion, or herniation. At the L5-S1 level, Dr. Lindsey noted mild degenerative change in the right facet joint, but otherwise within normal limits. Dr. Lindsey also noted there was no significant interval change since the 2004 MRI. [¶ 6] On January 9, 2007, Torres saw Dr. Vincent J. Ross of Smart Sports Medicine Center with complaints of low back pain and pain radiating down both legs. Dr. Ross generally diagnosed Torres with a lumbar sprain and sacroiliac sprain and recommended Torres undergo physical therapy two to three times per week. Torres participated in some therapy sessions, but the pain in his low back continued. Dr. Ross eventually referred Torres to Dr. Steven J. Beer, a neurosurgeon, for further evaluation. [¶ 7] Dr. Beer first saw Torres on February 26, 2007. Torres reported that he had been experiencing severe low back and bilateral buttock pain since falling at work on December 28, 2006, but did not inform Dr. Beer about his previous back injuries and low back pain, or about his 2004 lumbar MRI. Dr. Beer reviewed Torres' 2007 MRI and noted that it showed multilevel degenerative disease. Dr. Beer initially diagnosed a lumbar sprain and recommended conservative treatment. He referred Torres to Dr. George Girardi at Yellowstone Surgery Center in Cheyenne for epidural steroid injections. [¶ 8] On March 9, 2007, Dr. Girardi performed an epidural steroid injection at the L4-L5 level of the spine, which gave Torres temporary relief of his pain. Dr. Girardi's report for that injection noted that he was treating Torres for [l]ow back pain with bilateral leg pain due to lumbar degenerative disc disease. Torres saw Dr. Girardi again on April 13, 2007, and was administered bilateral L4-L5 interarticular facet joint injections, which also provided only short term relief of the pain. Dr. Girardi's notes on that date indicated that Torres was suffering from low back pain due to lumbar spondylosis. [¶ 9] Torres returned to Dr. Beer on May 7, 2007, for further evaluation and treatment. After considering the results of the injections, and suspecting that the L4-L5 and L5-S1 facet joints were the source of Torres' symptoms, Dr. Beer suggested a fusion from the L4 level through the S1 level of the spine. Torres agreed to proceed with the surgery. On August 16, 2007, Dr. Beer performed the recommended two-level fusion surgery. [2] Dr. Beer's Operative Report noted a preoperative/postoperative diagnosis of lumbar spondylitic disease, L4-L5 and L5-S1. [¶ 10] The Division initially concluded that Torres had suffered a compensable injury as a result of the December 2006 slip-and-fall accident and awarded benefits. However, in a series of eight Final Determination letters issued between October 4 and October 22, 2007, the Division denied Torres medical and temporary total disability benefits related to the August 2007 back surgery. Central to the Division's denial was its determination that the surgery was not causally related to the December 2006 work accident. Torres objected to the denial of benefits, and the matter was referred for hearing before the OAH. [3] [¶ 11] A contested case hearing was convened on April 1, 2008. The hearing examiner received into evidence Torres' current and past medical records, and heard testimony from Torres. The hearing examiner also considered the deposition testimony of Dr. Beer and Dr. Ross and a report prepared by Dr. Nathan S. Simpson, who conducted an independent medical evaluation on behalf of the Division. [¶ 12] Dr. Beer testified that he performed the surgery to repair instability in the L4-L5 and L5-S1 facet joints in Torres' back, which he believed was the source of Torres' low back pain. Dr. Beer noted that his intraoperative findings confirmed what he had identified on the 2007 MRI and his preoperative diagnosis; Torres had some degenerative changes in his facet joints, and some looseness of the joints. Dr. Beer testified that facet joint instability can result from a fall similar to that suffered by Torres. He also acknowledged that it can be caused by degenerative changes in the spine. Relying on his medical findings and the history provided by Torres, Dr. Beer opined that Torres' need for back surgery was directly related to his December 2006 work-related injury. [¶ 13] Dr. Ross generally testified that the 2007 MRI showed degenerative changes in Torres' low back, but was otherwise fairly normal. He testified that Torres did not appear to have neurological deficit, and that he diagnosed Torres' condition as a lumbar and sacroiliac sprain. Dr. Ross noted that Torres' obesity could have contributed to his low back problems. Dr. Ross offered no opinion as to whether Torres' surgery was related to the 2006 slip-and-fall accident. [¶ 14] Torres testified that he never had any problems with his low back before the December 2006 fall. Torres claimed the 2004 and 2005 injuries were minor, and that he reported them solely because of company policy. He also claimed he had no recollection of seeking medical treatment or undergoing an MRI for the 2004 reported injury. Torres testified that, after the 2006 fall, he experienced severe pain in his low back and numbness in his legs. Torres testified he continued to suffer from low back pain and bilateral numbness until the August 16, 2007, surgery. [¶ 15] Dr. Simpson's opinion as to the necessity of the 2007 surgery differed from that of Dr. Beer. Dr. Simpson compared Torres' MRI from 2004 with the 2007 MRI and noted that, other than a slight increase in degeneration, the MRI's were essentially the same. Dr. Simpson noted that the 2007 MRI showed the presence of facet degenerative joint disease at the L4-L5 level, with a small subchondral cyst in the right L4-L5 facet, and degenerative changes in the L5-S1 facet joints. Dr. Simpson also noted the 2007 MRI showed no evidence of acute injury. In addition, Dr. Simpson noted that Torres had complained of low back pain radiating into his left leg and sought medical treatment prior to the 2006 work injury. Based on his record review, Dr. Simpson concluded there was no causal link between Torres' 2006 work accident and the two-level fusion surgery. [¶ 16] The hearing examiner concluded that Torres had not met his burden of proving that the back surgery was necessitated by his December 2006 work injury. The hearing examiner upheld the Division's denial of medical and temporary total disability benefits related to Torres' back surgery and subsequent recovery period. On review, the district court affirmed the hearing examiner's decision. This appeal followed.",facts
+598,2280480,1,1,"The case was brought to the Superior Court by the plaintiff on a complaint entitled Complaint for Judgment Declaring a Purported Use Tax Void, or Appeal from said Assessment. The complaint was served together with summons and filed in the Superior Court on January 21, 1964, and within thirty days from notification by the Assessor of his decision on reconsideration. The plaintiff in his complaint sought judgment that the said purported tax assessment is void and of no effect, and also an injunction against the Assessor from instituting action to recover the tax. On February 5, 1964, the Assessor moved to dismiss the action (1) because the complaint fails to state a claim against defendant upon which relief can be granted, (2) because it is one against the sovereign, brought without its consent, and (3) since the Court lacks jurisdiction because it has no statutory power to take cognizance of the action. On February 15, 1964, the plaintiff filed an affidavit for the stated purpose of complying with R.S.1954, c. 17, § 33 (now § 1958) in which he says, that at no time since June 24, 1957 have I ever purchased personal property outside of the State of New Hampshire (sic) at retail and conveyed the same into the State of Maine for consumption and, therefore, would not be liable for any assessment of Use Tax as attempted to be made by the Maine State Tax Commission on June 24, 1963. The Assessor's motion to dismiss was denied on April 7, 1964, except as it relates to prayer for injunctive relief, which to that extent is granted.    Six days later the Assessor answered the complaint, again raising the points disposed of on his motion and for the first time specifically saying by way of answer and defense that the appeal was not properly perfected under the statute (now § 1958) and Rule 80B, Maine Rules of Civil Procedure, since the plaintiff has filed a pleading in the alternative, has not filed a proper affidavit under the statute, has not filed a written notice of the claim for review, and has committed other error. In November 1964 the Assessor moved to dismiss the action so far as it relates to the appeal filed, and also that part of the action pertaining to declaratory judgment because it is one brought against the sovereign without its consent. The case was heard on its merits in December 1964 by the Court with counsel agreeing that the Court would take the two pending motions under advisement. In a decision entitled On Complaint for Declaratory Judgment filed March 2, 1965, the Court found for the plaintiff with the entry Complaint sustained. Judgment to issue declaring the assessed tax null and void. The Assessor appealed with statement of points on appeal and designation of contents of the record without mention of the motions. The record of the case is confusing. What is in fact one case reaches us as two cases, each with its own record. It is sufficient to say that inadvertently the appeal on the merits proceeded without notice of a lack of decision on the motions to dismiss, and that thereafter the motions were considered and denied with appeals therefrom. The Assessor insists that the plaintiff failed to perfect his appeal for the reasons discussed below and that therefore the Court was without jurisdiction to hear and decide the case. First: The objection is made that the plaintiff did not file an affidavit under § 1958 when the appeal was taken. Appeals under the Sales and Use Tax Law are governed by § 1958 and Rule 80B, Maine Rules of Civil Procedure. [2] The statute and rule are to be considered together as part of the appeal process. In 1959, § 1958 (then R.S.1954, c. 17, § 33) was amended to read in its present form by the Act which made necessary and desirable changes in the statutes in connection with the proposed Maine Rules of Civil Procedure. P.L.1959, c. 317, § 6. See Memorandum to Judiciary Committee, Field & McKusick, Maine Civil Practice, Appendix A, pp. 651, 657. The new Rules, including Rule 80B on Review of Administrative Action, and the 1959 statute, became effective on December 1, 1959. The pertinent portion of R.S.1954, c. 17, § 33, with the 1959 amendments resulting in the present § 1958, reads: Any taxpayer aggrieved by the decision upon such petition may, within 30 days after notice thereof from the Tax Assessor, appeal therefrom to the next term of the Superior Court to be begun and hold more than 30 days after such notice of said decision.    The appellant shall, on or before the 3rd day of the term to which such appeal is taken when such appeal is taken, file an affidavit stating his reasons of appeal and serve a copy thereof on the Tax Assessor, and in the hearing of the appeal shall be confined to the reasons of appeal set forth in such affidavit. (Words crossed out, deleted; words emphasized, added) The appeal in the instant case was taken, i. e., was instituted when the complaint was filed with the Court. No objection is taken to the contents of the complaint which includes    a concise statement of the grounds upon which the plaintiff contends he is entitled to relief   and a demand for relief. Rule 80B(a). The affidavit, as we have seen, was filed after the complaint was filed. In our view it is not essential that the affidavit be filed at the same time that the appeal is taken. Under the practice before the new Rules were adopted, the appellant appealed to the next term of the Superior Court and on or before the third day of the term filed the affidavit. R.S.1954, c. 17, § 33. The affidavit was filed after the taking of the appeal and was not an integral part of the process of initiating the appeal. In our view, to construe Rule 80B and the present statute to require that the two instruments, namely, the complaint and the affidavit, be filed contemporaneously, as the Assessor urges, would place form far above substance. Certainly such a construction would not be within the spirit of the new Rules. The affidavit serves to give evidence of authenticity under oath to the reasons of appeal. It adds nothing, however, to the grounds stated in a complaint under Rule 80B(a). As we have seen in the instant case, with the approval of the parties and with the Assessor reserving a right to press his motions to dismiss later, the Court heard and decided the case on the merits. There is not the slightest suggestion that the Assessor was not fully aware of the issues involved, or that failure to file the affidavit at the same time that the complaint was filed in any way affected his defense. See Cumberland Amusement Corp. v. Johnson, 150 Me. 304, 110 A.2d 610. Second: There is no merit in the objection that the plaintiff did not serve a copy of the affidavit on the Assessor. The discussion above of the first objection is applicable as well to the second objection. Third: A summons in usual form, together with a copy of the complaint, was served on the Assessor. In our opinion the summons was the written notice of the claim for review required under Rule 80B(b). In this view of the case we need not consider the Assessor's point of appeal that a declaratory judgment cannot be maintained against the sovereign without its consent. We cut through the titles of the complaint and judgment to find it plain beyond doubt that the plaintiff sought to appeal the unfavorable decision of the Assessor to the Superior Court under the rule and statute. Since the appeal was properly before the Court, we need not consider the alternative suggestion that for some reason the plaintiff brought a complaint for a declaratory judgment and not a tax appeal.",jurisdiction
+599,2541102,1,2,"Seldom does a case present such diametrically opposed testimony from competent professionals about the primary facts at issue. This case involves a difficult situation where the parents of a child with severe autism and ADHD obviously have struggled with properly caring for such a challenging child. The Cabinet has had substantial involvement with the child, and the stakes are high when considering the child's future welfare. Given the disparate testimony, the role of the trial court in determining the credibility and weight to be given to the testimony and the sufficiency of the evidence is one of paramount importance. The termination statute, KRS 625.090, establishes different standards of proof for the Cabinet and the parents whose rights are to be terminated when the court considers the best interest of a child. While the Cabinet must prove the necessary statutory allegations by clear and convincing evidence in order for the trial court to terminate parental rights, KRS 625.090(1) and (2), the parents must only present proof by a preponderance of the evidence that the child will not be abused or neglected in the future in order to allow the trial court to exercise its discretion not to terminate, KRS 625.090(5). The Cabinet did offer proof sufficient to meet the statutory elements in KRS 625.090(l)(a) and (2), and it offered proof of several of the factors for making the best interests determination in KRS 625.090(1)(b); this was followed by responsive proof by the parents. However, it is not until the conclusion of all the proof that a trial court must apply the terms of the statute, KRS 625.090(6), and certainly any of the proof it hears can weigh on its application of the statutory factors. Following the dictates of the statute, before it could order involuntary termination of parental rights, the trial court first had to find by clear and convincing evidence that the child had been previously adjudicated to be an abused or neglected child or so find in the current proceeding. KRS 625.090(1)(a)(1) and (1)(a)(2). [1] Here, it was undisputed that there had been such prior adjudications against the father, but not the mother. To him, the first statutory hurdle was met because of the prior adjudications against him, but the court would have had to find that the mother had abused or neglected the child in this proceeding in order to proceed further against her. See KRS 625.090(6) (requiring a decision as to each parent-respondent). Then, the plain language of the statute required the trial court to make at least one other determination from the statutory list in KRS 625.090(2) before it could consider termination. There was evidence in this case from which the trial court could find that the father's rights to another child had been involuntarily terminated, KRS 625.090(2)(h)(l), and that the child in this case was born subsequent to that termination, KRS 625.090(2)(h)(2), but no evidence whatsoever was presented as to whether the type of abuse or neglect was the same as in this case or that it had been corrected, as is required by KRS 625.090(2)(h)(3). This section (h) is one ground, requiring that all three parts be met before it applies, and this hurdle was not met. However, the trial court could and did find that the child had been in the custody of the Cabinet for 15 of the most recent 22 months before filing of the petition. KRS 625.090(2). None of the other subsections were sufficiently supported by the proof, but only one finding was required to satisfy this part of the statute. But as part of determining the best interest of the child, and whether sufficient grounds for termination existed, the court was further required to consider several other statutory factors in KRS 625.090(3), including any mental illness of the parents, the reasonable efforts of the Cabinet to reunify the family, the efforts of the parents to return the child to the home, the state of the child and payment of support by the parents while the child was in the Cabinet's custody. This is where the Court of Appeals believed the trial court was clearly erroneous. But the trial court was entitled to rely on the witnesses it found most convincing, and its findings indicate that it gave significant weight to the parents' witnesses. And even when a court finds clear and convincing grounds to terminate, the court can still shift from considering that proof and consider whether the parents had established, by a preponderance of the evidence, that the child would not continue to be abused or neglected. KRS 625.090(5). The statute allows the court to exercise its discretion not to terminate upon such a showing. Regardless, the trial court is never required to terminate under the statute as its authority to terminate is couched in the permissive may rather than the mandatory shall, KRS 625.090(1), and the trial court has substantial discretion in determining the best interests of the child under KRS 625.090(l)(b) and (3). Indeed, the bulk of the statute, reflects a default preference against termination, which is why it states that no termination of parental rights shall be ordered unless the court makes the statutory findings based on the higher standard of proof of clear and convincing evidence. The Constitution itself requires the state to meet this burden of proof before a parent's rights may be terminated because of the fundamental liberty interest a parent has in the relationship with a child. See Santosky v. Kramer, 455 U.S. 745, 768, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that a preponderance of the evidence standard to allow termination violates the Due Process Clause of the Fourteenth Amendment and that termination must be justified by at least clear and convincing evidence). Whether the Cabinet failed to show by clear and convincing evidence that termination was in the child's best interest or if the parents established by a preponderance of the evidence that the child's best interest was to stay with them and that he would not be abused in the future, the parents maintain that the trial court's findings were supported by substantial evidence, and thus its judgment should not have been reversed. They also argue that the Court of Appeals erred in substituting its factual findings for those of the trial court. The Cabinet argues that there was clear and convincing evidence sufficient to support termination, and that the parents' witnesses were not persuasive. Because termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome. In reviewing a trial court's decision on a petition to terminate parental rights, an appellate court must apply the clearly erroneous standard of review. CR 52.01 (Findings of fact shall not be set aside unless clearly erroneous. . . .); see also J.M.R. v. Commonwealth, Cabinet for Health and Family Servs., 239 S.W.3d 116, 120 (Ky.App.2007), overruled on other grounds by Colvard v. Commonwealth, 309 S.W.3d 239 (Ky.2010). Under this standard, an appellate court is obligated to give a great deal of deference to the trial court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them. K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky.App.2006). Application of the law to the facts, however, will be reviewed de novo. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky.App.2010). Although it is an unusual situation to be reviewing the trial court's denial of a petition to terminate parental rights, an unsuccessful party has the constitutional right to appeal said denial. See Ky. Const. § 115 (In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage.); see also K.R.L., 210 S.W.3d at 186-87. That is what the Cabinet did. In analyzing whether termination was in the best interest of the child, the court made several relevant findings, including the following: (1) that the parents have worked at accomplishing the return of the child to their home (¶ 41); (2) that the mother pays child support and the child receives some funds because of the father's disability payments (¶ 32); (3) that there is no credible evidence that once reunited, the family would not be able to make progress (¶ 33); (4) that the parents did maintain a decent and clean household and had a loving relationship with [the child], despite the challenges (¶ 37); and (5) that the witness with the most experience within the home was occupational therapist Ms. Murray, who had described the home as neat and the relationship between the parents as normal given the circumstances and said the parents could learn to parent, adequately and have shown a willingness to do so from her experience in assisting [the child] (¶ 39). The court concluded in paragraph 42 that it does not find by clear and convincing evidence that termination would be in the best interest of the child, and reiterated in paragraph 43 that [termination of parental rights would not be in the best interest of the child. Though couched as a conclusion of law, the court also found that [e]ventual reunification would still be in the best interests of the child. In addressing the claim that these findings were not supported by substantial evidence, the Court of Appeals focused on the evidence presented by the Cabinet, though it admitted the existence of testimony in favor of the parents, While there was some evidence presented in favor of [the parents] and their minimal efforts to improve the care of their child, such evidence did not constitute substantial evidence that termination was not in [the child's] best interests, much less clear and convincing evidence. This last statement is revealing, at least as to how the Court of Appeals approached this case. That court, at least in part, seemed to think that the trial court's finding either in favor of or against termination had to be supported by clear and convincing evidence. The Cabinet also approached the issue in the same way, at least based on the Court of Appeals' description of its argument: The Cabinet argues that the trial court's determination that termination was not in [the child's] best interest is not supported by clear and convincing evidence and that the evidence instead overwhelmingly favors termination. However, it is only when a court does decide to terminate that clear and convincing evidence is required. Otherwise, there need be only substantial evidence to support a trial court's finding in order to avoid reversal. That one side presents more testimony than the other, or that one side's evidence seems superior to the other's, at least from the appellate perspective, has no bearing. In reviewing a trial court's findings, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. CR 52.01. As the court sitting in the presence of witnesses, a trial court is in the best position to evaluate the testimony and other evidence. Indeed, judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003) (emphasis added). [M]ere doubt as to the correctness of a finding will not justify its reversal, and appellate courts should not disturb trial court findings that are supported by substantial evidence. Id. (footnotes, quotation marks, and brackets omitted). The trial court was presented with testimony from both sides. The Cabinet's witnesses were firmly set against reunification. But the parents' witnesses had experience with the family in more direct ways than the Cabinet witnesses did, and if believed, established that the parents were loving and had the potential to learn to care for their child. The parents' witnesses were not interested parties; they included school employees and mental health workers, all of whom had obligations to protect the child. The trial court chose to believe the parents' witnesses. Their testimony was relevant and substantive; it was sufficient to lead a reasonable person to find that the Cabinet had failed to show that termination was in the child's best interest. This Court cannot say that the trial court was clearly erroneous in choosing to believe the witnesses offered by the parents, nor that their testimony was insufficient to support the trial court's determination. Additionally, there was little negative testimony regarding the mother, and certainly not enough to terminate her parental rights. Both parents have individual rights to their children; they are not a package deal, per se. No substantial evidence was developed by the Cabinet as to whether the mother could parent the child on her own or not, or whether she was willing to be a single parent. Beyond this borderline de novo review, the Court of Appeals overemphasized the factors in KRS 625.090(3), treating them as though they were a checklist. As the statute itself notes, the factors are to be considered in deciding whether termination is in the child's best interest. They do not necessarily dictate a result and are always subordinate to the best-interest finding that the court is tasked with making. Though the trial court in this case did not expressly state that it was considering KRS 625.090(5), many of its findings of fact went to a finding under this subsection. The court noted repeatedly in its findings that the parents were loving, that they had the potential to learn at least some appropriate parenting skills, and that they had repeatedly demonstrated a willingness to learn and change their behavior at the Cabinet's request. And although this section comes sequentially after the factors to be considered in making the best interest determination in the statute, it must be considered in making the best interest determination if the parents present such proof. Otherwise, this section of the statute would have no meaning. That the parents can persuade the court that the child will not be abused in the future obviously goes to what is in the child's best interest going forward. The trial court's findings clearly indicate that the parents' proof also convinced the court that termination was not in the child's best interest at that time. Ultimately, this Court cannot overturn the trial court's decision, which was grounded in the evidence and was the result of an exercise of sound discretion, simply because it disagrees with that court's view of the evidence or might have ruled differently in the first instance. Following each incident, the child and family were provided services. Chapter 620, under which dependency, abuse, and neglect actions proceed, is designed to handle immediate problems and offer temporary solutions with the primary goal of enabling a child to remain in his home with assistance from the Cabinet for Health and Family Services. The system did what it was supposed to do for this family under those statutes. However, at some point in a case, as happened in this case, the Cabinet may change its goal for a child committed to them to a permanency determination rather than a temporary one. In such cases, the Cabinet files a petition for termination of parental rights. In effect, if parental rights are terminated, it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and child. In a relationship that has developed over a period of years such as the one in this case with this child who is now 15 years old, strong emotional ties flow both ways. The circuit court or family court that hears termination cases must include that fact in its analysis of whether it is appropriate at the time of the termination hearing to end that relationship permanently, based on the record. If the court does not terminate the relationship, services can be continued—as they were here—until further orders of the court, which may include maintaining a child in foster care or an institution. Finally, it is worth noting again that a termination of parental rights proceeding implicates fundamental constitutional rights. There is no dispute that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky, 455 U.S. at 753, 102 S.Ct. 1388. The stakes are high in termination proceedings because [v]ictory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children. Id. at 760, 102 S.Ct. 1388. And because the stakes are so high, parents are entitled to substantial protection: The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Id. at 753, 102 S.Ct. 1388. Termination proceedings are—and should be—weighted against the State. Thus, the default position in such a proceeding is that the child is to be left with the parents or returned to them, with or without ongoing services as needed. The State cannot disturb this natural order lightly. When there is substantial competent evidence that the trial court finds persuasive, as is the case here, an appellate court should not intercede.",analysis
+600,1697455,1,7,"The Commission argues that it had jurisdiction over MUD's application under the plain language of §§ 66-1848 and 66-1849, both enacted in 2003. MUD, however, argues that a previously enacted statute, § 57-1306, applies and deprives the Commission of jurisdiction. Section 66-1849 provides: (1) The commission shall certify all competitive natural gas providers and aggregators providing natural gas services.... (2) The commission may resolve disputes involving the provision of natural gas services by a competitive natural gas provider or aggregator. Section 66-1848 defines a CNGP as follows: For purposes of this section and section 66-1849: .... (2)(a) Competitive natural gas provider means a person who takes title to natural gas and sells it for consumption by a retail end user. Competitive natural gas provider includes an affiliate of a natural gas public utility. (b) Competitive natural gas provider does not include the following: (i) A jurisdictional utility; (ii) A city-owned or operated natural gas utility or metropolitan utilities district in areas in which it provides natural gas service through pipes it owns; or (iii) A natural gas public utility that is not subject to the act as provided in section 66-1803 in areas in which it is providing natural gas service in accordance with section 66-1803. In addition, § 66-1804(2) provides: The State Natural Gas Regulation Act and all grants of power, authority, and jurisdiction in the act made to the commission shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of the act are expressly granted to and conferred upon the commission. MUD, however, argues that § 57-1306 controls. It provides in pertinent part: If the investor-owned natural gas utility or the metropolitan utilities district disagrees with a determination by an investor-owned natural gas utility or a metropolitan utilities district that a proposed extension or enlargement is in the public interest, the matter may be submitted to the Public Service Commission for hearing.... The commission shall have no jurisdiction over a metropolitan utilities district or natural gas utility beyond the determination of disputes brought before it under sections 57-1301 to 57-1307. (Emphasis supplied.) Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme, so that effect is given to every provision. See Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005). To the extent that a conflict exists between two statutes on the same subject, the specific statute controls over the general statute. Id. MUD is correct that § 57-1306 states that the Commission does not have jurisdiction over a metropolitan utilities district except for disputes brought under §§ 57-1301 to 57-1307. But the statutes specifically pertaining to CNGP's were passed later and provide the Commission with jurisdiction over all CNGP's. In particular, § 66-1848 defines a CNGP as a person who sells gas for consumption by a retail end user. It then excludes metropolitan utilities districts only in areas in which it provides natural gas service through pipes it owns—which is not the case here. This more specific provision of § 66-1848 trumps the general provisions of § 57-1306, particularly when considering the stated legislative desire that the Commission's powers shall be liberally construed. See § 66-1804(2). In its application, MUD stated it intended to sell natural gas to distribution facilities not owned by MUD. Thus, MUD falls under the certification provisions and the Commission's jurisdiction. Therefore, the Commission had jurisdiction over MUD's application for certification and the district court erred when it affirmed because of a lack of jurisdiction.",jurisdiction
+601,1654119,1,1,"Among other issues, these appeals ask us to examine the extent of a car dealer's liability for injuries arising out of accidents that occur during a test drive. We hold that, at least under the facts presented, the dealer should not have been held liable. We also consider the question of whether a tortfeasor to whom the jury apportioned only a portion of the liability for the plaintiffs' injuries becomes liable for all of the plaintiff's damages when, on appeal, it is determined that the remaining co-defendant, against whom fault was also apportioned, was not a proximate cause of the injury and should not have been found liable. We conclude that he does.",introduction
+602,2613608,1,1,"In denying the defendant's motion for judgment of acquittal at the close of the State's evidence, the trial judge stated: Well, I guess I could say that if there was ever a case where a defense motion for acquittal might be appropriate at this juncture, this might be one. The nexus or connection between the activities at the home of the deceased and these two defendants is very tenuous, and that's, that's the major difficulty that I have with denying the defendant's motion. But I do deny such. It seems to me that the credibility of the state's witnesses is the key, and if the jury believes the latest story that these two individuals told, together with the circumstantial evidence, that a reasonable trier of fact could come up with the conclusion that these two defendants are guilty of the three crimes charged against each of them. On appeal, Noriega argues that there was insufficient evidence for the jury to conclude beyond a reasonable doubt that he was guilty of the underlying felonies of aggravated burglary and aggravated robbery and, therefore, his felony murder conviction cannot stand. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Johnson, 255 Kan. 252, Syl. ¶ 6, 874 P.2d 623 (1994); State v. Van Winkle, 254 Kan. 214, Syl. ¶ 5, 864 P.2d 729 (1993), cert. denied 511 U.S. 1144, 128 L. Ed.2d 890 (1994); State v. Ferguson, 254 Kan. 62, Syl. ¶ 4, 864 P.2d 693 (1993). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Bradford, 254 Kan. 133, Syl. ¶ 2, 864 P.2d 680 (1993). The jury found Noriega guilty of both underlying felonies of aggravated burglary and aggravated robbery. Aggravated burglary is knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony, theft or sexual battery therein. K.S.A. 21-3716. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427. The evidence at trial revealed that Robinson was shot three times, both inside and outside the house, and that two of the shots were fatal. Evidence supported inferences that Robinson's house had been broken into and that items from his house were stolen. The additional evidence was that Noriega, Abel, and Shutts all left Shutts' house together to go drinking on the evening of the crime. Several witnesses saw them drinking together at the Twilighter. Baier identified Noriega and Abel as the two men he saw running away from Robinson's house shortly after Baier heard shots fired. Shutts testified that Abel had left a gun of the same general type used to commit the murder at Shutts' house before the group left for the Twilighter. Shutts testified that a few minutes after he returned from the Twilighter, Abel retrieved the gun. Shutts also testified that he distributed proceeds from the sale of coins evenly between Abel and Noriega. Shutts testified that Abel told him that [w]hen they got the coins, something went wrong. It is the function of the jury in a criminal case to determine the weight and credit to be given the testimony of each witness. On review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State. Van Winkle, 254 Kan. at 225. The credibility of the State's primary witnesses, Shutts and Baier, was brought into question in opening argument, throughout the trial, and during closing arguments. Both witnesses admitted to lying to police prior to trial and having been involved in crimes subsequent to the murder. The jury had the opportunity to evaluate the evidence and the testimony of the witnesses. The jury obviously believed the State's witnesses were credible and accepted the evidence presented by the State as true. Under the circumstances, the evidence adduced at trial was sufficient for a reasonable factfinder to conclude that Noriega was guilty beyond a reasonable doubt of the underlying felonies of aggravated burglary and aggravated robbery.",sufficiency of the evidence
+603,1755820,1,4,"The circuit court misapplied the law by applying personal injury concepts to Plaintiff's medical monitoring claim and in holding that these individual personal injury issues were predominate over common issues. The judgment denying class certification is reversed, and case is remanded. WOLFF, C.J., STITH and WHITE, JJ., concur. PRICE, J., dissents in separate opinion filed; RUSSELL, J., concurs in opinion of PRICE, J. LIMBURGH, J., dissents in separate opinion filed. WILLIAM RAY PRICE, JR., Judge, dissenting. I agree with the majority opinion that common issues predominate over individual issues. From that perspective, the trial court erred in denying class certification. I write separately because the claim of the named plaintiff is not typical of the class. For that reason, the trial court was correct and the class should not be certified. See Business Men's Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). Rule 52.08(a) provides: Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class . . . Plaintiff in this case is Lani Meyer, by and through her next friend Rebecca Coplin. Lani alleges that she has suffered actual present injuries resulting from toxins produced by the defendants. In fact, Lani has filed a separate personal injury action against the defendants based upon those injuries in the Circuit Court for the City of St. Louis, Meyer v. Fluor Corporation, No. 052-9609. The class of persons Lani seeks to represent, however, are children who have been exposed to those same toxins, but who have not yet exhibited or recognized symptoms of illness. As the majority opinion points out, there are many and significant differences between personal injury actions involving a present injury and an action for medical monitoring, including the very nature of the relief sought. As class representative, Lani seeks a money award to pay for the costs of periodic diagnostic testing and examination necessary to detect the existence of physical harm from exposure to hazardous chemicals. However, having already suffered injury, Lani needs treatment and an award of damages for her injuries, not medical monitoring. The fact that Lani has brought her own individual lawsuit is an undeniable admission that the interest of the class and her own interests are not the same, but are in conflict. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)([F]or the critically injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future.); Wall v. Sunoco, Inc., 211 F.R.D. 272, 279 (M.D.Pa.2002)(Several cases have addressed the conflict between representatives who are already injured and those who have only been exposed to a hazardous substance and seek medical monitoring although they currently suffer no injury. The cases find that a conflict of interest exists between the presently injured and the exposure-only plaintiffs.). Because the claims of the proposed representative plaintiff are not typical of the class, certification is not proper under Rule 52.08(a)(3). I would affirm the judgment of the trial court denying class certification. STEPHEN N. LIMBAUGH, JR., Judge, dissenting. I concur in Judge Price's dissenting opinion except that I would not address the question of whether common issues predominate over individual issues. There is no need to do so once it is determined that the claim of the named plaintiff is not typical of the class.",conclusion
+604,2003427,1,8,"I agree with the majority that the Indiana CSET has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. See part I, infra. But I find nothing in Kurth Ranch that compels us to prohibit the prosecution of alleged drug offenders merely because the revenue department asserts a CSET obligation on the part of the alleged offender first. See part II, infra. Assuming the established principles of Double Jeopardy jurisprudence apply regardless of whether the criminal prosecution and sentencing or the imposition of CSET comes first, I would hold that (i) there is no prosecution jeopardy unless the taxpayer contests the assessment and a hearing is convened to adjudicate the protest, Litch-field, 902 P.2d at 925; prosecution jeopardy attaches when evidence is first presented to the trier of fact, Torres, 28 F.3d at 1465; and (ii) there is no punishment jeopardy unless the taxpayer pays at least a portion of the tax, Sanchez-Escareno, 950 F.2d at 202. See part III, infra. Certainly, there is nothing in Kurth Ranch that is inconsistent with this approach. In that case, Montana's tax authorities assessed the dangerous drug tax and the taxpayers contested the assessments in administrative proceedings. Kurth Ranch, ___ U.S. at___ _ ___, 114 S.Ct. at 1942-43. Thus more happened in Kurth Ranch than the mere initiation of a drug tax assessment proceedings the taxpayers actually contested the assessment in administrative proceedings. Based on the foregoing analysis, I would affirm Bryant's convictions. No claim is made that Bryant contested the assessment such that an adjudication of liability was conducted. As such, no prosecution jeopardy attached and the state was free to prosecute him on the criminal charges. Nor is any claim made that Bryant voluntarily paid a sufficient amount of the tax to constitute punishment. [38] As such, no punishment jeopardy attached and the state was free to punish him on the criminal charges. I agree with the majority's analysis of the non-CSET issues in Bryant's appeal.",conclusion
+605,1366742,1,3,"We reverse the ruling of the district court that Seubert did not prove its claim of overpayment and affirm the remainder of the district court's findings and conclusions. We remand the cause for entry of a modified judgment consistent with these rulings. Costs and attorney fees pursuant to I.C. § 41-1839 awarded to Steelman-Duff. McDEVITT, C.J., JOHNSON, J., and MICHAUD and BURDICK, Justices Pro Tem, concur.",conclusion
+606,1925175,1,1,"The Club is a golf and country club located in Seaford, Delaware. duPont is a specialty chemical company, headquartered in Wilmington, Delaware, that conducts worldwide operations. duPont owned and operated a nylon textile manufacturing plant located in Seaford, Delaware from 1939 until November 2003, when duPont sold that business to Arteva Specialties, S.à.r.l. (Arteva). The Consent Order On February 25, 1992, several years before the parties' dealings that led to this dispute, duPont and the United States Environmental Protection Agency (EPA) entered into a Consent Order that provided for the performance of interim measures at the plant site, and also at certain leased premises, to prevent or relieve threats to human health or the environment. One such measure was an investigation of the plant facility to determine where there was any release of hazardous waste, and to identify and evaluate alternatives for corrective measures and their implementation. The Consent Order contained findings of fact to which the EPA and duPont stipulated. One finding, which is pertinent to this litigation, states: Respondent [duPont] owns and operates a nylon textile manufacturing plant located at 400 Woodland Park, Seaford, Delaware. The Plant, the property on which the plant is located and all contiguous property under the ownership or control of Respondent, is referred to in this Consent Order as the Facility. The Facility has been owned and operated by Respondent since commencement of production in 1939. [3] The Documents (1) The Deed On December 26, 1995, duPont executed a deed (the Deed) conveying to the Club approximately 100 acres of land, together with improvements (the Property), on which was located a clubhouse, swimming pool, tennis courts, a nine-hole golf course, and related facilities. The Deed contained a restriction (the Deed Restriction) that provides: Grantee [the Club], its successors and assigns, agree to limit the use of the Property for golf, country club and related purposes, so long as Grantor [duPont] continues to own its Seaford, Delaware Plant; provided, however, that this restriction shall not apply to the portion of the Property as follows: [there follows a description of 4.1578 acres of land located on Locust Street, Seaford, Delaware.] The Deed contains no definition of Seaford, Delaware Plant or Plant. [4] (2) The Ground Lease and Memorandum of Lease On November 26, 1997, the parties executed a Ground Lease wherein duPont leased two parcels of land, totaling approximately 100.5 acres (the leased premises), to the Club. On that same date, the parties executed (and later recorded) a Memorandum of Ground Lease. Paragraph 3 of the Memorandum of Ground Lease contains a Right of First Refusal that pertinently provides: DUPONT reserves a right of first refusal to match within thirty (30) days any offer to purchase the Original Parcel as defined in the Option Agreement between the parties hereto dated October 18, 1995 and the leasehold interest in the LEASED PREMISES that is acceptable to [the Club]. Said right of first refusal will terminate upon the refusal by DUPONT to purchase and/or DUPONT transfers all of its title and interest in and to the Seaford, Delaware Plant. The Ground Lease also contains a similarly worded right of first refusal, which provides ( inter alia ) that the right of first refusal will terminate upon the refusal of DUPONT to purchase and/or DUPONT transfers all of its title and interest in and to the Seaford, Delaware Plant. Neither the Ground Lease nor the Memorandum of Lease defines the terms Seaford, Delaware Plant or Plant. Section 11 of the Ground Lease does, however, contain a provision that distinguishes between the Plant and the property upon which the plant is located: DUPONT entered into a Consent order (with the Environmental Protection Agency) . . . a copy of which is attached hereto as Exhibit C to conduct RCRA Facility Investigation . . . to determine the nature and extent of any release of hazardous waste and/or hazardous constituents at certain . . . solid waste management units . . . on the DUPONT Seaford Plant property (the Site). (emphasis added). The Pre-Document Negotiations Although it is narrated out of temporal sequence, what follows is a summary of the parties' negotiations, insofar as they are disclosed by the current record, [5] that led to the drafting and execution of the Documents described above. On February 23, 1994, duPont sent to the Club a letter offering to sell to the Club certain property in Seaford, Delaware, subject to the terms set forth in the letter. The offer stated that, if DuPont should in the future divest itself entirely of the Seaford Plant, then we will agree to remove the [deed] restriction A right of first refusal was included with the letter, which stated that DuPont will relinquish the right of [first refusal] upon total divestiture of the Seaford Plant. The Club rejected duPont's initial offer, and in an April 28, 1994 memorandum, made a counteroffer that (among other things) proposed a deed restriction. The Club stated: Grantor may include in the Deed a restriction restricting use of the property to golf, country club and related purposes until the first of the following events should occur: (a) The expiration of 25 years from the date of the Deed; or (b) Grantor's total divestiture (to be defined) of the Seaford Plant. duPont accepted this counteroffer, except for the 25 year term of restriction (alternative [a]), which was deleted. On June 2, 1994, duPont's property manager, Harry S. Thomas, sent to David R. Hackett, Esquire, the Club's attorney, an Agreement of Sale and a Ground Lease to review. The Agreement of Sale provided that the Deed would include a restriction restricting the use of all but a portion of the property along Locust Street to golf and country club related activities for as long as DUPONT continues to own any of DUPONT's Seaford, Delaware Plant. Although the counteroffer and acceptance would have required that the restriction remain until duPont's total divestiture of the Seaford plant, the proposed Agreement of Sale did not use the term total divestiture. Nor was the Right of First Refusal mentioned in either the Agreement of Sale or the Ground Lease. The negotiations continued throughout the summer of 1994. In a September 27, 1994 letter from the Club's attorney to Fred Ayers, duPont's then property manager, the Club's counsel summarized the Club's understanding of the transaction terms upon which the parties had agreed as of August 26, 1994. That letter referenced the Deed Restriction and the Right of First Refusal and discussed the inclusion of the total divestiture language in the counteroffer and acceptance. Thereafter, further negotiations took place to amend the current lease of the Club's property to add an option to purchase, and also to provide for an interim lease pending the exercise of the option. In a January 5, 1995 letter, duPont expressed its nonbinding intention to enter into a lease amendment with an option to purchase. In response, the Club, on January 10, 1995, submitted a new offer in which the Club again used the total divestiture language in relation to the Deed Restriction and the Right of First Refusal. In a February 24, 1995 letter, the Club's counsel offered to prepare the option agreement with the long term lease and interim lease, but duPont did not accept counsel's offer to do so. In a March 7, 1995 letter, the Club requested that the option to purchase include the Right of First Refusal contained in the June 24, 1994 revised Agreement of Sale, which included the above-described total divestiture language. This provision also stated that DuPont's total divestiture shall mean when DuPont no longer holds legal interest in the DuPont Plant Property. duPont rejected this proposed language, and instead chose to use the language that appears in the definitive Deed Restriction and the Right of First Refusal, throughout all future drafts of the Documents. That Deed Restriction language provides that the restriction will apply as long as GRANTOR [DuPont] continues to own its Seaford, Delaware Plant. The Right of First Refusal language provides that it will terminate upon refusal by DUPONT to purchase and/or DUPONT transfers all of its title and interest in and to the Seaford, Delaware Plant. Similar language appears in the Right of First Refusal contained in the Ground Lease. Sale of the Seaford, Delaware Plant to Arteva On November 16, 2003, duPont and Arteva entered into a Purchase Agreement wherein duPont sold to Arteva all Improvements, Equipment, and other [DuPont] Business Assets utilized in the business activities of the nylon business comprising the Textiles and Interiors business segment of DuPont . . . located in Seaford, Delaware. [6] The transaction was consummated with the execution and delivery of an April 30, 2004 instrument of assignment and bill of sale, a March 30, 2004 ground lease, and an April 30, 2004 memorandum of ground lease. Under the ground lease, duPont leased the Seaford, Delaware Plant Site (as defined in the Ground Lease) to Arteva. The memorandum of ground lease stated that the leased land is also known as the Seaford Plant Site. In this transaction, duPont retained title to the Seaford Plant Site for purposes of remediating the Existing Contamination as defined in the Arteva transaction documents. Unlike the Ground Lease with the Club, the ground lease with Arteva provided that, upon satisfaction of certain conditions specified in the purchase agreement, the Arteva ground lease will terminate and title to the land upon which the plant is located and the other leased premises shall be transferred by duPont to Arteva. The Club Agrees To Sell A Portion Of The Property And duPont Invokes The Deed Restriction And The Right of First Refusal On July 16, 2004, the Club entered into a contract with East Bay Homes, LLC and Vision Builders, Inc. (the Developers) to sell a portion of the Property consisting of about 3.35 acres of land. After the Club gave duPont notice of the prospective sale, duPont wrote a letter to the Club on October 5, 2005, taking the position that until duPont actually sells the land, the Deed Restriction and Right of First Refusal remain in effect. Additionally, on December 16, 2004, duPont notified the Club that the Club had failed to abide by, and thus was in default of, the terms of the Right of First Refusal contained in the Ground Lease. On December 16, 2004, the Club, through its counsel, responded to duPont. The Club took the position that it was not in default of the Ground Lease, because the Deed Restriction and Right of First Refusal had terminated when duPont sold its Seaford, Delaware nylon plant operation to Arteva in 2003. The Club offered, nonetheless, to sell to duPont a portion of the Property on the same terms proposed by the Developers. duPont did not respond to that offer, and by letter dated January 11, 2005, asserted that the Club's position was unsupportable. Thereafter, the Club filed an action in the Superior Court seeking a declaration that the Deed Restriction and the Right of First Refusal are unenforceable against the Club, because the terms Plant and Seaford, Delaware Plant, as used in the Documents do not include the land underlying the plant facility. duPont interposed a counterclaim, seeking a contrary declaration, and that the Deed Restriction and the Right of First Refusal continue to be applicable and enforceable.",facts
+607,4513431,1,1,"This is an appeal from a negligence action under the Federal Employers’ Liability Act (FELA).1 Appellant, Alexander Lanham, appeals the order of the district court for Lancaster 1 45 U.S.C. §§ 51 through 60 (2012). - 126 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports LANHAM v. BNSF RAILWAY CO. Cite as 305 Neb. 124 County, Nebraska, granting summary judgment in favor of appellee, BNSF Railway Company (BNSF). BNSF crossappeals, arguing the district court erred in holding that it had personal jurisdiction over BNSF. We reverse the district court’s order overruling BNSF’s motion to dismiss for lack of jurisdiction.",introduction
+608,1920879,1,2,"Snelgrove raises nine points on appeal: (1) that the circuit court erred in denying his public defender's motion to withdraw based on a conflict of interest; (2) that the circuit court failed to conduct a Richardson [8] inquiry into an alleged discovery violation by the State, and, relatedly, that the State violated Brady [9] by withholding the information; (3) that the prosecuting attorneys made improper and inflammatory remarks that rendered the trial fundamentally unfair; (4) that the circuit court erred in denying his motion to briefly recess the penalty phase at the close of the jury-charge conference, prior to closing arguments, due to the mental and physical exhaustion of his counsel; (5) that his two death sentences are invalid because the jury rendered only a single, undifferentiated recommendation of death; (6) that his death sentences are unconstitutional because Florida's capital-sentencing scheme puts a higher burden of persuasion on the defendant to prove that a life sentence is appropriate than it puts on the State to prove that a death sentence is appropriate; (7) that his death sentences are unconstitutional and invalid because the circuit court considered improper aggravating factors, failed to consider or properly weigh highly relevant mitigating factors, and improperly found that the aggravating factors outweighed the mitigating factors; (8) that his death sentences are unconstitutional and invalid because the jury was tainted by highly inflammatory and improper victim-impact evidence; and (9) that his death sentences are unconstitutional because Florida's capital-sentencing scheme violates the Sixth Amendment as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). As explained below, we hold that Snelgrove's claims relating to the guilt phase of his trial are without merit. We therefore affirm his convictions. [10] However, the sentences cannot be affirmed. We hold that the two death sentences are invalid because the jury returned only a single, undifferentiated advisory sentence. Therefore, we reverse Snelgrove's two death sentences and remand the case to the circuit court for a new penalty-phase proceeding at which the jury must render individualized sentencing recommendations for each capital murder conviction. In light of this disposition, we do not address the other claims related to the penalty phase.",issues
+609,1058212,2,3,"
+The defendant challenges the sufficiency of the convicting evidence. Our standard of review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.2004). When reviewing the evidence, the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom. State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000). Questions about the credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d 231, 236 (Tenn.2003).
+The State contends that there is abundant evidence of premeditation. The defendant, on the other hand, insists that the evidence of premeditation is insufficient for conviction of first degree murder (premeditated). First degree premeditated murder is statutorily defined as a premeditated and intentional killing of another. Tenn.Code Ann. § 39-13-202(a)(1) (2001). An act is premeditated if the act is done after the exercise of reflection and judgment. Id. at (d). Premeditation means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation. Id. The element of premeditation is a factual question to be decided by a jury from all the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.2003). Although a jury may not engage in speculation, it may infer premeditation from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997). This Court has identified several circumstances that may support a finding of premeditation. Those circumstances include: [D]eclarations by the defendant of an intent to kill, evidence of procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing, infliction of multiple wounds, preparation before the killing for concealment of the crime, destruction or secretion of evidence of the murder, and calmness immediately after the killing. State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additionally, [e]stablishment of a motive for the killing is a factor from which the jury may infer premeditation. State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004). A verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt. State v. Holton, 126 S.W.3d 845, 858 (Tenn.2004). [O]n appeal, the defendant has the burden of illustrating why the evidence is not sufficient to support the jury's verdict. Id. Viewing the evidence in a light most favorable to the State, the intermediate court stated: Although, there was no showing that the victim was armed, no evidence was presented at trial indicating that the defendant made any declarations of intent to kill the victim, made any preparations to conceal the offense prior to shooting the victim, or had a previously formed design or intent to kill the victim. There was no showing of hostility between them. Furthermore, while the defendant possessed a gun, the evidence does not indicate that the defendant procured the gun for the purpose of killing the victim. See [ State v. West, 844 S.W.2d 144, 147 (Tenn.1992)] (noting that in failing to establish premeditation, the state failed to present proof of its theory that the defendant returned to his residence and retrieved a gun for the specific purpose of killing the victim when the defendant testified he carried his gun with him all morning prior to the shooting). The record reflects the defendant shot an unarmed victim twice in the back of his head. The pathologist was unable to ascertain the locations of the parties at the time of the shooting but opined the muzzle was more than three feet away from the victim's [head]. Based upon the evidence, we are unable to conclude that the defendant killed the victim execution-style while the victim was kneeling, although it may have been a possibility. We are persuaded that the conclusion reached by the intermediate court is the correct one without application of the presumption. Of the factors that this Court has acknowledged as tending to prove premeditation, only one — use of a deadly weapon on an unarmed victim — is present here. See Bland, 958 S.W.2d at 660. Even so, the defendant claimed that he believed that the victim was armed and prepared to shoot. Additionally, although the evidence establishes that the defendant shot the victim in the back of the head at a downward angle, no evidence in the record supports the conclusion that the victim was kneeling on the floor when the shots were fired. Furthermore, we also note, as did the Court of Criminal Appeals, that the jury acquitted the defendant of murder committed in the perpetration of robbery. Thus, we are unable to conclude that the defendant's motive for killing the victim was robbery. Finally, we note that concealment of evidence of a crime, standing alone, is insufficient to prove premeditation. See State v. West, 844 S.W.2d 144, 148 (Tenn. 1992) (The concealment of evidence ... may be associated with the commission of any crime and the accompanying fear of punishment. One who kills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool, dispassionate killer.). This Court and the Court of Criminal Appeals have rejected finding such premeditation based solely upon a defendant concealing evidence after the crime. See West, 844 S.W.2d at 147 (defendant waiting an hour and a half before calling the police, during which time he hid the weapon and went about his business, was insufficient evidence of premeditation); State v. Long, 45 S.W.3d 611, 621 (Tenn.Crim.App.2000) (defendant's actions hiding the victim's body, lying to the victim's mother, sister, and the sheriff about her whereabouts; and shooting pool with friends after the murder did not establish premeditation). In this case, the defendant attempted to conceal commission of the crime, but his sloppy incomplete efforts actually appear to undercut rather than support premeditation. Nothing in the record indicates that the defendant gave any forethought to concealing the crime. [5] Based on the foregoing, we conclude that the evidence was insufficient for a rational trier-of-fact to find the defendant guilty of first degree premeditated murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.",sufficiency of the evidence
+610,4509371,1,2,"[1,2] Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016 & Cum. Supp. 2018), are reviewed for error on the record. In re Guardianship of K.R., ante p. 1, 932 N.W.2d 737 (2019). When reviewing a judgment for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. An appellate court, in reviewing a judgment for errors on the record, will not substitute its - 1001 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF ELIZA W. Cite as 304 Neb. 995 factual findings for those of the lower court where competent evidence supports those findings. Id. [3] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. Griffith v. Nebraska Dept. of Corr. Servs., ante p. 287, 934 N.W.2d 169 (2019).",standard of review
+611,887237,1,2,"¶11 This Court employs two standards of review for decisions of the WCC. We review the findings of fact to determine if they are supported by substantial credible evidence, and we review conclusions of law to determine if they are correct. Hiett v. Missoula County Public Schools, 2003 MT 213, ¶ 15, 317 Mont. 95, ¶ 15, 75 P.3d 341, ¶ 15 (citing Geiger v. Uninsured Employers' Fund, 2002 MT 332, ¶ 13, 313 Mont. 242, ¶ 13, 62 P.3d 259, ¶ 13). In S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, 303 Mont. 364, 15 P.3d 948, this Court defined substantial evidence necessary to support a finding of fact as: [E]vidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. S.L.H., ¶ 42 (quoting Swain v. Battershell, 1999 MT 101, ¶ 34, 294 Mont. 282, ¶ 34, 983 P.2d 873, ¶ 34).",standard of review
+612,1058401,2,2,"Jones does not challenge his status as a convicted felon under Code § 18.2-308.2. Rather, he contends that the Commonwealth failed to prove that the item found in his truck was a firearm, which is defined as any instrument designed, made, and intended to expel a projectile by means of an explosion, even though the Commonwealth does not need to prove the instrument was operable, capable of being fired, or had the actual capacity to do serious harm. Jones argues that the evidence is insufficient as a matter of law, and that the Commonwealth only established that the firearm appeared, by all outward appearances, to be a firearm. Jones argues that the firearm was admitted into evidence over his objection. Jones asserts there was no testimony offered as to the nature or character of the firearm, and there was no testimony concerning the make, model, or type of the firearm admitted into evidence. Jones argues that the Commonwealth did not present an expert witness or a certificate of analysis from a laboratory that the weapon was examined or fired by a weapons technician. Finally, Jones contends there was no forensic examination offered concerning whether the instrument was designed, made, and intended to expel a projectile by means of an explosion. The Commonwealth responds that the judgment is not plainly wrong or without evidence to support it, and that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The evidence presented included the observations of the officer who seized the firearm, Jones' acknowledgement when questioned about the seized gun that he purchased it on the street, and the trial court's examination of the gun, ammunition magazine, and bullets at trial. When a defendant challenges the sufficiency of the evidence, the Court reviews the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences in its favor as the prevailing party below. Perez v. Commonwealth, 274 Va. 724, 728, 652 S.E.2d 95, 97 (2007). The judgment of the trial court will only be reversed if it is plainly wrong or without evidentiary support. Id. The issue upon appellate review is `whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original). Code § 18.2-308.2 proscribes the possession of a firearm by a convicted felon. In Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002), this Court held that in order to sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed, made, and intended to expel a projectile by means of an explosion. It is not necessary that the Commonwealth prove the instrument was `operable,' `capable' of being fired, or had the `actual capacity to do serious harm.' Id. The firearm, ammunition magazine, and bullets that Officer Wisniewski recovered from Jones' vehicle were introduced as evidence at Jones' trial. Jones' statement that he bought the gun on the street was also introduced. Officer Wisniewski testified that the item recovered from Jones' trunk was a firearm, and he described how he unloaded the firearm and made it safe. The trial judge, while holding the firearm, stated: This is a real gun ... [A]lso part of the evidence are real bullets along with [an ammunition] clip. This is a gun. The trial court's judgment was not plainly wrong, as the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that the item recovered from Jones' vehicle was designed, made, and intended to expel a projectile by means of an explosion. Accordingly, the judgment of the Court of Appeals is affirmed. Affirmed.",sufficiency of the evidence
+613,888387,2,2,"¶ 55 We now turn to the District Court's conclusion that it lacks jurisdiction over the evidence at issue. ¶ 56 The subject-matter jurisdiction of the district courts is established by the Montana Constitution. Miller v. District Court, 2007 MT 149, ¶ 45, 337 Mont. 488, ¶ 45, 162 P.3d 121, ¶ 45. In particular, Article VII, Section 4(1) provides that district courts have original jurisdiction in . . . all civil matters and cases at law and in equity. ¶ 57 Subject-matter jurisdiction is a court's fundamental authority to hear and adjudicate a particular class of cases or proceedings. See Miller, ¶ 43; Ballas v. Missoula City Board of Adjustment, 2007 MT 299, ¶ 15, 340 Mont. 56, ¶ 15, 172 P.3d 1232, ¶ 15; Peña v. State, 2004 MT 293, ¶ 21, 323 Mont. 347, ¶ 21, 100 P.3d 154, ¶ 21 (overruled in part on other grounds by Davis v. State, 2008 MT 226, ¶ 23, 344 Mont. 300, ¶ 23, 187 P.3d 654, ¶ 23); California v. Western Tire Auto Stores, Inc., 32 Ill.2d 527, 207 N.E.2d 474, 476 (1965) (Jurisdiction of the subject matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs.). See also Eberhart v. United States, 546 U.S. 12, 16, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (the law of subject-matter jurisdiction is that which delineates the classes of cases within a court's adjudicatory authority); Restatement (Second) of Judgments § 11 cmt. a (1982) (rules of subject-matter jurisdiction are those which invest a court with authority to adjudicate a type of controversy). Both this Court and the litigants before it have, at times, failed to properly recognize this basic principle. ¶ 58 For example, in Miller the defendants' argument treated a filing deadline as a jurisdictional rule. Miller, ¶ 42. Despite our previous opinions that justified this characterization, we held that the filing deadline is not a jurisdictional provision because it does not delineate a class of cases falling within the district courts' adjudicatory authority. Miller, ¶¶ 44-46. Likewise, in Peña the defendant asserted that he was bringing a jurisdictional claim when he challenged the legality of the district court's sentencing decision. Peña, ¶¶ 16-18. We held that the challenge was not a jurisdictional claim because it did not dispute the court's ability to hear and determine the case. Peña, ¶ 25. In doing so, we partially overruled State v. Moorman, 279 Mont. 330, 928 P.2d 145 (1996), upon which Peña had understandably relied, because in that case we erroneously treated a sentencing matter as a jurisdictional issue. Peña, ¶ 25 (In analyzing another issue, we erred in our treatment of the concept of jurisdiction, and thus Peña has been overruled in part on other grounds, as noted above. Davis, ¶ 23.) ¶ 59 Similarly, in State v. Garrymore, 2006 MT 245, ¶ 10, 334 Mont. 1, ¶ 10, 145 P.3d 946, ¶ 10, the State misused the term jurisdiction in conjunction with a rule of appellate review. In response, we noted that the State was actually following this Court's lead to the extent we had erroneously indicated that one of our precedents—a decision regarding appellate review of criminal sentences—is a source of jurisdiction. Garrymore, ¶ 10 n. 1. In reality, we noted, the source of this Court's jurisdiction is Article VII, Section 2 of the Montana Constitution. Garrymore, ¶ 10 n. 1. ¶ 60 Unfortunately, these and other cases demonstrate the morass into which one is led . . . by loose talk about jurisdiction. City of Yonkers v. United States, 320 U.S. 685, 695, 64 S.Ct. 327, 333, 88 L.Ed. 400 (1944) (Frankfurter, J., dissenting). Indeed, we have observed that this Court has sometimes been profligate in its use of the term jurisdiction. [6] DeShields v. State, 2006 MT 58, ¶¶ 9-10, 331 Mont. 329, ¶¶ 9-10, 132 P.3d 540, ¶¶ 9-10 (partially overruling State v. Yorek, 2002 MT 74, ¶ 15, 309 Mont. 238, ¶ 15, 45 P.3d 872, ¶ 15, where we erroneously stated that the question of whether a court possesses the authority to impose a sentence is a jurisdictional issue). Thus, it is not surprising that litigants and district courts have also misused the concept of jurisdiction by following our precedents. Here, however, the District Court cited no authority in excluding the subject evidence based on the concept of jurisdiction. ¶ 61 There is no dispute as to whether the District Court has subject-matter jurisdiction over this case. As noted above, Fortis has unsuccessfully disputed this jurisdictional issue before the state District Court, the federal District Court, and the Ninth Circuit Court of Appeals. However, in the instant appeal Fortis agrees that the state District Court does have subject-matter jurisdiction over this case. See ¶¶ 44-45, supra. Thus, as neither party disputes the court's authority to hear and adjudicate this case, we start from the agreed-upon premise that the state District Court has subject-matter jurisdiction over this case. ¶ 62 We reject the notion that a court with subject-matter jurisdiction over a particular case may nonetheless lack jurisdiction over certain evidence presented in support of the claims at issue. The law of subject-matter jurisdiction does not govern the types of evidence properly considered in a case; rather, it designates the various classes of cases within a court's adjudicatory authority. See e.g. Eberhart, 546 U.S. at 16, 126 S.Ct. at 405. Thus, in determining whether to exclude evidence from consideration on summary judgment, the District Court was faced not with a jurisdictional issue, but with an evidentiary issue. A court's jurisdiction over the subject-matter of a case—i.e., the authority to hear and adjudicate the action—necessarily entails the authority to decide all evidentiary issues presented therein, see Peña, ¶ 21, and such jurisdiction is not diminished in any way by the nature of the evidence a party proffers in support of a claim or defense. Thus, as the District Court undisputedly had subject-matter jurisdiction over this case, it was obligated to determine the evidentiary issues based on the applicable law, which we discuss below.",jurisdiction
+614,1133555,1,5,"¶ 6. Blissett contends the evidence against him was insufficient to establish that he possessed marijuana or intended to distribute same. When reviewing a challenge to the sufficiency of the evidence, this Court considers all of the evidence in the light most consistent with the verdict, giving the State the benefit of all inferences favorable to the verdict. This Court affirms when the evidence was such that reasonable jurors could have found the defendant guilty. Dudley v. State, 719 So.2d 180, 182 (Miss.1998). ¶ 7. The State argued that Blissett constructively possessed the marijuana found within the trunk of the vehicle. The theory of constructive possession was explained in Curry v. State, 249 So.2d 414, 416 (Miss.1971), as follows: [T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. ¶ 8. Citing Fultz v. State, 573 So.2d 689 (Miss.1990), Blissett argues that the State failed to prove he was in constructive possession of the marijuana. Fultz was pulled over by an officer for driving erratically and was subsequently arrested. A search of the vehicle he was driving revealed seven and a half ounces of marijuana in the trunk for which Fultz was convicted of possession with an intent to distribute. In reversing Fultz's conviction, we found the evidence insufficient to establish constructive possession where the only incriminating evidence besides Fultz being the driver and sole occupant of the vehicle was that he had a small amount of marijuana on his person at the time of the arrest. ¶ 9. Unlike Fultz, the arresting officer in the instant case testified to smelling a strong, overpowering odor of unburned marijuana as he approached the vehicle and that air fresheners were scattered throughout the vehicle. The officer explained that the odor of the marijuana was so strong because it was a large amount loosely packed in bags, as opposed to vacuum packed. Further, Blissett's nervous demeanor at the time of the stop was inconsistent with a lack of knowledge of the marijuana in the car. We therefore believe the State presented circumstantial evidence showing Blissett knew or should have known of the marijuana's presence in the trunk of the vehicle. ¶ 10. Blissett also argues that the quantity of the evidence alone is insufficient to establish an intent to distribute. However, this Court has held on several occasions that a large quantity of a controlled substance can alone establish an intent to distribute. See, e.g., Boches v. State, 506 So.2d 254, 260 (Miss.1987) (348 pounds of marijuana); Keys v. State, 478 So.2d 266, 268 (Miss.1985) (five grocery bags of marijuana). ¶ 11. The jury observed the quantity of the marijuana, and two narcotics agents estimated the bags together weighed between 40 and 50 pounds. Both also testified that, in their experience as narcotics agents, this quantity is far beyond what a person would keep for personal consumption. Examining the facts in the light most favorable to the State, sufficient evidence was provided to establish Blissett's intent to distribute.",sufficiency of the evidence
+615,2637000,1,5,"[¶ 14] In the section of her brief dedicated to a challenge to the sufficiency of the evidence supporting the conviction, Weidt also asserts several claims that are best characterized as alleged evidentiary errors. We need to address those claims first since they impact any consideration of the evidence in support of Weidt's conviction. The admission of evidence is consigned to the sound discretion of the district court judge. Hodges v. State, 904 P.2d 334, 340 (Wyo.1995). If no objection is posed, then review is under the plain error standard. Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. Yetter v. State, 987 P.2d 666, 668 (Wyo.1999) (quoting Sandy v. State, 870 P.2d 352, 358 (Wyo.1994)); see also Mora v. State, 984 P.2d 477, 480 (Wyo.1999). Mazurek v. State, 10 P.3d 531, 535 (Wyo.2000). [¶ 15] First, Weidt contends that the trial court should have admitted into evidence an order issued on October 4, 1999, setting forth the initial custody and visitation rights between Weidt and Sherard. Weidt contends that the order would have shown that custody, as used in subsection (d), did not reside exclusively with Sherard. Weidt notes that Sherard referred to a court order barring him from entering Weidt's property on numerous occasions in his testimony. She insists that admission would have impeached Sherard's testimony on this point. [¶ 16] At trial, the State introduced into evidence, without objection, a copy of the district court order restricting Weidt's visitation rights with her daughter. Later, defense counsel sought admission of a court order, which apparently arose out of the first custody hearing between Weidt and Sherard. Sherard was recalled to the stand by the defense whereupon defense counsel sought to impeach Sherard on his claim that he was prohibited from entering Weidt's property by court order. The following exchange then took place between the court and defense counsel: The Court: The—[defense counsel], if the only reason you want this in evidence is to demonstrate to the jury that there is no written order of the Court after the September 1, 1999 hearing prohibiting Mr. Sherard from going on Ms. Weidt's property, I do not want to admit the document into evidence, because there's a number of other items contained therein that might provide some confusion. Is there any other purpose? [Defense counsel]: That would be the only purpose[.] The Court: [Prosecutor], do you stipulate and agree that there is no order from the Court in Defendant's Exhibit A that would prohibit Mr. Sherard from going onto Ms. Weidt's premises? [Prosecutor]: We would stipulate, Your Honor. The Court: Okay. You may accept that fact as proved. The Court is going to deny admission of the exhibit into evidence for the reasons stated. (Emphasis added.) Weidt never argued to the district court that the order was offered for any reason other than to impeach Sherard on his claim that a court order prohibited him from entering her property. The prosecutor stipulated that no such order existed. The Court felt that the order contained extraneous material that could create confusion for the jury. Weidt fails to offer us any argument on why admission of the order would not cause confusion to the jury. Instead, she makes an argument—the order could have been used to defeat a claim under subsection (d) that she concealed, harbored or refused to reveal the girl's location—that was not raised by defense counsel during the trial. We will not consider whether the order should have been admitted into evidence on a theory raised for the first time in this Court on appeal. The district court's decision to deny admission of the proffered order was a discretionary act within its authority. [¶ 17] Related to her argument on the admissibility of the order, Weidt argues that even eliciting testimony alluding to the prior judicial rulings in this case was error. She claims that any reference by Sherard to the previous order was reversible error. Relying on our decision in Sheeley v. State, 991 P.2d 136 (Wyo.1999), Weidt contends that testimony appears to quote [the] judge on an ultimate issue invading the province of the jury and depriving her of a fair trial. Essentially, Weidt claims that the references to the previous court orders effectively constituted an expression of opinion on the evidence indicating a possible bias on the part of the trial judge. [¶ 18] Weidt's argument has no merit. Sherard testified that he did not enter Weidt's property to ascertain whether his daughter was there because he believed that he was prohibited from doing so by an order of the court. Sherard offered this testimony solely as an explanation for his actions. We fail to see how this testimony constituted a representation by the judge on the evidence. In Sheeley, the prosecutor asked a witness during cross-examination whether or not an investigator recalled what the victim had been told by a judge during the preliminary hearing regarding her testimony in that proceeding. The investigator responded that he thought the judge cautioned her in regard to perjury. We held that this exchange was reversible error for the obvious reason that it injected possible judicial bias into the trial. 991 P.2d at 139-40. Eliciting the testimony concerning the judge's statement in another proceeding may have allowed the jury to conclude that the trial judge believed the evidence favored a finding of guilt. Id. In that case, the judge, through the prosecutor's line of questioning, was effectively commenting on the weight and quality of the evidence. That is not the situation before us in this case. There is nothing in the transcript or the record indicating that a witness testified about a statement made by the judge in another proceeding. Similarly, there is nothing in the record indicating that the judge made any comment about the testimony or any other evidence in front of the jury that could be considered improper. What the record does show is that Sherard was testifying about his personal belief of what he could or could not do pursuant to a court order. Our decision in Sheeley simply bears no relevance to the situation in this case, and we find no error. [¶ 19] Next, Weidt suggests that the district court should have stricken specific testimony of Sherard relating to a phone call from Weidt where she allegedly stated that he wasn't going to ever see [their daughter] again, that [Weidt] was going to hide her out in the prairie dog fields; and [that Sherard] would never see her again. Weidt describes this testimony as fantastic and incendiary, which was improperly elicited by the prosecutor. Again, Weidt fails to offer any cogent reason why this testimony was improperly solicited or why it should have been stricken by the district court. The testimony is clearly not hearsay. W.R.E. 801(d)(2). Weidt does not offer an analysis pursuant to W.R.E. 403 that the statement's probative value was substantially outweighed by the danger of unfair prejudice beyond attaching labels like fantastic and incendiary to it. Again, Weidt has failed to present a cogent argument, and we will decline to consider her argument any further. [¶ 20] Mixed within her arguments about the district court's handling of the evidence, Weidt manages to offer a contention that the evidence does not support her conviction for interference with custody. The appellate test for sufficiency of evidence is whether a rational trier of fact could have been sufficiently armed by the evidence to find the essential elements of the offense beyond a reasonable doubt. In assessing that issue, we view the evidence in a light most favorable to the state, affording them the benefit of all reasonable inferences to be drawn therefrom. It is not our task, let alone our place, to reweigh the evidence or reexamine the credibility of the witnesses. Nollen v. State, 12 P.3d 682, 684 (Wyo.2000) (quoting Rodriguez v. State, 962 P.2d 141, 148 (Wyo.1998) and Curl v. State, 898 P.2d 369, 375 (Wyo.1995)). [¶ 21] Our review of the evidence indicates a rational trier of fact could have found the essential elements of the offense of interference with custody beyond a reasonable doubt. The essential elements of interference with custody are that Weidt: (1) having no privilege to do so; (2) failed or refused to return a minor to the person entitled to have custody. Sherard had custody of the girl while Weidt had limited visitation rights. Despite the restrictions of her visitations with their daughter, Sherard elected to drop her off so she could visit with Weidt for two hours. When Sherard returned, Weidt and the girl were gone. Sherard located Weidt's van at her home but did not go onto the property because he believed, incorrectly as it turned out, that he could not enter onto it. Nevertheless, Sherard attempted to contact Weidt by phone but never received an answer. Sherard informed law enforcement, which maintained a lookout for Weidt. Several days later, Weidt called Sherard and told him that he was never going to see his child again. For 17 days, Weidt kept the girl with her. A deputy testified that when Weidt was arrested, her van was parked around the back of a friend's house out of view from the street. This is sufficient evidence to support Weidt's conviction. [5]",sufficiency of the evidence
+616,2211681,1,6,"A district court's finding and determination that a defendant's statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993). In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000); State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). Whether jury instructions given by a trial court are correct is a question of law. State v. Bjorklund, supra . To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Brown, 258 Neb. 330, 603 N.W.2d 419 (1999); State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).",standard of review
+617,3134230,1,1,"Defendant argues that the State is not allowed any input when the circuit court determines whether a post-conviction petition is frivolous or patently without merit. Here, the State filed a motion to dismiss before the circuit court determined that the petition was frivolous. Defendant argues that the State's motion to dismiss influenced the circuit court and tainted the circuit court's determination. According to defendant, this cause should be remanded for the appointment of counsel and further consideration of defendant's petition. Section 122--2.1 of the Post-Conviction Hearing Act (the Act) provides: (a) Within 90 days after the filing and docketing of each petition the court shall examine such petition and enter an order thereon pursuant to this Section.  (2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry. (b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122--4 through 122--6. (c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding. (Emphasis added.) 725 ILCS 5/122--2.1 (West 1992). If the petition is not dismissed pursuant to section 122--2.1, section 122--4 provides for the appointment of counsel to indigent defendants. 725 ILCS 5/122--4 (West 1992). Section 122--5 of the Act provides: Within 30 days after the making of an order pursuant to subsection (b) of Section 122--2.1, or within such further time as the court may set, the State shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, the State must file an answer within 20 days after such denial. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. (Emphasis added.) 725 ILCS 5/122--5 (West 1992). Section 122--6 allows the circuit court to hold an evidentiary hearing. 725 ILCS 5/122--6 (West 1992). Pursuant to the Act, a post-conviction proceeding that does not involve the death penalty has three distinct stages. In the first stage, the defendant files a petition and the circuit court determines whether it is frivolous or patently without merit. At this stage, the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. Instead, the circuit court considers the petition independently, without any input from either side. To survive dismissal at this stage, a petition need only present the gist of a constitutional claim. People v. Porter, 122 Ill. 2d 64, 74 (1988). This is a low threshold and a defendant need only present a limited amount of detail in the petition. At this stage, a defendant need not make legal arguments or cite to legal authority. Porter, 122 Ill. 2d at 74. The Act provides that the petition must be supported by affidavits, records, or other evidence supporting its allegations or the petition shall state why the same are not attached. 725 ILCS 5/122--2 (West 1992). If the circuit court does not dismiss the petition pursuant to section 122--2.1, it is then docketed for further consideration. The proceeding then advances to the second stage. At the second stage, the circuit court appoints counsel to represent an indigent defendant. 725 ILCS 5/122--4 (West 1992). Counsel may file an amended post-conviction petition. Also, at this second stage, the Act expressly provides that the State may file a motion to dismiss or answer to the petition. 725 ILCS 5/122--5 (West 1992). Section 122--5 specifically contemplates that the State will file a motion to dismiss or answer after the circuit court has evaluated the petition to determine if it is frivolous. If the circuit court does not dismiss or deny the petition, the proceeding advances to the third stage. At this final stage, the circuit court conducts an evidentiary hearing. 725 ILCS 5/122--6 (West 1992). If the circuit court dismisses the petition or denies post-conviction relief at any stage, the defendant may appeal. Several appellate decisions have considered the situation where the State files a motion before the circuit court has decided whether the petition is frivolous. See, e.g., People v. Merritte, 225 Ill. App. 3d 986 (1992); People v. Mitchell, 218 Ill. App. 3d 401 (1991). These courts have consistently found that the filing of a motion at this stage is premature and improper under the Act. See, e.g., People v. Oury, 259 Ill. App. 3d 663, 668 (1994). The sections of the Act, when considered collectively, do not authorize the filing of a motion to dismiss at the first stage. The mere early filing of a motion or responsive pleading by the State, however, does not per se contaminate the circuit court's determination pursuant to section 122--2.1. See, e.g., Mitchell, 218 Ill. App. 3d at 402-03. The premature filing of a motion to dismiss does not prevent the circuit court from independently evaluating whether a post-conviction petition is frivolous or patently without merit, as required by the Act. Rather, reversal is required where the record shows that the circuit court sought or relied on input from the State when determining whether the petition is frivolous. Compare People v. Barker, 258 Ill. App. 3d 323 (1994) (reversal required where the trial judge requested argument from both parties); Merritte, 225 Ill. App. 3d 986 (reversal required where the State orally argued its motion to dismiss at length to the trial judge and where the judge stated that dismissal was based, in part, on the reasons given by the State at oral argument); People v. Clark, 239 Ill. App. 3d 546 (1992) (reversal required where the State presented oral argument, the State used case law to support its oral argument, and the trial judge said that he had relied on the State's arguments); People v. Rutkowski, 225 Ill. App. 3d 1065 (1992) (reversal required where the trial judge heard argument from the State on its oral motion to strike); People v. Novak, 200 Ill. App. 3d 189 (1990) (reversal required where the trial judge conducted a hearing on the motion to dismiss and expressly indicated that he was granting the State's motion); People v. Magdaleno, 188 Ill. App. 3d 384 (1989) (reversal required where the trial judge addressed the merits of the State's motion to strike); with People v. Woods, 239 Ill. App. 3d 559 (1992) (no reversal where the motion was short and cited only one case, the trial judge did not hear any argument on the motion, and the order showed an independent analysis); Mitchell, 218 Ill. App. 3d 401 (no reversal where the motion was terse, the trial judge did not hear any argument from the State, and the dismissal order showed a detailed analysis). We agree with the approach of these appellate decisions. Section 122--2.1 of the Act authorizes the trial judge to make an initial independent evaluation of a post-conviction petition. 725 ILCS 5/122--2.1 (West 1992). We ordinarily presume that the trial judge knows and follows the law unless the record indicates otherwise. See People v. Terrell, 132 Ill. 2d 178, 219 (1989). Where the record gives no indication that the trial judge sought input from the State or relied on the motion to dismiss, we presume that the judge acted properly. In this case, defendant acknowledges that reversal is required only if the record shows that the circuit court relied on or was influenced by the motion to dismiss. Defendant argues, however, that the order shows that the circuit court did rely on the motion to dismiss. Defendant emphasizes four purported similarities between the motion to dismiss and the dismissal order to show this reliance. First, defendant argues that the circuit court erroneously relied on the principle of res judicata, which was raised in the State's motion, to bar any attack on the sufficiency of the evidence presented at trial. Defendant contends that she did not challenge the sufficiency of the evidence in her post-conviction petition. Second, defendant argues that the circuit court erroneously relied on waiver in connection with her ineffective- assistance claim. According to defendant, waiver is inappropriate here because the same counsel represented defendant both at trial and on appeal. Defendant contends that the trial judge would not have mentioned waiver if that argument had not been contained in the motion to dismiss. Third, defendant argues that the circuit court dismissed the petition without an evidentiary hearing, which is what the State sought in its motion. Defendant argues that the circuit court should not consider whether she is entitled to a hearing at this stage of the proceeding. Fourth, defendant argues that the circuit court found that the petition failed to present a substantial showing of violation of Defendant's constitutional rights, which is similar to language used by the State in its motion. Again, defendant argues that this language is used when considering whether a defendant is entitled to an evidentiary hearing and that this language would not have been used absent the motion. The purported similarities identified by defendant are too tenuous to show reliance on the motion to dismiss. First, with respect to res judicata, an examination of the post-conviction petition shows that the allegations in the petition do generally attack the sufficiency of the circumstantial evidence presented at trial. Second, with respect to waiver, defendant may be correct that the circuit court overlooked counsel's representation at trial and on appeal. Waiver aside, however, the circuit court specifically found that the ineffective-assistance claim was frivolous because defendant failed to submit affidavits from either Rachel Lauer or Misty Robards, which was not suggested by the State. With respect to defendant's third and fourth arguments, some of the language in the order is similar to the language in the motion, but, as the appellate court noted, the similar language involves general terminology that is common in post-conviction proceedings. The circuit court denied the petition without an evidentiary hearing because defendant requested a hearing in her petition. Most significantly, the trial judge specifically identified the materials on which he relied in making his determination. He stated that he had reviewed the post-conviction petition, the affidavits, the trial transcript, and the decision of the appellate court on direct appeal. No mention was made of the State's motion to dismiss. No hearing was held. The analysis in the dismissal order recited the facts of the case and was more detailed than the reasons presented in the motion to dismiss. In the order, the trial judge specifically found that the petition was frivolous and patently without merit, which is the proper statutory standard for dismissal. Accordingly, we reject defendant's argument. Defendant also argues that the circuit court erred in substantively finding the petition frivolous or patently without merit. Defendant argues that the circuit court erred in dismissing the petition based on defendant's failure to include an affidavit from either Rachel Lauer or Misty Robards. Defendant concedes that she failed to raise this argument in the appellate court and in the petition for leave to appeal to this court. We find the issue waived. See People v. Schott, 145 Ill. 2d 188, 201 (1991); Federal Deposit Insurance Corp. v. O'Malley, 163 Ill. 2d 130, 154 (1994). Finally, defendant argues that the prosecutor made certain improper comments during closing argument. Defendant argues that trial counsel was ineffective in failing to object to them and that the comments violated due process. Essentially, the prosecutor told the jury that it had to accept certain statements of witnesses as true because they were unrebutted. This argument was not raised in the post-conviction petition. Section 122--3 of the Act provides that [a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived. 725 ILCS 5/122--3 (West 1992). In addition, this issue also was not raised on appeal to the appellate court or in the petition for leave to appeal to this court. Again, we find the issue waived. For the foregoing reasons, the judgment of the appellate court is affirmed. Affirmed.",analysis
+618,1132307,1,1,"Defendant was convicted by a jury of and sentenced by the trial court for Escape in the Second Degree, Reckless Driving and Attempting to Elude a Police Officer. The charges stemmed from an encounter between defendant and a police officer, the details of which both defendant and the officer testified to at trial. The officer testified that he stopped defendant as a suspected drunken driver; when the officer told defendant he was under arrest, defendant drove away at high speed; defendant was subsequently apprehended in his driveway where the officer attempted to handcuff defendant; defendant struck the officer repeatedly with his fists, causing the officer to defend himself with his nightstick; defendant ran into his residence and the officer, accompanied by several recently arrived police officers, forcibly entered the residence, but was unable to find defendant. Defendant testified that he was stopped by the officer; while stopped, defendant's wife called him on his radio communication pager and asked that he come home immediately; defendant asked the officer to follow him home a few blocks away so that defendant could respond to his wife's page; upon arrival at his house, the officer unexpectedly attempted to handcuff him, threatened to mace him and then beat him with a nightstick; defendant escaped into his house, pursued by the officer, who banged on the door and threatened to break it down; defendant then hid outside the home from the officer for several hours. Defendant and the officer were the only two witnesses to the incident surrounding the charges of which defendant was convicted. Consequently, the credibility of the officer was a critical prosecutorial element of the trial. Defendant attempted to cross-examine the officer regarding the officer's knowledge of internal police department disciplinary measures available against an officer who uses excessive force at an arrest scene. The alleged purpose of the questioning was to show that the officer had a personal interest in the outcome of the case and that his version of the events might be slanted because of his desire to avoid departmental discipline. The trial judge disallowed the questioning because no complaint of excessive force had been filed against the officer and because the resulting evidence would leave the jury with an incorrect inference that defendant had filed such a complaint. The Court of Appeals held the exclusion of the testimony was an abuse of discretion and reversed and remanded for a new trial. State v. Hubbard, 61 Or. App. 350, 657 P.2d 707 (1983). In deciding whether the trial court ruling was correct, we first review how the proffered evidence developed on cross-examination. Defense counsel asked the officer in the presence of the jury: Q Now, if a Portland police officer acts unreasonably and uses too much force at an arrest scene, are there internal procedures regarding that question? A Yes. [1] Q And an officer who did something like that would have to do what — stand a board trial or — by the department? [PROSECUTOR]: Your Honor, I'd have to object to this.      THE COURT: I sustain the objection. [DEFENSE COUNSEL]: May I take that matter up? The following colloquy took place outside the presence of the jury: THE COURT:    The second question you asked was the question: `Whenever an officer uses excessive force' — you started asking that question, and it's perfectly proper, [defense counsel], if Mr. Hubbard — had he filed a complaint with the Police Department, you could ask him then and proceed with the inquiry, but just to make a broad statement about some officer being investigated and what is the procedure — [DEFENSE COUNSEL]: May I be heard? THE COURT: Certainly. [DEFENSE COUNSEL]: One might always test, by use of a witness, particularly in a situation like this. An officer is presumed to have no bias; he's just a man out there. THE COURT:    Just proceed with what question you were going to ask him, and I'll make a ruling. Q (By [defense counsel]) Are you aware of internal police procedure regarding what happens when a police officer uses too much force out on the street against a citizen? THE COURT: Answer. THE WITNESS: Yes, I am. Q (By [defense counsel]) And if those charges are sustained against an officer, are you aware of what could happen to an officer? A Yes. Q What is that? A There are varying things that can happen. Internal Affairs can decide to turn the investigation over to the detectives who may want to do it like a criminal proceeding, because, if Internal Affairs interviews me knowing that what I say is going to be used against me in Court because — or any officer — because it would be coerced out of me or they could just send it to the Chief, and the Chief can decide on discipline, and the union can decide to appeal and it can go to arbitration. There's just all kinds of things that can happen. [DEFENSE COUNSEL]: Thank you. [PROSECUTOR]: I would have one question on this offer of proof. Do you [police officer] know if Mr. Hubbard ever lodged an Internal Affairs complaint against you? THE WITNESS: I know that he has not, unless he's done it today   . [PROSECUTOR]: Thank you.",facts
+619,2162037,1,3,"At the outset, appellee contends, but does not strenuously press the argument that the trial court, and in turn this court, is without jurisdiction to entertain this appeal inasmuch as the trial court did not properly have jurisdiction to decide the subpoena enforcement issue. [6] The government argues in its brief that appellant's subpoena is directed at a federal employee and seeks information that the employee learned only in this capacity. Thus, the government argues, the matter is inherently an action against the United States which is protected by sovereign immunity from state court review of its decision to resist the subpoena. Brief of Appellee, p. 20 note 14, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467-69, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Houston Business Journal v. Office of the Comptroller, 86 F.3d 1208, 1211-12 & n. 3 (D.C.Cir.1996); accord Edwards v. Department of Justice, 43 F.3d 312, 316, 317 & n. 6 (7th Cir.1994); Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989); Sharon Lease Oil Co. v. F.E.R.C., 691 F.Supp. 381, 383 (D.D.C.1988). See 47 C.F.R. § 0.463 which prohibits any F.C.C. employee from responding to a subpoena for records or testimony concerning F.C.C. affairs unless expressly authorized to do so by the agency. According to appellee, this enforcement action could only have been brought in federal court. We decline to decide the question whether the trial court had jurisdiction to decide the motion to quash the subpoena. The order at issue in this case was a minimal exercise of jurisdiction as distinguished from an order to enforce the subpoena or to sanction Mr. Andary or compel production of F.C.C. documents. Moreover, appellee's effort to obtain protection from the Superior Court from its own subpoena was in response to appellant's invocation of the jurisdiction of the trial court by service of the subpoena upon Mr. Andary. Superior Court rules permit appellant to do this without prior court authorization. [7] Super. Ct. Civ. R. 45. Appellant therefore issued a command of the Superior Court that, without more, required Mr. Andary to appear at a deposition and to produce certain documents unless he objected and obtained protection from this obligation from the issuing court. Rule 45(c)(3)(A)(iii). An issue left undecided by this opinion, then, is whether the trial court's order granting the motion to quash is qualitatively any different from one declaring that as an Article I federal court, it lacked jurisdiction over the person of an officer of the federal government. Where, as here, the answer to a jurisdictional issue is a very complicated one and where the merits of the underlying claim [the motion to quash] can easily be resolved, this Court has held that we do not need to consider the jurisdictional issue. Stevens v. Quick, 678 A.2d 28, 31 (D.C.1996). See also, Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976) (the Supreme Court declined to resolve difficult questions of jurisdiction when the case could alternatively be resolved on the merits,) but see Steel Co. v. Citizens for a Better Environment, ___ U.S. ___, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).",jurisdiction
+620,1848277,1,2,"Even considering this evidence obtained during the several questioned seizures which we have concluded were legal, the appellant strenuously contends that there is insufficient evidence to sustain the conviction. It is conceded that the state's entire case is circumstantial. Even so, we conclude that the circumstantial evidence is most convincing. In State v. Johnson , [16] we said: . . . A notion exists that all circumstantial evidence should be viewed with distrust because it can establish, at most, only a possibility of guilt. Such an opinion, based on the theory that circumstantial evidence can only be the basis for conjecture and is impotent to correctly indicate or to satisfactorily establish the facts upon which guilt must rest to the required degree of certainty, is unwarranted. It is true that circumstantial evidence in many cases may be so weak as not to meet the standard of proof. But circumstantial evidence may be and often is stronger and more satisfactory than direct evidence; Schwantes v. State (1906), 127 Wis. 160, 106 N. W. 237, and Spick v. State (1909), 140 Wis. 104, 121 N. W. 664, . . . . [17] In Johnson we also said, citing Kollock v. State, [18] that the principles applicable to circumstantial evidence are: . . . 1. That each of the several circumstances upon which the conclusion of guilt necessarily depends must be proved beyond a reasonable doubt; and 2. they must not only point with moral certainty to the guilt of the defendant, but must exclude to a moral certainty every other reasonable hypothesis. The rule does not require the exclusion of all other possible hypothesis or even probabilities, but only reasonable hypotheses of innocence. (Emphasis added.) [19] On this issue in this appeal it is this court's duty to determine whether the circumstantial evidence is sufficient to sustain the finding of guilt. [20] This court as an appellate court does not and cannot retry the case on the facts in the record to determine if it is convinced of defendant's guilt beyond a reasonable doubt. The question before this court is `whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt.' [21] In other words, as we have often stated, before this court will reverse a conviction because of insufficiency of the evidence, . . . the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as `beyond a reasonable doubt.' [22] This was a ten-day trial. We have examined the record in detail, have considered the arguments of both counsel and their exhaustive analysis of the maze of details in this circumstantial case. We are satisfied that the evidence is sufficient to sustain the conviction. There are only two phases of the proof which we choose to comment on further. They are the questions of venue and the relationship of the victim and appellant.
+Appellant contends that there was insufficient evidence to prove that the venue of the trial was properly in Fond du Lac county. Venue is not an element of the crime of murder but merely refers to the place of trial. It is a matter of procedure and designates the geographic division of the state in which the action is to be tried. [23] Nevertheless, venue, in Wisconsin, must be proved beyond a reasonable doubt. [24] By sec. 956.01 (1), Stats., criminal actions are to be tried in the county where the crime was committed except as otherwise provided in that section. Sub. (3) of sec. 956.01, Stats., provides: . . . If a wound or other violence is inflicted . . . in one county and causes death which ensues in another county, the crime may be prosecuted in either county. Sub. (4) of sec. 956.01, Stats., provides: . . . If such wound or other violence is inflicted . . . without this state and death ensues therefrom in this state, the crime may be prosecuted and sentence be imposed in the county where the death occurs. Thus in order to establish venue in Fond du Lac county, it must be proved beyond a reasonable doubt that either (a) McKinney was shot in Fond due Lac county, or (b) McKinney died in Fond du Lac county. Appellant contends that the evidence is insufficient to prove either. It is undisputed that McKinney's body was found on the Dombrowski farm located in Fond du Lac county. It was also established that the cause of death was a bullet wound to the head with secondary brain damage and hemorrhage. In addition, the pathologist who performed the autopsy on the body testified that the victim probably died about an hour after being shot, that the body would stop bleeding at death, and that although the human body normally contains approximately 7,000 cc's of blood, the victim's body contained only 70 cc's. Also, it was established that there was no blood in the area where the victim's body was found and that the victim had type O blood. Furthermore, it was established that the time of death was sometime between the hours of 1 a. m. and 1 p. m. on September 11, 1967. From 4 a. m. until after 6 a. m., a red car was parked next to the disabled Dodge on the Dombrowski farm. The Dodge had been continuously parked on the farm from September 10, 1967, until after the body was found. The backseat of the Dodge was saturated with a massive quantity of type O human blood. In fact there was so much blood that it had seeped down onto the lower frame of the car. From this evidence the jury was eminently justified in concluding: that the victim was shot in the back seat of the disabled Dodge in Fond du Lac county sometime between the hours of 1 a. m. and 1 p. m. on September 11, 1967; that the victim thereafter hemorrhaged profusely until he died about an hour after being shot; and that the body, which after death stopped bleeding, was then removed to the dump area on the farm. The white sock which was found in the back seat of the Dodge and its mate which was found in the area where the body was found, although it was not established that these belonged to neither the appellant or the victim, are probative to connect the back seat of the Dodge and the dump. The portions of the rear floor mat, Exhibits Nos. 13 and 32, that matched and fit together are probative of the fact that the part of the floor mat was moved from the 1960 Dodge to the trunk of the Thunderbird. The defense attempted to explain the huge quantity of type O blood found in the Dodge by having appellant's wife testify that her daughter had suffered nosebleeds in the Dodge. This explanation would seem to be patently incredible when it is recognized that the daughter's blood type was never established, that the Dodge had been disabled and parked on the farm in Fond du Lac since September 10th, and that the blood on some of the items was not yet dry when the body was found. These above factors inexorably lead to the conclusion that the victim was murdered in Fond du Lac county beyond any reasonable doubt.
+The closest the state came to directly showing that the appellant and the victim were ever together or even knew each other was through the testimony of McKinney's sister and girl friend. Both testified that they dropped McKinney off at a tavern in Chicago during the morning of September 9, 1967. It was established that the appellant was in the tavern at this time. Although no witness was produced who testified as to seeing the victim and appellant together, it could be inferred from the other testimony that they were together at the tavern. However, despite the thinness of the state's evidence of prior relationship of McKinney and the appellant, the circumstances surrounding the finding of McKinney's body on the Dombrowski farm and the many items of physical evidence tying in the 1960 Dodge and Thunderbird with the homicide, all point to the inevitable conclusion that Dombrowski murdered McKinney and left his body at the Dombrowski farm. Appellant raises two other legal issues concerning the conduct of his trial, each of which deserves comment here and neither of which presents error that would compel us to order a new trial. These issues are: Was the testimony of Attorney Schloemer violative of appellant's statutory right to have communications between attorney and client privileged from disclosure unless waived by the client? (III, infra ) Were the remarks made by the prosecuting attorney during closing argument so prejudicial as to require a mistrial? (IV, infra )",sufficiency of the evidence
+621,6353395,1,1,"[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirm­atively show that the defendant is entitled to no relief. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).",standard of review
+622,2831597,1,3,"Before turning to the questions this case presents, it is helpful to clarify the questions it does not. This case does not involve a public employer seizing an employee's private cell phone to search for public records. It does not involve a records request for every piece of data on a smartphone. And it does not involve a citizen suing a public employee for access to the employee's phone. Instead, this is an action against an agency for two types of records that, while potentially related to the agency's public business, are in the exclusive control of the agency's employee. This case asks whether those records can nonetheless be public records the agency must disclose and, if so, whether there are limits to how the agency may search for and review those records. 6 Nissen v. Pierce County, No. 90875-3 With that in mind, we first interpret the PRA to determine if a record of government business conducted on a private cell phone is a public record, as the PRA defines the term. We then apply that definition to the specific records herethe call and text message logs and text messages. Finally, we address the mechanics of searching for and obtaining public records held by or in the control of public employees. As explained below, we hold that text messages sent or received by Lindquist in his official capacity can be public records of the County, regardless of the public or private nature of the device used to create them; and we order Lindquist to obtain, segregate, and produce those public records to the County. I. THE PRA REACHES EMPLOYEE-OWNED CELL PHONES WHEN USED FOR AGENCY BUSINESS Our analysis begins with the text of the PRA. By its plain language, the PRA applies when an 'agency' is requested to disclose 'public records.' Dawson v. Daly, 120 Wn.2d 782, 788, 845 P.2d 995 (1993). Because those are both defined terms, we must interpret the statutory definitions to decide if records of public business an employee conducts on his or her private cell phone are public records. Senate Republican Campaign Comm. v. Pub. Disclosure Comm 'n, 133 Wn.2d 229, 239, 943 P.2d 1358 (1997). The PRA defines agency very broadly as all state agencies and all local agencies. State agency includes every state office, department, division, bureau, board, commission, or other state agency. Local agency includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose 7 Nissen v. Pierce County, No. 90875-3 district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency. RCW 42.56.010(1). This definition in turn affects what information is a public record since it is incorporated into the statutory definition of that term. Under the PRA, a public record is any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. RCW 42.56.010(3) (emphasis added). The definitions of agency and public record are each comprehensive on their own and, when taken together, mean the PRA subjects virtually any record related to the conduct of government to public disclosure. 4 0 'Neill, 170 Wn.2d at 147. This broad construction is deliberate and meant to give the public access to information about every aspect of state and local government. See LAws OF 1973, ch. 1, § 1(11 ). As we so often summarize, the PRA is a strongly worded mandate for broad disclosure of public records. Yakima County v. Yakima Herald-Republic, 170 Wn.2d 775,791,246 P.3d 768 (2011) (quoting Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007) (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978))). 4 Disclosing that a public record exists in response to a request does not mean the record will ultimately be produced. Agencies must consider whether any applicable exemption precludes production of part or all of a record. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120 (2010). 8 Nissen v. Pierce County, No. 90875-3 A. Agency Employees Working within the Scope of Employment Create Public Records Despite that mandate, the County argues public employees can avoid the PRA simply by using a private cell phone, even if they use it for public business and even if the same information would be a public record had they used a government-issued phone instead. 5 The County finds this large gap in the PRA by isolating the statute's definition of agency, which does not expressly refer to individual employees as agencies. RCW 42.56.01 0(1 ). Since county employees like Lindquist are not literally a county, the County argues its employees and the records they control are completely removed from the PRA's scope. While that reasoning may have superficial appeal, it misses the central question here. We cannot interpret statutory terms oblivious to the context in which they are used. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10-11, 43 P.3d 4 (2002). As this case does not ask if a public employee is an agency with independent obligations separate from those the PRA imposes on the employer, interpreting agency in isolation is unhelpful. Nissen's request was directed at the County, not Lindquist. 6 Our task instead is to decide if records that a public 5 The County admits that this is the natural result of its interpretation of the PRA. Wash. Supreme Court oral argument, Nissen v. Pierce County, No. 90875-3 (June 11, 2015), at 3 min., 4 sec., and 6 min., 57 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. 6 Whether an elected official is independently subject to the PRA is an unsettled question. See Bldg. Indus. Ass 'n of Wash. v. McCarthy, 152 Wn. App. 720, 746, 218 P.3d 196 (2009). Here, 9 Nissen v. Pierce County, No. 90875-3 employee generates while working for an agency are public records that the agency must disclose. Thus we must interpret the statutory definitions of agency and public record together, keeping in mind the purpose those definitions are intended to further. See Hearst Corp., 90 Wn.2d at 128. One characteristic of a public record is that it is prepared, owned, used, or retained by any state or local agency. RCW 42.56.010(3). The County is correct that every agency the PRA identifies is a political body arising under law (e.g., a county). But those bodies lack an innate ability to prepare, own, use, or retain any record. They instead act exclusively through their employees and other agents, and when an employee acts within the scope of his or her employment, the employee's actions are tantamount to the actions of the [body] itself. Houser v. City of Redmond, 91 Wn.2d 36, 40, 586 P.2d 482 (1978) (as to cities); Hailey v. King County, 21 Wn.2d 53, 58, 149 P.2d 823 (1944) (as to counties). Integrating this basic common law concept into the PRA, a record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record prepared, owned, used, or retained by [a] state or local agency. RCW 42.56.010(3). however, Nissen did not sue Lindquist, either in his individual or official capacity. She instead sued the County, alleging that Lindquist's use of his cell phone resulted in public records of the County; Lindquist is a party only because he intervened to enjoin disclosure. The relevant question then is not whether Lindquist is individually subject to the PRA but, rather, whether records he handles in his capacity as the prosecutor are county public records. 10 Nissen v. Pierce County, No. 90875-3 That interpretation is the only logical one considering how agencies conduct business and carry out their obligations under the PRA. See Dawson, 120 Wn.2d at 789 (public records were prepared by the prosecutor's office because two employees created and compiled them). If the PRA did not capture records individual employees prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operation of government. Such a result would be an affront to the core policy underpinning the PRA-the public's right to a transparent government. That policy, itself embodied in the statutory text, guides our interpretation of the PRA. RCW 42.56.030; LAWS OF 1973, ch. 1, § 1(11); Hearst Corp., 90 Wn.2d at 128. B. The PRA Captures Work Product on Employee Cell Phones With that understanding, it is clear that an agency's public records include the work product of its employees. And we find nothing in the text or purpose of the PRA supporting the County's suggestion that only work product made using agency property can be a public record. To the contrary, the PRA is explicit that information qualifies as a public record regardless of [its] physical form or characteristics. RCW 42.56.01 0(3 ). In 0 'Neill we held that a city official stored a public record on a private computer in her home by using the computer for city business, 170 Wn.2d at 150, which is consistent with the idea that employees can use their own property and still be within the scope of their employment. 11 Nissen v. Pierce County, No. 90875-3 Dickinson v. Edwards, 105 Wn.2d 457, 467-68, 716 P.2d 814 (1986). There is no reason to treat cell phones differently. We hold that records an agency employee prepares, owns, uses, or retains on a private cell phone within the scope of employment can be a public record if they also meet the other requirements ofRCW 42.56.010(3). Applying the PRAto employee cell phone use is not new. Though an issue of first impression in this court, many state and local agencies implementing the PRA already conclude that using a private cell phone to conduct public business can create a public record. Over the last several years, agencies have begun adopting policies about private cell phone use and advising employees of the agencies' obligation to preserve all public records. Just as examples: • Employees utilizing cell phones for City business must not utilize written cell phone capabilities such as text messaging or email for City business unless such phone is synchronized with the City's computer system so that such electronic records can be maintained according to the State records retention requirements. CITY OF PROSSER, PERSONNEL POLICY MANUAL 32 (2009) (Policy 403: Cell Phone Allowance). • All county business generated on personal mobile devices are subject to the Public Records Act. ... Text messages sent and received on a personal mobile device are not stored in any other form. Employees shall not use texting for any County business. THURSTON COUNTY ADMINISTRATIVE MANUAL (2012) § 10 (Personal Mobile Device Policy). • Employees should be aware that work-related texts and voice messages on cell phones are public records subject to the Public Records Act. Employees have a duty to maintain such records in 12 Nissen v. Pierce County, No. 90875-3 accordance with the Washington Local Government Record Retention Schedules. CITY OF GRANDVIEW, PERSONNEL POLICY MANUAL 88 (2013) (use of personal cellular telephones to conduct city business), http://www.grandview.wa.us/wp-content/uploads/2013/03/ Personnel-Policy-Manuall.pdf. These policies are comparable to many others around the state and are consistent with the attorney general's understanding of the PRA. See WAC 44-14-03001(3). While these interpretations do not bind us, 0 'Neill, 170 Wn.2d at 149, they discredit the County's assertion that private cell phone use has always been treated as outside the PRA. Similarly unpersuasive is the County's warning that every work-related personal communication is now a public record subject to disclosure. Traditional notions of principal-agency law alleviate this concern. For information to be a public record, an employee must prepare, own, use, or retain it within the scope of employment. An employee's communication is within the scope of employment only when the job requires it, the employer directs it, or it furthers the employer's interests. Greene v. St. Paul-Mercury Inde.m. Co., 51 Wn.2d 569, 573, 320 P.2d 311 (1958) (citingLunz v. Dep 't ofLabor &Indus., 50 Wn.2d 273, 310 P.2d 880 (1957); Roletto v. Dep 't Stores Garage Co., 30 Wn.2d 439, 191 P.2d 875 (1948)). This limits the reach of the PRA to records related to the employee's public responsibilities. For instance, employees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on 13 Nissen v. Pierce County, No. 90875-3 social media. Nor do they typically act within the scope of employment by creating or keeping records purely for private use, like a diary. None of these examples would result in a public record prepared, owned, used, or retained by the employer agency in the usual case. 7 Agencies can act only through their employee-agents. With respect to an agency's obligations under the PRA, the acts of an employee in the scope of employment are necessarily acts of the state and local agenc[ies] under RCW 42.56.010(3). We therefore reject the County's argument that records related to an employee's private cell phone can never be public records as a matter of law. Instead, records an employee prepares, owns, uses, or retains within the scope of employment are public records if they meet all the requirements of RCW 42.56.010(3). This inquiry is always case- and record-specific. Cf Predisik v. Spokane Sch. Dist. No. 81, 182 Wn.2d 896, 906, 346 P.3d 737 (2015). II. APPLYING THE PRATO THE CALL AND TEXT MESSAGE LOGS AND TEXT MESSAGES We next apply RCW 42.56.010(3) to the records at issue here-the call and text message logs and text messages. To be a public record under RCW 42.56.010(3), information must be (1) a writing (2) related to the conduct of 7 We offer these generic illustrations in response to hypotheticals raised by the County and some amici. Of course, the facts of every case vary. We do not intend these illustrations to have precedential effect. 14 Nissen v. Pierce County, No. 90875-3 government or the performance of government functions that is (3) prepared, owned, used, or retained by a state or local agency. Confederated Tribes of the Chehalis Reservation v. Johnson, 135 Wn.2d 734,746, 958 P.2d 260 (1998). The first element is not in dispute-the parties agree that the call and text message logs and text messages are writings under the PRA. See RCW 42.56.010(4). The remaining two elements are discussed in turn.
+Public records must relat[ e] to the conduct of government or the performance of any governmental or proprietary function. RCW 42.56.010(3). This language casts a wide net. In Confederated Tribes, for example, we held that records of money paid by Indian tribes into a common fund related to the conduct of the government even though the records related primarily to tribal gaming operations. 135 Wn.2d at 739-43. Since the state received money from the common fund, we determined tribal contributions impacted state government and therefore records of those contributions were public records. Id. at 748. We adopted a similarly broad interpretation in Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980), which involved medical records ofpatients hospitalized at a state-owned facility. The records there unquestionably related to individual patients and did not explicitly discuss government operations, but we still held that the records relat[ ed] to the conduct of government under RCW 15 Nissen v. Pierce County, No. 90875-3 42.56.010(3). From them the public could learn about the administration of health care services, facility availability, use and care, methods of diagnosis, analysis, treatment and costs, all of which are carried out or relate to the performance of a governmental or proprietary function. Oliver, 94 Wn.2d at 566. Together these cases suggest records can qualify as public records if they contain any information that refers to or impacts the actions, processes, and functions of government. 8 B. Records Prepared, Owned, Used, or Retained by an Agency As explained previously, a public record must also be prepared, owned, used, or retained by an agency, which includes an agency employee acting within the scope of employment. But the parties still quarrel over the meaning of these verbs, which requires that we further interpret RCW 42.56.010(3). Statutory interpretation starts with the plain meaning of the language; the plain meaning controls if it is unambiguous. Campbell, 146 Wn.2d at 11-12. We may use a dictionary to discern the plain meaning of an undefined statutory term. HomeStreet, Inc. v. Dep 't of Revenue, 166 Wn.2d 444,451,210 P.3d 297 (2009) (citing Garrison v. Wash. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1996)). 8 It is worth repeating that records an employee maintains in a personal capacity will not qualify as public records, even if they refer to, comment on, or mention the employee's public duties. 16 Nissen v. Pierce County, No. 90875-3 Prepared. Prepare is defined as to put together; to MAKE, PRODUCE; to put into written form. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1790 (2002). This interpretation is consistent with previous cases that treat preparing a record as creating it. See Dawson, 120 Wn.2d at 787 (agency prepared record by creat[ing] one ofthe files); Oliver, 94 Wn.2d at 566 (records of patient's hospitalization prepared by the hospital). Owned. To own a record means to have or hold [it] as property. WEBSTER's, supra, at 1612; see also 0 'Neill v. City ofShoreline, 145 Wn. App. 913, 925, 187 P.3d 822 (2008). Used. We previously addressed what it means for an agency to use a record. We broadly interpreted the term in Concerned Ratepayers Ass 'n v. Pub. Uti!. Dist. No. 1 of Clark County, 138 Wn.2d 950, 960,983 P.2d 635 (1999), holding that the critical inquiry is whether the requested information bears a nexus with the agency's decision-making process. A record that is prepared and held by a third party, without more, is not a public record. But if an agency evaluat[es], review[s], or refer[ s] to a record in the course of its business, the agency uses the record within the meaning of the PRA. Id. at 962. Retained. To retain a record means to hold or continue to hold [it] in possession or use. WEBSTER'S, supra, at 1938. 17 Nissen v. Pierce County, No. 90875-3 C. The Text Messages Are Potentially Public Records; the Call and Text Message Logs Are Not We now apply those definitions to decide if the complaint sufficiently alleges that the call logs and text messages are public records. Absent an allegation that the County used the call and text message logs, the logs in this case are not public records. The call and text message logs were prepared and retained by Verizon, and Nissen does not contend that the County evaluated, reviewed, or took any other action with the logs necessary to use them. Concerned Ratepayers, 138 Wn.2d at 962. Though they evidence the acts of a public employee, the call and text message logs played no role in County business as records themselves. We hold that the complaint fails to allege the call and text message logs are public records of the County within the meaning of RCW 42.56.010(3) because the County did nothing with them. We reach a different conclusion as to text messages. Nissen sufficiently alleges that Lindquist sent and received text messages in his official capacity to take actions retaliating against her and other official misconduct. CP at 14. When acting within the scope of his employment, Lindquist prepares outgoing text messages by putting them into written form and sending them. Similarly, he used incoming text messages when he reviewed and replied to them while within the scope of employment. Since the County and Lindquist admit that some text 18 Nissen v. Pierce County, No. 90875-3 messages might be work related, the complaint sufficiently alleges that those messages meet all three elements of a public record under RCW 42.56.010(3). Transcripts of the content of those text messages are thus potentially public records subject to disclosure, consistent with the procedure discussed below. III. SEARCHING FOR PUBLIC RECORDS WITHIN AN EMPLOYEE'S CONTROL We finally turn to the mechanics of searching for and obtaining public records stored by or in the control of an employee. The County and Lindquist suggest that various provisions of the state and federal constitutions categorically prohibit a public employer from obtaining public records related to private cell phone use without consent. 9 Because an individual has no constitutional privacy interest in a public record, 10 Lindquist's challenge is necessarily grounded in the constitutional rights he has in personal information comingled with those public records. We are mindful that today's mobile devices often contain a 'wealth of detail about [a person's] familial, political, professional, religious, and sexual associations.' State v. Hinton, 179 Wn.2d 862, 869, 319 P.3d 9 (2014) (alteration in original) (quoting United States v. Jones, 565 U.S._, 132 S. Ct. 945, 955, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)). As nearly two-thirds of Americans can 9 They primarily cite to the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. 10 See Nixon v. Adm 'r of Gen. Servs., 433 U.S. 425, 457, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) (noting public officials have constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity (emphasis added)). 19 Nissen v. Pierce County, No. 90875-3 now communicate, access the Internet, store documents, and manage appointments on their smartphone, cell phones are fast becoming an indispensable fixture in people's private and professional lives. Text messaging is the most widely used smartphone feature; e-mail is not far behind. Aaron Smith, US. Smartphone Use in 2015, PEW RESEARCH CTR. (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/ us-smartphone-use-in-2015. Yet the ability of public employees to use cell phones to conduct public business by creating and exchanging public records-text messages, e-mails, or anything else-is why the PRA must offer the public a way to obtain those records. Without one, the PRA cannot fulfill the people's mandate to have full access to information concerning the conduct of government on every level. LAws OF 1973, ch. 1, § 1( 11 ). As noted earlier, many counties, cities, and agencies around the state recognize the need to capture and retain public records created on personal devices. Some of those entities provide employees with a way to preserve public records and avoid any inquiry into their private affairs by, for example, syncing work-related
+documents, e-mails, and text messages to an agency server or other place accessible to the employer. The County apparently has no such policy. While a policy easing the burden on employees of preserving public records is certainly helpful, it cannot be a precondition to the public's right to access those records. If it were, the effectiveness of the PRA would hinge on the whim of the 20 Nissen v. Pierce County, No. 90875-3 public officials whose activities it is designed to regulate. Mead Sch. Dist. No. 354 v. Mead Educ. Ass 'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975). The legislature tasks us with interpreting the PRA liberally and in light of the people's insistence that they have information about the workings of the government they created. RCW 42.56.030. Of course, the public's statutory right to public records does not extinguish an individual's constitutional rights in private information. But we do not read the PRA as a zero-sum choice between personal liberty and government accountability. Instead, we turn to well-settled principles of public disclosure law and hold that an employee's good-faith search for public records on his or her personal device can satisfy an agency's obligations under the PRA. Though technology evolves, segregating public records from nonpublic ones is nothing new for agencies responding to a PRA request. Whether stored in a file cabinet or a cell phone, the PRA has never authorized unbridled searches of every piece of information held by an agency or its employees to find records the citizen believes are responsive to a request. Hangartner v. City of Seattle, 151 Wn.2d 439, 448, 90 P.3d 26 (2004). The onus is instead on the agency-necessarily through its employees-to perform an adequate search for the records requested. Neigh. All., 172 Wn.2d at 720-21. To satisfy the agency's burden to show it conducted an adequate search for records, we permit employees in good faith to submit reasonably detailed, nonconclusory affidavits attesting to the nature and extent of 21 Nissen v. Pierce County, No. 90875-3 their search. Id. at 721. The PRA allows a trial court to resolve disputes about the nature of a record based solely on affidavits, RCW 42.56.550(3), without an in camera review, without searching for records itself, and without infringing on an individual's constitutional privacy interest in private information he or she keeps at work. Federal courts implementing the Freedom of Information Act (FOIA), Pub. L. No. 89-487, 80 Stat. 250, allow individual employees to use the same method to selfsegregate private and public records. See, e.g., Media Research Ctr. v. US. Dep 't of Justice, 818 F. Supp. 2d 131, 139-40 (D.D.C. 2011) (declarations sufficient to determine e-mails were not sent in employee's official capacity); Consumer Fed'n ofAm. v. Dep 't of Agric., 455 F.3d 283, 288-89 (D.C. Cir. 2006) (affidavits from employees about character of electronic calendars); Bloomberg, LP v. US. Sec. & Exch. Comm 'n, 357 F. Supp. 2d 156, 163 (D.D.C. 2004) (affidavits about telephone logs and message slips); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12 (D.D.C. 1995); Gallant v. Nat'l Labor Relations Bd., 26 F.3d 168, 171 (D.C. Cir. 1994). While [a]n agency cannot require an employee to produce and submit for review a purely personal document when responding to a FOIA request[,] ... it does control the employee to the extent that the employee works for the agency on agency matters. Ethyl Corp. v. US. Envt'l Prot. Agency, 25 F.3d 1241, 1247 (4th Cir. 1994). Thus, where a federal employee asserts a potentially responsive record is 22 Nissen v. Pierce County, No. 90875-3 personal, he or she must provide the employer and the courts with the opportunity to evaluate the facts and reach their own conclusions about whether the record is subject to FOIA. Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 480-81 (2d Cir. 1999). We already incorporate FO IA' s standard for adequate searches into the PRA, Neigh. All., 172 Wn.2d at 720, and we similarly adopt FOIA's affidavit procedure for an employee's personally held public records. Therefore, we hold agency employees are responsible for searching their files, devices, and accounts for records responsive to a relevant PRA request. Employees must produce any public records (e-mails, text messages, and any other type of data) to the employer agency. The agency then proceeds just as it would when responding to a request for public records in the agency's possession by reviewing each record, determining if some or all of the record is exempted from production, and disclosing the record to the requester. See generally Resident Action Council v. Seattle Hous. Auth., 177 Wn.2d 417, 436-37, 327 P.3d 600 (2013). Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a public record under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to 23 Nissen v. Pierce County, No. 90875-3 search for and disclose public records without unnecessarily treading on the constitutional rights of its employees. We recognize this procedure might be criticized as too easily abused or too deferential to employees' judgment. Certainly the same can be said of any search for public records, not just for records related to employee cell phone use. But we offer two specific responses. First, an employee's judgment would often be required to help identify public records on a cell phone, even in an in camera review. Text messages, for example, are short communications whose meaning may not be selfapparent. Unlike a chain of e-mails where the preceding messages are often replicated in the body of each new reply, text messages may contain only a few words. The employee then might be needed to put that message into context to determine if it meets the statutory definition of a public record. Second, those criticisms spotlight why agencies should develop ways to capture public records related to employee cell phone use. The people enacted the PRA mindful ofthe right of individuals to privacy, LAWS OF 1973, ch. 1, § 1(11), and individuals do not sacrifice all constitutional protection by accepting public employment. City of Ontario v. Quon, 560 U.S. 746, 756, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (20 10). Agencies are in the best position to implement policies that fulfill their obligations under the PRA yet also preserve the privacy rights of their employees. E-mails can be routed through agency servers, documents can be cached 24 Nissen v. Pierce County, No. 90875-3 to agency-controlled cloud services, and instant messagmg apps can store conversations. Agencies could provide employees with an agency-issued device that the agency retains a right to access, or they could prohibit the use of personal devices altogether. That these may be more effective ways to address employee cell phone use, however, does not diminish the PRA's directive that we liberally construe it here to promote access to all public records. RCW 42.56.010(3).",analysis
+623,2763430,1,2,"The issue before us is whether Movant has met the burden of proving that he “possesse[s] the moral character to practice law in the State of Maryland.” In re Application of Cramer, 427 Md. 612, 622, 50 A.3d 1066, 1071 (2012) (per curiam) (citations omitted). An applicant must possess good moral character for admission to the Bar. Id. at 622, 50 A.3d at 1071-72. Good moral character is “denoted by those qualities of truth-speaking, of a high sense of honor, of granite discretion, [and] of the strictest observance of fiduciary responsibility.” Id. at 622, 50 A.3d at 1072 (citations and internal quotation marks omitted). We determine present moral character by evaluating whether, “viewing the applicant’s character in the period subsequent to his [or her] misconduct, [the applicant] has so convincingly rehabilitated himself [or herself] that it is proper that he [or she] become a member of a profession which must stand free from all suspicion.” In re Application of Stern, 403 Md. 615, 629, 943 A.2d 1247, 1255 (2008) (citations and internal quotation marks omitted). Moreover, “good moral character includes truthfulness and -7- candor, and absolute candor is a requisite of admission to the” Bar of Maryland. Application of Cramer, 427 Md. at 622, 50 A.3d at 1072 (citations and internal quotation marks omitted). “The Board’s conclusions that an applicant does not possess the requisite moral character, and recommendation against admission to the Bar, are entitled to great weight.” Application of Stern, 403 Md. at 629, 943 A.2d at 1255 (citations omitted). “This Court, however, is charged with the responsibility to conduct an independent evaluation of the applicant’s moral character based upon testimony and evidence submitted before the Committee and the Board.” Application of Cramer, 427 Md. at 623, 50 A.3d at 1072 (citations omitted).",standard of review
+624,2757929,1,3,"[3] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). The State argues that the district court’s March 23, 2012, order dismissing four of Banks’ five ineffective assistance of counsel claims was a final order; that Banks did not file a timely appeal from that order; and that as a consequence, we lack jurisdiction to consider any of the claims denied in that order. We agree. [4,5] The district court’s March 23, 2012, order was a final order as to all of Banks’ claims except for the claim relating to the reasonableness of trial counsel’s pretrial investigation, because it denied an evidentiary hearing on those claims. An order denying an evidentiary hearing on a postconviction claim is a final judgment as to that claim, and under Neb. Rev. Stat. § 25-1912 (Reissue 2008), a notice of appeal must be filed with regard to such a claim within 30 days. State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). Failure to timely appeal from a final order prevents our exercise of jurisdiction over the claim disposed of in the order. State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). Banks did not file a notice of appeal within 30 days of the March 23, 2012, order. The only notice of appeal filed by Banks was the one relating to the court’s August 5, 2013, order, which was filed well outside the 30 days that he had to appeal from the March 23, 2012, order. Therefore, we lack jurisdiction to consider any assignments of error related to the claims that were denied without a hearing in the March 23, 2012, order, Nebraska Advance Sheets STATE v. BANKS 605 Cite as 289 Neb. 600 including the claim that trial counsel was ineffective for failing to raise a Batson challenge. Ineffective Assistance of Counsel in P retrial I nvestigation The remaining assignment of error is whether the district court erred by denying an evidentiary hearing on Banks’ ineffective assistance of counsel claim relating to the pretrial investigation. The court denied this claim in its August 5, 2013, order, from which Banks timely appealed. [6,7] A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant’s rights under the state or federal Constitution. State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. Id. Banks was not entitled to an evidentiary hearing on his ineffective assistance of counsel claim relating to the pretrial investigation, because he alleged only conclusions of fact or law. He alleged that his trial counsel was ineffective for failing to interview and investigate individuals named “John Ravlinson” and “Charles Bowling.” He claimed that if his counsel had interviewed these witnesses, they could have provided testimony at trial that would have supported a defense that Banks acted in self-defense. We note that at trial, “selfdefense was not Banks’ theory of the case,” and that he did not testify. See State v. Banks, 278 Neb. 342, 366, 771 N.W.2d 75, 94 (2009). Banks did not provide factual allegations to support his claim that Ravlinson and Bowling had information on whether Banks acted in self-defense. He did not allege what information Ravlinson and Bowling would have provided or what the substance of their testimony would have been. Banks failed to explain how Ravlinson’s and Bowling’s testimony would have been relevant to self-defense when there was no evidence or allegation that either was present when Herndon was shot. Nebraska Advance Sheets 606 289 NEBRASKA REPORTS Banks made only conclusory allegations that they could have “shed light on what actually took place.” The conclusory nature of Banks’ allegations is illustrated by State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009). In that case, the defendant, Clifford J. Davlin, alleged that his trial counsel was ineffective for failing to offer the testimony of two specific witnesses named “Guilliatt” and “Davis.” He claimed those witnesses could have provided “‘important exculpatory and alibi evidence.’” See id. at 983, 766 N.W.2d at 380. We concluded that Davlin’s motion was conclusory and did not warrant an evidentiary hearing: There is nothing in Davlin’s motion (or indeed in the record) that would suggest the nature of the exculpatory evidence to which Guilliatt and Davis would testify. Nor is there any indication what alibi either might provide Davlin. Rather than providing any detail, Davlin alleges only conclusions of fact and law. Such are insufficient to support the granting of an evidentiary hearing. Id. at 984, 766 N.W.2d at 380. Davlin was not entitled to an evidentiary hearing even though he suggested that certain witnesses, if called to testify, would have established his alibi. We found such allegations to be conclusory, because Davlin did not allege specifically what the witnesses would have said or how that evidence would have established his alibi. Similarly, Banks’ allegation that Ravlinson and Bowling would have provided support for a theory of self-defense was conclusory and did not warrant an evidentiary hearing. The district court did not err in denying Banks’ amended motion without an evidentiary hearing.",jurisdiction
+625,1998824,1,2,"DID THE TRIAL COURT ERR BY CHANGING DAUGHTER'S SURNAME FROM KEEGAN TO GUDAHL? This case causes us to consider for the first time the authority of a circuit court sitting in a divorce action to change the surname of a child as part of the divorce. At the time of the parties' divorce, the South Dakota statute governing child custody determinations in divorce cases stated: In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. SDCL 25-4-45. The court's general jurisdiction to give direction for the custody, care, and education for children in divorce cases encompasses resolving disputes between parents as to the proper name of the child. Webster's Third New International Dictionary defines care as to provide for or attend to needs or perform necessary personal services (as for a patient or a child). Webster's Third New International Dictionary, Unabridged 338 (16th ed. 1971). In bestowing a name on a child, parents are providing for or attending to the child's needs. Under SDCL 25-4-45, giving direction for the provision of such care falls within the broad jurisdiction of a court engaged in dissolution proceedings. Similarly, the South Dakota statute governing joint legal custody provides: In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. SDCL 25-5-7.1. The parties in this case stipulated to joint care, custody and control of the minor child and the trial court incorporated this stipulation into its judgment and decree of divorce. The name a child carries is one of the first and most fundamental decisions that parents make. A child's name reflects tradition, heritage, and family pride. It is often a means of honoring loved ones and a way of giving a sense of belonging to the child. Naming an infant certainly constitutes a major decision affecting the welfare of the child and falls within one of the responsibilities which the court finds unique to a particular family or in the best interest of the child. Under South Dakota's joint custody statute, then, the trial court had jurisdiction to decide how this major parental responsibility should be divided. The court's decision to allow the father to confer his name on the child was an exercise of its legitimate authority under SDCL 25-5-7.1. Although we have not previously decided this question, several neighboring jurisdictions have addressed the issue of whether a trial court in a divorce proceeding has authority to change the name of a child and have come to similar conclusions. For example, the Nebraska code provided: When dissolution of a marriage or legal separation is decreed, the court may include such orders in relation to any minor children and their maintenance as shall be justified.... Neb. Rev.Stat. § 42-364. [2] Relying on this statute and its equity jurisdiction in divorce cases, the Nebraska Supreme Court held that a trial court has jurisdiction to determine surnames in a dissolution action where the parents disagree on the child's name. Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982). SDCL Ch. 25-4 grants the circuit court authority to restore a former name to the wife, although the chapter does not specifically address the power of the trial court to change the name of any other person, i.e. the husband or children of a marriage. SDCL 25-4-47. [3] Like the South Dakota Code, an Iowa statute provides authority to change a party's name in a divorce proceeding, but does not provide specific authority to change a child's name in that proceeding. In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993) (citing Iowa Code § 598.37). Nevertheless, the Iowa Supreme Court concluded that authority to change a child's name pursuant to divorce proceedings can be inferred from the Iowa statute governing custody determinations. Id. This statute states in relevant part: The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage,... and which will encourage parents to share the rights and responsibilities of raising the child.... [P]hysical care given to one parent does not affect the other parent's rights and responsibilities as a legal custodian of the child. Rights and responsibilities as legal custodian of the child include, but are not limited to, equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction. Iowa Code § 598.41. The Iowa Supreme Court interpreted this statute as granting broad discretion to the court in determining custody and the physical care of a child. Gulsvig, 498 N.W.2d at 728. The court further noted that the statute guarantees each custodian equal participation in decisions affecting the child's legal status, and reasoned that an infant child's name is an incident of the child's legal status. Id. Based on these observations, the Iowa Supreme Court ruled that a trial court in a divorce case has subject matter jurisdiction to consider whether to change the name of the parties' child. Id. Finally, the reasoning of the Illinois Supreme Court is persuasive: Because of the greater procedural safeguards attendant to a dissolution of marriage action and the breadth of the trial court's consideration of family relationships and economics we see no sound policy reason why power should not attach to consider a name change in this context. In re Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 465 N.E.2d 85 (1984) (citations omitted). Admittedly, there is a specific chapter in our laws which sets forth the procedure for a formal name change. A circuit court has authority to change the name of a person upon compliance with the requirements of SDCL Ch. 21-37. However, there is nothing in that chapter which restricts a judicial name change to cases in which a separate petition has been filed under SDCL 21-37-2. There is nothing in this chapter stating it provides the exclusive remedy to change a person's name. Chapter 21-37 codifies the power of the court to effect a name change, and is supplementary to the authority specifically delineated under SDCL Ch. 25-4. Having determined that the trial court possessed jurisdiction to entertain the name change request, the only remaining question is whether the trial court properly followed the statutory standard in resolving the dispute between the parents. When applying South Dakota's child custody statutes, the best interest of the child governs. SDCL 25-5-7.1; SDCL 30-27-19 (repealed S.L. 1993, ch. 213, § 170; reenacted in relevant part, S.L.1994, ch. 192, and codified at SDCL 25-4-45); McKinnie v. McKinnie, 472 N.W.2d 243 (S.D.1991) (citing Nauman v. Nauman, 445 N.W.2d 38, 39 (S.D.1989)). Consequently, the trial court should have applied this standard in resolving the name change dispute. Accord, Cohee, 317 N.W.2d at 384 (in determining child's surname in a divorce proceeding, the proper standard is the best interests of the child, the same standard used in all custody decisions involving minor children); Gulsvig, 498 N.W.2d at 729 (there is no presumption that a child bear the father's name or that the mother has a superior right to name the child because she has custody at birth; the real issue is what is in the best interest of the child); In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 922, 620 P.2d 579, 583 (1980) (The sole consideration when parents contest a surname should be the child's best interest.); Garling v. Spiering, 203 Mich. App. 1, 3-4, 512 N.W.2d 12, 13 (1993) (parental disputes regarding a child's surname should be resolved in accordance with the best interests of the child). Rather than applying the best interest of the child standard, the trial court ordered the child take the father's surname, relying on the tradition of conferring the father's name on a legitimate child and the authority of SDCL 34-25-13.3. The court erred in citing either of these reasons for its decision. The parties mistakenly argue that the statute relied on by the trial court, SDCL 34-25-13.3, decides this dispute. At the time this case came to trial, this statute stated: If the mother was not married either at the time of conception or birth, the child's surname shall be shown on the birth certificate as the legal surname of the mother at the time of birth unless an affidavit of acknowledgement of paternity signed by both parents is received stating the surname of the child to be that of the father. SDCL 34-25-13.3. Mother argues the statute emphasizes the mother's marital state either at the time of conception or birth. Since Mother was not married at the time of conception (though married at the time of birth), she claims the statute requires her name appear on the birth certificate as the surname of the child. Father counters that this interpretation would lead to bizarre results; it would require parents who married after their child's conception but before its birth to submit an affidavit of paternity before they could legally give the child the father's surname. Father also points to a subsequent amendment to SDCL 34-25-13.3 which suggests that the legislature did not envision or intend such results. The amended statute reads: If the mother was not married at the time of conception or birth, or at any time between conception and birth, the mother's surname shall be shown on the birth certificate as the legal surname of the child at the time of birth unless an affidavit of acknowledgment of paternity signed by both parents is received. SDCL 34-25-13.3. By deleting the word either and adding the phrase or at any time between conception and birth, father argues that the legislature clarified the meaning of the original statute. According to Father, under both the original and revised statute, the mother's surname must be assigned to the child if the mother is unmarried during the entire period from conception to birth. Since Mother was married to Father during part of this period, he contends SDCL 34-25-13.3 does not apply. Although Father's arguments are persuasive, we need not actually decide the issue, because it is not dispositive of this case. The parties have argued this case, and the trial court's decision relied upon, an analysis of SDCL 34-25-13.1 through 34-25-13.3 (1986). [4] However, such an analysis is misplaced. Even if SDCL 34-25-13.3 required that Mother bestow her surname on the child, this statute, located in the code chapter entitled Vital Records and Burial Permits, only governed the initial designation of the child's name on the birth certificate. As noted above, once the care and custody of the child came into issue and the parties submitted themselves to the broad custody jurisdiction of the trial court, the court possessed the authority to review the propriety of changing the child's name in light of the best interest of the child. See SDCL 25-4-45; SDCL 25-5-7.1; Gulsvig, 498 N.W.2d at 728; Cohee, 317 N.W.2d at 384. The trial court also erred by deferring to the custom of giving a child the father's surname. As discussed above, the court should have been guided by the best interest of the child. In determining the best interest of the child in a name change dispute, factors for the court to consider include, but are not limited to: (1) misconduct by one of the parents; (2) failure to support the child; (3) failure to maintain contact with the child; (4) the length of time the surname has been used; and (5) whether the surname is different from that of the custodial parent. Cohee, 317 N.W.2d at 384. The court may also consider whether a particular name will contribute to the estrangement of the child from a non-custodial parent who wishes to foster and preserve the parental relationship. In re Marriage of Nguyen, 684 P.2d 258, 260 (Colo.Ct.App.1983), cert. denied, 469 U.S. 1108 (1985). Finally, although the record in this case is unclear, it suggests that the mother unilaterally determined the child's surname on the birth certificate. [T]he mother does not have the absolute right to name the child because of custody due to birth. In re Quirk, 504 N.W.2d 879, 882 (Iowa 1993) (Carter, J., concurring) (quoting Gulsvig, 498 N.W.2d at 729). As a result, the mother should gain no advantage from her unilateral act in naming the child. Id. Likewise, the custom of giving a child the father's surname should not serve to give father an advantage. Only the child's best interest should be considered by the court on remand. Father's request for attorney fees and costs is denied. Affirmed in part, reversed in part, and remanded with instructions that the dispute over the child's name be resolved in accordance with the best interest of the child. WUEST and AMUNDSON, JJ., concur.",issues
+626,2353264,2,5,"Appellant raises two claims that implicate this court's review of the sufficiency of the evidence on direct appeal. On direct appeal, as we do in all capital cases, this Court reviewed the sufficiency of the evidence for first-degree murder. Washington, 700 A.2d at 404. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we found the evidence sufficient to support the conviction. In finding the evidence sufficient, we noted that specific intent to kill may be inferred from the defendant's use of a deadly weapon upon a vital part of the victim's body. Id. (citing Commonwealth v. Michael, 544 Pa. 105, 674 A.2d 1044, 1047 (1996)). When he saw Tracey Lawson pursuing him, Appellant turned and fired, hitting Lawson in the head and killing him. We found that evidence sufficient to establish that Appellant shot Lawson with the specific intent to kill. Appellant now challenges the sufficiency of the evidence to support his conviction for first-degree murder. The PCRA court rejected this claim, finding it previously litigated on direct appeal. See 42 Pa.C.S. § 9543(a)(3). Rather than challenge this conclusion, Appellant argues that the evidence is insufficient because the mere fact that he shot in the victim's direction cannot rationally support an inference that he had the specific intent to kill; rather, the evidence is equally consistent with the probability that [Appellant] sought only to scare or wound the guard and stop his pursuit. Appellant's Brief at 47. Appellant argues that this Court's reliance on direct appeal on the presumption that the specific intent to kill may be inferred from the use of a deadly weapon on a vital part of the body was erroneous, and appellate counsel was ineffective for failing to contest the application of the presumption under the facts of this case. We agree with the PCRA court that this is an attempt to re-litigate the sufficiency of the evidence by attacking appellate counsel's failure to challenge the presumption of intent to kill. See 42 Pa.C.S. § 9543(a)(3). We have recently held, however, that ineffectiveness claims are distinct issues from those claims raised on direct appeal and should be reviewed under the three-prong ineffectiveness standard. Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 573 (2005). Thus, we will analyze Appellant's claim under the rubric of appellate counsel's ineffectiveness. Doing so, we have no problem in finding that the claim lacks merit. Appellant cites no authority for the proposition that this Court had to find that he intentionally aimed at the victim's head before we could find sufficient evidence to support an inference of the specific intent to kill. To the contrary, as noted on direct appeal, the critical inquiry is the use of a deadly weapon on a vital part of the body, Washington, 700 A.2d at 404, not the intentional aiming of the weapon at a vital part of the body. See Michael, 674 A.2d at 1047 (Pa. 1996). As we made clear in Collins, although we will analyze a distinct claim of ineffectiveness that is based on the underlying issue decided on direct appeal, in many cases those claims will fail for the same reasons they failed on direct appeal. Collins, 888 A.2d at 574-75. Here, we addressed the sufficiency of the evidence on direct appeal. Appellant has not demonstrated arguable merit to his claim that, had appellate counsel advanced the present argument, we would have found the presumption of intent inapplicable to the facts of this case. Therefore, appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence in this manner. May, 898 A.2d at 564 (counsel will not be deemed ineffective for failing to raise meritless claims).",sufficiency of the evidence
+627,1379404,1,2,"This case was dismissed by the circuit court during the pleading stage because, in its view, the appellant's action was untimely. We have said that [a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.  State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 775, 461 S.E.2d 516, 521 (1995) (citation omitted). With this standard as our guide we now consider the issue before us.",standard of review
+628,1426936,1,7,"We conclude that Woods was estopped from challenging the lawfulness of the plea agreement pursuant to NRS 484.3795(2), and that the district court did not err in denying Woods' motion to withdraw his plea. We further conclude that there was no error in imposing consecutive sentences for each of the two counts of felony DUI. Woods' conviction and sentences are affirmed.",conclusion
+629,1679052,1,1,"Around 4:30 a.m. on August 19, 1984, the sheriff of DeSoto County was notified that an ambulance had been dispatched to a grocery store in a rural part of the county, and that there had been a shooting. When the sheriff, deputies and ambulance arrived at the grocery store, they found appellant waiting. The following conversation took place: Sheriff: What happened? Appellant: I shot my wife. Sheriff: How bad? Appellant: Pretty bad. Appellant led the officers and the ambulance to his house. They found the appellant's wife, Georgia, dead in the bedroom. She was nude, in bed with the covers pulled up to her neck, and she had been shot in the face with a .44-caliber revolver, which was found on the floor in the bedroom closet. There were four live cartridges and one spent cartridge in the revolver. Blood was found on the door frame leading into the bathroom; there was blood on the bathroom light switch, and a towel with some blood on it was found in the bathroom sink. The officers also observed blood on appellant's forearm. At trial, a crime lab technician testified that a blood sample taken from appellant at 8:00 a.m. tested positively for .09% alcoholic content; that, at the rate of alcohol dissipation, appellant's blood alcohol would have been .12% at the time of the shooting four hours earlier; and that the percentage of alcohol in his blood meant that appellant was legally intoxicated at the time of the homicide. According to an FBI crime lab technician, appellant's hands tested negative for the presence of gunpowder, and the victim's hands tested positive. The record indicates that after the shooting, appellant washed his hands. The tests meant that the victim was shot at close range. A bar maid testified that a week before the shooting she saw appellant in the bar where she worked and overheard him say to another person, I will kill her. She will not take what I got. The victim was employed as a bank teller, and, according to three of her co-workers, appellant and his wife had been having difficulties, the victim was unhappy, and the appellant had a violent temper. The victim's mother testified that the marriage was an unhappy one; that appellant had a violent temper; and that she had witnessed arguments and altercations between appellant and the victim. Appellant's defense was to the effect that he came home about 4 a.m.; his wife began fussing at him; he went to the bathroom and, upon returning to the bedroom, he found his wife sitting up in bed with a pistol pointed at him; she said, I'm going to put an end to this once and for all; that he grabbed for the gun, fell on top of his wife, and while they were struggling over the gun, it fired accidentally. We have said before and now repeat that it is a rare case that meets the requirements of the rule in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). Berry v. State, 455 So.2d 774, 776 (Miss. 1984). The Weathersby question is not only whether the evidence conflicts, but also whether the evidence is contrary to the physical facts, and what reasonable conclusions may be drawn from the uncontradicted evidence. Burge v. State, 472 So.2d 392, 396 (Miss. 1985). In the case sub judice, appellant was the only eye witness to the homicide and he claims that the victim was accidentally shot and killed. We think that the appellant's account of what happened is substantially contradicted in the following particulars: (1) The photographs of the scene showed no signs of the struggle which appellant described in his testimony. (2) Appellant's account of how the victim was holding the gun showed that it would have been mechanically impossible to fire it. (3) There was conflicting testimony regarding the appellant's marriage and his reputation for peace or violence. (4) The evidence adduced at trial indicated that appellant's mental faculties at the time of the shooting may have been adversely affected by alcohol and/or drugs. Expert testimony indicated alcohol and codeine were found in appellant's urine and/or blood indicating he was intoxicated at the time of the shooting. (5) When the sheriff first saw appellant at the grocery store, appellant said, I shot my wife... . pretty bad. We are of the opinion that the facts constituted a guilt issue for the jury to determine and that the verdict of the jury is supported by the evidence. Assigned Error I is rejected.",conclusion
+630,4564600,1,2,"[1,2] A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s conclusion. Huston, supra. [3] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. Id. An appellate court upholds the trial court’s factual findings unless they are clearly erroneous. Id.",standard of review
+631,3167403,1,1,"¶13 We review for abuse of discretion a district court’s refusal to give an instruction on a lesser-included offense. State v. Johnson, 2008 MT 227, ¶ 12, 344 Mont. 313, 187 P.3d 662. A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. State v. McLaughlin, 2009 MT 211, ¶ 9, 351 Mont. 282, 210 P.3d 694. A district court has broad discretion when it instructs the jury; we review jury instructions in criminal cases to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. McLaughlin, ¶ 10.",standard of review
+632,1620468,1,2,¶ 13. A.B. and B.B. raised three issues on appeal: (1) whether A.B. was entitled to counsel at the neglect hearing; (2) whether the youth court erred in terminating A.B.'s and B.B.'s parental rights; and (3) whether B.B. was properly served notice of the neglect hearing. This Court will address only whether the youth court's decision to terminate parental rights was proper.,issues
+633,2276920,1,1,"Moore was convicted of two counts of first-degree murder and was sentenced to two terms of life imprisonment without the possibility of parole. At the sentencing proceedings, the judge informed Moore of his right to seek post-conviction relief under Rule 29.15. The judge explained that there are three bases for filing a Rule 29.15 motion to set aside the sentences: (1) if they violate the constitution or laws of the United States or of Missouri; (2) if the court had no jurisdiction to impose the sentences; or (3) if the sentences exceeded the maximum allowed by law. Further, the judge told Moore that if he appealed, the Rule 29.15 motion would be due 90 days after the mandate from the court of appeals issued. Moore asked what form he should use to file the motion, and the judge instructed him to use Criminal Procedure Form 40, which could be obtained at the department of corrections. Moore indicated that he understood his right to file the motion. After the court of appeals affirmed the conviction, it issued its mandate October 16, 2008. See State v. Moore, 264 S.W.3d 657 (Mo.App.2008). Moore filed his Rule 29.15 motion 218 days later. Along with the motion, he filed a letter and an affidavit from the attorney who represented him on direct appeal. The appellate attorney's affidavit stated that she told Moore in a letter mailed March 13, 2009, that the mandate had been issued in his direct appeal. The letter reminded him of the 90-day deadline to file a Rule 29.15 motion but acknowledged that the deadline, January 14, 2009, had passed two months ago. The appellate attorney recommended that if Moore wished to seek post-conviction relief, he should file a Rule 29.15 motion as soon as possible. Moore did not file his Rule 29.15 motion until May 22, 2009, more than two months later. The court dismissed the Rule 29.15 motion for being untimely. This appeal follows.",facts
+634,4539252,1,1,"This matter concerns three cases consolidated for purposes of trial and appeal. The relators are BH Media Group, Inc., doing business as Omaha World-Herald (OWH); Lee Enterprises, Inc., doing business as Lincoln Journal Star (LJS); and Amy A. Miller and ACLU of Nebraska Foundation. In October and November 2017, each relator submitted public records requests pursuant to the public records statutes, seeking information related to DCS’ purchase of pharmaceuticals for use in the lethal injection execution protocol. DCS provided responsive documents to each request, and it informed relators that it had additional responsive documents in its possession that would be withheld from disclosure. DCS stated that the withheld records consist of (1) communications between a DCS execution team member and a lethal injection drug supplier, (2) Drug Enforcement Agency (DEA) forms, (3) inventory logs, (4) chemical analysis reports, (5) photographs of packaging, (6) invoices, and (7) purchase orders. DCS responded that these documents would not be disclosed, because they are confidential and exempt from disclosure under Neb. Rev. Stat. § 83-967(2) (Reissue 2014) and because they are not public records as defined under § 84-712.01(1). Each relator petitioned the district court for Lancaster County for a writ of mandamus to compel Frakes, in his official capacity as director of DCS, to produce the withheld records. In each case, the court entered a show cause order and Frakes filed an answer and response. Frakes argued that nondisclosure is justified under § 83-967(2), which makes the identity of all - 784 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members of the execution team confidential and exempt from disclosure under the public records statutes. The matter proceeded to trial. The court heard testimony from Miller, a citizen of Nebraska and an attorney for the ACLU of Nebraska Foundation; JoAnne Young, a reporter for LJS; and Joe Duggan, a reporter for OWH. A previous public records request by Miller and response by DCS from August 16, 2016, was offered into evidence as exhibit 10. Exhibit 10 contains correspondence between Frakes and a drug supplier concerning DCS’ payment for lethal injection drugs, an offer to sell and purchase order, invoices, DEA forms, and photo­ copies of packaging showing the expiration dates of lethal injection drugs. Young testified about her reporting on state government and death penalty issues for the LJS since 2007. She admitted she may attempt to interview DCS’ lethal injection drug supplier if she learned its identity. Duggan testified that if he received information about the supplier, he would attempt to interview the supplier and would ask who else might have information about its transaction with DCS. The relators called Frakes as a witness. Under DCS’ execution protocol, 1 which was received into evidence, the DCS director, the Nebraska State Penitentiary warden, and the Nebraska State Penitentiary public information officer are designated as members of the execution team. In his testimony, Frakes admitted without objection that he is a member of the execution team. In addition, he confirmed the publicly known identities of the warden and public information officer. Frakes did not contend that the lethal injection drug supplier is a member of the execution team. Frakes testified that he would not publicly identify other members of the execution team, because there is the potential for threats or harassment. He testified that the purchase orders and chemical analysis reports were withheld, because they identify a member of the execution team “on their face.” He 1 69 Neb. Admin. Code ch. 11, § 003 (2017). - 785 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 testified that the communication with a supplier, DEA forms, photographs, and invoices were withheld, because they identify the supplier and, if contacted, the supplier could share the identity of a team member. He stated that “since the supplier has direct knowledge of team members, or at least one team member . . . I can . . . draw the connection that [it] would be able to identify a member of the team.” Frakes testified that inventory logs were withheld, because they “contain information that ultimately could lead to identifying the supplier.” He admitted that he had the ability to redact identifying information contained in the records and that he could ask the supplier not to identify any team members. He did not know whether DCS’ contract with the supplier contains a confidentiality or nondisclosure provision. He asserted that the photographs of packaging are attorney work product. In closing arguments, the relators argued that the purchase orders and chemical analysis reports should undergo a redaction process and be disclosed. Regarding the remaining records, they argued that there is no provision under Nebraska law which makes the identity of a lethal injection drug supplier confidential. Frakes argued that because the withheld records name the supplier and the supplier knows the identity of a team member, the withheld records are reasonably calculated to lead to the identity of a team member. On June 18, 2018, the district court entered orders in each case partially granting and partially denying the requests for writs of mandamus. The court found that pursuant to § 84-712.01(3), it was required to liberally construe public records laws in favor of disclosure. The court found the relators met their burden to show a prima facie claim that they were denied access to public records as guaranteed by public records laws. The court interpreted § 83-967(2) as an exemption from disclosure under the public records statutes and found that the burden therefore shifted to Frakes to prove by clear and convincing evidence that the documents sought were exempt from disclosure. The court found that the purchase orders and chemical analysis reports identified execution team - 786 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members on their face and therefore were exempt from disclosure under § 83-967(2). As to the remaining documents, the court found that Frakes failed to meet his burden to show that an exemption applies. The court stated that “[t]he evidence is speculative at best” that disclosure of these documents would lead to the identification of an execution team member. The court found that Frakes had not proved that the photographs of packaging are attorney work product. The court ordered Frakes to disclose within 7 days the communications with the supplier, DEA records, invoices, inventory logs, and photographs of packaging. On June 19, 2018, Frakes filed a notice of appeal. On June 27, relators filed motions to alter or amend the judgments to include an award of attorney fees and costs. The court determined that, despite Frakes’ notice of appeal, it had jurisdiction over the motions to alter or amend. The court found the motions to alter or amend were proper, because relators had requested attorney fees in their petitions. Following a hearing, the court granted relators’ motions for an award of attorney fees and costs. Frakes appealed, and relators crossappealed. We moved the appeals to our docket and consolidated them. ASSIGNMENTS OF ERROR Frakes assigns, restated, that the district court erred in (1) finding relators had established standing and jurisdiction, (2) finding relators had met their burden to show the documents sought are public records as defined by § 84-712.01, (3) finding § 83-967(2) is an exemption from disclosure that the public body must prove applies by clear and convincing evidence, (4) finding Frakes failed to establish by clear and convincing evidence that the withheld documents are reasonably calculated to lead to the identity of an execution team member, (5) finding Young’s public records request was properly submitted, (6) finding the court had jurisdiction to rule on the motions to alter or amend, and (7) finding relators were entitled to attorney fees and costs. - 787 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 Relators assign on cross-appeal that the district court erred in not requiring disclosure of the purchase orders and chemical analysis reports with the redactions of confidential information, in accordance with § 84-712.06.",facts
+635,2639799,1,1,"¶ 4 Heddrick's appeal arises out of two separate alleged criminal acts. Clerk's Papers King County Super. Ct. No. 04-1-12703-0(1CP) at 1; Clerk's Papers King County Super. Ct. No. 05-1-08886-5(2CP) at 1. In 2004, Heddrick was charged with felony harassment. While awaiting trial on that charge, Heddrick was allegedly involved in an altercation with jailhouse staff, leading to the subsequent charge of custodial assault. ¶ 5 Concerns about Heddrick's competency arose several times as his cases proceeded. In the felony harassment matter, the issue of Heddrick's competency arose first on September 8, 2004. 1CP at 17. The trial court found Heddrick incompetent and ordered him to Western State Hospital (WSH) for 90 days. In January 2005, the trial court found that Heddrick had been restored to competency. Id. at 6-7. ¶ 6 In July 2005, newly appointed defense counsel Tracy Lapps raised concerns again about Heddrick's competency. Pet. for Review at 3; see 1CP at 38. In response, the trial court orally ordered a new evaluation by Dr. White, an expert retained by the defense. Report of Proceedings (RP) (July 27, 2005) at 6. Also, the court directed that a written report be prepared by a staff psychologist at WSH and circulated to the parties. 1CP at 40. ¶ 7 Near the due date for production of the report, defense counsel informed the court that Dr. White had found Heddrick competent. She further informed the court that she declined production of Dr. White's report due to cost concerns. As a result, the WSH staff psychologist's report was not entered into evidence. [1] Counsel thereby withdrew Heddrick's competency motion. After the harassment trial concluded, a jury found Heddrick guilty on October 12, 2005. Id. at 69. ¶ 8 While in custody in the King County jail awaiting trial for felony harassment, Heddrick allegedly assaulted one of the two officers assigned to move him to another cell. The State charged Heddrick with custodial assault. After substituting for a previous attorney, Marcus Naylor began to represent Heddrick in his assault case. Once competency concerns arose in the felony harassment matter, the trial judge in the custodial assault case decided to track competency procedures with the felony harassment case. State v. Heddrick, noted at 140 Wash.App. 1019, 2007 WL 2411354, at , 2CP at 7. ¶ 9 Heddrick's custodial assault case was transferred to Judge Mary Yu, who was presiding over his felony harassment case. When Judge Yu signed the competency order on October 10, 2005, in Heddrick's assault case, she evidently did not enter an equivalent order in the harassment case. 2CP at 8. Moreover, Judge Yu issued the ruling outside of the presence of Heddrick's counsel in the custodial assault case. Id. (lacking signature of Naylor). The only counsel present was Lapps, Heddrick's appointed attorney in the felony harassment case. Lapps declined to sign the order of competency in the custodial assault matter. Id. The court simply found Heddrick competent after his appointed attorney in the felony harassment matter, Lapps, informed the court that Dr. White found Heddrick to be competent. RP (Oct. 11, 2005) at 15. The Court of Appeals affirmed, concluding that Heddrick received adequate process. Heddrick, 140 Wash.App. 1019, 2007 WL 2411354, at -5. We granted Heddrick's petition for review. 163 Wash.2d 1039, 187 P.3d 270 (2008).",facts
+636,2057473,1,9,"The trial court is affirmed. SHEPARD, C.J., and DeBRULER, GIVAN and PIVARNIK, JJ., concur.",conclusion
+637,1897736,1,3,"Before delving into the substantive issues, we need to comment on a jurisdictional matter. As noted, Winkler, in its complaint, not only sought a mechanic's lien against the owners' property but also sued Musser for breach of contract. Musser filed a counterclaim against Winkler. Those claims, between Winkler and Musser, have never been resolved and remain pending in the circuit court. Accordingly, no final judgment under Maryland Rule 2-602 has yet been entered. The order establishing the lien is therefore an interlocutory one, and, if the order had done nothing more than establish the lien, it would not have been immediately appealable. The order in question did much more, however. It not only established a lien but, as noted, ordered that the property be sold if the amount of the lien was not paid by a specific date and appointed a trustee to sell the property in that event. By reason of those additional provisions, which, on their face, were self-executing without the need for further involvement by the court, the order is appealable under § 12-303(3)(v) of the Courts and Judicial Proceedings Article, permitting an immediate appeal from an interlocutory order for the sale, conveyance, or delivery of real or personal property.",jurisdiction
+638,1891700,1,1,"The facts and circumstances of the present case are tragic. By July of 1995, eighteen-year-old Valerie Williams had been involved in an abusive relationship with Gerald Watkins for approximately four years. The record indicates that Watkins began beating Valerie Williams when she was around fourteen years old and that the beatings continued while she was pregnant with his child. On numerous occasions, the Baltimore City Police Department was notified and responded to these incidents of domestic violence. On the morning of July 19, 1995, Mary Williams arrived at work as an office manager for Multi-Specialty Health Care, at approximately 8:45 a.m. Just before her lunch break, she received a frantic telephone call from her daughter, Valerie Williams. Mary Williams immediately left work and drove to her home at 622 Melville Avenue, in Baltimore, where she found her daughter sitting on a sofa with a swollen eye and holding a compress to her mouth. After Valerie Williams told her that she had been beaten by Watkins, Mary Williams telephoned the police via 911. Officer Colbert responded to the call. Upon arriving at the scene, Officer Colbert took statements from both Mary and Valerie Williams, during which he was informed of the history of abuse suffered by Valerie at the hands of Watkins. Valerie proceeded to inform Officer Colbert that Watkins was a known drug dealer and provided the officer with a photograph of Watkins and his home address. While the officer was talking to the Williamses, Watkins telephoned the household two separate times and talked with both Mary and Valerie. Valerie answered the first telephone call. After she hung up, she told Mary, in the officer's presence, that the call was from Watkins and that he had threatened to come back to the house. When Watkins called a second time, Mary Williams answered the telephone. Upon realizing that the caller was Watkins, Mary Williams briefly expressed her anger to him and then hung up the telephone. The Caller I.D. box indicated that he had called from the Alameda Liquor Store. She reported that fact to Officer Colbert, whereupon he requested a police car to be dispatched to that location. From this point forward, the parties' versions of the events diverge dramatically. We review the depositions of both Mary Williams and Officer Colbert. According to the deposition of Mary Williams, after Officer Colbert dispatched a police car to the Alameda Liquor Store, he then stated to Valerie You stay here, I've got to call for a camera, we have to wait for a camera. [5] At this point, Mary had a brief conversation with Officer Colbert asking whether she could pick up her grandson from a neighboring house. [6] With Officer Colbert's approval, Mary left to retrieve her grandson from the babysitter. Upon returning home, she immediately noticed that Officer Colbert was no longer in the house. When she asked Valerie where he was, she replied, [h]e said stay here, he went out to the car. Mary Williams, carrying her grandson, then went out the front door of her house and down the steps to the sidewalk where Officer Colbert was sitting in a police car. She asked him, What's next[?], to which he replied, I've got to write this report, followed by go in the house, I'm going to be here, I've got to finish this report. According to Mary Williams, no further relevant information was exchanged between them. Mary Williams returned to the house and did not lock the front door. Approximately two to three minutes later, Valerie informed Mary that Watkins had recently been threatening to kill her. Upon hearing this news, Mary panicked and went to the front door to tell Officer Colbert. Mary arrived at the front door to discover that Officer Colbert was no longer parked in front of her house. Instead, she saw Gerald Watkins running up the steps to her home. She tried to shut the door and lock it but Watkins kicked the door open. Carrying her grandson, Mary made it past Watkins and started running down the steps in front of her house. Watkins shot her in the leg, which caused her to fall down the steps. Watkins then put the gun to Mary's head, said What have I ever done to you? and pulled the trigger, shooting her again. Watkins then shot and killed Valerie Williams before killing himself. Mary Williams survived the attack but remains partially paralyzed. Myreq Watkins was not injured in the course of the shooting. Officer Colbert's version of the events is similar to Mary Williams' up until when Mary Williams came outside of her house and had a conversation with the police officer. According to his deposition, when she approached his police car and asked, What's next?, the following events occurred: I told her I'm waiting to see if somebody is available to bring me a camera. At that time I called again. There was nobody available to bring a camera. I then told Ms. Williams I have to go get the camera myself, and she said that was fine. According to Officer Colbert, it was only after this exchange that he drove off to go pick up a camera. He was approximately 6-7 blocks away when he received a call about a shooting at 622 Melville Avenue. Upon his return he found Mary Williams laying face-down on the ground in front of her home and the bodies of Valerie Williams and Gerald Watkins down the street. On November 6, 1996, petitioners filed a complaint based in negligence in the Circuit Court for Baltimore City against (1) the State of Maryland under Maryland Code (1984, 1999 Repl.Vol.), Title 12, subtitle 1, of the State Government Article (the Maryland Tort Claims Act); (2) the Mayor and City Council of Baltimore City under Maryland Code (1973, 1998 Repl.Vol., 1999 Cum.Supp.), Title 5, subtitle 3 of the Courts & Judicial Proceedings Article (the Local Government Tort Claims Act); and Baltimore City Police Officer Edward Colbert. The complaint specifically alleged that Baltimore City Police Department General Order 10-93 divested Officer Colbert of any discretion in carrying out his statutory duty to protect Valerie and Mary Williams and Myreq Watkins and mandated that he do so. In later pleadings, petitioners added that Maryland Code (1957, 1993 Repl.Vol., 1995 Cum.Supp.), Article 27, section 11F, [7] also supported this argument. The complaint also alleged that Officer Colbert, through his actions and express promise of protection, had established a special relationship with petitioners that imposed on him a duty of protection beyond that which he would ordinarily owe to citizens threatened by crime. An order dismissing the complaints against both the City and the State was issued on January 17, 1997, ruling that neither of those parties could be sued because of the provisions of the respective tort claims acts. On February 27, 1998, a different judge on the Circuit Court for Baltimore City entered summary judgment in favor of the police officer. The court ruled that, as a matter of law, Officer Colbert was acting in a discretionary capacity, without malice, at the time of the incident and was therefore entitled to qualified immunity as a government official. Petitioners appealed to the Court of Special Appeals challenging the orders of the circuit court. [8] That court affirmed the holdings of the trial court in Williams, 128 Md.App. 1, 736 A.2d 1084. Petitioners filed a petition for writ of certiorari to this Court which we granted to resolve the three issues. As to the grant of summary judgment in respect to Officer Colbert, we hold that under the circumstances of this case he was not mandated by Maryland Code (1957, 1996 Repl.Vol., 1999 Cum. Supp.), Article 27, section 798(b)(2) [9] and Baltimore City Police Department General Order 10-93 to protect petitioners. Nevertheless, we hold that, viewing the deposition of Mary Williams in a light favorable to her, Officer Colbert's affirmative actions, directions, and specific promises of protection to Mary and Valerie Williams, if they occurred and were reasonably relied upon by them, may have created a special relationship between himself and the Williamses that would establish a duty of care on the part of Officer Colbert to protect them; therefore, his actions at 622 Melville Avenue might not be protected by either statutory or common law immunity. Accordingly, there was, at the least, a dispute of a material fact. We reverse the decision of the Court of Special Appeals and remand with instructions to vacate the order of the Circuit Court for Baltimore City granting Officer Colbert summary judgment.",facts
+639,4471395,1,1,"Joshua Dady was charged with first degree sexual assault after he admitted to police that he had sex with M.J., a 10-yearold girl. While Dady was 18 years old and within 4 days of their meeting, Dady engaged in vaginal intercourse with M.J. Dady was charged under § 28-319(1)(b). Section 28-319(1) makes it a crime for “[a]ny person [to subject] another person to sexual penetration . . . (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct[.]” Following a jury trial, Dady was convicted and sentenced to 20 to 25 years’ imprisonment. Dady appeals. Dady first met and talked with M.J. for approximately an hour after she exited a schoolbus a few blocks from her home - 652 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 on a Thursday or Friday afternoon. M.J. testified that Dady told her he was 16 years old and that she told Dady she was 10 years old. M.J.’s stepfather saw M.J. and Dady talking and introduced himself and then walked M.J. into the house. When M.J.’s stepfather noticed Dady following everyone into the home, he told Dady to leave. M.J.’s stepfather also asked Dady if he knew how old M.J. was, and Dady said no. He then told Dady that M.J. was 10 years old. M.J. later encountered Dady while she was walking her dog. M.J. testified that they discussed “YouTubers” for an unknown length of time. M.J. testified she thought that she and Dady “hung out” again later in the day on a Saturday. M.J.’s mother testified that M.J. came to her on that Saturday and asked to go to a mall with Dady. M.J.’s mother told M.J. she could not go to the mall with Dady because she did not know him. On the morning of Sunday, August 20, 2017, M.J. met up with Dady for about an hour, then went home for lunch and to clean her room. After lunch, M.J. returned to Dady’s house and sat on the curb. After approximately 5 minutes, Dady invited M.J. to sit by a fence in the yard. Dady asked M.J. if she had a boyfriend and then suggested to M.J. that they should have sex. M.J. testified that she had originally said no, but then agreed after Dady offered to give her an “MP3 player.” M.J. and Dady began kissing. Dady then pulled down his shorts and put a condom on. M.J. testified that she knew what a condom was but had not seen one before and did not know what Dady meant when he said, “‘We can’t let this go to waste now.’” Dady then pulled down M.J.’s pants and pulled M.J. on top of him. M.J. testified that Dady’s pulling her on top of him was not forced. M.J.’s statements to medical personnel and her testimony at trial were that she knew what sex was and that she willingly engaged in sex with Dady. Neighbors saw M.J. pull down her pants and attempt to sit on Dady’s lap. They ran outside and confronted M.J. and Dady. M.J. and Dady both stood up and pulled their pants up as the neighbors approached. M.J. testified that she asked Dady to - 653 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 “‘[p]romise not to tell’” what happened. The neighbors told M.J.’s stepfather and then informed Dady’s foster father of what they had seen. The neighbors testified they had seen Dady and M.J. “hanging out” earlier in the day when M.J. was riding around the neighborhood on a “bike [with] flowers on it.” M.J.’s stepfather called M.J. home. When M.J. arrived home, she went to her room and would not speak with either her stepfather or her mother. M.J.’s mother then called the 911 emergency dispatch service. M.J. was taken to a child advocacy center and then to a hospital to be examined by a sexual assault nurse. Police, responding to the 911 call, interviewed M.J.’s mother and then went to Dady’s foster home. Dady and his foster father came outside and spoke with the police. Dady admitted to police that he had sexually penetrated M.J.’s vagina and that he was 18 years old. The police placed Dady under arrest, and he was taken to a police station for an interview. Police obtained consent from Dady’s foster father to search the yard and the home. Police found a condom wrapper in the yard and a used condom in a trash can in Dady’s bedroom. During the interview with police, Dady claimed M.J. told him that she was 16 or 17 years old and that she was going to be a freshman in high school. Dady initially denied that his penis penetrated M.J.’s vagina, but later stated that a small portion of his penis went inside M.J.’s vagina. Dady also told police that he put his finger in M.J.’s vagina, but that she told him to stop because it was hurting her. Dady also told police that he put his penis in M.J.’s mouth for a “millisecond.” Dady said M.J. told him on the day of the incident that her mother says she is 10 years old, but that she is a freshman in high school and was about to turn 16 years old. At the end of the interview, when asked how old he thought M.J. looked, Dady admitted she looked 10 or 11 years old. Susan Kelly, an emergency room pediatrician, testified concerning M.J.’s visit to the emergency room on the night of the incident. Kelly testified that M.J. or M.J.’s mother relayed that M.J. had been diagnosed with attention deficit hyperactivity - 654 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 disorder (ADHD), oppositional defiant disorder (ODD), and disruptive mood dysregulation disorder (DMDD). This was done while Kelly was ascertaining M.J.’s medical history for the purpose of treating her in the emergency room. Dady objected on the ground of hearsay and was overruled. Kelly explained the various stages of cognitive development of children and testified that a normal 10-year-old’s brain has not fully developed the ability to assess risk and control impulses. Kelly further testified as to how diagnoses of ADHD and ODD can affect a person’s ability to control impulses. On crossexamination, Kelly testified that her impressions of M.J.’s ability to understand the nature of sex were based upon her time spent with M.J., M.J.’s past diagnoses, and the general categorization of a 10-year-old’s capacity. When asked to give further support for her conclusion that M.J. was not capable of appraising the nature of sex, Kelly testified that M.J. did not know when her last period occurred. Further, Kelly testified that when she asked M.J. if a condom was used in the incident, M.J. responded, “‘I think so.’” Additional evidence of M.J.’s mental health diagnoses was presented through the testimony of the forensic interviewer who saw M.J. at the child advocacy center. She testified that ADHD, ODD, and DMDD can affect emotional stability and impulse control. She indicated the severity of each of these conditions can vary based on the individual. She admitted that she is not licensed to diagnose these conditions; however, she stated that it is important for an interviewer to know a child’s mental health diagnoses in order to tailor the interview to the child. She testified that M.J. appeared to be a developmentally normal 10-year-old and indicated that no formal testing of cognitive ability was done. M.J.’s mother testified that M.J. has had behavioral and mental health issues since she was approximately 4 years old. M.J.’s mother testified that M.J. had been diagnosed with ADHD, ODD, and DMDD. Dady objected on grounds of foundation and hearsay and was overruled. On cross-examination, - 655 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 Dady elicited testimony from M.J.’s mother that the diagnoses had come from M.J.’s doctor. Dady made a motion to strike M.J.’s mother’s testimony on hearsay and Confrontation Clause grounds. M.J.’s mother also testified that M.J.’s mental health problems have resulted in M.J.’s hospitalization more than 10 times. M.J.’s mother testified these hospitalizations normally occur after M.J. becomes physically and emotionally escalated or when M.J. threatens to harm herself. M.J.’s mother testified that she had age-appropriate conversations about sex with M.J. M.J.’s mother expressed that prior to the incident, M.J. understood the physical aspects of what sex is. M.J.’s mother explained that some of the conversations were prompted by M.J.’s being accused of inappropriate sexual touching of her half sister. The incidents with her half sister resulted in M.J.’s being hospitalized and then receiving treatment at a residential treatment facility for approximately 5 months. At the close of the State’s case, Dady made a motion to dismiss. Dady claimed the State failed to prove that M.J. lacked capacity and that Dady knew or had reason to know M.J. lacked capacity under the statute. The court denied the motion. At the conclusion of evidence, Dady objected to jury instruction No. 6 proposed by the court. Dady submitted an alternate instruction based on the definition of mental impairment taken from In re Interest of K.M.1 Instruction No. 6 provided in part: “‘Mentally Incapable’ means that because of the victim’s age or mental impairment, the victim was incapable of resisting or appraising the nature of her sexual conduct. ‘Mental Impairment’ means the victim’s impairment was so severe that she lacked the capacity to consent to sexual conduct with the Defendant.” Dady’s proposed jury instruction stated in relevant part: “Mentally or physically incapable of resisting or appraising the nature of her conduct” shall mean a significant abnormality on the part of the victim such as 1 In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018). - 656 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 severe intoxication or other substantial mental or physical impairment. In order for a mental impairment to be substantial, it must be severe; a person in this category is treated as equivalent to a severely intoxicated or an unconscious person. Not every mental challenge or impairment is so severe that the person lacks the capacity to resist or appraise the nature of her conduct. The court gave its proposed instruction No. 6. Other instructions, given without objection, provided that the jury must apply the law in the instructions and that no one instruction contains all of the law applicable to this case. A further instruction provided the specific elements of the charge using the language of § 28-319(1)(b). After the jury returned a guilty verdict, Dady made a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Dady provided several arguments in support of the motion, only two of which were assigned on appeal. First, Dady argued that the jury instructions were incorrect and prejudicial. Second, Dady argued that there were irregularities in the proceedings of the court, the prosecuting attorney, and the witnesses for the State prejudicial to his rights. The alleged trial irregularities related to the court’s change in its ruling on whether Dady could present evidence under Neb. Rev. Stat. § 27-412 (Reissue 2016) of three sexual encounters M.J. had with other people. Dady had provided notice before trial that he intended to use evidence under § 27-412 to demonstrate M.J.’s prior knowledge and sexual activities. Specifically, Dady wanted to question M.J. concerning certain episodes of sexual conduct between M.J. and her half sister, between M.J. and her cousin, and between M.J. and her brother. The encounters with the half sister occurred before the events with Dady, the encounter with her cousin occurred after the incident with Dady, and the timing of the encounter with her brother was unknown. The State filed a motion in limine to exclude evidence of the encounters, asserting that the encounters were not relevant. - 657 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 The court initially determined that Dady would not be allowed to question M.J. concerning the three encounters. However, the court did allow Dady to question M.J.’s mother about one hospitalization and whether it occurred because of an incident between M.J. and her half sister. As the trial progressed and the court learned more about the nature of the case, the court reconsidered its initial ruling on the motion in limine. Before cross-examination of M.J. began, the court reversed its prior decision and indicated to both parties that it was going to allow some questioning about M.J.’s previous sexual encounters because such evidence could demonstrate M.J.’s ability to appraise the nature of her conduct. After the cross-examination of M.J. began, the court took a recess, dismissed the jury, and reversed its decision again, back to its original position. The court specified that it would allow questioning which could tend to prove M.J. knew what vaginal intercourse is or what sexual arousal is, but would not allow the further questioning of M.J. about the past sexual encounters. The court reasoned that the information to be obtained from questioning about the encounters and the subsequent hospitalizations was not relevant. The court denied Dady’s posttrial motion for judgment notwithstanding the verdict or for a new trial. At the sentencing hearing, the judge took into account Dady’s unfortunate upbringing, his maturity level, and his previous criminal history. The court noted that Dady had already received counseling and education concerning appropriate sexual conduct before the incident in this case occurred. The court noted that probation and education did not deter Dady. The court explained the serious nature of the offense and took into consideration the likelihood that Dady would reoffend. The court sentenced Dady to 20 to 25 years’ imprisonment. ASSIGNMENTS OF ERROR Dady asserts, renumbered and rephrased, that the trial court erred by (1) giving a jury instruction that incorrectly stated the law; (2) failing to give Dady’s proposed jury instruction; - 658 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v. DADY Cite as 304 Neb. 649 (3) failing to find the evidence presented at trial was insufficient to sustain a guilty verdict; (4) admitting evidence that M.J. was diagnosed with ADHD, ODD, and DMDD; (5) excluding evidence of M.J.’s other sexual conduct; (6) denying Dady’s motion for a new trial; and (7) imposing an excessive sentence.",facts
+640,2228835,1,1,"As found by the referee, the facts show that Stephen R. Grosh (Grosh) was sentenced to five years in the South Dakota State Penitentiary on December 5, 1984. Grosh appealed his sentence to this court. On May 7, 1986, this court affirmed his conviction. On May 29, 1986, Grosh filed a motion in circuit court (court) to reduce his sentence pursuant to the provisions of SDCL 23A-31-1. [] A hearing was held on June 11 and 17, 1986. The court modified this sentence on June 23, 1986, nunc pro tunc to June 11, 1986, as follows: 1. That the Applicant be on probation for a period of three (3) years from this date; 2. That the Defendant serve one (1) year in the county jail and shall be permitted to serve that time in the Morrill County Jail, Bridgeport, Morrill County, Nebraska, with work release authorized consistent with rules of that facility; 3. That the Defendant obey all laws and remain on his good behavior; 4. That the Defendant fully cooperate with the Court Services Department in all reasonable requests and recommendations; 5. That there be a judgment entered in the sum of $10,000.00 as restitution for investigative costs, said judgment to be in favor of the State Drug Enforcement Unit, Division of Criminal Investigation, Pierre, South Dakota; 6. That the Defendant pay the restitution upon a schedule to be set up with his Court Services Officer and approved by the Court; 7. That the Defendant submit his person to a test of his blood, urine or other bodily specimens at any time that he is requested to do so by any law enforcement office or court services officer and that he refrain from the use [or] consumption of any illegal drugs or substance; 8. That the Defendant submit his person, vehicle and home to a warrantless search to determine whether or not he is complying with the above provisions; 9. That the Defendant perform 100 hours of community service per year during the three (3) year period of the suspension upon a schedule approved by his Court Services Officer; and 10. That the Defendant surrender himself to the Morrill County Jail on or before 5:00 o'clock P.M. on the 23rd day of June, 1986, to commence service upon the sentence [and] that he be given credit for 21 days previously served in the Fall River County Jail and State Penitentiary on this file. Grosh was living in Bridgeport, Nebraska at the time his sentence was modified on June 23, 1986. Supervision of Grosh's probation was not transferred to the state of Nebraska, but was retained by the Seventh Judicial Circuit court service officer and the court in South Dakota. Grosh was accepted for a work release program by Sheriff Sterkel of the Morrill County Jail, Bridgeport, Nebraska on June 11, 1986. In June 1986, the court indicated to Sheriff Sterkel by telephone that it wanted pretty strict guidelines on Grosh, that it did not want him running back home, and that it wanted the sentence to be uncomfortable. Grosh commenced serving his jail time on work release under such terms and conditions that were consistent with the policies of the Morrill County Jail, which included spending from 1:00 p.m. to 5:00 p.m. daily in the Morrill County Jail. Grosh spent the remaining hours of the day either working at the convenience store, the restaurant, or the motel at Bell's Restaurant, or sleeping. No telephone calls were received by Sheriff Sterkel in July, August, September, October or November of 1986 from either the court or the court service officer. In November, Sheriff Sterkel indicated to Grosh that it would accommodate the sheriff if Grosh did not come in for work release for three days in November of 1986 because he had staffing problems and no deputies available. In December of 1986, Sheriff Sterkel received a telephone call from the court indicating that it was upset that Grosh was spending less time in jail than it had wanted. Sheriff Sterkel indicated that Grosh would be spending more time in jail. In addition, the court advised the court service officer that it wanted to know if Grosh was paying restitution in this matter. The court service officer wrote to Grosh concerning a plan for paying the court ordered restitution of $10,000. Grosh wrote back with his restitution plan which indicated that he could only pay $50 per month because he was required to pay $25 per day for each day that he spent in jail on work release from June 11, 1986. When the court service officer brought Grosh's restitution plan to the judge, he indicated that a review hearing should be scheduled to evaluate the arrearages on the restitutionary amount of $10,000. This hearing was scheduled for December 5, 1986, in the Fall River County Courthouse. At the hearing the judge indicated that he was concerned as [T]here does not appear to be any effort being made at this time to pay on the arrearages—the ten thousand Dollars that has been ordered by this Court to be paid by the Defendant, as well as reviewing the circumstances as they exist at this time. During the hearing, it became apparent to the court that the work release was not in accordance with some preconceived notion of work release the court had in mind, but was within the four corners of the order modifying sentence. The court indicated that the work release program was more of a priority than establishing a clear amount of paying the obligation owed by Grosh. The court further indicated that Grosh did not have an ownership interest in the Bell Restaurant, and that Grosh had misrepresented this to the court at the prior hearing. The court concluded that there was an abuse of the court order and felt that the just approach would be to deny Grosh any further work release. The court then ordered Grosh to have work release ten hours only per day effective December 5, 1986 through December 27, 1986, and that Grosh's work release privileges be completely terminated as of December 28, 1986. On December 27, 1986, Grosh was returned to the Fall River County Jail to serve his jail sentence full-time until January 15, 1987, when he was granted bail by the Supreme Court.",facts
+641,1597330,1,1,"This domestic case is appealed from the Chancery Court of Leflore County. After a hearing held on November 24, 1992, the chancellor entered an order dated December 2, 1992, which, among other things, reduced the amount of child support the appellee/complainant, James Henry Ferguson (James), was required to pay to his ex-wife, Shirley Bain Ferguson Shipley (Shirley), from $450.00 per month to $400.00. This order also modified the original divorce decree to allow James to claim the oldest of the couple's two children as a tax exemption so long as his child support payments are not in the arrears more than thirty (30) days. Finally, the chancellor denied Shirley's request for attorney's fees. From this ruling, Shirley now brings her appeal to this Court assigning as error the following: I. WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG IN REDUCING FATHER'S MONTHLY CHILD SUPPORT OBLIGATION AFTER FINDING THAT NO MATERIAL CHANGE IN THE CIRCUMSTANCES OF THE PARTIES HAD OCCURRED SINCE THE ENTRY OF THE ORIGINAL DECREE. II. WHETHER THE LOWER COURT WAS MANIFESTLY WRONG IN AMENDING THE PRIOR DECREE TO PERMIT THE FATHER TO CLAIM ONE CHILD AS AN EXEMPTION FOR TAX PURPOSES WHERE THE ISSUE WAS NEITHER RAISED BY THE PLEADINGS NOR TRIED BY CONSENT. III. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR IN REFUSING TO AWARD ATTORNEY'S FEES TO WIFE. In addition to these assignments of error, Shirley has filed a motion for attorney's fees asking this Court to award her attorney's fees against James in an amount determined by this Court.",introduction
+642,6338261,1,6,"Here, the district court ordered the DNA testing that Buckman requested, and the State does not argue in its brief that the court erred in doing so. We begin by recalling the proc­ ess after such testing is ordered and results are received. 1. Procedure In the appeal from Buckman’s first proceeding under the DNA Testing Act, we set forth the procedure applicable after a court orders DNA testing. 9 Subsequent amendments to the act have not altered the procedure. 10 After DNA testing results are obtained, the question is whether the evidence obtained exonerates or exculpates the movant. Based on the test results, the movant may obtain relief in one of two ways, each of which requires a different quantum of proof. As previously noted, when the test results exonerate or exculpate the movant, the court may “vacate and set aside the judgment and release the person from custody.” § 29-4123(2). However, if the court does not vacate and set aside the judgment, the movant may file a motion for new trial based upon “newly discovered exculpatory DNA or similar forensic testing obtained under the DNA Testing Act.” 11 We elaborated on when a court may vacate a conviction and release the person under § 29-4123(2) and when it may order a new trial under § 29-4123(3). 12 We explained: 8 Id. 9 State v. Buckman, supra note 6. 10 See, 2015 Neb. Laws, L.B. 245, § 3; 2007 Neb. Laws, L.B. 296, § 48. 11 State v. Buckman, supra note 6, 267 Neb. at 515, 675 N.W.2d at 381. 12 See State v. Buckman, supra note 6. - 314 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 [T]he court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. . . . This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. . . . [I]n other circumstances where the evidence is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. 13 2. Whether Results Are Exonerative or Exculpatory [3] With this understanding, we turn to consideration of whether the DNA testing results exonerated or exculpated Buckman. We recall that postconviction DNA evidence that does not falsify or discredit evidence that was necessary to prove an essential element of the crime does not exonerate the movant. 14 DNA testing results that are not incompatible with trial evidence of the movant’s guilt fail to exonerate the movant of guilt. 15 We are also mindful of the definition of exculpatory evidence contained in the DNA Testing Act: “[E]xculpatory evidence means evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody.” 16 13 Id. at 518, 675 N.W.2d at 383. 14 See State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012). 15 Id. 16 See § 29-4119. - 315 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 Buckman argues that the DNA testing results contradict the State’s theory at trial and create a reasonable doubt about guilt that would have produced a substantially different result at trial. Because the State presented evidence at trial that blood consistent with that of Stawkowski was on the steering wheel cover and floormats of Buckman’s car but subsequent DNA testing found no evidence of blood, he contends that the scientific evidence used by the State to place him at the scene of the crime has been discredited. [4] The results of testing on the steering wheel cover and floormats is best regarded as inconclusive. When DNA test results are either inculpatory, inconclusive, or immaterial to the issue of the person’s guilt, the results will not entitle the person to relief under the DNA Testing Act. 17 Although Helligso was unable to detect any blood on the steering wheel cover or floormats, she testified that did not mean an expert who said there was blood present in 1988 was wrong. Buckman also contends that the DNA testing yielded exculpatory evidence because it excluded him as the source of semen/sperm found on Stawkowski at the time of her death. We disagree that the result fits within the definition of exculpatory evidence. What is important is that evidence must be “material to the issue of the guilt of the person in custody” in order to be exculpatory. 18 Buckman was not charged with a sexual assault, and his exclusion as the source of the semen was not material to whether he was guilty of murder or using a weapon to commit a felony. We also disagree with Buckman’s characterization of the evidence at trial regarding the semen. He called such evidence “exhaustive,” 19 “a great measure of evidence,” 20 and “a 17 State v. Amaya, supra note 7. 18 See § 29-4119. 19 Brief for appellant at 41. 20 Id. - 316 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 s­ potlight [of] the prosecution.” 21 The bill of exceptions from the trial spanned over 1,600 pages; fewer than 40 of those pages referred to semen, sperm, or Stawkowski’s sexual activity. Forty-six witnesses testified; four of those witnesses provided testimony about semen and Stawkowski’s having sexual intercourse. Over 200 exhibits were offered; 5 exhibits related to either Stawkowski’s panties or swabs from her vagina and rectum. The trial record shows that evidence concerning semen was a small part of the overall picture. To begin, the prosecution warned in its opening statement that there was “no indication that [Stawkowski] had been sexually assaulted” or that the semen discovery “has anything to do with this case.” Then, Stawkowski’s husband testified that he did not have knowledge of Stawkowski’s having sexual intercourse with anyone on the day in question. Next, Till, the pathologist, testified that Stawkowski’s body was fully clothed, that he found sperm in her vagina, and that the sperm could have been there within 8 hours of her death. After that, Schanfield testified that following testing of the panties extract and vaginal swab extract— which were among a number of items he tested—he was unable to draw any conclusions as to the genetic markers of the person responsible for the semen. Later, Roy offered her testimony about the numerous items of evidence she tested, which included testimony that Buckman was among the 35 percent of the male population who could be the possible semen donor and that the semen she found on the vaginal swab could not have been there longer than 12 hours. Moving to closing arguments, semen was first mentioned by the defense. Finally, in the State’s rebuttal argument, the prosecutor told the jury that whether the murderer also committed a sexual assault was “not one of the mysteries of the case that we have to solve.” The presence of semen from someone other than Stawkowski’s 21 Id. at 42. - 317 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 husband seemed to be more of an unexplained happenstance than a focal point of the prosecution. Buckman relies on State v. Parmar. 22 There, a jury convicted LeRoy J. Parmar of first degree murder. Two eyewitnesses at trial testified that Parmar had physically assaulted the victim and that he was the only male present when the victim was robbed and killed. 23 Subsequent DNA testing on bloodstains found on the victim’s bedsheet excluded Parmar as a contributor. Two of the six samples contained mixed DNA from two male contributors—although the male victim was a contributor, Parmar was not. We agreed with the trial court that the DNA testing results did not exonerate Parmar; however, we determined that the court erred in denying Parmar a new trial. We noted that the testing results completely excluded Parmar as a contributor to the DNA samples found on the victim’s bedsheet, that the results established the presence of an unidentified male’s DNA, and that the results were contrary to the testimonies of two key eyewitnesses against Parmar. We concluded that the DNA testing results tended to create a reasonable doubt about Parmar’s guilt and that they were probative of a factual situation different from that testified to by the State’s two eyewitnesses against Parmar. Parmar is distinguishable. There, the testimonies of the two eyewitnesses were the key evidence against Parmar and the DNA testing results were probative of a situation contrary to their version of the facts. In the instant case, there was no eyewitness to the murder. Nor was there evidence that Stawkowski had been sexually assaulted at the time of the murder. And as discussed next, a multitude of other circumstantial evidence tied Buckman to the murder. [5] If DNA testing does not detect the presence of a prisoner’s DNA on an item of evidence, such result is at best inconclusive, especially when there is other credible evidence 22 State v. Parmar, supra note 14. 23 See id. - 318 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 tying the defendant to the crime. 24 Evidence at trial established that Buckman was dissatisfied with either the quantity or the quality of drugs he was buying from Stawkowski and that he had threatened to steal drugs from Stawkowski. When Stawkowski’s body was found, her purse—which had contained cocaine—was missing. The day prior to the murder, Buckman was trying to sell clothing to get money needed to pay Fisher’s babysitter. After the murder, and after Stawkowski’s purse containing approximately $2,000 went missing, Buckman spent large amounts of money and still possessed over $600 at the time of his arrest. Hours before the murder, Buckman had a gun in his possession; the same caliber gun was used to shoot Stawkowski. A cellmate of Buckman testified that Buckman bragged of killing Stawkowski over drugs, taking “$4500 of drugs” from her, and using it to pay off debts. Other evidence tied Buckman to the scene of the murder. Witnesses placed Buckman with Fisher in the hours before and after the murder, and Fisher was picked up on a road near the location of the murder at approximately 1:30 a.m. Buckman was known to wear slippers in public, and slippers were located near the murder scene. Buckman smoked Kool cigarettes and opened his cigarette packages from the bottom. A Kool cigarette butt was found in Stawkowski’s car and testing showed that Buckman fell within the 4.8 percent of the African-American population who could have smoked it. A package of Kool cigarettes, opened from the bottom, was located in a field near Stawkowski’s car. Stawkowski could not be excluded as the source of blood found on items of clothing that Buckman was wearing at the time of his arrest, on the slippers found near the murder scene, and on the steering wheel cover and floormats of Buckman’s car. In sum, the evidence regarding blood on the steering wheel cover and floormats was inconclusive and the evidence 24 State v. Amaya, supra note 7. - 319 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BUCKMAN Cite as 311 Neb. 304 excluding Buckman as the source of the semen was not material to the crimes charged. Given all of the other evidence linking Buckman to the crimes, the testing results were not of such a nature that they probably would have produced a substantially different result if offered at trial. We find no error in the district court’s findings of fact, and we conclude the court did not abuse its discretion in sustaining the State’s motion to dismiss.",analysis
+643,1608190,1,7,"¶ 31. We find no merit to the arguments set forth by the Foundation and affirm the judgment of the Chancery Court of Madison County. ¶ 32. AFFIRMED. PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, WALLER, COBB, DIAZ and EASLEY, JJ., CONCUR.",conclusion
+644,1631779,2,2,"¶ 14. Netherland was convicted of aggravated assault under Miss.Code Ann. § 97-3-7(2) which sets forth the elements of aggravated assault: A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. . . ¶ 15. On the issue of the legal sufficiency of the evidence, this Court held in Pinkney v. State, 538 So.2d 329, 353 (Miss. 1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), that reversal can only occur when evidence of one or more of the elements of the charged offense is such that reasonable and fair minded jurors could only find the accused not guilty. (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). ¶ 16. Denials of peremptory instructions, motions for directed verdict and motions for judgment notwithstanding the verdict each challenge the legal sufficiency of the evidence presented at trial and each are reviewed under the same standard. Community Bank v. Courtney, 884 So.2d 767, 772 (Miss.2004). This Court has held that under its standard of review, denial must be reviewed as follows: This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered points so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. Id. ¶ 17. [T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). Here, Netherland filed a motion for new trial which the trial court denied. However, a motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. However, on appeal, Netherland's argument challenges the sufficiency of the evidence, not the weight of the evidence. ¶ 18. Netherland did move for a directed verdict at the close of the State's case-in-chief. The trial court denied that motion. ¶ 19. Netherland contends that he filed peremptory jury instruction, D-1, which was refused by the trial court. The refused jury instruction, D-1, stated: The Court instructs the Jury to return a verdict of not guilty. ¶ 20. Stevens received serious injuries as a result of the attack. He testified that he suffered two broken ribs, a broken shoulder, a broken hip and internal bleeding. As a result of the broken hip, he had to use a wheelchair. The hip and the shoulder required surgery. Chamblee and King testified that Netherland was involved in the attack on Stevens. Chamblee, King and the victim, Stevens, all testified that Netherland took an active part in the attack. The attack resulted from Stevens informing the guards that Chamblee, King and Netherland were using drugs in the detention center. Stevens positively identified Netherland and stated that Netherland had subsequently apologized for the attack. The State's witnesses could not positively say Netherland kicked Stevens rather than just hit him. Netherland did not testify, and the defense did not call any witnesses. However, Officer Wilcher testified that in the statement taken from Netherland on March 24, 2004, Netherland added the following language to the written statement: [a]ll three of us were kicking and hitting William then. The written statement was admitted into evidence. ¶ 21. Given this proof, we reject Netherland's claim that the State failed to prove the elements of the crime charged.",sufficiency of the evidence
+645,6332119,1,6,"For the foregoing reasons, we reverse the order of the district court granting Bixby’s motion for absolute discharge and remand the cause for further proceedings consistent with this opinion. Reversed and remanded for further proceedings. Freudenberg, J., concurring. I agree with and join the majority opinion but write separately because I believe Bixby invited and consented to the trial date that he complains on appeal resulted in a violation of his statutory right to a speedy trial. At a hearing held on October 14, 2020, the State requested that the court set a date for trial. The State reminded the court of the 6-month deadline, stating that “right now we’re within the six months we have from the filing of the mandate for speedy trial purposes.” The State offered to be available for trial whenever the court set the date. Bixby’s counsel did not comment regarding the State’s speedy trial calculations, but he opposed setting a trial date at that time because certain pretrial motions had not yet been decided. The court acceded to the request of Bixby’s counsel that a trial date not yet be set. At a later hearing held October 26, 2020, the court took under advisement a motion to vacate and indicated it wished to set a date for trial. Counsel for Bixby again demurred to setting a trial date, because additional pretrial motions were not yet decided and a pretrial conference might be needed. But this time the court insisted that a date be set. When the court asked the State when the case needed to be tried by, the State reiterated its understanding that the speedy trial date would be February 26, 2021. Again, counsel for Bixby did not expressly comment on this calculation, instead stating collegially, “Do we want to do it early February?” The court proposed an earlier trial date of January 26, 2021. Bixby’s counsel responded he had been planning to be out - 122 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. BIXBY Cite as 311 Neb. 110 of town but could make that date work. The court reporter inquired again as to “the cutoff date,” to which the court repeated, “February 26.” Bixby’s counsel then said, “January 26 is fine. I’ll make it happen. I was thinking in February, but January 26.” In sum, the court and the State attempted to engage in transparent discussions with Bixby’s counsel to set a date agreeable to everyone, which would not trigger statutory discharge. Bixby’s counsel initially opposed setting a trial date; repeatedly made no attempt to correct the State’s and the trial court’s expressed understanding of when the statutory speedy trial date would run; agreed to the January 26, 2021, date, while noting he “was thinking in February”; and then he silently waited until a week before the January 26 trial date before filing a motion for absolute discharge based on the statutory right to a speedy trial. I oppose such gamesmanship. To reiterate the reasoning of my concurring opinion in State v. Coomes, 1 the defendant should not be able to complain of an alleged statutory speedy trial violation the defendant was a party to. While I agree with the majority opinion that the speedy trial clock did not run, it is my opinion that a calculation of the excludable periods was not necessary. Bixby waived any objection to the statutory 6-month speedy trial period based on a trial date that was set with his active consent. 1 State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021) (Freudenberg, J., concurring).",conclusion
+646,1836985,1,9,"For the reasons stated above, we affirm Butler's conviction for first-degree murder and his sentence of death. It is so ordered. WELLS, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur. WELLS, J., concurs with an opinion. ANSTEAD, C.J., concurs in part and dissents in part with an opinion. PARIENTE, J., concurs in part and dissents in part with an opinion.",conclusion
+647,4544456,1,2,"[1] The construction of a mandate issued by an appellate court presents a question of law on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. 10 [2] In cases where no statement of errors was filed and the district court reviewed for plain error, the higher appellate court likewise reviews for plain error only. 11 [3] Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. 12 10 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017). 11 Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018). 12 Id. - 502 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports TRANSCANADA KEYSTONE PIPELINE v. TANDERUP Cite as 305 Neb. 493",standard of review
+648,6338269,1,1,"Adam S. Morfeld filed for election as Lancaster County Attorney. Objectors sought to exclude him from the primary - 163 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports NEBRASKA REPUBLICAN PARTY v. SHIVELY Cite as 311 Neb. 160 election ballot, 1 on the ground that he had not “practiced law actively” for the statutory period. 2 The election commissioner denied the objection. The objectors then filed an application to a district court judge under § 32-624. After the judge denied the application and requests to conduct discovery and expand the record, this appeal followed. 3 Due to the summary nature of a proceeding under § 32-624, we find no abuse of discretion by the district court in denying discovery. Based on the plain and ordinary meanings of “practiced law” and “actively,” we conclude that Morfeld’s routine activities in connection with his employment as executive director fall within the meaning of “practiced law actively” and that he has engaged in such activities for the relevant 2-year period. Because we conclude that Morfeld satisfies the statutory qualifications to seek nomination for the office of county attorney, we affirm the order of the district court.",introduction
+649,879812,1,2,"Did the District Court abuse its discretion in not considering the nonmonetary contributions of the appellant to the marriage and to the preservation of the marital assets? Appellant maintains the court should consider the nonmonetary contributions of a spouse when dividing the marital assets. This assertion is correct. See § 40-4-202(1), MCA; and Eschenburg v. Eschenburg (1976), 171 Mont. 247, 251, 557 P.2d 1014, 1016; In re Marriage of Dow (Mont. 1988), 750 P.2d 1064, 45 St.Rep. 317. In this case however, the court did consider the contribution of the appellant toward maintaining the marital assets. Unfortunately the court determined her contribution toward the marital assets were lost when the parties deeded back the marital home to the bank in satisfaction of the mortgages on the property. The husband's contribution of his time and effort was also lost at that time. Further, while the parties experienced a reduction in their net worth over the length of the marriage, the court appears to have attempted to return appellant to her maximum net worth at the time of the marriage. In light of the short duration of the marriage and the reduction of the husband's premarital net worth this does not appear to be an inequitable division.",issues
+650,1788368,1,1,"The evidence demonstrated that on the morning of August 31, 1995, Mr. Ladwig was at home with the child. Rakaan's mother fed Rakaan and left for work before 7:00 a.m. At a few minutes after 8:00 a.m. she received a telephone call from Mr. Ladwig. He told her that Rakaan was making funny noises and would not wake up. Ms. Ellsworth rushed home to find Rakaan in his crib with his eyes dilated and unblinking. They took Rakaan to Jefferson Regional Hospital in Pine Bluff. Rakaan did not respond to any of the treatment administered at the Hospital, so he was airlifted to the Arkansas Children's Hospital in Little Rock. Rakaan did not regain consciousness. He was pronounced brain dead and removed from life support equipment. He died on September 1, 1995. When Rakaan was being treated at Jefferson Regional Hospital, the doctors noticed several bruises on his body and a large knot on his forehead. They determined that the bruises, the severe swelling of his head, and his other injuries were evidence of child abuse. Police detectives questioned Ms. Ellsworth and Mr. Ladwig at the Hospital. Mr. Ladwig went to the police station. He was advised of his rights and signed a waiver at 10:07 a.m. He then gave the first of three statements. In the first statement he said that the knot on Rakaan's forehead was the result of a fall which occurred on the playground. He also claimed that he fell on Rakaan causing him to hit his head on the side of the swimming pool on the evening of August 30. According to the first statement, when he checked on Rakaan at about 7:35 that morning, he discovered that Rakaan had not finished his bottle. Mr. Ladwig told the officers that he could not awaken Rakaan, changed Rakaan's clothes, and then began to shake him to wake him up. He called Ms. Ellsworth because Rakaan remained unresponsive. Later, Mr. Ladwig admitted that he had not been entirely truthful and agreed to give a second statement. In that statement he confessed that the bruises on Rakaan's legs were probably caused by his squeezing the child's leg too hard. He explained the child's bruised stomach by saying that on the day before Rakaan's hospitalization, He wouldn't be quiet and stuff, so I would lay him down and I would slap him with my hand open on his stomach and I'd do that four or five times, and I don't know, I just kept doing it. When questioned about the knot on the victim's forehead, Mr. Ladwig said, He was doing the same thing, and blew up and stuff and I pushed him from behind and [he] fell forward and hit his head on the door. Mr. Ladwig told investigators that he bruised Rakaan's ears by squeezing them and shaking the victim on two or three occasions. Although denying that he picked the child up by the ears, he said, I picked him up and had my hands on his ears and was shaking him and I probably squeezed too hard. That occurred in the last couple of days. Mr. Ladwig also admitted that in the same time period he probably hit [Rakaan] up side the head once or twice in an effort to quiet him. When questioned about his activities on that morning, Mr. Ladwig continued to claim that he shook the child only in an effort to wake him. The police arrested Mr. Ladwig after this statement was concluded. Mr. Ladwig gave a third statement on September 3, 1995. In this statement, he said that he panicked when he could not awaken Rakaan and that he placed his hands on the child's shoulders and shook him in his crib. He admitted that, at the time, he felt like his previous actions had caused the child's unconsciousness. When questioned about the knot on the back of Rakaan's head, he said: The only thing I can think of is when I was shaking him in the crib he hit the, hit the crib, or I hit him on the top of the crib or something when I was shaking him, or something.    I don't know. I mean he might have hit his head and he probably did, because I had him right by the top and it was shaking and his head was going back and forth, and that's probably where he hit his head.    I probably shook him for more than ten minutes.    I was shaking him more than a little bit. Mr. Ladwig also admitted that he knew that slapping a child could hurt him, and that he had heard that a child could be injured if shaken. In regard to shaking a baby, Mr. Ladwig said: You shake them so much that it, I mean you can do damage to their head.    You could kill, probably kill them, or serious, you know, seriously give them head damage or something. I don't know if that's—I don't know a whole lot about it, but I know you probably could kill them if you shook them or something. At trial, the State introduced all three of the statements given by Mr. Ladwig. The State also produced testimony from Dr. Erickson, an associate medical examiner at the Arkansas State Crime Laboratory. He told the jury that the cause of death was craniocerebral trauma. A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 879 S.W.2d 409 (1994); Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra ; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Evans v. State, supra ; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747, (1993). In determining whether substantial evidence exists, the Court reviews the evidence in the light most favorable to the appellee. Id. According to Ark.Code Ann. § 5-2-202 (Repl.1993), A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. The evidence was sufficient to show that Mr. Ladwig struck and shook the child knowing that the result could be serious injury or death. The motion for directed verdict was properly denied.",sufficiency of the evidence
+651,4545780,1,1,"After Kirk E. Brumbaugh obtained a jury verdict for less than the statutory minimum, he moved for attorney fees authorized but not mandated by statute. The district court denied the request. On appeal, we decline Brumbaugh’s invitation to abandon our longstanding procedure and to instead require that a trial court provide an explanation of its reasons regarding a fee decision. Finding no abuse of discretion, we affirm the district court’s judgment awarding no fees or costs.",introduction
+652,2077157,2,1,"[¶ 28] Waterman argues that the court erred in denying his motion for judgment of acquittal because, based on the facts presented at trial, the jury could not have rationally concluded beyond a reasonable doubt that Waterman committed the two murders. [¶ 29] We review the denial of a motion for judgment of acquittal by viewing the evidence in the light most favorable to the State to determine whether a jury could rationally have found each element of the crime proven beyond a reasonable doubt. State v. Standring, 2008 ME 188, ¶ 12, 960 A.2d 1210, 1212. Circumstantial evidence, even if contradicted by direct evidence, may support a criminal conviction and the proof need not eliminate all alternative explanations of innocence, as long as the record as a whole supports a conclusion of guilt beyond a reasonable doubt. State v. Moores, 2009 ME 102, ¶ 10, 982 A.2d 318, 320 (quotation marks omitted); State v. Bates, 2003 ME 67, ¶ 22, 822 A.2d 1129, 1134. [¶ 30] A person is guilty of murder if the person . . . intentionally or knowingly causes the death of another human being. 17-A M.R.S. § 201(1)(A). At trial, it was undisputed that Mayberry and Smith were dead and that their killings were intentionally or knowingly caused. The issue was whether Waterman caused their deaths. [¶ 31] Here, the evidence was sufficient for a jury to have rationally found beyond a reasonable doubt that it was Waterman who murdered Mayberry and Smith. Waterman was angry with Mayberry, and he said that he was going to kill him. Shortly after Mayberry's neighbors heard several gunshots, Waterman's neighbor saw him driving his Jeep home with his headlights off and then heard him shouting, Hurry up, hurry up to someone. The morning after the killings, Waterman went into Mayberry's house to pick up medication and left without calling the police despite seeing many bloodstains. Before anyone discovered the bodies, Waterman asked his wife to say that she sold the Llama .380 and told her that she would see Mayberry on the news. [¶ 32] Furthermore, the bullets recovered from the bodies and the shell casings found at Mayberry's house were fired from the same Llama .380 handgun that Waterman had acquired in late June. The live bullets found at Waterman's home also matched the bullets and casings from the bodies and the house, and the tire impression in Mayberry's driveway matched a specific tire on Waterman's Jeep. [¶ 33] In light of this evidence, the court did not err when it denied Waterman's motions for judgment of acquittal.",sufficiency of the evidence
+653,2524049,1,1,"¶ 1 This case arises from a petition filed by appellants, David C. and Dixie Harvey (the Harveys), seeking disconnection of their land from Cedar Hills City. After this petition was filed in August 2001, but before the district court granted summary judgment in favor of Cedar Hills in June 2008, the legislature amended certain sections of the Utah Code that relate to the standards for granting disconnection (the 2003 amendments). [1] The district court determined that disconnection was prohibited under both versions of the disconnection statute because it found the two versions identical with regard to what it believed to be the single dispositive issue: that disconnection would form an unincorporated island. In this appeal, we must determine whether the district court erred in this determination. To resolve that issue, we must decide (1) which version of the disconnection statute applies to the Harveys' petition; and (2) whether, under the correct version of the law, the district court erred in dismissing the petition based solely on the fact that disconnection would result in an island of unincorporated land. ¶ 2 We hold that because the 2003 amendments substantively modified the criteria for disconnection the 2001 version of the disconnection statute (2001 statute) applies in this case. We further hold that disconnection under the 2001 statute is permissible, even if it results in an island of unincorporated land, if the district court determines that disconnection will not materially increase the burdens borne by the municipality. Because the district court failed to consider whether disconnection of the Harveys' land would materially increase the burdens on Cedar Hills, it erred in granting summary judgment. We therefore reverse the judgment of the district court and remand so that the court may determine the overall impact of disconnection.",introduction
+654,2898045,1,3,"There must be significant discipline to maintain the public’s trust and protect the integrity of the legal system; accordingly, Farris’ request for probation is not appropriate. I would hold that Farris should be suspended indefinitely from the practice of law with no leave to reapply for two years. Further, I would order that Farris must make complete restitution to the two clients harmed by his actions before he may apply for reinstatement. ____________________________ GEORGE W. DRAPER III, JUDGE 8",conclusion
+655,2716594,1,4,"I. Whether the chancery court had appellate jurisdiction over MPC’s amended petition for appeal and review. ¶12. In order to vest the chancery court with appellate jurisdiction over an appeal from the Board of Tax Appeals, a taxpayer must perfect an appeal by posting a surety bond or pay the amount ordered under protest and seek a refund. Miss. Code Ann. § 27-77-7(3) (Rev. 2010)7 ; 7 Amended by 2014 Miss. Laws WL No. 122 (H.B. 1555). 6 Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 855 (Miss. 2012). Mississippi Power chose the latter and thus was statutorily required to “prove by a preponderance of the evidence that [it] alone bore the burden of the tax sought to be refunded . . . and did not directly or indirectly collect the tax from anyone else.” Miss. Code Ann. § 27-77-7(1), (5) (Rev. 2010). ¶13. According to the deposition testimony of its comptroller, Cynthia Shaw, Mississippi Power included its 2011 tax payment, which included the amount paid under protest, in its 2012 look-back Performance Evaluation Plan (Plan) filed with the Mississippi Public Service Commission (PSC). Shaw explained that the PEP “is a mechanism for calculating the revenue requirement, a base rate requirement for the company.” The MDOR argues that, because Mississippi Power included the 2011 tax payment in its 2012 look-back PEP filing, it recouped the taxes it paid under protest via rates charged to its customers. As such, the MDOR argues that Mississippi Power “shifted the burden of the tax payment to its customers . . . [and] did not prove by a preponderance of the evidence that it alone bore the burden of the tax it was seeking to recover . . . .” ¶14. The chancellor found this Court’s decision in Monaghan v. Southern Bell Telephone and Telegraph Company, 136 So. 2d 198 (Miss. 1962), controlling. In that case, the MDOR assessed $43,489.76 in additional sales taxes against Southern Bell, which represented “two per cent of the gross income . . . derived from sales of intrastate . . . . telephone services to government agencies” from April 1, 1955, through July 31, 1956. Id. at 198-99. Southern Bell paid the amount under protest and appealed to chancery court, arguing that the 7 additional taxes “should not apply to sales of telephone services to governmental agencies.” Id. ¶15. Prior to 1954, sales billed directly to governmental agencies were not exempt from taxes; thus, Southern Bell was required to remit taxes on those sales to the MDOR. Like Mississippi Power, Southern Bell’s rates were “fixed by the Mississippi Public Service Commission[.]” Id. at 200. In fixing Southern Bell’s rates, the PSC “first determined the overall intrastate revenue requirements of the company, taking into account the operating expenses and taxes of the company[.]” Id. It was . . . stipulated . . . that, in presenting facts to the Public Service Commission to enable it to determine the general revenue level to be allowed, Southern Bell, in each instance since the enactment of the Sales Tax Law in 1932, and up until June 15, 1954, presented to the Commission as an expense item, along with all other expenses, such as salaries, wages, ad valorem taxes, franchise taxes etc., an amount equal to two per cent of the gross income of its intrastate business; and that the Public Service Commission in its rate hearings considered and accepted the two per cent tax as an expense item in determining and settling the general revenue level which the company was entitled to receive. Id. at 201. The PSC “then prescribed or approved a schedule of individual rates and charges which would produce the amount of revenue required to meet the operating expenses and taxes of the company and provide a fair rate of return to the company upon the reasonable value of its intrastate property.” Id. at 200. ¶16. In 1954, the Legislature amended the applicable statute to provide that “tax[es] levied and assessed under this act shall not apply . . . when such sales are billed directly to and payment therefor is made directly by the United States Government, the State of Mississippi, 8 its departments and institutions, counties and municipalities.” Id. at 199-200. Despite the 1954 amendment, no subsequent “change was made in the rates charged such customers[.]” Id. at 201. Because Southern Bell continued to collect the same rates after the removal of that particular tax expense from its revenue requirement, the MDOR argued that Southern Bell recouped the taxes from its customers, thus “failing to allege and prove . . . that it alone bore the burden of the tax sued for and did not directly or indirectly collect the tax from its customers.” Id. at 202. ¶17. The Southern Bell Court rejected the MDOR’s argument, stating: The tax was never added to the telephone subscribers’ bills as a separate charge. The tax was treated by the Public Service Commission as a part of the cost to the company of furnishing services and in the fixing of rates and charges was intermingled with other operating expenses of the company and absorbed in the composite rates approved by the Commission. Id. at 204. Because the taxes were “absorbed” into the rates and indistinguishable from all other expenses considered by the PSC to determine Southern Bell’s revenue requirements for rate-setting purposes, the Court held that Southern Bell “alone bore the burden of the tax to be recovered.” Id. ¶18. In the case sub judice, Shaw explained the various costs, including the use taxes, that Mississippi Power presented to the PSC for consideration of Mississippi Power’s revenue requirement. Shaw testified that she could not “tell . . . how much tax was collected through the rates” because taxes are an “indistinguishable part of the overall revenue requirement calculation.” She testified that “use taxes . . . become part of the costs of projects” and are “not tracked as taxes in the accounting records, and they’re not separate in the filings as 9 taxes, and they’re not included on the bill as taxes.” Shaw further explained that “[i]n the case of . . . taxes, like income taxes, use taxes, payroll taxes, there is not a dollar for dollar recovery. Those things are included in the overall calculation of revenue requirement and they’re not identifiable components of the revenue requirement calculation, and that overall revenue requirement is then used to determine those detailed rate schedules or prices to customers.” ¶19. Shaw’s unrefuted testimony fits squarely with this Court’s decision in Southern Bell. While the use-tax assessment admittedly was included in Mississippi Power’s 2012 lookback PEP filing, the use tax was only one consideration of the PSC in determining Mississippi Power’s overall revenue requirement. If recovered at all, the use taxes “were absorbed in the . . . rates approved by the” PSC and were “never added to the [ratepayers’] bills as a separate charge.” Id. at 204. Mississippi Power met its burden to “prove by a preponderance of the evidence that [i]t alone bore the burden of the tax sought to be refunded . . . and did not directly or indirectly collect the tax from anyone else.” Miss. Code Ann. § 27-77-7(1), (5) (Rev. 2010). Therefore, the chancery court had appellate jurisdiction over this suit. II. Assuming the chancery court had appellate jurisdiction over Mississippi Power’s appeal, whether the court erred in finding the definition of “pollution control equipment” in Mississippi Code Section 27-65-101(1)(w) to be unambiguous, and in failing to afford deference to the MDOR’s interpretation of “pollution control equipment” in Mississippi Administrative Code 35.IV.7.03(302). 10 ¶20. We will first address the ambiguity, vel non, of Section 27-65-101(1)(w). When called upon to examine a statute, “the Court first looks to the language of the statute.” Lawson v. Honeywell Intern., Inc., 75 So. 3d 1024, 1027 (2011) (citing Pinkton v. State, 481 So. 2d 306, 209 (Miss. 1985)). “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.” Id. (citing Clark v. State ex rel. Miss. State Med. Ass’n, 381 So. 2d 1046, 1048 (Miss. 1980)). ¶21. Section 27-65-101(1) reads, in pertinent part: The tax levied by this chapter shall not apply to the following: .... (w) From and after July 1, 2001, sales of pollution control equipment to manufacturers or custom processors for industrial use. For the purposes of this exemption, “pollution control equipment” means equipment, devices, machinery or systems used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation. Miss. Code Ann. § 27-65-101(1)(w) (Rev. 2010) (emphasis added). ¶22. It is undisputed in this case that Mississippi Power acquired and used the low-NOx burners to reduce NOx emissions in order to comply with federal regulations. The existing burners at Plant Daniel and Plant Watson had not reached the end of their life cycles. Additionally, the low-NOx burners are less efficient in production than the existing burners. However, because of changes in the federal regulations (the “Clean Air Act” and “Clean Air Insterstate Rule”), Mississippi Power was required to reduce its NOx emissions or purchase 11 emissions credits from other producers. Rather than purchase emissions credits, Mississippi Power elected to invest in low-NOx burners and reduce its pollution output. The undisputed testimony is that the low-NOx burners have reduced Mississippi Power’s pollution output by 50 percent in each boiler in which the burners were installed. ¶23. The low-NOx burners purchased and installed by Mississippi Power satisfy the plain language of the statutory definition – they were “used or acquired to prevent, control, monitor or reduce air, water or groundwater pollution, or solid or hazardous waste as required by federal or state law or regulation.” Miss. Code Ann. § 27-65-101(1)(w) (Rev. 2010). The MDOR never has argued that the low-NOx burners do not meet the statutory definition. ¶24. Instead, the MDOR argues that the statute is ambiguous by “virtue of [its] silence” because it fails “to address the situation where a manufacturer purchases equipment . . . that is necessary for day-to-day business operations and the final marketable product of the manufacturers, yet may also have a pollution control effect.” 8 It is the MDOR’s position that equipment which serves a dual purpose (production and pollution control) does not qualify for the exemption under Mississippi Administrative Code 35.IV.7.03 because the equipment is not used “exclusively and directly” for pollution control. The MDOR further contends that the regulation was necessary to prevent “an exemption free for all.” 8 This Court has stated that “statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue.” Buffington v. Mississippi State Tax Comm’n, 43 So. 3d 450, 454 (Miss. 2010) (quoting Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600, 607-08 (Miss. 2009)). 12 ¶25. Whether the statute creates a potential tax loophole is the concern of the Legislature, not this Court. Despite its contention that it did not restrict or redefine the statute in promulgating Mississippi Administrative Code 35.IV.7.03 (302), the MDOR did in fact redefine and restrict the term “pollution control equipment.” Both the statute and the regulation provide that “pollution control equipment means . . . .” (Emphasis added.) After this introductory statement, the statute and regulation are verbatim, except that the regulation altogether removed the words “or acquired” and replaced them with the adverbs “exclusively and directly.” We conclude that the insertion of the adverbs “exclusively and directly” places a more stringent requirement on the “use” of the “pollution control equipment” than that provided by the Legislature. ¶26. In essence, the MDOR rewrote the exemption provision to provide what it believes the Legislature should have written and adopted to reflect what the MDOR calls a “good tax policy.” This Court, however, does not view statutes in this manner. “The function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Lawson, 75 So. 3d at 1027 (citing Russell v. State, 94 So. 2d 916, 917 (Miss. 1957)). “The Court must not broaden or restrict a legislative act.” Id. (citing Barbour v. State ex rel Hood, 974 So. 2d 232, 240 (Miss. 2008)). Section 27-65-101(1)(w) clearly does not require the equipment be “used exclusively and directly” for pollution-control equipment to be taxexempt. ¶27. Mississippi Code Section 27-65-93 grants the MDOR the authority to “promulgate rules and regulations, not inconsistent with the provisions of the sales tax law . . . .” Miss. 13 Code Ann. § 27-65-93(1) (Rev. 2010). Stated in the negative, the MDOR “may not promulgate rules that alter or amend or negate the effect of a statute and may not overstep [its] authority by creating regulations inconsistent with the controlling statutes.” American Federated Life Ins. Co. v. Dale, 701 So. 2d 809, 812 (Miss. 1997). The MDOR exceeded its authority in promulgating Mississippi Administrative Code 35.IV.7.03(302), for it is inconsistent with the plain language of Section 27-65-101(1)(w).",analysis
+656,1836691,1,1,"We review a summary judgment de novo. In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990). Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).",standard of review
+657,1117673,1,2,"The issue in this case is whether, under 28 U.S.C. § 1367, the statute of limitations for Rester's state-law claims was tolled while his claims were pending in the federal court.",issues
+658,1443319,1,2,"LVN is a wholesale souvenir business. Alfred worked for LVN since LVN's inception in 1983. On January 7, 1987, LVN's principals signed a settlement agreement to resolve their disagreements regarding LVN. Among other things, the settlement required LVN to continue to employ Alfred for seven years. On July 9, 1987, Alfred entered into an employment contract with LVN as required by the settlement. The agreement contained a covenant not to compete. The covenant provided that, if Alfred ever left LVN, Alfred could not sell any souvenirs on a wholesale basis for four years within 20 miles of LVN. At the time the covenant was executed, Alfred also ran a retail souvenir business, a joint venture named M & F Enterprise. According to affidavits submitted by LVN, M & F Enterprise was solely a retail, not wholesale, business. Presumably because Alfred's retail business was not in direct competition with LVN's wholesale activities, the covenant expressly provided that Alfred could continue to run M & F Enterprise if he ever left LVN. This exception provides that Alfred shall be allowed to pursue an interest in all of M & F Enterprise, and Souvenir T-Shirt Place's retail store. M & F Enterprise did not sign the employment agreement containing the covenant. In 1988, after the covenant was executed, Alfred and two others incorporated M & F Enterprise into the legally distinct entity of M & F Enterprises Inc.,  the corporation which is party to this action. Unlike the original M & F Enterprise, M & F's stated purpose now included wholesale of souvenirs, putting M & F into direct competition with LVN. Around June 7, 1988, Alfred stopped working for LVN. Soon thereafter, according to affidavits submitted by LVN, Alfred and M & F began servicing LVN's wholesale customers in direct violation of the covenant not to compete. LVN filed suit, seeking to enjoin both Alfred and M & F from these actions. The court dismissed LVN's suit against M & F without prejudice for failure to state a cause of action. The court permanently enjoined Alfred, but to a lesser degree than called for in the covenant. Specifically, the court enjoined Alfred from engaging in the wholesale souvenir business for one year and within 10 miles of LVN.",facts
+659,2623342,1,2,"The district court has broad discretion in the admission and exclusion of evidence, and its decision to admit such evidence will be reversed only when there has been a clear abuse of that discretion. State v. Howard, 135 Idaho 727, 731, 24 P.3d 44, 48 (2001). The district court's determination that a witness is qualified as an expert is discretionary. West v. Sonke, 132 Idaho 133, 138, 968 P.2d 228, 233 (1998) (citations omitted). When an exercise of discretion is reviewed on appeal, the Court inquires: (1) whether the lower court rightly perceived the issue as one of discretion; (2) whether the court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices; and (3) whether the court reached its decision by exercise of reason. Swallow v. Emergency Medicine of Idaho, P.A. 138 Idaho 589, 592, 67 P.3d 68, 71 (2003) (citing State v. Merwin, 131 Idaho 642, 962 P.2d 1026 (1998); Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)).",standard of review
+660,1851542,1,6,"Since the chancellor has found the annexation to be reasonable and his findings are supported by substantial credible evidence under a totality of circumstances, his finding is affirmed. JUDGMENT IS AFFIRMED. PITTMAN, BANKS, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur. DAN LEE, C.J., concurs in result only. McRAE, J., dissents with separate written opinion joined by SULLIVAN, P.J.",conclusion
+661,6326287,1,1,"In an appeal from a motion for postconviction relief, the appellant challenges the district court’s denial of his motion without holding an evidentiary hearing. The appellant had alleged multiple instances of ineffective assistance of counsel and a violation of his Fifth Amendment right against selfincrimination. The appellant assigns that the district court erred in denying his motion without holding an evidentiary hearing and in not considering his reply to the State’s response to his motion for postconviction relief. We affirm.",introduction
+662,2519950,1,1,"¶ 2 We recite the facts from the record... in the light most favorable to the jury's verdict. State v. Verde, 770 P.2d 116, 117 (Utah 1989) (citations omitted); accord State v. Powell, 872 P.2d 1027, 1028 (Utah 1994). In early 1999, Casey was involved in a relationship with Tresa Franz. On April 12, 1999, Casey and his friend, Terron Allred, met Franz at her home, where the three consumed some alcohol. Casey then drove Franz, Franz's four-year-old son, and Allred to tow Franz's truck to a friend's house. After dropping off the truck, Casey stopped at a liquor store where Franz purchased a bottle of rum. Though Franz and Allred had a swig of the rum, Casey consumed most of the bottle. Intoxicated, Casey became belligerent, and he and Franz began arguing. When Franz asked Casey to take her home, Casey refused, laughing at her and threatening to kill her. ¶ 3 Following this threat, Casey drove over to Tiffany Ribe's house, located in Salt Lake City. Once there, Casey got out of the vehicle and spoke with Ribe and others while Allred, Franz, and her child remained in the vehicle. When Casey returned to the vehicle, Allred got out to speak with Ribe, and Casey and Franz began arguing again. As Casey entered the driver's side of the vehicle, he reached behind the seat and grabbed a handgun from a camera bag. During the argument, Franz asked Casey if he was ready to go home. Casey responded, F   you, bitch. I'm going to take you home alright, and pointed the gun at Franz's neck. ¶ 4 Observing Casey pointing the weapon at Franz, Ribe went over to the vehicle and told Casey to leave. Casey lowered the gun, apologized to Ribe, and agreed to leave. As Allred was getting back in the vehicle, Franz fled into Ribe's house for a few minutes. Franz returned to the vehicle, however, when she realized that her son was still in the back seat. ¶ 5 With Franz and Allred back in the vehicle, Casey began to pull out of Ribe's driveway. Casey and Franz began arguing again, and just after they pulled out of the driveway, Casey pointed the handgun at Franz's head. He pulled the trigger, but the handgun misfired; both Franz and Allred testified that they heard the click of the hammer when Casey pulled the trigger. [1] Casey then pointed the gun at Franz's feet and successfully fired a round, which lodged in the floor of the vehicle. Once again, Casey pointed the gun at Franz's head. This time, Franz grabbed Casey's arm, pushed it away, and jumped out of the moving vehicle. As Franz jumped, Casey fired one more time. In total, Casey fired two shots from the gun in addition to the one misfire.",facts
+663,2824385,1,7,"We first consider whether an out-of-state law firm's representation of a Nevada client, combined with the communications that are incident to an attorney-client relationship, is sufficient in and of itself to subject the law firm to specific personal jurisdiction in Nevada. The Tenth Circuit Court of Appeals recently addressed this identical issue in Newsome v. Gallacher, 722 F.3d 1257, 1279-81 (10th Cir. 2013), and the court's opinion provides helpful guidance to us here. In Newsome, a Canadian law firm was hired by a Canadianbased company and its United States subsidiary doing business in Oklahoma. Id. at 1262-63. As part of the firm's work for the companies, the firm helped consummate a business transaction in Canada, facilitated the placement of liens on certain property in Oklahoma, and received payments from an Oklahoma bank account. Id. at 1280-81. A bankruptcy trustee for the subsidiary company then sued the Canadian firm in Oklahoma. Id. at 1263. On appeal, the Tenth Circuit considered whether the lower court properly dismissed the firm from the case for lack of personal jurisdiction. As part of its analysis, the Newsome court canvassed decisions from other jurisdictions and arrived at what it believed to be a majority approach and a minority approach to the issue of whether an out-of-state law firm's representation of a client is sufficient to subject the law firm to personal jurisdiction in the client's home state. Id. at 1280. The Newsome SUPREME COURT OF NEVADA 11 (0) 1947A court identified the majority approach as one that declines to find personal jurisdiction over an out-of-state law firm based solely on its representation of an in-state client. Id. In so doing, the Newsome court explained, [Ole majority reasons that representing a client residing in a distant forum is not necessarily a purposeful availment of that distant forum's laws and privileges and that, instead, Mlle client's residence is often seen. . . as a mere fortuity. Id. (internal quotations omitted). Similarly, under the majority approach, communications incidental to the attorney-client relationship that are directed to the forum state simply because the client resides there are also seen as merely fortuitous and do not constitute purposeful availment. See, e.g., Saw telle v. Farrell, 70 F.3d 1381, 1391-92 (1st Cir. 1995) (concluding that written and telephone communications with the clients in the state where they happened to live were not sufficient to subject an out-of-state law firm to personal jurisdiction); Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990) (explaining that placing phone calls to the client in the forum state, mailing letters to the client in the forum state, and accepting payments from the client's forum-state bank are all normal incidents of. . . representation that, by themselves, do not establish purposeful availment); Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 226 (8th Cir. 1987) (concluding that phone calls made to the client's home state, monthly billings mailed to the client's home state, and payments made from the client's home-state bank were not sufficient to subject an out-ofstate law firm to personal jurisdiction); Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 9 (D.D.C. 2009) (Plaintiff must establish more than the attorney-client relationship and contacts incidental to the attorney-client relationship in order to SUPREME COURT OF . NEVADA 12 (0) 1947A meet. . . constitutional due process requirements.); We're Talkin' Mardi Gras, LLC v. Davis, 192 F. Supp. 2d 635, 640 (E.D. La. 2002) ([A]11 of the communications to Louisiana rest on nothing more than the mere fortuity that [the client] happened to be a resident of Louisiana. They would have been the same regardless of where [the client] lived. Thus such communication can not be considered purposeful availment . . . .). In contrast, the Newsome court explained, [t]he minority view reasons that attorneys can accept or reject representing clients in distant forums, and that those who accept such representation have fair warning that they might be sued for malpractice in the client's forum. 722 F.3d at 1280 (internal quotations omitted). The Newsome court also recognized that, under the minority approach, the normal communications that make up an active attorney-client relationship are [seen as] the sort of repeated, purposeful contacts with the client's home forum sufficient to establish personal jurisdiction. Id. (citing Cartlidge v. Hernandez, 9 S.W.3d 341, 348 (Tex. App. 1999)); see Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1272 (Colo. 2002) (concluding that communications and attempted communications with [a client] by mail and telephone were among the purposeful contacts that an attorney made with the forum state). Ultimately, the Newsome court agreed with the majority approach and affirmed the dismissal of the Canadian law firm for lack of personal jurisdiction. 722 F.3d at 1280-81. To that end, it concluded narrowly that an out-of-state attorney working from out-of-state on an out-of-state matter does not purposefully avail himself of the client's home forum's laws and privileges, at least not without some evidence that the attorney reached out to the client's home forum to solicit the client's SUPREME COURT OF . NEVADA 13 (0) 1947A business. Id. We agree with this conclusion and its formulation of the majority approach in two key respects. First, we agree that a lack of solicitation on the out-of-state law firm's part is highly relevant to the inquiry of whether the firm purposefully availed itself of the privileges of acting in Nevada. Second, we agree that an out-of-state firm's representation of a client on a non-Nevada matter is highly relevant to that same inquiry. Applying the majority approach here leads to the conclusion that petitioners did not subject themselves to specific personal jurisdiction in Nevada simply by virtue of representing Verano. It is undisputed that petitioners did not actively seek out Verano's business, but rather, it was Verano's general partner that reached out to petitioners in Texas. 6 Similarly, it cannot reasonably be disputed that the matter for which petitioners were retained to represent Verano was a Texas real-estatedevelopment project. 7 Thus, we conclude that petitioners' representation of Verano on an out-of-state matter and petitioners' communications with 6 Inthis regard, our decision in Peccole v. Eighth Judicial District Court, 111 Nev. 968, 899 P.2d 568 (1995), is distinguishable. While we stated in Peccole that use of the telephone can be sufficient for 'purposeful availment, id. at 971, 899 P.2d at 570 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 481 (1985)), that statement was made in the context of concluding that the Colorado defendants may have solicited the Nevada plaintiffs' business via telephone. See id. 7We disagree with Verano's suggestion that petitioners always treated the project as an investment project by Nevadans and for Nevadans. To the contrary, petitioners' engagement agreement with Verano expressly stated that petitioners were being retained in connection with advising you regarding a real estate, economic development and tax increment financing matters concerning a Texas A&M University location in San Antonio, Texas (the 'Matter'). SUPREME COURT OF NEVADA 14 (0) 1947A Verano that were incidental to that representation is, without more, not sufficient to make a prima facie showing of specific personal jurisdiction. Based on the existing record, Verano's evidence of petitioners' additional Nevada contacts is insufficient to make a prima facie showing of personal jurisdiction We next consider whether Macon's attendance at two presentations in Las Vegas was sufficient contact in Nevada to make a prima facie showing of personal jurisdiction. In opposing petitioners' motion to dismiss, Verano submitted an affidavit from one of its investors attesting to the fact that he attended two presentations in 2010 in Las Vegas at which Macon participated. According to the investor, at those presentations, Macon (1) solicited additional investment funds from Verano's investors; and (2) failed to disclose the existence of VTLM Texas, the entity that Macon helped to create as part of the alleged effort to deprive Verano of the public funds from the City of San Antonio. Based on this evidence, the district court concluded that Macon had provided legal advice to Verano's investors in Nevada and that, consequently, petitioners had purposefully availed themselves of the privilege of acting in Nevada. We are not persuaded that this evidence amounted to purposeful availment sufficient to make a prima facie showing of specific personal jurisdiction. Purposeful availment requires that [t]he cause of action. . . arise from the consequences in the forum state of the defendant's activities. Consipio Holding, 128 Nev. at , 282 P.3d at 755 (internal quotations omitted). Here, although the district court concluded that Macon provided legal advice to Verano's investors at the two presentations, the record contains no indication of what that legal advice SUPREME COURT OF NEVADA 15 (0) 1947A was, much less how Verano's causes of action against petitioners arose from that legal advice. See id. As the above-described majority approach recognizes, a law firm does not purposefully avail itself of the benefit of acting in the client's home state simply by meeting with the client in that state. See, e.g., Sher, 911 F.2d at 1363 (concluding that three trips to the client's home state of California to meet with the client were discrete events arising out of a case centered entirely in Florida [that] appear[ed] to have been little more than a convenience to the client); Austad Co., 823 F.2d at 226 (concluding that a law firm associate's three-day visit to the client's office for the purpose of reviewing documents was insufficient to show purposeful availment). Thus, without any evidence as to how Macon's legal advice at the two Las Vegas presentations related to Verano's causes of action against petitioners, we conclude that Macon's two trips to Nevada did not amount to petitioners purposefully availing themselves of the privilege of acting in Nevada. See Consipio Holding, 128 Nev. at , 282 P.3d at 755. We further note that the affidavit from Verano's investor, while providing slightly more detail than the district court's order, suffers from the same shortcoming. Specifically, although the investor attested to Macon soliciting additional investment funds, Verano's complaint contains no allegation that any additional funds were raised as a result of Macon's solicitations, much less that those funds were somehow misspent and thereby form a basis for Verano's claims against petitioners. Similarly, it is not immediately apparent from Verano's complaint how Macon's failure to mention the existence of VTLM Texas, which at the time of the presentations had been in existence for at least two years, relates to Verano's causes of action against petitioners. See id. In any event, we 16 question whether those nonstatements regarding a Texas entity would have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant Es] reasonable. Id. (internal quotations omitted).",jurisdiction
+664,2328411,1,1,"In the instant appeal, Miller asserts several claims that may fairly be summarized as follows: a) his guilty plea was involuntary because his counsel incorrectly advised him that he was not eligible for sentencing as an habitual offender; b) his counsel provided ineffective assistance by permitting him to plead guilty to Robbery in the First Degree, where there was no evidence that a deadly weapon was displayed and he did not resemble the description of the perpetrator in the police report; and c) responsibility for the robbery lies with Probation and Parole, which failed to properly supervise him while he was on probation. To the extent Miller has not argued other grounds to support his appeal that were previously raised, those grounds are deemed waived and will not be addressed by this Court. [3]",issues
+665,1608205,1,3,"A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002). An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. When such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).",standard of review
+666,1403583,1,3,"The standard of review applicable to suppression issues is well-established. When the trial court makes findings of fact at the conclusion of a suppression hearing, the findings are binding upon this Court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. Id. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. Id. Our review of a trial court's application of law to the facts, however, is de novo, with no presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997)).",standard of review
+667,4561075,1,3,[1] A trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 5 [2] The decision of a trial court regarding taxing of costs is reviewed for an abuse of discretion. 6,standard of review
+668,4539379,1,2,"Here, the panel reversed Brown's attempted voluntary manslaughter conviction because of the verdict form error and remanded for a new trial on that charge. Brown, 2017 WL 5016171, at . The panel began its opinion by declaring: Courts have to treat completed jury verdict forms in a criminal case as saying what they mean and meaning what they say. . . . [C]ourts cannot take it upon themselves to unilaterally fix ostensibly errant verdicts. 2017 WL 5016171, at . Thus, the lower court held that the written language of the verdict must control and the district court is powerless to deviate from its literal meaning. 3 The panel admitted that [h]ow to categorize the defect—as a technical flaw or as something more—isn't entirely obvious. 2017 WL 5016171, at . But, it concluded, Whether the problem is classified as one of formality or one of substance, the district court could not have purported to fix it after the jury had been discharged. 2017 WL 5016171, at . The panel reasoned that, on the one hand, if the verdict was defective in form only, then the district court only had statutory authority under K.S.A. 22-3421 to correct it with the jury's assent—not on its own volition. K.S.A. 22-3421; 2017 WL 5016171, at -4. As K.S.A. 22-3421 states: If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged. On the other hand, if the verdict contained a substantive error, then it should be treated like inconsistent verdicts that are sent back to the jury for resolution. 2017 WL 5016171, at . The panel cited State v. Hernandez, 294 Kan. 200, 202-07, 273 P.3d 774 (2012), to support its inconsistent verdict theory, which held: When a jury, contrary to the court's instructions, finds a defendant guilty of both the completed crime and an attempt of the same crime, it is the duty of the trial court to order the jury to reconsider and correct its verdict. 294 Kan. 200, Syl. ¶ 2. Thus, the Brown panel concluded the district court erred when it corrected the verdict to attempted voluntary manslaughter, analogizing the correction to a directed verdict. Brown, 2017 WL 5016171, at . In so holding, the panel acknowledged that an obvious typographical error doesn't demand judicial concern or attention . . . [b]ut reconciling a conflict between the actual crime of conviction in the verdict form and the crimes presented in the instructions is of an entirely different scope. 2017 WL 5016171, at . The panel emphasized that [a]ny judicial reconciliation after the jury has been discharged amounts to a guess. 2017 WL 5016171, at . 4 In closing, the Brown panel was forthright that [a]nother panel of this court came to a different conclusion on similar facts in State v. Rice . . . a decision upon which the district court relied heavily. Brown, 2017 WL 5016171, at . But the Brown panel openly disagreed with Rice, stating: We don't believe a district court or an appellate court can tamper with a completed verdict form to change the crime of conviction no matter how obvious the purported error by the jury might be. The prerogative to revise belongs to the jury and expires when the jury has been discharged. At that point, the judicial corrective is limited to a new trial. 2017 WL 5016171, at . The Rice panel, however, reasoned that it is the jury's intent rather than the literal words on the verdict form that controls, and a district court may reasonably interpret the verdict form to give effect to the jury's intent. In Rice, the jury was informed about the elements of aggravated indecent liberties [with a child], as charged in the information, but the verdict form mistakenly referred to the crime charged as indecent liberties with a child. Rice, 2011 WL 4031494, at . On appeal, the defendant argued his sentence for aggravated indecent liberties was illegal because the verdict form said indecent liberties. As here, the jury was polled and affirmed the verdict, and nobody caught the error until sentencing. Ultimately, the district court sentenced the defendant for aggravated indecent liberties because 'there was no confusion by anyone and the jury could only have found the elements' of aggravated indecent liberties. 2011 WL 4031494, at . At the outset, the Rice panel recognized that the defendant could not be convicted of indecent liberties because, as a general rule, '[a] defendant may not be convicted of a crime with which he was not charged.' 2011 WL 4031494, at  (quoting Harris v. State, 288 Kan. 414, 417, 204 P.3d 557 [2009]). But the Rice court treated the question as one of interpretation, asking, [W]hat crime did the jury find Rice guilty of—aggravated indecent liberties or indecent liberties? 2011 WL 4031494, at . To answer this, the panel turned to the surplusage rule: 'A verdict can be properly interpreted by reference 5 to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge.' (Emphasis removed.) 2011 WL 4031494, at  (quoting State v. Taylor, 212 Kan. 780, Syl. ¶ 1, 512 P.2d 449 [1973]). In Taylor, we held that a verdict may be upheld when it simply states the defendant is found guilty as charged in the information, any surplus verbiage may be disregarded. 212 Kan. at 783. Notably, the Taylor court labeled a misstated crime on the verdict form as surplusage. 212 Kan. at 783. Applying the surplusage rule, the Rice panel held the jury intended to find the defendant guilty of aggravated indecent liberties for four fact-specific reasons: First, the crime of indecent liberties was never at issue during the trial. Second, the crime of aggravated indecent liberties was the only crime ever mentioned or referenced with regard to Count II. Third, the jury was specifically instructed—on two separate occasions—to consider whether the State had proven the elements of aggravated indecent liberties in Count II. The elements instruction for Count II properly set forth the elements for aggravated indecent liberties. Fourth, although the verdict form did not have the adjective 'aggravated' in the name of the crime, the form properly described the count wherein the crime was charged, and this crime was repeatedly identified throughout the trial as aggravated indecent liberties. In summary, our conclusion is the result of considering the verdict form itself, the second amended complaint, the trial court's instructions, and the trial record. See Taylor, 212 Kan. 780, Syl. ¶ 1. Rice, 2011 WL 4031494, at . Finally, the Rice panel held that K.S.A. 22-3421, the defective verdict form statute, did not apply to the facts before it. The panel believed that K.S.A. 22-3421 created a procedure for fixing scrivener's error[s], but the verdict error here did not fall under that umbrella. 2011 WL 4031494, at . Thus, the Rice panel affirmed the defendant's sentence for aggravated indecent liberties. 2011 WL 4031494, at . 6 In sum, both Brown and Rice involved a charging document and relevant jury instruction charging and accurately describing one crime, but a verdict form naming another, similar-sounding crime. In both cases, the verdict form itself was the mistake— the jury did not write in a new crime or otherwise alter the verdict form. The district court and the parties missed the mistake until sentencing, when the jury had long been dismissed. Both panels agreed that the defendant could not be convicted of a crime he was not charged with, but they resolved the discrepancy between the verdict form and the rest of the case—the charging document, the evidence and arguments presented, and the elements instructions—in opposite ways. The Brown panel took a strict textualist approach which considers the verdict form's literal language as sacrosanct. The Rice panel took an interpretative approach which considers the jury's intent as paramount. Today we side with the approach taken by the Rice panel and reverse the lower court's decision here—though we do so with caution. Historically, we have followed the general rule that when a verdict is ambiguous, the district judge may reasonably interpret the verdict using the charging document, the jury instructions, and the record as a whole. See State v. Doolittle, 153 Kan. 608, Syl. ¶ 1, 113 P.2d 94 (1941) (In determining the sufficiency of and in interpreting the verdict in a criminal case, the court may make use of anything in the record that tends to show with certainty what the jury intended.); Hodison v. Rogers, 137 Kan. 950, Syl. ¶ 1, 22 P.2d 491(1933) (An ambiguous verdict in a criminal case is entitled to a liberal interpretation, and reference may be had to the court's instructions, to the forms of verdict submitted, and to the record to determine its meaning and certainty.); In re Mooney, 89 Kan. 690, 693, 132 P. 217 (1913) ('A verdict is not bad for informality if the court can understand it. It is to have a reasonable intendment, and is to receive a reasonable construction, and must not be avoided except from necessity.'); In re McLean, 84 Kan. 852, 855, 115 P. 647 (1911) (The information may be looked to as a matter of course to interpret the verdict.). 7 For example, in Mooney the defendant was charged with one count of committing burglary and larceny by breaking into a freight car and stealing goods therein. Mooney, 89 Kan. at 691. At the time, a statute permitted burglary and larceny to be charged in the same count. 89 Kan. at 691. The verdict found the defendant guilty of the offense of burglary and larceny, as charged in the information, but oddly, also found him not guilty of burglary and larceny separately. 89 Kan. at 691. On appeal, the defendant argued the verdict was either not guilty or void. This court disagreed, saying, Any difficulty in understanding what the jury really meant by the verdict, when it alone is considered, disappears when it is read in connection with the instructions. 89 Kan. at 691. In Mooney, the district court had instructed the jury on three offenses, which were mirrored on the verdict form: (1) Burglary and larceny combined; (2) burglary without larceny; and (3) mere larceny. 89 Kan. at 691. This court interpreted the verdict in light of the charging document and instructions and held, Plainly what the jury meant by their verdict was that . . . he was guilty of the offense which the instructions described as 'burglary and larceny,' and therefore not guilty of burglary without larceny, and not guilty of larceny without burglary. 89 Kan. at 692. In so holding, this court declared: 'Verdicts are not to be construed as strictly as pleadings, but are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt as to their import, from immateriality of the issue found, or their manifest tendency to work injustice.' 89 Kan. at 693 (quoting 29 A. & E. Encycl. of L. 1022). In this line of cases, we have tended to view anything in the verdict form that clearly and obviously contradicts the charging documents, the jury instructions, and the record as a whole, as surplusage. A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge. Taylor, 212 Kan. 780, Syl. ¶ 1; see State v. Rice, 273 Kan. 870, 873, 46 P.3d 1155 (2002); In re 8 Lester, 128 Kan. 784, 785-86, 280 P. 758 (1929) (interpreting the verdict in light of the charging document and disregarding surplusage that did not disturb the verdict's meaning). Of course this begs the question, what is surplusage? Three key cases shed light on this term: Lester; State v. Whiting, 173 Kan. 711, 716, 252 P.2d 884 (1953); and Taylor. These cases applied the surplusage rule to interpret verdicts that did not match the charging language. And in all three, we upheld the convictions for the crime charged because the verdict referenced the charging document and the record otherwise showed no confusion about the real crime at issue. In Lester, the defendant was charged with knowingly buying and receiving stolen property. But the verdict form said he was guilty of buying and receiving the property that he knew had been stolen 'in the nighttime, as charged in the first count of the information.' (Emphasis added.) 128 Kan. at 785. The defendant later petitioned for habeas relief, claiming the verdict was void because it found him guilty of a crime he was not charged with. Indeed, the charging document did not say the property was stolen in the nighttime. 128 Kan. at 785. We rejected the defendant's argument, stating that the three words 'in the nighttime' included in this verdict are mere surplusage and do not affect the finding or verdict in any particular. Besides, the concluding words, 'as charged in the first count of the information,' make the crime definite and specific by direct reference. 128 Kan. at 785. The court also affirmed the longstanding rule that '[t]he information may be looked to for the purpose of interpreting a verdict in a criminal case.' 128 Kan. at 786 (quoting McLean, 84 Kan. 852, Syl. ¶ 3). In Whiting, the defendant was charged with lascivious behavior, but [t]he verdict found the defendant guilty of lewd conduct, 'all in the manner and form charged in the first count of the complaint.' 173 Kan. at 715. On appeal, the defendant argued the 9 verdict did not convict him of the offense charged because of this discrepancy. But again, we disagreed, holding: The difference between 'lascivious behavior' and 'lewd conduct' is too fine a distinction. At any rate, there was only one offense charged on this phase of the case. Actually the words 'lewd conduct' in the verdict were surplusage. The verdict would have been good if it had simply found the defendant guilty as charged in the first count of the complaint. 173 Kan. at 715-16. Finally in Taylor, the information charged the defendant with taking property with the intent to embezzle it, but the verdict found the defendant 'guilty of grand larceny as charged in the information.' 212 Kan. at 782-83. The defendant argued that because he was charged under the embezzlement statute, the verdict finding him guilty of larceny was not responsive to the charge. 212 Kan. at 782. This court acknowledged that embezzlement and larceny were separate offenses. But citing Lester and Whiting, the court held the jury intended to convict the defendant of embezzlement as charged: ' The concluding clause, as charged in the first count of the information, makes the crime definite and specific by direct reference.' A verdict can be properly interpreted by reference to the information, to the court's instructions and to the record; surplusage may be disregarded when the jury's verdict is otherwise responsive to the charge. (In re McLean, 84 Kan. 852, Syl. 3, 115 P. 647; Hodison v. Rogers, 137 Kan. 950, Syl. 1, 22 P.2d 491, 88 A.L.R. 1080; State v. Doolittle, 153 Kan. 608, Syl. 1, 113 P.2d 94.) Considering the statute, the information and the court's instructions, it is clear in this case the jury's verdict was responsive to the single charge contained in the information. Taylor, 212 Kan. at 784. In sum, Lester, Whiting, and Taylor held that a verdict stating the defendant is guilty as charged in the information is specific enough, and a verdict's mistaken 10 description of the crime of conviction is surplusage that may be disregarded when the verdict is otherwise responsive to the charge. Kansas' surplusage rule is in good company. Most notably, in Statler v. United States, 157 U.S. 277, 277, 15 S. Ct. 616, 39 L. Ed. 700 (1895), the U.S. Supreme Court construed an ambiguous verdict using the surplusage rule. In that case, the defendant was charged with 'having counterfeit coin in his possession with intent to defraud certain persons,' and he only contested the element of intent. 157 U.S. at 277-78. The jury returned a verdict finding the defendant 'guilty in the first count for having in possession counterfeit minor coin'—the jury did not mention intent. 157 U.S. at 278. On appeal, the defendant argued the jury did not convict him of a lawful crime. The Supreme Court disagreed, stating, The verdict being general, and not special, any words attached to the finding 'guilty on the first count' are clearly superfluous, and are to be so treated. 157 U.S. at 279. The Court stated that, dating back to English law, verdicts have been construed as 'the finding of lay people.' 157 U.S. at 279. That means verdicts need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate; and all fair intendments will be made to support it. 157 U.S. at 279. As the Court explained, the words attached to the phrase 'guilty in the first count' were obviously superfluous: 'To say, therefore, that the defendant is guilty, or guilty of an offense named which is less than the whole alleged, is sufficient, without adding as charged in the indictment; for the latter will be supplied by construction. So, likewise, a general finding of guilty will be interpreted as guilty of all that the indictment well alleges. . . . Surplusage in a verdict may be rejected, being harmless, the same as in pleading; and the verdict must be construed as a whole, not in separate parts.' . . . 11 Reading the verdict here considered by the light of these elementary principles, the words 'for having in possession counterfeit minor coin,' attached to the words 'guilty in the first count,' are obviously superfluous, and striking them from the verdict leaves it in all respects complete, and responsive to the charge. 157 U.S. at 279. In the end, the Court held, The record leaves no room for doubt that the words 'for having in possession counterfeit minor coin,' which were attached to the verdict, were merely words identifying the first count, and were not, and could not have been, intended to qualify the verdict of guilty. 157 U.S. at 280. Other states take a similar approach. A few examples will suffice. In People v. Camacho, 171 Cal. App. 4th 1269, 1271, 90 Cal. Rptr. 3d 559 (2009), [a] verdict form provided to the jury on a charge of robbery mistakenly identified the offense as carjacking, and the jury returned a guilty verdict. The California court reasoned that [v]iewing the record as a whole, . . . the jury's unmistakable intent was to convict defendant of robbery, as charged in count 2, and the clerical error in the verdict form was surplusage that may be disregarded. 171 Cal. App. 4th at 1272. The court found the jury's intent was unmistakable because every stage of this case identified the offense as robbery—the charging document, the opening statement, arguments of counsel, and the jury instructions. 171 Cal. App. 4th at 1271. In State v. Imhoff, 78 Wash. App. 349, 350, 898 P.2d 852 (1995), the defendant was charged with one count of attempted possession of marijuana with intent to manufacture or deliver, but [t]he verdict form lacked the word 'attempted.' 78 Wash. App. at 350. The Washington court upheld the conviction for attempted possession because it was clear that the jury regarded the omission of 'attempted' from the verdict as an oversight. 78 Wash. App. at 350. The court reasoned: In reviewing instructions we must read them as a whole, not in isolation from each other. . . . Based on the instructions, the only crime the jury could have possibly 12 convicted Imhoff of was attempt to possess a controlled substance with intent to manufacture or deliver. The jury is presumed to follow the court's instructions. 78 Wash. App. at 351. Third, in G.V.C. v. State, 132 So. 3d 668 (Ala. Crim. App. 2013), the defendant was charged with a single count of first-degree sexual abuse, and during trial, the court only instructed on that crime. But then the verdict form mistakenly said: 'We, the jury, find the defendant [G.V.C.] GUILTY of Sexual Assault 1st Degree as charged in the indictment.' 132 So. 3d at 669. The Alabama Court of Criminal Appeals affirmed that '[a] jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless.' 132 So. 3d at 675. The court reasoned that the touchstone of the jury-verdict-discrepancy was the jury's intent. 132 So. 3d at 675. The court believed that the trial court's correction of the verdict form to read abuse instead of assault was not a substantive change, and in the end, it held the jury's intent to convict the defendant as charged was clear from the record. 132 So. 3d at 677. Thus, based on our own caselaw and persuasive decisions from other jurisdictions, we conclude the Rice panel's general approach is correct. An ambiguous verdict can be reasonably interpreted in light of the charging document, the jury instructions, and the record as a whole to determine and give effect to the jury's intent. And when such intent is clear, a mistaken description of the crime of conviction contained in the verdict form may be discarded as surplusage when the verdict form also refers to the correct charge by pointing back to the charging document or the jury instructions. 13 Having reached this conclusion, the task of clarifying the appropriate standards that apply when a district court is faced with this situation remains. We have not previously articulated a definitive standard. We have described that standard variously:  [W]here the defect is not detected and corrected at the time, the sufficiency of the verdict must depend upon whether the court can certainly say from it and the information what was the true intent and meaning of the jury. (Emphasis added.) State v. Wade, 56 Kan. 75, 76, 42 P. 353 (1895).  'Verdicts are not to be construed as strictly as pleadings, but are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt as to their import, from immateriality of the issue found, or their manifest tendency to work injustice.' (Emphasis added.) Mooney, 89 Kan. at 693 (quoting 29 A. & E. Encycl. of L. 1022).  'A verdict is not to be construed with the same strictness as an indictment, but it is to be liberally construed, and all reasonable intendments will be indulged in its support, and it will not be held insufficient unless, from necessity, there is doubt as to its meaning.' (Emphasis added.) Mooney, 89 Kan. at 693.  In determining the sufficiency of and in interpreting the verdict in a criminal case, the court may make use of anything in the record that tends to show with certainty what the jury intended. (Emphasis added.) Doolittle, 153 Kan. 608, Syl. ¶ 1.  A person charged with a crime is supposed to be innocent until a verdict, which is the result of a lawfully conducted jury trial, has been found, and which states in language so definite and certain that different minds can not 14 fairly disagree as to its meaning that he is guilty of such offense. (Emphasis added.) State v. Braden, 78 Kan. 576, 582, 96 P. 840 (1908).  Considering the [charging] statute, the information and the court's instructions, it is clear in this case the jury's verdict was responsive to the single charge contained in the information. (Emphasis added.) Taylor, 212 Kan. at 784. And in Statler, the U.S. Supreme Court permitted a deviation from the text of the verdict form only if the record leaves no room for doubt that the strict text of the verdict did not accurately reflect the jury's intent. 157 U.S. at 280. Synthesizing these various descriptions, we hold that a district judge may only invoke the surplusage rule to discard parts of the verdict form that are inconsistent with the jury's intent as follows. First, the district court must start with a strong presumption in favor of the literal text of the verdict form and only move to interpretation when the record as a whole necessarily creates doubt as to its meaning. Secondly, the district court may consider anything in the record that tends to show with certainty what the jury intended. Finally, only if the district court is convinced, beyond a reasonable doubt, that the record as a whole clearly demonstrates the intent of the jury can the court discard contrary surplusage in the jury's verdict. Appellate courts will review a district court's application of the surplusage rule de novo. Applying this newly articulated standard, we conclude: (1) the record as a whole necessarily creates doubt as to the meaning of the jury's verdict; (2) aspects of the record demonstrate the jury's intent with certainty; and (3) we are convinced (as was the district court) beyond a reasonable doubt that the jury intended to convict Brown of attempted voluntary manslaughter. Therefore, the district court did not err when it discarded the prefix in- from the verdict form as mere surplusage. 15 In reaching this decision, we have considered the following portions of the record as decisive:  The crime of attempted involuntary manslaughter was never at issue during trial.  Defense counsel requested an attempted voluntary manslaughter instruction, and his proposed verdict form said the same.  Instruction No. 7 correctly named the lesser included offense of attempted voluntary manslaughter and listed its elements.  Instruction No. 11 correctly summarized the verdict options and stated attempted voluntary manslaughter as the lesser included offense.  The district court correctly read the instructions to the jury, including Instructions No. 7 and No. 11.  Until closing argument, the court and parties only mentioned attempted voluntary manslaughter on the record.  During closing argument, defense counsel mistakenly said attempted involuntary manslaughter but the district court instantly corrected him, saying, Excuse me, you said 'involuntary.' You meant 'voluntary.' Defense counsel thanked the court and said, I meant 'voluntary.' 16  The verdict form referred to the correct jury instruction: We, the jury, find the defendant guilty of the lesser offense of attempted involuntary manslaughter as set forth in Instruction No. 7. We do not take the decision to discard portions of the jury verdict as surplusage lightly and pause here to emphasize again the strong presumption in favor of the literal text of the jury verdict as the surest guide to the jury's intentions. That presumption can only be overcome when the record as a whole clearly demonstrates a different intent and the district court is convinced beyond a reasonable doubt that portions of the verdict text are inconsistent with that intent. Reversed. NUSS, C.J., not participating. CONSTANCE M. ALVEY, District Judge, assigned.1 1 REPORTER'S NOTE: District Judge Alvey was appointed to hear case No. 115,817 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Justice Lee A. Johnson. 17",analysis
+669,3218283,1,3,"Upon our review of the record, we conclude the most severe discipline is warranted in this case. Justice of the Peace Gremillion rendered a judgment without giving the defendants a meaningful opportunity to be heard, without requiring the plaintiff to present any evidence or sworn testimony, and without giving the defendants written notice of the judgment against them; displayed bias or prejudice throughout the proceedings in favor of the creditor and/or against the defendants’ efforts to defend the claim against them; notarized power of attorney forms when the purported affiants did not appear before him, swear out an oath, or sign the forms in his presence; and used a notary stamp that gave the incorrect impression he is an attorney. Respondent’s conduct thus constitutes a willful and persistent failure to perform his duty, willful misconduct relating to his official duty, and persistent, public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Accordingly, it is ordered, adjudged and decreed that respondent, Justice of the Peace J. Roosevelt Gremillion, District Seven, Parish of Pointe Coupee, State of Louisiana, be removed from office and that his office be declared to be vacant. Furthermore, the respondent is ordered pursuant to La. Sup. Ct. Rule 23, § 26, to refrain from qualifying as a candidate for 28 judicial office for five years and until certified by this court as eligible to become a candidate for judicial office. Finally, pursuant to La. Sup. Ct. Rule 23, § 22, we cast the respondent with $1,547.43 for the costs incurred in the investigation and prosecution of this case. REMOVAL FROM JUDICIAL OFFICE ORDERED. 29 06/29/2016 SUPREME COURT OF LOUISIANA No. 2016-O-0054 IN RE: JUSTICE OF THE PEACE J. ROOSEVELT GREMILLION, DISTRICT SEVEN, PARISH OF POINTE COUPEE, STATE OF LOUISIANA JUDICIARY COMMISSION OF LOUISIANA Hughes, J., dissents in part. I respectfully dissent in part, and would impose a lesser sanction rather than the ultimate sanction of removal from office. 1",conclusion
+670,1911124,1,3,"This Court holds that the chancellor's denial of DHS's motions for orders compelling the putative fathers to submit to blood tests constituted an abuse of discretion. These cases are therefore reversed and remanded for proceedings not inconsistent with this opinion. REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. HAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur. McRAE, J., dissents with separate written opinion joined by BANKS, J.",conclusion
+671,4310573,1,4,"[1,2] On an appeal from the decision of an arbitration board convened under § 70-1301 et seq., trial in the appellate court is de novo on the record.16 Despite de novo review, when credible evidence is in conflict on material issues of fact, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of 16 § 70-1327. - 246 - Nebraska Supreme Court A dvance Sheets 300 Nebraska R eports IN RE APPLICATION OF NORTHEAST NEB. PUB. POWER DIST. Cite as 300 Neb. 237 the facts over another.17 We apply this same rule in an appeal from an arbitration board under this statutory scheme.",standard of review
+672,1153121,1,1,"The minutes of the commission meeting contain substantial evidence in support of the City's position, including police records of the number and types of incidents at the lounge requiring police responses between September 1990 and September 14, 1992. Specifically, Police Chief Locke testified that his office had received 101 calls, which resulted in five arrests, two for assault, one shooting,... four burglary arrests of individuals patronizing the business, [and] two alcohol violations. Moreover, he testified: [O]ne officer cannot police it, it takes at least two or three, preferably four officers to police it adequately, and from 2:00 a.m. until 4:00 a.m. it takes the constant presence to adequately police it. But perhaps the most compelling evidence was testimony contained in the police report of Officer Richard Campbell, who drew his weapon and fired warning shots when a crowd of people from the lounge and lounge parking lot attacked him with rocks and bottles as he was attempting to arrest a man involved in a fight at the lounge. The incident was the subject of considerable discussion, some of which included the following excerpt, which was read verbatim from officer Campbell's report at the November 24, 1992, commissioners' meeting and recorded on the audio tape of that meeting: [O]n November 8, 1992, at 3:27 in the morning, I was dispatched to a fight at the Salt & Pepper Lounge. I arrived and found two males fighting in the front door of the club. He was fighting with the security guard. They started toward my vehicle, I got out and one of the males ... was abusive and [used] abusive language to me. I advised him he was under arrest, he struck me in the chest and started to run. I grabbed him, [and] we went to the ground after a short chase. We struggled on the ground and we were on the north side of the club. While we were on the ground, a large crowd gathered and had me where I could not reach my patrol vehicle. Members of the crowd started throwing rocks and bottles at me. I could not get to my radio because of Mr. Carrol, and I was still struggling on the ground. We had gotten between a garbage dumpster and a vehicle parked next to it and I could not move backwards or forward. The crowd was very close and many rocks and bottles were hitting close to my head. I could feel the pieces of glass hitting me. I was struck on the top of my right shoulder with a rock or bottle. I could not tell which it was. I felt that my life was in danger. Nine days after this incident, Sanders received the letter regarding the proposed revocation. Indeed, the significance attributed to this incident by members of the commission is illustrated by the following excerpt from the minutes: [Commissioner Stokes] said the main concern he had was the nature of the calls, assault[s], shootings, and more seriously to him, the recent assault on the police officer. Commissioner Stokes said the police officer felt his life was in danger by trying to respond to a call to try to maintain public order. He said they have the ABC report [5] concerning lewd dancing, a recommendation from the police chief, who they hired to maintain public order in the City of Dothan, and he had stated that he felt his police officers were in danger when they go to that club and respond to disturbances. (Emphasis added.) Although we might draw inferences from this and other testimony that would differ from those drawn by the commission, the minutes and audio tapes of these meetings contain evidence that justif[ies] the finding [of the commission] as a legitimate inference from the facts. Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123,126, 176 So.2d 483, 485 (1965).",sufficiency of the evidence
+673,4528503,1,2,"Because this appeal presents a question of constitutional law and statutory interpretation, our review is de novo. State v. Marshall, 162 N.H. 657, 661 (2011). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Petition of Carrier, 165 N.H. 719, 721 (2013). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the 4 statute as a whole. Id. This construction enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. Further, in reviewing a statute, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011). Accordingly, we will not hold a statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution. Id. When doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality. Id. The party challenging a statute’s constitutionality bears the burden of proof. Id.",standard of review
+674,2755293,1,2,"The standard of review of a decision by a circuit court denying a new trial is as follows: In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review. Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).",standard of review
+675,2576304,1,2,"After purchasing a cabin on Mount Charleston from Nelson, respondent Scott Heer discovered that a water pipe had broken in the cabin before he bought it. He had tests conducted and then claimed that the cabin was contaminated with mold. Nelson had not lived in the cabin and denied liability. A jury found in Heer's favor, and the district court entered judgment against Nelson for approximately $330,000 in damages, costs, attorney fees and prejudgment interest. The district court granted a stay pending appeal but conditioned the stay on the posting of a supersedeas bond in the judgment amount. The district court rejected Nelson's request to provide security other than a bond by encumbering a parcel of her real property. Nelson claimed that the equity in the property exceeded the judgment amount. Nelson assertedly had difficulty obtaining a supersedeas bond. Heer promptly obtained a judgment lien on all of Nelson's real property in Clark County, a total of six parcels (not including Nelson's homesteaded residence), by recording the judgment in his favor. Also, Heer began to execute on the judgment by garnishing Nelson's slot route operator income. According to Nelson, the garnishment threatens the viability of her businesses. Specifically, Nelson owns two small bars, and she asserts that the slot route income pays a significant portion of the bars' expenses, including employees' salaries, inventory and supplies. Additionally, Nelson claims, the bars' income stream supports Nelson and her family. Nelson states that without this income, not only will several employees be out of work, but she will be unable to pay her other creditors and the mortgages on her real property. Nelson therefore filed the instant motion, asking that a stay pending appeal be conditioned on alternate security, rather than a supersedeas bond. [3]",facts
+676,6220977,1,1,Derrick U. Stricklin appeals from the denial of postconviction relief following an evidentiary hearing. Stricklin asserts his trial counsel was ineffective in failing to present an alibi defense and in failing to investigate and present evidence of other suspects. Stricklin also asserts the district court erred in denying his request to depose expert witnesses. We disagree with Stricklin’s arguments and therefore affirm the order of the district court.,introduction
+677,2622648,1,1,"In this appeal we review the court of appeals' holding that it is permissible for an automobile insurance policy to exclude a person occupying a vehicle that is not a car from both personal injury protection and uninsured motorist coverage. DeHerrera v. Sentry Insurance Co., 992 P.2d 629 (Colo.App. 1999). We hold that excluding relatives of the named insured from personal injury protection coverage and uninsured motorist coverage based on their occupancy in a particular vehicle violates the mandates of Colorado statutes and contravenes public policy. The plaintiff, Elizabeth DeHerrera, is the named insured of an automobile policy carried by Sentry Insurance Company, the respondent. DeHerrera's son was injured in an accident with a pickup truck while riding his off-road motorcycle. DeHerrera sued Sentry seeking personal injury protection and underinsured motorist coverage because the owner of the pickup possessed a limited amount of liability insurance. Sentry denied coverage, claiming that the policy excludes from coverage persons occupying a vehicle that is not a car. Thus, applying the policy definition of car, a four-wheeled motor vehicle, Sentry claimed that this condition excluded DeHerrera's son from coverage because he was riding a motorcycle, and thus not occupying a car, when injured. In the trial court, DeHerrera sought a declaratory judgment construing Sentry's policy to permit her to recover personal injury protection (PIP) and underinsured motorist coverage (UM), a derivative of uninsured motorist coverage (UIM) (collectively UM/UIM). Both parties filed motions for summary judgment. The trial court awarded summary judgment in favor of Sentry and DeHerrera appealed. The court of appeals affirmed, holding that the insurance contract unambiguously denies both PIP coverage and UM/UIM coverage to an insured who is neither a pedestrian nor an occupant of a car. Thus, applying the definition section of the policy, the court of appeals held that because DeHerrera's son was riding a motorcycle at the time of injury (and thus not an occupant of a car ), DeHerrera is not entitled to PIP or UM/UIM coverage. DeHerrera, 992 P.2d at 633-34. Further, that court relied on Colorado case law to hold that the pertinent Colorado statutes do not require PIP or UM/UIM coverage for a person riding a motorcycle at the time of injury. Id. Hence, the court of appeals affirmed the award of summary judgment in favor of Sentry. Id. at 635. DeHerrera appealed. We granted certiorari to determine her eligibility for PIP and UM/UIM coverage. We hold that a policy provision restricting PIP coverage for relatives of named insureds to persons occupying a car at the time of injury places an impermissible restriction on the mandatory PIP coverage required by statute. Section 10-4-707(1)(a) of the Colorado Auto Accident Reparations Act unambiguously requires PIP coverage to apply to a relative of a named insured when injured in an accident involving any motor vehicle (emphasis added) irrespective of the type of vehicle driven at the time of injury. Likewise, we hold that the language and purpose of the UM/UIM statute require an insurer to provide UM/UIM benefits to a person insured under the policy when injured in an accident caused by an uninsured or underinsured motorist without regard to the vehicle occupied by the insured at the time of injury. Thus, we do not reach the issue of whether the Sentry policy unambiguously conditions PIP or UM/UIM coverage to a person occupying a car at the time of injury because, irrespective of the provisions of the policy, our statutes mandate coverage in this case. Hence, we reverse the judgment of the court of appeals and remand this case to the court of appeals to return the case to the trial court with directions to grant DeHerrera's motion for summary judgment on her claims for PIP and UM/UIM coverage.",introduction
+678,2167483,1,2,"The threshold argument raised by both the Chicago Board and the State Board is that because the circuit court granted plaintiff relief pursuant to the administrative review count of his complaint, the court unnecessarily reached plaintiff's constitutional challenge. Therefore, pursuant to our decision in Trent v. Winningham, 172 Ill.2d 420, 217 Ill.Dec. 741, 667 N.E.2d 1317 (1996), the Chicago Board and the State Board maintain that this court should remand plaintiff's cause to the circuit court with directions that the order entered by the circuit court on October 20, 1997, be vacated and modified to exclude the ruling that section 34-85 of the School Code unconstitutionally violates due process. We agree. Supreme Court Rule 302(a) provides that appeals from final judgments of the circuit court shall be taken directly to this court in cases in which a statute of    this state has been held invalid. 134 Ill.2d R. 302(a). The primary purpose of the direct appeal provision of Rule 302(a) is to preserve stability in our legal system; when legislation has been held unconstitutional, the rule provides for immediate review by the ultimate authority in this state on the law. Trent, 172 Ill.2d at 425, 217 Ill.Dec. 741, 667 N.E.2d 1317. Circuit courts, however, should not    compromise that stability in the first place by declaring legislation unconstitutional when the particular case does not require it. Trent, 172 Ill.2d at 425, 217 Ill.Dec. 741, 667 N.E.2d 1317. Indeed, it is well established that questions regarding the constitutionality of statutes should be considered only where essential to the disposition of a case, i.e., where the case cannot be determined on other grounds. Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 396, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994). In Trent v. Winningham, 172 Ill.2d 420, 217 Ill.Dec. 741, 667 N.E.2d 1317 (1996), we determined that because the circuit court unnecessarily decided a constitutional question where the court also denied the plaintiff relief on alternative, nonconstitutional grounds, it was appropriate for this court to decline direct appellate jurisdiction. In Trent, a mother filed a paternity suit against the putative father and sought retroactive child support under section 14(b) of the Illinois Parentage Act (750 ILCS 45/14(b) (West 1992)). The trial court denied Trent's claim for support on three grounds, one of which was that section 14(b) was unconstitutional. Trent, 172 Ill.2d at 422, 217 Ill.Dec. 741, 667 N.E.2d 1317. Trent appealed the circuit court's ruling to this court, asserting that a direct appeal was appropriate under Rule 302(a) because section 14(b) had been declared unconstitutional. In Trent, we held that the circuit court's constitutional ruling could not properly serve as a basis for direct supreme court review under Rule 302(a). We stated that, although circumstances triggering Rule 302(a) technically existed, in that a statute was held unconstitutional in a final judgment of a circuit court, the jurisdictional basis was complicated by the alternative, nonconstitutional reasons given by the court for denying Trent's claim. We explained that, because the circuit court had provided two nonconstitutional grounds for denying plaintiff relief, the constitutional ground for its holding was not necessary for the resolution of the case, and, therefore, Rule 302(a) jurisdiction was improper. Trent, 172 Ill.2d at 426, 217 Ill.Dec. 741, 667 N.E.2d 1317. Furthermore, we observed that when circuit courts prematurely invalidate legislation in cases that can be disposed of on a nonconstitutional basis, the effect is to circumvent the normal appellate process and require this court to accept cases it might otherwise decline to hear. Trent, 172 Ill.2d at 426, 217 Ill.Dec. 741, 667 N.E.2d 1317. Based upon this concern, Trent admonished the circuit courts not to declare statutes unconstitutional unless absolutely necessary. Trent, 172 Ill.2d at 425, 217 Ill.Dec. 741, 667 N.E.2d 1317. We find that Trent governs the disposition of the cause at bar. We recently observed that our decision in Trent hinged upon the fact that the circuit court in that case based its judgment on three alternative grounds: one being that the applicable statute at issue was unconstitutional; and the other grounds being determined through the application of the relevant provisions of the same statute. McLean v. Department of Revenue, 184 Ill.2d 341, 235 Ill.Dec. 3, 704 N.E.2d 352 (1998). Precisely the same situation exists in the instant matter: the circuit court judge granted plaintiff relief on count III of his complaint by ruling that section 34-85 of the School Code was unconstitutional, and granted plaintiff additional and alternative relief under count I of his complaint, applying the relevant portions of precisely the same statute which the circuit court declared unconstitutional. Plaintiff raises two main arguments in support of his contention that the circuit court appropriately reached the constitutional question. First, plaintiff maintains that because the administrative review claim is closely related to the constitutional question, [t]o consider one requires contemplation of the other. Nowhere, however, does plaintiff assert that the circuit court's ruling on the validity of section 34-85 was essential to the disposition of the nonconstitutional question concerning administrative review. Second, plaintiff contends that the circuit court's invalidation of section 34-85 serves judicial economy. In finding section 34-85 unconstitutional, the circuit court judge reasoned that her decision would save other teachers from being subjected to the statute's processes and save other courts from having to interpret the statute. However, courts operate only in the context of resolving lawsuits ( Trent, 172 Ill.2d at 425-26, 217 Ill.Dec. 741, 667 N.E.2d 1317), and, in the instant cause, the circuit court's ruling finding section 34-85 unconstitutional was not necessary to resolve plaintiff's claim for administrative review.",analysis
+679,6342596,1,3,"Standard of Proof. Bouldin claims that the district court erred by applying a clear and convincing evidence standard of proof in considering whether the money was used or intended to be used to commit a violation of the Uniform Controlled Substances Act. He submits that the correct standard is beyond a reasonable doubt. The parties agree that this case is governed by § 28-431. That statute sets forth how such cases are to proceed if, as here, a party files a claim to property that the State has sought to forfeit. It provides in relevant part: - 624 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. $18,000 Cite as 311 Neb. 621 If the claimant proves by a preponderance of the evidence that he or she (a) has not used or intended to use the property to facilitate an offense in violation of the act, (b) has an interest in such property as owner or lienor or otherwise, acquired by him or her in good faith, and (c) at no time had any actual knowledge that such property was being or would be used in, or to facilitate, the violation of the act, the court shall order that such property . . . be returned to the claimant. If there are no claims, if all claims are denied, or if the value of the property exceeds all claims granted and it is shown by clear and convincing evidence that such property was used in violation of the act, the court shall order disposition of such property at such time as the property is no longer required as evidence in any criminal proceeding. § 28-431(6). Bouldin makes no argument he carried the burden of proof that the foregoing language places on the claimant. His argument is instead focused on the burden of proof the statute places on the State. Bouldin’s argument relies on prior cases governed by § 28-431 in which we observed that the State was subject to a beyond a reasonable doubt standard. See, e.g., State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999); State v. 1987 Jeep Wagoneer, 241 Neb. 397, 488 N.W.2d 546 (1992). At the time of those cases, however, § 28-431(4) expressly provided that in order for property to be forfeited, the State was required to prove beyond a reasonable doubt that property was used in violation of the Uniform Controlled Substances Act. See § 28-431(4) (Reissue 2008). In 2016, the Legislature amended the statute to remove the “beyond a reasonable doubt” language and to replace it with “clear and convincing evidence.” See 2016 Neb. Laws, L.B. 1106, § 6. Because the district court applied the standard of proof required by the governing statute and Bouldin makes no claim that the statute is unconstitutional, we find no error on the part of the district court. - 625 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. $18,000 Cite as 311 Neb. 621 We acknowledge that in State v. Franco, supra, one of the cases upon which Bouldin relies, we held that forfeiture actions pursuant to § 28-431 are criminal proceedings. Because this case does not require us to determine whether forfeiture proceedings under the statute remain criminal in nature after the 2016 amendments to § 28-431, we leave that question for another day. Sufficiency of Evidence. Bouldin’s second assignment of error is that there was insufficient evidence for the district court to find that the $18,000 was subject to forfeiture. Bouldin’s brief, however, provides next to nothing in the way of argument in support of this assertion. He states only that the district court “did not find that the evidence in the case at hand met the [beyond a reasonable doubt standard], very possibly because it simply did not.” Brief for appellant at 9. [2] As we have previously emphasized, an appellant is required to identify in his or her brief the factual and legal bases that support the assignments of error. See Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). It is a fundamental rule of appellate practice that an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). The failure to comply with this rule comes with consequences. An argument that does little more than to restate an assignment of error does not support the assignment, and an appellate court will not address it. Id. We find that Bouldin has failed to provide an adequate argument in support of his second assignment of error. The totality of his argument is an assertion that the evidence was insufficient under a beyond a reasonable doubt standard. As we have already explained, Bouldin has not shown that the State was required to meet a beyond a reasonable doubt standard. More importantly, Bouldin has not provided any - 626 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports STATE v. $18,000 Cite as 311 Neb. 621 discussion of why the evidence was insufficient under any standard of proof. Because Bouldin failed to provide a specific argument in support of his second assignment of error, we will not address it. See Filholm, supra.",analysis
+680,1281673,1,5,"Finally, Scott argues that the verdict was against the weight of the evidence and, therefore, the conviction should be overturned. Scott argues that the State failed to prove beyond a reasonable doubt that malice existed—an element required to be found before a jury can return a verdict of guilty for second degree murder. Scott contends that there was no evidence that he had ever met Brandon Rosenberger before the day of the shooting nor was there any evidence admitted tending to show that Scott acted with malice when he shot Brandon Rosenberger. Scott asserts that there was only one eyewitness to the fatal shooting, Scott himself, and he testified that the shooting was accidental. We have established the following standards for reviewing a sufficiency of the evidence challenge: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Syllabus Points 1 and 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We have stated that a defendant faces an uphill climb when he challenges the sufficiency of the evidence and that we will reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. LaRock, 196 W.Va. 294, 303, 470 S.E.2d 613, 622 (1996). The record in this matter indicates that Scott killed Brandon Rosenberger with a .22 caliber weapon from a distance of approximately 50 to 60 yards while Brandon was walking down a path. Scott argued that he was hunting. However, evidence was introduced that the shooting took place on a Sunday—when it was illegal to hunt—and in an area where it was illegal to hunt. Evidence was also introduced demonstrating that Scott had not hunted for a period of 1 to 2 years prior to the shooting, and did not have a hunting license. In addition to this evidence, the jury also heard from neighbors and children who testified that Scott had a history of brandishing firearms in an attempt to intimidate people and keep individuals away from his property. Finally, the jury also heard testimony suggesting that not only did Scott leave Brandon Rosenberger after shooting him, but when Mr. Wheeler came to investigate the matter, Scott shot at him as well. Taken in a light most favorable to the prosecutor, we believe that the evidence was sufficient to convince a reasonable person of Scott's malice in his actions toward Brandon Rosenberger. Consequently, we find that Scott's claim that the evidence was insufficient to support a guilty verdict for second degree murder is without merit.",sufficiency of the evidence
+681,3134367,1,2,"In this court, defendant challenges plaintiffs' proof of proximate causation and challenges the propriety of certain jury instructions. Defendant further argues that it was denied a fair trial because of plaintiffs' counsel's prejudicial remarks and a statement of the trial judge that damaged the credibility of defendant's attorneys and one of its witnesses. Finally, defendant contends that the trial court erred in refusing to set off from the judgment the amount of Mrs. Holton's medical expenses reimbursed by insurance. We address these contentions in turn.
+Defendant first argues that the appellate court's opinion in the case at bar improperly altered, diminished, or diluted plaintiffs' burden of proving that defendant's negligence proximately caused plaintiffs' injuries. According to defendant, the appellate decisions are in patent conflict on the sufficiency of evidence necessary to prove proximate causation in a medical malpractice case. See generally Comment, Lost Chance of Survival in Illinois: The Need for Guidance from the Illinois Supreme Court, 23 Loy. U. Chi. L.J. 155, 156 (1991). One line of decisions holds that proximate cause may be established by evidence, to a reasonable degree of medical certainty, that the hospital, doctor, or other health care provider increased the risk of harm to plaintiff or lessened the effectiveness of plaintiff's treatment by the defendant's negligent conduct. See, e.g., Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 939 (1st Dist. 1995); Galvin v. Olysav, 212 Ill. App. 3d 399, 403 (5th Dist. 1991); Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458, 463-65 (1st Dist. 1987); Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143 Ill. App. 3d 479, 487-88 (1st Dist. 1986). The approach taken in these and similar cases has been termed the loss of chance or lost chance doctrine. See generally T. Lavin & G. Ziebell, Lost Chance of Survival: Is it a Lost Cause in Illinois? 84 Ill. B.J. 458 (1996). Another line of Illinois appellate cases has rejected the loss of chance doctrine as giving rise to a relaxed standard of proximate cause, one that is too conjectural to satisfy the traditional test of proximate causation. See, e.g., Netto v. Goldenberg, 266 Ill. App. 3d 174, 180-81 (2d Dist. 1994); Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d 1031, 1038 (1st Dist. 1989); Russell v. Subbiah, 149 Ill. App. 3d 268 (3d Dist. 1986); Curry v. Summer, 136 Ill. App. 3d 468, 476 (4th Dist. 1985). Defendant contends that the appellate court's application of the lost chance doctrine in the case at bar allowed plaintiffs to establish their cause of action without being held to the traditional standard of proving causation approved by this court in Borowski v. Von Solbrig, 60 Ill. 2d 418, 424 (1975). Borowski requires proof of causation by the preponderance of evidence, otherwise referred to as the more probably true than not true standard, that the negligence complained of caused plaintiff's injury. Before evaluating the conflicting appellate decisions cited above, we revisit the Borowski standard of proximate causation in medical malpractice actions, and determine whether, under that standard, plaintiffs' evidence was sufficient to withstand defendant's motion for judgment notwithstanding the verdict.
+In Borowski, this court did not directly address the loss of chance doctrine. Instead, the issue relevant to causation was whether an injured plaintiff who allegedly received negligent medical treatment could establish proximate cause without presenting evidence that a better result would have obtained if proper treatment had been administered. The plaintiff in Borowski was struck by an automobile while crossing a street and received severe injuries to his legs. The medical malpractice claim arose from the defendant hospital's alleged negligence in its treatment of the plaintiff's injuries, which resulted in the amputation of the plaintiff's left leg. The plaintiff's expert witnesses testified that in their opinion, plaintiff's leg could have been successfully repaired had proper tests been performed and procedures followed, and that delay in the plaintiff's surgery was a proximate cause of the amputation. Defendants countered that there was insufficient evidence to support the verdict in favor of plaintiff on the causation issue. Further, defendants contended that they were entitled to judgment because the evidence d[id] not establish that a better result would have been obtained if proper treatment were administered. Borowski, 60 Ill. 2d at 424. This court rejected the defendants' argument, stating that it was unnecessary to extend the burden-of-proof requirements of a medical malpractice case beyond those of an ordinary negligence case by adding the further requirement that the plaintiff prove a better result would have been achieved absent the alleged negligence of the doctor. Borowski, 60 Ill. 2d at 424. The court reiterated that under accepted Illinois Pattern Jury Instructions, plaintiff's burden of proving that defendants' negligence was the proximate cause of his injury was sustainable by proof that the proposition in issue--defendants' breach of duty caused plaintiff's injury--was more probably true than not true. Addressing the defendants' contention that the jury should not be permitted to speculate upon the relative amount of injury attributable to the fracture caused by the original accident and the amount attributable to the malpractice, the Borowski court stated, [Speculation] can be guarded against by the use of appropriate instructions to the jury. It is not necessary to become involved in all of the collateral ramifications that the `better result' test could inject into a case. Borowski, 60 Ill. 2d at 424. We reaffirm the Borowski holding. The traditional statement of proximate cause requires plaintiff to prove that defendant's negligence more probably than not caused plaintiff's injury. The better result test is not a part of plaintiff's burden of proof. Issues involving proximate cause are fact specific and therefore uniquely for the jury's determination. When a plaintiff comes to a hospital already injured, as in the case of Borowski, or has an existing undiagnosed medical condition, as in the case at bar, and while in the care of the hospital is negligently treated, the question of whether the defendant's negligent treatment is a proximate cause of plaintiff's ultimate injury is ordinarily one of fact for the jury. In the case at bar, defendant asserts that it was entitled to judgment as a matter of law for the failure of plaintiffs to present expert testimony that an earlier call to Mrs. Holton's physicians would have prevented her paralysis. In light of Borowski's rejection of the better result test, Mrs. Holton was not required to prove that an earlier call to her physicians would have resulted in a more favorable outcome. Moreover, Mrs. Holton did not base her case solely on defendant's delay in the reporting of her condition. Instead, she contended that the failure of defendant's nursing staff to accurately report the progression of her decline into paresis was a proximate cause of her paralysis. The record contains evidentiary support for plaintiffs' theory. Both Dr. Sprich and Dr. Doubek explained that they based their erroneous diagnosis and treatment decisions upon inaccurate and incomplete information regarding Mrs. Holton's condition in the hours preceding her total loss of motor control. Dr. Sprich testified that when a patient's paresis (partial paralysis) is detected and treated early enough there is a good probability of avoiding or minimizing paralysis. Dr. Doubek testified that, to a reasonable degree of medical certainty, the preferred treatment for relieving pressure on the spinal cord caused by an abscess or edema is decompression or drainage. Had the doctors been given the opportunity to properly diagnose Mrs. Holton's condition based on accurate and complete information, they would have had the opportunity to treat her condition by ordering the appropriate treatment. Because of the hospital's negligent failure to accurately and timely report Mrs. Holton's symptomotology, the appropriate treatment was not even considered. In light of these facts, we conclude that defendant failed to establish that it was entitled to judgment n.o.v. based on plaintiffs' failure to prove that an earlier call to the treating physicians would have resulted in Mrs. Holton's recovery. Defendant presents the additional argument that judgment n.o.v. is justified in the case at bar because Mrs. Holton's personal physicians rendered ineffective treatment both before and after being notified of her loss of motor skills; therefore, she did not establish that her physicians would have acted differently had they been earlier notified. In support, defendant cites to Gill v. Foster, 157 Ill. 2d 304 (1993), where summary judgment was entered in favor of the defendant hospital despite the failure of a nurse to notify a physician that a patient being discharged from the hospital complained of chest pains. Gill held that summary judgment was appropriate in that case because there was no indication that the doctor, who was aware of his patient's complaint and had decided it was not significant, would have done anything differently had the nurse repeated the patient's complaint to the doctor. Gill is inapposite to case at bar because in that case the nurse's report of the complaint would not have caused any further action on the part of the doctor. In contrast, there is testimony in the instant case that the doctors would have undertaken a different course of treatment had they been accurately and promptly apprised of their patient's progressive paresis. Judgment notwithstanding the verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. See, e.g., Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995). We do not believe that the evidence in the case at bar so overwhelming favors defendant that no verdict contrary to defendant could ever stand. Mrs. Holton's treating physicians testified that they based their erroneous diagnosis and treatment decisions upon their belief that their patient's paralysis was of sudden onset rather than having been preceded by approximately 14 to 18 hours of paresis. It is uncontested that neither of the nurses aides who assisted Mrs. Holton into a wheelchair when her legs stopped working during the evening of December 28, 1990, informed the duty nurse or a doctor of the patient's motor impairment. It also appears uncontested that the nurses who were on duty during the hours after the bathroom incident did not report Mrs. Holton's difficulties in moving her legs as a significant change in her condition. It was not until she lost bladder and bowel function along with all ability to move her legs that the nurse on duty reported Mrs. Holton's condition to her doctors. While the parties' expert opinion testimony differs with respect to the consequences flowing from the nursing staff's failure to accurately and promptly apprise the doctors of Mrs. Holton's deteriorating motor ability, the record evidence permits the inference that defendant's negligent acts and omissions prevented her physicians from correctly diagnosing and treating her condition. We conclude that the evidence supports the jury's verdict. See, e.g., Wodziak v. Kash, 278 Ill. App. 3d 901 (1996) (holding that evidence was sufficient to establish that defendant's delay in diagnosing the decedent's illness lessened the effectiveness of the treatment and that plaintiff was not required to show in absolute terms that a different outcome would have occurred had the defendant made an earlier diagnosis of the decedent's condition). We note that the Borowski court's formulation of proximate cause in the context of medical malpractice litigation is the same standard of proximate cause that is used in other types of negligence actions. Although it may appear more difficult to assess exactly what harm negligent medical treatment may have caused when the patient had a preexisting illness or injury, juries routinely are asked to determine whether, and to what extent, a defendant's negligent treatment proximately caused the injury upon which the patient's lawsuit is based. An Illinois Pattern Jury Instruction (IPI) on proximate cause that was given in the case at bar explains that the defendant's negligence need only be a cause of the harm, or any cause which, in the natural or probable sequence, produced the injury of the plaintiff, not the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury. Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1995) (hereinafter IPI Civil 3d). Under the Borowski standard, plaintiff met her evidentiary burden of proving the elements of her case. Accordingly, we hold that, based on the evidence of record, defendant was not entitled to judgment as a matter of law, and the trial court did not err in denying defendant's motion for judgment notwithstanding the verdict.
+Our conclusion that defendant was not entitled to judgment as a matter of law does not directly resolve defendant's contention that the appellate court's reliance on the loss of chance doctrine lessened plaintiffs' burden of proving proximate cause. Because our review of the conflicting appellate cases reveals a significant and ongoing dispute over the application of the loss of chance doctrine in medical malpractice actions, we further consider the issue. Lost chance or loss of chance in medical malpractice actions refers to the injury sustained by a plaintiff whose medical providers are alleged to have negligently deprived the plaintiff of a chance to survive or recover from a health problem, or where the malpractice has lessened the effectiveness of treatment or increased the risk of an unfavorable outcome to the plaintiff. Under the traditional formulation of proximate cause, as reflected in Borowski, the plaintiff must prove that defendant's alleged medical malpractice more probably than not caused the claimed injury. Where there is evidence that a plaintiff's estimated chance of surviving or recovering from an existing illness or injury, absent the malpractice, is 50% or less, some courts have concluded that proximate cause under the traditional definition is lacking. In such cases, courts have entered judgments in favor of defendants as a matter of law. See, e.g., Russell v. Subbiah, 149 Ill. App. 3d 268 (1986) (entering summary judgment for defendant where evidence showed a 50/50 chance that a doctor's negligence contributed to plaintiff's prolonged recovery); see also Curry v. Summer, 136 Ill. App. 3d 468, 476-80 (1985) (noting in dicta that plaintiff must show better than even chance of survival absent alleged malpractice to sustain burden of proof on proximate cause). Other courts have recognized that victims of medical malpractice should be able to seek damages arising from their doctors' or hospitals' negligent treatment, notwithstanding that the patients' chance of recovering from existing illnesses or injuries may be less than 50%. See, e.g., Chambers v. Rush- Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458, 463- 65 (1987) (evidence indicating that decedent had only a 33% chance of surviving an undetected cancer even with prompt diagnosis and treatment did not require conclusion that defendant's negligent inducement of brain-damaging coma did not proximately cause patient's death). Although the legal literature and case law reflect varying perceptions and applications of the loss of chance doctrine, in general two opposing views of the doctrine have emerged--the relaxed causation approach and the separate injury approach. See 84 Ill. B.J. at 459. In Illinois, most of the controversy stems from a divergence in viewpoint as to whether the loss of chance doctrine relaxes the traditional proximate cause standard in medical malpractice actions (see, e.g., Netto v. Goldenberg, 266
+192 Ill. App. 3d 1031, 1038 (1989)) or whether the traditional principles of proximate cause are satisfied by and can be harmonized with the loss of chance concept (see, e.g, Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 940 (1995); Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458, 463-65 (1987)). Northern Trust Co. v. Louis A. Weiss Memorial Hospital, 143
+specifically identify and approve the loss of chance concept, in the context of deciding whether proximate causation could be established by evidence that the defendant's conduct lessened the effectiveness of the treatment or increased the risk of harm to a patient. In Northern Trust Co., the defendant hospital was found liable for injuries arising from the medical care given to a newborn infant. Although the individual nurses and doctors involved were found not liable in negligence, the jury's verdict against the hospital was upheld on the ground that the hospital was negligent for its failure to provide a specially trained nurse to supervise the nursery in accordance with board of health regulations. With respect to the issue of causation, the hospital in Northern Trust Co. claimed that its failure to provide a specially trained nurse was not a proximate cause of the baby's brain damage. However, the court cited evidence which indicated that a trained nurse would have known from the symptoms that the baby's condition was deteriorating and, had notification of such condition been made without the 6½-hour delay that occurred in the case, the baby's brain damage and retardation could have been prevented or reduced. The expert evidence indicated that the delay increased the likelihood of permanent damage. The court reviewed cases from other jurisdictions and examined section 323 of the Restatement (Second) of Torts (1965), which provides that [o]ne who undertakes  to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm . The Northern Trust Co. court concluded that the better rule is that `[e]vidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment  lessened the effectiveness of treatment is sufficient to establish proximate cause.'  (Emphasis added.) Northern Trust Co., 143 Ill. App. 3d at 487. We believe that the reasonable certainty language referenced above conforms to traditional principles of proximate cause. Similarly, in Chambers v. Rush-Presbyterian-St. Luke's Medical Center, 155 Ill. App. 3d 458 (1987), the court cited the reasoning in Northern Trust Co. and upheld a medical malpractice verdict for a plaintiff against the hospital's claim that the plaintiff failed to establish that the cause of death was defendant's negligence rather than the decedent's preexisting terminal cancer. In Chambers, the plaintiff asserted that the defendant hospital negligently treated the plaintiff's decedent, causing him to lapse into a coma caused by high blood sugar. The patient suffered brain damage as a result of the coma and received no treatment for a cancer that subsequently was discovered during his autopsy. A contested issue raised in defendant's appeal centered upon the cause of death and whether plaintiff had adequately proved that defendant's negligence proximately caused the patient's death, as opposed to the cancer itself. The Chambers court cited the Borowski decision for the proposition that a plaintiff is not required to prove that a better result would have been obtained absent the malpractice. The court also acknowledged that the circumstances were more problematic when evidence existed that both medical malpractice and an underlying disease or injury caused the patient's death. Nevertheless, the Chambers court rejected defendants' contention that the plaintiff did not sustain her burden of proving proximate cause because of her failure to demonstrate that decedent had more than a 50% chance of surviving the cancer had he not been put into a coma through the negligence of the hospital. Chambers, 155 Ill. App. 3d at 463. We conclude that Northern Trust Co. and Chambers reflect the correct application of proximate causation principles when a defendant's negligent medical care is alleged to have denied the patient a chance of survival or recovery. We note, however, that other appellate decisions have expressly departed from the rationale of Northern Trust Co. and Chambers on the ground that the loss of chance analysis in those decisions altered or eliminated plaintiffs' burden of proving proximate cause. See Hare v. Foster G. McGaw Hospital, 192 Ill. App. 3d 1031 (1st Dist. 1989); Netto v. Goldenberg, 266 Ill. App. 3d 174, 180-81 (2d Dist. 1994). Another recent appellate decision has, in turn, rejected the Hare and Netto analysis and held that loss of chance theory may be harmonized with the traditional standard of proof set forth in Borowski. See Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932 (1st. Dist. 1995), citing Pumala v. Sipos, 163 Ill. App. 3d 1093 (2d Dist. 1987). We briefly discuss each of these cases. Hare was a survival and wrongful death action in which the decedent, who suffered from an untreatable condition, had been turned away from defendant hospital. The appellate court affirmed a directed verdict entered in favor of defendant on the ground that plaintiff failed to establish the requisite causal connection between the defendant's allegedly negligent failure to hospitalize plaintiff's decedent and the patient's death from his untreatable fatal illness. Because the evidence revealed that no medical treatment was available for the decedent's fatal illness, the Hare court determined that plaintiff had not established that the defendant's failure to hospitalize the decedent more probably than not was a cause of his death. Instead of simply holding that the directed verdict was proper because of insufficient evidence of proximate cause, the Hare court went on to discuss the development of the loss of chance doctrine and the conflicting interpretations of what standard of proof is required to establish proximate cause. Apparently believing that the Borowski standard of proximate cause would be undermined by recognition of the loss of chance concept, the Hare court expressly declined to follow the lead of such cases as Northern Trust Co. and Chambers, stating, [A]ny alteration in the burden of proof regarding proximate cause as was done in [Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978)] would have to come from the supreme court. Hare, 192 Ill. App. 3d at 1038. The Second District of the Appellate Court, in Netto, adopted the Hare court's view that the loss of chance doctrine lessened plaintiffs' burden of proving proximate cause and further expressed its belief that the Northern Trust Co. and Chambers courts removed the proximate cause element from medical negligence actions. (Emphasis added.) Netto, 266 Ill. App. 3d at 181. The Netto court's disapproval of the loss of chance doctrine occurred in the context of reviewing the plaintiff's non-IPI instruction purporting to state a loss of chance theory. However, the Netto court did not hold that the plaintiff's evidence of proximate cause was inadequate and, in fact, reversed the judgment entered upon jury verdict in favor of defendant and remanded for new trial because of error. In Pumala v. Sipos, 163 Ill. App. 3d 1093 (1987), another panel of the Second District observed that a plaintiff need not prove that a better result would have occurred absent the alleged malpractice, consistent with Borowski, but also emphasized that a plaintiff, to establish proximate cause, must show with a reasonable degree of medical certainty that the negligent delay in diagnosis or treatment lessened the effectiveness of the medical services rendered to the plaintiff. Pumala, 163 Ill. App. 3d at 1098, citing Northern Trust Co, 143 Ill. App. 3d 479. The Pumala court affirmed the trial court's order directing a verdict in favor of the defendant in that case, however, because the evidence did not establish the requisite nexus between the alleged malpractice and plaintiff's injury. Finally, in Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932 (1995), a panel of the First District of the Appellate Court engaged in a thorough analysis of the loss of chance doctrine and followed the reasoning of Pumala. The court in Hajian stated, We do not agree with [Netto's] interpretation of Northern Trust and its progeny, but rather, would resolve the conflict by harmonizing the language of Northern Trust and Borowski as was attempted in Pumala [v. Sipos, 163 Ill. App. 3d 1093 (1987)]. Hajian, 273 Ill. App. 3d at 940. As the above examination of the case law reveals, individual decisions may be properly decided upon their facts yet still conflict with other decisions in their analysis of the loss of chance doctrine. The reasoning of the appellate panels in Pumala and Hajian is consistent with Northern Trust Co. and Chambers and, in our view, reflects the correct understanding of the loss of chance concept. Conversely, decisions such as Hare and Netto misleadingly suggest that loss of chance analysis ipso facto results in a lowered standard of plaintiff's proof of causation. Although the specific dispositions of the appeals in Hare and Netto may have been justified, the loss of chance analysis contained in the decisions has perpetuated confusion as to the proper standard of proof in medical malpractice cases. Accordingly, we overrule those cases to the extent that their analysis conflicts with our holding in the instant case. There is nothing novel about requiring health care professionals to compensate patients who are negligently injured while in their care. To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant's malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant. E.g., Curry, 136
+Ruder, 137 Ill. 2d 284, 292-93 (1990) (specifically disapproving the Russell court's entry of summary judgment upon evidence that the patient's chances of survival absent the malpractice was 50/50). To hold otherwise would free health care providers from legal responsibility for even the grossest acts of negligence, as long as the patient upon whom the malpractice was performed already suffered an illness or injury that could be quantified by experts as affording that patient less than a 50% chance of recovering his or her health. Disallowing tort recovery in medical malpractice actions on the theory that a patient was already too ill to survive or recover may operate as a disincentive on the part of health care providers to administer quality medical care to critically ill or injured patients. Moreover, it has been noted that [i]t is impossible to divine who would fall into one category [survivor] or the other [nonsurvivor]. Not allowing such a case to be decided by a jury means that statistical proof of a less than 50% chance would be dispositive, even though no expert in the world could prospectively state who would survive and who would die. That is why doctors treat all patients, not just those with better than even odds. 84
+We hold that the loss of chance concept, when properly analyzed, does not relax or lower plaintiffs' burden of proving causation. Rather, the concept comports with the Borowski standard.
+Although we have held that defendant was not entitled to judgment notwithstanding the verdict, we conclude that defendant is entitled to a new trial because of certain errors which had a strong probability of prejudicing the jury. Specifically, we determine that the trial judge's admonition to the jury that one of the defense witnesses gave inaccurate testimony on a collateral issue and was encouraged to do so by defendant's attorneys, coupled with plaintiffs' counsel's repeated charges of defendant's fraudulent misconduct, constituted reversible error under the circumstances of this case. To explain why these errors require the granting of a new trial it is necessary to consider the factual context in which the errors occurred. During trial, plaintiffs' counsel attempted to demonstrate that defendant and its attorneys had coached key witnesses for defendant to change their deposition testimony to better fit the defense theory. By vigorous cross-examination and through repeated remarks during closing argument, plaintiffs' counsel vehemently argued the possibility that the hospital had engaged in an attempt to cover up the nursing staff's negligence by falsifying testimony. Additionally, because of an incident that occurred just after Dr. Jergens' testimony in defendant's case, plaintiffs' counsel apparently became convinced that defendant's attorneys had encouraged Dr. Jergens to give false testimony with regard to whether the doctor was a defendant in a companion lawsuit filed by plaintiffs. Although the issue of Dr. Jergens' status as a defendant in a different case was collateral to the trial issues, plaintiffs' counsel subsequently asserted to the trial judge in conference that Dr. Jergens had committed perjury, and that defendant's counsel had aided and abetted such perjury. The following facts taken from the record are relevant to this issue. Dr. Jergens, the emergency room physician on duty at the time of Mrs. Holton's admission, was asked at the end of his cross- examination the following question by plaintiffs' counsel, Bruce Cook: Q. You understand, do you not, sir, that you are a defendant in a companion case to this one? Are your aware of that?
+At the time of this question, Dr. Jergens had not been formally served with summons and a copy of the complaint in a companion lawsuit that plaintiffs had filed approximately a year before the trial in the instant case. In fact, according to a discussion in the transcript it appears that at the beginning of trial, Cook had told defendant's lead trial counsel, Sandberg, that he believed the other lawsuit had been dismissed. Moreover, as is clear from the attorneys' arguments to the judge outside the presence of the jury, the two attorneys disagreed as to whether a person is properly considered a party defendant if he or she has been named in a complaint but has never been served with process. Sandberg maintained that Dr. Jergens was not a party in the companion lawsuit until he was served with process. More importantly, Sandberg argued that the doctor's potential status as a defendant in a separate lawsuit was a collateral issue of no relevance to the pending trial. In contrast, plaintiffs' counsel took the position that if Dr. Jergens was aware of the existence of the other lawsuit, he did not answer truthfully when questioned during cross-examination as to his awareness of being a defendant in that suit. Over objection, and in the jury's presence, the court took judicial notice of Dr. Jergens' party status and allowed plaintiffs' counsel to inform the jury, Mark Jergens, who just testified, is a party defendant in a pending lawsuit where my clients have filed suit against him. If that had been the end of the matter, no real prejudice to defendant would have resulted because Dr. Jergens' status as a party defendant in another lawsuit would have been relevant only to show a potential bias in his testimony, which is an appropriate use of cross-examination. However, instead of treating the dispute over Dr. Jergens' party status as a difference of legal opinion, plaintiffs' attorney chose to treat the doctor's answer as perjury and to accuse opposing counsel of suborning or inducing such perjury. In support of these serious charges, Cook informed the court that after Dr. Jergens left the courtroom following his testimony, the doctor fled when an employee of Cook's law firm attempted to serve him with the complaint and summons in the separate suit. Although service was effected, plaintiffs' counsel demanded to have the witness brought back for further questioning, claiming that the incident proved that Dr. Jergens knowingly deceived the court when he denied awareness of being a defendant in the other lawsuit. According to Cook, defendant's attorneys must have warned Dr. Jergens to evade service, which indicated that defendant's attorneys again were engaged in inducing a witness to tell a lie under oath. Sandberg acknowledged that Dr. Jergens was aware of the existence of the separate lawsuit but denied that he had instructed Dr. Jergens how to answer the question because the issue had nothing to do with this lawsuit. Sandberg also told the court that when he saw the papers for the lawsuit lying on counsel table he informed Dr. Jergens of the likelihood that plaintiffs' counsel would attempt to effect service. However, Sandberg reiterated his belief that Dr. Jergens, who had not been served with the separate suit at the time he testified, honestly stated his understanding of his party status and did not give a false or inaccurate response to Cook's question. When Dr. Jergens returned to court the same afternoon in response to the trial judge's order, he was questioned at some length outside the presence of the jury. Dr. Jergens testified that he knew of the existence of the companion lawsuit. He had formerly worked at Memorial Hospital and had been deposed in the pending lawsuit. It was his understanding, based on information from many sources, including defendant's attorneys, that he was not a party defendant in the companion suit until formal service of summons was effected. Dr. Jergens, who is not an Illinois resident, explained that he ran from plaintiffs' process server as he was leaving court because he did not want to be served with the lawsuit. He had asked Kristen Hines, the hospital's in-house counsel, what to do to avoid service and she told him to leave quickly. Dr. Jergens denied that either Hines or Sandberg had told him how to answer if Cook inquired upon cross-examination whether he was a defendant in the other lawsuit. During his questioning of Dr. Jergens outside the presence of the jury, Cook argued with the witness over the honesty of his belief that he was not a party in the separate suit, and outright accused Dr. Jergens of lying to the jury at trial. Then, when Sandberg remarked that the questioning was getting a bit far afield, Cook replied, You're about ready to go in the slammer here in a second . He referred to Hines as Sandberg's henchman who advised the witness to flee. Continuously during the hearing, Cook made remarks questioning the ethics of opposing counsel and impugning their integrity and honesty. Despite his hostile characterization of the situation, Cook offered the trial court no authority to support his contention that Dr. Jergens' testimony regarding his status as a party was legally incorrect. Nor did he explain in what manner Dr. Jergens' answer was factually untruthful. Nonetheless, he moved the court to hold Dr. Jergens and the two attorneys for the hospital in contempt. He stated that defendant's lawyers, Hines and Sandberg, should be reported to the Attorney Registration and Disciplinary Commission. Finally, Cook orally moved the court to strike the hospital's pleadings, which would have the effect of defaulting defendant. He told the court, As a practical matter, Judge, you probably should issue a directed verdict in my behalf anyway on the issue of negligence. We'll save a lot of time. The doctor won't have to spend another day. Ms. Hines and Mr. Sandberg rather than having to be jailed will  get their names in the books in the Appellate Court when they appeal it. Although the trial judge did not impose the severe sanction of striking the hospital's answer, the court concluded that Sandberg had been untruthful when he denied discussing the companion suit with Dr. Jergens, and further concluded that the veracity of Dr. Jergens on this collateral matter of his party status was important, very, very important. Consequently, the trial judge read the following statement to the jury at the next session of court, just before closing statements: Yesterday afternoon out of your presence, we conducted a hearing concerning Dr. Mark Jergens' testimony. I determined at the hearing that the doctor's testimony concerning his knowledge of a lawsuit pending against him was not true. I further determined that Ms. Hines and Mr. Sandberg knew the statement was false and had done certain things that encouraged the doctor to believe his answer was accurate. You may consider this fact in determining the credibility of Dr. Jergens' testimony. In our view, the controversy over Dr. Jergens' party status in a separate lawsuit was a collateral issue of limited if any relevance to the instant case. This court has noted that if a question concerns a collateral matter the cross-examining attorney must accept the answer given and is not allowed to attempt impeachment on the issue. See Esser v. McIntyre, 169 Ill. 2d 292, 305 (1996); see also Tzystuck v. Chicago Transit Authority, 124
+prevent the jury from becoming distracted from the main issues). Moreover, because the trial court took judicial notice of Dr. Jergens' party status, plaintiffs' counsel was able to inform the jury of the point he wished to make through Dr. Jergens' testimony,
+lawsuit. Therefore, we conclude that the trial court should not have entertained Cook's request to hold a mini-trial into the side issue of whether Dr. Jergens' party status answer was complete and accurate. Of greater concern are Cook's groundless accusations of perjury and subornation of perjury in connection with this matter. The record does not bear out such charges. Dr. Jergens told the court it was his honest belief that he was not a defendant in the other suit at the time of his trial testimony because he had not been served with process. Opinions on points of law, even if incorrect, are not perjurious. Similarly, a person's honest understanding of his legal status cannot be viewed as constituting an intentional misrepresentation of fact. Therefore, Cook's charge of perjury should have been rejected. We also question the basis upon which Cook insisted that Sandberg lied to the court when he initially denied having discussed the separate suit with Dr. Jergens. The transcript indicates that Sandberg subsequently corrected himself by acknowledging that after seeing the papers for the separate lawsuit lying on counsel table, he informed the doctor of his belief that plaintiff planned to serve him in court. Sandberg admitted discussing the legalities of service of process, but denied that he had specifically told Dr. Jergens how to answer any questions at trial concerning Dr. Jergens' party status. Indeed, Sandberg stated that he did not believe the issue was relevant. Dr. Jergens, in his testimony, corroborated Sandberg's representations that the subject of how to answer questions regarding Dr. Jergens' party status was not discussed. Dr. Jergens also acknowledged having talked to Sandberg and others in the past regarding the legal significance of service of process. We conclude that the record contains no sound basis for finding that Sandberg intentionally misled the court. Even if Sandberg misspoke in his initial denial of having discussed the separate lawsuit with Dr. Jergens, it is clear from the context that he was attempting to respond to Cook's specific accusation that he had coached the witness on how to answer the party status question. We conclude that Cook's motion for sanctions based on perjury or subornation of perjury was not supported by the record and was meritless. We hold that the trial court abused its discretion in bringing to the jury's attention its personal belief that Dr. Jergens had testified falsely and had been led to do so by defendants' attorneys. This court has stated that a trial judge should refrain from conveying to the jury his or her opinions on ultimate matters of fact or the credibility of witnesses and the weight to be given their testimony. See People v. Santucci, 24 Ill. 2d 93, 98 (1962). In the case at bar, the prejudicial impact of the trial court's statement upon the jury can hardly be overstated. The jury was not apprised of the legal basis upon which Dr. Jergens' opinion of his party status rested, nor was the jury told of the circumstances under which the charge of attorney misconduct was made. Instead, the trial court told the jury, as proven fact, that Dr. Jergens had, in effect, lied at the behest of defendant's attorneys and that the jury could consider that fact in determining the witness' credibility. This undoubtedly had a devastating impact on the jury's perception of defendant, its lawyers, and its witnesses. By its unwarranted remarks to the jury, the trial court placed its neutrality in issue. Therefore, we hold that defendant was denied a fair trial and is entitled to a new trial. See, e.g., Forest Preserve District v. Wike, 3 Ill. 2d 49, 57 (1954) (judge should not make comments reflecting on the integrity of counsel in the presence of the jury); see generally A. Hartman, The Whys and Whynots of Judicial Comments on Evidence in Jury Trials, 23 Loy. U. Chi. L.J. 1, 19-21 (1991). We note further that the prejudicial impact of the trial judge's remarks was heightened by the immediately following closing argument of Cook, who riddled his summation with references to coached and deceitful hospital witnesses and manipulative attorneys. For example, Cook claimed that the rules of trial had been shamelessly ignored by the defense, including the rule that attorneys should not counsel or assist a witness to testify falsely. Cook commented that the nurses and nurses aides were nice people who had been encouraged to modify their testimony. According to Cook, his was the profession of Abraham Lincoln and Daniel Webster and the Declaration of Independence, while the defense attorneys profession was that of John Dean, John Erlichmann, people who were so interested in winning that they violated the rules. Cook told the jury that the probable reason for the lawyer misconduct in this case was that Mrs. Holton sustained terrible damages. He further informed the jury that it had been the victim of distortion of the truth by the named partner in a large St. Louis law firm. We believe that these remarks were of a type likely to arouse passion and prejudice in the jury, particularly in light of the trial judge's comments undermining Dr. Jergens' credibility and the lawyers' integrity. Therefore, the prejudicial remarks contributed to the trial court's error and combined with that error to deny defendant a fair trial under the circumstances. It is true that where there is record evidence in support of a claim that opposing counsel or parties falsified evidence or encouraged witnesses to change their trial testimony, counsel may fairly comment upon such evidence. If a witness' trial testimony significantly differs from his or her deposition testimony, opposing counsel may exploit such changes by traditional means of impeachment. However, modifications or additions to a witness' trial testimony which were not expressly stated in that witness' pretrial deposition do not, in and of themselves, suggest deliberate distortion of evidence by the witness or fraudulent coaching by lawyers. In the case at bar, plaintiffs' counsel believed that he had obtained damaging admissions from certain witnesses that defendant or its agents had encouraged them to change their testimony with respect to Mrs. Holton's condition in the hours preceding her paralysis. Because we are remanding this cause for new trial we make no express finding regarding whether there may have existed a sufficient evidentiary basis to support some of Cook's remarks indicating that defense counsel coached the nursing staff witnesses to lie and change their testimony. Although the appellate court in the instant case observed that there was evidence sufficient to raise such an inference, the court further stated that the evidence did not conclusively establish that hospital employees were manipulated or told to testify falsely. We hold only that the trial in the instant case was fatally tainted by the improper comments of the trial judge to the jury, coupled with closing remarks of an unduly prejudicial nature. The evidence of the hospital's liability was not so overwhelming that we can characterize the trial error as harmless under the circumstances. Nor can we conclude that the jury's verdict was unlikely to have been influenced by the trial court's comments upon the integrity of defense counsel and the credibility of one of its witnesses, especially in light of Cook's repeated charges of dishonesty and attorney misconduct.
+Defendant also challenges certain jury instructions. First, defendant contends that plaintiffs' instruction no. 13, a non-IPI instruction, was misleading. This instruction stated that defendant owed a duty, independent of any relationship between physician and patient, to review and supervise the medical care administered to the plaintiff. According to defendant, this instruction could be understood as making the hospital liable not only for the acts and omissions of the nursing staff and emergency room personnel, but also for any negligence on the part of Dr. Doubek and the other private physicians who treated Mrs. Holton. According to defendant, because there was no evidence that the hospital knew or should have known that plaintiffs' private treating physicians had misdiagnosed Mrs. Holton's condition or rendered ineffective treatment, defendant was not vicariously liable for the acts or omissions of plaintiffs' physicians. Furthermore, defendant argues that the potential jury confusion over the scope of the hospital's vicarious liability was demonstrated by the jury's written inquiry to the court, asking whether a staff member, i.e., Dr. Doubek, [is] an officer or employee of the hospital. Plaintiffs concede that instruction no. 13 could have been drafted more narrowly to prevent the jury from speculating whether any physicians other than Dr. Jergens, the emergency room physician on call, were included in the group of defendant's employees whose acts or omissions were legally attributable to defendant. However, plaintiffs assert that the instruction correctly states the applicable law, that a hospital has an independent duty to its patients to review and supervise treatment, and therefore any error in the instruction was harmless, particularly in view of the overwhelming evidence against defendant. In light of our decision to reverse and remand this cause for new trial we need only note that the instruction should not be resubmitted in its presently drafted form. We believe that the jury's question to the court reflects potential confusion over whether private physicians are considered staff members for purposes of holding the hospital legally responsible for acts and omissions of the private doctors. Accordingly, on remand any instruction attempting to state the hospital's duty to supervise the medical care given its patients should be clearly and accurately drafted to avoid jury speculation or confusion. Defendant next argues that the statement of law in plaintiffs' instruction no. 24 does not apply to the instant case and should not have been given. Instruction no. 24 stated, If a health care provider is guilty of professional negligence which creates a condition of the plaintiff's body, then the health care provider is liable not only for plaintiff's damages resulting from that condition, but also liable for any damages sustained by the plaintiff arising from the efforts of subsequent health care providers to treat the condition caused by the initial health care provider. According to defendant, this instruction is applicable only in cases where one tortfeasor creates a condition in the plaintiff and subsequent medical providers improperly treat the condition, making it worse. See Gertz v. Campbell, 55 Ill. 2d 84 (1973) (negligent driver sued for plaintiff's injuries sustained in collision and also for subsequent aggravation of injuries from medical malpractice). Defendant states that it did not create the condition of osteomyelitis in Mrs. Holton and therefore instruction no. 24 does not apply to any issue in the case. Plaintiffs relied on the case of Daly v. Carmean, 210 Ill. App. 3d 19 (1991), as authority for submitting this instruction. In Daly, the appellate court held that an identically worded instruction was appropriate in the case before it, which involved a podiatrist who had negligently performed foot surgery upon plaintiff and caused numerous complications needing subsequent correction. Daly held that although the instruction properly stated the doctor's liability for aggravating the plaintiff's initial condition, the trial court did not abuse its discretion in refusing the instruction. In the case at bar, plaintiffs do not explain in what manner Daly assists their contention that instruction no. 24 should have been given. Instead, plaintiffs simply argue that the instruction is a correct statement of the law where subsequent medical treatment may have caused damage to plaintiff. We believe that the circumstances of the case at bar are distinguishable from those of cases such as Daly and Gertz, where an initial tortfeasor was legally responsible for subsequent aggravation of the original injury caused by the initial tortfeasor. The case at bar would be analogous to Gertz and Daly if, for example, some individual had negligently injured Mrs. Holton's spine, causing trauma, which resulted in the osteomyelitis that was subsequently misdiagnosed and incorrectly treated. In such an example, the original tortfeasor presumably could be found liable for the damages caused not only by the initial injury to the spine but also for the subsequent failure on the part of the health care providers to detect and correct the condition. In the instant case, however, the facts do not appear to support the giving of an instruction involving the aggravation of an original tortfeasor's injury by subsequent medical malpractice. Therefore, we hold that instruction no. 24 should not be given upon retrial. Defendant's remaining challenge to the jury instructions is that the proximate cause instructions were one-sided, favoring plaintiffs. According to defendant, the trial court erred in rejecting one of the optional provisions of an IPI instruction, which would have allowed the jury to enter verdict in favor of defendant if the jury found that plaintiffs' injuries were solely caused by the conduct of some person other than defendant. In instruction no. 15, the jury was given the long form proximate cause instruction (IPI Civil 3d No. 15.01), which defines proximate cause as any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury. The jury was also given IPI Civil 3d No. 12.05, submitted by defendant, which states that if the jury finds the defendant's negligence was a proximate cause of plaintiff's injury it is not a defense that something else may also have been a cause of the injury. The second paragraph of this instruction instructs that the verdict should be for defendant if the jury decides that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant. (Emphasis added.) IPI Civil 3d No. 12.05. Defendant's specific challenge is to the omission from another instruction, instruction no. 14, of a sole proximate cause provision based on conduct of third parties. As given to the jury, instruction no. 14 stated that more than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame. See IPI Civil 3d No. 12.04. According to defendant, the second paragraph of IPI Civil 3d No. 12.04 should have been included, as follows: However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant. Defendant argues that the inclusion of this provision would have properly allowed the jury to find that the conduct of Dr. Doubek, Dr. Murphy, or Dr. Sprich in failing to properly diagnose and treat Mrs. Holton, was the sole proximate cause of her injury. We reject defendant's contention that the trial court abused its discretion in declining to include the above-quoted provision in instruction no. 14. A defendant is not automatically entitled to a sole proximate cause instruction wherever there is evidence that there may have been more than one, or concurrent, causes of an injury or where more than one person may have been negligent. Instead, a sole proximate cause instruction is not appropriate unless there is evidence that the sole proximate cause (not a proximate cause) of a plaintiff's injury is conduct of another person or condition. See Ballweg v. City of Springfield, 114 Ill. 2d 107, 121 (1986); cf. Leonardi v. Loyola University, 168 Ill. 2d 83 (1995). The usage notes following IPI Civil 3d No. 12.04 caution that the sole proximate cause provision should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person. In the case at bar, defendant did not present evidence or argue that it was only the negligence of persons other than the hospital employees which proximately caused plaintiffs' injury. Instead, defendant attempted to establish that no medical negligence had occurred at all. Defendant did not charge that plaintiffs' treating physicians were negligent in their acts or omissions. On the contrary, much of the defense relied on the rationale that the treating physicians' diagnosis and treatment decisions were proper in light of the circumstances in which the decisions were made. For example, there was evidence that a cancerous tumor appeared to be the most likely diagnosis based on the information upon which the treating doctors based their decisions. The jury, however, found in favor of plaintiffs, under whose theory of the case defendant's negligence proximately caused the treating physicians' misdiagnosis. Because neither plaintiffs nor defendant asserted at trial that the treating physicians themselves were negligent, we conclude that the trial court did not err in denying defendant's request for a sole proximate cause instruction based on the negligence of third parties.
+Finally, defendant claims that it was entitled to a setoff against the damages award for expenses paid by plaintiffs' insurance company. Plaintiffs counter that this court's resolution of the issue would be premature because the issue of the insurer's subrogation rights has not yet been adjudicated. We decline to address this issue in light of our reversal of the cause for new trial because there is no longer a judgment against which to set off the expenses paid by the insurance company. The parties may raise any issues regarding insurance reimbursement or subrogation rights at the appropriate time in the trial court. For the foregoing reasons, we agree with the denial of defendant's motion for judgment notwithstanding the verdict and hold that plaintiffs sustained their burden of proving proximate cause pursuant to the Borowski standard. We reverse the judgment of the appellate court and the judgment of the circuit court entered upon jury verdicts in favor of plaintiffs and remand for a new trial because defendant was denied a fair trial. Appellate court judgment reversed; circuit court judgment reversed; cause remanded.",analysis
+682,1618299,1,1,"The relevant facts essentially are undisputed. Kennon Ready-Mix Inc. employed Mr. Burns to drive a concrete-mixer truck. Mr. Smith served as Mr. Burns's supervisor. This Court held on prior appeal of the underlying tort judgment against Mr. Smith that he was acting outside the scope of his duties at Kennon and increased the risk to Mr. Burns when placing a weld on a cement truck's salvage water-pressure tank over an area that had become corroded and rusted through. The weld was made defectively, and the tank later exploded, seriously injuring Mr. Burns. See Burns v. Smith, 214 S.W.3d 335, 340 (Mo. banc 2007). In addition to recovering worker's compensation benefits from Kennon, Mr. Burns filed a negligence suit against Mr. Smith. When Mr. Smith's insurers refused to defend, Mr. Smith and Mr. Burns entered into an agreement pursuant to § 537.065, RSMo 2000, under which they agreed that the case would be tried to the court and that Mr. Burns would limit his recovery, if any, to any applicable insurance proceeds. The trial court found Mr. Smith liable for negligence and awarded Mr. Burns $2,044,278 in damages. Mr. Burns then filed the instant equitable garnishment action against Mr. Smith's policy with Oak River and against his Farmowners-Ranchowners policy with Farmers. During the pendency of the garnishment action, this Court affirmed the judgment for Mr. Burns against Mr. Smith, holding that Mr. Smith's conduct was outside the scope of his duties for the company and, therefore, that his conduct did not come within the exclusivity provisions of the worker's compensation statutes. Burns, 214 S.W.3d at 335. Following this Court's ruling, Oak River settled with Mr. Burns for $675,000. The garnishment action on the Farmers policy proceeded to hearing. The Farmers policy, which covered Mr. Smith's dwelling, household property and farm premises, provided $1 million in personal liability coverage for all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. The trial court found that, under this provision, Farmers was liable for its $1 million policy limits and that other provisions of the policy made it responsible for prejudgment interest on the policy limits and post-judgment interest on the entire amount of the underlying judgment. Farmers now appeals, alleging that an exclusion to coverage applied and that, even were the exclusion inapplicable because ambiguous, the trial court erred in calculating the amount of prejudgment and post-judgment interest.",facts
+683,1201386,2,2,"Henry also contends that the prior armed robbery was not supported by sufficient evidence because he was not specifically identified as the person who committed the crime. This claim is without merit. Certified documents from California concerning the robbery contained Henry's picture and were admitted without objection. State v. McAlvain, 104 Ariz. 445, 447, 454 P.2d 987, 989 (1969). In addition, Henry admitted the offense at the presentence hearing.",sufficiency of the evidence
+684,2640468,1,1,"The current Speaker of the Colorado House of Representatives, Andrew Romanoff, and the current President of the Colorado Senate, Joan Fitz-Gerald, petition us under C.A.R. 21, in the nature of the writ of quo warranto, to determine which of four appointees should properly be seated on the State Commission on Judicial Performance. [1] There exists a controversy whereby four appointed commissioners seek to fill two of the ten seats of the statewide Commission. Two of the Respondents, Lance W. Sears and Bradley A. Levin, have been appointed by Romanoff and Fitz-Gerald; and two other respondents, Paul F. Miller and William Banta, have been appointed by Petitioners' predecessors in office, Lola Spradley, former Speaker of the House of Representatives, and John Andrews, former President of the Senate. Because the four appointed commissioners seek to fill two seats, the work of the Commission is at a standstill. The Commission has been unable to select a chairperson, or a co-chairperson, and it has not been able to begin its statutory work to evaluate and prepare narrative profiles and recommendations for five judges on the court of appeals eligible for retention in this election year. Upon petition of the Petitioners, we issued an order to show cause to the Commission, itself, and to each of the four potential office holders, as respondents, to determine who are the lawful office holders. In this rare instance, we exercise our discretion to consider a writ in the nature of quo warranto under C.A.R. 21. We do so because of the public importance of the State Commission's statutory mission to evaluate judges for the benefit of the voters and the need to resolve the conflicting statutory claims made by the Petitioners and the Respondents, Miller and Banta. To resolve this controversy, we must construe C.R.S. 13-5.5-102(1)(a) and (1)(b), which set forth the mandatory statutory terms of office of the commissioners, as well as the powers of the Speaker of the House of Representatives, the President of the Senate, and, under specific circumstances, the Commission, itself, to appoint commissioners. In discharging the rule, we hold that subsection (1)(a) of this statute creates a regimen of fixed, four-year terms for each commissioner. Each commissioner's term begins on December 1 of an election year and ends in the election year four years later on November 30. We hold that subsection (1)(b) of this statute directs that when a Commission vacancy occurs, if the appointing authority— here, either the Speaker of the House of Representatives or the President of the Senate—fails to appoint a new commissioner within forty-five days of this vacancy, then that appointing authority loses its power of appointment for the vacant seat and the appointment power devolves to the Commission, itself, to fill this vacancy. Accordingly, we discharge the rule in the following particulars. We direct the Commission to recognize Respondent Miller's appointment as valid and binding to replace Respondent Sears as a commissioner on the State Judicial Performance Commission for a term expiring November 30, 2008. We direct the Commission to appoint a commissioner to serve out the remainder of the President of the Senate's appointment for the Commission seat sought by Respondents Levin and Banta. The Commission's appointee shall serve for a term which will expire on November 30, 2006.",introduction
+685,2173448,1,1,"Appeals from a grant of summary judgment are essentially reviewed de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). To be entitled to summary judgment, the moving party must demonstrate that there is no genuine dispute of material fact and that the movant is entitled to summary judgment as a matter of law. Id. at 381; Rule 74.04(c). Here, there is no dispute as to material facts, so the Court evaluates if a party is entitled to summary judgment as a matter of law.",standard of review
+686,4518085,1,1,"After a will contest was transferred from the county court to the district court, the proponent sought and obtained a summary judgment determining that the decedent’s will was valid. The contestant appeals. Because the bill of exceptions does not contain the proponent’s evidence, only the contestant’s evidence is properly before us. Obviously, with literally no evidence to support it, the summary judgment for the proponent must be reversed. And because the matter is likely to recur upon remand, we briefly address Neb. Ct. R. § 6-1526 (rev. 2018), “Summary Judgment Procedure.”",introduction
+687,1965477,1,2,"As a general matter, the authority for the sale of real estate for delinquent taxes must be found in the statutes and such statutes will not be enlarged by judicial construction but will be strictly construed in favor of the owner. First Bank & Trust Co. v. City of Providence, 827 A.2d 606, 610 (R.I.2003) (quoting Parker v. MacCue, 54 R.I. 270, 272, 172 A. 725, 726 (1934)). This Court exercises a de novo standard of review with respect to questions of statutory interpretation. State v. LaRoche, 925 A.2d 885, 887 (R.I.2007).",standard of review
+688,2553189,2,3,"In determining whether there was sufficient evidence to support Matthews's conviction for the attempted robbery while armed of Swann, we `must review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine the credibility, weigh the evidence, and draw justifiable inferences of fact, and drawing no distinction between direct and circumstantial evidence.' Timberlake v. United States, 758 A.2d 978, 980 (D.C.2000) (quoting Curry v. United States, 520 A.2d 255, 263 (D.C.1987)). To prevail on an insufficiency claim, an appellant must establish `that the government presented no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.' Carter v. United States, 957 A.2d 9, 14 (2008) (quoting Peery v. United States, 849 A.2d 999, 1001 (D.C.2004)). In this instance, we find sufficient evidence for the jury to convict Matthews of the attempted robbery while armed of Swann. Appellant contends that in this case there was no evidence, direct or circumstantial of intent to rob Swann. [8] We disagree. `[I]t is well established that the jury may infer the intent to rob from the totality of the evidence.' Id. at 15 (quoting Singleton v. United States, 488 A.2d 1365, 1367 (D.C.1985)). We consider both the appellant's words and actions to assess intent. See Owens v. United States, 497 A.2d 1086, 1090 (D.C.1985). It is not necessary for the defendant to announce his intent, id., nor is it necessary for the defendant to use any magical language demanding money, see Abdus-Price v. United States, 873 A.2d 326, 333 n. 8 (D.C. 2005). In this case, Ingram testified that people were paying for his tattooing services in cash and that he was then putting the money in his pockets while the partygoers were around him. He estimated that he collected $1000 for his work that evening. A witness testified at one point that appellant complained that he thought Ingram's prices were too high. Swann arrived with Ingram and, when the two left, helped carry Ingram's equipment. Ingram also testified that Swann would sometimes assist him at tattoo parties by showing designs to potential customers and knew where to look for certain things. Finally, Bartley testified that, when appellant heard that the tattoo guy had been shot and killed, Matthews stated that he didn't know that they were going to kill him, the plan was for them to rob the guy. Considering that Ingram had been handling money openly at the party, that Swann and Ingram arrived and left together, that Swann assisted Ingram during the night, and appellant's statement that the plan was for them to rob the guy, a reasonable juror could conclude that Matthews intended to rob Swann because it was reasonable to infer that Swann was an assistant or employee of Ingram and might have some of the tattoo earnings on his person. Thus, the evidence was sufficient for the jury to find Matthews guilty of the attempted robbery while armed of Swann.",sufficiency of the evidence
+689,1848077,1,2,"The facts in this case were stipulated. Loxley owns and operates a water distribution system which is the sole source of water for industrial and domestic use within its corporate limits. Rosinton is a duly constituted authority organized pursuant to § 11-88-1, et seq., Code 1975. Rosinton has a designated service area of approximately 110 square miles which bounds Loxley on its north, east and west sides. Rosinton does not provide water service to any part of its service area at the present time and has not arranged financing for construction of a water service system. It has, however, completed a substantial portion of the engineering work and feasibility study necessary to the completion of its water system. Loxley desires, and intends, to expand its water system so as to provide water service outside its corporate limits. A portion of the area which would be served by Loxley's expanded water system lies within Rosinton's designated service area. After Loxley had arranged financing for its water system expansion, Rosinton filed this action and obtained a permanent injunction preventing Loxley from providing water service within Rosinton's service area. The judgment granting that injunction reads in pertinent part as follows: It is, therefore, ORDERED, ADJUDGED and DECREED by the Circuit Court of Baldwin County, Alabama, as follows: 1. The Town of Loxley, a Municipal Corporation, its agents, employees, servants or contractors, is permanently enjoined from expanding its water system so as to provide water service within the Rosinton Water, Sewer and Fire Protection Authority's service area shown by the record in this matter. 2. The Town of Loxley may solicit residents of the Rosinton Water, Sewer and Fire Protection Authority's service area to determine if these residents desire Loxley's water service and may conduct water user's surveys in the Authority's service area without violating the terms of this injunction; and it may lay, construct and maintain water transmission lines within said area, but may not serve customers from such lines.",facts
+690,6271327,1,1,"Over 3 years after Teon D. Hill’s direct appeal concluded, he moved for postconviction relief. The district court denied the motion as untimely filed. On appeal, Hill contends that the 1-year limitation period 1 for filing a postconviction motion should be tolled during the pendency of a different collateral attack on the judgment. Because § 29-3001(4) does not provide for tolling under the circumstances and Hill was not entirely prevented from filing his motion during the 1-year period, we affirm the district court’s order.",introduction
+691,1696618,1,1,"The first claim made by Dumer is that the circuit court branch 18 for Milwaukee county wherein Dumer was tried had (1) no subject-matter jurisdiction, hence the judgment was void, and (2) the conviction is erroneous, hence the jurisdiction of the trial court was not properly invoked. As to the first point, Dumer argues that the civil branch 18 of the circuit court, presided over by Circuit Judge CHRIST T. SERAPHIM, did not have criminal jurisdiction (the case was assigned to him for trial). Dumer was arraigned and entered a plea of not guilty in branch 12 of the circuit court, criminal division, for Milwaukee county presided over by Judge JOHN L. COFFEY. Dumer expressed a desire for a jury trial and a preference for a trial sometime in October of 1972. Judge COFFEY inquired whether Dumer objected to trying a case before Circuit Judge CHRIST T. SERAPHIM, which Dumer did. Judge COFFEY then indicated he might not be able to take the trial in October because he was to be calendar judge that month. He informed Dumer the trial might be transferred at the last minute if he were not able to get another judge to take the calendar. The trial date was postponed several times by Judge COFFEY, who finally set the date in January of 1973. However, in November Dumer requested an earlier trial date and the case was transferred to Judge SERAPHIM for trial. The transcript contained the following remarks by Judge COFFEY, The court orders this case transferred to Judge SERAPHIM for trial. The judgment roll recites the court ordered the case transferred to Hon. CHRIST T. SERAPHIM pursuant to Chapter 46, Laws of 1971, sec. 251.182, [1] with consent of Judge SERAPHIM. Case set for jury trial on November 24, 1972, at 8:30 a. m. in Branch 18. Branch 18 of the circuit court was the last court created by the legislature and was designated a civil branch. At the time of the transfer, Judge SERAPHIM had been appointed by the chief justice under a general assignment to branches 11, 12 and 17 of the circuit court under sec. 251.182, Stats., commencing September 12, 1972, because of the congested calendars in said branches of the court. Circuit courts in Wisconsin have original jurisdiction of all matters civil and criminal not excepted in the constitution or not prohibited by law. [2] Dumer argues civil circuit courts in Milwaukee county do not have criminal jurisdiction because such courts were prohibited by law by secs. 252.015 (2) and 252.02, Stats. These two sections provide special treatment for Milwaukee county in the court system. In sec. 252.015 (2) [3] it is provided that in Milwaukee county branches 11, 12 and 17 shall be designated as the criminal court branches. In order to deprive circuit courts of their criminal jurisdiction, the designation of branches 11, 12 and 17 would have to be exclusive. As we view this section, it is no more than an administrative designation to be sure that criminal cases are assigned to the designated criminal branches. Neither does sec. 252.02 [4] contain any prohibition or limiting of circuit courts' criminal jurisdiction. This section is somewhat ambiguous in its reference to all cases specified in s. 252.015 for the 2nd circuit criminal branch jurisdiction because sec. 252.015 does not designate cases but merely provides that branches 11, 12 and 17 shall be designated as the criminal branches. In sec. 252.02 it is also provided that the clerk shall assign all the cases specified in sec. 252.015 to the criminal branches and shall be reassigned out in case of disqualification, illness or vacation of the judges or vacancies in branches 11, 12 and 17. We read sec. 252.02 to empower the clerk as an administrative duty to assign cases to the criminal branch and reassign cases in the specified situations. This does not limit the jurisdiction of the civil branches of the circuit court. The statute is also ambiguous in its statements that all assignment of work to said branches by the clerk shall be subject to the approval of said judges. This means, and apparently Judge COFFEY thought so, that a judge of a civil branch to which cases are assigned must approve the assignment, otherwise, a civil court branch's work could be controlled by the criminal branch. However, such consent is not jurisdictional and a reassignment for purposes stated does not confer subject-matter jurisdiction on the civil circuit branch but merely invokes the subject-matter jurisdiction. We doubt whether the words of the statute, the consent of said judges must be had, means all the judges of the circuit court whose approval could be evidenced by rules of court adopted by them. The administration of the courts in Milwaukee county is governed by the statutes, supreme court rules, and local rules. The judges of the circuit court for Milwaukee county have rules governing the transfer and reassignment of criminal cases, which are subject to other provisions of the statutes and the supreme court rules. The supreme court has promulgated rules [5] which were filed December 23, 1971, and amended June 6, 1973. The local rule (rules have been promulgated by the judges of the circuit court for Milwaukee county. See 2 Milwaukee Code of Ordinances, Appendix, Rules of Civil and Criminal Practice of the Circuit Court for Milwaukee County, as amended to March 1, 1972), civil and criminal court branches, Rule 3-E, [6] provides the reassignment of which is basically controlled by sec. 252.017, but this seems to apply to the family court. Rule 3-B, [7] procedure for reassignment, provides in sub. (1) the chief judge shall reassign the case by lot in the manner as cases are originally assigned. Rule 4, [8] temporary absence of assigned judge, provides that in the absence of the trial judge because of illness or other reason the cases may be heard temporarily by any judge excepting that in a criminal branch such case is to be controlled by sec. 252.017, Stats. This latter exception refers to the family court and is apparently a mistake. It is contended by Dumer that the procedure in the rules set up by the circuit judges was ignored in the instant case and an attempt was made to make branch 18 a criminal court branch contrary to the statute. It appears from the record that Judge COFFEY had no power or authority as a calendar judge to transfer the case to Judge SERAPHIM as judge of civil branch 18. However, we think that Judge COFFEY when he has the calendar and is also trying cases so that he cannot hear cases scheduled for trial, which amounts to a congestion in his court, he has power to transfer cases to judges assigned to the criminal branches by the chief justice, and Judge SERAPHIM was so assigned by the chief justice. When a case is to be reassigned to a civil branch, it should be sent to the chief judge for a reassignment by lot. However, the lottery system except for disqualification and other specific reason is not applicable to reassignment of cases within the criminal branch. Dumer argues as his second point that his judgment of conviction was at least erroneous because the jurisdiction of the court was not properly invoked, citing various cases. Application of Clark (1908), 135 Wis. 437, 115 N. W. 387; State v. Fischer (1921), 175 Wis. 69, 184 N. W. 774; Seyfert v. Seyfert (1930), 201 Wis. 223, 229 N. W. 636; State ex rel. Hammer v. Williams (1932), 209 Wis. 541, 245 N. W. 663; Galloway v. State (1966), 32 Wis. 2d 414, 420, 145 N. W. 2d 761, 147 N. W. 2d 542; State v. Wimberly (1972), 55 Wis. 2d 437, 198 N. W. 2d 360. The record and assignment of this case shows that it was assigned pursuant to sec. 251.182, Stats. The chief justice had assigned Judge SERAPHIM to the criminal branch. The authority given Judge CHRIST T. SERAPHIM to hear the case was as a judge of criminal branches 11, 12 and 17; and when he heard this case he was not sitting as a judge of civil branch 18. Dumer's argument would apply if the case had been assigned to civil branch 18; it has no merit applied to branches 11, 12 and 17, because Judge SERAPHIM was sitting in the branch to which the case had originally been assigned by the clerk of court under sec. 252.02. In view of the judgment roll and giving Judge COFFEY credit for making the assignment to a judge empowered by the chief justice to hear the case in a criminal branch, we must conclude that it was an erroneous note added by the clerk that the case was transferred to branch 18 instead of noting the assignment of the case to Judge SERAPHIM as an additional judge to branch 12 which seems to be the branch the case was assigned to by him. [9]",jurisdiction
+692,2378871,1,3,"¶ 35 Applying the independent duty doctrine here, we hold that SMS may sue LTK for negligence. LTK, by undertaking engineering services, assumed a duty of reasonable care. This obligation required LTK to use reasonable care, as we have defined it, with respect to risks of physical damage to the monorail. SMS enjoyed legally protected interests in the monorail, and LTK's duty encompassed these interests. By subrogation to SMS's rights, AFM may pursue a claim for negligence against LTK. Consistent with this opinion, the answer to the Ninth Circuit's certified question is yes.",conclusion
+693,1688243,1,1,"¶ 1. On August 8, 1995, the Grand Jury of the First Judicial District of Hinds County indicted Glynn Stevens, Calvin Shelton, Patrick Cavett, and Robert Strahan for the April 28, 1995, murder of Jason Brown. Stevens, Cavett, and Strahan were tried together, and Shelton testified against them. On February 23, 1996, the jury found Stevens guilty of manslaughter. He was sentenced to twenty years in prison. ¶ 2. On March 1, 1996, Stevens moved for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The trial judge denied the motion April 19, 1996. Stevens appeals and raises the following issues for consideration by this Court:
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+
+
+
+
+
+
+",introduction
+694,6326310,1,1,"Kenneth M. Kipple was convicted of two counts of child enticement and one count of tampering with a witness. No direct appeal was filed. Kipple retained new counsel and filed a postconviction motion that alleged ineffective assistance of counsel in various particulars, including trial counsel’s failure to file a direct appeal. The district court granted Kipple a new direct appeal. This is that appeal. - 657 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654 We affirm Kipple’s convictions for child enticement and for witness tampering, and we also affirm Kipple’s sentences for child enticement. We vacate Kipple’s sentence for witness tampering and remand the cause for further proceedings.",introduction
+695,4156195,1,2,"¶17 As we have announced in prior decisions, [t]he ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with [this Court] in the exercise of our exclusive original jurisdiction in bar disciplinary matters. State of Okla. ex rel. Okla. Bar Ass'n v. Cox , 2011 OK 73, ¶ 10, 257 P.3d 1005, 1008 quoting State of Okla. ex rel. Okla. Bar Ass'n v. Taylor , 2003 OK 56, ¶ 2, 71 P.3d 18, 21. Factual and legal determinations of the PRT are not binding on us, and any recommendations are merely advisory. Id. We must ensure the OBA has established charges of misconduct by clear and convincing evidence. State of Okla. ex rel. Okla. Bar Ass'n v. Mansfield , 2009 OK 31, ¶ 14, 350 P.3d 108, 113. ¶18 RGDP Rule 7 provides a mechanism for conducting disciplinary proceedings on a summary basis. This provision is invoked when a lawyer has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer's unfitness to practice law. RGDP Rule 7.1. It is commenced by submission of certified copies of the conviction or deferred sentence to the Chief Justice. RGDP Rule 7.2. A deferred sentence is deemed conclusive evidence of an attorney's commission of criminal act(s) in a disciplinary case initiated under RGDP Rule 7. Id. ; see also State of Okla. ex rel. Okla. Bar Ass'n v. Kerr , 2012 OK 108, ¶ 3, 291 P.3d 198, 199. ¶19 As in other bar disciplinary matters, we review each aspect of a Rule 7 proceeding de novo. State of Okla. ex rel. Okla. Bar Ass'n v. Cooley ,2013 OK 42, ¶ 4, 304 P.3d 453, 454. A Rule 7 case requires our determination of two principal issues: 1) whether an attorney's conviction(s) or deferred sentence(s) demonstrate an unfitness to practice law, and if so, 2) the appropriate level of discipline based on all facts and circumstances. Id. ¶ 2, 304 P.3d at 454. RGDP Rule 7.3 requires us to immediately issue an order suspending the attorney on an interim basis. Rule 7.3 further provides that upon a showing of good cause, this Court may set aside the order of temporary suspension. Rule 7 ¶20 Our task in Rule 7 proceedings is to evaluate the particular criminal acts to determine whether they demonstrate an unfitness to practice law, and if so, impose the appropriate discipline. Implicitly, the order of interim suspension carries with it a finding of unfitness to practice law; however, we are obliged to again weigh the criminal conduct, together with all evidence bearing on the commensurate level of discipline. Cooley , ¶ 11, 304 P.3d at 455. ¶21 While a criminal conviction does not, ipso facto , establish an attorney's unfitness to practice law under RGDP Rule 7, our decisions in such disciplinary cases are guided by Rule 8.4 of the Oklahoma Rules of Professional Conduct. 13 ORPC Rule 8.4(b) defines as professional misconduct, any criminal act which reflects adversely on an attorney's honesty, trustworthiness, or fitness as a lawyer. State of Okla. ex rel. Okla. Bar Ass'n v. Conrady , 2012 OK 133, ¶ 7, 275 P.3d 133, 136. The comments to Rule 8.4 are illustrative: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving moral turpitude. That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty , breach of trust , or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. (emphasis added). ¶22 A criminal conviction or deferred sentence does not require an automatic finding of unfitness. State of Okla. ex rel. Okla. Bar Ass'n v. Bernhardt , 2014 OK 20, ¶ 20, 323 P.3d 222, 226. Drummond pled guilty to the felony charge of bringing contraband into a penal institution. This offense involved dishonesty and was a flagrant abuse of Drummond's attorney status. Her actions placed the safety of Tulsa County detention officers and others at direct risk of imminent harm. Unquestionably the criminal transgressions in this case implicate Drummond's fitness as an attorney and are a violation of ORPC Rule 8.4. see e.g. , In re Jones , 744 S.E.2d 6, 7-9 (Ga. 2013) (holding misdemeanor convictions for delivering contraband to inmate were violations of GRPC Rule 8.4 and warranted disbarment) 14 ; Attorney Grievance Com'n of Maryland v. Howell , 73 A.3d 202, 206-207 (Md. 2013) (finding violation of MLRPC Rule 8.4 when attorney mailed contraband to inmate). Rule 6 ¶23 Evidence presented in the Rule 6 proceeding also conclusively established numerous violations of the ORPC and RGDP. We conclude the record contains clear and convincing evidence Drummond violated RGDP Rule 5.2 and ORPC Rules 1.3, 1.4, 1.15, 5.5 and 8.4. ¶24 Drummond's handling of client funds in this case was deplorable. She failed to maintain a client trust account, twice commingled client settlement funds with her business account, and then used the proceeds for personal expenses. 15 Drummond's theft of the funds is even more egregious when considering they were designed to provide for a two-year old child after his mother's tragic death. These actions were not only clear violations of ORPC Rule 1.15, they were callous and heartless. 16 This Court will not tolerate attorneys who show total disregard for court mandates, particularly orders directing attorneys to safeguard moneys intended for minor children. Additionally, we will not tolerate attorneys who fail to keep client money and property safeguarded in a trust account, completely severed from the lawyer's operating account. As we explained in Mansfield , ¶ 18, 350 P.3d at 115: With regard to the mishandling of funds and Rule 1.15, we have defined three levels of applicable culpability when evaluating the mishandling of funds: 1) commingling; 2) simple conversion; and 3) misappropriation. Commingling takes place when client monies are combined with the attorney's personal funds. [S]imple conversion occurs when an attorney applies a client's money to a purpose other than that for which it came to be entrusted to the lawyer. Misappropriation, or theft by conversion or otherwise, occurs when an attorney has purposely deprived a client of money through deceit and fraud. The degree of culpability ascends from the first to the last. Each must be proved by clear and convincing evidence. A finding that an attorney misappropriated funds, regardless of exceptional mitigating factors, mandates the imposition of harsh discipline--disbarment. The PRT concluded Drummond's conduct amounted to misappropriation, and we agree. see State of Okla. ex rel. Okla. Bar Ass'n v. Mayes , 2003 OK 23, ¶ 22, 66 P.3d 398, 405. Her misappropriation of A.M.'s money violated ORPC Rules 1.15 and 8.4(c) & (d). ¶25 Testimony further established that after the $28,400.00 check bounced Drummond largely ignored her client's efforts to discuss the matter. Cortez said that aside from an initial conversation, Drummond did not return text messages or phone calls. Consequently, we find clear and convincing evidence Drummond's handling of the settlement money and failure to communicate with Ms. Cortez were violations of ORPC Rule 1.4. 17 ¶26 We also conclude the record contains clear and convincing evidence Drummond engaged in the unauthorized practice of law following her March 2016 interim suspension. Testimony from TPD Officer Brad Blackwell established that on May 5, 2016, Drummond appeared at the scene of a drug arrest. She presented an OBA card to Officer Blackwell and his partner and informed the pair that she represented one of the detained suspects. She also inquired about the officers' probable cause for an arrest. When cross examined about the incident, Drummond's answers were evasive and unbelievable. 18 We find the testimony of Officer Blackwell more trustworthy than Drummond's self-serving denial. Although she admitted displaying her OBA card, she testified that it was not her intent to hold herself out as an attorney. This explanation is entirely implausible. The evidence was clear and convincing that Drummond's actions violated ORPC Rule 5.5(b). 19 ¶27 Throughout the Rule 6 proceeding, Drummond failed to cooperate with the OBA investigation. The initial grievance was forwarded to Drummond's official roster address on April 22, 2016. On June 16, 2016, the OBA had the grievance served on Drummond by private process server. Yet, no response was delivered to the OBA until after the formal Complaint was filed. 20 To obtain Drummond's bank records the OBA was forced to issue subpoenas. We believe this is clear and convincing evidence Drummond failed to cooperate during the grievance process in violation of RGDP Rule 5.2. Discipline ¶28 Our next task is determining the level of discipline commensurate with the facts of Drummond's case. Although we utilize prior decisions as a gauge for imposing attorney discipline, the particular facts and circumstances of each case dictate its resolution. State of Okla. ex rel. Okla. Bar Ass'n v. Townsend , 2012 OK 44, ¶¶ 31-32, 277 P.3d 1269, 1279-80. The goal in bar disciplinary matters is not punishment, rather it is to safeguard the interest of the public, of the courts, and of the legal profession. State of Okla. ex rel. Okla. Bar Ass'n v. Albert , 2007 OK 31, ¶ 11, 163 P.3d 527, 532-533. We must also weigh the deterrent effect upon the attorney. Conrady , ¶ 16, 275 P.3d at 139. ¶29 In the initial Rule 7 proceeding, the OBA and PRT suggested suspension for a period of one year, retroactive to the March 7, 2016 order of interim suspension. Such a short suspension would be absurd under the circumstances even as they existed at that time. By bringing contraband into the the jail facility, Drummond committed a criminal act which was an abuse of her position as an attorney and directly impacted the integrity of the legal profession. see State of Okla. ex rel. Okla. Bar Ass'n v. Thompson , 2008 OK 89, ¶ 8, 194 P.3d 1281, 1284 (finding criminal conduct so objectionable it could do nothing but undermine public confidence and trust in the dignity and integrity of the judiciary and the legal profession.). Drummond's criminal act warrants, at a minimum, a suspension for 2 years and a day, or the term of the deferred sentence, whichever is longer. see Cooley , ¶ 17, 304 P.3d at 457. However, we must consider evidence both in mitigation and any aggravating factors before imposing a final decision on discipline. ¶30 At the first PRT hearing, evidence offered in an attempt to palliate Drummond's ethical transgressions consisted of several personal friends who attested to her good character, intelligence, competence, and genuine remorse. Drummond herself expressed repentance for her illicit conduct and offered reassurances of no such future wrongdoing. Prior to the Rule 7 case, Drummond had no grievances with the OBA. The first PRT panel concluded mitigating evidence weighed heavily in favor of Drummond. However, we see the evidence in quite a different light. ¶ 31 As outlined above, following her interim suspension, Drummond continued to practice law in direct defiance of this Court's order. Not only did Drummond hold herself out as a lawyer to Officer Blackwell, she continued to represent clients in ongoing legal matters. In the Vance divorce case, she misrepresented her status to opposing counsel, the mediator, and her own client--deliberately concealing her suspension in an effort to avert further embarrassment. 21 Drummond's selfish and contemptuous exploits placed Mr. Vance in a very precarious position at the March 29, 2016 mediation. Drummond attempts to portray the underlying criminal act in this case as an isolated event and one that was out of character. 22 Yet, Drummond's actions following this Court's order of interim suspension reflect otherwise. A review of docket entries in cases in which Drummond was an attorney of record also reveal her continued violation of the Court's suspension order. see State v. Ronquillo , Tulsa County Case No. CM-2015-5744, March 29, 2016 docket entry (Judge David Youll: Defendant not present, and represented by Caroline Drummond.). Perhaps the most troubling evidence to this Court is Drummond's RGDP Rule 9.1 affidavit filed on March 28, 2016. Therein, Drummond swears she had notified all clients of her suspension and withdrawn from all cases in front of any tribunal. This was a deliberate and knowing misrepresentation to this Court, as Drummond was still actively involved in Vance's divorce case . In fact, Drummond had neither informed Mr. Vance of her suspension, nor withdrawn from his divorce case. Her motion to withdraw in the Vance proceeding was not filed until April 4, 2016. All of these facts weigh heavily against mitigation. 23 see State of Okla. ex rel. Okla. Bar Ass'n v. Downing , 1993 OK 44, 863 P.2d 1111. ¶32 At the second PRT hearing, Drummond presented almost no mitigating evidence. Although she did repay the money owed to Cortez in different installments, the manner of repayment was unscrupulous. Drummond did express remorse for her behavior, yet this Court is unconvinced. 24 Notwithstanding, we believe the outcome in this case is controlled by our decision in Mayes , 2003 OK 23, 66 P.3d 398. ¶33 In Mayes , the respondent attorney settled a wrongful death action on behalf of two minor children whose mother was killed in an accident. Id. ¶¶ 2-3, 66 P.3d at 401. Upon receiving settlement monies totaling $30,000.00, the respondent attorney deposited the checks in his trust account. Id. Over the next several months the respondent attorney depleted the trust account until it became overdrawn; consequently, the decedent's minor children were deprived of the remaining settlement funds. Id. ¶ 5, 66 P.3d at 402. ¶34 A disciplinary proceeding involving Mr. Mayes was already pending in the Oklahoma Supreme Court. In February 1999, we issued an order in the first disciplinary matter suspending Mr. Mayes for six months. 25 A second grievance relating to Mayes' mishandling of the settlement monies was filed and delivered to Mayes. As in the present case, Mr. Mayes repeatedly failed to provide a response to the OBA. As a result, the OBA was forced to issue subpoenas to obtain copies of Mayes' trust account records. In May 2002, the OBA brought a formal disciplinary case under RGDP Rule 6. After submission to this Court, we concluded Mr. Mayes actions rose to the level of misappropriation, as opposed to conversion. 26 We also determined Mayes failed to cooperate during the investigative process in violation of RGDP Rule 5.2. In the end, we concluded the evidence in Mayes' case warranted disbarment. 27 ¶35 The record before this Court is more than sufficient to establish violations of Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. We conclude the appropriate discipline for Respondent Drummond is disbarment. The Oklahoma Bar Associations Application to Assess Costs in the Amount of $2,031.66 is sustained, to be paid within six (6) months of this pronouncement. RESPONDENT DISBARRED; COSTS IMPOSED",standard of review
+696,1711038,1,5,"Initially, it should be noted that Nebraska state courts have jurisdiction to hear an action under the FLSA. See, Freudenberg v. Harvey, 364 F.Supp. 1087, 1090 (E.D.Pa. 1973) (stating that phrase any court of competent jurisdiction in § 216(b) of FLSA includes a state court of general jurisdiction); Goettel v. Glenn Berry Mfrs., Inc., 236 F.Supp. 884 (N.D.Okla.1964) (holding that FLSA confers concurrent jurisdiction to both state and federal courts). See, also, Banks v. Mercy Villa Care Center, 225 Neb. 751, 407 N.W.2d 793 (1987). Therefore, we have jurisdiction to review this matter. Furthermore, the parties stipulated at trial that Stiles Service Center and TJKK, Inc., were engaged in commerce or the production of goods for commerce for purposes of the FLSA and that Kreus was a covered employee under the FLSA during all pertinent times.",jurisdiction
+697,2049885,1,3,"Appellants next argue that the circuit court has subject matter jurisdiction over forfeiture actions commenced under sec. 196.625, Stats., since forfeiture actions are civil actions. Respondent, on the other hand, contends that the public service commission is the preferred forum. Sec. 288.01, Stats. 1975, provides, ... Where a forfeiture imposed by statute shall be incurred it may be recovered in a civil action unless the act or omission is punishable by fine and imprisonment or by fine or imprisonment. The word forfeiture, as used in this chapter, includes any penalty, in money or goods. (Emphasis supplied.) And, more specifically, sec. 195.07(3), Stats. 1975, states that any forfeiture provided in chapter 196 may be recovered in a civil action. Clearly, sec. 196.625 imposes a forfeiture, and civil actions are governed by the rules in ch. 801, et seq., Stats. (formerly ch. 260 et seq. ), which set forth the procedures to be used in circuit court. Civil action does not mean a hearing before the public service commission. Furthermore, sec. 196.76, Stats. 1975, states in part: ... all penalties and forfeitures accruing under said chapters [chs. 196 and 197] shall be cumulative and a suit for any recovery of one shall not be a bar to the recovery of any other penalty. (Emphasis supplied.) Obviously, the legislature contemplated that any forfeitures imposed by sec. 196.625 are to be recovered by suing in court and not by requesting a hearing before the public service commission.  Respondent cites sec. 196.02(1), Stats., in support of its contention that the public service commission has primary jurisdiction in this case and that the trial court should yield to it. That section provides: (1) The commission is vested with power and jurisdiction to supervise and regulate every public utility in this state, and to do all things necessary and convenient in the exercise of such power and jurisdiction. [8] This court has stated: The Public Service Commission may exercise only such power `as is expressly or by inference conferred upon it' by statute. Eau Claire v. Wisconsin-Minnesota Light & Power Co., 178 Wis. 207, 215, 189 N.W. 476 (1922). `The commission does not exercise the entire regulatory power of the state. It may exercise only such powers as the legislature has seen fit to confer upon it and those powers must be exercised in the manner prescribed.' Wisconsin Telephone Co. v. PSC, 232 Wis. 274, 326, 287 N.W. 122 (1939). Friends of Earth v. Public Service Commission, 78 Wis.2d 388, 400, 254 N.W.2d 299 (1977). Nowhere in chapter 196, Stats., has the legislature given the public service commission the express or implied power to impose a forfeiture for a violation of sec. 196.625. The legislature has expressly stated that such a forfeiture is to be recovered in a civil action. [9] In the present case appellants seek a forfeiture, alleging that respondent wrongfully disconnected their telephone service. Thus, the trial court had jurisdiction to hear the case. [10] Furthermore, the doctrine of primary jurisdiction would not deprive the court in this case of subject matter jurisdiction, since the primary jurisdiction rule is not  concerned with subject matter jurisdiction. Beal v. First Fed. Sav. & Loan Asso. of Madison, 90 Wis.2d 171, 197, 279 N.W.2d 693 (1979); Browne v. Milwaukee Board of School Directors, 69 Wis.2d 169, 175, 230 N.W.2d 704 (1975); Wisconsin Collectors Asso. v. Thorp Finance Corp., 32 Wis.2d 36, 49, 145 N.W.2d 33 (1966).",jurisdiction
+698,2632445,3,2,"¶ 57 In a claim of insufficient evidence, a reviewing court examines whether ` any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,' viewing the evidence in the light most favorable to the State. State v. Hughes, 154 Wash.2d 118, 152, 110 P.3d 192 (2005) (internal quotation marks omitted) (quoting State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980)), overruled on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). Determinations of credibility are for the fact finder and are not reviewable on appeal. Id. (citing State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990)).
+¶ 58 Brockob challenges the sufficiency of the evidence supporting his conviction because he claims the State failed to prove that he had the specific intent to manufacture methamphetamine. He argues that he intended only to sell the Sudafed, not to manufacture methamphetamine with it. The State responds that it need only prove that Brockob had the Sudafed in his possession and that he possessed it with the intent to manufacture methamphetamine. The State also insists that the statutory definition of the word manufacture [15] is broad enough to include the act of purchasing Sudafed and selling it to another person who plans to manufacture methamphetamine. [16] ¶ 59 Although not controlling, two Court of Appeals cases involving possession of pseudoephedrine or ephedrine with intent to manufacture methamphetamine inform our analysis on the sufficiency of evidence issue for this case. State v. Moles, 130 Wash.App. 461, 123 P.3d 132 (2005); Whalen, 131 Wash. App. 58, 126 P.3d 55. ¶ 60 In Moles, police discovered several empty blister packs, a box of Suphedrine, a full package of pseudoephedrine, two sealed packages of Contac Cold Medicine, and almost 440 assorted loose pills in a stolen vehicle. 130 Wash.App. at 463-64, 123 P.3d 132. Police also recovered coffee filters, one with methamphetamine residue, from one of the defendant's pockets. Id. at 463, 466, 123 P.3d 132. Among other things, Moles was charged with possession with intent to manufacture methamphetamine. Id. at 464, 123 P.3d 132. ¶ 61 In analyzing the facts, the Moles court initially declared that [b]are possession of a controlled substance is not enough to support an intent to manufacture conviction; at least one additional factor, suggestive of intent, must be present. Id. at 466, 123 P.3d 132 (emphasis added) (citing State v. McPherson, 111 Wash.App. 747, 759, 46 P.3d 284 (2002)). It noted that a person acts with intent when he acts with the objective or purpose to accomplish a result that constitutes a crime. Id. (citing RCW 9A.08.010(1)(a)). However, the court added that [a] person who knowingly plays a role in the manufacturing process can be guilty of manufacturing, even if someone else completes the process. Id. (citing State v. Davis, 117 Wash.App. 702, 708, 72 P.3d 1134 (2003)). It further stated that possession of 440 loose pills removed from their blister packs was sufficient to prove intent to manufacture methamphetamine. Id. The court concluded that two additional factors in that particular case suggested intent to manufacture, (1) coffee filters with methamphetamine residue, and (2) defendants acting in concert to purchase the maximum allowable amount of cold tablets from various stores. Id. ¶ 62 As noted earlier, Whalen involved the theft from a Target store of seven packages of nasal decongestant containing pseudoephedrine. 131 Wash.App. at 60-61, 126 P.3d 55. The court concluded that the State could prove only that Whalen intended to shoplift more than the legal amount of pseudoephedrine, pointing out that possession of more than the legal amount was merely a gross misdemeanor rather than a felony. Id. at 64 n. 5, 126 P.3d 55. ¶ 63 We find the Court of Appeals' reasoning in Moles and Whalen persuasive and find the facts here more comparable to Whalen than Moles. The record does not indicate whether Brockob took individual Sudafed tablets out of blister packs, as did the defendants in Moles. Nor does it indicate exactly how much Sudafed Brockob took because the State did not retain the Sudafed and neither LPO Chamberlin nor Officer Fecteau testified about how many Sudafed were in each package. Further, because Brockob's incriminating statement is inadmissible under the corpus delicti rule, the most we can infer from his actions is that he intended to shoplift a rather large quantity of Sudafed, as in Whalen. We may speculate that he intended to manufacture methamphetamine, but we have no evidence to support such speculation. ¶ 64 We conclude that absent Brockob's incriminating statement, no rational trier of fact would have found that the elements of the offense were proved beyond a reasonable doubt, even viewing the evidence in the light most favorable to the State. No rational jury would have found that Brockob intended to manufacture methamphetamine merely because he shoplifted some Sudafed, even though it is known to be used to manufacture methamphetamine, absent some other evidence. See Whalen, 131 Wash.App. at 64, 126 P.3d 55. While there is evidence that Brockob removed the Sudafed from the packages, he may have done so to sell them or steal them more easily. There is no indication that by removing them from the packages while in the store he intended to participate in methamphetamine manufacturing. He did not have any coffee filters or other equipment used in the manufacturing process. In short, nothing pointed to Brockob's intent to manufacture rather than merely possess Sudafed. We conclude there was insufficient evidence to support Brockob's conviction and reverse the trial court. As a result, we do not reach Brockob's unrelated issue.
+¶ 65 Gonzales challenges the sufficiency of evidence supporting his conviction for attempt to manufacture methamphetamine. He argues that the State's case was merely a pyramiding of inferences drawn from the evidence of the tablets found in the vehicle and his incriminating statement to Officer Black. Br. of Appellant at 17. Gonzales also claims that the State failed to demonstrate the nexus between him and Lee that is required under the accomplice liability theory. ¶ 66 The State responds that a credibility determination is well within the jury's purview and argues that the circumstantial evidence presented here is deserving of the same weight as direct evidence. Moreover, the State points out that because the charge was only attempted manufacture of methamphetamine, it did not have to show that the manufacturing process was taking place at the time Black arrested Gonzales. It need only show that he was taking a substantial step toward it. ¶ 67 Four arguments favor finding that there was sufficient evidence to support Gonzales' conviction. First, the jury was at liberty to believe Gonzales' statement that he purchased the ephedrine for Lee to manufacture methamphetamine, which was properly admitted under the corpus delicti rule, and disbelieve Gonzales' trial testimony that he lied to Officer Black to protect his female companion. Second, the State is correct that Gonzales need not have begun the manufacturing process to be convicted of attempted manufacture of methamphetamine. He need only have taken some step toward that process. He had coffee filters and three bottles of ephedrine, [17] both of which are known to be used in the manufacturing process. Third, at least two of the three factors cited in Moles were present. Coffee filters were found on the backseat of the vehicle, and the amount of ephedrine in the vehicle seems excessive but for the likely connection to methamphetamine manufacturing. Fourth, Gonzales and his companion were apparently acting in concert to acquire the cold tablets. ¶ 68 We conclude there was sufficient evidence to support Gonzales' conviction and affirm the trial court.
+¶ 69 Cobabe argues that no rational trier of fact would find that he committed robbery in the second degree when the testimony showed that he had permission to take the CD/DVD player, that he did not remove the player from the premises, and that the use of force was unrelated to the player. He essentially argues that the State failed to prove that something was stolen. ¶ 70 The State responds that ownership exists if the victim has actual possession of the property, citing State v. Latham, 35 Wash.App. 862, 864-65, 670 P.2d 689 (1983) for this proposition. It claims Stebelton effectively owned the CD/DVD player for the purposes of the robbery charge because Stebelton was undisputedly in possession of the CD/DVD player at the time of the incident. The State also argues it proved that force was used to take the player because Cobabe swung the flashlight and handcuffs at Stebelton when Cobabe tried to take the player. Lastly, the State argues that Cobabe took substantial steps toward completing the offense by dismantling the CD/DVD player from the television and wall. ¶ 71 The jury in this case was presented with two diametrically opposed versions of the events: one that suggested an innocent explanation and one that suggested a criminal one. It chose to believe that Cobabe did not have Whitlock's permission to take the CD/DVD player, despite Whitlock's testimony to the contrary and irrespective of whether Stebelton had constructive possession of the player. Additionally, in contrast to Brockob and Gonzales, Cobabe's incriminating statement to the detectives did not add significantly to the quantum of evidence against him. Stebelton testified at length about Cobabe's actions at trial, and he testified about Cobabe's statement that he wanted to take the CD/DVD player so Whitlock would come see him. Thus, even without Cobabe's incriminating statement to the detectives, there was more than enough evidence for a rational trier of fact to conclude that Cobabe intended to take the CD/DVD player without Whitlock's prior knowledge or permission and hold it until Whitlock came to see him. ¶ 72 We conclude there was sufficient evidence to support Cobabe's conviction and affirm the trial court.",sufficiency of the evidence
+699,1936968,1,14,"We affirm the district court's decision to grant custody of the parties' minor children to Rogers. We also affirm the district court's award of attorney fees to Marcovitz. We modify the decree in the following respects: (1) Rogers is ordered to pay alimony to Marcovitz in the amount of $2,000 per month for 10 years, which obligation shall terminate upon the death of either Rogers or Marcovitz or upon Marcovitz' remarriage; (2) we order Marcovitz to pay child support in the amount of $362.74 per month for the support of four minor children, $334.32 for the support of three minor children, $279.16 for the support of two minor children, and $191.24 for the support of one minor child; (3) we order Marcovitz to pay 14 percent of the children's uncovered medical expenses in excess of $1,200; and (4) we order Rogers to pay Marcovitz $112,500 as one-half the value of the house. AFFIRMED AS MODIFIED. CONNOLLY, J., not participating.",conclusion
+700,2795225,1,1,"¶1 Cody Reece was convicted of aggravated murder, aggravated burglary, possession of a weapon by a restricted person, and obstruction of justice. He argues that we must vacate his STATE v. REECE Opinion of the Court convictions because the trial court erred by (1) denying his request for a variety of lesser-included-offense jury instructions, (2) preventing him from asking twelve questions during voir dire, (3) refusing to exclude evidence that he was arrested with a stolen rifle in his car one month after the murder, and (4) refusing to sever the weapons offense from the other charges. ¶2 We affirm Mr. Reece‘s convictions. First, although the court erred in denying Mr. Reece‘s request for lesser-included-offense instructions on several variants of unintentional homicide, the error was harmless due to the overwhelming evidence that Mr. Reece committed aggravated murder. Second, the court‘s limits on voir dire questioning were not improper—Mr. Reece was allowed to ask almost two hundred questions from his proposed juror questionnaire, and the court also permitted unlimited individual follow-up questioning with each prospective juror, so Mr. Reece had ample opportunity to evaluate each juror for potential biases. Third, the stolen-rifle evidence was properly admitted because it was relevant to the genuine noncharacter purpose of linking Mr. Reece to the murder weapon, and the evidence was unlikely to improperly affect the jurors‘ decision in light of the significant criminal conduct Mr. Reece admitted to in his trial testimony. Finally, the court‘s refusal to sever the weapons charge was not an abuse of discretion, because the jury never heard any evidence that Mr. Reece was a convicted felon. ¶3 Mr. Reece also challenges his sentence, arguing that the noncapital-aggravated-murder sentencing statute is unconstitutional. And even if it is not, he maintains that the court abused its discretion when it imposed a sentence of life without parole (LWOP) because it erroneously interpreted the sentencing statute as establishing a presumptive LWOP sentence. We conclude that the sentencing statute is constitutional for reasons we recently discussed in State v. Perea.1 But because the record is unclear as to how the court‘s incorrect reading of the statute influenced its decision to impose an LWOP sentence, we remand for the court to determine whether its erroneous interpretation of the statute affected its sentencing decision. If the court concludes that it did, Mr. Reece is entitled to a new sentencing hearing. 1 2013 UT 68, 322 P.3d 624. 2 Cite as: 2015 UT 45 Opinion of the Court",introduction
+701,2823804,2,3,"¶37        The evidence provided by the prosecution failed to sufficiently show that Davis possessed and distributed more than one quantum of drugs. To “assess the sufficiency of the evidence,” we consider “whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding . . . beyond a reasonable doubt.” People v. Dunaway, 88 P.3d 619, 625 (Colo. 2004). ¶38        Here, the only evidence offered by the prosecution that could have supported the theory that Davis’s possession conviction related to a different quantum of drugs than that quantum underlying his distribution conviction was the following trial testimony from the undercover officer: “I asked [Davis] for a 40. He then removed suspected crack cocaine from a baggie and then handed me an amount of crack cocaine.” ¶39        The court of appeals majority reasoned that “[t]he jury could reasonably have inferred from this testimony that defendant handed the officer only some of the drugs that were in the baggie and kept the rest in his possession.” Davis, ¶ 83. The court of appeals then concluded that this evidence “was sufficient to support a finding that the possession and distribution charges were each based on a different quantum of drugs.” Id. at ¶ 84. Writing in dissent, Judge Russel disagreed with the majority’s sufficiency determination. See id. at ¶ 104. In his view, “the evidence does not support a finding, beyond a reasonable doubt, that defendant possessed a share of drugs different from the one that he gave to the undercover officer.” Id. We agree with Judge Russel. ¶40        Although a reasonable trier of fact might have inferred from the undercover officer’s testimony that Davis possessed and distributed different quanta of drugs, the minimal evidence provided by the prosecution on the “quantum of drugs” question does not establish such an inference beyond a reasonable doubt. A reasonable jury could have just as easily inferred that Davis gave all of the drugs he had in the baggie to the officer. The paltry evidence supporting a “multiple quanta of drugs” theory is therefore insufficient to prove that Davis possessed and distributed different quantities of crack cocaine. Accordingly, the double jeopardy and merger principles delineated in Abiodun apply in this case. ¶41        Because Abiodun applies here, the trial court obviously and substantially violated Davis’s right to avoid double jeopardy in a way that so undermined the fundamental fairness of the sentencing proceeding as to cast serious doubt on the reliability of the trial court’s decision to sentence Davis to one year in prison for possession. See Miller, 113 P.3d at 750. The trial court therefore plainly erred when it failed to merge the possession conviction into the distribution conviction. Accordingly, we reverse the court of appeals’ affirmation of the trial court’s error and remand to the court of appeals with instructions to remand to the trial court to vacate Davis’s conviction and sentence for possession.",sufficiency of the evidence
+702,4564600,1,3,"Ineffective Assistance of Counsel Standards. Both of Ely’s assignments of error pertain to alleged ineffective assistance of counsel. We briefly review the legal standards governing such claims before turning to Ely’s specific arguments. [4,5] In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland, supra, to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019). Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the defend­ ant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding - 467 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 would have been different. State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020). Right to Testify. [6,7] We now turn to Ely’s argument that the district court erred by rejecting Ely’s claim that his trial counsel ineffectively failed to advise him of his right to testify. Here, Ely correctly points out that a defendant has a fundamental constitutional right to testify. See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). Further, he correctly observes that we have previously stated defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make. Id. In this case, however, we do not believe the district court erred by concluding that Ely’s trial counsel met this responsibility and thus did not perform deficiently. Although Ely testified in his deposition that he was not advised and did not know he had a right to testify, his counsel testified that this was “absolutely incorrect” and was a “bogus statement.” She testified that when she met with Ely after he decided he wanted to go to trial, “one of the first things [he] said to me was, I can’t take the stand because I have seven or eight felonies.” She testified that she then would have had a conversation with Ely on the risks of testifying as a convicted felon. She additionally testified that Ely was the only person who made the decision not to testify and that no one talked him out of it. The district court resolved the conflicts between Ely’s testimony and that of his counsel and determined that Ely was aware of his right to testify, that his counsel provided advice regarding his testifying, and that Ely made the decision not to do so. The task of resolving such conflicting testimony is within the province of the district court. See State v. AlarconChavez, 295 Neb. 1014, 893 N.W.2d 706 (2017). We can disturb its factual findings only if they are clearly erroneous. See - 468 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 id. We find no clear error here and thus see no basis to disturb the district court’s conclusion that Ely’s counsel did not ineffectively fail to advise him of his right to testify. Self-Representation. This leaves Ely’s argument that he received ineffective assistance of counsel because his counsel failed to argue on direct appeal that his rights to self-representation were violated at trial. Ely claims that if his counsel had raised this issue on appeal, reversal would have been required. He contends that under the U.S. and Nebraska Constitutions, he had a right to represent himself and the district court could not preclude him from doing so based on the fact he faced serious charges or based on its belief that it was in his best interests to be represented by counsel. He also emphasizes that the denial of the right to self-representation has been held to be structural error, not subject to harmless error review. And, according to Ely, if raising this issue would have resulted in his obtaining a new trial, his counsel was deficient for not raising it. [8] Much of what Ely contends regarding the right to selfrepresentation is true. He is correct that a criminal defendant has a constitutional right to waive the assistance of counsel and conduct his or her own defense under the Sixth Amendment and Neb. Const. art. I, § 11. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). He also rightly points out that while the waiver must be made knowingly, voluntarily, and intelligently, it need not be prudent. See id. And we have recognized that the denial of the right to self-representation is not subject to harmless error review. See id. Ely says nothing, however, about another crucial aspect of the right to self-representation—the requirement that any assertion of the right be made clearly and unequivocally. In Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the case in which the U.S. Supreme Court recognized a defendant’s constitutional right to self-representation at trial, it noted that the trial court had - 469 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 forced the defendant in that case to accept representation from his appointed attorney after the defendant “clearly and unequivocally” communicated his desire to represent himself. Courts have thereafter uniformly held that the right to selfrepresentation is triggered only when the defendant clearly and unequivocally requests self-representation. See, e.g., Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994), quoting Faretta, supra (“[t]he right to self-representation does not attach until it is asserted ‘clearly and unequivocally’”). See, also, 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(d) (4th ed. 2015) (collecting cases). The requirement that a request for self-representation be clear and unequivocal has been recognized to serve multiple purposes. In one sense, it protects criminal defendants and their right to counsel. As one court put it, the requirement acts as a backstop for the defendant’s right to counsel, by ensuring that the defendant does not inadvertently waive that right through occasional musings on the benefits of self-representation. . . . Because a defendant normally gives up more than he gains when he elects self-representation, we must be reasonably certain that he in fact wishes to represent himself. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989) (citation omitted). Not only does the clear and unequivocal requirement benefit criminal defendants, it also protects the criminal justice system as a whole. The need for this protection arises out of the fact that the right to counsel and the right to self-representation are “mutually exclusive entitlements.” Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992). See, also, U.S. v. Simpson, 845 F.3d 1039, 1046 (10th Cir. 2017) (stating that right to self-representation “lies in tension with the Sixth Amendment right to counsel”). Left unchecked, the conflicting nature of these rights could be abused. Defendants might waver between requests for counsel and self-representation or make requests that are unclear as to their desire for representation - 470 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 and thereby manufacture an argument for appellate reversal no matter how the trial court rules. See, e.g., Simpson, 845 F.3d at 1047 (“[w]ithout a clear and unequivocal request, the [trial] court would face a dilemma, for an equivocal demand creates a potential ground for reversal however the trial court rules”); Cross v. U.S., 893 F.2d 1287, 1290 (11th Cir. 1990) (“[i]n recognition of . . . the knowledge that shrewd litigants can exploit this difficult constitutional area by making ambiguous self-representation claims to inject error into the record, this Court has required an individual to clearly and unequivocally assert the desire to represent himself”). The clear and unequivocal requirement “resolves this dilemma by forcing the defendant to make an explicit choice.” Adams, 875 F.2d at 1444. If no such choice is made, the defendant is presumed to have invoked the right to counsel and not the right to selfrepresentation. Id. We discuss the clear and unequivocal requirement at length here because we do not believe Ely clearly and unequivocally asserted that he wished to represent himself. To be sure, Ely’s motion filed August 21, 2012, included a statement that he wished to represent himself, a statement he repeated at the hearing on that motion. Viewed in context, however, we do not believe these statements constitute an unequivocal assertion that Ely wished to waive his right to counsel and represent himself at trial. We believe this is the case for multiple reasons we will explain below. First, we believe Ely’s request to represent himself could reasonably be understood as expressing a desire to represent himself only if the court also continued his trial. Several facts lead us to this conclusion. Ely filed the motion in which he asked to represent himself on the same day he filed a motion to continue the trial date. The motion to continue referred to the motion asking for self-representation as a reason for a continuance. Further, at the hearing on the motions, the primary reason Ely identified for wanting to represent himself was his desire to have more time to work on his case. Because of - 471 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 his belief that he did not have enough time before trial, Ely said he felt he “need[ed] to go pro se and to get a continuance.” Later in the hearing, Ely reiterated that he was seeking to dismiss his counsel because he felt he was not ready to go to trial as scheduled. Finally, Ely did not request to represent himself again after the district court denied the motion for a continuance of the October 1, 2012, trial date. Given the foregoing, we believe it is, at the very least, reasonable to understand Ely’s request as a request to represent himself only if the trial date was also continued and thus not an unequivocal assertion of his right to self-representation. We find support for our determination that Ely did not clearly and unequivocally assert the right to self-representation in several federal court decisions. Because its facts are so similar to this case, we believe U.S. v. Simpson, 845 F.3d 1039 (10th Cir. 2017), bears mention first. In that case, the defendant made two motions on the same day, one to represent himself and the other for a continuance of the trial. As the 10th Circuit described the motions, “[r]ead together, [they] stated that [the defendant] wanted to obtain more time for trial and to represent himself at the eventual trial.” Id. at 1047. The trial court denied both motions, and the defendant appealed. The 10th Circuit explained that the defendant’s motions could be understood as requesting self-representation even if the motion for continuance was denied, but that they could also be understood as a request for self-representation only if the defendant obtained additional time. Because the defendant never made clear that he wished to represent himself even if the continuance was denied (and it was), the court held that the defendant had not clearly and unequivocally asserted a right to selfrepresentation. Like the defendant in Simpson, Ely asked to represent himself, but made the request in conjunction with an unsuccessful request for continuance of trial and did not make clear that he wished to represent himself if he did not obtain a continuance. - 472 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 Other recent federal decisions have found a defendant did not clearly and unequivocally request self-representation for reasons similar to those identified in Simpson. In U.S. v. Vanga, 717 Fed. Appx. 726 (9th Cir. 2018), the U.S. Court of Appeals for the Ninth Circuit held that conditions a defendant placed on his self-representation request, including obtaining a continuance, rendered his request equivocal. In U.S. v. Edwards, 535 Fed. Appx. 285 (4th Cir. 2013), the U.S. Court of Appeals for the Fourth Circuit held that a defendant did not clearly and unequivocally assert the right to self-representation. In Edwards, the defendant informed the court that he was “‘reluctantly’” asking the court to represent himself and that he “‘just fe[lt] like [he had] to represent [him]self,’” 535 Fed. Appx. at 287 (emphasis omitted), expressions that are similar to Ely’s statement that in light of his belief that he needed more time to prepare for trial, “I feel like I need to go pro se and to get a continuance.” Alternatively, we believe Ely did not clearly and unequivocally assert that he wished to represent himself for another reason: It is not clear that Ely wished to represent himself even if the district court did not appoint counsel to assist him in some fashion. The Sixth Amendment has been interpreted to confer a right to counsel and a right to self-representation, but there is no constitutional right to “hybrid” representation, in which the defendant both acts as his or her own counsel and is represented by an attorney. See McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); U.S. v. Callwood, 66 F.3d 1110 (10th Cir. 1995). While a court has discretion to appoint standby counsel to assist a defendant, there is no constitutional right to such an arrangement. See U.S. v. Webster, 84 F.3d 1056 (8th Cir. 1996). Because there is no constitutional right to hybrid representation, some courts have held that defendants do not clearly and unequivocally assert the right to self-representation when requests to serve as their own counsel are accompanied by - 473 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 a request to have appointed counsel serve in an advisory or standby capacity. In U.S. v. Kienenberger, 13 F.3d 1354 (9th Cir. 1994), the U.S. Court of Appeals for the Ninth Circuit held that a defendant did not clearly and unequivocally assert a right to self-representation, because when he asked to serve as his own counsel, he also asked that advisory or standby counsel be appointed to assist on procedural matters. New York’s highest appellate court recently reached the same conclusion. It reasoned that because the defendant had consistently requested standby counsel—to which he had no constitutional right— he had not unequivocally asked to proceed without counsel. People v. Silburn, 31 N.Y.3d 144, 98 N.E.3d 696, 74 N.Y.S.3d 781 (2018). In contrast to Kienenberger and Silburn, some courts have held that it is possible for a defendant to request standby counsel and nevertheless unequivocally assert the right to selfrepresentation. See, e.g., U.S. v. Baker, 84 F.3d 1263 (10th Cir. 1996); People v. Hicks, 259 Mich. App. 518, 675 N.W.2d 599 (2003). But even assuming that is a possibility, we do not believe Ely did so here. As we have noted, Ely’s motion requesting that he be allowed to represent himself also requested that counsel be appointed to assist him when he had questions. On its face then, Ely’s motion sought some type of hybrid arrangement in which he served as his own counsel but appointed counsel remained to assist him. Ely did not make clear either in his motion or at the hearing that even if his request for such a hybrid arrangement was denied, he still wanted to waive his right to counsel and represent himself. Furthermore, in Ely’s motion, he admitted that the issues in his case were complex and beyond the scope of his legal knowledge. We recognize that the absence of technical legal knowledge is not, in itself, a valid reason to deny a properly asserted request for self-representation. See, e.g., Jones v. Norman, 633 F.3d 661 (8th Cir. 2011) (holding that it was improper to deny defendant’s request to represent - 474 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. ELY Cite as 306 Neb. 461 himself on grounds that defendant was not familiar with rules of criminal procedure). Here, however, we believe Ely’s recognition that he lacked the legal knowledge to effectively represent himself casts considerable doubt on any notion that he actually wanted to represent himself in the absence of counsel to advise him. Where there is doubt as to whether a defendant actually desired to waive his right to counsel and invoke his or her right to self-representation, the request cannot be fairly described as clear and unequivocal. Because Ely did not clearly and unequivocally assert his right to self-representation, we agree with the district court that any argument on appeal that his right to self-representation was violated stood no chance of success. Because Ely cannot demonstrate the requisite prejudice, his claim that his counsel should have argued on appeal that his right to selfrepresentation was violated at trial was properly rejected.",analysis
+703,2044620,1,3,"Defendant's appellant counsel asserts that defendant was inadequately represented at the trial level. He describes numerous examples purporting to show the incompetency of trial counsel; however, he fails to cite any parts of the record which would support his claims. Thus, error, if any, was not preserved. Defendant cannot, by merely alluding to error, encumber this Court with the obligation of searching the record in an attempt to reverse. Walters v. State, (1979) Ind., 394 N.E.2d 154, 156. The defendant's charge of inadequate counsel, in the main, alludes to various tactics that might have been employed but were not. There is no showing or even a claim that the employment of such measures would likely have produced a different result, and we will not speculate therein. On the contrary, we presume that counsel was competent and, absent a showing to the contrary, we presume that measures that were not employed, either were not indicated by the circumstances or, if indicated, were rejected upon due deliberation.",issues
+704,2621781,1,6,"[¶ 22] When addressing a claim that the evidence is not sufficient to sustain the conviction for a crime, we apply this standard: We assess whether all of the evidence which was presented was adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a fact-finder when that evidence is viewed in a light most favorable to the State. We will not substitute our judgment for that of the jury when we apply that rule, and our only duty is to determine whether a quorum of reasonable and rational jurors would, or even could, have come to the same result as the jury actually did in the case under review. Robinson v. State, 11 P.3d 361, 368 (Wyo.2000) (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)). [¶ 23] Applying this standard to the evidence we have set out in detail above, we conclude that a reasonable and rational trier of fact could conclude that Mueller was guilty of either the greater or the lesser offenses defined by Wyo. Stat Ann. § 6-5-204(a) and (b), or have acquitted him. [9]",sufficiency of the evidence
+705,2348513,1,1,"Our standard of review for cases involving the termination of parental rights is well established. Lewis v. Ark. Dep't of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). Arkansas Code Annotated section 9-27-341(b)(3) (Supp.2007) requires an order terminating parental rights to be based upon clear and convincing evidence. See id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the circuit court's finding was clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Such cases are reviewed de novo on appeal. Id. This court does, however, give a high deference to the circuit court because that court is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Id. Appellant Posey is married to Lynette Wilkins, and he is the legal father of his son, J.P., Jr., and the putative father of Wilkins's daughters J.P., N.W., A.J., and S.J. [2] On April 15, 2005, Wilkins left nine-year old J.P., Jr., to watch A.J. while she made a phone call. Upon returning, she noticed that J.P., Jr., had disciplined A.J. by injuring her arm and leaving bruises on her. Wilkins did not take A.J. to the hospital until the next day, at which time she was charged with three counts of child endangerment. A.J., N.W., and J.P., Jr., were taken into ADHHS custody and placed under a seventy-two (72) hour hold. J.P., who had been staying with her paternal grandparents, was removed from her grandparents' home a few days later, and they also were charged with child endangerment. Posey later admitted that J.P. was dependent-neglected due to environmental neglect in his parent's home. At the time the children were taken into ADHHS custody, Posey was in prison. The circuit court entered a probable-cause order and placed the children in foster care. On June 24, 2005, the children were adjudicated dependent-neglected. As part of the ADHHS case plan for Posey's reunification with his children, the circuit court ordered that, upon his release from prison, Posey contact ADHHS to arrange for regular visitation with the children, complete parenting classes, undergo a drug and alcohol assessment, attend random drug screenings, and undergo a psychological evaluation. Posey was released from prison in August 2005, and a review order was entered on October 13, 2005. In its order, the circuit court found that Posey had only visited J.P., Jr., and J.P. twice since being released from prison. Posey also had failed to maintain a stable income or housing. The court also found that he had missed his psychological evaluation and had not attended parenting classes. While Posey had attended some random drug screenings, he had not completed his drug and alcohol assessment because ADHHS had not applied for the funds to pay for the assessment. During the permanency planning hearing in April 2006, ADHHS reported that Posey still had not cooperated with ADHHS to complete any of the court-ordered services. He had only submitted to three (3) drug screenings, with one test result being positive for amphetamines. Additionally, in February 2006, Posey pleaded guilty to a felony drug offense and was sentenced to sixty (60) months in the Arkansas Department of Correction, with thirty (30) months suspended. After the hearing, the circuit court changed the permanency plan for J.P., Jr., and J.P. from reunification with their parents to termination of parental rights and adoption. On July 19, 2006, a termination-of-parental-rights hearing was held, and Wilkins voluntarily surrendered her rights to the children. Posey, however, told the circuit court that he wanted to retain his rights to J.P., Jr., and J.P. and asked for more time to prepare for obtaining custody of the children. He testified that his official release date from prison was in November 2007, but that he anticipated being released by March or April 2007 if he qualified for a special parole program. Thus, he asked the court for another eight to twelve months in order to gain custody of his children. When asked why he was not in compliance with the ADHHS case plan, Posey admitted that he had not completed his psychological evaluation, parenting classes, or drug and alcohol assessment. He conceded that ADHHS had arranged for a psychological evaluation, but that he simply missed his appointment, which was never rescheduled. Posey, however, blamed his failure to attend parenting classes and to complete a drug and alcohol assessment on ADHHS, stating that ADHHS never arranged dates for him to attend the classes and never obtained funding for his assessment. He further asserted that he only tested positive for amphetamines during his drug screening because of sweat that was transferred from a female to himself. While he admitted to only visiting J.P., Jr., and J.P. twice during the six-month period when he was not in prison, he explained that he had moved to Louisiana and Mississippi to find construction work after Hurricane Katrina and could not return to Arkansas to visit his children. Janet Norris, the ADHHS case worker, testified that Posey had failed to comply with the case plan for reunification with his children, including the circuit court's order to refrain from using illegal drugs and to maintain a stable income and housing. She also testified that Posey failed to respond when ADHHS made several attempts to contact him in December 2005. According to Norris, there was a high probability that the children would be adopted because they were of the appropriate age for adoption. She testified that while J.P. had expressed that she loved and missed her mother, J.P., Jr., had indicated that he was ready to be adopted and live like normal kids. In contrast, Norris stated that neither child had expressed any desire to be with Posey. When asked by Posey's counsel whether she knew that Posey had been sending letters to his children from prison, Norris testified that neither child had mentioned receiving any letters. Next, Monica Spencer, an adoption specialist for ADHHS, testified that the likelihood of the children being adopted was very high. She stated that several families contacted by ADHHS met the criteria or characteristics of the children, and she testified that J.P., Jr., had expressed interest in one family in particular. Spencer also said that she had found matches for families where all four siblings could be placed together. After the hearing, the circuit court entered an order terminating Posey's parental rights on the ground that Posey had failed to maintain meaningful contact with the children. Upon listing the facts that supported termination, the court concluded that it was clear Posey could not provide for his children and had not had meaningful contact with the children in well over a year, nor had he complied with the ADHHS case plan. Under Ark.Code Ann. § 9-27-341(b), a circuit court may permanently terminate a parent's rights to his or her children if the court finds by clear and convincing evidence that termination is in the best interests of the children, one ground for termination exists, and there is an appropriate permanency placement plan for the children. When considering whether termination is in the best interest of the children, the circuit court should consider the following factors: (i) The likelihood that the juvenile will be adopted if the termination petition is granted; and (ii) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent.... Ark.Code Ann. § 9-27-341(b)(3)(A) (Supp. 2007). We conclude that there was clear and convincing evidence that termination of Posey's parental rights was in the best interest of the children in the instant case. First, there was substantial evidence of the strong likelihood that the children would be adopted. The ADHHS case worker testified that the children were the appropriate age for adoption and that the children were looking forward to permanency and stability. Furthermore, an adoption specialist from ADHHS testified that she had located several family matches for the children and there was a possibility that J.P., Jr., and J.P. could be placed in one home along with their other siblings. Second, there was evidence of potential harm to the children if they were placed in Posey's custody. Posey was ordered by the court to submit to random drug screenings and a drug and alcohol assessment, but he failed to finish the assessment, tested positive on a drug screen, and was convicted on a drug charge during the pendency of his children's case. Although Posey tried to justify the positive drug test, we give great deference to the circuit court's observations as to a witness's credibility. See Lewis v. Ark. Dep't of Human Servs., supra . Posey also showed an inability to maintain stable housing and income. Finally, his parents, who had been entrusted with the care of J.P., were charged with child endangerment due to environmental neglect, and it was entirely possible that the children could be left with their grandparents again. The circuit court decided to terminate Posey's rights as to J.P., Jr., and J.P. because the court found that the children were out of his custody for over twelve (12) months and he willfully failed to maintain meaningful contact with the children during that time. See Ark.Code Ann. § 9-27-341(b)(3)(B)(ii)(a) (Supp.2007). In order for a circuit court to find willful failure to maintain meaningful contact, the evidence must show that the parent was not prevented from visiting or having contact with the juvenile by the juvenile's custodian or any other person, taking into consideration the distance of the juvenile's placement from the parent's home. Ark.Code Ann. § 9-27-341(b)(3)(B)(ii)(b) (Supp.2007). In Mayfield v. Ark. Dep't of Human Servs., 88 Ark.App. 334, 198 S.W.3d 541 (2004), the Arkansas Court of Appeals affirmed a finding that a parent failed to maintain meaningful contact with her child when, during the pendency of the child's case, the parent moved out of state and only visited her child when she returned to Arkansas for hearings. Similarly, this court affirmed a finding of willful failure to maintain contact when a father discontinued his court ordered visitation for almost six months. See Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). In the instant case, Posey was incarcerated for a majority of the time that his children's case was pending, thus preventing him from visiting the children. However, during the six-month period when he was not in prison, Posey only visited his children twice, and, instead of finding a job in Arkansas so as to be near the children and continue with court-ordered visitation, Posey decided to leave the state to seek work. In addition, while Posey allegedly sent letters to his children from prison, the children's case worker testified that the children never mentioned receiving any letters. Again, whether Posey was actually sending letters to his children was a question of witness credibility for the circuit court, and we give great deference to the circuit court judge's decision as to Posey's credibility. See Lewis v. Ark. Dep't of Human Servs., supra . Thus, we conclude that there was clear and convincing evidence of Posey's willful failure to maintain meaningful contact with his children. Finally, the circuit court determined that ADHHS had an appropriate permanency placement plan for J.P., Jr., and J.P.—adoption. Evidence of a permanent placement plan exists when ADHHS shows that the department is attempting to clear and prepare a child for permanent placement. See M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). As stated above, ADHHS presented evidence that the children were at an adoptable age, the children had expressed a desire for stability and permanency, and ADHHS had contacted several family matches meeting the criteria of the children, including a family where all four of the siblings could be placed together. Accordingly, we conclude that there was clear and convincing evidence that ADHHS had developed an appropriate permanency plan for the children.",sufficiency of the evidence
+706,2581037,1,1,"Thomas Dreiling, among other plaintiffs, is a shareholder of InfoSpace, Inc. (InfoSpace), a Delaware corporation. He filed this shareholder's derivative action against certain officers and directors of InfoSpace, alleging insider trading, breach of fiduciary duty, materially false and misleading statements about revenues and mergers, and other corporate wrongdoings. The Seattle Times newspaper ( Times ) has been following the InfoSpace litigation (aspects of which are before several different state and federal courts) [1] for some time. The Times has made a formal motion to intervene in this case and to unseal the records. Because it is unnecessary for us to detail the facts of the underlying litigation to resolve the issues before us, we will briefly outline only the events which gave rise to review. Before bringing a shareholders' derivative action, shareholders must present their claims to the corporation and give the corporation an opportunity to pursue the case. See generally Joy v. North, 692 F.2d 880 (2d Cir.1982). InfoSpace is a Delaware corporation, and under Delaware law, the corporation has a variety of options, one of which is to form a special litigation committee (SLC) to evaluate the shareholders' claims. In re Oracle Corp. Derivative Litig., 808 A.2d 1206, 1210 (Del.Ch.2002). If the SLC concludes that the suit is in the corporation's best interest, the corporation may assume the shareholders' place and pursue the suit on its own. Id. However, if the SLC concludes the action is not in the corporation's best interest, the corporation may bring a motion to terminate the suit. Id. at 1210-11. If the court does not grant the motion, the court may permit the shareholders to prosecute the suit on the corporation's behalf. Zapata Corp. v. Maldonado, 430 A.2d 779, 784 (Del.1981). In this case, InfoSpace elected to form an SLC, and the trial court stayed the shareholders' action pending the SLC investigation. The SLC was formed of directors who were not serving on the board at the time of the alleged misconduct and were therefore presumably independent. The SLC investigated the claims and recommended that the action be terminated. Before it filed the motion to terminate with the court, InfoSpace received a protective order allowing it to file its motion and supportive documentation under seal. The court gave the SLC the authority to self-designate confidential documents, and it prohibited disclosure of confidential documents (except to the plaintiff). Much of the record was placed under seal. The Times challenges this order. Dreiling opposed dismissal and litigation resumed. Ultimately, the trial court dismissed some claims and stayed others. See Clerk's Papers (CP) at 1264 (Order on Special Litig. Comm.'s Mot. to Dismiss & Various Mots.). The Times made a formal motion to intervene and to unseal the records. The trial court granted leave to intervene but largely denied the motion to unseal. This order said in relevant part: A special litigation committee's task is an unusual one in the context of securities litigation. The committee must investigate the plaintiff's claims and report to the court why those claims should or should not be pursued by the corporation. To accomplish this evaluation, the committee must review its internal documents, including legal advice and sensitive proprietary information, and must also interview its employees, some of whom have allegedly engaged in wrongdoing, and consult experts. The results of the inquiry are presented in a special litigation committee report. In order to evaluate the accuracy and reasonableness of the report in this case, the court ordered that plaintiff's counsel be given access to internal corporate documents, employee interviews, and expert consultations reviewed by the Committee. This information would not be obtainable in ordinary litigation such as that currently pending against Infospace in another King County Department and in U.S. District Court for the Western District of Washington, because of privilege or protections of the work product doctrine. The court ordered the disclosure only with appropriate confidentiality requirements and protective orders in place. The court finds that most of the information contained in the Special Litigation Committee's Report, the SLC's motion, the plaintiff's response, and the court's letter ruling of December 6, 2002, is based on protected information. It would be error to order this information disclosed to the public. At the same time, some of the documents filed as attachments to the SLC's report and motion and plaintiff's responses either are in the public domain or do not have the same privileged or proprietary status. Therefore, counsel for the SLC is directed to serve and file, within 45 days of this order, a log of those documents filed as attachments to its report and motion, the plaintiff's response, and the SLC's reply that should remain confidential. The log should be organized by attachment tab number and Bates production number. Counsel should describe the general nature of the document and the specific basis for its continued confidentiality. The documents not included in the log shall be disclosed. If the court finds the SLC's justification as to a particular document inadequate, that document will also be disclosed, after advance notice to plaintiff and SLC counsel and an opportunity to object to the disclosure. CP at 1129 (Order Granting the Mot. of the Seattle Times Co. to Intervene & Directing the Filing of a Log as to Docs.). The order did not articulate the specific analytical approach the SLC should take to determine if a document is properly confidential or the analysis the trial court would undertake if the sealing were challenged. Overwhelmingly, documents were simply filed under seal. After the intervention of the Times, some documents were unsealed. This court granted interlocutory review of a limited question of whether the trial court applied the correct legal standard when it sealed material and briefing filed with the court in support of the SLC's motion to terminate a shareholder derivative lawsuit.",facts
+707,6353431,1,2,"1. Parties and Ownership Interests Lite-Form Technologies, L.L.C. (Lite-Form), is an LLC with its principal place of business in South Sioux City, Nebraska. Patrick Boeshart is the president and sole manager of Lite-Form, and his wife, Sandra Boeshart, is the office manager and provides bookkeeping services to Lite-Form. Boeshart Management Company, L.L.C. (Boeshart Management), is an Iowa LLC that conducts business in Nebraska. Boeshart Management is wholly owned and controlled by Patrick and Sandra, with Sandra designated as the registered agent in Nebraska for Boeshart Management. Pat Boeshart Construction, L.L.C. (Boeshart Construction), is an Iowa LLC that conducts business in Nebraska. Boeshart Construction is wholly owned and controlled by Patrick. Patrick, Sandra, Boeshart Management, and Boeshart Construction are collectively referred to hereafter as “the Boesharts.” Tegra Corporation (Tegra) is an Iowa corporation with its principal place of business in Sioux City, Iowa, and is a minority shareholder of Lite-Form. There is some slight discrepancy between the parties’ pleadings as to ownership percentages for Lite-Form. Accounting for this discrepancy, Tegra owns approximately 2.521 to 2.5237 percent of the membership units of Lite-Form, Patrick owns approximately 7.084 to 7.1714 percent of the membership units of Lite-Form, and Sandra owns approximately 7 to 7.0662 percent of the membership units of Lite-Form. The remaining minority members collectively own approximately 22.671 to 24.313 percent of the membership units of Lite-Form. Lite-Form International, L.C. (Lite-Form Int’l), owns approximately 60 to 60.5677 percent of Lite-Form. Tegra owns approximately 37.44 to 37.5755 percent of the membership units of Lite-Form Int’l, and therefore, it indirectly owns approximately 22.46 to 22.7586 percent of Lite-Form. Patrick owns approximately 49.766 to 49.9678 percent of the member­ ship units of Lite-Form Int’l, and therefore, he indirectly - 788 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 owns approximately 29.86 to 30.2643 percent of Lite-Form. Finally, Sandra owns approximately 6.745 to 6.7480 percent of the membership units of Lite-Form Int’l, and therefore, she indirectly owns approximately 4.05 to 4.08711 percent of Lite-Form. 2. Tegra’s Lawsuit Tegra, individually and on behalf of Lite-Form, filed a complaint against the Boesharts alleging breach of fiduciary duty, misappropriation and waste of corporate assets, unjust enrichment, conversion, and, as to Sandra, aiding and abetting a fiduciary breach. Tegra also alleged in its individual capacity that it had made a demand upon Lite-Form to produce information and documentation related to the claims set forth and that Lite-Form had wrongfully withheld that information from Tegra. 3. Appointment of Special Litigation Committee and Its Findings Patrick, under the authority granted to LLCs by § 21-168, appointed Cody Carse as a single member special litigation committee (Committee) to investigate the claims asserted by Tegra and to determine whether pursuing the action was in the best interests of Lite-Form. The derivative action was stayed during the pendency of the Committee’s investigation. The Committee subsequently timely filed its report and statement of determination with the court. Carse outlined his qualifications, which consisted of the fact that Carse is a certified public accountant, a certified fraud examiner, and certified in financial forensics. The report generally addressed the allegations of the complaint. (a) Conflicting-Interest Leases The Committee found that leases between Boeshart Construction and Lite-Form and Boeshart Management and Lite-Form, challenged in the action, were for equipment - 789 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 used by Lite-Form for legitimate business purposes but that some of the leases had rental rates that appeared to be above market. The Committee recommended that the leases be disclosed to all the members of Lite-Form and that the members holding at least a majority of all outstanding units vote to either (1) approve or modify any of the terms of the relatedparty leases retroactively back to the start of each lease, (2) determine if member approval must be required in the future before entering into any related-party lease, or (3) choose not to address the leases at all or take any action. (b) Diversion of Profits to Boeshart Family On a claim of diversion of profits, the Committee found that on October 30, 2018, Lite-Form paid $600,000 to Patrick, $200,000 to Patrick and Sandra’s son, and $200,000 to Patrick and Sandra’s daughter. Patrick loaned the $600,000 back to Lite-Form, but the loan was reduced to $487,194.03 by July 3, 2019. The $512,805.97 net cash paid out by Lite-Form was repaid to Lite-Form by a deposit of $234,867.03 made on December 23, 2019, and a deposit of $277,938.94 made on January 17, 2020. While the derivative action alleged Lite-Form had lost use of the $1 million for over a year, incurred additional professional fees to unwind the transaction, and incurred Internal Revenue Service penalties and interest due to the payment and unwinding of the transaction, the Committee noted it had not been provided with any documentation regarding additional professional fees or Internal Revenue Service penalties and interest. As a resolution, the Committee recommended that all the details of the $1 million bonus transaction be disclosed to the members of Lite-Form, including any expenses incurred by Lite-Form due to the loss of use of the money that was paid out on October 31, 2018, and not fully repaid until January 17, 2020, and that the members thereafter vote to determine if Lite-Form should be reimbursed by Patrick for any expenses incurred due to the transaction. - 790 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 (c) Unauthorized Salaries, Bonuses, and Benefits With respect to alleged unauthorized salaries, bonuses, and benefits, the Committee found that, except for the $1 million bonus in 2018, Sandra and Patrick and Sandra’s son were paid salaries comparable to other Lite-Form employees and that Patrick and Sandra’s daughter’s salary was based on her previous employer. It was a condition of her joining Lite-Form that Lite-Form would match the salary she was receiving previously. With respect to Patrick’s salary, the Committee found that the operating agreement states the manager’s salary and other compensation are subject to the approval of the members but does not state the manager must request approval from the members. It appeared that for the 18 years of Lite-Form’s existence, the members had chosen not to specifically approve the salary and other compensation of the manager of the company. The Committee found it did not have a basis to evaluate the amount of Patrick’s salary. It recommended that the relevant section of the operating agreement be discussed at the next member meeting. (d) Luxury Vehicles With respect to allegations concerning luxury vehicles, the Committee found that on July 28, 2002, Lite-Form entered into two leases with Lite-Form Int’l, which owned the vehicles, for a term from July 1 to December 31, 2002. The leases included $400 per month for general office and computer equipment and $4,800 per month for “Autos and Trailers.” The Committee noted that although the written leases terminated on December 31, the monthly rental payments have continued through the present point in time for the same amounts and Lite-Form Int’l continued to provide Lite-Form with all the company-provided vehicles driven by Lite-Form employees. The Committee found that the vehicles were for the business and personal use of the Lite-Form employees and opined that providing company vehicles and having the employer pay for - 791 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 license, taxes, and registration for company-provided vehicles is a common business practice. The Committee further found that the monthly rental payment of $4,800 has never changed over the years and that the cost to Lite-Form has been the same whether the company provided “‘new and luxury cars’ or ‘old and cheap cars.’” Thus, the Committee concluded the purchase price of the vehicles had no impact on the cost to Lite-Form. The Committee recommended that the leases be discussed at the next Lite-Form member meeting, as well as whether Lite-Form should continue providing company vehicles to employees for business and personal use and paying for license, taxes, and registration of those vehicles. (e) Financial Mismanagement In addressing the derivative action’s allegations of financial mismanagement, the Committee found that Patrick uses a personal American Express credit card for both Lite-Form business purposes and personal purposes. The monthly statement is reviewed by Sandra, and she identifies which charges are personal and which are Lite-Form business expenses. The business expenses are then coded to the applicable Lite-Form general ledger account and are paid by Lite-Form to American Express. The personal purchases are paid by Patrick personally to American Express. The Committee’s recommendation concluded, “This is a small business and Sandra . . . is very familiar with all of the charges made to [the American Express] account each month. She is quite capable of accurately identifying which charges are [Lite-Form] expenses and which charges are personal.” Further, the Committee noted that Tegra had failed to provide the Committee with documentation supporting these allegations. (f) Wrongful Withholding of Information With respect to allegations of wrongful withholding of information, the Committee stated, “It is the [Committee’s] understanding that [the Boesharts] are following the advice - 792 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 of their legal counsel with regard to production of the information requested in [Tegra’s] October 22[, 2019,] Demand.” (g) Statement of Determination In a “Statement of Determination” in the report, the Com­ mittee “determined that it is in the best interests of [Lite-Form] that the derivative proceeding be settled on terms approved by the Committee.” This was because, in Carse’s professional opinion, “[the Boesharts’] actions do not justify continuing the derivative proceeding under the control of [Tegra]”: In summary, all the issues identified in the [Com­ mittee’s] investigation can be resolved by the Members of [Lite-Form]. After the Members have been properly informed about the issues, the Members holding at least a majority of all outstanding Units and entitled to vote can determine how these issues should be resolved. In my professional opinion, the “majority of voting members” are quite capable of making the final decision on all of these issues. Once the Members have met and voted, counsel shall report back to the Committee. Based upon the results of the meeting, the Committee may file a request with the Court to dismiss the pending action. 4. Evidentiary Hearing on Committee’s Report An evidentiary hearing was held to determine whether the district court would adopt the determinations in the report or continue the litigation in the control of Tegra. Carse was the only witness to testify. Carse testified that all his opinions were made to a reasonable degree of accounting certainty. He viewed his role as the Committee to simply investigate and then have the court make a decision, and he “never made any decisions on behalf of the company.” Carse testified that in his role as the Committee, he did not “do anything from a legal interpretation standpoint,” since - 793 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 he was “not a lawyer.” However, the Committee’s legal counsel “didn’t make any decisions on how to do [his] investigation” and was simply a “conduit” for information to the parties and to file things for the court. Carse repeatedly stated that throughout his investigation, he believed it was “up to Tegra” to bring the evidence to him to support the allegations it was making. Carse testified that as an accountant and business person reading the allegations and weighing the evidence he was provided, he felt the facts presented to him did not satisfy the claims that were in the lawsuit. Carse admitted he did not conduct a cost-benefit analysis in determining which of the four options to recommend. Instead, he simply determined there was no support for the alleged claims. Carse explained, “Based on what [Tegra] provided to me, I didn’t think it would hold up in court.” Therefore, he found no support for choosing options that would continue the litigation. However, Carse admitted that he did not know the legal elements of any of the allegations and, throughout his investigation, never asked the Committee’s counsel for any legal advice or legal interpretations. Still, Carse found evidence that some expenditures were “out of line.” He believed his solutions of disclosure and voting on those matters would resolve those matters without requiring a lawsuit. Carse admitted in regard to the $1 million bonus that he did not quantify the cost of pursuing the claims or the potential recovery. He just “estimated it in [his] own mind” that a member meeting would be cheaper than to “tie up four attorneys and a judge and a court.” Thus, Carse ultimately recommended that many of the issues, such as the leases and the $1 million bonus, should be disclosed to the members of Lite-Form for a vote. Carse believed that recommendation constituted making a decision under § 21-168(d)(3) to “be settled on terms approved by the committee.” - 794 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783 5. District Court Order The district court found that Carse’s review was consistent with someone of his background as a certified public account­ ant and a certified fraud examiner and that, in the court’s opinion, “he reviewed the claims of [Tegra], did a records review, and found enough to recommend that the parties attempt settlement.” The court ultimately found that the Committee acted “with enough disinterested independence and good faith to support a determination that the parties attempt to settle these claims.” Still, the court took issue with the fact that the Committee had made a recommendation directly beneficial to the Boesharts, who chose Carse. And the court believed it was beyond the statutory authority of the Committee to send matters to the members for a majority vote, because, [b]eyond the fact that these recommendations would seem to put [the Boesharts], accused of self-dealing, in a position to act in their own best interest and to the detriment of [Tegra] and its other members, there is no language in §21-168(d) that allows the [Committee] to make recommendations for [Tegra] to complete. Thus, the court stated, “The [Committee] was authorized by statute to choose one of four options, it chose settlement, and the additional recommendations of the [Committee] will not be considered by this Court.” The court ordered the parties to attempt mediation of the claims outlined in the operative complaint. The court gave the parties 30 days to choose a mediator, and if no mediator could be agreed upon, the court stated it would determine the mediator. The court stated that “[u]pon conclusion of Mediation, the [Committee] is Ordered to report to the Court the outcome of the mediation and make further recommendations per §21-168.” It scheduled a status hearing for September 20, 2021. - 795 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports TEGRA CORP. v. BOESHART Cite as 311 Neb. 783",facts
+708,2640348,1,1,"¶ 1 In this case, Citizens for Responsible Transportation (CRT) appeals from an order of the district court denying CRT's motion for summary judgment and granting Draper City's motion to dismiss. The district court dismissed CRT's claim on the basis that Draper City Resolution No. 06-71 was not subject to referendum. CRT asks that we reverse the dismissal and remand the claim to the district court. We affirm.",introduction
+709,1896204,1,11,"Chamberlain argues that the trial court erred in denying his motion for judgment of acquittal based on legal insufficiency of the evidence. This issue is wholly without merit. This Court recently reaffirmed the standard for ruling on a motion for judgment of acquittal. In Darling v. State, 808 So.2d 145, 155 (Fla.), cert denied, 537 U.S. 848, 123 S.Ct. 190, 154 L.Ed.2d 78 (2002), we stated: In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). As explained in Lynch: The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof of facts from which the ultimate fact is sought to be established, or where there is room for such differences as to the inference which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. Id. The trial court's finding denying a motion for judgment of acquittal will not be reversed on appeal if there is competent substantial evidence to support the jury's verdict. Rogers v. State, 783 So.2d 980, 988 (Fla.2001). Because the jury was instructed on both premeditated and felony murder and found Chamberlain guilty on a general verdict form, the evidence must support either premeditated or felony murder. See Jones v. State, 748 So.2d 1012, 1024 (Fla.1999) (citing Mungin v. State, 689 So.2d 1026, 1029-30 (Fla.1995)). Here, there is sufficient evidence of both theories of first-degree murder. Three witnesses testified against Chamberlain regarding his involvement in the triple homicide and robbery. Dascott and Thibault both testified that Chamberlain supplied the gun to Thibault. Dascott, Thibault, and Ingman testified that Chamberlain participated in the planning of the robbery. Thibault testified that it was Chamberlain's idea to use the gun and that Chamberlain gave the gun to Thibault only because Thibault was physically larger. Dascott, Thibault, and Ingman all verified that Chamberlain had an asp with him the night of the murders, and Thibault stated that Chamberlain used the asp on Harrison. The medical examiner testified that Harrison had a bruise on his knee consistent with being struck by a blunt object. Once Ketchum and Harrison were in the bathroom, Chamberlain actively began looting the house and putting items in his car. After Thibault killed Ketchum, testimony from Ingman and Thibault revealed that it was Chamberlain who first encouraged Thibault to kill the other witnesses. Thibault stated that Chamberlain stood beside him while Thibault emptied the gun into Kenyan and Harrison. Chamberlain then picked up the bullet casings to avoid leaving incriminating evidence. Thibault testified that after Chamberlain and Thibault discovered Harrison was still alive, it was Chamberlain who went to the car, retrieved more bullets, and reloaded the gun. Dascott's testimony supported Thibault's version of the killings. Thus, in this case there is competent, substantial evidence to support the jury's verdict on either theory of first-degree murder, as well as armed robbery. First, all three murders indisputably occurred in the course of a robbery for which Chamberlain both possessed and supplied a weapon. Therefore, the evidence supports verdicts of guilt of armed robbery and felony murder. Second, regarding premeditated murder, [p]remeditation is defined as `more than a mere intent to kill; it is a fully formed conscious purpose to kill.' Green v. State, 715 So.2d 940, 943 (Fla.1998) (quoting Coolen v. State, 696 So.2d 738, 741 (Fla.1997)). This purpose to kill must exist for a sufficient time before the homicide to permit reflection as to the nature of the act to be committed and the probable result of that act. Id. at 944, (quoting Coolen, 696 So.2d at 741). At a minimum, ample evidence supports the jury's verdict of guilt of the premeditated murders of Harrison and Kenyan. [10] The testimony of Ingman, Thibault, and Dascott established that Chamberlain encouraged Thibault to eliminate the witnesses, stood beside Thibault while he executed the witnesses, calmly picked up the shell casings, and finally went to the car to retrieve more bullets after it was discovered that Harrison was not dead. Although Chamberlain did not actually pull the trigger, the evidence supports the conclusion that he played an integral part in the executions of Harrison and Kenyan, and is guilty as a principal. See Ferrell v. State, 686 So.2d 1324, 1329 (Fla.1996) (While [the defendant] may not have actually pulled the trigger, the evidence establishes that he played a[n] integral part in these crimes and in actually luring the victim to his death. Thus, at a minimum, he is guilty as a principal under the statute.); Hall v. State, 403 So.2d 1319, 1320 (Fla.1981) (evidence, including fact that defendant and his companion planned robbery of victim together and were together at site of victim's assault and death, supported conclusion that, even if defendant did not pull trigger, he was a principal to crime of murder). [11] Therefore, the trial court properly denied the motion for judgment of acquittal. There is sufficient evidence of the first-degree murder of all three victims and Chamberlain is not entitled to relief on this issue.",sufficiency of the evidence
+710,3134559,1,2,"Section 9–21 of the Code provides, in relevant part, as follows: “Upon receipt of [a] complaint, the Board shall hold a closed preliminary hearing to determine whether or not the complaint appears to have been filed on justifiable grounds.  If the Board determines that the complaint has not been filed on justifiable grounds, it shall dismiss the complaint without further hearing. Whenever in the judgment of the Board, after affording due notice and an opportunity for a public hearing, any person has engaged or is about to engage in an act or practice which constitutes or will constitute a violation of any provision of this Article or any regulation or order issued thereunder, the Board shall issue an order directing such person to take such action as the Board determines may be necessary in the public interest to correct the violation.” 10 ILCS 5/9–21 (West 1996). In addition, section 1A–7 of the Code provides that “[f]ive members of the Board are necessary to constitute a quorum and 5 votes are necessary for any action of the Board to become effective .” 10 ILCS 5/1A–7 (West 1996). Respondents contend that if the Board is unable to achieve a majority determination as to whether or not a complaint has been filed on justifiable grounds following the closed preliminary hearing, the Board is prohibited from taking further action on the complaint. Respondents assert that because five votes are necessary for any action of the Board to become effective, the Board may not conduct a public hearing on a complaint unless five of its members determine that the complaint was filed on justifiable grounds. Respondent’s arguments are based on an incorrect reading of the relevant statutory provisions. Section 9–21 of the Code requires the Board to hold a closed preliminary hearing upon receipt of a complaint alleging a violation of the Code. 10 ILCS 5/9–21 (West 1996). This same section then requires that the Board dismiss the complaint without further hearing if, at the conclusion of the closed preliminary hearing, the Board determines that the complaint has not been filed on justifiable grounds. Because five votes are necessary for any action of the Board to become effective, the Board may not dismiss a complaint after the closed preliminary hearing unless at least five members vote to do so. Respondents suggest that because five votes are needed to dismiss a complaint after the closed preliminary hearing, five votes are also required to proceed with a public hearing on a complaint. Nothing in the Code, however, supports such a requirement. Respondents appear to be laboring under the belief that, at the conclusion of the closed preliminary hearing, the Board is required to vote on whether the complaint was filed on justifiable grounds. On the contrary, the only requirement in the statute is that the Board dismiss the complaint if it determines that the complaint was not filed on justifiable grounds. 10 ILCS 5/9–21 (West 1996). The statute thus does not require any majority vote by the Board prior to a public hearing on the complaint. Furthermore, it is clear that the statute contemplates a public hearing for those complaints not dismissed by the Board. In the sentence which immediately follows the description of the procedure for dismissing a complaint, section 9–21 requires that the Board afford “an opportunity for a public hearing” before taking any action to correct an alleged violation of the Code. 10 ILCS 5/9–21 (West 1996). This requirement of a public hearing is consistent with the broader purposes of the Code’s campaign finance disclosure provisions. See 10 ILCS 5/9–10 et seq. (West 1996) (mandating the filing of reports listing the source and amount of campaign contributions and expenditures). By requiring that every complaint not dismissed by a majority of the Board proceed to a public hearing, the Code effectively promotes the goals of candor and openness underlying these substantive provisions. At the conclusion of the preliminary hearing in the instant case, the Board failed to achieve a vote of five members to dismiss the complaints as not filed on justifiable grounds. For the reasons stated above, the complaints were then required to proceed to a public hearing. The Board thus lacked authority to enter its subsequent order dismissing the complaints without reaching their merits. Accordingly, the judgment of the Board is set aside and the complaints are remanded to the Board for a public hearing. Respondents also contend that the appellate court erred in addressing a number of defenses raised by respondents in their objections to the complaints filed with the Board. Because we have concluded that the Board’s action on the complaints was unauthorized, we agree with respondents that it was improper for the appellate court to address these additional matters. Therefore, the appellate court’s judgment remanding the proceeding to the Board is affirmed but the remainder of its opinion is vacated. Appellate court judgment affirmed in part and vacated in part; Board decision set aside; cause remanded.",analysis
+711,2520543,1,1,"In this appeal, we review the court of appeals' decision in People v. Auman, 67 P.3d 741 (Colo.App.2002), which affirmed Lisl Auman's convictions for first degree felony murder and second degree burglary. [1] We agree with the court of appeals that, as a matter of law, Auman's arrest did not terminate her liability for felony murder and that whether a co-participant's arrest terminates his or her immediate flight from the commission of the predicate felony while another participant remains in flight is a question for the jury to decide. However, proof of the predicate crime is just as important an element of the crime of felony murder as is proof that death occurred in immediate flight. Here, the predicate felony was second degree burglary, which requires that the defendant intend to commit the crime of theft when unlawful entry occurs. Hence, we also address whether an error in the theft instruction requires reversal of Auman's conviction for second degree burglary and, if so, then necessarily of her conviction for felony murder as well. Our review of the record leads us to conclude that the erroneous theft instruction may have deprived Auman of her right to a full and fair jury consideration of her defense to burglary. Hence, we reverse her second degree burglary conviction. Because Auman's felony-murder conviction was based upon the jury's finding that she committed second degree burglary, we similarly reverse that conviction and remand for a new trial. In November 1997, Auman and a few others moved her belongings out of a room that she had been renting at an eleven-bedroom lodge (the Lodge) in the Denver foothills. In the process of moving her things out, the evidence supported a conclusion that Auman and the others with her broke the padlock to the room of another tenant, Shawn Cheever, and removed some of his belongings as well as some of Auman's things which were also in Cheever's room. According to the evidence presented, after loading the items into two cars they had driven to the Lodge, the group drove away in their separate cars. When the police attempted to stop the car that Auman was riding in, Matthew Jaehnig, the driver of that car, led law enforcement officers on a high-speed chase into Denver. During this chase, and while Auman held the steering wheel, Jaehnig shot at an officer's car with an assault rifle. He then drove to the apartment complex to which Auman was moving. Upon reaching the apartment complex, police officers saw Auman and Jaehnig run into a small alcove of the complex, and, shortly thereafter, Auman surrendered to police. She had been under arrest for approximately five minutes when a Denver police officer, Bruce VanderJagt, who was searching for Jaehnig, looked around the corner of the alcove and was shot and killed by Jaehnig. In the period between her arrest and the fatal shooting, Auman did not tell police, despite their repeated questions, that she knew that Jaehnig was probably still cornered in the alcove and that he was armed with an assault rifle. Under our relevant statute and established case law, each felony-murder case involving immediate flight, in which a death is caused after the arrest of a co-participant, must be decided according to its unique set of circumstances. Unless the connection between the resulting death and the co-participant's arrest, the predicate felony, or immediate flight is so attenuated that the trial court must order the entry of a judgment of acquittal under Colorado Rule of Criminal Procedure 29, the trial court shall submit this issue for decision by the jury. [2] We hold that, as a matter of law, arrest, by itself, does not terminate a co-participant's liability for felony murder when death occurs at the hands of another participant who remains in flight. A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felony. Here, Auman's conviction for second degree burglary served as the predicate felony for her felony-murder conviction. Second degree burglary requires that a defendant possess the intent to commit a crime when he or she breaks an entrance into a building or occupied structure. The People charged that Auman intended to commit the crime of theft when she, and the others with her, broke the lock and entered Cheever's room. Hence, the jury's understanding of the definition of theft formed an essential element of Auman's conviction for felony murder. However, the theft instruction omitted a required element of theft. The element which was omitted was the requirement that the defendant acted knowingly without authorization in taking the other person's property. Based on this omission, the court of appeals determined that the theft instruction was erroneous. Auman, 67 P.3d at 760. The People agree that the instruction was improper. If a proper theft instruction had been incorporated into the instruction on second degree burglary, the jury, to convict Auman of burglary, would have been required to find that she intended to steal (to knowingly take Cheever's property without his authorization) when she unlawfully entered Cheever's room. Auman admitted she entered Cheever's room unlawfully but claimed she did so only to retrieve her property and contended that the taking of Cheever's property occurred by the others involved. In making this admission, Auman conceded that she committed the crime of criminal trespass, which is a lesser included crime of second degree burglary and is not burglary. The erroneous instruction here, however, allowed the jury to convict Auman of burglary without considering her defense to that crime. According to the terms of the improper instruction, it was irrelevant to the jury's decision to convict her of burglary whether Auman intended to take only those items which she believed she was authorized to take when she entered Cheever's room. Auman's defense to burglary centered upon the claim that she had not formed the intent to steal when the unlawful entry occurred. The evidence, when viewed in its entirety, was not so overwhelming that she formed this required intent to sufficiently cure the instructional error. Thus, we conclude that this erroneous instruction substantially affected Auman's right to a full and fair jury consideration of her defense to burglary. It is reasonably possible that the error contributed to Auman's burglary conviction such that the fundamental fairness of her trial is called into question and serious doubt is cast upon the reliability of the jury verdict. Hence, we reverse the judgment of the court of appeals affirming those convictions which were based upon the erroneous theft instruction: second degree burglary and felony murder. We remand this case to the court of appeals to be returned to the trial court for a new trial on these charges.",introduction
+712,901130,1,2,"[¶ 8.] The decision whether to grant or deny a motion to dismiss an indictment is within the sound discretion of the trial court, subject to an abuse of discretion standard. State v. Kleinsasser, 436 N.W.2d 279, 281 (S.D.1989). [¶ 9.] A trial court's interpretation of a statute is a question of law, reviewed by this Court de novo. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted). [¶ 10.] A trial court's evidentiary ruling is reviewed under an abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353 (citing State v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (citations omitted). An evidentiary ruling will not be overturned unless error is `demonstrated ... [and] shown to be prejudicial error.' Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). Error is prejudicial when, `in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it.' Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).",standard of review
+713,1367655,1,2,"This case presents two issues for review. First, is Jane Doe's gender dysphoria a handicap under RCW 49.60.180? We hold that Doe's gender dysphoria is not a handicap under the Act. The definition of handicap for enforcement purposes in unfair practice cases under RCW 49.60.180, as defined in WAC 162-22-040, requires factual findings of both (1) the presence of an abnormal condition, and (2) employer discrimination against the plaintiff because of that condition. While gender dysphoria is an abnormal condition, we hold that Doe was not handicapped by her gender dysphoria because Boeing did not discharge her because of that condition. Second, did Boeing have to provide Doe's preferred accommodation under RCW 49.60.180? We hold that the scope of an employer's duty to reasonably accommodate an employee's abnormal condition is limited to those steps necessary to enable the employee to perform his or her job. We hold that Boeing's actions met this standard and did not discriminate against Doe by reason of her abnormal condition.",issues
+714,1591799,1,2,"We have jurisdiction over this interlocutory appeal if we determine that the court of appeals held differently from a prior decision of another court of appeals or of this Court on a question of law material to the decision of the case. See Tex. Gov't Code §§ 22.001(a)(2), 22.225(c); see also Coastal Corp. v. Garza, 979 S.W.2d 318, 319 (Tex.1998). For conflicts jurisdiction to exist, it must appear that the rulings in the two cases are `so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.' Coastal Corp., 979 S.W.2d at 319 (quoting Gonzalez v. Avalos, 907 S.W.2d 443, 444 (Tex.1995)). In other words, if one case would operate to overrule the other if both decisions were rendered by the same court, then the test for conflicts jurisdiction has been met. Id. at 319-20. TxDOT argues that we have conflicts jurisdiction because the court of appeals' opinion conflicts with the Third Court of Appeals' opinion in Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex.App.-Austin 1995, no writ). The Bellnoas' two sons were struck by a privately owned and operated truck while attempting to cross the street in Austin, Texas. Id. at 823. One of the sons later died of his injuries, and the Bellnoas sued the City of Austin, alleging various acts of negligence relating to the regulation of traffic, including the negligent raising of the speed limit from thirty to forty miles per hour. Id. at 823-25. The court of appeals found the threshold issue to be whether the alleged problem resulted from the decision to increase the speed limit from 30 to 40 miles-per-hour or... from the sign displaying that limit. Id. at 825. Announcing that [t]he source of the alleged problem ... is the setting of the legal speed limit, not the sign displaying that limit, the court refused to hold, as the Garza I court had, that a plaintiff's claim that the City had negligently raised the speed limit presented a condition of the speed-limit sign for which the City could be held liable under section 101.060(a)(2). Id. The court of appeals criticized the Garza I court's reasoning as ignor[ing] the fact that the speed limit is set by law and the posted sign is only an indicator of the legal speed limit. Id. The court of appeals in this case expressly adopted the Garza I panel's reasoning. 878 S.W.2d at 671. The Garza II court held that the 45 mph speed limit sign near a school zone was a condition that should have been corrected by the State and that TxDOT's immunity from suit had been waived. Id. at 376. TxDOT argues that this holding conflicts with Bellnoa. The Garzas respond that no conflict exists because, although the Bellnoa court held that raising the speed limit was a discretionary decision, the court did not hold that plaintiffs could not allege that raising the speed limit was a condition under section 101.060(a)(2). But Bellnoa and Garza II both dealt with claims that the respective speed-limit signs set an excessive speed for the area. See Bellnoa, 894 S.W.2d at 825; Garza II, 72 S.W.3d at 376. Thus, the question presented to both courts of appeals was whether an allegation that the established speed limit was excessive could defeat a governmental entity's sovereign immunity under the Tort Claims Act. The Bellnoa court said no, but the Garza II court answered yes. The conflict between Garza II and Bellnoa is made clear by the words of the Bellnoa court itself, which stated, [W]e decline to follow the decision in [ Garza I ], which held that a 45 mile-per-hour speed limit sign ... was a `condition' of the sign for which the state could be held liable under section 101.060(a)(2). Bellnoa, 894 S.W.2d at 825. The Garza I court's holding, which was expressly adopted by the Garza II court, would necessarily operate to overrule the Bellnoa court's decision if both had been rendered by the same court. Accordingly, we have jurisdiction over this case and now turn to the merits.",jurisdiction
+715,1948183,1,1,"The defendant claims that the evidence was insufficient as a matter of law to support the jury's verdict. This court has already held otherwise. State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979). In a belated reargument, [2] the defendant claims several factual inaccuracies in our earlier opinion. We remain convinced that our decision correctly held that there was sufficient evidence to permit the jury to find the defendant guilty beyond a reasonable doubt.",sufficiency of the evidence
+716,2570510,1,2,"When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Bollinger v. Coast to Coast Total Hardware, 134 Idaho 1, 4, 995 P.2d 346, 349 (2000); see also I.C. § 72-732. Substantial and competent evidence is relevant evidence which a reasonable mind might accept to support a conclusion. Bollinger, 134 Idaho at 4, 995 P.2d at 349. Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. Id. This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Id. Whether a claimant has an impairment is a factual determination. See Urry v. Walker and Fox Masonry Contractors, 115 Idaho 750, 755, 769 P.2d 1122, 1127 (1989). Likewise, the degree of permanent disability resulting from an industrial injury is a question of fact. Zapata v. J.R. Simplot Co., 132 Idaho 513, 516, 975 P.2d 1178, 1181 (1999).",standard of review
+717,2166421,1,3,"We hold, as did the appellate court, that the jury's special finding was absolutely irreconcilable with the general verdict, and the trial court therefore properly entered judgment in favor of defendant. The special interrogatory was in proper form and was not confusing, and the jury's response to it was not against the manifest weight of the evidence. Plaintiffs received a fair trial. They were not unfairly prejudiced by the alleged errors and instances of alleged misconduct that they put forth. For the foregoing reasons, we affirm the judgment of the appellate court. Affirmed.",conclusion
+718,6332123,1,5,"As a threshold jurisdictional matter, we briefly address which of these two consolidated appeals, derived from two separate notices of appeal but purporting to appeal from the same underlying order of renewal of the protection order, is properly before us. Section 25-1912(3) provides in relevant part that the running of the time for filing a notice of appeal shall be terminated as to all parties by a timely motion for a new trial or motion to alter or amend a judgment. It provides further, “When any 2 Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). - 102 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports GARRISON v. OTTO Cite as 311 Neb. 94 motion terminating the time for filing a notice of appeal is timely filed by any party, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely filing of the terminating motion.” 3 Instead, “A new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion.” 4 The first notice of appeal, resulting in what is presently docketed as case No. S-21-478, was premature. It was filed after the terminating motion for new trial or to alter or amend and before the court announced its decision on that motion. Pursuant to § 25-1912(3), it had no effect. As such, case No. S-21-478 is dismissed for lack of jurisdiction. The notice of appeal resulting in what is presently docketed as S-21-641 was timely filed. Our opinion herein addresses the merits of that appeal.",jurisdiction
+719,2544661,1,9,"
+On March 4, 1991, after both parties had presented evidence at the penalty phase, the trial court orally instructed the jury regarding the penalty determination. The court told the jurors that these instructions would be made available to them in written form for their deliberations, and it cautioned them regarding the proper use and consideration of written instructions. The jury began its deliberations immediately after receiving the oral instructions. The appellate record contains a note signed by the jury foreperson and dated March 4, 1991, requesting the jury instructions. The clerk's minutes for that date do not mention the note. The reporter's transcript does not record any discussion of the note by the court or counsel, but the clerk's transcript includes a packet of written jury instructions with a cover sheet stating Instructions given and delivered to jury during deliberations. The cover sheet has a file stamp with a date of March 11, 1991, the day on which the jury returned its penalty verdict. Based on these facts, defendant contends that the trial court violated his statutory and constitutional rights to have his trial counsel told of the jury's request for written instructions. We disagree. Because the trial court during its oral instructions had already announced its intention to give the jury written copies of the penalty instructions, the trial court did not violate any statutory or constitutional right of defendant's when it responded to the jury's note by sending the jury the written instructions without further notice to counsel. Defense counsel had an opportunity to object to the procedure, to review the written copies of the instructions, or to make any suggestions concerning the jury's consideration of the instructions. From the record's silence, we infer that counsel had no objection to the proposed procedure. The jury retired to deliberate at 3:28 p.m. on March 4, 1991, and before the daily recess at 4:50 p.m. on that day the jury foreperson sent a note asking for the written instructions. We infer from the record that the packet of instructions was then given to the jurors, as reflected by the notation on the cover sheet. Defendant relies primarily on People v. Dagnino (1978) 80 Cal.App.3d 981, 146 Cal.Rptr. 129, but that case is distinguishable because there the trial court provided the jury with written copies of all instructions without informing trial counsel or permitting any response. Here, by contrast, trial counsel received notice and had an opportunity to respond.
+When it denied the automatic motion to modify the penalty verdict of death, the trial court explained the reasons for its ruling with reference to the statutory aggravating and mitigating factors listed in section 190.3. After reciting section 190.3, factor (h) (Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication), the trial court said this: The defendant at most had mild brain damage and some drinks. None of this affects in any way the cold, calculated stabbing of Henry Michael Pedersen in the back. [¶] Moving the body to the bathtub and turning the pillow over to conceal the blood. While in the house, the defendant selected several pieces of jewelry and items of value, and calmly walked away from the home of Michael Pedersen. [¶] The court personally and independently concludes this to be true beyond a reasonable doubt, and is an aggravating factor. Defendant contends that, because section 190.3, factor (h) may only be mitigating ( People v. Montiel (1993) 5 Cal.4th 877, 944, 21 Cal.Rptr.2d 705, 855 P.2d 1277), the trial court erred in finding it to be an aggravating factor in this case. Although susceptible to the interpretation proposed by defendant, the trial court's remarks are not entirely free from ambiguity, and it is possible that what the trial court found to be aggravating was the circumstances of the crime (section 190.3, factor (a)) rather than the absence of mental impairment (section 190.3, factor (h)). In any event, even if we assume the trial court erred in the manner defendant suggests, defendant was not prejudiced by that error. We do not agree with defendant that on the evidence presented here the trial court was required to find that section 190.3, factor (h), had substantial mitigating value. The evidence was at best conflicting, and the trial court could reasonably conclude that whatever impairment defendant suffered, as a result of brain injury or intoxication, in his ability to appreciate the criminality of his conduct, was relatively slight and insignificant. Defendant's attempt to hide the bloodstains by turning over the couch cushions and carrying the body to the bathtub indicate an appreciation that the killing was wrongful. (See People v. Weaver (2001) 26 Cal.4th 876, 990, 111 Cal.Rptr.2d 2, 29 P.3d 103.) The trial court properly found that the circumstances of the crime, defendant's prior felony convictions, his prior violent acts, and his age were all aggravating factors. (§ 190.3, factors (a)-(c) & (i).) Because there were these four substantial aggravating factors, and the mitigating evidence was relatively insubstantial by comparison, we conclude that the trial court's error, if any, was nonprejudicial. (See People v. Kaurish, supra, 52 Cal.3d at p. 718, 276 Cal.Rptr. 788, 802 P.2d 278.)
+Defendant contends that various features of California's capital sentencing scheme violate the federal Constitution. As defendant acknowledges, we have previously rejected all but one of these challenges. Thus, we have held: The special circumstances listed in section 190.2 adequately narrow the class of murders for which the death penalty may be imposed ( People v. Kipp, supra, 26 Cal.4th at p. 1136, 113 Cal.Rptr.2d 27, 33 P.3d 450); section 190.3, factor (a), permitting the jury to consider the circumstances of the capital crime as an aggravating factor, is not unconstitutionally vague or imprecise ( People v. Kipp, supra, at p. 1137, 113 Cal.Rptr.2d 27, 33 P.3d 450); written jury findings or unanimity as to aggravating circumstances is not constitutionally required ( People v. Lucero (2000) 23 Cal.4th 692, 741, 97 Cal.Rptr.2d 871, 3 P.3d 248); intercase proportionality review is not constitutionally required ( ibid.); the prosecution need not prove aggravating circumstances beyond a reasonable doubt ( People v. Kipp, supra, at p. 1137, 113 Cal.Rptr.2d 27, 33 P.3d 450); the jury need not find beyond a reasonable doubt that death is the appropriate punishment ( ibid.); the jury need not be instructed that the prosecution has the burden of proof or that there is a presumption for life ( ibid.); the jury may consider prior unadjudicated criminal activity under section 190.3, factor (b) ( People v. Kipp, supra, at p. 1138, 113 Cal.Rptr.2d 27, 33 P.3d 450); jury consideration of a defendant's prior felony convictions under section 190.3, factor (c), does not constitute double jeopardy or violate fundamental fairness ( People v. Lewis, supra, 25 Cal.4th at pp. 659-661, 106 Cal. Rptr.2d 629, 22 P.3d 392); and the qualifiers extreme, substantial, and reasonably in section 190.3, factors (d), (g), and (f), do not prevent jury consideration of relevant mitigating evidence ( People v. Kipp, supra, at p. 1138, 113 Cal.Rptr.2d 27, 33 P.3d 450; People v. Jenkins, supra, 22 Cal.4th 900, 1054-1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044; People v. Stanley (1995) 10 Cal.4th 764, 842, 42 Cal.Rptr.2d 543, 897 P.2d 481). We are not persuaded that we should reconsider our previous rulings on these issues. Defendant makes one apparently novel claim, which is that our law is invalid because at the penalty phase the defendant may not reopen the issue of his guilt of the capital charges and may present evidence of his innocence only in support of a lingering doubt argument. He suggests that the evidence he presented during the penalty phase here might have caused the jury to entertain a reasonable doubt that robbery was the motive for his killing of Pedersen, rather than anger at a sexual advance by Pedersen or some other idiosyncratic motive. Defendant does not argue, however, that he was precluded from presenting any evidence of his innocence at the guilt phase, nor does he offer authority precluding a death penalty scheme in which the issues of guilt and penalty are determined at separate phases of the trial. We are not persuaded that our law is invalid merely because it does not permit full relitigation of innocence at the penalty phase.",issues
+720,1058686,1,3,"Resolution of this case requires a review of the chancellor's findings of fact and conclusions of law. Whether an injury resulting from an idiopathic loss of consciousness is compensable under the Workers' Compensation Act is a question of law. We review a trial court's conclusions of law de novo upon the record with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997). The determination of whether an injury arose out of and in the course of a worker's employment is a question of fact. Our review of a trial court's findings of fact in a workers' compensation proceeding is de novo upon the record of the trial court, with a presumption of correctness given to the trial court's findings of fact, unless the evidence preponderates against it. Tenn. Code Ann. § 50-6-225(e)(2) (Supp.2003); McCormick v. Aabakus Inc., 101 S.W.3d 60, 62 (Tenn.Workers Comp.Panel 2000). This Court conducts an independent examination of the record to determine where the preponderance of the evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn.1991).",standard of review
+721,2364446,2,4,"[¶ 17] The court found by clear and convincing evidence that Walter was mentally ill and because of [his] illness poses a likelihood of serious harm. See 34-B M.R.S.A. § 3864(6)(A)(1) (Pamph. 2003). When the burden of proof is clear and convincing evidence, we review the trial court's findings to determine whether the fact-finder reasonably could have been persuaded that the required findings were proved to be highly probable. Spooner v. Spooner, 2004 ME 69, ¶ 30, 850 A.2d 354, 363. [¶ 18] Walter argues that without the testimony of the second examiner, the required findings of mental illness and likelihood of serious harm were not highly probable. However, the court could have been persuaded that it was highly probable that Walter was mentally ill and that his illness posed a likelihood of serious harm from the testimony and report of Dr. Leone alone. The additional testimony by Grace and Walter supported Dr. Leone's observations and expert opinion. The evidence was sufficient to meet the clear and convincing standard of proof. The entry is: Judgment affirmed.",sufficiency of the evidence
+722,6329112,1,1,"Anthony L. Burries’ motion for default judgment was denied, and his motions seeking postconviction relief were dismissed. He appeals. We affirm.",introduction
+723,6317070,1,1,"Although Lewondowski challenges the sufficiency of the evidence in his last point on appeal, we must address it first for purposes of double jeopardy. See Sweet v. State, 2011 Ark. 20, at 9, 370 S.W.3d 510, 518. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Gillard v. State, 372 Ark. 98, 100–01, 270 S.W.3d 836, 838 (2008). We have repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Lewondowski argues that the evidence that he was the perpetrator of the three homicides was “underwhelming and missing.” He points to the lack of an eyewitness, confession, or 3 forensic evidence to directly tie him to the shootings. Furthermore, he seeks to cast doubt on James Coble’s testimony tying him to the victims around the time of their deaths and concealing the homicides by moving cars. He suggests that Coble had “an unusual amount of motivation to point the finger at [him].” However, this court does not weigh the evidence presented at trial or assess the credibility of the witnesses, because those are matters for the fact-finder. Halliburton v. State, 2020 Ark. 101, at 7, 594 S.W.3d 856, 862. In this case, the circumstantial evidence presented, along with the testimony from witnesses that Lewondowski confessed to killing multiple people, constitutes substantial evidence supporting the jury’s verdicts of guilt. We hold that the evidence was sufficient to support the verdicts and affirm on this point.",sufficiency of the evidence
+724,1680416,1,4,"¶ 11. Chambliss also contends that the evidence was insufficient to support the conviction for aggravated assault against Miller and that he is entitled, as a matter of law, to reversal and discharge. When reviewing the sufficiency of the evidence, this Court looks at the lower court's ruling `on the last occasion when the sufficiency of the evidence was challenged.' Id. (quoting Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995) (citations omitted)). The last occasion upon which Chambliss challenged the sufficiency of the evidence was in his motion for a new trial. Therefore, we will consider all of the evidence presented throughout the course of the trial. ¶ 12. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush, 895 So.2d at 843, (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted)). Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient. Id.",sufficiency of the evidence
+725,2599773,1,3,"¶ 22 Kronich's claim that the trial court violated his rights under the Confrontation Clause by admitting a DOL certification qualifies as a claim of manifest error affecting a constitutional right. Therefore, we reach the merits of his claim, despite his failure to properly preserve the issue below. As to the merits, we hold that the trial court did not error in admitting the DOL certification describing the status of Kronich's driving privilege because it is not testimonial evidence for purposes of the Crawford analysis. Accordingly, we affirm the decision of the Court of Appeals upholding Kronich's conviction for third degree DWLS.",conclusion
+726,2621781,1,6,"[¶ 22] When addressing a claim that the evidence is not sufficient to sustain the conviction for a crime, we apply this standard: We assess whether all of the evidence which was presented was adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a fact-finder when that evidence is viewed in a light most favorable to the State. We will not substitute our judgment for that of the jury when we apply that rule, and our only duty is to determine whether a quorum of reasonable and rational jurors would, or even could, have come to the same result as the jury actually did in the case under review. Robinson v. State, 11 P.3d 361, 368 (Wyo.2000) (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)). [¶ 23] Applying this standard to the evidence we have set out in detail above, we conclude that a reasonable and rational trier of fact could conclude that Mueller was guilty of either the greater or the lesser offenses defined by Wyo. Stat Ann. § 6-5-204(a) and (b), or have acquitted him. [9]",sufficiency of the evidence
+727,3163201,1,1,"The hearing judge found the following facts, which we summarize. On or about June 21, 2000, this Court admitted Thomas to the Bar of Maryland. At all relevant times, Thomas was a solo practitioner in Allegany County. Thomas’s Representation of Lee In or about October or November 2013, Lee was injured during an altercation with Kameron Kamp (“Kamp”). Lee’s injuries included a broken jaw, and necessitated that Lee have his jaw wired shut and have his arm placed in a sling. Lee and his family incurred 4 Thomas failed to attend oral argument or file anything in this Court. Thus, Thomas has not asked us to review, and we do not review, the propriety of the hearing judge’s issuance of the preliminary injunction that prohibited Thomas from practicing law. -3- medical expenses as a result of his injuries. Lee pressed criminal charges of assault against Kamp, and Kamp pressed criminal charges of assault against Lee. On or about January 6, 2014, Lee’s mother, Renée Walker (“Walker”), retained Thomas to represent Lee in the defense of the criminal charge against him. Thomas charged a flat fee of $750, which was paid in full. Thomas told Walker also that it would be possible for Lee to sue Kamp in an attempt to obtain compensation for Lee’s medical expenses. Walker provided Thomas with a list of people who could testify on Lee’s behalf. Thomas failed to interview or subpoena any of the people. A hearing in Lee’s criminal case was scheduled for March 4, 2014. On the night of March 3, 2014, Walker telephoned Thomas. This was the first time that Lee or Walker had communicated with Thomas since January 2014. Thomas told Walker that he could not attend the hearing for personal reasons. Thomas failed either to offer to find another lawyer who could attend the hearing or raise the possibility of requesting a postponement. On March 4, 2014, without Thomas, Lee and Walker attended the hearing, at which they learned that the State planned to dismiss the charges against both Lee and Kamp. Lee and Walker never heard from Thomas again, despite Walker’s attempts to discuss a possible civil action against Kamp and/or a refund of Thomas’s fee.5 Thomas’s Representation of Sines In November 2010, Sines separated from her then-husband. Sines retained Thomas 5 At the evidentiary hearing in this attorney disciplinary proceeding, Walker testified that, in the complaint that she filed against Thomas with the Commission, Walker stated that Thomas “told [her that] he would do a civil case, but nothing [] happened. He d[id]n’t return any of [her] phone calls.” -4- to represent her for purposes of her separation and to obtain a divorce when she had been separated for one year. Thomas charged Sines a flat fee, which Sines paid in full. Thomas drafted a separation agreement, gave it to Sines, and told Sines to give it to her then-husband.6 Thomas also made inquiries on Sines’s behalf regarding title to some Holstein cattle.7 These were the only two services that Thomas ever performed as to Sines’s divorce matter; Thomas never filed a complaint for divorce on Sines’s behalf. In or about July 2011, Sines learned that her then-husband may have molested her daughter, a vulnerable adult with a disability. Sines retained Thomas to represent her for purposes of becoming her daughter’s guardian. Thomas charged Sines a fee of approximately $1,000, which Sines paid in full. Two doctors evaluated Sines’s daughter and provided the two medical/psychiatric opinions that were necessary for the appointment of a guardian of the person of a disabled person under Maryland Rule 10-202(a).8 Thomas 6 The hearing judge found that Thomas “gave [Sines] some documents relating to the separation[,] which she was to give to her estranged husband.” At the evidentiary hearing in this attorney disciplinary proceeding, Sines testified that Thomas “drew up a paper[] separation . . . [and] asked [Sines] to deliver it to” her then-husband. 7 At the evidentiary hearing in this attorney disciplinary proceeding, Sines testified that she had registered some Holstein cattle in her name, but then, without Sines’s knowledge, “[s]omebody removed them out of [her] name and put them in [her] daughter’s name[.]” Sines testified that, on her behalf, Thomas telephoned a member of “the Holstein Association” to inquire about the transfer of title to the Holstein cattle. 8 Maryland Rule 10-202(a) states, in pertinent part: [I]f guardianship of the person of a disabled person is sought, the petitioner shall file with the petition signed and verified certificates of (1) two physicians licensed to practice medicine in the United States who have examined the disabled person, or (2) one licensed physician who has examined the disabled person and one licensed psychologist or certified clinical social worker who has seen and evaluated the disabled person. -5- needed to file a petition for guardianship of the person of a disabled person within twentyone days of the latest dated doctors’ evaluations. See Md. R. 10-202(a) (“An examination or evaluation by at least one of the health care professionals under this subsection shall occur within 21 days before the filing of the petition [for guardianship of the person of a disabled person].”). Thomas failed to file a petition for guardianship of the person of a disabled person within the required twenty-one-day window, thus forcing Sines and her daughter to experience the expense and inconvenience of having Sines’s daughter evaluated again. Sines provided Thomas with the names of several people, including Sines’s daughter’s pediatrician, who would have testified in support of Sines becoming her daughter’s guardian. However, Thomas failed to interview any of the people; and, at the guardianship hearing, Thomas failed to call any witnesses. The trial court did not appoint Sines as her daughter’s guardian. In January 2012, Sines texted Thomas to ask about the delay in proceeding with her divorce matter. Thomas informed Sines that he was busy. In March 2012, on several occasions, Sines unsuccessfully attempted to arrange an appointment with Thomas. On March 26, 2012, Thomas e-mailed Sines to tell her to review a complaint for divorce that was attached to the e-mail. Sines was unable to download and view the complaint for divorce. On March 28, 2012, Sines e-mailed Thomas to tell him to mail her a paper copy of the complaint for divorce. Despite sending messages to Thomas in April, May, and June 2012, Sines never heard from Thomas again. In June 2012, Sines filed a complaint against Thomas with the Commission. Afterward, Thomas refunded “the prepaid fees” that he had -6- charged Sines.9 The Conditional Diversion Agreement On or about March 20, 2013, Thomas and Bar Counsel entered into a “Conditional Diversion Agreement” that partially arose out of Sines’s complaint to the Commission. In the Conditional Diversion Agreement, which the hearing judge admitted into evidence, Thomas agreed to the following conditions, among others: [Thomas] will abstain from all use of alcohol and/or opiates[.] During the pendency of the [Conditional Diversion] Agreement, [Thomas] will attend Alcoholics Anonymous meetings at least once per week and provide Bar Counsel with proof of his attendance[.] Within thirty [] days of the date of th[e Conditional Diversion] Agreement, [Thomas] will arrange for counseling through the Alleg[]any County Health Department. [Thomas] will . . . waive confidentiality to the extent necessary for Bar Counsel to confirm that [Thomas] is receiving counseling for his substance abuse problems and that [Thomas] is abstaining from the use of alcohol and/or opiates[.] If, during the duration of th[e Conditional Diversion] Agreement, [Thomas] resumes the use of alcohol or opiates, [Thomas] will immediately voluntarily cease practicing law, notify all active clients, return files and unearned fees[,] and withdraw his appearance in any and all [c]ourt proceedings. (Paragraph breaks omitted).10 On or about May 15, 2013, the Commission approved the Conditional Diversion Agreement. On or about July 25, 2013, in accordance with the Conditional Diversion Agreement, Thomas enrolled in an “Outpatient Addictions Program” that was conducted by the Allegany County Health Department. 9 The record reveals that Thomas refunded the fee that Sines paid for her separation and divorce matter. It is unclear whether Thomas also refunded the fee that Sines paid for her guardianship matter. 10 In the Conditional Diversion Agreement, Thomas also agreed to “provide proof that he ha[d] refunded $1,500 to” Sines in connection with her separation and divorce matter. -7- On or about February 24, 2014, Thomas successfully completed an “Intensive Outpatient Program” and advanced to another program that required attending counseling sessions once per week. Between February 24, 2014 and July 2, 2014, however, Thomas attended only seven counseling sessions. As a result, on or about July 2, 2014,11 Thomas was discharged from the program. On or about August 26, 2014, Thomas again sought treatment. The Allegany County Health Department allowed Thomas to enroll in the program from which he had been discharged, provided that Thomas took a urinalysis test on that day. Thomas failed to take the urinalysis test, and was not re-enrolled in the program. On August 28, 2014, Thomas consulted with a counselor and was again enrolled in the Intensive Outpatient Program, which now required attending counseling sessions three times per week. Thomas again failed to attend the required number of counseling sessions. As a result, Thomas was discharged yet again from the Intensive Outpatient Program. Thomas refrained from informing Bar Counsel of his two discharges, and also refrained from informing Bar Counsel that he was using alcohol and/or opiates. The hearing judge specifically found that Thomas’s “failure to keep Bar Counsel informed was[] an attempt to continue practicing law and avoid the consequences of failing to attend the [counseling] program[s] and maintain his sobriety.” On September 16, 2014, Thomas’s former counselor informed Bar Counsel that Thomas had been discharged from the Intensive Outpatient Program. As a result, on or 11 The hearing judge inadvertently referred to July 2, 2013. -8- about December 17, 2014, the Commission revoked the Conditional Diversion Agreement.",facts
+728,3134382,1,3,"For the reasons stated, we affirm in part and reverse in part the appellate court's judgment. We reverse the appellate court's holding reversing the circuit court's dismissal of Morrison's third-party action against Ricky Baker. We affirm the appellate court's holding reversing the circuit court's dismissal of Morrison's third-party action against Tony Baker. We also affirm the appellate court's holding reversing the circuit court's order limiting Tony Baker's contribution liability to 75% of workers' compensation benefits paid. To the extent that the appellate court's judgment addressed the issue of whether the employer must pay section 5(b) fees to the plaintiff or his attorney, that holding is vacated. This cause is remanded to the circuit court for further proceedings consistent with this opinion. Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded.",conclusion
+729,1953123,1,2,"On February 5,1988, Harry Grams and his son Leroy Grams opened checking account No. 59-820-1 with the bank in the name of D & C Cattle. Both of them were authorized to draw checks on the account, and the father indicated to the loan officer that he and Leroy Grams wanted to purchase cattle through D & C Cattle. Five days later, on February 10, 1988, the father signed a note in the amount of $2,500 in the name of D & C Cattle. He also signed a financing statement in the name of D & C Cattle which was secured by all of D & C Cattle's livestock. The proceeds of that loan were placed in the newly opened checking account. Additional loans were made to D & C Cattle on a need basis, whether daily or when checks were being charged to the account. When new loans were needed, the loan officer would contact either the father or Leroy Grams. In every instance but one, the father signed the notes. The proceeds of the new loans would always be placed in checking account No. 59-820-1. On April 3, 1992, the notes were refinanced and rolled into one note, and on February 10, 1993, the financing statement was continued. None of the checks written on the account were signed by the father; there was only one checkbook, and it was in Leroy Grams' possession. The first few checks in Leroy Grams' possession were not printed with his name and address, although three of them had D & C Cattle Co. typed in the upper left-hand corner. On one occasion, Leroy Grams wrote D/C Cattle Co in the upper left-hand corner of a check written to purchase cattle. After these checks had been written, Leroy Grams began using checks he had ordered through the bank, bearing the name Fantasy Acre Ranch in the upper left-hand corner. However, the checking account number remained 59-820-1. Fantasy Acre Ranch was the trade name Leroy Grams began using in February 1988. Twentythree checks were written to purchase cattle between February 6, 1988, and August 14, 1992. The signature card on file with the bank authorizing both the father and Leroy Grams was never changed, but beginning in October 1988, bank statements on the account were sent to Fantasy Acre Ranch, c/o Leroy Grams. No notes were ever signed by Fantasy Acre Ranch; all loan proceeds placed in checking account No. 59-820-1 were from notes signed on behalf of D & C Cattle. In addition to the loan proceeds, funds from a variety of sources were deposited into the account. Items other than cattle were purchased with checks drawn on the account. On May 1, 1991, the bank obtained D & C Cattle's financial statement signed by both the father and Leroy Grams which listed as assets of D & C Cattle 63 stock cows, 19 heifers, 6 bulls, and 59 calves. On April 3, 1992, the bank obtained another D & C Cattle financial statement; it also was signed by both the father and Leroy Grams and listed as assets of D & C Cattle 65 stock cows, 30 heifers, 4 bulls, and 30 calves. On March 10, 1993, the bank obtained a document entitled Review of Credit signed by Leroy Grams and listing as assets of D & C Cattle 71 stock cows, 13 calves, 40 feeders, and 3 bulls. On March 30, 1993, the father died. His other son, Robert Grams, is his successor in interest as trustee of a trust created by the father before his death. After the father's death, the D & C Cattle note went into default and was accelerated. Leroy Grams failed to honor the bank's demanded payment, and this suit followed.",facts
+730,4470175,1,4,"The defendant argues that the trial justice erred when he admitted evidence of the text messages based on the state’s failure to authenticate the messages under Rule 901. Specifically, defendant argues that, to authenticate evidence of text messages, the proponent must establish authorship through either direct or circumstantial evidence. According to defendant, to establish authorship through circumstantial evidence, the proponent must produce evidence of distinctive characteristics of the text messages. The defendant argues that, because the state did not produce either direct evidence or evidence of distinctive characteristics of the text messages, it did not establish that the text messages were authored by defendant and, therefore, did not properly authenticate the evidence in accordance with Rule 901. Reliability is the linchpin of the law of evidence. The authentication requirement of Rule 901 is a threshold requirement to establishing the reliability of a matter of evidence. O’Connor v. Newport Hospital, 111 A.3d 317, 322 (R.I. 2015). Rule 901 provides, in part: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to Rule 4(b) of the Supreme Court Rules of Appellate Procedure (“A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof.”); see also Toegemann v. City of Providence, 21 A.3d 384, 386 n.3 (R.I. 2011). -6- support a finding that the matter in question is what its proponent claims.” R.I. R. Evid. 901(a). “The burden of proof for authentication, however, is slight.” Adams, 161 A.3d at 1199 (brackets omitted) (quoting O’Connor, 111 A.3d at 323). Indeed, to authenticate evidence under Rule 901, the proponent of such evidence does not face a high hurdle. “In making Rule 901 determinations, trial justices must decide whether there is enough support in the record to conclude that it is ‘reasonably probable’ that the evidence is what its offeror proclaims it to be.” Adams, 161 A.3d at 1199 (brackets and alteration omitted) (quoting O’Connor, 111 A.3d at 323). “If so, then the evidence’s [per]suasive force is for the jury to decide.” Id. (quoting O’Connor, 111 A.3d at 323). “Thus, a trial justice need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” Id. (emphasis omitted) (quoting O’Connor, 111 A.3d at 323). This Court has not yet spoken on the issue of authenticating text message evidence. But we have addressed the use of text message evidence in the context of a probation violation hearing and acknowledged that “[s]trict application of the rules of evidence is not required at a probation violation hearing.” State v. McLaughlin, 935 A.2d 938, 942 (R.I. 2007) (quoting State v. Rioux, 708 A.2d 895, 898 (R.I. 1998)). In McLaughlin, we held that a photograph of the complainant’s phone, which depicted text messages purportedly sent by the defendant, was properly authenticated by the testimony of a police officer who took the photograph. Id. We reasoned that the officer’s testimony that he examined the phone, and that he determined that the text messages were unaltered and had been sent from the same number that officers used to contact the defendant, was sufficient for authentication. Id. In O’Connor, this Court considered, as a matter of first impression, whether a printout of an e-mail was properly authenticated under Rule 901. O’Connor, 111 A.3d at 323. We stated -7- that an e-mail may be authenticated by direct evidence, “through the testimony of a witness with personal knowledge that the proffered exhibit is what it is claimed to be, such as the author or recipient of the email[,]” or by “circumstantial evidence, including ‘appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’” Id. at 325 (brackets omitted) (quoting R.I. R. Evid. 904(b)(4)). Accordingly, we held that the testimony of a witness who was neither the sender nor the recipient of the e-mail, but who merely recited the identity of the purported sender and summarized the contents of the message, was insufficient for authentication. Id. There is, however, a fundamental difference between text messages, which generally are sent to one person known to the sender, and an e-mail. When, as here, the Rhode Island rule mirrors the federal rule, we look to decisions of federal courts for guidance. E.g., Chhun v. Mortgage Electronic Registration Systems, Inc., 84 A.3d 419, 422 (R.I. 2014); Hall v. Kuzenka, 843 A.2d 474, 476 (R.I. 2004); Heal v. Heal, 762 A.2d 463, 466-67 (R.I. 2000). In United States v. Davis, 918 F.3d 397 (4th Cir. 2019), for example, the Fourth Circuit Court of Appeals addressed the use of text messages and held that authentication of text message evidence under Rule 901 of the Federal Rules of Evidence requires “only a prima facie showing that the ‘true author’ is who the proponent claims it to be.” Davis, 918 F.3d at 402; see also United States v. Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016) (holding that, for purposes of authentication under Rule 901 of the Federal Rules of Evidence, the proponent need only produce enough evidence to support a finding that the person sent and received the text messages); United States v. Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (holding that conclusive proof of authorship is not required for authentication under Rule 901 of the Federal Rules of Evidence). “And the prima facie showing ‘may be accomplished largely by -8- offering circumstantial evidence that the documents in question are what they purport to be.’” Davis, 918 F.3d at 402 (quoting United States v. Vidacak, 553 F.3d 344, 350 (4th Cir. 2009)). The Davis court determined that the proponent produced enough circumstantial evidence to properly authenticate evidence of text messages exchanged between the accused, who was charged with conspiracy, and a confidential informant. Davis, 918 F.3d at 402. First, the court reasoned, the context and purpose of the text messages—to arrange the location of the controlled buy and the price for the contraband—supported the conclusion that the defendant was the author of the text messages because the defendant was witnessed arriving at the agreed-upon location and engaging in the controlled buy. Id. Second, before the controlled buy, the defendant spoke on the phone with the informant, and the defendant testified at trial that the telephone call was made to “the same number that the informant was texting” to set up the controlled buy. Id. at 403 (brackets omitted). Finally, there was no evidence that the contact information linked to the number from which the text messages were sent referred to any person other than the defendant. Id.; see United States v. Fults, 639 F. App’x 366, 373 (6th Cir. 2016) (holding that the content of the text messages and testimony about previous communications with the author using the same number were enough to properly authenticate the evidence). Here, unlike the proffered e-mail in O’Connor, the state produced evidence beyond a mere recitation of the author’s identity and summary of the contents of the proffered evidence. As in Davis, the state presented testimony about previous communications between Victoria and defendant and produced evidence as to the context and timing of the text messages to establish authorship. Both the incriminating context and timing of the text messages are not only probative of guilt, but highly relevant for authentication. Victoria also testified that defendant personally provided her with his cell phone number about a year before the assault and that she saved it in her contacts under “Steph.” Victoria exchanged text messages with the number -9- associated with “Steph” on multiple occasions prior to the date of the assault. For example, Victoria would text “Steph” to arrange transportation to and from school and Victoria’s therapy appointments. And, when Victoria texted “Steph” to pick her up, defendant picked her up. Additionally, the text messages depicted in the screenshot were not only apologetic in nature but were also sent to Victoria within hours of the assault. We conclude that the state produced sufficient circumstantial evidence to establish that the defendant authored the text messages. We therefore hold that the trial justice did not abuse his discretion in admitting the text messages, because the evidence was properly authenticated under Rule 901. Any doubt as to whether the defendant authored the text messages was for the jury to resolve.",analysis
+731,2759948,1,3,"Some records are exempt from disclosure under the PRA. Agencies withholding or redacting records must identify the specific exemptions they believe apply and provide a brief explanation as to why. We hold that the city of Lakewood violated this requirement and that Koenig is entitled to attorney costs and fees for vindicating his right to receive a response. We remand to the trial court for entry of an attorney fee award in accordance with this opinion. 13 City ofLakewood v. Koenig, No. 89648-8 WE CONCUR: 14 City of Lakewood v. Koenig No. 89648-8 MADSEN, C.J. (dissenting)-The Public Records Act (PRA) grants costs and reasonable attorney fees for vindicating the right to receive a response to a public record request within a reasonable time. RCW 42.56.550(4). The plain language of the statute simply entitles a person to receive a timely answer. Although we have interpreted response to include the right to receive a brief explanation, Sanders v. State, 169 Wn.2d 827, 848,240 PJd 120 (2010), the majority now expands brief explanation to mean that an agency must correctly justify its response when it redacts or withholds a document. The PRA does not support this result.",conclusion
+732,1160878,1,1,"1. Does a rate of $8 per day for maintenance, a living allowance for food and lodging for injured seamen, effectively abrogate the right to maintenance even though the rate was negotiated pursuant to a collective bargaining agreement (CBA)? 2. Where a seaman agreed to employment for a voyage, did the seaman's voyage conclude for purposes of his entitlement to wages when the vessel, an oil tanker, finished its voyage from Anacortes to Portland?",issues
+733,886680,1,3,"¶ 14 We review the evidence in a criminal trial in the light most favorable to the prosecution to determine whether the trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We review a district court's imposition of a sentence for legality only. The standard of review of the legality of a sentence is whether the sentencing court abused its discretion. State v. McCaslin, 2004 MT 212, ¶¶ 16-17, 322 Mont. 350, ¶¶ 16-17, 96 P.3d 722, ¶¶ 16-17 (internal citations omitted).",standard of review
+734,861835,1,4,"¶33. For the foregoing reasons the judgment of the circuit court is reversed and judgment is rendered in favor of Memphis Hardwood. ¶34. REVERSED AND RENDERED. PRATHER, C.J., SULLIVAN, P.J., ROBERTS AND SMITH, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, P.J., AND MILLS, J. WALLER, J., NOT PARTICIPATING.",conclusion
+735,1991200,1,1,"Petitioners were indicted on December 11, 2002, in a twenty-count indictment in which they were charged, individually and collectively, with one count of attempted second-degree murder in violation of Section 2-204 of the Criminal Law Article, Maryland Code (2002); two counts of first-degree assault in violation of Section 3-202 of the Criminal Law Article, Maryland Code (2002); two counts of second-degree assault in violation of Section 3-203 of the Criminal Law Article, Maryland Code (2002); two counts of robbery with a dangerous weapon in violation of Section 3-403 of the Criminal Law Article, Maryland Code (2002); one count of first-degree burglary in violation of Section 6-202 of the Criminal Law Article, Maryland Code (2002); one count of third-degree burglary in violation of Section 6-204 of the Criminal Law Article, Maryland Code (2002); one count of theft over five hundred dollars in violation of Section 7-104 of the Criminal Law Article, Maryland Code (2002); one count of theft under five hundred dollars in violation of Section 7-104 of the Criminal Law Article, Maryland Code (2002); two counts of robbery in violation of Section 3-402 of the Criminal Law Article, Maryland Code (2002); one count of use of a handgun in the commission of a crime in violation of Section 4-204 of the Criminal Law Article, Maryland Code (2002); and counts for conspiracy to commit first-degree assault, armed robbery, burglary, theft over five hundred dollars, robbery, as well as conspiracy to use a handgun in the commission of a crime. Edward Wallace Benson, III also was charged in connection with the same crime. [1] Subsequently, Petitioners filed separate motions to suppress photograph identifications made by various witnesses who had identified either or both of them. The Circuit Court for Cecil County held a pre-trial suppression hearing, which lasted several days, concerning both out-of-court and prospective in-court identifications by four witnesses — the two victims, Damon Twyman and Daniel Draper, and two other eyewitnesses, Alisabel Ortega and Sabrina Rogers. Most significant for this appeal, Ms. Rogers photographically identified seven different individuals at different times before trial as being tied to or involved in the incident, including the three co-defendants, although the crime purportedly involved only three individuals. At the suppression hearing, Ms. Rogers's out-of-court and in-court identifications of Earl were ruled to be inadmissible because the photographic identification of Earl was obtained through impermissibly suggestive procedures and was not independently reliable enough to permit an in-court identification. The trial judge noted that Ms. Rogers was shown six photograph arrays in which she identified six different individuals. Ms. Rogers was then shown a seventh array, which was the same as photo array number three, but modified so that Earl's picture was substituted. During this display, the detective told Ms. Rogers they were still looking for the third individual involved. The trial court found that Ms. Rogers's out-of-court identification was impermissibly suggestive because of the detective's comment and because Ms. Rogers had effectively ruled out every other person in the seventh photographic array prior to the substitution of Earl's picture. The judge also found that Ms. Rogers's identification of Earl was not independently reliable enough to allow an in-court identification because Ms. Rogers had previously identified an individual who was not involved in the crime as the third suspect, who she also thereafter identified as Earl. Following the court's ruling, the State asked for clarification: [STATE]: The Court indicated that it was suppressing the identification of Sabrina Rogers as to both in-court and — I'm sorry, both out-of-court and in — court. I have to say the State did not feel that there was evidence presented to rise to the level of taint; therefore, the State did not try to elicit any information from her as to reliability. And while the suppression hearing is concluded and I understand and accept the Court's ruling with respect to the out-of-court identification, the concern that I have is that I believe that the State may be able to establish reliability as to the in-court identification. [COURT]: Well, I think, you know, that I don't want to have more process than is due rather than less process than is due most of the time, but I think your argument was and I think it's correct that the burden in the first instance is on the defense to show constitutional or show impermissible suggestion; but the burden clearly, by all the case law that everybody has cited and I've looked at in this case indicates that if, in fact, they make it on that issue, then the burden shifts to the State by clear and convincing evidence; and in my opinion they did make it on that. I understand that in your opinion they did not. And you might be righter that I, but nevertheless it did shift and Sabrina Rogers was here and was, in fact, examined. And it's my finding that the evidence did not meet your burden by clear and convincing evidence at this point. Basically the suppression hearing is over.    [STATE]: And to the extent that the exclusion of an out-of-court identification does not ipso facto exclude an in-court identification. [COURT]: If it's got a separate basis. [STATE]: I want to let everyone know that if that's the case, I would certainly be trying to bring it forward at the time of trial. And, again, I understand the Court's ruling today and that's what we — [COURT]: Well, at this point I don't even know if I'll be the trial judge. So whoever the trial judge is, I suppose if you want to raise that issue I'll have to deal with it, but my ruling is that [the in-court identification is] suppressed. The judge denied the motion to suppress Ms. Rogers's identification of Hubbard and denied both Petitioners's motions to suppress the identifications from Mr. Draper, Mr. Twyman, and Ms. Ortega. [2] The State persisted in its joint prosecution of Hubbard and Earl. The jury was selected and sworn before the same judge that conducted the suppression hearing. After opening statements from the State and both Petitioners's counsels, the State requested the opportunity to establish a separate and independent basis for an in-court identification of Earl by putting Ms. Rogers on the witness stand. The trial judge granted the request, and after the jury was excused for the day, the State called Ms. Rogers to testify, but the trial court ruled that there was no separate and independent basis for an in-court identification and granted Earl's motion to suppress. The following morning, before the jury was brought into the courtroom, the State indicated that it was going to call Ms. Rogers as a witness and raised a possible conundrum. The prosecutor was concerned that when Ms. Rogers testified against Hubbard, Hubbard's attorney would cross-examine Ms. Rogers based on her numerous identifications of individuals other than Hubbard, which was concededly appropriate; the prosecutor insisted that she should have the ability to rehabilitate Ms. Rogers by showing that she had identified Earl, an identification which had been suppressed by the trial court. When Earl's attorney objected that such inquiry would be fundamentally unfair to Earl, the trial judge agreed, and stated that a curative instruction would not be helpful, and ordered that no party ask Ms. Rogers any questions about identifying Earl. [3] The Court, sua sponte, then raised the specter of a severance: [COURT]: I think in this joint trial, it's incumbent upon me not to let the State or the other defendant undo the suppression ruling in regard to Gary Earl. Now, the alternative, let me say, because we have not yet heard a witness, although we did swear the jury, might be to sever these trials, but I'm not sure whether we get that or not. [HUBBARD'S ATTORNEY]: I think, Your Honor, that's the only, that's the only alternative, because for the court to tell Mr. Hubbard that he can't bring to the jury's attention that identifications were made and seven rather than six were made by this witness, which is, in fact, the truth, and that is an exculpatory piece of evidence to my client, to prevent me from being able to bring that to the jury's attention is denying my client's right of confrontation. Immediately thereafter, the trial court questioned Hubbard's attorney regarding whether he could effectively cross-examine Ms. Rogers without specifically naming Earl. Hubbard's attorney argued that it was possible — he could list every person identified by Ms. Rogers but refer to Earl's identification as another person that is not Hubbard — however, along with Earl's attorney, he questioned whether that limitation would contravene the decision to suppress the identification because the jury could imply that the un-named identification was that of Earl. [4] The issue of declaring a mistrial was then raised: [COURT]: All right, [The Prosecutor], what's your belief or position in regard to severance, jeopardy and mistrial? [STATE]: Your Honor, I would have to — I think that it's occasion for a mistrial. I have raised I believe on the record but I certainly had raised it with all three defense counsel at the time of the first hearing you all really planning to be heard together, these cases are going to be heard together, because we have these identifications that are essentially inextricably intertwined, I believe. You know, it has now reared its head one of those potentials for something that could be used against one but not used against another. The only thing that we did yesterday was we reduced the equation by one, but certainly if the court will recall, I mean we've got the same sort of situation with the other co-defendant, I believe. I believe — may be wrong about that, maybe Benson ID's are all in, but nevertheless at this point I think that a mistrial is the appropriate undertaking. Hubbard's and Earl's attorneys both objected to the granting of a mistrial. The trial judge, however, instead fashioned his own remedy, ruling that the parties could refer to the seventh identification, that of Earl, but could not refer to the seventh identification of Earl by name. [5] The prosecutor continued his objection, and insisted that manifest necessity existed for a mistrial because the alternative suggested by the judge would hinder the ability of the State to rehabilitate Ms. Rogers: [STATE]: Your Honor, from the State's perspective, I don't see where that gets anything in terms of potential rehabilitation. In other words, again, the rehabilitation effect I think is evident by the fact that, yes, she named two of these persons who are standing trial here today. As we all know, in fact she named three of the defendants who are standing trial. So to simply say that the State can't show that she identified Mr. Earl is to say that bolsters the idea that she made seven identifications regarding three persons and, again, that only one of those is before the jury in terms of her being able to say that's the one I identified. [COURT]: Well, let me ask you this: Do you believe that this is an example of manifest necessity for a mistrial? You understand that a retrial will be barred unless there's manifest necessity. [STATE]: I understand, Your Honor, and that's why, again, I brought it to the court's attention, because I think we need to have a ruling on this. I believe on the basis of the position of the defendants — and I fully understand the position of the defendants, but I believe that on the basis of their respective positions, that it's manifest necessity because I think that otherwise it would deny the State the right to rehabilitate a witness in a manner or rehabilitation that I think can be effective. The effectiveness of simply saying that she actually identified seven people, as I say, that doesn't rehabilitate her at all. Rehabilitation comes from saying two of those persons are seated in this courtroom and that she identified another co-defendant; therefore, either severance or mistrial. You know, if we sever the case, then I can go forward. I'm not sure. [COURT]: Thing is this jury has now had opening statements having to do with two defendants, has been told various things about the evidence from the State, intends to proceed against two defendants. Severing one of them and continuing with the other one at this point seems like a very confusing way for the jury. [STATE]: Seems to me — and, again, I'm not — foreclosing any argument from defense counsel, but it seems to me that it may be prejudicial to one or the other of the defendants, particularly the one who is still sitting at counsel table; therein, as I say, Your Honor, I think lies the necessity, the manifest necessity for a mistrial. I'm not saying that's the — it's a Hobson's choice, only perhaps three choices rather than the two, but the bottom line is I don't see how due process is afforded to both sides without doing just that.    [COURT]: Well, [The Prosecutor] is exactly right, it's a Hobson's choice, but if I have one paramount duty that's more important than any others, it is to safeguard the rights of parties before the court, defendants and the State, actually. Well, I agree that it's difficult to see how I can fashion a remedy, although I was in the process of arriving at a remedy, but upon further reflection, it seems to me that any remedy that I fashion has got to be prejudicial to somebody, prejudicial to one of the defendants or to the other or maybe both of them, and/or prejudicial to the State for that matter. Clearly the issue of retrial after mistrial doesn't have anything to do with the benefit to who. I mean, it could be mistrial could have been declared and have extended a benefit to the defendant, and that's not a factor in the analysis. Upon further consideration of [The Prosecutor]'s argument, I believe that this is a manifest necessity and I will, therefore, declare a mistrial in this matter and grant severance on my own motion of all three of these cases. (emphasis added) Earl and Hubbard filed separate motions to dismiss their indictments on double jeopardy grounds, which were denied after hearings, by the same judge who had declared the mistrial. Petitioners appealed to the Court of Special Appeals, which affirmed in a reported opinion. Hubbard v. State, 166 Md. App. 250, 262, 887 A.2d 1120, 1127 (2005). The intermediate appellate court held that because the judge considered the possible alternatives, he had exercised his sound discretion to find manifest necessity to declare a mistrial. Id. at 261-62, 887 A.2d at 1126-27. We granted Petitioners's petition for writ of certiorari, which presented the following question for our review: Where jeopardy had attached at trial and the trial judge had granted the prosecutor's motion for a mistrial over Petitioners's objections, did the Court of Special Appeals err in affirming the trial judge's decision that the mistrial had been required by manifest necessity? 393 Md. 160, 900 A.2d 206 (2006). We hold that the Court of Special Appeals erred in affirming the trial judge's decision that the mistrial was required by manifest necessity.",introduction
+736,2786086,3,1,"As the majority notes, it is undisputed that facilitation is a lesser included offense of the sale of a controlled substance within 1000 feet of a school. See Bryant, 2013 WL 4401166, at  (AThe law is well-settled that facilitation is a lesser included offense to the charged offenses.@); State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999) (AAn offense is a lesser-included offense if . . . it consists of . . . facilitation of the offense charged . . . .@). The failure to request a lesser included offense may constitute deficient performance by trial counsel if Athe record contains any evidence which reasonable minds could accept as to the lesser included offense,@ and such evidence, viewed Aliberally in the light most favorable to the existence of the lesser included offense[,] . . . is legally 4 sufficient to support a conviction for the lesser included offense.@ Tenn. Code Ann. ' 40-18-110(a) (2012) (emphasis added); see also Burns, 6 S.W.3d at 469. With these standards in mind, I must respectfully disagree with the majority=s conclusion that the Petitioner has Apresented no evidence of facilitation@ that would warrant an instruction on the lesser included offense. The offense of facilitation is defined as follows: AA person is criminally responsible for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under [section] 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.@ Tenn. Code Ann. ' 39-11-403(a). When parsed, the offense of facilitation is comprised of three elements: (1) that the defendant knew another person intended to commit the charged felony; (2) that the defendant lacked the requisite intent to be found guilty under a theory of criminal responsibility; and (3) that the defendant knowingly furnished substantial assistance in the commission of the felony. In my view, a rational juror could have found each of these three elements from the evidence presented relating to the second and third drug transactions. As to the first element of facilitation, the post-conviction court denied relief on the mistaken basis that Athe proof in this case fail[ed] to establish the . . . existence of >another person= who participated in the commission of the crime[s].@ Bryant, 2013 WL 4401166, at . The evidence showed that the second and third transactions were initiated by Knowles, who implored the Petitioner to aid him in the acquisition of ecstasy pills. There was no evidence that the Petitioner had possession of the drugs at any time prior to the second or third transactions with Knowles. Instead, on both occasions, the Petitioner acquired the drugs from an unidentified third person contemporaneously to his meetings with Knowles.3 In my view, this evidence is sufficient to establish the first element of facilitation because the Petitioner knew that another personCthe unidentified drug dealer who brought the ecstasy pills to the second and third transactions with KnowlesCintended to sell or deliver a controlled substance. As to the second and third elements of facilitation, there was sufficient evidence for a reasonable jury, properly instructed, to have found that the Petitioner substantially 3 Although the Petitioner was acquitted of the charges related to the first transaction, the evidence of this transaction also shows that the direct participation of Aanother person@ was necessary for Knowles to acquire the ecstasy pills. As in the second and third transactions, there was no evidence that the Petitioner possessed any drugs prior to Knowles= first request for ecstasy pills in February of 2008. The Petitioner testified at trial that he was in possession of the drugs at the time he met with Knowles for the first transaction only because Knowles had failed to meet the Petitioner as scheduled but Athe guy had already brought [the drugs] to [the Petitioner].@ But for Knowles= failure to arrive as scheduled to purchase the drugs, the first transaction could have taken place in the same manner as the second and third transactions. 5 assisted the dealer in selling or delivering a controlled substance but lacked the requisite intent to be found guilty under a theory of criminal responsibility. Although the intent of the Petitioner was a key factor in the post-conviction court=s denial of relief, see Bryant, 2013 WL 4401166, at , , the majority opinion does not address the criminal responsibility statute that is referenced within the definition of facilitation, see Tenn. Code Ann. ' 39-11-403(a) (stating that to be convicted of facilitation a person must act Awithout the intent required for criminal responsibility under [section] 39-11-402(2)@). Tennessee Code Annotated section 39-11-402(2) (2014) states that a person is criminally responsible for an offense committed by another if, A[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.@ In consequence, the second and third elements of facilitation would be met in this instance if there was any evidence that the Petitioner provided substantial assistance to the unidentified drug dealer but lacked the intent to promote or benefit from the sale of ecstasy pills to Knowles. There was proof at trial that the Petitioner had repeatedly declined to acquire ecstasy pills for Knowles until Knowles explained that he needed the Petitioner=s help in obtaining drugs that he could sell in order to make money to feed his family. That each transaction was initiated at the behest of Knowles is not in dispute. On the second and third occasions, the Petitioner made contact with an unidentified dealer, took the money provided by Knowles to the dealer, and transferred the pills supplied by the dealer to Knowles. There was no proof that the Petitioner possessed the pills prior to the transactions, that he solicited Knowles or any other potential buyers on behalf of the dealer, or that he kept any of the money exchanged between the dealer and Knowles. In fact, during the transaction on March 21, 2008, the Petitioner returned ten dollars in change to Knowles after retrieving 100 ecstasy pills from the dealer at the scene. Viewing this proof in the light most favorable to the existence of the lesser included offense, a rational juror could have concluded that the Petitioner merely acted as a Ago-between@ in these transactions, thereby providing substantial assistance to the unidentified dealer in the sale of a controlled substance without intending to promote or benefit from the offenses.4 See State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002) (finding 4 In my view, there is no evidence supporting the conclusion by the majority that the Petitioner Adid not merely furnish substantial assistance in the drug sale[s], but instead[] was the seller of the drugs.@ First, the majority states that A[t]he uncontroverted evidence shows that [the Petitioner] set the price for the drugs,@ when in fact the Petitioner testified repeatedly that the price for ecstasy pills in various quantities was Acommon knowledge@ in his neighborhood. Second, the majority states that the Petitioner never argued that he was Amerely assisting the drug supplier,@ even though the Petitioner testified several times about the direct involvement of the drug dealer who, at the time of the transactions, supplied the pills to the Petitioner who then turned them over to Knowles. Likewise, the majority states that the Petitioner Anever testified he was a middle-man for the sale[s],@ despite the testimony of the Petitioner that he arranged the 6 the evidence warranted a facilitation instruction where A[t]here was no evidence that [the defendant] received any proceeds of the robbery@); State v. Flemming, 19 S.W.3d 195, 200 (Tenn. 2000) (finding the evidence warranted a facilitation instruction where the defendant Aparticipated substantially [in the aggravated robbery] by kicking and beating the victim@ but lacked the intent to promote or benefit from the crime Abecause he took no property from the victim@).",sufficiency of the evidence
+737,3171149,3,1,"We first address Mr. Williams’s argument that the government did not present sufficient evidence to support his felony murder conviction because it failed to establish the underlying felony of attempted robbery, and specifically 7 failed to prove that Mr. Williams, and not another person, had stolen Mr. Kang’s Escalade. Reviewing the sufficiency of the evidence de novo, Nero v. United States, 73 A.3d 153, 157 (D.C. 2013), we disagree. As Mr. Williams acknowledges in his brief, the government presented the following evidence to support an attempted robbery conviction: (1) testimony by the fingerprint examiner that the fingerprints lifted from both the exterior and interior of Mr. Kang’s Escalade matched Mr. Williams; (2) eyewitness testimony that a person consistent with Mr. Williams’s physical description was seen opening and closing the hood of the Escalade around the time it was disabled; and (3) testimony by the firearms and toolmark examiner that the bullets recovered from the Escalade matched bullets fired from Mr. Williams’s gun. From this evidence, drawing all reasonable inferences in favor of the government as we must, Nero, 73 A.3d at 157, we conclude that the jury reasonably could have determined that Mr. Williams stole Mr. Kang’s car, and thus necessarily committed the crime of attempted robbery. 7 See Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990) (“Every completed 7 We question whether the government presented sufficient evidence that Mr. Williams intended to steal Mr. Kang’s car before he shot him. See Head v. United States, 451 A.2d 615, 625 (D.C. 1982) (“[M]ere coincidence in time of a robbery and a murder is insufficient to support a felony murder conviction.”); see also United States v. Bolden, 514 F.2d 1301, 1307 (D.C. Cir. 1975) (holding that the intent to rob must be formed before the homicide to convict a defendant of felony murder). But Mr. Williams did not raise that argument on appeal. 8 criminal offense necessarily includes an attempt to commit that offense.”). But see (Richard) Jones v. United States, 124 A.3d 127, 132-34 (D.C. 2015) (Beckwith, J., concurring) (highlighting conflicting precedent from this court indicating that for general intent crimes, an attempt conviction requires proof of a higher mens rea than conviction for the completed offense). B. The Firearms and Toolmark Examiner’s Opinion Testimony Mr. Williams argues that the firearms and toolmark examiner should not have been able to testify that the markings on the bullets recovered from Mr. Kang’s Escalade were unique or that he was without “any doubt” that these bullets were fired from the gun found in Mr. Williams’s room. Because Mr. Williams did not object at trial to this testimony, we review only for plain error. See (John) Jones v. United States, 990 A.2d 970, 980-81 (D.C. 2010). To prevail under this test, it is not enough for an appellant to demonstrate error; the appellant must also show that the error is plain, i.e., that the error is “so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.” Id. at 981. We attribute such dereliction to the trial court only 9 when an error is “clear under current law.” 8 Conley v. United States, 79 A.3d 270, 289 (D.C. 2013) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Applying this standard, we cannot say the trial court plainly erred by permitting the jury to hear the examiner’s certainty statements. There is no precedent in this jurisdiction that limits a toolmark and firearms examiner’s testimony about the certainty of his pattern-matching conclusions. The closest this court has come to addressing this issue was in (Ricardo) Jones v. United States, 27 A.3d 1130 (D.C. 2011). In that case the defense argued inter alia that toolmark and firearms examiners could not “stat[e] their conclusions with ‘absolute certainty excluding all other possible firearms.’” Id. at 1138. In response, the government assured this court, both in its appellate brief and at oral argument, that it was the government’s policy not to present such testimony. “In light of the government’s representation,” this court “assume[d], without deciding, that such experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.” Id. at 1139. The court then determined that any such error was harmless. Id. Jones did not plainly bar the 8 This assessment is made by examining the state of the law at the time of appellate review. Henderson v. United States, 133 S. Ct. 1121, 1127 (2013). Accord, Muir v. District of Columbia, No. 11-CT-1619, 2016 WL 187941, at , -7 (D.C. Jan. 14, 2016). 10 toolmark examiner in this case from testifying as he did and does not provide a foundation for a determination of plain error. Nor can we say that the weight of non-binding authority outside this jurisdiction is a sufficient foundation for a determination that the trial court “plainly” erred by not sua sponte limiting the toolmark examiner’s testimony. See Euceda v. United States, 66 A.3d 994, 1012 (D.C. 2013) (holding that error cannot be plain where neither this court nor the Supreme Court has decided the issue, and other courts are split on the issue). We are aware of only one state supreme court decision9 and no federal appellate decisions limiting the opinion testimony of firearms and toolmark examiners. Indeed, as one federal district court judge has observed, “[a]lthough the scholarly literature is extraordinarily critical” of toolmark pattern-matching, it appears that courts have made little effort to limit or qualify the admission of such evidence.10 United States v. Green, 405 F. Supp. 2d 104, 122 (D. Mass. 2005). 9 Commonwealth v. Heang, 942 N.E.2d 927, 944-45 & n.29 (Mass. 2011). 10 Even in the absence of binding precedent or a raft of persuasive authority on point, we may find plain error where a trial court acts in contravention of “wellsettled legal principles.” See Conley, 79 A.3d at 290 (“‘[P]lainness’ of [an] error can depend on well-settled legal principles as much as well-settled legal precedents.” (quoting United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003))). Mr. Williams has made no argument that the trial court plainly erred on this basis. 11 Mr. Williams refers us to the policy representation made by the government in Jones. The government concedes that, at Mr. Williams’s trial, it violated its policy “to only elicit firearms examiners’ opinions to a reasonable degree of scientific certainty.” But this concession cannot serve as the sole foundation for a determination of plain error. The government’s internal policy does not constitute binding law11—let alone a “clear” or “obvious” rule—that a trial court should be presumed to know.12 Cf. Rose v. United States, 49 A.3d 1252, 1256, 1258 (D.C. 2012) (holding that a trial court’s error could not be plain when there was “no clear 11 Moreover, we question whether this court would want to endorse a policy of “only elicit[ing] firearms examiners’ opinions to a reasonable degree of scientific certainty,” in light of criticism that firearms examination does not involve any “scientific” measure of certainty. See NATIONAL RESEARCH COUNCIL, COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 154-55 (2009); NATIONAL RESEARCH COUNCIL, COMMITTEE TO ASSESS THE FEASIBILITY, ACCURACY, AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE, BALLISTIC IMAGING 3, 81-82 (2008). 12 Mr. Williams appears to concede that Jones itself did not plainly establish that statements of absolute certainty were prohibited and argues instead that “because of its prior assurances” in Jones, the government should be estopped from arguing that the admission of certainty statements of the sort elicited in this case is not plain error. But the government in Jones never took a position as to plain error review (because the challenge to the firearms and toolmark examiner’s testimony was preserved). Meanwhile, in this appeal, the government has not disavowed its policy and concedes it was violated at Mr. Williams’s trial. Ward v. Wells Fargo Bank, N.A., 89 A.3d 115, 126-27 (D.C. 2014) (reviewing the elements of judicial estoppel and explaining inter alia that it will apply only if the party’s later position is clearly inconsistent with its earlier position). 12 case law” in our jurisdiction and that a published concurrence from a judge of this court, while on point, “is not the law of our jurisdiction”). Since Mr. Williams has not shown that the state of the law is such that the trial court plainly should have sua sponte precluded or struck the certainty statements of the firearms and toolmark examiner in this case, Mr. Williams’s unpreserved challenge to these certainty statements cannot prevail under our test for plain error. C. Confrontation Clause and Hearsay Challenges to the Firearms and Toolmark Evidence Regarding the firearm and toolmark evidence presented in this case, Mr. Williams also challenges the admission, over objection, of two “worksheets” documenting the analysis of the bullets. These worksheets were signed by the firearms and toolmark examiner who testified at trial, Mr. Morales, but they also bore the signature and initials of his colleague, the “lead examiner on that particular case,” Rosalyn Brown.13 The government did not call Ms. Brown to 13 Mr. Morales explained that the lead examiner is “basically the examiner that’s assigned and responsible for the examination” of toolmarks; he was designated the “second examiner.” He further explained that, at the time the firearms evidence was received, Ms. Brown “was not available; it was early in the (continued…) 13 testify because she had since been fired. On appeal, Mr. Williams argues that the admission of the worksheets violated his Sixth Amendment right to confrontation. The Confrontation Clause of the Sixth Amendment, U.S. CONST. amend. VI, prohibits the government from introducing “testimonial” hearsay at a criminal trial, unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). A hearsay statement is considered testimonial if it is “‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact’ . . . in the prosecution or investigation of a crime.” Young v. United States, 63 A.3d 1033, 1039-40 (D.C. 2013) (quoting Crawford, 541 U.S. at 51). Forensic evidence is also subject to the Confrontation Clause, which means a defendant must have an opportunity to cross-examine the analyst who actually conducted or observed the forensic testing. Id. at 1039. Assuming the ballistics worksheets contained Ms. Brown’s testimonial hearsay statements, we conclude that their erroneous admission was harmless. See Duvall v. United States, 975 A.2d 839, 843 (D.C. 2009) (applying the test for (…continued) morning.” “[S]ince I was the second, I was the reviewer . . . of that case. My responsibility was to perform the examination between the items.” 14 harmless error under Chapman v. California, 386 U.S. 18 (1967) to admission of a lab report in violation of the Confrontation Clause). To begin with, the jury never heard any testimony about Ms. Brown’s observations and conclusions in Mr. Williams’ case and thus had no reason to think that the worksheets might document her examination of the bullet and firearm evidence. On the contrary, Mr. Morales testified (without “any doubt”, see supra Part II.B) only as to his own observations and conclusions. Meanwhile, the prosecution made no reference to another examiner in closing or rebuttal. Lastly, nothing on the worksheets themselves indicated that they reflected the independent conclusions of another, absent examiner. Thus, at most, the jury saw an ambiguous extra signature at the bottom of a document that Mr. Morales had testified reflected his work product. Based on these particular facts, we cannot discern any harm to Mr. Williams from admission at his trial of these worksheets.14 14 Mr. Williams additionally contends that he was deprived of his Sixth Amendment right to a jury trial because Mr. Morales gave overly conclusory testimony, failed to present the images or other “documentation” underlying his opinions, and “deprived the jury of the ability to make a decision based on the evidence.” Again, this argument was never made in the trial court and we review for plain error. We discern none. We acknowledge that at least one federal district court has ruled that the government’s presentation of pattern-matching testimony by a forensic expert is contingent on its presentation of sufficient documentation to permit the jury to meaningfully evaluate the expert’s subjective conclusions. See United States v. Glynn, 578 F. Supp. 2d 567, 574 n.13 (S.D.N.Y. 2008); see also Heang, 942 N.E.2d at 945 n.30 (urging but not requiring firearms and toolmark (continued…) 15 D. Other Issues With one exception, Mr. Williams’s remaining arguments fail. His unpreserved challenge to the admission of fingerprint evidence fails the third prong of the test for plain error where trial counsel conceded, both in opening and in closing, that the fingerprints on the Escalade belonged to Mr. Williams.15 Mr. Williams’s new argument that he is entitled to a Franks hearing16 also fails; the trial court did not plainly err by overlooking the discrepancy between the affidavit in support of the search warrant for Mr. Williams’s apartment, which cited fingerprint evidence as a basis for probable cause, and the fingerprint examiner’s testimony that he reviewed the prints and linked them to Mr. Williams on a date after the search warrant was executed. Instead, given other documentation indicating that the fingerprint examiner was asked to analyze the latent prints before the police sought and obtained the warrant, it would have been reasonable (…continued) examiners to “explain the basis of any opinion with sketches, photographs, or, best of all, comparison photographs”). But, to date, this court has not so held. 15 Conley, 79 A.3d at 276, 290 (explaining that the third prong of the plain error standard requires the appellant to identify an error that “affected his substantial rights”). In light of our above resolution of Mr. Williams’s challenges to the toolmark and fingerprint evidence, we reject Mr. Williams’s argument that the trial court’s cumulative errors regarding the admission of the government’s toolmark and fingerprint evidence require reversal. 16 Franks v. Delaware, 438 U.S. 154 (1978). 16 for the trial court to conclude that the examiner was simply mistaken as to the date on which he first examined the latent prints and connected them to Mr. Williams. Mr. Williams prevails on his argument that this court must merge his attempted robbery and corresponding PFCV conviction with his felony murder conviction. “[A] person cannot be convicted of both felony murder and the underlying felony that supported the felony murder conviction.” Matthews v. United States, 13 A.3d 1181, 1191 (D.C. 2011). Accordingly, we remand the case with instructions for the trial court to vacate Mr. Williams’s convictions for attempted robbery and the associated count of PFCV. See Morris v. United States, 622 A.2d 1116, 1130 (D.C. 1993) (holding that when two predicate crimes for PFCV merge into one, the PFCV offenses also merge). In all other respects, we affirm the judgment of the trial court. So ordered. 1 EASTERLY, Associate Judge, concurring: In our adversarial system, we do not expect trial courts to “recognize on [their] own” that an expert’s testimony is “scientifically unorthodox or controversial.” (John) Jones v. United States, 990 17 A.2d 970, 980-82 (D.C. 2010). In the absence of any objection at Mr. Williams’s trial to the admission of the firearms and toolmark examiner’s certainty statements, we could only reverse if the law were clear that the expert could not make these statements. See supra Majority Opinion, Part II.B. As discussed above, the law in this jurisdiction does not clearly preclude a firearms and toolmark examiner from testifying with unqualified, absolute certainty.1 But it should. A statement that markings on a bullet are “unique” to a particular gun is a statement that the probability of finding another gun that can create identical bullet markings is zero. If purportedly unique patterns on bullets are declared a match, that declaration likewise negates the possibility that more than one gun could have fired the bullets—it is a statement of unqualified certainty that the bullets were fired from a specific gun to the exclusion of all others. Here the firearms and toolmark examiner testified that he had identified matching “unique” patterns; he also declared that he did not have “any doubt” that the bullets recovered from Mr. Kang’s car had been fired by the gun recovered from Mr. Williams’s apartment. 1 To avoid the constraints of plain error review, Mr. Williams could have filed a motion under D.C. Code § 23-110 and argued that trial counsel provided him constitutionally ineffective assistance by failing to challenge the firearms and toolmark examiner’s certainty statements as scientifically unfounded. See infra. Mr. Williams did not do this. 18 The government has a policy, admittedly violated here, not to elicit such certainty statements. This court was advised of the government’s policy in Jones. At oral argument in that case, in November 2011, counsel for the government stated that, as “concede[d]” in its brief, it was the government’s “position that practitioners should not state their conclusions to 100% scientific certainty.” The government further noted that it had “conceded in every hearing, starting two to three years ago when we first started having Frye hearings on this issue, that firearms examiners should not state their conclusions with absolute certainty.”2 Id. Which raises the question: why did the government adopt a policy to limit the opinion testimony of firearms and toolmark examiners? What happened “two to three” years before the Jones oral argument that prompted the creation of this policy? In 2008, a committee of scientists and statisticians assembled by the National Research Council (NRC),3 which was in turn acting at the behest of the 2 The government was represented in Jones by the Special Counsel for DNA and Forensic Evidence at the United States Attorney’s Office for the District of Columbia; this Special Counsel has corresponded on the government’s behalf with Superior Court regarding other problems arising from the reliance on faulty forensic evidence. See infra note 10. 3 The NRC is a component of the National Academy of Sciences, which was created by congressional charter in 1863 to “investigate, examine, experiment, (continued…) 19 Department of Justice, issued a report on bullet pattern-matching analysis, Ballistic Imaging.4 Although the NRC Committee’s charge was to assess the feasibility and utility of establishing “a national reference ballistic image database . . . that would house images from firings of all newly manufactured or imported firearms,” it recognized that the “[u]nderlying . . . question” is “whether firearms-related toolmarks are unique: that is, whether a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others.” Ballistic Imaging, supra note 3, at 1, 3. The NRC Committee determined that there was no data-based foundation to declare, with any certainty, individualization based on toolmark pattern matching. Specifically, the NRC Committee made a “finding” that the “validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related (…continued) and report upon any subject of science.” Act to Incorporate the National Academy of Sciences, sec. 3, 12 Stat. 806 (1863), http://www.nasonline.org/aboutnas/leadership/governing-documents/act-of-incorporation.html. The NRC was established in 1916 “to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government.” NATIONAL RESEARCH COUNCIL, COMMITTEE TO ASSESS THE FEASIBILITY, ACCURACY, AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE, BALLISTIC IMAGING iii (2008). 4 Ballistic Imaging, supra note 3. Specifically, the project was sponsored by the National Institute of Justice (NIJ), Office of Justice Programs, U.S. Department of Justice. Id. at xi. 20 toolmarks has not yet been fully demonstrated.” Ballistic Imaging, supra note 3, at 3, 81. The NRC Committee noted that “derivation of an objective, statistical basis for rendering decisions [about matches] is hampered by the fundamentally random nature of parts of the firing process. The exact same conditions—of ammunition, of wear and cleanliness of firearms parts, of burning of propellant particles and the resulting gas pressure, and so forth—do not necessarily apply for every shot from the same gun.” Id. at 55. The NRC Committee concluded that “[a] significant amount of research would be needed to scientifically determine the degree to which firearms-related toolmarks are unique or even to quantitatively characterize the probability of uniqueness.” Id. at 3, 82. The NRC Committee further expressed concern that, notwithstanding the absence of data and the corresponding statistical unknowns, firearms and toolmark examiners “tend to cast their assessments in bold absolutes, commonly asserting that a match can be made ‘to the exclusion of all other firearms in the world.’” Ballistic Imaging, supra note 3, at 82. The NRC Committee denounced this sort of testimony, explaining that “[s]uch comments cloak an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.” Id. “[S]topping short of commenting on whether firearms toolmark evidence should be admissible” in 21 court, the NRC Committee determined that “[c]onclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis when none has been demonstrated.” Id. (emphasis in original). In a subsequent report commissioned by Congress and issued in 2009, Strengthening Forensic Science in the United States: A Path Forward,5 another NRC Committee published similar words of warning regarding firearms and toolmark evidence.6 This Committee explained that “[i]ndividual patterns from manufacture or from wear might, in some cases, be distinctive enough to suggest one particular source.” Id. at 154 (emphasis added). But “[b]ecause not enough is known about the variabilities among individual tools and guns,” the Committee was “not able to specify how many points of similarity are necessary for a given level of confidence in the result.”7 In other words, there is currently no statistical 5 NATIONAL RESEARCH COUNCIL, COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD xix (2009) [hereinafter Strengthening Forensic Science]. 6 The report comprehensively reviewed a range of forensic analyses, including toolmark and firearms identification, and made a number of recommendations “to improve the forensic science disciplines and to allow the forensic science community to serve society more effectively.” Id. at xix, 1-2. 7 More generally, the NRC Committee observed that “[w]ith the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate (continued…) 22 basis to declare with any degree of certainty that toolmarks on a bullet connect that bullet to a particular gun or “match” the markings on other bullets fired from that gun.8 (…continued) a connection between evidence and a specific individual or source.” Id. at 7. With respect to these other forensic analyses, the NRC Committee stated that “[a] body of research . . . to establish the limits and measures of performance and to address the impact of sources of variability and potential bias . . . is sorely needed, but it seems to be lacking in most of the forensic disciplines that rely on subjective assessments of matching characteristics.” Id. at 8. The NRC Committee called for the development of “rigorous protocols to guide these subjective interpretations and pursue equally rigorous research and evaluation programs.” Id. The NRC Committee particularly recommended that “[f]orensic reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including measures of uncertainty in reported results and associated estimated probabilities where possible.” Id. at 21-22. 8 Thus, even the policy the government endorsed in Jones, permitting firearms and toolmark examiners to testify to “a reasonable degree of scientific certainty,” is an inadequate limitation on firearms and toolmark examiners’ testimony. See Brief for Appellee at 36, Jones v. United States, 27 A.3d 1130 (D.C. 2011) (No. 08-CF-716). This phrase “has no scientific meaning.” Paul C. Giannelli, Reasonable Scientific Certainty: A Phrase in Search of a Meaning, 25 CRIM. JUST. 40, 40-41 (2010-2011); see also NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, EXPERT WORKING GROUP ON HUMAN FACTORS IN LATENT PRINT ANALYSIS, LATENT PRINT EXAMINATION AND HUMAN FACTORS: IMPROVING THE PRACTICE THROUGH A SYSTEMS APPROACH 119 (2012) (“Outside the courtroom . . . scientists do not communicate their findings in this fashion . . . there is no generally accepted or working definition of a ‘reasonable degree of certainty’ in scientific discourse.”). Meanwhile “[i]ts legal meaning is at best ambiguous, at worst misleading.” Giannelli, supra at 41. “A reasonable degree of scientific certainty” unquestionably implies a data-based foundation for a conclusion that is objectively unfounded. To adequately account for the current limitations of toolmark analysis, at least one federal district court has ruled that an examiner cannot “claim that he (continued…) 23 Against this backdrop, there is only one permissible answer to the question left undecided in Jones regarding firearms and toolmark examiners’ assertions of certainty in their pattern-matching conclusions: the District of Columbia courts should not allow them. It is well established that expert opinion evidence is admissible if “it will not mislead the jury and will prove useful in understanding the facts in issue.” Clifford v. United States, 532 A.2d 628, 632 (D.C. 1987) (citing Dyas v. United States, 376 A.2d 827, 831 (D.C. 1977)); cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (“[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”). Certainty statements such as those elicited by the government in this case are misleading and lack any legitimate utility in criminal trials; they express a solid statistical foundation for individualization that does not currently (and may never) exist. The government states in its brief to this court that it is “regrettable” that its expert was permitted to state his pattern-matching conclusion with absolute certainty. It is more than regrettable. It is alarming. We know that faulty forensic (…continued) reached his conclusions to any degree of ‘certainty.’” Glynn, 578 F. Supp. 2d at 569. Another federal district court has limited an examiner’s testimony to a report of observed similarities and has declined to allow the examiner to testify as to any conclusion of a match. See Green, 405 F. Supp.2d at 108 & n.3, 123-24. 24 evidence, and in particular, objectively unfounded statements of certainty regarding forensic analysis, can contribute to wrongful convictions. See Strengthening Forensic Science, supra note 5, at 45; Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 83-84 (2008). Take the case of Donald Gates, who was wrongfully convicted of rape and murder and needlessly served twenty-seven years in prison.9 To persuade a jury of Mr. Gates’s guilt, the government relied on the similarly subjective patternmatching analysis of hair evidence. The hair examiner in Mr. Gates’s case testified with only slightly more restraint than the firearms and toolmark examiner in this case, acknowledging that “it cannot be said that a hair came from one person to the exclusion of all others,” but nonetheless asserting that it was “‘highly unlikely’ that the hair found on the victim came from someone other than [Mr. Gates].” Brief for Appellee at 8, Donald E. Gates v. United States, 481 A.2d 120 (1984) (No. 82- 9 This miscarriage of justice was costly to the District of Columbia. Mr. Gates recently received $16.65 million from the District to settle his civil suit. Spencer S. Hsu, District to Pay $16.65 Million to Wrongly Imprisoned Man, Attorneys Say, WASH. POST, Nov. 19, 2015, https://www.washingtonpost.com/local/public-safety/district-to-pay-1665-millionto-wrongly-imprisoned-man-attorneys-say/2015/11/19/2f62fd58-8ecf-11e5-baf4bdf37355da0c_story.html. 25 1529) (transcript citations omitted). But, just as in this case, there was no databased foundation for the expert’s expression of certainty in his opinion.10 The use of these subjective certainty statements not only implicates the government’s “duty to refrain from improper methods calculated to produce a wrongful conviction,”11 it also calls into question the “fairness, integrity [and] 10 See Strengthening Forensic Science, supra note 5, at 160-61. The government later “acknowledged” that the hair examiner in Mr. Gates’s case “offered unfounded testimony at trial that exaggerated the probative value of the hair match.” Letter from Lee F. Satterfield, Chief Judge, Superior Court of the District of Columbia to Avis E. Buchanan and Ronald C. Machen Jr., (Jan. 11, 2011) (quoting Letter from Michael T. Ambrosino, Counsel to the United States Attorney, to Chief Judge Satterfield, n.3 (Nov. 15, 2010)) available at http://www.dccourts.gov/internet/documents/OIGReportLetterFromChiefJudgeSatt erfield.pdf. 11 Berger v. United States, 295 U.S. 78, 88 (1935). Under Napue v. Illinois, 360 U.S. 264 (1959), the government may not knowingly present false or misleading evidence or allow admission of such evidence to go uncorrected. Longus v. United States, 52 A.3d 836, 847-48 (D.C. 2012); see also id. at 847 (explaining that the “underlying purpose of Napue” is “to ensure the jury is not misled by falsehoods”). “[A]s with Brady, the government’s obligation under Napue turns not on the personal knowledge of an individual prosecutor, but on what the ‘government,’ under a collective knowledge theory, knew or should have known.” Id. at 848. The government’s policy regarding firearms and toolmark matching testimony indicates that the government, collectively, knew that the certainty statements of the expert in this case had no foundation and would only mislead the jury to think that the government’s case was stronger than it actually was. 26 public reputation of judicial proceedings.”12 Courts are our society’s chosen forum for ascertaining guilt in criminal cases. Our justice system can only function if it maintains the trust of the community. We rely on judges—as the umpires in our adversarial system—to prohibit the admission of evidence that is clearly without foundation. As matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic: it reflects nothing more than the individual’s foundationless faith in what he believes to be true. This is not evidence on which we can in good conscience rely, particularly in criminal cases, where we demand proof—real proof—beyond a reasonable doubt, precisely because the stakes are so high. To uphold the public’s trust, the District of Columbia courts must bar the admission of these certainty statements, whether or not the government has a policy that prohibits their elicitation. We cannot be complicit in their use. 12 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).",sufficiency of the evidence
+738,2212000,1,1,"Petitioner contends that he was denied due process of law as a result of the State's nondisclosure of all the relevant circumstances which induced the testimony of Craig Caron, an accomplice who was never charged. He attempts to support this claim in several ways. Caron testified at the petitioner's trial that the prosecutor did not make any offers of leniency. At the later trial of Martin O'Conner, also an accomplice, Caron testified that the prosecutor told him that there was a good chance that he would not be prosecuted. Defendant argues that, based upon the statements at O'Conner's trial, Caron's testimony at the petitioner's trial was perjured. At the post conviction hearing, Caron again testified that no offer of leniency was made, and that he was told that he probably would not be charged. The prosecutor testified at both the trial and the post conviction proceeding and explained in detail the facts and circumstances of Caron's case.    I told him that if he would testify as to what happened, if his testimony was truthful and if it was accurate with other facts that we knew about, that because of these things that he was a juvenile and he wasn't directly involved at the scene, that there was a good possibility that he wouldn't be prosecuted. Further, Petitioner contends that the prosecutor practically admitted in his closing argument to the jury to having made an agreement with the witness. This contention is without support in the record. The admissions alluded to were nothing more than references to clearly hypothetical circumstances mentioned to illustrate a weakness in Petitioner's argument. In post conviction proceedings the trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Hoskins v. State, (1973) 261 Ind. 291, 295, 302 N.E.2d 499, 501. The trial court found that the testimony at the petitioner's trial adequately reflected the circumstances surrounding the testimony of the witness, Caron. The record supports this finding. Lamb v. State, (1975) 263 Ind. 137, 143, 325 N.E.2d 180, 183. The prosecutor does have a duty to disclose the existence of agreements made with a State's witness, Richard v. State, (1978) 269 Ind. 607, 614, 382 N.E.2d 899, 904 (cases cited therein), cert. denied, (1979) 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781; however, the record in this case does not reflect that an agreement was made. See Baker v. State, (1980) Ind., 403 N.E.2d 1069, 1071.",issues
+739,1700175,1,4,"On notice of review, Ewalts argue that the trial court erred by refusing to award them attorney fees pursuant to SDCL 58-12-3. The statute states that if there is a vexatious or unreasonable refusal by an insurance company to pay the full amount of a loss, the trial court shall allow the plaintiff a reasonable sum as attorney fees. Whether the refusal to pay is vexatious or without reasonable cause is a question of fact. This court will not reverse unless the decision of the trial court is clearly erroneous. Johnson v. Skelly Oil Co., 359 N.W.2d 130 (S.D.1984); Ranger Ins. Co. v. Macy, 88 S.D. 674, 227 N.W.2d 426 (1975). After examining the record, we agree with the trial court that Employer had reasonable cause to defend the action brought by Ewalts. Therefore, the trial court's findings on this issue are not clearly erroneous. The judgment is affirmed in part, reversed in part, and remanded.",issues
+740,2368471,1,1,"In this appeal, we review the court of appeals' decision to affirm Felix Montes-Rodriguez's conviction for criminal impersonation in violation of section 18-5-113(1)(e), C.R.S. (2010). People v. Montes-Rodriguez, 219 P.3d 340 (Colo.App.2009). In relevant part, this statute applies when one assumes a false identity or a false capacity with the intent to unlawfully gain a benefit for himself. [1] § 18-5-113(1)(e). Montes-Rodriguez was convicted of criminal impersonation based on his use of a false social security number on an application for an automobile loan. Montes-Rodriguez admitted to using the false social security number. However, he contested the criminal impersonation charge. He argued that he did not assume a false identity or capacity under the statute because he applied for the loan using his proper name, birth date, address, and other identifying information. The trial court denied his motion for a judgment of acquittal, and the jury returned a guilty verdict. A divided panel of the court of appeals affirmed Montes-Rodriguez's conviction. Montes-Rodriguez, 219 P.3d at 343. Although the parties had focused on the false-identity element of the crime at trial, the majority of the court of appeals addressed only the false-capacity element of the statute. Id. The court of appeals defined false capacity as a false legal qualification, competency, power, or fitness. Id. It then reasoned that, by using a false social security number on a loan application. Montes-Rodriguez impliedly asserted his power or fitness to obtain the loan and his ability to work legally in this country to repay the loan. Id. We reverse. Consistent with previous Colorado case law, we hold that one assumes a false or fictitious capacity in violation of the statute when he or she assumes a false legal qualification, power, fitness, or role. We also reaffirm our earlier holding that one assumes a false identity by holding one's self out to a third party as being another person. See Alvarado v. People, 132 P.3d 1205, 1207 (Colo.2006). Applying this holding to the present case, we conclude that Montes-Rodriguez neither assumed a false capacity nor a false identity in violation of the statute. The prosecution failed to prove the false-capacity element of the crime because it presented no evidence that the law requires loan applicants to have social security numbers. In other words, the prosecution failed to present evidence that a social security number gives one the legal qualification, fitness, or power to receive a loan. The prosecution also failed to prove the element of false identity. Montes-Rodriguez's false social security number was one of many pieces of identifying information submitted on his loan application. On the whole, by providing his proper name, birth date, address, and employment information, the evidence establishes that Montes-Rodriguez applied for the loan as himself, not as another person. Accordingly, we reverse the court of appeals' opinion upholding Montes-Rodriguez's conviction. We remand this case to that court so that it may be returned to the trial court for entry of a judgment of acquittal. [2]",introduction
+741,867615,1,1,"In May 2005 an intoxicated Eugene Bottcher drove his vehicle off the road, hitting a boy and narrowly missing the boy’s brother. The boy who had been hit later died at the hospital from his injuries. After Bottcher hit the boy, he continued to drive, and when stopped by a passerby who had witnessed the accident, Bottcher tried to bribe him into not reporting the crime. Bottcher pleaded no contest to manslaughter, assault in the third degree, and failure to render assistance. The superior court sentenced Bottcher to a term of 23 years with 3 years suspended. The court also revoked Bottcher’s driver’s license for life. The court of appeals affirmed Bottcher’s sentence and the lifetime revocation of his license. In his petition to this court, Bottcher argues that the lifetime revocation was excessive. We hold that the trial court was not clearly mistaken in finding that Bottcher’s case was an extreme one in which a lifetime revocation of his driver’s license was required to protect the public. We therefore affirm the decision of the court of appeals, which affirmed the superior court’s lifetime revocation of Bottcher’s driver’s license.",introduction
+742,2634779,1,1,"[¶3] Ms. Cathcart presents the following issues: 1. The trial court committed error when it failed to rule on the appellee's obligations under the insurance contract and granted summary judgment in favor of appellee on appellant's breach of contract claim. 2. The trial court committed error when it allowed evidence of the underlying incident giving rise to appellant's claim for breach of the duty of appellee to act in good faith with fair dealing. 3. The trial court committed error when it allowed evidence of a marijuana pipe and marijuana use to be presented to the jury. 4. The trial court's decision to ask questions submitted by the jury in this case was an abuse of discretion/error, and resulted in unfair prejudice to the appellant because the jury was allowed; and did, in fact, start advocating/deliberating before all of the evidence had been presented. 5. The trial court committed error in the giving of certain jury instructions and not giving others. State Farm restates the issues as follows: 1. Did the trial court correctly grant State Farm summary judgment on appellant's breach of contract claim for the reason that there was no material issue of fact to be decided by the trier of fact? 2. Did the trial court properly allow evidence of the motor vehicle accident which gave rise to appellant's claim for breach of the duty of good faith and fair dealing to be admitted into evidence during trial? 3. Did the trial court properly allow the jury to hear about the factors considered by State Farm in its evaluation, including witness statements of marijuana use by Carly Mesa? 4. Did the trial court properly allow the jurors to submit questions to be asked of witnesses pursuant to Rule 39.4 of the Wyoming Rules of Civil Procedure? 5. Did the court correctly [instruct] the jury on the law?",issues
+743,1058841,1,3,"A decedent's personal representative has standing under the plain language of Code § 8.01-25 to maintain a cause of action existing at the time of the decedent's death, which includes the right to compel an accounting under Code § 8.01-31 from the trustees of a trust of which the decedent was a beneficiary. Accordingly, the trial court erred in ruling that Campbell lacked standing to compel an accounting by the Trustees for their administration of the Marital Trust during Little's lifetime. However, because Little did not have a cause of action during his lifetime to seek an accounting for tangible personal property removed from Heritage Farm after his death, the trial court did not err in adjudging that Campbell did not have standing to seek an accounting by the Trustees for that property. Therefore, we will affirm the judgment of the trial court denying the claim for an accounting of tangible personal property removed from Heritage Farm, but will reverse the judgment of the trial court regarding the claim for an accounting by the Trustees for the administration of the Marital Trust during Little's lifetime. We will remand the case for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.",conclusion
+744,2630266,1,3,"¶ 5 The Utah Supreme Court has appellate jurisdiction only over final agency action. See Utah Code Ann. § 78A-3-102(3)(e) (2008). The court may also, in its discretion, grant extraordinary relief when a party is without a plain, speedy, and adequate remedy in any other forum. See id. § 78A-3-102(2); Utah R. of Civ. P. 65B(a). In this case, the Commission's order does not qualify as a final agency action and we therefore lack jurisdiction to hear the appeal. But we exercise our discretion to grant Heber Light an extraordinary writ to determine whether the Commission can continue to adjudicate Rocky Mountain's complaint against Heber Light.",jurisdiction
+745,1058250,1,3,"For these reasons, we hold that the Court of Appeals did not err in refusing Murillo-Rodriguez's petition for appeal. Accordingly, the judgment of the Court of Appeals will be affirmed. Affirmed.",conclusion
+746,4486886,1,2,"For the reasons recited above, the compensation court did not err when it denied Westin’s motion to withdraw its previously filed motion to determine MMI after the hearing on MMI; admitted Fentress’ recording of the consultation with a physician; and awarded Fentress medical treatment, temporary total disability, and attorney fees. Accordingly, we affirm. Affirmed.",conclusion
+747,2327093,1,4,"For the reasons set forth above, I would have vacated the judgment in favor of DeMarco and ordered the entry of judgment in favor of Travelers.",conclusion
+748,1035346,1,1,"¶2 Harris and Holbert raise four issues on appeal. Ultimately, all of these issues can be addressed in the following inquiry: ¶3 1. Did the District Courts err in dismissing Harris and Holbert’s breach of contract and constructive fraud claims pursuant to M. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted?",issues
+749,1794849,1,2,"Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, supra . Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Cole, supra ; Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Cole, supra ; George, supra .",standard of review
+750,4265722,1,4,"[4] Statutes exempting property from inheritance tax should be strictly construed, and the burden is on the taxpayer to show that he or she clearly falls within the language of the statute.5 Section 77-2004 provides that “any person to whom the deceased for not less than ten years prior to death stood in the acknowledged relation of a parent” shall receive an inheritance tax exemption of $40,000 and shall be taxed at the rate of 1-percent of the clear market value of the property thereafter. Therefore, it was Voss’ burden to establish that she was a person “to whom the deceased for not less than ten years prior to death stood in the acknowledged relation of a parent.” [5] The following factors serve as appropriate guideposts to the trial court in making a determination of an acknowledged relationship of a parent under § 77-2004: (1) reception of the 2 See In re Estate of Craven, 281 Neb. 122, 794 N.W.2d 406 (2011). 3 Id. 4 In re Estate of Kite, 260 Neb. 135, 615 N.W.2d 481 (2000). 5 In re Estate of Breslow, 266 Neb. 953, 670 N.W.2d 797 (2003). - 634 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE ESTATE OF HASTERLIK Cite as 299 Neb. 630 child into the home and treatment of the child as a member of the family, (2) assumption of the responsibility for support beyond occasional gifts and financial aid, (3) exercise of parental authority and discipline, (4) relationship by blood or marriage, (5) advice and guidance to the child, (6) sharing of time and affection, and (7) existence of written documentation evincing the decedent’s intent to act as parent.6 [6] Voss testified that the decedent referred to her as his stepdaughter. The credibility of a witness is a question for the trier of fact, and it is within its province to credit the whole of the witness’ testimony, or any part of it, which seemed to it to be convincing, and reject so much of it as in its judgment is not entitled to credit.7 Even if Voss’ testimony would have been sufficient for the county court to make the necessary finding, the court was not required to do so. The evidence offered at trial was sparse and included a two-page affidavit, the decedent’s previous will, and Voss’ summary answer to a single question. No evidence was offered concerning the third factor—exercise of parental authority and discipline—and, though Voss described her mother’s and the decedent’s relationship as “a close marital type relationship,” no actual blood or marital relationship existed. Neither Wisconsin law8 nor Nebraska law9 allows for the establishment of common-law marriages, and Voss conceded that they had not legally married. Therefore, the fourth factor—relationship by blood or marriage—also weighed against Voss’ entitlement to the § 77-2004 tax rate. No credible evidence was offered concerning the seventh factor—written documentation of intent—as Voss offered only a copy of the decedent’s previous will—not his most recent will. And there is nothing in the 6 In re Estate of Kite, supra note 4. 7 In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011). 8 See Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987). 9 See Neb. Rev. Stat. § 42-104 (Reissue 2016). - 635 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports IN RE ESTATE OF HASTERLIK Cite as 299 Neb. 630 record to show that Voss received the same treatment in the controlling will as she did under the previous will. As to the remaining factors, it is apparent from the record that Voss and the decedent cared for one another and would spend time together for holidays and regular visits. However, the county court concluded that the evidence was insufficient to establish the decedent acted in a manner toward Voss that went above and beyond the normal circumstances of his relationship with her mother. We cannot say that the county court was clearly wrong in determining that Voss failed to carry her burden of proof.",analysis
+751,1729479,1,1,"The decision of the District Court of Appeal simply states Certiorari Denied. Petitioner argues that it was on the authority of the decision of this Court in Headley v. Baron, 228 So.2d 281 (Fla. 1969). [1] But, he asserts, Headley should be prospective only and, since Lurie, the petitioner here, was granted immunity from criminal prosecution for receiving a stolen automobile before the decision in Headley, [which held such immunity did not protect one from administrative disciplinary proceedings] that Headley [2] was not controlling. Petitioner's argument on this point, taken from his original brief, states The general rule is that the overruling of a decision is ordinarily retrospective as well as prospective in application, and makes the law at the time of the overruled decision as it is declared to be in the overruling decision. An exception to this general rule is, however, that an overruling decision cannot operate retrospectively so as to impair the obligations of contracts entered into or injuriously affect vested rights acquired in reliance on the overruled decision. 21 C.J.S. Courts § 194b. (Emphasis added) In other words, that Lurie acquired a vested right under Seymour to be immune from disciplinary proceedings by the respondent board for unethical conduct arising out of the criminal acts for which he was granted immunity from prosecution in the criminal proceedings. Such argument is obviously false for the simple reason that the right to practice dentistry — as well as medicine or law or other professions that are publicly licensed and regulated — is not a vested right as used in the cases. [3] Therefore, I find no vestige of conflict to support jurisdiction. Moreover, it seems to me ironical that this Court could overrule its previous decision — on the basis of which the District Court admittedly decided the case under review — and then hold that the District Court's decision conflicted with a previous decision of this Court on the same point of law. And yet, that is exactly what has been done here.",jurisdiction
+752,1474553,1,12,"The test for evaluating claims based on the sufficiency of the evidence is: [W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.. . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (citations omitted) Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979). Viewing the evidence in this light, the record reveals the following: Pamela Sue McMillan, the victim of the crimes in No. 44, became acquainted with the appellant when her family began camping at the Circle S Ranch on weekends in the summer. N.T. July 16 and 17, 1980 at 24, 66. In the summer of 1979, Pam was thirteen years old and had known the appellant for three years. Id. at 25, 63-64. One weekend in the summer of 1979, Pam's family came up to camp at the Circle S Ranch, and at appellant's suggestion, left Pam to help the appellant while his wife was in the hospital. [29] Pam was going to assist the appellant with household chores, and since appellant would not hear the telephone ringing if the hospital called during the night, Pam was to sleep on the couch by the telephone. (The appellant had hearing difficulties and wore a hearing aid). Id. at 27, 68. Pam's parents and brothers left on Sunday. On Sunday, Pam's friend, Joy Paucke, asked her grandmother if Pam could stay the night. Pam slept at Joy's house on Sunday night. Id. at 70. On Monday, Pam and Joy went with the appellant to help him cut hay. The appellant drove the tractor, and Pam and Joy took turns driving the pickup truck around to parts of the field in which the appellant was working. The back of the pickup, which was covered with a cap, contained an assortment of tools. Id. at 71-72, 79-80. When questioned if anything unusual happened that day at the hayfield, Pam responded that the appellant had sexual intercourse with Joy in the back of the pickup truck, and had told her to watch out for cars. Id. at 72. Pam was asked to explain what she meant by sexual intercourse, and after some hesitation and nervousness, was able to specify that a man got on top of a lady and put his penis in her sexual privates. Id. at 76-78. Pam stated that she could see into the open back of the pickup truck. Id. at 79. After the appellant had sexual intercourse with Joy, he asked Pam and she agreed to have sexual intercourse with the appellant. [30] Id. at 81. Pam got into the back of the pickup with appellant, he pulled her pants down, and then put his penis between her legs. Id. at 82-83. Pam testified that appellant's penis was touching her private place. Id. at 84. This episode lasted just a couple of minutes, and then the appellant put the tools back in the truck and they drove to the horse barn. Id. at 84-85. Monday night, Joy stayed at the Shirey residence, and Pam and Joy slept in the bunk room while the appellant slept in his own bedroom. Id. at 85. The next day, Tuesday, Pam and Joy again helped the appellant in the hayfield. Pam testified that there was a boy riding his motorcycle around in the area, and nothing unusual happened. Id. at 86-87. After haying, the appellant dropped Joy off at her home, and he and Pam continued to the Shirey residence. Id. at 87. That night following supper, Pam was in the bunk room and the appellant came in and asked her if she wanted to watch some movies. Id. at 88. The appellant set up the projector and showed her two films. The first film depicted a naked woman and two naked men. One man was on top of [the woman], and the other one was sucking her breasts, and then the two men switched positions. Id. at 88-90. The second film portrayed a naked man and a naked woman on a ladder. The naked couple then went into the bedroom and they were screwing. Id. at 90. Pam stated that she hadn't used any other word in court which meant the same thing as screwing, and she understood the term to mean that a man got on top of a lady and put his penis in the lady's private spot, and then the man went up and down and back and forth. Id. at 90-91. When the movies ended, the appellant tried to feel Pam's chest, and asked her if he could. Pam kept refusing, and finally appellant quit asking, and went to sleep in his own bedroom. Id. at 91-93. Nothing out of the ordinary happened on Wednesday, Thursday or Friday. The appellant's wife had returned home on Thursday. Id. at 95. On Saturday night, while appellant's wife was sleeping, the appellant showed Pam a vibrator. Pam described it as a white thing that runs with batteries and indicated that it was ten to twelve inches long. Id. at 98. The Commonwealth introduced as Exhibit # 1 a white vibrator that the appellant had turned over to the police. Id. at 151. Pam recalled that the appellant had said it was for girls to use when they don't got their boyfriend or husband. Id. at 98. The appellant then put batteries in the vibrator and placed it on her legs. Id. at 99. Pam was wearing jeans. Id. at 100. Nothing else occurred that night. No untoward events ensued until Tuesday. The appellant took his wife to the hairdresser's, and then Pam went along with the appellant to work in the hayfield. The appellant tried to pull Pam's pants down, but she refused to let him do so. Id. at 100-101. On Thursday, Pam and Joy again accompanied the appellant to the hayfield. While they were there, the appellant had intercourse with [her] and Joy. Id. at 102. Pam related that while the appellant was on top of her, he told Joy to hold his penis. Appellant's penis was between Pam's legs and she testified that it was inside of me and that it hurt. Id. at 104-105. Pam told the appellant to get off of her, and he complied. Id. at 105. Pam's parents returned to the Circle S Ranch the next day, and she went home with them the following Sunday. On the basis of this evidence, the jury found the appellant guilty of statutory rape, indecent assault, and corruption of a minor. The appellant argues that the evidence was insufficient to sustain his convictions for statutory rape and corruption of a minor. As to the sufficiency of the statutory rape conviction, the appellant points to the rule that to constitute the offense of rape, there must be penetration, however slight. Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950). Appellant then directs us to Pam's testimony regarding the first incident in the hayfield. While Pam stated that the appellant had sexual intercourse with her, she described his activity only as the placement of his penis between her legs touching her private place. N.T. July 16 and 17, 1980, at 81, 84. While we agree that this testimony did not substantiate penetration, appellant overlooks Pam's subsequent testimony regarding the last incident when appellant had Joy fondle his penis while he was on top of Pam: Q. Where was his [appellant's] penis exactly, Pam? A. Inside of me. Q. Inside of you? A. Yes. Q. Did it hurt you? A. Yes. This is clearly direct evidence of penetration, and it is a longstanding rule that with regard to the element of penetration, the testimony of one witness — the injured person — can be sufficient to sustain a conviction of rape. Johnson Appeal, 445 Pa. 270, 284 A.2d 780 (1971); Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976). Appellant's contention that the evidence was insufficient to support the corruption of a minor conviction, relates to the language in which the corruption charge was couched. The information charged that the appellant corrupted or tended to corrupt the morals of the minor, Pamela Sue McMillan, by showing a child obscene literature, pictures, and two movies of naked men and women engaged in sexual intercourse or oral sex. At the conclusion of the evidence, the appellant moved for a directed verdict on this charge on the basis that the Commonwealth had failed to establish that the movies were obscene under the community standards of Potter County. N.T. July 16 and 17, 1980, at 257. As previously discussed, the burden enunciated in Commonwealth v. LaLonde, supra , involving the proof of community standards of obscenity, was overruled in 1974 by the case of Commonwealth v. Rogers, supra. See discussion infra at I. Appeal of Nos. 28 and 30, 5. Obscenity. This claim of error is without merit.",sufficiency of the evidence
+753,1988963,1,1,"As a threshold matter, we observe that this case is moot, as argued by the State, because defendant has been released from custody. In re Andrea F., 208 Ill.2d 148, 156, 280 Ill.Dec. 531, 802 N.E.2d 782 (2003) (an appeal is moot when it presents no actual controversy or when the issues no longer exist). The mootness doctrine stems from the fear that parties to a resolved dispute will lack the personal stake in the outcome of the controversy sufficient to assure the adversarial relationship, 'which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult    questions.' In re A Minor, 127 Ill.2d 247, 255, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989), quoting People ex rel. Black v. Dukes, 96 Ill.2d 273, 276-77, 70 Ill.Dec. 509, 449 N.E.2d 856 (1983), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). A case is moot if the issues involved in the trial court have ceased to exist because intervening events have made it impossible for the reviewing court to grant effectual relief to the complaining party. In re A Minor, 127 Ill.2d at 255, 130 Ill.Dec. 225, 537 N.E.2d 292. In this case, we are unable to render any sort of effectual relief to defendant because he has served his sentence and completed his mandatory supervised release. Notwithstanding the general rule, a reviewing court may, however, review an otherwise moot issue pursuant to the public interest exception to the mootness doctrine. In re Mary Ann P., 202 Ill.2d 393, 402, 269 Ill.Dec. 440, 781 N.E.2d 237 (2002). The factors a reviewing court will consider when deciding whether to address a moot case under the public interest exception are: (1) the public nature of the question; (2) the likelihood that the question will recur; and (3) the desirability of an authoritative determination for the purpose of guiding public officers. In re Andrea F., 208 Ill.2d at 156, 280 Ill.Dec. 531, 802 N.E.2d 782. This exception is to be construed narrowly and requires a clear showing of each criterion. In re Adoption of Walgreen, 186 Ill.2d 362, 365, 238 Ill.Dec. 124, 710 N.E.2d 1226 (1999). With these factors in mind, we choose to address the merits of defendant's appeal. First, the question presented by this appeal is one of a definitive public nature. The liberty interests of every person subject to the application of section 5-8-7 of the Code are potentially at stake. Second, the question has already reoccurred in People v. Hernandez, 345 Ill.App.3d 163, 281 Ill.Dec. 173, 803 N.E.2d 577 (2004), leading the Second District to a contrary holding, with Justice Hutchinson, writing this time for the majority, adopting the rationale of her Roberson dissent. Hernandez, 345 Ill.App.3d at 168-69, 281 Ill.Dec. 173, 803 N.E.2d 577. As a result, guidance is needed by this court to resolve the conflict and to ensure public officers will consistently apply section 5-8-7 in the future. Turning to the merits of defendant's argument, he maintains that under the plain and ordinary meaning of section 5-8-7(c) he is entitled to credit for time served on the burglary charge because he was arrested for one charge, i.e., burglary, and prosecuted for another charge, i.e., bond violation, that occurred before his second arrest. The State counters that the appellate court correctly found defendant's first arrest was for burglary, but his second arrest was for failure to appear in court pursuant to section 110-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-3 (West 2000)) and therefore section 5-8-7(c) does not apply. In reply, defendant contends that if his second arrest was for failure to appear, then he was plainly entitled to credit under section 5-8-7(b). Defendant raises this argument for the first time in his reply brief to this court and, therefore, the State moved to strike defendant's reply brief and maintains that this argument is waived. The substance of this issue involves an issue of statutory construction subject to de novo review. People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 279, 271 Ill.Dec. 881, 786 N.E.2d 139 (2003). In relevant part, section 110-3 provides: Upon failure to comply with any condition of a bail bond    the court having jurisdiction at the time of such failure may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty on bail   . The contents of such a warrant shall be the same as required for an arrest warrant issued upon complaint. When a defendant is at liberty on bail    on a felony charge and fails to appear in court as directed, the court shall issue a warrant for the arrest of such person. Such warrant shall be noted with a directive to peace officers to arrest the person and hold such person without bail and to deliver such person before the court for further proceedings. 725 ILCS 5/110-3 (West 2000). As noted by the parties, the resolution of this case depends upon the proper characterization of defendant's second arrest. The Hernandez court dealt with an almost identical situation, characterizing the second arrest as one for the underlying charge. Hernandez, 345 Ill.App.3d at 170, 281 Ill.Dec. 173, 803 N.E.2d 577. In Hernandez , the defendant was indicted for aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2000)). He was arrested on that charge and released on bail. After failing to appear, the defendant's bond was revoked and he was later arrested for a second time. As in the case at hand, the warrant authorizing the defendant's second arrest noted the original violation of aggravated criminal sexual abuse. Approximately four months after the defendant's second arrest, the State dismissed the aggravated criminal sexual abuse charge and charged the defendant with violating his bail bond. Following the defendant's conviction on that charge, he argued that he was entitled to credit for the 122 days he was incarcerated following his second arrest and prior to being charged with violation of his bond. The trial court denied defendant's motion for sentencing credit. On appeal, the appellate court held that the defendant was entitled to the credit and directed the clerk of the court to enter a modified mittimus reflecting an additional 122 days of credit for time served. Hernandez, 345 Ill.App.3d at 171, 281 Ill.Dec. 173, 803 N.E.2d 577. The appellate court reasoned as follows: The offense underlying the issuance of the bench warrant to arrest was aggravated criminal sexual abuse. The March 16, 1999, warrant for defendant's arrest was predicated on his failure to appear in court on the sexual abuse charge. The March 16, 1999, warrant did not formally charge defendant with committing a crime; it was merely a procedural tool that the trial court was statutorily required to utilize to effect defendant's return so that he could face prosecution on the sexual abuse charge. Hernandez, 345 Ill.App.3d at 170, 281 Ill.Dec. 173, 803 N.E.2d 577. The appellate court further stated that it appeared the State manipulated the defendant's liberty when it permitted him to remain in custody for 122 days without bail before charging him with violating his bail bond. Hernandez, 345 Ill.App.3d at 170, 281 Ill.Dec. 173, 803 N.E.2d 577. According to the appellate court, if the State had charged the defendant for violating his bail bond when he was arrested, there would have been no question that he would have been entitled to the credit for time spent in custody under section 5-8-7(b) of the Code. Hernandez, 345 Ill.App.3d at 170-71, 281 Ill.Dec. 173, 803 N.E.2d 577. Rather, the State held the defendant in custody for 122 days before dismissing the underlying criminal sexual abuse charge and formally charging him with violating his bail bond. Hernandez, 345 Ill.App.3d at 171, 281 Ill.Dec. 173, 803 N.E.2d 577. Here, if defendant had been charged with failure to appear contemporaneously with the execution of the second arrest warrant, there is no question that he would have received credit under subsection (b) for the time he served while awaiting trial. Instead, he was not charged until approximately eight months later, prompting the trial court to articulate that he was not in custody on the violation of the bail bond charge during that time. Therefore, under the trial court's finding, subsection (b) did not apply. According to the trial and appellate courts, subsection (c) did not apply either because the second arrest was solely for failure to appear. Thus, under the lower courts' interpretations, while defendant was arrested for failure to appear, he was not in custody for that charge during the eight months he was incarcerated prior to the State electing not to prosecute the burglary charge and finally opting to charge him with the latter offense. We disagree with the trial court and appellate court's reasoning. Defendant is correct that he was entitled to credit under section 5-8-7(b). Despite the trial court's pronouncement that defendant was not in custody on the violation of the bail bond charge until he was formally indicted for that offense, once a defendant is arrested for an offense he or she is clearly in custody for that offense even before he or she is formally charged. See Hernandez, 345 Ill.App.3d at 173-74, 281 Ill.Dec. 173, 803 N.E.2d 577 (Callum, J., specially concurring). In factual situations such as the one found in the present case, the second arrest is for the bail bond violation and, therefore, subsection (b), rather than subsection (c), applies. See Hernandez, 345 Ill.App.3d at 173-74, 281 Ill.Dec. 173, 803 N.E.2d 577 (Callum, J., specially concurring). Subsection (b) allows credit    for time spent in custody as a result of the offense for which the sentence was imposed. 730 ILCS 5/5-8-7(b) (West 2000). Here, defendant was arrested for the bail offense, detained, and ultimately convicted and sentenced on that offense. Accordingly, he was entitled to credit for time served under subsection (b). We acknowledge, as the State argues, that defendant did not raise subsection (b) in his petition for leave to appeal but, instead, waited until his reply brief to do so. However, a sentence in conflict with a statutory guideline such as subsection (b) is void and may be challenged at any time. People v. Arna, 168 Ill.2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995). Further, the failure to raise an issue in a petition for leave to appeal does not present a jurisdictional bar but, rather, raises concerns of administrative convenience. Dineen v. City of Chicago, 125 Ill.2d 248, 265, 126 Ill.Dec. 52, 531 N.E.2d 347 (1988). In this case, defendant has already served his sentence and will not be granted any relief, regardless of how we resolve this appeal. As previously noted, the issue presented in this case is being addressed only to provide guidance under the public interest exception to the mootness doctrine. In this context, concerns of administrative convenience must be set aside in order to address the proper statutory provisions and to provide the most complete and accurate guidance to our public officers. Because our decision that section 5-8-7(b) controls is dispositive of this appeal, we need not and do not reach the parties' arguments regarding section 5-8-7(c). We further deny the State's argument to strike defendant's reply brief.",analysis
+754,2141149,1,3,"The first question presented is the jurisdiction of the Court of Claims to entertain constitutional tort claims. Under the common law, a State is immune from suit unless it waives its sovereign immunity. The provisions applicable here are contained in article VI, § 9 of the State Constitution, which continues the Court of Claims and authorizes the Legislature to determine its jurisdiction, and the Court of Claims Act, which contains the waiver of immunity and the jurisdictional and procedural provisions necessary to implement the constitutional section. The Court of Claims declined to exercise jurisdiction in this case because it believed the statutes were not sufficiently broad to waive the State's immunity from suit for constitutional torts. Sovereign immunity has been described as an outmoded holdover of the notion that the King can do no wrong (Breuer, The New York State Court of Claims: Its History, Jurisdiction and Reports, at 13). While the State and its agencies must pay for property taken for public purposes, in the absence of consent, immunity is otherwise a complete protection under the common law ( see generally , Restatement [Second] of Torts § 895B). In the past, New York waived immunity and compensated aggrieved parties for very few claims and they were adjusted by a variety of tribunals with limited jurisdiction. Any others were satisfied, if at all, by private bills addressed to the Legislature's sense of justice. The inequity and inefficiency of such a system became apparent over time and the method for handling claims against the State has gradually evolved to the present system in which jurisdiction over such matters is vested in the Court of Claims ( see , Breuer, op. cit. , at 13 et seq. for a history of the subject). The present Court of Claims Act was adopted in 1939. One commentator observed, it confers jurisdiction on the court to hear and determine almost every conceivable kind of action against the State ( see , Breuer, op. cit. , at 23). Subdivision (2) of section 9 of the present Act confers jurisdiction on the court [t]o hear and determine a claim of any person, corporation or municipality against the state for the appropriation of any real or personal property or any interest therein, for the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees. In Smith v State of New York (227 N.Y. 405, 409-410, rearg denied 229 N.Y. 571), we stated as a general rule that the jurisdiction of the Court of Claims is to be construed broadly and waiver of immunity narrowly. Claimant in Smith sought damages from the State for personal injuries allegedly sustained as the result of the State's negligence. We construed section 264 of the Code of Civil Procedure, a predecessor to section 9, as granting the Court of Claims jurisdiction of the matter, stating that its jurisdiction was of the broadest character (at 409). We denied liability, however, concluding that although the State had waived its immunity from suit, it had not waived its immunity from liability: the Court had jurisdiction to hear the claim, but the claim failed because the State had not waived its substantive liability ( id. , at 409-410). The jurisdiction of the Court of Claims is today, as it was characterized in Smith , of the broadest character, but the Smith Court's interpretation of the waiver provision of section 264 was at odds with the public policy which seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body ( see , Abbott v Page Airways , 23 N.Y.2d 502, 507; see also , Bing v Thunig , 2 N.Y.2d 656, 666 [(l)iability is the rule, immunity the exception], quoted with approval in Abbott , supra , at 507, n 2). Thus, the Legislature subsequently enacted a new statute to overcome the ruling in Smith . That revision, the substance of which was incorporated into the statute now before us, extended, supplemented and enlarged the waiver to remove the defense of sovereign immunity for tort actions ( Jackson v State of New York , 261 N.Y. 134, 138, rearg denied 261 N.Y. 637; see , Breuer, op. cit. , at 27). The present statute provides: [t]he state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations (Court of Claims Act § 8 [emphasis added]). The waiver includes all claims over which the Court of Claims has jurisdiction — appropriation, breach of contract and torts — and applies the rule of respondeat superior to the State ( see , Court of Claims Act § 9 [2]; Jackson v State of New York , supra , at 138). [3] The State contends that the waiver is limited to traditional common-law torts. It notes that damage actions under the Federal civil rights statutes, although authorized following the Civil War, were virtually unknown until well after the Court of Claims Act was enacted and damage claims brought directly under the Federal Constitution against Federal officials were not formally recognized until Bivens was decided in 1971. Thus, the State reasons, it cannot be said that the Legislature intended to confer jurisdiction upon the Court of Claims to redress constitutional torts when it enacted the present statute. In attempting to discover the legislative intention, it is well to recognize that the word tort has no established meaning in the law. Broadly speaking, a tort is a civil wrong other than a breach of contract ( see , Prosser and Keeton, op. cit. , § 1). There are no fixed categories of torts, however, and no restrictive definitions of the term ( see , Advance Music Corp. v American Tobacco Co. , 296 N.Y. 79; see also , Prosser and Keeton, op. cit. ). Indeed, there is no necessity that a tort have a name; new torts are constantly being recognized ( see , the extensive analysis by Justice Breitel, as he then was, in Morrison v National Broadcasting Co. , 24 AD2d 284, revd on other grounds 19 N.Y.2d 453; see also , 16 ALR3d 1175). Tort law is best defined as a set of general principles which, according to Prosser and Keeton, occupies a large residuary field of law remaining after other more clearly defined branches of the law are eliminated. (Prosser and Keeton, op. cit. , § 1, at 2.) Inasmuch as there is no clear definition by which wrongs are classified as torts, the Legislature could not have used the term when enacting section 9 (2) in 1939 with a precision that would limit the jurisdiction of the Court of Claims solely to common-law torts or those recognized at the time. It is more likely that the term was used generally to indicate a branch of the law broader than the then-existing categories and subject to expansion as new wrongs supporting liability were recognized. Indeed, there is evidence that the Court of Claims accepts this view for it has entertained jurisdiction over new torts recognized after the Act was adopted ( see, e.g. , Doe v State of New York , 155 Misc 2d 286, 297-298, mod 189 AD2d 199 [applying the rule in Bovsun v Sanperi , 61 N.Y.2d 219 (1984)]) and it has frequently retained jurisdiction of claims seeking damages for constitutional torts in the past, albeit without discussion ( see , Vaughan v State of New York , 272 N.Y. 102, appeal dismissed 300 US 638; Brenon v State of New York , 31 AD2d 776; Frady v State of New York , 19 AD2d 783; Periconi v State of New York , 91 Misc 2d 823; Dean v State of New York , 111 Misc 2d 97, affd 91 AD2d 805; Herman v State of New York , 78 Misc 2d 1025; Hook v State of New York , 15 Misc 2d 672). To be sure, there also have been Court of Claims decisions, most unpublished, denying jurisdiction to litigate constitutional wrongs, and the State would distinguish the cited cases as actions involving constitutional torts joined with common-law torts. That has not been uniformly true, however; some of the cited claims involved no common-law cause of action and others asserted separate causes of action involving only the violation of a constitutional duty and those constitutional tort claims were sustained ( see, e.g. , Dean , supra ; Periconi , supra ; Herman , supra ). The State also contends that the waiver contained in section 8 does not reach this claim because it is limited to liability actions similar to those which may be brought in Supreme Court against individuals and corporations ( see , Court of Claims Act §§ 8, 12 [1]). Individuals and corporations, it claims, cannot be sued for constitutional violations. Admittedly, there are few constitutional tort actions against individuals and corporations in Supreme Court because the Constitutions do not generally restrict the actions of private parties ( see, e.g. , SHAD Alliance v Smith Haven Mall , 66 N.Y.2d 496 [holding that article I, § 8 of the State Constitution, which guarantees the right of free speech, does not apply to individuals or corporations]). There are, however, some constitutional provisions that explicitly regulate private conduct and the prohibition against discrimination contained in section 11 is one of them. Article I, § 11 prohibits discrimination by any    person or by any firm, corporation, or institution, or by the state. Thus, the rights guaranteed by that constitutional provision may be enforced in Supreme Court to recover damages for private acts of discrimination although enabling legislation was required before the action could be maintained because the provision was not self-executing ( see , Executive Law § 297 [9]; Civil Rights Law § 40-d). Furthermore, the State and Federal courts have concurrent jurisdiction over constitutional tort claims asserted under the procedures authorized by the Federal civil rights statutes ( see , Maine v Thiboutot , 448 US 1, 3, n 1; Martinez v California , 444 US 277, 283-284, n 7; 1 Friesen, op. cit. , ¶ 7.03 [2]) and New York courts have consistently accepted jurisdiction of such claims against individuals or corporations ( see, e.g. , Town of Orangetown v Magee , 88 N.Y.2d 41; Cox v City of New York , 40 N.Y.2d 966; DiPalma v Phelan , 179 AD2d 1009, affd 81 N.Y.2d 754; Manti v New York City Tr. Auth , 165 AD2d 373; Clark v Bond Stores , 41 AD2d 620; see also , 1 Civil Actions Against State and Local Government, Its Divisions, Agencies and Officers §§ 7.90-7.97 [Shepards/McGraw-Hill, 2d ed]). Thus, while the analogy between a government and an individual or corporation contained in sections 8 and 12 of the Act has some inherent limitations because individuals do not do the same things in the same way as does the State (Davison, Claims Against the State of New York, ¶ 11.03, at 76-77; and see , Newiadony v State of New York , 276 App Div 59), the causes of action asserted by claimants are sufficiently similar to claims which may be asserted by individuals and corporations in Supreme Court to satisfy the statutory requirement. Accordingly, we conclude that the Court's jurisdiction is not limited to common-law tort causes of action and that damage claims against the State based upon violations of the State Constitution come within the jurisdiction of the Court of Claims.",jurisdiction
+755,1746805,1,3,"Stephenson's claim of insufficient evidence is essentially a question of statutory construction. Our review is therefore for errors at law. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). Because this case will be retried, we address the issues of statutory construction that arose. Iowa Code section 708.7 provides in pertinent part: 1. a. A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person does any of the following: (1) Communicates with another by telephone, telegraph, or writing without legitimate purpose and in a manner likely to cause the other person annoyance or harm. (2) Places a simulated explosive or simulated incendiary device in or near a building, vehicle, airplane, railroad engine or railroad car, or boat occupied by another person. (3) Orders merchandise or services in the name of another, or to be delivered to another, without the other person's knowledge or consent. (4) Reports or causes to be reported false information to a law enforcement authority implicating another in some criminal activity, knowing that the information is false, or reports the alleged occurrence of a criminal act, knowing the act did not occur. b. A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires,  personal contact  means an encounter in which two or more people are in visual or physical proximity to each other.  Personal contact  does not require a physical touching or oral communication, although it may include these types of contacts. 2. A person commits harassment in the first degree when the person commits harassment involving a threat to commit a forcible felony, or commits harassment and has previously been convicted of harassment three or more times under this section or any similar statute during the preceding ten years. Harassment in the first degree is an aggravated misdemeanor. Stephenson suggests a violation of section 708.7(1)(a)(1) requires proof the accused initiated a harassing telephone conversation. He notes that sections 708.7(1)(a)(2)-(4) all proscribe behavior that is instigated by the harasser, and that section 708.7(1)(b) prohibits purposeful, as opposed to accidental contact. This, he believes, evinces a pattern of legislative intent through which the crime of harassment should be construed as a proscription against annoyance inflicted through uninvited, unwelcome contact, rather than an interdiction against nuisance or vulgarity over the phone. Since Stephenson did not place the calls upon which his conviction stands, he reasons the State failed to prove an essential element of the crime. We are unpersuaded. A well recognized rule of statutory construction holds that when a statute is plain and its meaning clear, courts are not permitted to search for meaning beyond its express terms. State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998). We find the statute unambiguous. Section 708.7(1)(a)(1) neither expressly or impliedly supports Stephenson's theory. That sections 708.7(1)(a)(2)-(4) specify affirmative conduct on behalf of an offender, only serves to buttress the notion that the legislature specifically intended section 708.7(1)(a)(1) to forbid all harassing telephonic communications, regardless of who initiated contact. Had the legislature intended otherwise, it would have employed language of limitation; i.e., providing that only those who make calls, or telephone another, commit the crime of harassment. We also note that the predecessor statute to section 708.7(1)(a)(2) used language on the unlawful use of a telephone that more narrowly applies to an offender. Iowa Code section 714.37 (1975) states: It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person. (Emphasis added.) This statute was amended to provide that the act of harassment is committed by a person who communicates with another, rather than providing it is unlawful for a person with intent to harass to telephone another. The present statute was thus broadened to include those instances whereby someone other than the offender initiates the call. We hold that Iowa Code section 708.7(1)(a)(1) applies to a defendant who commits harassment by communication regardless of who initiates the contact between the victim and an accused. The defendant may thereby be prosecuted under Iowa Code section 708.7(2).",sufficiency of the evidence
+756,1577462,1,3,"Rule 10(I) provides that if no answer is filed within the time limited therefor, the matter may be disposed of by the court on its own motion or on a motion for judgment on the pleadings. We determine that the requirements of rule 10(I) have been satisfied, and therefore, we grant the relator's motion for judgment on the pleadings. The failure of a respondent to answer the formal charges subjects the respondent to a judgment on the formal charges filed. See State ex rel. NSBA v. Mahlin, 252 Neb. 985, 568 N.W.2d 214 (1997). We conclude that by virtue of respondent's conduct, respondent has violated the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1), DR 2-110(A)(2) and (3), DR 6-101(A)(3), DR 7-101(A)(2), DR 7-106(A), DR 9-102(A), and DR 9-102(B)(3) and (4). We further conclude that respondent has violated the attorney's oath of office. See § 7-104. We have stated that `[t]he basic issues in a disciplinary proceeding against a lawyer are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.' State ex rel. NSBA v. Frank, 262 Neb. 299, 304, 631 N.W.2d 485, 490 (2001) (quoting State ex rel. NSBA v. Brown, 251 Neb. 815, 560 N.W.2d 123 (1997)). Neb. Ct. R. of Discipline 4 (rev.2001) provides that the following may be considered by the court as sanctions for attorney misconduct: (1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu of suspension, on such terms as the court may designate; (4) censure and reprimand; or (5) temporary suspension. With respect to the imposition of attorney discipline in an individual case, we have stated that `[e]ach case justifying discipline of an attorney must be evaluated individually in light of the particular facts and circumstances of that case.' Frank, 262 Neb. at 304, 631 N.W.2d at 490 (quoting State ex rel. NSBA v. Rothery, 260 Neb. 762, 619 N.W.2d 590 (2000)). For purposes of determining the proper discipline of an attorney, this court considers the attorney's acts both underlying the events of the case and throughout the proceeding. Frank, supra ; State ex rel. NSBA v. Freese, 259 Neb. 530, 611 N.W.2d 80 (2000); State ex rel. NSBA v. Denton, 258 Neb. 600, 604 N.W.2d 832 (2000). To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, this court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law. State ex rel. Counsel for Dis. v. Hart, 265 Neb. 649, 658 N.W.2d 632 (2003); State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002). We have noted that the determination of an appropriate penalty to be imposed on an attorney requires consideration of any mitigating factors. Id. Pursuant to the formal charges, to which respondent has failed to respond, respondent has engaged in conduct that has violated several disciplinary rules and her oath of office as an attorney. There is no record in the instant case of any mitigating factors. We have previously disbarred attorneys who, similar to respondent, had violated disciplinary rules regarding trust accounts, mishandled client funds, and failed to cooperate with the Counsel for Discipline during the disciplinary proceedings. See, State ex rel. Special Counsel for Dis. v. Brinker, 264 Neb. 478, 648 N.W.2d 302 (2002); State ex rel. NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000). We have considered the undisputed allegations of the formal charges and the applicable law. Upon due consideration, the court finds that respondent should be disbarred from the practice of law in the State of Nebraska.",analysis
+757,4535984,1,1,"[1] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, - 639 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE APP. NO. C-4973 OF SKRDLANT Cite as 305 Neb. 635 which requires the appellate court to reach a conclusion independent of the lower court’s decision. Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).",standard of review
+758,4547376,1,4,"Before we review the lower court’s decision to grant summary judgment based on the discretionary function exception, we comment briefly on the order in which a court should address multiple grounds for dismissal. In cases such as this one, where the political subdivision seeks summary judgment on a number of different grounds, courts should address as a threshold matter any grounds which are jurisdictional. [4-6] Whether a court has subject matter jurisdiction is a threshold issue that should be resolved prior to an examination of the merits. 7 In cases under the PSTCA, if the discretionary function exception applies, the political subdivision is immune from suit 8 and the proper remedy is to dismiss the action for lack of subject matter jurisdiction. 9 Because 4 Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019). 5 Id. 6 See Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80 (1993). 7 Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019). 8 See McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d 851 (2017). 9 Reiber v. County of Gage, 303 Neb. 325, 341, 928 N.W.2d 916, 928 (2019) (“[a] suit that is barred by sovereign immunity is dismissed for lack of subject matter jurisdiction”). - 199 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports LAMBERT v. LINCOLN PUBLIC SCHOOLS Cite as 306 Neb. 192 it presents a jurisdictional question, courts should determine the applicability of a statutory exception under either the PSTCA or the State Tort Claims Act (STCA) 10 before considering nonjurisdictional grounds for summary judgment. 1. Applicable Legal Standards The discretionary function exception is codified at § 13-910(2) and provides the PSTCA shall not apply to “[a]ny claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision, whether or not the discretion is abused.” A similar provision is contained in the STCA, and we have held that cases construing the STCA’s discretionary function exception are equally applicable to cases under the PSTCA. 11 [7] The purpose of the discretionary function exception of the STCA and the PSTCA is to prevent judicial “secondguessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of action in tort. 12 It does not extend to the exercise of discretionary acts at an operational level, where there is no room for policy judgment. 13 It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function applies in a given case. 14 [8] A two-part analysis determines whether the discretionary function exception applies. 15 First, the court must consider whether the action is a matter of choice for the acting political subdivision or employee. 16 Second, if the court concludes 10 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014). 11 See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012). 12 Id. 13 Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016). 14 Id. 15 See McGauley, supra note 8. 16 See id. - 200 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports LAMBERT v. LINCOLN PUBLIC SCHOOLS Cite as 306 Neb. 192 that the challenged conduct involves an element of judgment, it must then determine whether that judgment is of the kind that the discretionary function exception was designed to shield. 17 Examples of discretionary functions include the initiation of programs and activities, establishment of plans and schedules, and judgmental decisions within a broad regulatory framework lacking specific standards. 18 2. Lamberts’ Arguments In arguing that the district court erred in applying the discretionary function exception, the Lamberts present two arguments. First, they argue there is a genuine factual dispute about whether Sheridan’s “no dogs” policy actually extended beyond school hours. Second, and primarily, they argue the failure of LPS employees to enforce Sheridan’s “no dogs” policy was an operational judgment, and not the kind of judgment the discretionary function exception was meant to shield. 19 As we explain below, neither argument has merit. (a) No Genuine Issue of Material Fact Regarding Scope of Sheridan’s “No Dogs” Policy We find no support in the record for the Lamberts’ suggestion that there is a genuine issue of material fact regarding whether Sheridan’s “no dogs” policy extended beyond the hours students were in school. The Lamberts cite to deposition testimony from a Sheridan teacher who also taught after-school clubs pursuant to an agreement with Sheridan’s parent-teacher organization. This teacher testified that when students were dismissed from the after-school clubs, she, or another person paid by the parent-teacher organization, would stay with the students until they were picked up by a parent. Even construing this testimony in the light most favorable to the Lamberts and giving them every reasonable inference, this 17 Id. 18 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015). 19 See McGauley, supra note 8. - 201 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports LAMBERT v. LINCOLN PUBLIC SCHOOLS Cite as 306 Neb. 192 testimony had nothing to do with LPS employees monitoring the playground area or enforcing the “no dogs” policy after hours. There is nothing about this testimony that creates a genuine issue of material fact concerning whether Sheridan’s “no dogs” policy extended beyond regular school hours. To the contrary, we agree with the district court that the undisputed evidence in the record demonstrates that Sheridan’s “no dogs” policy applied, and was enforced, only during regular school hours, but not after students were dismissed for the day. (b) Discretionary Function Exception Correctly Applied The Lamberts concede that the decision of Sheridan administrators to adopt a “no dogs” policy was a discretionary function, but they argue that the failure to enforce that policy after school hours was a “failure on the operational level by the employees to enforce the policy Sheridan had decided to put in place.” 20 Their argument in this regard is premised on the assumption that Sheridan’s “no dogs” policy applied after school hours and therefore should have been enforced after school hours. But this assumption finds no support in the evidence. As already stated, the evidence was undisputed that Sheridan’s policy was not to allow dogs on the school grounds during school hours, even on leashes, but that the “no dogs” policy did not apply after regular school hours. And to the extent the Lamberts can be understood to argue that Sheridan negligently adopted a policy prohibiting dogs on school grounds only during school hours, or that Sheridan negligently decided not to supervise the playground after students were dismissed for the day, we find such conduct falls squarely within the discretionary function exception. On this record, both steps of the discretionary function analysis are met. Sheridan’s decision to enforce its “no dogs” 20 Brief for appellant at 21. - 202 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports LAMBERT v. LINCOLN PUBLIC SCHOOLS Cite as 306 Neb. 192 policy only during school hours, and its decision not to supervise the playground area at all after school hours, involved the exercise of judgment. 21 And it was precisely the kind of judgment the discretionary function exception is designed to shield. 22 LPS policies give individual school administrators broad discretion as to what restrictions to place on the use of school buildings and grounds and how to utilize staff to supervise activities on school grounds. The record shows Sheridan administrators, in the exercise of this discretion, decided to establish and enforce a “no dogs” policy only during school hours and decided not to supervise the school playground area at all after students have been dismissed for the day. How to utilize staff and budget to supervise school grounds and regulate activities thereon are administrative decisions grounded in social, economic, and political policy, and they fall within the discretionary function exception. 23",analysis
+759,2094758,1,1,"¶ 3 On July 23-24, 2003, Robert underwent surgery to have an ulcer repaired. The surgery appeared to have been successfully completed. However, Robert soon developed a fever and his white blood cell count became elevated, suggesting an infection. On August 8, 2003, it was determined that a sponge had been left inside Robert's abdominal cavity at the conclusion of the surgery on July 24, 2003, and that the sponge probably was the source of the infection. That same day, a second surgery was performed and the sponge was removed. Unfortunately, in the days following the second surgery, Robert's health did not improve, and on August 11, 2003, he died from sepsis allegedly associated with the retained sponge. ¶ 4 On August 9, 2006, the estate and Kathy filed suit against the doctors and support staff involved in Robert's surgery, as well as OHIC Insurance Company and others. The estate alleged medical negligence in Robert's care and treatment, and made claims for damages. Kathy sued for wrongful death, also based on alleged medical negligence in Robert's care and treatment. OHIC moved for summary judgment, arguing that both the estate's and Kathy's claims were barred by the medical negligence statute of limitations, Wis. Stat. § 893.55(1m)(a). Section 893.55(1m) provides: [A]n action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission. [4] ¶ 5 The estate and Kathy countered OHIC's motion by arguing that (1) under Paul v. Skemp, 2001 WI 42, 242 Wis.2d 507, 625 N.W.2d 860, Robert's injury did not occur until on or after August 9, 2003, because his condition did not become irreversible until at least that date, and the claims were therefore timely, having been filed within three years of such injury; (2) under Miller v. Luther, 170 Wis.2d 429, 489 N.W.2d 651 (Ct.App.1992), even if the estate's survival action was time-barred, the statute of limitations on Kathy's wrongful death claim did not start to run until the date of Robert's death, August 11, 2003, and her claim was therefore timely, having been filed within three years of Robert's death; and (3) even if either or both of the claims were not timely asserted, the defendants were estopped from raising the statute of limitations because an OHIC claims adjuster had told their attorney that the claims would not expire until August 13, 2006. ¶ 6 The circuit court granted OHIC's motion, concluding that, under Fojut v. Stafl, 212 Wis.2d 827, 569 N.W.2d 737 (Ct. App.1997), Robert suffered an injury triggering the statute of limitations no later than August 8, 2003, when the second surgery to remove the sponge occurred. As a result, the circuit court dismissed the estate's claim, filed on August 9, 2006, as untimely under Wis. Stat. § 893.55(1m)(a). ¶ 7 The circuit court also rejected Kathy's argument that her wrongful death claim accrued on the date of Robert's death. Instead, the court concluded that Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis.2d 142, 638 N.W.2d 355, had decided that Wis. Stat. § 893.55(1m)(a) was the operative statute of limitations for wrongful death claims based on medical negligence, and that those claims run from the date of the underlying injury. As a result, because Kathy's claim was filed more than three years after Robert's injury, her claim was time-barred by § 893.55(1m)(a). ¶ 8 Finally, the circuit court rejected the plaintiffs' estoppel argument. The court concluded that the plaintiffs' reliance on the statements of an insurance claims adjuster, in deciding not to file earlier, was not reasonable. The court of appeals affirmed the circuit court's decision for largely the same reasons expressed by the circuit court. [5] ¶ 9 We granted review and now affirm.",facts
+760,1570402,1,2,"To resolve this appeal we must decide whether: (1) the appeal board erred when it held the commissioner did not violate Iowa Code section 17A.3 when he used federal interpretations of the OSHA standards as a guide in interpreting those standards; (2) the City's due process rights were violated when the appeal board relied on the federal interpretations of the OSHA standards; (3) the appeal board erred in interpreting the general industry permit-required confined spaces standards (29 C.F.R. section 1910.146); (4) substantial evidence supports the appeal board's conclusion that the general industry permit-required confined spaces standards applied to the work in the sewer; (5) the board properly determined that the City was a host employer under 29 C.F.R. section 1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal board's decision to find the City committed two serious violations.",issues
+761,1104029,1,4,"For the foregoing reasons, we find it is unconstitutional to apply La.Rev.Stat. 15.529.1 for the purpose of allowing juvenile adjudications to be counted as predicate offenses, where these adjudications were obtained without the right to a jury trial. In our view, the use of such adjudications violates Apprendi's narrow exception, which exempts only prior convictions from its general rule that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Although these adjudications can be reliably and constitutionally obtained without the right to a jury trial, this is because the juvenile proceeding is a civil proceeding with a focus on rehabilitation and non-criminal treatment of the adjudicated delinquent. Prior convictions are excepted from the Apprendi holding because they were the product of proceedings that afforded crucial procedural protections—particularly fair notice, the right to jury trial and proof beyond a reasonable doubt.",conclusion
+762,2417342,1,1,"We first consider Puckett's contentions that (1) the trial court erred in denying his motion for a directed verdict, and (2) the evidence was insufficient to sustain his conviction. A motion for directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only the evidence supporting the conviction need be considered. Id. In his motion for directed verdict, Puckett challenged the sufficiency of the evidence as it related to the element of forcible compulsion. Forcible compulsion is defined as physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark.Code Ann. § 5-14-101(2) (Repl.1993). Here, there is ample evidence of forcible compulsion. Graves testified that Puckett held a gun on her, told her to undress, and then forced her to engage in oral and normal sexual intercourse. She further testified that he hit her twice in the head and kicked her in the ribs. Other testimony substantiated the fact that Graves was in pain and that her ribs were fractured. Additionally, Graves testified that Puckett cut her brassiere off with a kitchen knife when she did not remove it fast enough. The knife and the cut brassiere were introduced into evidence. A liquor store clerk saw him with the gun, which was also introduced into evidence. Clearly, there was sufficient evidence to compel a conclusion that Puckett used physical force as well as the threat of physical force to rape Graves. Puckett further argues that there was insufficient evidence to sustain the conviction. The thrust of this argument is that there was no corroboration of Graves's testimony about the rape. We have held many times that the testimony of the rape victim alone suffices and need not be corroborated. See, e.g., Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Graves's testimony constitutes substantial evidence. To the extent there were inconsistencies in her testimony, this was a matter of credibility for the jury to resolve. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).",sufficiency of the evidence
+763,888584,1,2,¶ 9 We state the sole issue on appeal as follows: Did the District Court err when it denied Barron's motion to dismiss the charges against him on double jeopardy grounds?,issues
+764,1563959,2,1,"In all death penalty direct appeals, whether or not the appellant specifically raises the issue, this Court reviews the evidence to ensure that it is sufficient to support the conviction or convictions of first-degree murder. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 651 n. 3 (2008). Evidence presented at trial is sufficient when, viewed in the light most favorable to the Commonwealth as verdict winner, the evidence and all reasonable inferences derived therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt. In the case of first-degree murder, a person is guilty when the Commonwealth proves that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. An intentional killing is a killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing. The Commonwealth may prove that a killing was intentional solely through circumstantial evidence. The finder of fact may infer that the defendant had the specific intent to kill the victim based on the defendant's use of a deadly weapon upon a vital part of the victim's body. Id. at 651-52 (citations and quotation marks omitted). Further, in reviewing whether the evidence was sufficient to support the first-degree murder conviction or convictions, the entire trial record should be evaluated and all evidence received considered. Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1032-33 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). In addition, we note that the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. Id. at 1033. Here, Appellant has not raised an issue regarding the sufficiency of the evidence; however, our independent review compels the conclusion that the evidence adduced at trial overwhelmingly supports Appellant's convictions for first-degree murder. The evidence established that at approximately 1:40 p.m. on April 28, 2000, Mt. Lebanon firefighters responded to an activated fire alarm set off at the Gordon residence at 788 Elm Spring Road, Mt. Lebanon. The responding firefighters, and police officers who later arrived at the scene, discovered at this residence the body of Anita Gordon, an Orthodox Jew, who had been shot multiple times in the chest, abdomen, and both hands, and who exhibited no signs of life. An incendiary device known as a Molotov cocktail was also discovered as having been thrown and ignited in a first-floor bedroom of the Gordon residence. During the discovery of the violence perpetrated at the Gordon residence, police began to receive reports regarding other nearby acts of violence, specifically, shootings occurring at the Beth El Synagogue, 1.3 miles from the Gordon residence, and at the Scott Towne Center, a strip mall less than one mile from the synagogue. These reports identified the shooter as a white male driving a black Jeep. While these reports were coming in, Officer Mary Susan Joyce was interviewing neighbors of Anita Gordon. Officer Joyce was questioning Inese Baumhammers, Appellant's mother, when Officer Joyce received a radio dispatch that the vehicle used in the reported shootings was a black Jeep registered to an individual named Baumhammers. Officer Joyce asked Ms. Baumhammers if she owned a black Jeep. Ms. Baumhammers replied that she did and that her son, Appellant herein, was then using the vehicle. With respect to the first of two synagogue incidents, Susan Finder, a worshipper at Beth El Synagogue, testified that sometime after 1:20 p.m. on April 28, 2000, she was leaving the parking lot of the synagogue when she observed a black Jeep pull into the lot. Finder was able to identify Appellant as the driver of the Jeep. Dennis Wisniewski testified that on the day of the incident he was stopped at a red light three car lengths from the synagogue when he heard a bang and turned to see a man matching Appellant's description discharging five or six pistol rounds into the synagogue. Wisniewski testified that he then observed the shooter walk casually back to a black Jeep Cherokee. Philip Balk, a member of the synagogue, testified that at approximately 2:00 p.m., he arrived at the scene to observe that windows had been broken out and that a swastika and the word Jew had been spray-painted in red paint on the building. Detective Edward Adams of the Allegheny County Police testified that when he arrived at the synagogue at approximately 2:50 p.m., he observed the broken glass and the desecration with the red spray paint. He also observed two bullet holes in some of the glass and bullet fragments in the synagogue's vestibule. Regarding the shooting at the Scott Towne Center, Joseph Lanuka testified that at approximately 1:30 p.m. on April 28, 2000, he dropped off Anil Thakur at the India Grocery, an establishment in the shopping mall. Lanuka told Thakur that he would be back in fifteen minutes to pick him up. When Lanuka returned, he saw police entering the grocery store and Thakur's grocery bag lying on the ground. Lanuka went into the store and saw Thakur lying on the ground with three or four bullet holes in his chest. He also saw a man lying behind the counter, who was identified at trial as Sandip Patel. Thakur died from his wounds and Patel was paralyzed from his neck down as a result of the gunshots he had received. Also regarding this incident, John McClusky testified that at approximately 1:45 p.m., he heard a noise, which he ascertained were gunshots, and observed Appellant pointing a gun at an individual who ran past Appellant into the grocery store. Appellant turned and followed the man into the store; McClusky then heard three more gunshots. Appellant left the establishment, made eye contact with McClusky, and then walked slowly, calmly, and collectedly toward a lower area of the mall parking lot. McClusky then observed Appellant drive away in a normal fashion in a black Jeep Cherokee. Jennifer Lynn Fowler also testified that she witnessed the events described by McClusky. A second synagogue incident occurred that afternoon at the Ahavath Achim Synagogue in Carnegie, approximately 2.1 miles from the Scott Towne Center. Carole Swed testified that at approximately 2:00 p.m. she was stopped at a traffic light across the street from the synagogue. Swed heard two loud pops and turned to observe Appellant, with a calm demeanor, standing outside of the synagogue. She observed him fire several shots into the synagogue, then get into a black Jeep and drive away. Swed was able to record the license plate number of the Jeep, and she promptly provided this information to the police, whom she immediately called. Detective Edward Fisher of the Allegheny County Police testified that when he arrived at the synagogue, he observed five bullet holes in the structure, including one in a flyer advertising a meeting of Holocaust survivors that was scheduled at the synagogue. David Tucker testified that between 2:15 and 2:30 p.m. on April 28, 2000, he was the lone diner at the Ya-Fei Chinese Restaurant in the Robinson Towne Center, a strip mall located approximately ten minutes away by car from the Ahavath Achim Synagogue. In the restaurant at the time was Ji-Ye Sun, the restaurant manager, and Thao Pak Pham, a delivery person. During this period, Appellant walked into the restaurant carrying a briefcase. Appellant and Pham had a verbal exchange, and then Tucker saw Pham begin to run. Tucker testified that Appellant pulled a pistol from his case and shot Pham in the back as he was running past Tucker. Sun was shot in the chest. Although paramedics arrived quickly at the establishment, both Pham and Sun died from their gunshot wounds. George Lester Thomas II testified that at approximately 2:40 p.m., he met his best friend, Garry Lee, at the C.S. Kim Karate Studio, located in the Center Stage Shopping Center, which was not a far distance from the Robinson Towne Center. Both men were warming up in the studio when Appellant entered and pointed a handgun at Thomas. Appellant did not shoot but turned the gun in the direction of Lee, who was standing next to Thomas. Appellant shot Lee twice in the chest and then calmly walked away as Thomas ran to the back of the studio in an effort to summon help. However, Lee died from his gunshot wounds. Thomas is white; Lee was black. Diane Wenzig, the owner of a pizza shop two doors away from the karate studio, testified that she observed Appellant walk into the karate studio with a gun in one hand and a briefcase in the other. After hearing the gunshots, Wenzig instructed her son to call 911. Wenzig observed Appellant get into a black Jeep Cherokee, whose license plate number she recorded and provided to the police. Following the report of this incident, Officer John Fratangeli of the City of Aliquippa Police Department was instructed to station himself on the Aliquippa-Ambridge Bridge along Route 51 so that he could intercept Appellant. [3] Officer Fratangeli testified that at approximately 3:10 p.m., he observed Appellant's black Jeep Cherokee turn onto the bridge. Appellant was not driving erratically; in fact, he was driving within the speed limit and using proper turn signals. Officer Fratangeli followed Appellant's vehicle, and when assisting units arrived, he initiated a traffic stop, two blocks from another synagogue. Appellant was arrested and his .357 caliber pistol was found in a soft-sided briefcase in the Jeep. A criminologist with the Allegheny County Coroner's Office testified that forensic tests confirmed that the bullets recovered from the bodies of Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee had all been discharged from Appellant's weapon. At trial, the Commonwealth also introduced the testimony of Appellant's cellmates at different correctional facilities. Bobby Jo Eckles testified that Appellant told him that he had shot a nigger and that Appellant made other derogatory comments regarding blacks and Jews. David Brazell testified that Appellant told him that he had killed Anita Gordon to make a statement and that he had desecrated the Beth El Synagogue because that was where Mrs. Gordon had worshipped. Other fellow inmates testified that Appellant spoke of his anti-immigration and pro-segregation views, his desire to start a white supremacist party, and his hatred for all ethnic people. The foregoing evidence was amply sufficient to permit the jury to conclude, beyond a reasonable doubt, that Appellant intentionally, deliberately, and with premeditation killed Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee. Each of these victims was unlawfully killed; Appellant committed the killings; and the mere fact that Appellant shot four of the victims in the chest, sometimes several times, was sufficient to permit the jury to find a specific intent to kill. Additional evidence of Appellant's specific intent to kill included (1) the statements he later made indicating his desire to make a statement by his shooting of Mrs. Gordon; (2) his disparagement of the ethnicities of the victims; and (3) his violent desecration of synagogues. Having determined that the evidence overwhelmingly supports his first-degree murder convictions, we now turn to Appellant's claims.",sufficiency of the evidence
+765,2639367,1,5,"[¶ 27] In her final claim of error, Appellant questions the sufficiency of the evidence to support her forgery conviction. Appellant was convicted of violating Wyo. Stat. Ann. §§ 6-3-602(a)(ii) and (b) (LexisNexis 2001): (a) A person is guilty of forgery if, with intent to defraud he: .... (ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or .... (b) Except as provided in subsection (c) of this section, forgery is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both. Appellant's challenge invokes the definition of writing, which means printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege or identification. Wyo. Stat. Ann. § 6-3-601 (LexisNexis 2001). [¶ 28] The evidence at trial indicated that Appellant manually entered the credit card numbers into the machine since Harlow did not possess the actual card. After the receipt was printed, Appellant would give it to Harlow so he could sign Eric Huff's name. Appellant claims her actions did not constitute uttering a forged writing largely because her actions—manually entering the credit card numbers—did not purport to be the act of another. She also argues that the credit card receipt did not become forged under the statute until Harlow had signed it. Thus, the simple act of keying in the credit card numbers cannot support a forgery conviction because the action was taken before any forgery existed. [¶ 29] Our standard for reviewing sufficiency of the evidence claims is well established: When reviewing a claim of insufficient evidence, we assume that the evidence favoring the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. Lucero v. State, 14 P.3d 920, 924 (Wyo.2000) (citing Wentworth v. State, 975 P.2d 22, 25 (Wyo.1999)) (quoting Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, 678 (1935)). Resolution of Appellant's claim requires us to invoke our rules of statutory interpretation: When we analyze statutes, we endeavor to interpret them in accordance with the legislature's intent. Fall v. State, 963 P.2d 981, 983 (Wyo.1998). We begin by making an `inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.' Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia so that no part will be inoperative or superfluous. Fall, 963 P.2d at 983. Capshaw v. State, 10 P.3d 560, 564 (Wyo. 2000). [¶ 30] We conclude that there was sufficient evidence to convict Appellant of forgery. The elements of forgery are: (1) the making, completing, executing, authenticating, issuing or transferring of a writing purporting to be the act of another who did not authorize the act; and (2) with the intent to defraud. As noted above, the statutes define writing as the printing or any other method of recording certain specified items or other symbols of value, right, privilege or identification. Under the plain language of the statute, Appellant's actions clearly constitute a forgery. Appellant entered the credit card numbers into a machine that printed out a receipt of a financial transaction. This receipt purported to be a recording of a sale of goods to Eric Huff. The record conclusively demonstrated that Eric Huff had not given his permission for this transaction and that Appellant was aware of that fact. The word make is defined, in its ordinary sense as to cause to exist ... to form, fashion, or produce. Black's Law Dictionary 955 (6th ed.1990). By entering the credit card numbers into the machine and printing a receipt, Appellant caused a document to exist that purported to be the act of another person who did not authorize its creation. The fact that Harlow is the one who signed the receipt does not alter the fact that it was Appellant who created the false document and thereby committed forgery. [¶ 31] Appellant also claims that there is insufficient evidence to sustain her forgery conviction because the Amended Information did not identify the specific transaction constituting the basis of the charge. Originally, Appellant was charged with two counts of forgery. Harlow had made fifteen transactions on Eric Huff's credit card: four at one convenience store at which Appellant worked, and eleven at the other. After the presentation of evidence, the district court granted Appellant's motion for a judgment of acquittal on one of the forgery counts but allowed the other counts to go to the jury. The district court instructed the jury that it should determine whether Appellant committed a forgery between the dates of April 15 and May 2, 1998. This time frame encapsulated all of the transactions between Harlow and Appellant. After the jury returned a guilty verdict, Appellant renewed her motion for a judgment of acquittal raising the same argument she presents before us. In its decision letter, the district court responded: As noted during the trial proceedings, it appears that the method of charging the multiple counts in the Amended Information in this case was problematic. The difficulties and concerns noted by this judge contributed to the granting of a judgment of acquittal on Counts II, IV, and V of the Amended Information. In granting the judgment of acquittal on those three counts, the Court closely reviewed the requirements of Rule 3 of the Wyoming Rules of Criminal Procedure, and the requirements that (a) the information state the essential elements of the alleged crime, and (b) be sufficiently definite so that the defendant can prepare his or her defense and grant protection from further prosecution for the same offense (double jeopardy). Cheatham v. State, 719 P.2d 612, 617 (Wyo.1986). Based upon the situation presented with respect to the charge of forgery contained in Count I in this case, it would not appear that the above analysis provides a basis for the granting of a judgment of acquittal as to that charge. While it surely may have been preferable for Count I to set forth a precise date and identity of the alleged forged writing or writings, it cannot be said that the remaining forgery charge fails to comply with the requirements of Rule 3 of the Wyoming Rules [of] Criminal Procedure. Further, it cannot be said that Count I of the Amended Information, after the dismissal of Count II, fails to sufficiently appraise the defendant of the charge for the purposes of preparing her defense, or fails to protect the defendant against another prosecution for the same offense, as such criteria has been developed by the Supreme Court of the United States in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and its prodigy [sic]. Therefore, the Court must deny the defense's Motion for Judgment of Acquittal on Count I of the Amended Information in this case. Appellant makes no suggestion that the forgery charge does not comply with the requirements of W.R.Cr.P. 3. [3] Furthermore, all of the transactions involved Appellant entering the credit card numbers manually into the machine and printing out a receipt for the transactions. Every one of those actions would support a forgery conviction, and Appellant makes no argument to the contrary. Theoretically, the State could have charged Appellant with fifteen counts of forgery. However, Appellant was convicted on one count that embraced all fifteen acts. Appellant cites no authority to the effect that this was improper. Furthermore, Appellant does not contend that she was not aware of the basis of the charge against her or that Appellant's ability to defend herself was in any way compromised. As noted, there is sufficient evidence to support a forgery conviction on each act, and since each of those acts was contained within the charge that went to the jury, double jeopardy has attached to each one. Accordingly, we concur with the district court and affirm Appellant's conviction.",sufficiency of the evidence
+766,1799787,1,2,"¶ 5. All parties involved agree that Jessie Spann was a healthy, relatively new employee of Wal-Mart, participating in a training program under the supervision of his supervisor, Mark L. Tate. Tate provided the following testimony when asked whether Spann was a good employee: A. I recruited him. He didn't come to me for a job. I went to him and recruited him and also seeked [sic] his employers' statements about him and what type of worker he was. I observed him. I saw he was a hard worker and with Wal-Mart that's more or less what we are told to do. Go out and if they don't know the job we can teach them the job. We can train them. ¶ 6. All parties also agree, that on September 7, 1990, while in the course and scope of employment, a then healthy Jessie Spann, who was carrying a tire and tire mount, slipped and fell on a wet, slippery floor which had recently been cleaned with both water and degreasers and injured his back. Wal-Mart admitted the injury and sent Spann to see Dr. David Gandy. Spann felt that Dr. Gandy was not helping his recovery, and on his own went to see Dr. John Frenz in Brandon, Mississippi, who performed a myelogram, a CT scan and spinal x-rays while Spann was hospitalized. Dr. Frenz is certified by the American Board of Neurologic and Orthopedic Surgeons, and additionally board certified by the American Board of Clinical Neurosurgery and by the American Board of Spinal Surgery. ¶ 7. The radiologist who initially read the x-rays found an abnormality or bulging of the L 4-5 spinal disc, which was confirmed by Dr. Frenz. Dr. Frenz recommended that due to the abnormality at the L 4-5 spinal disc, that he [Spann] have a partial removal of that disc by a procedure called automated percutaneous nucleotome disectomy, which more simply put is something similar to orthoscopic surgery of the knee [with] which many people are familiar. Dr. Frenz testified that he believed, based on a reasonable medical certainty, that Spann could be relieved, at least in part, of his continuing symptoms and could reasonably be expected to have an improvement in his functional capacity if the procedure was completed. ¶ 8. Basing his opinion on Spann's history, examination, treatment and the diagnostic tests performed on him, Dr. Frenz opined that there was a direct causal relationship between the accident which occurred on September 7, 1990 and the set of complaints, symptoms and findings for which he treated him. ¶ 9. Upon the referral of Dr. Frenz, Spann asked Dr. Elmer Nix, an orthopedic surgeon, for a second opinion. Dr. Nix reported a very minimal bulge of the L-4 disc that he felt was within normal limits. He further concluded that Spann appeared to be magnifying his symptoms during the course of the examination and opined that Spann should recover from his lower back strain in six to eight weeks. However, during the hearing before the Commission, Dr. Nix stated on cross-examination that his answers were uncertain because he had not seen Spann very often. The record shows that Dr. Nix saw and examined Spann on only one occasion. Dr. Nix also admitted on cross-examination that he had not reviewed Spann's MRI. ¶ 10. Spann also saw Dr. Patrick Barrett, another orthopedic surgeon, on a limited basis, upon the recommendation of his first attorney. [1] Dr. Barrett diagnosed probable internal disc derangement 4-5, but stated that his opinion would be that it would be less than a 50-50 chance that this [Dr. Frenz's suggested disectomy] would improve Spann's situation enough to go back to heavy work. Both Drs. Frenz and Barrett found that Spann could no longer perform the heavy work he had been doing prior to the injury. ¶ 11. After Spann returned to work, he was placed on light duty. Spann's supervisor testified that although Spann had been deliberately placed on light duty, he could not perform the work, and that on many occasions he could not work a full day because of the pain. The supervisor said that based on his observation Spann's pain prevented him from stooping or bending, and he could only stand for short periods of time.",facts
+767,1257482,1,3,"Exhaustive examination of the complex trial evidence, including blueprints, shop drawings and correspondence reveals a conflict as to who was to design and why that design did not work satisfactorily within the environment of the plant in southwestern Wyoming. We would find this entire subject subsumed within the inquiry of design responsibility and, with conflicting evidence, will accord the trial court the normal preference in affirmation. [2] Our rule is that where the sufficiency of evidence is an issue we uphold the judgment if there is evidence to support it, and in so doing we look only to the evidence submitted by the prevailing party and give to it every favorable inference which may be drawn therefrom, without considering any contrary evidence. Hance v. Straatsma, 721 P.2d 575, 578 (Wyo. 1986). See also Ruby Drilling Co., Inc. v. Title Guar. Co. of Wyoming, Inc., 750 P.2d 674 (Wyo. 1988); Eddy v. First Wyoming Bank, N.A.-Lander, 750 P.2d 294 (Wyo. 1988); Alexander v. Phillips Oil Co. a subsidiary of Phillips Petroleum Co., 741 P.2d 117 (Wyo. 1987); Western Utility Contractors, Inc. v. City of Casper, 731 P.2d 24 (Wyo. 1986); and Simpson v. Kistler Inv. Co., 713 P.2d 751 (Wyo. 1986). Somewhat differently placed is the phrase turn key as found in the supply purchase agreement. As a well-established construction industry term, turn key means completion of the facility to operational status subject only to punch list and warranty item so that the purchaser can turn the key and commence occupancy or operation. See TK Harris Co. v. CIR, 112 F.2d 76 (6th Cir.1940), involving the turn key construction of an oil well; Glassman Const. Co., Inc. v. Maryland City Plaza, Inc., 371 F. Supp. 1154, 1157 (D.Md. 1974); Dachner v. Union Lead Mining & Smelter Co., 65 Nev. 313, 195 P.2d 208 (1948); Robbins v. C.W. Myers Trading Post, Inc., 253 N.C. 474, 117 S.E.2d 438 (1960); Waddle v. Gammel, 305 P.2d 559, 563 (Okl. 1956); and Gantt v. Van Der Hoek, 251 S.C. 307, 162 S.E.2d 267, 270 (1968). Cf. Valentine v. Ormsbee Exploration Corp., 665 P.2d 452 (Wyo. 1983), day work contract distinguished from hourly contract or turn key contract. A turnkey project is one in which the developer builds in accordance with plans and specifications of his own architect subject to performance specifications for quality and workmanship, and with limited guidance for features as style of house, number of bathrooms, etc. 1 B.J. McBride & I. Wachtel, GOVERNMENT CONTRACTS § 9.120[12] (1980). Lincoln Services, Ltd. v. United States, 678 F.2d 157, 158-59 n. 2, 230 Ct.Cl. 416 (1982), concerning a turnkey design and construction contract. The requirements of minimum specifications do not prevent a contract from being turn key. C & L Const. Co. v. United States, 6 Cl. Ct. 791, 802 n. 4 (1984), aff'd 790 F.2d 93 (Fed. Cir.1986). However, with delivery of unassembled parts in Tulsa, Oklahoma, and the key to be ultimately turned in far away LaBarge, Wyoming, and the assemblers situated at plants near Salt Lake City, Utah, this court agrees with the trial court in this factual situation, regardless of the term's more normal meaning. Smithco did not establish a warranty of design by IFI considering the completion and installation by third parties on behalf of the subcontractor, Smithco. As Justice Holmes in Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) astutely espoused: A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. The use of the term turn key does not abrogate the general rule that the entire contract must be considered to determine the meaning. Glassman Const. Co., Inc., 371 F. Supp. 1154; Robbins, 117 S.E.2d 438. Also, the express contract terms can control over any industry usage. Glassman Const. Co., Inc., 371 F. Supp. at 1158. Thus when the acceptance letter's use of the expression turn key is read in conjunction with the job specification requirements, we conclude that the trial court correctly found no design responsibility assumed by IFI. Moreover, the design responsibility in even a usual turn key contract can be restricted. [T]he term turn-key construction job under the applicable case law imposes upon the contractor the responsibility for providing the design of the project and responsibility for any deficiencies or defects in design, except to the extent that such responsibility is specifically waived or limited by the contract documents. Mobile Housing Environments v. Barton and Barton, 432 F. Supp. 1343, 1346 (D.Colo. 1977) (emphasis added). Although the use of the word is unusual in accord with its normal definition, it is fair to accept the operational context that it, as found by the trial court, meant everything present necessary to put the package together to be a workable unit. This is unlike the situation faced by the Delaware Supreme Court in Neilson Business Equipment Center, Inc. v. Italo V. Monteleone, M.D., P.A., 524 A.2d 1172, 1174 (Del.Super. 1987), where the purchaser and the supplier contracted that the turn-key computer system was to be both chosen and customized to the office's desired billing method by the supplier and was to function immediately. We find no error by the trial court in discerning by the term `turn key,' IFI and Smithco intended and understood that IFI was to marshal for delivery to Smithco the various louvers, actuators, cables and other items required by the contract. Both parties entered into the contract with their eyes wide open, aware of the distance, assembly, and installation variations from a usual turn key contract. Thus, this court will not rewrite the contract because of an alleged unilateral mistake. See Glassman Const. Co., Inc., 371 F. Supp. at 1159. The record does not reveal if IFI was actually a manufacturer of the parts or whether it simply assembled and packaged them except clearly, the cable and actuators were spected parts [3] purchased from third parties. Essentially, this wagon, when tendered, was only nuts, bolts and pieces of metal on delivery in Tulsa. It follows that if IFI did not design and did not assemble, its pricing charts were correctly found by the trial court to not create a fitness warranty for the assembled unit to be suitable for the LaBarge project. The use of the term turn key is not a guarantee, and even in a more conventional turn key sense, causation still must be shown between a system's malfunction and the actual supplier's work to prove a defect. See Ray v. Strawsma, 183 Ga. App. 622, 359 S.E.2d 376, 379 (1987), concerning an allegedly defective security system. There is a more directed problem with the implied warranty disclaimer stated on the reverse of invoicing statements. Its publication by billing notice antedates the parties' sales contract. However, we will accept Smithco's analysis of the disclaimer in relation to this issue as stated in its brief: The court below found that Appellee effectively disclaimed any implied warranty of fitness for a particular purpose. [A]ppellant disagrees with this finding. The only disclaimers were on the back of billing invoices sent to Appellant after the agreement was finalized in October, 1984. Both historically and under the Code, the time for determining the terms of the contract is when the bargain is struck. Disclaimers of warranty are no different. Therefore, unless the disclaimers are disclosed prior to the agreement and agreed upon, thereby made part of the contract, they are not binding. Van Den Broeke v. Bellanca Aircraft Corp., 576 F.2d 582, 584 (5th Cir.1978) While the above is of concern, it should make no difference in the instant case, because Smithco is not relying upon implied warranties, which the court below found to be disclaimed, whether or not such a finding is correct. Smithco relies upon express warranties. Even if the disclaimer relied upon by the court below was effective, it would not control, in the face of express warranties. [Emphasis in original.] Our answer in acceptance of the posture taken by Smithco as to the effectiveness of the disclaimer under the circumstance is also taken with the acceptance of the instructional posture of the trial court that, lacking a design or assembly contract, express warranties were not created under these circumstances. With recognition that the trial court expressly found as a fact that non-conforming material was repaired or replaced, any further departure to reach an award for Smithco on its counterclaim is not demonstrable as trial error requiring reversal. We hold that the findings of fact upon which the judgment was granted are supported by substantial evidence within the compendium of the evidentiary disputes of the participants. Consequently, the judgment is affirmed as to the contract payment dispute.",sufficiency of the evidence
+768,2747198,1,2,"[¶17.] “Summary judgment is an extreme remedy, . . . not intended as a substitute for a trial.” Discover Bank v. Stanley, 2008 S.D. 111, ¶ 19, 757 N.W.2d 756, 762 (quoting Cont’l Grain Co. v. Heritage Bank, 1996 S.D. 61, ¶ 17, 548 N.W.2d 507, 511). Our review of summary judgment is well settled: We must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party -7- #26720 and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper. De Smet Farm Mut. Ins. Co. of S.D. v. Busskohl, 2013 S.D. 52, ¶ 11, 834 N.W.2d 826, 831 (quoting Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874). We review the circuit court’s findings of fact “under the clearly erroneous standard.” Peterson v. Issenhuth, 2014 S.D. 1, ¶ 15, 842 N.W.2d 351, 355 (quoting Eagle Ridge Estates Homeowners Ass’n, Inc. v. Anderson, 2013 S.D. 21, ¶ 12, 827 N.W.2d 859, 864). We review the circuit court’s conclusions of law de novo. Id. [¶18.] Further, we review “a circuit court’s decision to admit or deny an expert’s testimony under the abuse of discretion standard.” Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 12, 737 N.W.2d 397, 402. An abuse of discretion “is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616.",standard of review
+769,1058928,1,3,"Several rules of civil and appellate procedure are relevant to the issue in this appeal. We begin with Tennessee Rule of Appellate Procedure 3(a) which provides that [i]n civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right. Appeals as of right are initiated by filing a notice of appeal with the clerk of the trial court. Tenn. R.App. P. 3(e). Pursuant to Tennessee Rule of Appellate Procedure 4, the notice of appeal ... shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from . . . . Tenn. R.App. P. 4(a). The thirty-day time limit set out in Rule 4 is jurisdictional in civil cases. See, e.g., First Nat'l Bank of Polk County v. Goss, 912 S.W.2d 147, 148 (Tenn.Ct.App.1995). However, certain post-trial motions, including a motion to alter or amend, if timely filed, toll commencement of the thirty-day period until an order granting or denying the motion is entered. Tenn. R.App. P. (4)(b). According to Tennessee Rule of Civil Procedure 59.04, a motion to alter or amend a judgment is timely if filed and served within thirty (30) days after the entry of the judgment.  (Emphasis added.) Entry of judgment is described by Tennessee Rule of Civil Procedure 58, which provides as follows: Entry of a judgment or an order of final disposition is effective when a judgment containing one of the following is marked on the face by the clerk as filed for entry: (1) the signature of the judge and all parties or counsel, or (2) the signatures of the judge and one party or counsel with a certificate of counsel that a copy of the proposed order has been served on all other parties or counsel, or (3) the signature of the judge and a certificate of the clerk that a copy has been served on all other parties or counsel. When requested by counsel or pro se parties, the clerk shall mail or deliver a copy of the entered judgment to all parties or counsel within five days after entry; notwithstanding any rule of civil or appellate procedure to the contrary, time periods for post-trial motions or a notice of appeal shall not begin to run until the date of such requested mailing or delivery. (Emphasis added.) Of particular import in the pending case is the language in Rule 58 stating that notwithstanding any rule of civil or appellate procedure to the contrary, time periods for post-trial motions or a notice of appeal shall not begin to run until the date of such requested mailing or delivery. That language was added to Rule 58 by a 1997 amendment. According to the 1997 Advisory Commission Comments, the purpose of that language is to make the right to notice of the judgment entry date meaningful. A lawyer or party who requests a copy of the judgment stamped with the entry date should not be prejudiced by a clerk's failure to comply with the request. Having set out the governing authority, we next consider the two issues raised in the defendant's brief. As his first issue, the defendant argues that when a party requests notice of entry of the judgment pursuant to Rule 58 the time for filing a post-trial motion begins to run on the first day of service of the copy of the judgment on that party. (Emphasis added.) The defendant's argument on this first issue is based upon the language in Rule 58 that states: time periods for post-trial motions ... shall not begin to run until the date of such requested mailing or delivery.  (Emphasis added.) Relying on the word delivery, the defendant asserts that the time period for filing his motion to alter or amend did not begin to run until the date the copy of the judgment was delivered to defendant's counsel, i.e., the date he was served with the copy of the judgment. The defendant's argument is based upon a strained construction of the word delivery. Read in the full context of Rule 58, the word delivery is merely used as an alternate to the word mailing, signifying that the trial court clerk may either mail the copy of the judgment or use some other form of delivery (e.g., personal delivery or commercial delivery service). In other words, delivery simply means a non-mail method of sending the notice of entry of judgment to the parties—the word delivery does not mean the date on which a mailed copy of the judgment is actually delivered to a party by the postal service. The defendant's first issue is without merit. In his second issue, the defendant argues that his motion to alter or amend, which was filed thirty-three days after entry of the trial court's judgment, was timely under Rule 58 because the clerk mailed his lawyer a copy of the trial court's entered judgment. Relying upon the Advisory Commission Comments to Rule 58, particularly the 1984 Comments referring to Tennessee Rule of Civil Procedure 6.05, [3] the defendant asserts that three days are added when entry of judgment is delivered by mail. The second paragraph of the 1984 Advisory Commission Comments to Rule 58 states: Because of Rule 6.05, the party actually has 33 days if the Notice of Entry is mailed rather than personally delivered to the party. Tennessee Rule of Civil Procedure 6.05, to which the 1984 Comments refer, provides: Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period. Relying upon the 1984 Comments to Rule 58, the defendant argues that Rule 6.05 added three days to the period within which he was required to file his post-trial motion. We will begin our analysis of this issue by returning to the text of Rule 58. We then will consider the effect, if any, of Rule 6.05 on notices of entry of judgment requested pursuant to Rule 58. Rule 58, by its express terms, can add up to five additional days to the thirty-day period for filing a post-trial motion or notice of appeal when a party has requested of the clerk a copy of the judgment pursuant to that Rule. Rule 58 says that upon request the clerk shall mail or deliver a copy of the entered judgment within five days after entry and that notwithstanding any rule of civil or appellate procedure to the contrary, the time for filing a post-trial motion or notice of appeal, shall not begin to run until the date of such requested mailing or delivery.  Tenn. R. Civ. P. 58 (emphasis added). The foregoing portion of Rule 58 clearly provides that the time for filing a post-trial motion or a notice of appeal begins to run on the day the trial court clerk fulfilled his or her duty to mail or deliver the requested copy. Thus, Rule 58 extends the period for filing a post-trial motion by an additional one to five days, depending upon the date of such requested mailing or delivery. While the text of Rule 58 is clear, that language is rendered less clear when it is read in conjunction with the second paragraph of the 1984 Advisory Commission Comments to the Rule. The second paragraph of the 1984 Comments states: The 30 days mentioned begins to run when the notice of entry is mailed to the party. Because of Rule 6.05, the party actually has 33 days if the Notice of Entry is mailed rather than personally delivered to the party. Based upon this language, the defendant argues that the three-day rule stated in Rule 6.05 applies to his motion to alter or amend, making the filing of that motion (thirty-three days after entry of the judgment) timely. As the Court of Appeals correctly stated, Rule 6.05 applies only when a party is required to do some act after service of a notice or other paper and does not apply when the doing of the act is triggered by some other event, like the entry of a final judgment. See Begley Lumber Co., Inc., 15 S.W.3d at 457 (stating that Rule 6.05 does not apply to extend by three days the time for filing a notice of appeal when a copy of the entered judgment, requested pursuant to Rule 58, is sent by mail). Under Rule 59.02, a motion to alter or amend the judgment (and any other motion listed in Rule 59.01), shall be filed and served within thirty (30) days after the judgment has been entered.. . . Because the time for filing a motion to alter or amend is not based upon the date of service of a notice or other paper[,] we agree with the intermediate court that Rule 6.05 does not apply to the filing of a Rule 59 motion. If that were not the case, a literal reading of Rule 6.05 and 58 would result in two separate periods being added to the normal thirty-day period for filing a Rule 59 motion or a notice of appeal Rule 58 would grant up to an additional five days and Rule 6.05 would grant an additional three days (in cases in which the clerk mailed the requested copy of the judgment), for a total of up to eight additional days. We doubt that this result ever was intended by the Rules Commission, and it certainly was not intended by this Court in its adoption of the amendments to Rule 58. From our review of the history of Rule 58, it is clear that the second paragraph of the 1984 Advisory Commission Comments is obsolete. The 1984 version of Rule 58 provided that the time for all proceedings on a judgment shall not expire prior to the expiration of 30 days after the date of service of notice of entry of judgment or 90 days after the date of entry of the judgment, whichever is earlier. Tenn. R. Civ. P. 58.03(4) (West 1984) (emphasis added). Because the 1984 version of Rule 58 measured the time for all proceedings on a judgment from the date of service of the notice of entry of judgment (or 90 days after the date of entry of the judgment), Rule 6.05 applied to that version of the Rule. However, Rule 58 was substantially rewritten in 1993, and the foregoing portion of the 1984 version of the Rule was deleted. Consequently, the second paragraph of the 1984 Advisory Commission Comments to Rule 58 became obsolete and should have been deleted from the Comments to Rule 58. Having reviewed the relevant authorities and procedural rules, we agree with the Court of Appeals's conclusion that Rule 6.05 does not apply in this case. Although Rule 6.05 does not apply, the Court of Appeals correctly noted that Rule 58 could afford up to five additional days for filing a post-trial motion; the intermediate court therefore directed the defendant to file a certificate of the trial court clerk or other documents demonstrating when the copy of the entered judgment was mailed to the appellant's counsel. The defendant, however, failed to submit such a certificate or other evidence showing when the trial court clerk mailed the requested copy of the judgment. The affidavit submitted by defendant's counsel in response to the intermediate court's directive states the date on which counsel received the copy of the judgment from the trial court clerk. The defendant, however, submitted no evidence as to when the copy of the judgment was mailed by the clerk. The trial court's judgment was signed by the Chancellor on December 19, 2000 and was entered by the trial court clerk on December 20, 2000. If the copy of the judgment was mailed by the clerk on the day the judgment was entered (December 20), the motion to alter or amend was untimely. If, however, the copy of the judgment was not mailed until December 21 (or thereafter), the motion to alter or amend was timely. [4] Due to the defendant's failure to submit any evidence indicating the date on which the clerk mailed the requested copy of the judgment, we are unable to determine that the motion to alter or amend was timely, and the defendant therefore has failed to carry his burden of proof on the issue. Consequently, we affirm the intermediate court's dismissal of the appeal. In affirming the intermediate court's decision, we are not unaware that the obsolete language of the 1984 Advisory Commission Comments to Rule 58 could engender confusion in future cases. [5] We are directing LexisNexis, the publisher of Tennessee Court Rules Annotated, the official compilation of the rules of procedure, to expeditiously delete the second paragraph of the 1984 Advisory Commission Comments to Rule 58. [6] In addition, we ask the Advisory Commission on the Rules of Practice & Procedure to undertake a review of the various rules of procedure and to recommend the removal of any other Advisory Commission Comments that are obsolete or otherwise inconsistent with later amendments to the various rules. The Advisory Commission also should review Rule 58 and recommend any changes it deems advisable to clarify the Rule. [7]",analysis
+770,884671,1,16,"¶ 106 Did the District Court err in admitting testimony by paralegal Jeanne Windham? ¶ 107 Ingraham argues the District Court erred in permitting paralegal Jeanne Windham to testify as to statements Ingraham made to her about the accident. Ingraham asserts that Windham was one of his law firm's employees, and argues the content of his conversations with her about the accident was protected by the attorney-client privilege and constituted privileged work product. Moreover, Ingraham asserts the court erred in admitting rebuttal testimony regarding additional conversations overheard by Windham, but which did not tend to counteract new matter introduced by the defense. ¶ 108 The State, in contrast, argues that neither the attorney-client privilege nor the work product rule apply to protect the content of conversations between Ingraham and Windham in the aftermath of the accident. The State additionally asserts that Windham's testimony on rebuttal was proper, and urges the court did not err in overruling Ingraham's objections to its admission. ¶ 109 We review the District Court's evidentiary ruling for an abuse of discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.",issues
+771,1835190,1,1,"On January 18, 1989, Bailey was arraigned on a felony charge of intentionally damaging property at a Belle Fourche motel in violation of SDCL 22-34-1. Bailey pled guilty. The court suspended imposition of sentence and placed Bailey on 5 years probation on the condition that he obey all federal and state laws and municipal ordinances and take medication as prescribed by Ft. Meade. The purpose of the medication Bailey was receiving from the Ft. Meade Veteran's Administration Medical Center was to control the onset of psychotic episodes caused by a bipolar mood disorder. Bailey would periodically receive injections of the drug Haldol at Ft. Meade, and, in the interim between Haldol injections, would take the drug Ativan orally. The property damage at the Belle Fourche motel was associated with Bailey's failure to take his prescribed medication. On April 18, 1989, Bailey began to feel the onset of another psychotic episode. His next Haldol injection was not scheduled until the following day and the Ativan was not working. Bailey attempted to persuade emergency room personnel at a Spearfish hospital and the Ft. Meade V.A. Center to administer his Haldol injection early, but both refused. The next day Bailey was arrested for disorderly conduct during a loud public argument with a friend in Spearfish. On the night of his arrest, Bailey was without any medication and attacked a guard at the Lawrence County Jail in Deadwood. Bailey was indicted for aggravated assault against the jailer in violation of SDCL 22-18-1.1(3). On May 4, 1989, the court services officer assigned to supervise Bailey's probation on the earlier damage to property charge petitioned the court to revoke Bailey's probation based on the aggravated assault charge. During the summer of 1989, Bailey was examined by Dr. Johnson of the South Dakota Human Services Center in Yankton pursuant to a court order, and Dr. Manlove of Rapid City, at the request of Bailey's counsel. Both psychiatrists diagnosed Bailey's bipolar mood disorder, and both reported that he was capable of assisting in his own defense and knew right from wrong on April 19. Following a Probation Revocation Hearing on September 22, 1989, the court ruled that Bailey violated the terms of his probation. Bailey was evaluated a second time at the Human Services Center in Yankton to determine his competence. The examining psychiatrist, Dr. Lee, affirmed that Bailey was competent to stand trial. On October 30, 1989, Bailey was permitted to withdraw his January 18, 1989, guilty plea to the property damage charge and to substitute a plea of guilty but mentally ill. SDCL 23A-7-2(5), 23A-27-38. The court revoked Bailey's probation, sentenced him to four years' imprisonment for intentional damage to property in violation of SDCL 22-34-1, and ordered that he receive psychiatric help while in prison consistent with the provisions of SDCL 23A-27-38. The court entered Supplemental Findings of Fact and Conclusions of Law to the effect that Bailey was mentally ill—but neither insane nor incompetent to stand trial—at all times relevant to this proceeding. The aggravated assault charge was subsequently dropped. Bailey appeals the order revoking his probation on two grounds: (1) lack of adequate factual basis for the trial court's determinations, and (2) lack of sufficiently informed consent by Bailey to the pleas.",facts
+772,4560966,1,3,"No Election to Purchase by A & R [4] In their first assignment of error, A & R and Rafert contend that the court erred by entering judgment against A & R, because the corporation did not elect to purchase any shares from Cheryl. To resolve this issue, we must interpret provisions of the Nebraska Model Business Corporation Act, Neb. Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 2016). In 1 See Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994). 2 Id. 3 Id. - 491 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 4 Cheryl initiated this matter by petitioning the district court to dissolve A & R pursuant to § 21-2,197(a)(2). Section 21-2,201(a) states in part, “In a proceeding under subdivision (a)(2) of section 21-2,197 to dissolve a corporation, the corporation may elect or, if it fails to elect, one or more shareholders may elect to purchase all shares owned by the petitioning shareholder at the fair value of the shares.” Section 21-2,201(b) states that an election may be filed by “the corporation or one or more shareholders,” and it further states that “[a]ll shareholders who have filed an election or notice of their intention to participate in the election to purchase thereby become parties to the proceeding . . . .” Section 21-2,201(c) provides the parties 60 days from the filing of the first election to reach an agreement. If no agreement is reached, under § 21-2,201(d), any party may file an application for stay of the dissolution proceedings and for a determination by the court of the fair value of the petitioning shareholder’s shares as of the day before the date on which the petition was filed or as of such other date as the court deems appropriate under the circumstances. Section 21-2,201(e) provides that upon determining the fair value of the shares, the court shall enter an order directing the purchase upon such terms and conditions as the court deems appropriate. The record shows that Cheryl filed a petition under § 21-2,197(a)(2) and is the petitioning shareholder as described under § 21-2,201. A & R and Rafert separately filed answers to the petition. A & R’s answer requested that the petition be dismissed. Rafert’s answer requested that the court determine a fair price of Cheryl’s interest and direct purchase on such 4 State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020). - 492 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 terms and conditions as may be just. Rafert timely filed an election to purchase pursuant to § 21-2,201(b), which was not resisted. A & R did not file an election to purchase. The record indicates that the corporation was declared deadlocked 2 months prior to Rafert’s election to purchase. Based on the language of § 21-2,201 understood in its plain, ordinary, and popular sense, we determine that A & R was not a party to the election-to-purchase proceedings. A & R remained a party in the dissolution proceedings, but the court stayed and ultimately dismissed the dissolution proceedings, due to Rafert’s application under § 21-2,201(d). Because we determine that A & R was not a party to the election-to-purchase proceedings under § 21-2,201, we conclude that the court lacked statutory authority to enter judgment against A & R once it determined the value of Cheryl’s shares. An appellate court has the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed, and to vacate an order of the lower court entered without jurisdiction. 5 We vacate the judgment entered against A & R. Fair Value In Rafert’s next assignment of error, he contends that in its valuation of A & R, the court failed to consider debt and speculated as to the corporation’s value. In its order, the district court found Pofahl’s asset approach valuation to be “not helpful” and “hard to understand.” Additionally, the district court agreed with Rafert’s expert, Labenz, that because A & R uses a cash-based accounting system and was considered an ongoing concern, A & R should be valued according to the income approach rather than the asset approach. The court ultimately applied its modified income valuations of the two experts and split the difference. Rafert does not contend that the court erred in using the income 5 In re Estate of Tizzard, 14 Neb. App. 326, 708 N.W.2d 277 (2005). - 493 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 approach, nor does Cheryl contend that the court erred in not using Pofahl’s asset approach. As a result, the sole issue presented is whether the district court’s valuation is unreasonably high when considering Labenz’ and Pofahl’s reports and supporting testimony regarding the income approach. [5-7] The determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 6 The trial court is not required to accept any one method of stock valuation as more accurate than another accounting procedure. 7 A trial court’s valuation of a closely held corporation is reasonable if it has an acceptable basis in fact and principle. 8 [8] Section 21-2,201(d) states that upon application of any party, the court shall “determine the fair value of the petitioner’s shares.” This court has previously recognized that a proceeding to determine the “fair value” of corporate shares is equitable in nature. 9 While the Nebraska Model Business Corporation Act’s election-to-purchase provisions do not explicitly define “fair value,” the act’s provisions governing appraisal rights state that “fair value” means the value of the corporation’s shares determined “[u]sing customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction requiring appraisal[.]” 10 In the context of valuing a dissenting shareholder’s stock, this court has observed that the “‘real objective is to ascertain 6 Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018). 7 Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986). 8 Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 (2005). 9 See, Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998); Rigel Corp., supra note 1; Becker v. Natl. American Ins. Co., 202 Neb. 545, 276 N.W.2d 202 (1979). 10 § 21-2,171(4)(ii). - 494 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 the actual worth of that which the dissenter loses because of his unwillingness to go along with the controlling stockholders, that is, to indemnify him.’” 11 Such a determination is to be based on all material factors and elements that affect value, given to each the weight indicated by the circumstan­ces. 12 As most relevant here, such factors include, among others, the nature of the business and its operations, its assets and liabilities, its earning capacity, and the future prospects of the company. 13 Moreover, the stock is valued by assuming that the corporation will continue as a going concern and is not being liquidated. 14 Rafert argues that the district court was required to consider the $1,152,000 of corporate debt in valuing A & R, but failed to do so, and that the court’s decision not to depress the value of A & R was based on speculation. The record is clear that the district court’s valuation is based on the testimony of the experts and the supporting exhibits. Both experts agreed that under the income approach, the business must be valued as an ongoing concern, and that under the asset approach, the business is valued based on its assets and liabilities as if the business were to be sold and liquidated. The court considered Labenz’ decision to subtract the whole $1,152,000 of debt and stated that “subtracting 100% of the debt from the valuation estimate of the business does not comport with the overall theory of the Income Approach because a business, as an on-going concern, is not required to pay back all of its debt on a lump sum basis.” The court stated, “Of course, debt will have to be serviced on an ongoing basis, but on a much smaller scale than the total amount owed.” The court agreed with Labenz’ decision to subtract 11 Rigel Corp., supra note 1, 245 Neb. at 127, 511 N.W.2d at 524 (quoting Warren v. Balto. Transit Co., 220 Md. 478, 154 A.2d 796 (1959)). 12 See id. 13 Id. 14 Id. - 495 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 a $23,000 interest payment that was due, and it noted that Labenz accounted for ongoing interest payments when she calculated A & R’s normalized cashflow. Therefore, Rafert’s claim that the court failed to consider debt is not correct. Additionally, Rafert failed to prove that a lower valuation would be more accurate. The court noted that both experts “generously included” assumptions and limiting conditions in their opinions, which made arriving at an objective valuation of the corporation difficult. Labenz contradicted her own testimony when she strayed from the income approach by subtracting all of the corporation’s debt. The court was not engaging in speculation when it rejected Labenz’ blending of the income and asset methods as unpersuasive. The evidence indicates that the trucking and spraying operations of the business have continued after Randy’s death and that there have been no efforts to liquidate. The experts agreed that A & R consistently generates significant cash each year. A & R’s personal banker testified that the company pays loans on an annual basis and that payments are made when they become due. He also stated that the company’s accounts receivable are collectable, which Rafert confirmed in his testimony. The court carefully considered the opinions of both experts, identified aspects of the opinions which are inconsistent with the income approach, adjusted each opinion accordingly, and determined a value based on the average of the two opinions. Upon our de novo review, just as the trial court did, we find that there is evidence in conflict on material issues of fact concerning the appropriate considerations in valuing Cheryl’s shares in A & R. As a result, we consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. 15 The trial court’s val­ uation of A & R is reasonable and has an acceptable basis in 15 Fredericks Peebles, supra note 6. - 496 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 fact and principle. The court did not err in valuing Cheryl’s shares to be purchased by Rafert. This assignment of error is without merit. Vehicles Rafert’s final assignment of error is that the court improperly awarded Cheryl two corporate vehicles pursuant to § 21-2,201(e). Rafert contends that the award of the vehicles constituted equitable division of corporate property rather than a determination of fair value under § 21-2,201(d). Cheryl counters that the award of the vehicles was proper, because under § 21-2,201(e), the court may award expenses to the petitioning shareholder. The court heard testimony that prior to Randy’s death, Cheryl had in her possession two vehicles which were owned by the company. After Randy’s death, Cheryl retained possession of the vehicles despite Rafert’s request that these vehicles be returned. The vehicles were included in the equipment appraisal, which both experts utilized in valuing Cheryl’s shares in A & R. In its decree, the trial court found that “in the interest of equity, and in consideration of the circumstances surrounding the history of this litigation between the parties, [Cheryl] shall also be allowed to keep the Chevrolet Avalanche and the Ford pickup truck, which she currently has in her possession.” Under § 21-2,201(e), when a corporation or shareholder makes an election to purchase a petitioning shareholder’s shares, the court is authorized to award expenses to the petitioning shareholder “[i]f the court finds that the petitioning shareholder had probable grounds for relief under subdivision (a)(2)(i)(B) [illegal, oppressive, or fraudulent conduct] or (D) [misapplication or waste of corporate assets] of section 21-2,197 . . . .” The foregoing provision delineates two of the four situations in which a shareholder may seek corporate dissolution. We agree with Rafert that the court could not have awarded Cheryl expenses under § 21-2,201(e), - 497 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 because the court did not make the necessary findings under § 21-2,201(e) of probable grounds for relief. Cheryl’s petition asserted causes of action for an accounting and breach of fiduciary duty, but the court dismissed Cheryl’s petition and made no findings that she established probable grounds for relief concerning dissolution. We further note that Cheryl failed to prove any claim for expenses, because her statement of expenses provided to the trial court was not received into evidence and does not appear in our record. Moreover, it is clear the court awarded Cheryl vehicles owned by the corporation, not litigation expenses. A court may have subject matter jurisdiction in a matter over a certain class of case, but it may nonetheless lack the authority to address a particular question or grant the particular relief requested. 16 Under the statutory procedure established by the Legislature for election-to-purchase proceedings under § 21-2,201, discussed above, a corporation does not become a party to the proceedings until it files an election to purchase. A & R did not file an election to purchase and was not a party to the election-to-purchase proceedings. Consequently, the court lacked the authority to award corporate assets to Cheryl. The award of the corporate vehicles is therefore vacated.",analysis
+773,1238766,1,4,"For the above reasons, the decision of the district court dismissing Goosman's petition is affirmed.",conclusion
+774,4509259,1,4,"[3] The threshold issue we must first address is whether this court has jurisdiction over the appeal. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; 2 State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). 3 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). - 887 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports LOYD v. FAMILY DOLLAR STORES OF NEB. Cite as 304 Neb. 883 conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.4 [4] There are three types of final orders which may be reviewed on appeal,5 one of which is an order that affects a substantial right made during a special proceeding.6 Because workers’ compensation proceedings are special proceedings, the issue is whether the court’s order is final.7 In a special proceeding, an order is final and appealable if it affects a substantial right of the aggrieved party. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.8 Stated another way, an order affects a substantial right if it “‘“affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.”’”9 Loyd asserts that this court has jurisdiction because the appeal was filed within 30 days of the compensation court’s order disapproving the lump-sum settlement agreement and joint stipulation. Loyd further asserts that this court has jurisdiction over the appeal, because it centers around § 3-501.6 of the Nebraska Rules of Professional Conduct10 and the comment section of the rule specifically allows for appeal under the circumstances presented in this case. Compensation Court’s Disapproval. [5] Under § 48-139(2)(b)(iv), if an application for approval of a lump-sum settlement is not approved, the compensation 4 Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012). 5 Neb. Rev. Stat. § 25-1902 (Reissue 2016). 6 Id. 7 Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013). 8 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016). 9 Id. at 581, 879 N.W.2d at 33-34 (quoting State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015)). 10 See Neb. Ct. R. of Prof. Cond. § 3-501.6 (rev. 2019). - 888 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports LOYD v. FAMILY DOLLAR STORES OF NEB. Cite as 304 Neb. 883 court may (1) dismiss the application at the cost of the employer or (2) continue the hearing, in the discretion of the compensation court. Here, the compensation court did neither. Instead, it entered an order of disapproval. The order of disapproval did not impact the subject matter of the proceeding. Nor did it prevent Loyd from submitting another application for approval. Loyd’s case is retained for further action. Absent an order actually dismissing the application, there is no final and appealable order from which Loyd can appeal. We conclude that the compensation court’s order of disapproval, standing alone, is not a final, appealable order. Nebraska Rules of Professional Conduct. [6] The Nebraska Rules of Professional Conduct do not, as Loyd suggests, authorize appellate jurisdiction over adverse rulings on claims involving privilege. Comment 11 of § 3-501.6 provides: A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(4) permits the lawyer to comply with the court’s order. [7] Comment 11 does not confer appellate jurisdiction. The right of appeal in Nebraska is “‘purely statutory.’”11 Comment 11 Heckman, supra note 3, 296 Neb. at 461, 894 N.W.2d at 299 (quoting Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014)). - 889 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports LOYD v. FAMILY DOLLAR STORES OF NEB. Cite as 304 Neb. 883 11 merely requires the attorney to consult with the client about the possibility of appeal. [8] Moreover, in the context of discovery orders, we have held that an interlocutory order compelling the production of documents for which a claim of privilege is asserted is appealable neither as a final order nor under the collateral order doctrine.12 We have concluded that other available mechanisms such as mandamus actions and authorized appeals from interlocutory civil contempt orders are appropriate and “‘serve as useful “safety valve[s]” for promptly correcting serious errors’” in claims involving privileged information.13 Here, Loyd asserts a claim of privilege; however, the compensation court’s order was not a final, appealable order. Hence, there is no appellate jurisdiction in this case.",analysis
+775,4544404,1,2,"[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 15 [2] Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling. 16",standard of review
+776,1785537,1,1,"The office of the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against respondent, William L. Switzer, Jr. After a formal hearing, the referee concluded that Switzer had violated the Code of Professional Responsibility, the Nebraska Rules of Professional Conduct, this court's disciplinary rules, and his oath of office as an attorney, and recommended a suspension of 1 year. While we adopt the findings of the referee, we do not accept the discipline recommended by the referee. We instead impose discipline as indicated below.",introduction
+777,887335,1,5,"¶ 20 Did the District Court err in not granting Defendant a trial de novo in District Court following Schulke's conditional plea in Justice Court? ¶ 21 Schulke argues that the Justice of the Peace failed to specifically advise the defendant that the conditional plea results in a waiver of his trial de novo in district court, and this failure violated § 46-17-203(2), MCA (1999), which provided, at that time, as follows: A plea of guilty or nolo contendere in a justice's court, city court, or other court of limited jurisdiction waives the right of trial de novo in district court. A defendant must be informed of the waiver before the plea is accepted, and the justice or judge shall question the defendant to ensure that the plea and waiver are entered voluntarily. [Emphasis supplied]. Thus, Schulke argues, even though he has made no motion to withdraw his guilty plea, he is entitled to a trial de novo in district court. ¶ 22 As the offense in this case was committed March 28, 2003, § 46-17-311, MCA, (1999), is applicable: (1) Except as provided in subsection (4) [not applicable here] and except for cases in which legal issues are preserved for appeal pursuant to XX-XX-XXX, all cases on appeal from a justice's or city court must be tried anew in the district court . . . . Based on this clear statutory language, when Schulke pled guilty in Justice Court reserving his right to appeal the denial of his motions to suppress and to dismiss pursuant to § 46-12-204(3), MCA, he brought himself within the exception to the requirement for a trial de novo in district court. ¶ 23 In State v. Feight, 2001 MT 205, ¶ 15, 306 Mont. 312, ¶ 15, 33 P.3d 623, ¶ 15, we determined § 46-17-311, MCA, procedurally requires adjudication of a matter by trial in a justice or city court as a prerequisite for a trial de novo on appeal to district court. We also held that § 46-17-311, MCA, provides the exclusive statutory remedy for appeals from the courts of limited jurisdiction. Feight, ¶ 15. Schulke only preserved the right to appeal the Justice Court's denial of his motion to suppress and dismiss to district court. He had no right to a trial de novo in district court. ¶ 24 Schulke's argument that he is entitled to a trial de novo is also procedurally deficient. He at no time moved in the Justice Court to withdraw his guilty plea on the grounds that it was not knowingly, intelligently, and voluntarily made. Therefore, we decline to address any argument regarding alleged deficiencies in the Justice Court's inquiry into the voluntariness of the plea. ¶ 25 Finally, Schulke cites no authority supporting his position that he is somehow entitled to the remedy of a trial de novo in district court. We decline to address an issue when the appellant fails to cite supporting authority. State v. Ellenburg, 2000 MT 232, ¶ 49, 301 Mont. 289, ¶ 49, 8 P.3d 801, ¶ 49.",issues
+778,2549542,1,5,"[¶ 20] Daniel contends that the district court properly granted a judgment of acquittal on the third count of first degree sexual assault because of the unreliability of the victim's testimony, but erred in refusing to grant a judgment of acquittal on the remaining counts. Daniel contends that, despite trial counsel's failure to renew that motion at the close of the defense's presentation of evidence, sufficient evidence does not exist to sustain his convictions on the two counts of first degree sexual assault. [¶ 21] Our standard of review for sufficiency of the evidence challenges is: This Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Robinson v. State, 11 P.3d 361, 368 (Wyo. 2000) (quoting Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)) (citing Baier v. State, 891 P.2d 754, 761 (Wyo.1995)). [¶ 22] Daniel contends that the record shows that a comparison of the victim's several statements to police and her testimony from both trials reveals that she has told a fantastic, self-contradictory story that is internally inconsistent and patently unbelievable. Additionally, he claims that the disinterested expert witnesses could not confirm that the victim's injuries were caused by sexual assault as opposed to consensual sexual intercourse and testified that a blood type inconsistent with either the victim's or Daniel's blood type was found on the victim's underwear. Noting that the jury failed to believe the victim when she claimed that she had been kidnapped, Daniel asks this Court to find that the victim's testimony itself creates reasonable doubt, and the jury's verdict was the result of speculation. [¶ 23] The record shows that the victim's testimony was self-contradictory; however, those inconsistencies were argued to the jury by counsel in closing argument. Inconsistencies and contradictory testimony are relevant to the weight and credibility of the witness and, therefore, it is the jury which must assess those matters as the trier of fact. Trujillo v. State, 880 P.2d 575, 578 (Wyo.1994). This Court cannot reweigh the evidence or reexamine the credibility of the witnesses. Id.; Pisano v. State, 828 P.2d 666, 669 (Wyo.1992). We must assume that the jurors believed only the evidence adverse to the defendant. Walston v. State, 954 P.2d 987, 988-89 (Wyo.1998). [¶ 24] Viewed in the light most favorable to the State, the record shows that physical evidence corroborated the victim's version of events that her injuries were received when sexually assaulted. Pictures demonstrated and medical personnel testified that she had suffered injuries from physical restraint and battery, and the police found her bra, a string consistent with string that she claimed was used to tie her hands and feet, and bloodstained sheets. Medical tests indicated the presence of fluids consistent with the defendant's blood type. An expert testified that a blood type not belonging to Daniel was found on the victim's underwear but could not determine if that different blood type result was caused by fluid from another person or by bacterial, soil, or a detergent contaminant. Although this evidence was all consistent with the defense theory that consensual sexual intercourse had occurred and the victim was beaten by her boyfriend later that night, the jury was solely responsible for that determination. The conviction is supported by sufficient evidence. Legality of Imposing Two Consecutive Life Sentences Under The Habitual Criminal Statute [¶ 25] Daniel challenges the imposition of two consecutive life sentences under the habitual criminal statute, Wyo. Stat. Ann. § 6-10-201 (LexisNexis 2003), [2] on two grounds: first, that the statutory language does not permit more than one sentence enhancement, and second, that the imposition of two consecutive life sentences is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. [¶ 26] Since our decision in Rich v. State, 899 P.2d 1345 (Wyo.1995), the law has been settled that life sentences for a fourth and fifth felony are required under § 6-10-201, when a defendant is adjudicated a habitual criminal. Id. at 1347. Rich upheld the trial court's decision to impose three consecutive life sentences for first degree sexual assaults constituting distinct crimes. Daniel contends, however, that Rich is distinguishable from his convictions arising out of just one sexual assault occurrence. He contends that the disproportionate harshness of two consecutive sentences to life is demonstrated because he is ineligible for parole [3] although this is his only violent felony conviction, and this disproportionality constitutes cruel and unusual punishment. The State contends that we have previously decided that the portion of the habitual criminal statute enhancing a sentence to ten to fifty years for two prior convictions is not cruel and unusual punishment under the Eighth Amendment and that reasoning applies to a sentence enhancement of life imprisonment, citing Oakley v. State, 715 P.2d 1374 (Wyo.1986). [¶ 27] In Oakley, we considered the several decisions by the United States Supreme Court addressing when sentence enhancement constituted cruel and unusual punishment to arrive at our decision that § 6-10-201(b)(i) does not violate the Eighth Amendment. The Court recently reviewed this same jurisprudence in its latest consideration of this issue in connection with California's three strikes law, statutory schemes that are designed to increase the prison terms of repeat felons. Ewing v. California, 538 U.S. 11, ___, 123 S.Ct. 1179, 1182, 155 L.Ed.2d 108 (2003). Ewing had been convicted of felony grand theft in excess of $400 for stealing three golf clubs; however, because he had previously been convicted of three burglaries and a robbery, all considered serious or violent felonies, the three strikes law applied and Ewing was sentenced to 25 years to life. Id. at 1183-85. [¶ 28] Ewing resulted in a majority decision that California's three strikes law constitutionally addresses recidivism without violating the Eighth Amendment ban of cruel and unusual punishment. Id. at 1190. However, the Court's analysis for arriving at that conclusion garnered only plurality support, and its application of those principles relied upon in Ewing are unclear enough to have caused the Court to reject the opinion that its case law was clear or consistent enough to be clearly established federal law within the meaning of 28 U.S.C. § 2254(d). Lockyer v. Andrade, 538 U.S. 63, ___, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003). The Court did find that it was clearly established that a gross disproportionality principle does apply to sentences for terms of years; [4] however, the precise contours of that principle are unclear, applicable only in the `exceedingly rare' and `extreme' case. Id. The Court held that Lockyer was not one of those exceedingly rare or extreme cases. Id. [¶ 29] Lockyer stole about $150.00 worth of videotapes and was convicted of two counts of petty theft. He had previously been convicted of three counts of residential burglary, which California's three strikes law considers serious or violent felonies, and which made him eligible for sentence enhancement. Lockyer received two consecutive sentences of twenty-five years to life imprisonment, although he will be eligible for parole in about fifty years. Lockyer, 538 U.S. at ___-___, 123 S.Ct. at 1169-71. [¶ 30] In both Ewing and Lockyer, the Court considered its previous decisions in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Rummel held that the Eighth Amendment did not prohibit a state from sentencing a three-time offender to life in prison with the possibility of parole for the justified purpose of addressing recidivism. Ewing, 538 U.S. at ___, 123 S.Ct. at 1185. In another recidivism case, Solem found that a life sentence without possibility of parole for a seventh nonviolent felony was prohibited by the Eighth Amendment's proscription against sentences that are disproportionate to the crime committed. Ewing, at 1186. Harmelin held that a life sentence without possibility of parole was not grossly disproportionate under the Eighth Amendment although the first time offender was convicted only of possessing 672 grams of cocaine and was not the subject of a recidivism statute. Ewing, at 1186. Based on this precedent, Ewing and Lockyer gleaned that its guiding principles for deciding whether a sentence of twenty-five years to life for stealing three golf clubs or videotapes required the threshold determination of whether the crime committed and the sentence imposed leads to an inference of gross disproportionality. Ewing, 538 U.S. at ___-___, 123 S.Ct. at 1188-90. Neither contention of an Eighth Amendment violation survived the Court's threshold determinations and both enhanced sentences were upheld. Id. at 1190; Lockyer, 538 U.S. at ___-___, 123 S.Ct. at 1175-76. [¶ 31] In considering this precedent as well as our own established in Oakley and Rich with respect to the facts of this case, we first find that, contrary to his assertions, Daniel has been convicted of two distinct sexual assaults permitting imposition of consecutive life sentences under the habitual criminal statute. We have said that [i]n appeals alleging imposition of multiple sentences for a single act, the focus is on those facts proven at trial. Chapman v. State, 2001 WY 25, ¶ 25, 18 P.3d 1164, ¶ 25 (Wyo. 2001) (citing Rouse v. State, 966 P.2d 967, 970 (Wyo.1998)). The ultimate question is whether those facts reveal a single criminal act or multiple distinct offenses against the victim. Id. Where the acts required for the commission of one offense are a necessary and indispensable precursor to commission of a second offense, the offenses merge for purposes of sentencing. Id. Such merger is mandatory where the second offense cannot be committed absent commission of the first offense. Id. [¶ 32] The evidence showed that Daniel subjected the victim to both vaginal and anal sexual penetration and these acts constitute separate, forcible sexual intrusions on the victim. See Wyo. Stat. Ann. § 6-2-302 (LexisNexis 2003). Proof of different facts was required to establish the elements of each crime, creating a record showing that Daniel's convictions were for separate and distinct crimes. It was, therefore, appropriate for the district court to consider Daniel's convictions as separate and distinct crimes for the purpose of imposing consecutive life sentences pursuant to the habitual criminal statute. [¶ 33] Daniel's Eighth Amendment violation claim requires that we examine the gravity of the offense compared to the harshness of the penalty. Daniel's two first degree sexual assault convictions followed a history of felony convictions. Wyoming's habitual criminal statute is long-standing and serves to address recidivism by simply removing from society those members who have proved themselves incapable of conforming to the laws by virtue of multiple, previous felony convictions. Our review of Wyoming legislation indicates that the habitual criminal statute, § 6-10-201, is directed at repeat offenders of violent crimes and § 6-2-306 imposes a life sentence for those with two previous first degree sexual assault convictions. The sentence enhancement under the sexual assault statute does not apply to Daniel, but from this scheme, we see that the legislature enacted § 6-10-201 with the intent of removing from society those recidivists who continue to commit felonies and the legislature has further acted to incapacitate those recidivists with three first degree sexual assault convictions by imposing life sentences under § 6-2-306. [¶ 34] Daniel, a felony recidivist, now stands convicted of two violent felonies as defined by Wyo. Stat. Ann. § 6-1-104(a)(xii) (LexisNexis 2003), [5] namely, first degree sexual assault, and, because of his criminal history, Daniel was properly subjected to a life sentence in furtherance of the legislative goal of halting recidivism. We hold that his two consecutive life sentences for his convictions is not a rare case where the crimes compared to the penalty are grossly disproportionate. No violation of the Eighth Amendment's ban against cruel and unusual punishment has occurred.",sufficiency of the evidence
+779,1311026,1,15,"Breard contends that the evidence is insufficient to support his capital murder conviction. Breard makes two arguments: (1) the evidence is insufficient to prove that the killing was willful, deliberate, and premeditated; and (2) the evidence is insufficient to prove that he raped Dickie. The standard for reviewing the sufficiency of the evidence on appeal is well established. We must view the evidence in the light most favorable to the Commonwealth, the prevailing party at trial, and the trial court's judgment will not be disturbed unless the judgment is plainly wrong or without evidence to support it. Beavers, 245 Va. at 281-82, 427 S.E.2d at 421; Code § 8.01-680. In the present case, the evidence established that Breard stabbed Dickie five times in the neck while he sexually assaulted her. Additionally, on the night Dickie was killed, Breard deliberately armed himself with a knife, intending to force a woman to have sex with [him]. Clearly, the evidence supports the jury's finding that the killing was willful, deliberate, and premeditated. Breard's argument with respect to proof of rape is meritless. The indictment charged Breard with the willful, deliberate, and premeditated killing of Dickie in the commission of, or subsequent to, rape or attempted rape.  (Emphasis added.) The jury found Breard guilty of attempted rape, and the evidence, as previously related, fully supports that finding.",sufficiency of the evidence
+780,1597233,1,1,"In 1975, Hunter Roussel, Jr. bought 12 3/4 acres of land in Rankin County from Morris Gray, and there built a home. In 1978, Gray sold Melvin Hutton a two acre plot near Roussel's land, and sold about 7 2/3 acres of land to MP & L. Over the next ten years, Roussel opposed efforts of Gray, MP & L, and the City of Brandon to rezone various parcels of land in the area surrounding his home. [1] In 1988, Roussel filed suit against twelve defendants, including Gray, Hutton, and MP & L, alleging a conspiracy amongst the parties to effectuate changes in the zoning ordinances which would financially benefit all the defendants. All claims against Hutton, Gray, and MP & L were dismissed on motions for summary judgment in April and October of 1989. Roussel appeals, assigning the following errors: I. THE LOWER COURT ERRED BY DISMISSING MELVIN B. HUTTON FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS. II. THE LOWER COURT ERRED BY DISMISSING MORRIS GRAY FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS. III. THE LOWER COURT ERRED BY DISMISSING MP & L FROM THE LAWSUIT BY WAY OF SUMMARY JUDGMENT, AND FURTHER ERRED BY AWARDING ATTORNEY'S FEES IN THE FORM OF RULE 11 SANCTIONS. IV. JUDGE BRIDGES RECUSED HIMSELF ON OCTOBER 9, 1989, VOIDING JUDGMENTS OF OCTOBER 10, 1989 AND OCTOBER 20, 1989. Finding insufficient evidence that the trial judge recused himself from the case, we hold that his judgments were valid. We affirm the grants of summary judgment in favor of Hutton, Gray, and MP & L.",introduction
+781,2611942,1,1,"The husband states the issue on appeal: Point Involved Where the [husband] filed a motion to dismiss predicated upon a settlement agreement signed by the parties, duly notarized, and which called for the immediate dismissal of all proceedings between the parties, was the court authorized to simply ignore its terms, declare the motion not to be timely filed, and proceed as though the agreement never existed?",issues
+782,885228,1,3,"¶ 9 Did the District Court err by relying on § 60-1-201, MCA (1999) instead of the 1997 version of the statute? ¶ 10 The Pedersens contend that the District Court erred when it relied on the 1999 version of § 60-1-201, MCA, instead of the 1997 version in effect when their complaint was filed. The 1999 version of the statute provides that [a]ll highways that are not designated, selected, or established by the commission or constructed or maintained by the department may be designated as county roads or city streets upon the acceptance of the county or city. The 1997 version does not include the words upon the acceptance of the county or city. In the lower court's decision, the court found that this section indicate[d] that some affirmative action by the County is required. Appellants contend that county action is unnecessary pursuant to the 1997 version. ¶ 11 We agree that the 1997 version of the statute applies to this case. However, no error by the district court is grounds for setting aside the judgment of the district court unless the error affects the substantial rights of the parties. We must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties. Rule 61, M.R.Civ.P. We conclude that this error was harmless. ¶ 12 Both the 1997 and the 1999 versions of § 60-1-201, MCA provide in subsection (3) that [c]ounty roads are those opened established, constructed, maintained, changed, abandoned, or discontinued by a County in accordance with Title 7, Chapter 14. The District Court recognized that the controlling law was found in Title 7, chapter 14 when it stated that [w]hile Title 60 (specifically 60-1-201, MCA) appears to possibly conflict with Title 7, Title 60 deals with state highway classifications and administration whereas Title 7 deals specifically with the creation of county roads. It is clear that the District Court did not rely on Title 60 for its conclusion that a county road had not been created and therefore, its mistaken reference to the 1999 version of § 60-1-201, MCA was harmless error.",issues
+783,883471,1,4,"Did the District Court err in dismissing Cash/Konopacki's slander of title claim against the Austins? Since Cash/Konopacki and Nagelhus have entered into a Closing Date Extension Agreement, whereby the parties have agreed to extend the date of closing until 30 days after resolution of this lawsuit, we conclude that Cash/Konopacki will not be harmed as a result of the Austins filing a lis pendens on the property. We hold that the District Court properly dismissed Cash/Konopacki's claim for slander of title and we affirm the District Court on this issue.",issues
+784,1815045,1,1,"In reviewing a ruling on a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is substantial if it is of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).",standard of review
+785,1436706,3,1,"Although the LRAA does not provide for judicial review of a prison disciplinary decision under the contested case jurisdiction of D.C.Code §§ 1-1509, -1510, we are satisfied that Walton's regulatory challenge could be raised properly in Superior Court as a petition for habeas corpus. Following Abdullah, supra, 668 A.2d 801 (D.C.1995), we recognize that habeas corpus reaches not only the fact but also the form of detention. 668 A.2d at 809. One of the requirements of habeas corpus jurisdiction is the exhaustion of administrative remedies. Murray v. Stempson, 633 A.2d 48, 49 (D.C.1993). Here Walton's appeal to the Department did not raise any issue regarding the issuance of the Adjustment Board's written statement under 28 DCMR § 512.7. Nor did his appeal letter to Administrator Stempson raise any issue concerning the failure of the accusing official to fill out and sign the disciplinary report under 28 DCMR § 506.3. [15] The government maintained that Walton did not challenge the adequacy of the disciplinary board's written decision in his internal appeal to the administrator and therefore should be precluded from raising the issue here. [16] However, he did raise an issue as to whether the appeal Administrator's decision was based upon a reasonable assessment of the evidence presented, as required by 28 DCMR § 513.2. After Walton filed his complaint in the trial court, the trial judge remanded the matter to the Department because it [appeared] to the court that the Adjustment Board has not issued a written statement of findings setting forth the reasons for its disciplinary action as required by § 112.6 [28 DCMR § 512.7] of the Lorton Regulations Approval Act of 1982. The remand was not error because in order to rule on the reasonableness of the administrative appellate decision, the trial court believed that it needed a clear written statement to assess the sufficiency of the evidence. After the Department filed its response to the trial court's remand, Walton argued that: (1) the trial court erred in remanding the matter; (2) the Board's second statement was inadequate factually and legally, and (3) the Board's second statement was only signed by two of the three Board members in violation of 28 DCMR § 512.9 which requires the three Board members to sign, and was not issued within three working days of Walton's hearing, as required by 28 DCMR § 512.10.",jurisdiction
+786,4580030,1,2,"[1] Generally, a trial court’s determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).",standard of review
+787,885132,1,2,"¶ 17 Did the District Court abuse its discretion when it ruled on the motion for summary judgment without allowing Holms the opportunity to conduct further discovery? ¶ 18 Holms contends that the motion for summary judgment was premature because of an inadequate opportunity to conduct discovery. Specifically, the arguments are: 1) there were fewer than 45 days during which the case was not subject to either an appeal or a dispositive summary judgment motion in which to conduct discovery; 2) because the District Court simultaneously granted Holms' motion to file the counterclaims and granted summary judgment on those counterclaims, no adequate opportunity was allowed to conduct discovery on those claims; and 3) the summary judgment was premature because the court granted the motion in spite of the Stanleys' refusal to fully answer requests for production of documents. In the latter regard, Holms notes that there was a pending motion to compel the Stanleys to produce documents, after which deposition of various individuals were planned. ¶ 19 District courts have inherent discretionary power to control discovery. J.L. v. Kienenberger (1993), 257 Mont. 113, 119, 848 P.2d 472, 476 (citation omitted). This discretionary power extends to deciding whether to deny or to continue a motion for summary judgment pursuant to Rule 56(f), M.R.Civ.P., on the basis that the party opposing the motion needs further discovery. Kienenberger, 257 Mont. at 120, 848 P.2d at 477; Howell v. Glacier General Assur. Co. (1989), 240 Mont. 383, 386, 785 P.2d 1018, 1019, 1020. In urging the court to deny the motion for summary judgment on the basis that it was premature, Holms' argument was based on the standards set forth in Rule 56(f), M.R.Civ.P., which provides as follows: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. This Court has stated that a district court does not abuse its discretion in denying a Rule 56(f), M.R.Civ.P., motion where the party opposing a motion for summary judgment does not establish how the proposed discovery could preclude summary judgment. Kienenberger, 257 Mont. at 120, 848 P.2d at 477; Howell, 240 Mont. at 386, 785 P.2d at 1019, 1020. ¶ 20 Although Holms has detailed the sequence of events in this case and vigorously argues that more time was needed to obtain documents and take depositions, neither Holms' briefs nor the supporting affidavits in the District Court establish how the proposed discovery could preclude summary judgment. The only evidence Holms hoped to obtain was a letter written by the Stanleys to the Corwin-Eisinger group in September of 1994. However, a copy of that letter was obtained through other means and attached to Holms' affidavit in opposition to the Stanleys' motion for summary judgment. Thus, the District Court reviewed the letter in deciding the motion. Furthermore, Allan Holms testified in two affidavits that the Stanleys had reneged on commitments they made in September of 1994. Holms fails to explain what new facts could have been obtained through further discovery which could defeat the Stanleys' motion. ¶ 21 We hold that the District Court did not abuse its discretion in conducting the summary judgment hearing and ruling on the Stanleys' motion without allowing Holms the opportunity to conduct further discovery.",issues
+788,2557325,1,2,"J. Crew argues that the appeal is untimely and should be dismissed under D.C.App. R. 4(a) because it was filed more than thirty days after the entry of judgment and that period was not extended by her filing of a motion under Super. Ct. Civ. R. 59(e) because the latter motion was itself untimely. Under Rule 4(a), the notice of appeal in a civil case must be filed within 30 days after entry of the judgment or order from which the appeal is taken unless a different time is specified by the provisions of the District of Columbia Code. D.C.App. R. 4(a). It is well established that the time limits specified by Rule 4 are mandatory and jurisdictional. See e.g., Frain v. District of Columbia, 572 A.2d 447, 449 (D.C.1990) (citations omitted); Robinson v. Evans, 554 A.2d 332, 335 (D.C. 1989) (citations omitted). Unless timely filed, this court has no jurisdiction to entertain the appeal. Id. The notice of appeal in this case was not filed within thirty days of the judgment appealed from. However, Farrow did file in the trial court two motions under Super. Ct. Civ. R. 59(e) (motion to alter or amend judgment). Such a motion, if timely filed, will toll the time for noting an appeal until the motion is acted upon. D.C.App. R. 4(a)(4)(A)(iii) & (B)(i); [5] Vincent v. Anderson, 621 A.2d 367, 370-72 (D.C.1993) (in accordance with D.C.App. R. 4, holding timely a notice of appeal filed within 30 days of the disposition of a timely filed motion under Super. Ct. Civ. R. 59(e)); Fleming v. District of Columbia, 633 A.2d 846, 849 (D.C.1993) (holding appellant's appeal untimely where 59(e) motion not filed within the rule's 10-day time period). Rule 59(e) requires that a motion to alter or amend the judgment be filed no later than 10 days after entry, which we have recognized to be jurisdictional. Id. (citing D.D. v. M.T., 550 A.2d 37, 42 (D.C. 1988)). Here, it is undisputed that Farrow did not file either of her Rule 59(e) motions until well beyond that time. The judgment was entered on the docket on October 1, 2008, and Farrow filed motions pursuant to Rule 59(e) on October 27 and October 30, 2008. Only timely Rule 59(e) motions operate to toll the time limitations for noting an appeal. Indeed, we have stated that Rule 59(e)'s ten-day period is jurisdictional . . . and that `where a motion for reconsideration is untimely, . . . the denial of such a motion is not an appealable order.' Fleming, supra, 633 A.2d at 849 (citation omitted). The party could challenge the underlying judgment only by filing a timely appeal from the judgment, which, as we have said, Farrow did not do in this case. Since Farrow's motion was untimely, it had no tolling effect on the thirty-day period for noting an appeal. Moreover, the denial of an untimely Rule 59(e) motion is not an appealable order. [6] Id. (citing Frain, supra, 572 A.2d at 450 n. 6). Ordinarily, these circumstances would require dismissal of the appeal as untimely. However, in support of her claim that this court has jurisdiction over her appeal, Farrow makes three arguments that require consideration. First, Farrow argues that because the summary judgment order refers to the previously dismissed corporation, 3222 M Street, Inc., as the defendant, instead of the only remaining defendant, J. Crew, there is no final appealable order. Therefore, she contends, this court should treat the appeal as premature and entertain same upon correction of the error. The question is whether the error omitting the name of the sole defendant remaining in the case from the judgment renders it invalid. We have not previously squarely decided this issue, but federal courts, interpreting similar federal rules, have held that clerical errors contained in the judgment do not render it invalid. [7] Pratt v. Petroleum Prod. Mgmt. Emp. Sav. Plan & Trust, 920 F.2d 651, 655 (10th Cir.1990). Relevant to this case, one question addressed in Pratt was whether the district court's judgment was final for purposes of appeal where the judgment referenced the defendants using an old corporate name and the  et al.  designation. Id. The 10th Circuit rejected the argument of the three unspecified defendants that the judgment was not final and that a remand was required for proper entry of judgment, which would have given them an opportunity to note a timely appeal upon entry of a corrected judgment. [8] Id. The court reasoned that the judgment required only a clerical correction which could be remedied readily through Fed.R.Civ.P. 60(a). Id. We find the reasoning in Pratt persuasive. Farrow argues that the reference in the trial court's judgment to a dismissed defendant is not the type of error that can be corrected through Super. Ct. Civ. R. 60(a). She contends that the decision in Pratt is distinguishable and supportive of her position. Specifically, she points out that Pratt involved an inadvertent omission from the judgment of prejudgment interest which could be ascertained readily by reference to the court's memorandum opinion and order. She argues that, unlike this case, the district judge did not make a mistake as to the party involved, and there was no error in the body of the court's memorandum. Contrary to Farrow's argument, the judgment in Pratt, as we have said, did not reference any of the individual defendants by name either in its caption or body. Pratt, 920 F.2d at 655. The caption of the judgment identified only the corporate employer under an old corporate name and used the  et al.  designation for any other defendants. Id. While the district court's separate memorandum and order granting summary judgment named all defendants (with the corporate defendant under its former name), we do not regard that a significant distinguishing fact. The judgment required reference to another document for clarification and clerical correction. See id. The Pratt court considered the question of enforceability of the judgment without correction to be a different issue than the jurisdictional question presented by the notice of appeal. That court determined the errors in the judgment to be of no major consequence and readily correctable through Fed.R.Civ.P. 60(a). Id. Similarly, in the present case, the caption references a previously dismissed defendant accompanied by the  et al.  designation. While the body of the judgment in this case also incorrectly lists a previously dismissed defendant as the moving and prevailing party on summary judgment, this is not a case in which the party against which judgment was intended was not clear, thereby precluding correction through Rule 60(a). See Pratt, supra, 920 F.2d at 653-54 n. 5. [9] Only one party defendant, J. Crew, remained in the case, and therefore, no other defendant could have been intended. Further, the judgment entered by the court for the defendant states that [p]laintiff takes nothing, thereby making clear that Farrow was denied any recovery from the defendant, albeit that the defendant was incorrectly identified. This is precisely the type of error correctable through Rule 60(a). [10] A correction that simply conforms judgment to the original intention of the court can be effected properly through Rule 60(a). Id.; accord Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir.1993) (citing Robi v. Five Platters, Inc., 918 F.2d 1439, 1445 (9th Cir.1990) (other citations omitted)); [11] see also Tolson v. District of Columbia, 860 A.2d 336, 341 (D.C.2004) (noting that the court has authority to vacate a judgment to correct clerical errors). [12] It is clear from the judgment and order that the case was finally and adversely decided against Farrow and in favor of the only remaining defendant. [13] Second, Farrow argues that the judgment is not final because it is not set forth in a separate document as required by Super. Ct. Civ. R. 58, which incorporates requirements of Super. Ct. Civ. R. 54(b). She contends that when taken together, these rules require a separate document because there had been multiple parties in the case. Farrow argues that only a judgment entered in accordance with these rules will commence the running of the time for noting an appeal. Rule 54(b) applies to judgments involving multiple claims or multiple parties. [14] Application of the rule preserves the policy against piecemeal appeals. Peoples v. Warfield & Sanford, Inc., 660 A.2d 397, 401 (D.C.1995) (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). This rule also prevents a premature appeal of some claims from defeating the proper resolution of the case as a whole. Id. A judgment must dispose of all claims against all parties in order to be final for purposes of appeal. Berryman v. Thorne, 700 A.2d 181, 182 n. 3 (D.C.1997) (recognizing that this court lacked jurisdiction until all matters were decided subsequent to the filing of the appeal) (citing In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C. 1993) (en banc)). Therefore, adjudication of fewer than all claims against all parties, absent certification under Rule 54(b), is not appealable. Id. Farrow's argument is that because there were multiple parties in the litigation at one time, the judgment against J. Crew cannot be final. That outcome would be contrary to the plain meaning and purpose of Rule 54(b). The rule is clearly directed toward a judgment involving fewer than all claims or parties. Here, only plaintiff Farrow and defendant J. Crew remained as parties in the case at the time that judgment was entered. Therefore, there was no basis for the court to make a determination under Rule 54(b) that there was no reason to delay the entry of judgment while the case proceeded against others or on other claims. See Peoples, supra, 660 A.2d at 401-02 (explaining the kind of separability required to justify Rule 54(b) certification) (citations omitted). There were no other claims being pursued. In short, Rule 54(b) is inapplicable and serves no purpose as relates to the entry of a final judgment disposing of all claims as to all parties. See Super. Ct. Civ. R. 54(b). [15] Farrow also looks to Super. Ct. Civ. R. 58, which is subject to the provisions of Rule 54(b), in support of her argument that the entry of judgment was not final. Rule 58 requires that a judgment be set out in a document separate and distinct from any opinion or memorandum of the court. [16] District of Columbia v. Murtaugh, 728 A.2d 1237, 1243 (D.C.1999) (citing Spann v. Colonial Vill. Inc., 283 U.S.App.D.C. 216, 224, 899 F.2d 24, 32 (1990)). The time for noting an appeal does not begin to run until the separate-document requirement is met. See id. The purpose of the separate document rule is to clarify when the time for noting an appeal commences to run and to avoid the inequities that might occur when a party appeals from a document or docket entry that appears to be final, but is not. Id. at 1242-43 (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)). Farrow argues that Rule 58 and Rule 54(b) together require that the judgment be set forth in a separate document. In this case, the trial court signed, and there is entered on the docket, a separate document setting forth the court's judgment in which it specified that plaintiff (Farrow) takes nothing and that judgment is entered in favor of defendant, although the latter is identified incorrectly as the previously dismissed 3223 M Street corporate defendant. Thus, the gravamen of Farrow's argument is that the requirement of the separate document rule is not met here because the prevailing defendant was misidentified. For the reasons we have stated in our earlier discussion, we do not agree that the separate judgment entered in this case is invalid because of the error in identifying the only remaining defendant in the case at that time. See Pratt, supra, 920 F.2d at 655. As previously explained, it was clear what defendant was intended, as only one defendant remained in the case, and the error is one that is readily correctable through Rule 60(a). See id. Finally, Farrow suggests that she was misled by the circumstances into believing that no appealable order had been entered. We are not persuaded by this argument, particularly given the facts of this case. Farrow was well aware that J. Crew was the only remaining defendant in the case. All other parties in the case had been dismissed upon Farrow's own motion more than a year before the entry of judgment in favor of J. Crew. Extensive litigation continued only against J. Crew. Farrow treated the judgment as final. She filed her motions for reconsideration under Super. Ct. Civ. R. 59(e), which addresses altering or amending a judgment. In the 59(e) motion filed on October 30th, she lists the next event as Appeal. The arguments in the motion claim errors of law in the trial court's ruling, which are properly considered under Rule 59(e). See Puckrein v. Jenkins, 884 A.2d 46, 53 n. 8 (D.C.2005) (noting that motions for reconsideration asserting errors of law are generally treated under Rule 59(e)); Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 804 (D.C.1984) (explaining that requests for relief from consequences of original order on the basis of errors of law are properly considered under Rule 59(e)). In her notice of appeal, Farrow responds in the affirmative to the question whether the order appealed from is final ( i.e., disposes of all claims and has been entered by a Superior Court Judge, not a Magistrate Judge). It is clear from the record that Farrow recognized the trial court's judgment as a final disposition of the case and treated it as such. Even if no separate document is entered in a case, it will be deemed waived where (1) no party objects to the taking of the appeal in the absence of a separate judgment, and (2) it is clear that the trial court intended its action to be the final decision in the case. Murtaugh, supra, 728 A.2d at 1243 n. 4; Pratt, supra, 920 F.2d at 655-56 (citing Bankers Trust, supra, 435 U.S. at 386-87, 98 S.Ct. 1117 and Laidley, supra note 8, 914 F.2d at 1390) (noting that parties can waive strict compliance with the separate judgment rule and that where they are not misled into believing an order is non-final, lack of technical compliance with Rule 58 will not preclude appellate review.) In sum, we conclude that Farrow was not misled into believing that no final order had been entered, and that in any event, she waived any technical non-compliance with the separate document requirement. For all of the foregoing reasons, Farrow's appeal from the underlying judgment is untimely, and this court lacks jurisdiction to review it.",jurisdiction
+789,2635323,1,2,"¶ 10 The focus of this appeal involves legal questions concerning the meaning of two legislative enactments, § 1101.1(B) and § 2017(A), and the interplay of the two statutes in the circumstances of this case. Involving questions of law relating to statutory interpretation, the appropriate appellate standard of review is de novo, i.e., a non-deferential, plenary and independent review of the trial court's legal ruling[s]. Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654, citing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5. ¶ 11 We also recognize the following general rules concerning statutory interpretation. When called on to determine the meaning of a statute, a court's primary goal is to ascertain and then follow the intention of the Legislature. See TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 20. Legislative intent is ascertained by reviewing the whole act in light of its general purpose and object. Id. Fulsom further delineated certain well recognized principles concerning statutory interpretation. Fulsom states: The plain meaning of a statute's language is conclusive except in the rare case when literal construction would produce a result demonstrably at odds with legislative intent. Also, a court is duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them. A universally recognized principle in cases when a court is called on to interpret legislative enactments is that the court is without authority to rewrite a statute merely because the legislation does not comport with the court's conception of prudent public policy. Fulsom, 2003 OK 96, ¶ 7, 81 P.3d at 655. (citations omitted). ¶ 12 Fulsom also set out salient general rules regarding the recovery of attorney fees and statutory interpretation of enactments asserted to support an attorney fee allowance. In Fulsom the following is found: This Court stated the following in State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 16, 61 P.3d 234, 243, concerning the well-known American Rule as to the recovery of attorney fees in litigation: Oklahoma follows the American Rule. . . . The Rule is generally that each litigant pays for their own legal representation and our courts are without authority to assess attorney fees in the absence of a specific statute or contract allowing for their recovery. Exceptions to the Rule are narrowly defined and carved out with great caution because it is understood liberality of attorney fee awards against the non-prevailing party has a chilling effect on our open access to courts guarantee. [Citations omitted.] Oklahoma jurisprudence, thus, recognizes that attorney fee statutes are strictly applied because to do otherwise holds out the real possibility of chilling access to the courts. For an award of attorney fees to be authorized under a particular statute the authorization must be found within the strict confines of the involved statute. Further, if the involved attorney fee statute requires interpretation it may be read in context with other parts of the statute and in light of the law in effect at the time of its enactment. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d at 655. (citations omitted). ¶ 13 Contrasted with the recognized purpose or rationale behind our jurisprudence following the American Rule are the general policy reasons supporting the recovery of attorney fees and costs, to wit: the encouragement of settlement and discouragement of the bringing of frivolous claims. Hicks v. Lloyd's General Ins. Agency, Inc., 1988 OK 97, 763 P.2d 85, 86. These considerations recognize the limited availability of judicial resources and seek to penalize those [who] unnecessarily waste them. Id. It is also generally recognized that the purpose of offer of judgment statutes is to encourage judgments without protracted litigation by provid[ing] additional incentives to encourage a plaintiff to accept a defendant's offer to confess judgment and to encourage a defendant to offer an early confession of judgment [to] avoid further increases in costs which may be incurred [for] trial preparation. See Dulan v. Johnston, 1984 OK 44, 687 P.2d 1045, 1047 (construing 12 O.S.2001, § 1101, an offer of judgment statute allowing the recovery of costs in certain situations); see also Hopkins v. Byrd, 2006 OK CIV APP 132, ¶ 7, 146 P.3d 864, 866 (citing and quoting Dulan v. Johnston and opining that purpose of § 1101.1 is the same as § 1101). [8] ¶ 14 Title 12 O.S.Supp.2006, § 1101.1 (B)(1) and (3) provide: B. Other actions. 1. After a civil action is brought for the recovery of money or property in an action other than for personal injury, wrongful death or pursuant to Chapter 21 of Title 25 or Section 5 of Title 85 of the Oklahoma Statutes, any defendant may file with the court, at any time more than ten (10) days prior to trial, an offer of judgment for a sum certain to any plaintiff with respect to the action or any claim or claims asserted in the action. An offer of judgment shall be deemed to include any costs and attorney fees otherwise recoverable unless it expressly provides otherwise. If an offer of judgment is filed, the plaintiff or plaintiffs to whom the offer of judgment is made shall, within ten (10) days, file: a. a written acceptance or rejection of the offer, or b. a counteroffer of judgment, as described in paragraph 2 of this subsection. If a plaintiff fails to file a timely response, the offer of judgment shall be deemed rejected. The fact an offer of judgment is made but not accepted or is deemed rejected does not preclude subsequent timely offers of judgment. . . . . 3. If no offer of judgment or counteroffer of judgment is accepted and the judgment awarded the plaintiff is less than one or more offers of judgment, the defendant shall be entitled to reasonable litigation costs and reasonable attorney fees incurred by the defendant with respect to the action or the claim or claims included in the offer of judgment from and after the date of the first offer of judgment which is greater than the judgment until the date of the judgment. Such costs and fees may be offset from the judgment entered against the offering defendant. [9] ¶ 15 In our view the plain language of § 1101.1(B)(3) provides that there must be some type of final adjudication, i.e., conclusion, to the action or the claim or claims included in the offer of judgment for an attorney fee and cost recovery to be triggered. Here, the summary judgment relied on by Associated cannot be considered a final adjudication or conclusion of the action or the claims included in Associated's Offer to Boston. This is so for two main reasons. One, by obtaining the summary judgment ruling Associated itself, in effect, convinced the trial court by its real party in interest objection that the claims asserted against it were not the claims of Boston but were the claims of Office Design. Two, the very same claims asserted against Associated by Boston were allowed to go forward through Office Design's intervention in the case and, in effect, its substitution for Boston as the real party interest to assert those claims against Associated. [10] ¶ 16 Section 2017(A) provides: A. REAL PARTY IN INTEREST. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (emphasis added). The purpose of § 2017(A) was explained in Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731, 733 (Approved for Publication by Order of Supreme Court), where the following is found: Substitution of plaintiffs has been liberally granted in Oklahoma where mistake or inadvertent error has caused the improper party to file an action. Saint Paul Fire and Marine Insurance Co. v. Spann, 355 P.2d 567 (Okla.1960). In Saint Paul Fire, the court explained that `courts should be inclined to disregard subtleties and answer technical objections to the sufficiency of a pleading in an honest effort to determine the real issues on their merits, and to try and do substantial justice to the litigants before them.' Id. at 570 (quoting Mostenbocker v. Shawnee Gas & Elec. Co., 49 Okla. 304, 152 P. 82, 85 (1915)). Furthermore, `where there is no change in the cause of action and the party substituted bears some relation of interest to the original party and to the action, the substitution may be allowed, as where the substitution is of one having the legal right to sue instead of one improperly named as plaintiff.' Id. at 571 (quoting Dierks v. Walsh, 196 Okla. 372, 165 P.2d 354 (1946)). Oklahoma's interpretation of section 2017 is fully consistent with the construction commonly placed on Federal Rule of Civil Procedure 17, from which section 2017 derives. The advisory committee notes to the 1966 amendment to Rule 17 describe the rationale for permitting liberal substitution of the plaintiff for the real party in interest in actions brought under the Federal Rules. The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. (Emphasis added). F.R.C.P. 17, Advisory Committee Notes, 1966 Amendment. The committee notes stress that the provision is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. Id. The committee explains that the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover. Id. Where the defendant's interests are protected, substitution should be allowed. Thus, the purpose of the real party in interest requirement from the defendant's perspective is to insure that the defendant will not be later subjected to a second suit based on the same cause or claim. See Joplin v. Ely, 1961 OK 244, 365 P.2d 735, 736 (referring to predecessor real party in interest statute to § 2017); see also Watford v. West, 2003 OK 84, 78 P.3d 946. In other words, from a defendant's perspective the real party in interest requirement is to protect the defendant from a multiplicity of suits based on the same claim or claims. ¶ 17 Here, in essence, Associated persuaded the trial court that Office Design was the party having the actual right to recover (if entitlement to recovery was ultimately shown at all), not Boston, and the real party in interest purpose from Associated's perspective was served. When Office Design was allowed to intervene in the lawsuit, Office Design was, in effect, substituted in the place of Boston to litigate the same action and claims against Associated as had been initially brought by Boston. Although the summary judgment order of the trial judge handling the case prior to the judge that ruled on Associated's motion for attorney fees and costs used the unfortunate language that Boston's causes of action against Associated were dismissed with prejudice on the basis that Boston was not the real party in interest, the substantive effect of the summary judgment ruling was that Boston was dismissed as a party to the lawsuit and Office Design, once it decided to file a Second Amended Petition asserting the same claims, was substituted for Boston as the real party in interest plaintiff to carry forward the same action and the same claims as initially brought against Associated by Boston. ¶ 18 By virtue of the last phrase of § 2017(A) the substitution of Office Design had the same effect as if the action had been commenced in the name of the real party in interest. Normally, § 2017(A)'s general purpose from the plaintiff's perspective, is to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. Thus its main thrust is to allow correction in parties after the statute of limitation has run, despite the valid objection that the original action was not brought by the real party in interest. Watford, 2003 OK 84, ¶ 11, 78 P.3d at 949 (quoting 3A Moore's Federal Practice P, 17.15-1, at 17-182 (2nd ed.1979))(emphasis deleted). Although no statute of limitation issue is involved in this case, the plain words of § 2017(A) are that a substitution, as practically occurred here, had the effect of placing Office Design in the shoes of Boston and it was as if the action initiated by Boston had, in fact, instead been initiated by Office Design. Therefore, the summary judgment ruling on the real party in interest issue, of course, did not bring an end to the litigation as a whole nor did it conclude the action or claims brought against Associated that were the subject of its Offer. ¶ 19 In the case of Triad Bank, N.A. v. A & A Materials Co., Inc., 2002 OK CIV APP 3, 39 P.3d 820, the COCA, Division III (the same division that reversed the trial court order involved here) basically recognized that an essential element or condition precedent to recovery of attorney fees and costs under § 1101.1(B) was an adjudication of the claim that was the subject of the offer of judgment. See Triad Bank, N.A., 2002 OK CIV APP 3, ¶ 5, 39 P.3d at 822. Without such an adjudication no determination can be made as to whether there was a judgment less than the offer. See id. Although Triad Bank, N.A. involved an unaccepted offer of judgment in regard to a counterclaim and, of course, did not involve a real party in interest substitution like the instant case, the principle espoused therein is applicable here. In the instant case the claims that were the subject of the offer of judgment were dismissed without prejudice when Office Design (purportedly joined by Boston) dismissed the action without prejudice prior to and without an actual adjudication of the claims. Thus, a required condition to application of § 1101.1(B)(3) is missing, i.e., a judgment actually adjudicating the action or claim or claims that were the subject of Associated's Offer. We reject Associated's argument that the real party in interest summary judgment ruling was an adjudication of the claim or claims asserted by Boston sufficient to invoke the provisions of § 1101.1. The simple fact is that the ruling on the real party in interest defense raised by Associated did not end the lawsuit nor did it render an ultimate determination as to Associated's liability on the claims asserted against it, as was recognized by the trial court in denying Associated's motion for attorney fees and costs. [11] ¶ 20 For us to rule here that the summary judgment ruling on the real party in interest issue was a judgment within the legislative contemplation of § 1101.1(B)(3) would be an act of stretching that provision beyond its limits with no basis but unwarranted and improper judicial fiat. It would involve a broad, rather than strict application of the provision, and, thus, would be a ruling contrary to our generally recognized jurisprudence in regard to the interpretation of attorney fee statutes. This we will not do. We finally note we have, of course, reviewed the entirety of § 1101.1 and find nothing therein to alter our view as to the correctness of the trial court's decision to deny Associated attorney fees and costs against Boston under that provision or to convince us that the Legislature intended for § 1101.1(B)(3) to apply in the situation or circumstances shown by the record presented to us in this case.",analysis
+790,2514669,1,2,"
+The acceptance or rejection of an application for a writ of certiorari is discretionary. HRS § 602-59(a) (Supp.2007). In deciding whether to grant the application, this court considers whether the ICA's decision reflects (1) [g]rave errors of law or of fact[ ] or (2) [o]bvious inconsistencies ... with [decisions] of th[is] court, federal decisions, or [the ICA's] own decision[s] and whether the magnitude of those errors or inconsistencies dictat[es] the need for further appeal. HRS § 602-59(b).
+This court generally reviews the circuit court's evidentiary rulings for an abuse of discretion, unless there can be but one correct answer to the question of admissibility, in which case this court's review is de novo. See State v. Duncan, 101 Hawai`i 269, 273-74, 67 P.3d 768, 772-73 (2003).
+The standard of review for a trial court's issuance or refusal of a jury instruction is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading. State v. Balanza, 93 Hawai`i 279, 283, 1 P.3d 281, 285 (2000). [E]rroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. State v. Sua, 92 Hawai`i 61, 69, 987 P.2d 959, 967 (1999). In other words, [e]rror is not to be viewed in isolation and considered purely in the abstract. State v. Mainaaupo, 117 Hawai`i 235, 247, 178 P.3d 1, 13 (2008) (citations omitted).
+In a jury trial, [t]he court ... shall not comment upon the evidence. HRE Rule 1102.
+The confrontation clause of article I, section 14 of the Hawai`i Constitution directs that, [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against the accused.... This court has further held that the right of confrontation `affords the accused both the opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses.' State v. Fields, 115 Hawai`i 503, 512, 168 P.3d 955, 964 (2007) (citing State v. Ortiz, 74 Haw. 343, 360, 845 P.2d 547, 555 (1993)).
+`In applying the harmless-beyond-a-reasonable-doubt standard, the court is required to examine the record and determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction.' State v. Peseti, 101 Hawai`i 172, 178, 65 P.3d 119, 125 (2003) (quoting State v. Balisbisana, 83 Hawai`i 109, 113-14, 924 P.2d 1215, 1219-20 (1996)) (brackets omitted).
+This court reviews the circuit court's decision with respect to a motion for a mistrial for an abuse of discretion. See State v. Lagat, 97 Hawai`i 492, 495, 40 P.3d 894, 897 (2002).",standard of review
+791,2543582,1,3,"Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and the case remanded to the Court of Civil Appeals for proceedings consistent with this opinion. REVERSED AND REMANDED. COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur. MURDOCK, J., recuses himself.",conclusion
+792,2633570,1,3,"1. Tortious interference with a contract A prima facie case of tortious interference with a contract exists where a plaintiff establishes: (a) the existence of a contract, (b) knowledge of the contract on part of the defendant, (c) intentional interference causing breach of the contract and (d) injury to the plaintiff resulting from the breach. Barlow v. Int'l Harvester Co., 95 Idaho 881, 893, 522 P.2d 1102, 1115 (1974). The problem with Thirsty's cause of action and argument is that both the district court below and this Court on appeal have had difficulty identifying with exactly which contractual relationship Thirsty's is claiming interference. At oral argument, Thirsty's attorney argued that the Tolericos either expressly, or at least impliedly, assumed the motor fuel supply contracts between Thirsty's and Powell when they purchased the gas stations and that Thunderbird tortiously interfered with those contracts. The record reveals no evidence of an express assumption by the Tolericos of the motor fuel supply contracts between Thirsty's and Powell. Thunderbird was aware there was no express agreement for the purchase of fuel from Tesoro and therefore, clearly did not interfere with such a contract. Regarding the Tolericos implied assumption of the contract, it is Thirsty's obligation to present sufficient evidence to create a genuine issue of fact that the Tolericos had some implied agreement to purchase Tesoro products. The only facts Thirsty's points to are that on one occasion, the Tolericos acknowledged Powell thought they had agreed to purchase motor products from Tesoro and, indeed, the Tolericos did so for approximately a year. These facts alone, however, do not raise a genuine issue of material fact that would support Thirsty's contention that the Tolericos were under some implied obligation to purchase motor fuel from Tesoro. Again, there is no contract with which Thunderbird could interfere. Thirsty's also appears to argue the Agreements have been breached by virtue of the Tolerico's agreement to sell Conoco products and that Thunderbird has some responsibility for that. Because Thirsty's is still obligated on the Agreements with Powell and Tesoro, Thirsty's may face some liability and is obviously concerned about holding someone accountable. It is clear that the Tolericos agreed to assume the amortized debts owed by Thirsty's to Powell under the Agreements. By the terms of the Agreements, however, they only came due if an event of default occurred. The Agreements are for a ten year term and payments due Powell are amortized over the entire ten year period, with the amount owed decreasing over the life of the Agreements. If the Agreements are fully complied with, no amounts ever become due and payable at the conclusion of ten years. However, if an event of default occurs, the Agreements become immediately due and payable. An event of default is defined by the Agreements as including the failure to sell exclusively Tesoro fuel products. Thus, when the Tolericos began selling Conoco fuel, the remaining balances owed under the Agreements became immediately due. Although Thunderbird was a facilitating factor in causing the amortized debt to become due, nothing Thunderbird did prevented the Tolericos from honoring any obligations under the Agreements with Powell and paying back the amortized debt. The decision not to pay Powell was entirely within the Tolericos' control and had nothing to do with Thunderbird. Thunderbird did not intentionally interfere with whatever contractual obligation the Tolericos have under the Agreements — it simply participated in making those obligations due. Therefore, we conclude the district court was correct that there was no genuine issue of material fact and, as a matter of law, Thunderbird did not intentionally interfere with any contractual agreement between Thirsty's or Tolericos and Powell. 2. Attorney fees Both parties request attorney fees on appeal pursuant to I.C. § 12-120(3). I.C. § 12-120(3) mandates an award of attorney fees in any civil action to recover on a contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction. . . . Tortious interference with a contract is not an action to recover on a contract, nor a commercial transaction, but rather an action in tort. Thus, a prevailing party on a claim for tortious interference is not entitled to attorney fees under I.C. § 12-120(3). Northwest Bec-Co. v. Home Living Ser., 136 Idaho 835, 41 P.3d 263 (2002).",analysis
+793,4569702,1,1,"In October 2002, Frans was injured in an accident arising out of and in the course of his employment when a garage door struck him on the top of his head. He initially reported injuries to his head, neck, and back. In 2008, Frans filed a petition in the Workers’ Compensation Court against his employer, Waldinger Corporation, and its workers’ compensation insurance carrier (collectively Waldinger), alleging he was injured in the 2002 work accident. The parties later entered into a joint settlement agreement in which they agreed that Frans injured his lower back in the 2002 work accident and “to resolve, on a final basis, all issues except [Frans’] entitlement to receive reasonable and necessary medical treatment as a result of [his] low back condition.” The agreement stated that Waldinger would be “fully discharged from all further liability, except for future reasonable and necessary medical care pursuant to Neb. Rev. Stat. §48-120, . . . on account of the accident and injury(s) of 10/30/02, whether now known or to become known in the future, whether physical or mental.” The compensation court entered an order approving the settlement agreement and dismissing the petition. Years later, Frans filed a petition in the compensation court seeking reimbursement for what he claimed was continuing medical treatment related to the 2002 work accident. In an amended petition, Frans alleged he had injured his head, neck, and lower back and requested “continuing medical treatment including but not limited to treatment for depression arising as a result of the 10/30/02 back injury as well as other treatment related to the back injury.” A trial was held and evidence was adduced, including, among other things, medical records and expert opinions of - 576 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports FRANS v. WALDINGER CORP. Cite as 306 Neb. 574 medical professionals. Following trial, the compensation court entered an award. The compensation court referenced an earlier order in which it stated that the parties’ 2008 settlement agreement did not preclude Frans from seeking ongoing medical treatment, including treatment for depression and anxiety, if such injuries were a result of his low-back condition. The compensation court found that Frans was entitled to reimbursement for treatment of his current low-back pain. It ordered Waldinger to pay for certain medical treatment and physical therapy for his lower back. The compensation court also found that there was sufficient evidence to establish Frans’ depression and anxiety were caused by his low-back condition and that he was thus entitled to recover for treatment of his depression and anxiety. It found the evidence was insufficient, however, to show that Frans’ head and neck injuries were causally related to his low-back condition and concluded Frans was not entitled to reimbursement for medical treatment for such injuries. On appeal, the Court of Appeals found that the compensation court did not err in determining the 2008 settlement agreement did not preclude Frans from seeking medical treatment for depression and anxiety if such treatment was reasonable and necessary as a result of Frans’ low-back condition. The Court of Appeals disagreed, however, that the evidence was sufficient to establish Frans’ depression and anxiety developed as a result of his low-back condition, and it thus concluded Frans was not entitled to medical treatment for his depression and anxiety. The Court of Appeals did not address or find error in the compensation court’s finding that Frans was entitled to reimbursement for treatment for his low-back pain. The Court of Appeals reversed the judgment of the compensation court and remanded the cause “with directions to dismiss Frans’ amended petition.” Similar language appears in the opinion’s introduction. Frans petitioned for further review. Among other assignments of error, he assigned that the Court of Appeals erred - 577 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports FRANS v. WALDINGER CORP. Cite as 306 Neb. 574 in directing that his amended petition, in which he sought reimbursement for future medical treatment for his low-back condition, be dismissed. We granted Frans’ petition for further review solely as to that assignment of error. ASSIGNMENT OF ERROR As noted, the sole assignment of error on which we have granted further review is Frans’ contention that the Court of Appeals erred by directing the dismissal of his amended petition.",facts
+794,3134543,1,2,"Relying upon People v. Heirens , 271 Ill. App. 3d 392 (1995), and People v. Stenson , 296 Ill. App. 3d 93 (1998), the State argues that the time limit provided in section 122–1 is a jurisdictional prerequisite to maintaining a post-conviction proceeding and that defendant’s failure to file timely his petition deprived the trial court of jurisdiction to consider his claims. Defendant does not contend that he filed his petition within the time limit of section 122–1. Instead, he asserts that Heirens was incorrectly decided and that the time limit in section 122–1 is a statute of limitations that the State, by failing to raise the issue in the trial court, has waived. Both Heirens and Stenson hold that the limitations period found in section 122–1 is a jurisdictional provision that confers subject matter jurisdiction upon the trial court to adjudicate a defendant’s post-conviction petition. Stenson , 296 Ill. App. 3d at 96; Heirens , 271 Ill. App. 3d at 402. In reaching this conclusion, the courts relied upon this court’s decision in Fredman Brothers Furniture Co. v. Department of Revenue , 109 Ill. 2d 202 (1985). In Fredman , this court addressed the difference between statutes of limitations and statutes that both confer jurisdiction on a court and fix a time within which such jurisdiction may be exercised. The court noted that statutes of limitations are procedural in nature and “only fix the time within which the remedy for a particular wrong may be sought.” Fredman , 109 Ill. 2d at 209. “On the other hand, ‘statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created , are not statutes of limitation.’ ” (Emphasis added.) Fredman , 109 Ill. 2d at 209, quoting Smith v. Toman , 368 Ill. 414, 420 (1938). In such cases, the time limit is “a condition precedent to the plaintiff’s right to seek a remedy.” Fredman , 109 Ill. 2d at 209. Time is a condition of the liability itself and not of the remedy alone. Fredman , 109 Ill. 2d at 209. “Such statutes set forth the requirements for bringing the right to seek a remedy into existence. They do not speak of commencing an action after the right to do so has accrued.” Fredman , 109 Ill. 2d at 210. A review of the time limitation found in section 122–1 reveals that it has more in common with statutes of limitations than it does with statutes conferring jurisdiction. The plain language of section 122–1 demonstrates that time is not an integral part of the remedy. The mere passage of time does not deprive a defendant of his right to seek a remedy. In fact, if a petitioner can demonstrate that the late filing was not due to his culpable negligence, there is no time limit within which a petitioner must file his post-conviction petition. See People v. Bates , 124 Ill. 2d 81, 88 (1988); 725 ILCS 5/122–1 (West 1994). A safety valve that allows an unlimited time in which to file a post-conviction petition cannot be reconciled with a concept that makes time a condition of the liability or with a position that time is an inherent element of the right created. As a lack of culpable negligence permits the filing of a post-conviction petition regardless of the length of time that has passed, a lack of culpable negligence–not time–is the inherent element. We agree with Chief Justice Freeman that the remedy provided by the Post-Conviction Hearing Act is a remedy unknown at common law. This, however, is not dispositive of the question of whether the time period is jurisdictional. In Fredman , this court held that a limitations period is jurisdictional only if it creates a substantive right unknown to the common law, and if time is an inherent element of the right created. Fredman , 109 Ill. 2d at 209. Clearly both of these provisions must be met. Because time is not an inherent element of the right to bring a post-conviction petition, compliance with section 122–1 cannot be a jurisdictional prerequisite. This conclusion is supported by the fact that we have previously considered the limitations period to be a statute of limitations. In Bates , this court questioned whether an amendment to section 122–1, shortening the limitations period, applied retroactively to a defendant who had been convicted before the amendment was adopted. In holding that the amendment applied retroactively, the court treated the limitations period in section 122–1 as a statute of limitations and specifically noted that “statutes of limitations have historically been classified as procedural in character, and that procedural amendments are generally applied retroactively.” Bates , 124 Ill. 2d at 85. Chief Justice Freeman’s special concurrence attempts to minimize the effect of this court’s decision in Bates by suggesting that the question of whether section 122–1 establishes a statute of limitations was not the precise question before the Bates court. Notwithstanding these reservations, the fact is that in Bates the court held that the time limit in section 122–1 is a procedural statute of limitations and that therefore amendments to it may be applied retroactively. See Bates , 124 Ill. 2d at 85. While the court did not address the precise issue raised in this action, it did carefully consider the character of the limitations period and found it to be an ordinary statute of limitations. This is further emphasized by the fact that, in affirming the trial court’s judgment, the court stated that defendant’s “petition must be dismissed as untimely.” Bates , 124 Ill. 2d at 88. Such a conclusion is significant when one considers that we have a duty to consider, sua sponte , whether the trial court had jurisdiction to enter the judgment that it did. See People v. Bounds , 182 Ill. 2d 1, 3 (1998); People v. Canty , 75 Ill. 2d 566, 570 (1979). The fact that, in Bates , the court reviewed the trial court’s judgment on the merits is an implicit, if not explicit, recognition that compliance with section 122–1 is not jurisdictional. See Hamilton v. Williams , 237 Ill. App. 3d 765, 772-73 (1992). Similarly, in People v. Reed , 42 Ill. 2d 169 (1969), this court affirmed the dismissal of an untimely post-conviction petition. Just as in Bates , the court dismissed the petition as untimely and not because the trial court lacked jurisdiction. See Reed , 42 Ill. 2d at 172. This court’s treatment of these untimely petitions reveals that it has always considered the time limit in the Post-Conviction Hearing Act to be a statute of limitations and not a jurisdictional prerequisite. We therefore hold that the time limit found in section 122–1 is a statute of limitations and that defendant’s failure to file his petition within the limitations period did not deprive the trial court of jurisdiction to consider defendant’s petition. Waiver The State next contends that, if the limitations period is a statute of limitations, defendant’s petition must be dismissed as untimely. The State explains that, even if the limitations period did not begin until after the United States Supreme Court denied certiorari in defendant’s initial post-conviction proceedings (see People v. Caballero , 179 Ill. 2d 205, 214 n.1 (1997)), defendant’s petition is untimely because it was filed on September 20, 1993, more than six months after the February 22, 1993, denial of defendant’s motion to reconsider the denial of his request for certiorari . Defendant does not contend that the petition is timely, but argues that, by not raising the limitations argument in the trial court, the State has waived its right to argue that defendant’s petition is untimely. During oral argument, the State asserted that it has not waived this contention because, as the appellee, it may raise on appeal any argument that might support the trial court’s judgment. See People v. Monroe , 118 Ill. 2d 298, 300 (1987). In raising this argument, however, the State ignores the second half of the Monroe rule, which requires that any points advanced in support of the trial court’s ruling must have a sufficient factual basis before the trial court. Monroe , 118 Ill. 2d at 300. Here, although the facts support the conclusion that defendant did not file his petition within the time limits found in section 122–1, that section allows a defendant to file a petition outside the limitations period if the late filing is not due to the defendant’s culpable negligence. 725 ILCS 5/122–1 (West 1994). By not raising this issue until the cause was on appeal, the State has effectively precluded defendant from seeking to amend his petition to allege facts demonstrating that the late filing was not caused by his culpable negligence. While we recognize that section 122–1 requires the defendant to allege the facts demonstrating a lack of culpable negligence, we do not believe that this requirement allows the State to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition. By failing to raise this issue below, the State has waived its right to argue that defendant’s petition is untimely. In reaching this conclusion, we caution that we are not limiting the trial court’s ability, during the court’s initial review of noncapital petitions (see 725 ILCS 5/122–2.1(a)(2) (West 1998)), to dismiss the petition as untimely. The import of our decision is simply that matters relating to the timeliness of a defendant’s petition should first be considered in the trial court, either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122–2.1(a)(2). Significantly, the opposite conclusion provides an incentive for the State not to bring timeliness to the trial court’s attention. If the State waits until appeal to raise the issue, it has effectively precluded the defendant from seeking to amend his petition to include allegations that he was not culpably negligent in filing his petition. In sum, while we believe that a defendant should plead facts demonstrating his lack of culpable negligence, we see no reason that this statute of limitations should be treated different from any other. Thus, if the State wishes to challenge the timeliness of a defendant’s petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes resolved. VOIDNESS Although we do not find that defendant’s second post-conviction petition is untimely, that does not mean that it is properly brought. Generally, a ruling on an initial post-conviction petition is res judicata with respect to all claims that were raised or could have been raised in the initial petition. People v. Flores , 153 Ill. 2d 264, 274 (1992) “Further, any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” Flores , 153 Ill. 2d at 274; 725 ILCS 5/122–3 (West 1994). A second post-conviction petition is permitted only if the proceedings on the initial petition were deficient in some fundamental way. Flores , 153 Ill. 2d at 273-74. This limitation strikes a balance between society’s interest in the finality of criminal convictions and the defendant’s interest in vindicating violations of constitutional rights. Flores , 153 Ill. 2d at 274. Here, defendant argues that he need not demonstrate that his claims are not barred by waiver or res judicata . Instead, he asserts that the proceedings during his initial petition were void and that, therefore, we must treat this successive petition as an initial petition. Defendant contends that the initial proceedings were void because Judge Komada refused to recuse himself from considering the initial petition which included an allegation that James Dedman, one of defendant’s trial attorneys, was ineffective. During the initial proceedings, defendant orally requested that Judge Komada recuse himself. Defendant alleged that Judge Komada could not impartially rule on the ineffective assistance argument because when Judge Komada was the State’s Attorney, Dedman had worked for Judge Komada as an assistant State’s Attorney. Judge Komada denied defendant’s request. Defendant asserts that the relationship between Judge Komada and Dedman created a conflict of interest that required Judge Komada’s recusal. Further, relying upon People v. Brim , 241 Ill. App. 3d 245 (1993), defendant contends that Judge Komada’s improper refusal to recuse himself rendered void all of Judge Komada’s subsequent actions. Defendant concludes that, because the initial proceedings are void, this successive petition is proper. A defendant in a post-conviction proceeding has no absolute right to a substitution of judge. People v. Steidl , 177 Ill. 2d 239, 264 (1997). Unless the defendant can show that it would cause him substantial prejudice, the same judge who presided over the defendant’s trial should also preside over the post-conviction proceedings. People v. Hall , 157 Ill. 2d 324, 331 (1993). Here, defendant’s only allegation that the judge was prejudiced was based on the fact that Dedman once worked for the judge. It is well established, however, that “[t]he mere fact that the judge has some kind of relationship with someone involved in the case, without more, is insufficient to establish judicial bias or to warrant a judge’s removal from the case.” Steidl , 177 Ill. 2d at 264. In fact, that an attorney was once the judge’s law partner is insufficient, by itself, to demonstrate bias. Steidl , 177 Ill. 2d at 263-64. Without some specific allegations or evidence to support a conclusion that Judge Komada’s relationship with Dedman was so close or so involved that Judge Komada could not fairly rule on defendant’s post-conviction petition, we are unable to conclude that the mere fact that Dedman once worked for Judge Komada required Judge Komada to recuse himself. Because Judge Komada was not required to recuse himself, no basis exists to support the conclusion that the original proceedings were void. DEFENDANT’S CLAIMS We turn now to the claims raised in defendant’s second-amended petition. Conflicts of Interests During Defendant’s Trial Defendant’s issues regarding the trial court’s and the prosecutor’s alleged conflicts of interest during the trial are waived because they could have been raised in defendant’s initial post-conviction petition. See Flores , 153 Ill. 2d at 274. Defendant urges us to relax the waiver rule because the proceedings during his initial petition were fundamentally deficient. See Flores , 153 Ill. 2d at 273-74. In particular, defendant contends that he should be permitted to argue that he was denied the effective assistance of his attorneys on direct appeal. Defendant claims that this argument is not waived because, during his initial post-conviction proceedings, he was represented by the same attorneys who represented him on direct appeal. See Flores , 153 Ill. 2d at 281-82 (explaining that it is unreasonable to expect counsel to raise and argue his own incompetency). On direct appeal, defendant was represented by Charles Schiedel and Lawrence Essig of the office of the State Appellate Defender. During his initial post-conviction proceedings, defendant was represented by Robert McIntire, the Vermilion County public defender. The only evidence that defendant cites to support his claim that Schiedel or Essig represented defendant during the initial post-conviction proceedings is the following statement concerning depositions that McIntire made during a hearing in the initial proceedings: “I have discussed this with Mr. Schiedel, S-c-h-i-e-d-e-l, and also Mr. Essig, who had previously been involved with Mr. Wright’s direct appeal. And it is the judgment of myself and those other two that the showing we have made so far constitutes a prima facie case in support of the petition; or that, in the event that the Court were to disagree with this and rule against us, that strategically would not be–would not be of assistance to us to depose [defendant’s trial counsel].” We disagree with defendant that this exchange demonstrates that his appellate attorneys represented him during his initial post-conviction proceedings such that the initial proceedings were fundamentally flawed. The quoted language indicates only that post-conviction counsel consulted with appellate counsel. We do not believe that this is unreasonable conduct. In fact, a consultation with an attorney familiar with the case would likely assist a defendant’s post-conviction counsel in becoming familiar with the facts and potential issues and would presumably lead to better and more informed representation for the defendant. Further, we see no reason that such a consultation would prevent post-conviction counsel from arguing that counsel on direct appeal was ineffective. Because the quoted language indicates only that post-conviction counsel consulted with defendant’s appellate attorneys and not that those attorneys represented him in his initial post-conviction proceedings, we are unable to conclude that defendant’s initial proceedings were so fundamentally flawed that he is entitled to pursue a second post-conviction petition with respect to his claims that his appellate counsel was ineffective. Defense Counsel’s Failure to Argue that Defendant Was Guilty but Mentally Ill Defendant also claims that his trial counsel was ineffective for failing to investigate, argue, and introduce available evidence that defendant should be found guilty but mentally ill. This issue could have been raised during defendant’s initial post-conviction proceedings. Consequently, it is waived. Defense Counsel’s Failure to Introduce Defendant’s Mental Health Records Defendant’s next allegation, that his trial counsel was ineffective for failing to introduce certain mental health records during defendant’s sentencing hearing, is barred by res judicata because we rejected essentially the same argument in Wright II . See Wright II , 149 Ill. 2d at 51. The Trial Judge’s Conflict of Interest in Ruling on Defendant’s Second Petition Defendant also contends that Judge Komada violated defendant’s due process rights by ruling on defendant’s second post-conviction petition. Defendant’s second post-conviction petition alleged, in part, that during defendant’s trial and sentencing hearing, Judge Komada was operating under a conflict of interest because he knew the victim and because he had prosecuted defendant for the armed violence conviction that the State used as impeachment evidence during trial and as an aggravating factor during sentencing. During the proceedings on defendant’s second post-conviction petition, defendant moved for a substitution of judge, arguing that Judge Komada could not objectively rule on his own alleged conflict of interest. That motion was heard by a different judge, who denied the motion on other grounds and without reaching Judge Komada’s conflict of interest in ruling on the second petition. Defendant does not challenge the denial of that motion. He argues instead that Judge Komada should have recused himself from ruling on defendant’s second post-conviction petition. Relying primarily upon Murray v. Giarratano , 492 U.S. 1, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989), and Pennsylvania v. Finley , 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), the State argues that a defendant in a post-conviction proceeding has no due process right to have his hearing held before an impartial judge. We disagree with the State. While Murray and Finley support the proposition that, in a post-conviction proceeding, a defendant is not entitled to the full panoply of constitutional rights that accompany an initial criminal prosecution, this does not mean that a defendant in post-conviction proceeding is not entitled to due process at all. A fair trial before a fair tribunal is a basic requirement of due process. People v. Hawkins , 181 Ill. 2d 41, 50 (1998). This fairness “requires not only the absence of actual bias but also the absence of the probability of bias.” Hawkins , 181 Ill. 2d at 50. The fairness requirement applies not only to criminal proceedings ( Hawkins , 181 Ill. 2d at 50), but also to proceedings before administrative agencies and to other civil court proceedings ( Scott v. Department of Commerce & Community Affairs , 84 Ill. 2d 42, 54-55 (1981)). Further, in rare circumstances after a showing of bias or prejudice, the constitution may require a judge in a post-conviction proceeding to recuse himself. People v. Thompkins , 181 Ill. 2d 1, 22 (1998); see also Steidl , 177 Ill. 2d at 266 (holding that a judge had to recuse himself from presiding over the defendant’s post-conviction petition because he was biased against some of defendant’s claims). Given these holdings, we are unable to agree with the State that, in a post-conviction proceeding, the due process clause (see Ill. Const. 1970, art. I, §2) does not guarantee a defendant a fair trial before a fair tribunal. That, however, does not end our inquiry. A judge must recuse himself from ruling on a motion for substitution of judge for cause only if the motion, on its face, contains specific allegations of prejudice. People v. Johnson , 159 Ill. 2d 97, 123 (1994). Similarly, we believe that, when a judge is faced with a successive post-conviction petition alleging a possible conflict of interest, the judge need not recuse himself from considering the successive petition unless the petition, on its face, demonstrates that the claims can be properly raised in a successive post-conviction petition. Just as the rule in Johnson is designed to ensure that motions for substitution are not frivolously made ( Johnson , 159 Ill. 2d at 123), the requirement of a prima facie showing that the successive petition is proper ensures that a defendant is not able to obtain a substitution of judge on an otherwise improper successive petition simply by including allegations of a conflict of interest. Further, if the successor petition is not facially proper, the trial court will not consider the substantive merits of the underlying allegations and therefore the question posing the potential conflict of interest will never be reached. Here, defendant has failed to show that he could properly raise any of the claims in his second post-conviction petition. Consequently, Judge Komada had no need to reach the merits of defendant’s allegations of a conflict of interest and was not required to recuse himself. While the prudent course of action for a judge faced with a potential conflict may be to recuse himself (see People v. Wilson , 37 Ill. 2d 617, 621 (1967) (explaining that “in certain circumstances a trial judge should recuse himself when it appears that he may be biased or may be a potential witness”)), we do not believe that, on the facts presented, such an action was constitutionally mandated.",jurisdiction
+795,2633341,1,5,"{27} For the reasons stated, we affirm Defendant's conviction for custodial interference. {28} IT IS SO ORDERED. ______________________________ PETRA JIMENEZ MAES, Justice WE CONCUR: ____________________________________ RICHARD C. BOSSON, Chief Justice ____________________________________ PAMELA B. MINZNER, Justice ____________________________________ PATRICIO M. SERNA, Justice ____________________________________ EDWARD L. CHÁVEZ, Justice",conclusion
+796,2621384,1,1,"¶ 1 In this case, we consider whether testimony as to the quantity of methamphetamine typifying personal use is expert testimony pursuant to rule 702 of the Utah Rules of Evidence and therefore subject to the qualification and advance disclosure requirements associated with that classification of testimony. We conclude that fact or opinion testimony based on specialized knowledge may be admitted only as expert testimony. We further agree with the court of appeals that Chief Kent Adair's testimony at trial regarding personal use quantities of methamphetamine was expert testimony based on his specialized knowledge. Finally, because it is not within the scope of the issue upon which we granted certiorari, we do not address the State's alternative argument that we should reverse the court of appeals because it was harmless error to admit Chief Adair's testimony absent the required thirty days notice. We accordingly affirm the court of appeals' decision.",introduction
+797,2831676,1,2,"¶4. “The appropriate standard of review in forfeiture cases is the familiar substantial evidence/clearly erroneous test. This Court will not disturb a circuit court’s findings unless it has applied an erroneous legal standard to decide the question of fact.” Galloway v. City of New Albany, 735 So. 2d 407, 410 (Miss. 1999) (citations omitted).
+¶5. Under the forfeiture statute, “[a]ll monies, coin and currency found in close proximity 4 to forfeitable controlled substances . . . are presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the property to rebut this presumption.” Miss. Code Ann. 41-29-153(a)(7) (Rev. 2005). The Legislature provided for an innocent-owner exception to subsection (a)(7), which states that property under subsection (a)(7) shall not be forfeited if an owner has no knowledge of the act committed.1 Brown contested the forfeiture of $6,000 under the innocent-owner exception, claiming that the money was seized illegally by the MBN. ¶6. The Court of Appeals affirmed the judgment of the trial court and reasoned that Brown had failed to establish a prima facie case that he possessed an ownership interest in the property. It is clear that, under the innocent-owner exception to the forfeiture statute, the third party contesting forfeiture must first prove an ownership interest in the seized property. In the majority of cases contesting forfeiture under this exception, ownership of the property, or an ownership interest in the property, is clear through title, deed, or possession. Here, Brown claims ownership of currency that was seized from a location where he was not present. Brown argues that no evidence was put forth that the seized currency did not belong to him, yet it is Brown’s burden to prove an ownership interest in the property. Brown testified that he found on the internet a car for sale in Hattiesburg that he wanted to purchase, but did not recall on what website the car was for sale. Brown could not recall the seller of 1 “No property shall be forfeited under the provisions of subsection (a)(7) of this section, to the extent of the interest of an owner, by reason of any act or omission established by him to have been committed or omitted without his knowledge or consent.” Miss. Code Ann. 41-29-153(a)(7)(A) (Rev. 2005). 5 the vehicle, the exact year of the vehicle, or how much the seller was asking for the vehicle. Brown merely testified, without corroboration, that he gave Cole $6,000 in cash to purchase a vehicle in Hattiesburg. Brown’s testimony is the only link he established to the currency found in Jefferson Davis County. While Brown did provide evidence that he received a settlement for a back injury in the amount of $40,861.13 shortly before the currency was seized, Brown showed no causal link between the settlement money and the seized cash presumably dropped by Cole. Additionally, Agent Sullivan testified that Cole, when questioned about the $6,000, repeatedly stated he did not know anything about any money. Cole also refused to sign a notice of seizure document. Thus, again, the only link connecting Brown to the defendant currency was Brown’s own testimony. ¶7. In fact, Brown did not even satisfy the standing requirement to bring his claim. Brown had standing to contest the forfeiture only if Brown showed that he qualified as an innocent owner. The “claimant opposing forfeiture bears the burden of establishing standing.” United States v. 2004 Ferrari 360 Modeno, 902 F. Supp. 2d 944, 951 (S.D. Tex. 2012), aff’d, 544 F. App’x 545 (5th Cir. 2013) (citations omitted). “A claimant in a forfeiture action need not prove the merit of her underlying claim, but she must be able to show at least a facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement and prudential considerations defining and limiting the role of the court.” Id. (citing United States v. $9,041,598.68, 163 F. 3d 238, 245 (5th Cir. 1998); 18th Century Colombian Monstrance, 797 F. 2d 1370, 1374-75 (1986)). “It is clear that to have standing to contest a forfeiture a party must have at least some property interest in the subject matter of the 6 condemnation proceeding.” McFarley v. State, 602 S. E. 2d 341, 342 (Ga. 2004). ¶8. Brown argues that he essentially is being punished for not being present when the currency was seized. The innocent-owner exception to the forfeiture statute does not require actual presence at the time of seizure, but it does require the claimant to satisfy standing. Before a claimant can proceed to the merits of his claim, the claimant must at least provide evidence of an ownership interest in the defendant property. Otherwise, any individual could claim an ownership interest in the seized property and, without establishing a credible nexus to the property, require the State to prove the claimant false. This Court reasoned, in looking at the title owner of a vehicle, that “[a] failure to look beyond bare legal title would foster manipulation of nominal ownership to frustrate [the intent of the forfeiture statutes].” One Ford Mustang Convertible, 676 So. 2d 905, 907 (Miss. 1996) (quoting United States v. Premises Known as 526 Liscum Drive, Dayton, Montgomery County, Ohio, 866 F.2d 213, 217 (6th Cir. 1989)). The same reasoning applies in this case. Brown’s sole link to the currency found in Jefferson Davis County was his own testimony, which the trial court found lacked credibility. Without proof that Brown was the actual owner of, or even had an ownership interest in, the specific defendant currency, Brown’s claim, by default, must fail.
+¶9. Under Uniform Circuit and County Court Rule 4.04, absent special circumstances, expert witnesses must be designated by all attorneys of record at least sixty days before trial. On November 12, 2012, Brown propounded discovery requests, asking for the designation of expert witnesses whom the MBN intended to call at trial. The MBN answered on 7 December 12, 2012, and stated that no expert witnesses were expected at that time. The MBN designated Agents Heather Sullivan and Keith McMahan as fact witnesses on January 2, 2013. It was not until January 22, 2013, thirteen days before trial, that the MBN designated Agents Sullivan and McMahan as expert witnesses. ¶10. Before trial began, Brown objected to any expert testimony. The MBN argued that special circumstances existed for the untimely designations, because both Agents McMahan and Sullivan were identified as fact witnesses and because their testimony was identified in responses to discovery. The trial court agreed and allowed both experts to testify. The Court of Appeals affirmed the trial court’s decision and reasoned that Brown was not a victim of unfair surprise or trial by ambush, because both Agent Sullivan and McMahan were identified as fact witnesses. ¶11. Rule 4.04 is clear that experts must be designated at least sixty days before trial unless special circumstances exist. “It is error for an expert witness to testify when he was not properly designated as an expert, and the opposing side had asked for this information in discovery.” Mississippi Dep’t of Wildlife, Fisheries and Parks v. Brannon, 943 So. 2d 53, 61 (Miss. Ct. App. 2006) (citing City of Jackson v. Perry, 764 So. 2d 373, 384 (Miss. 2000). See also Banks v. Hill, 978 So. 2d 663 (Miss. 2008) (stating concerns that a plaintiff would not designate experts if she were allowed to argue successfully that experts were not designated because experts were not expected to be called); Bowie v. Monfort Jones Mem’l Hosp., 861 So. 2d 1037 (Miss. 2003) (“[L]itigants must understand that there is an obligation to timely comply with the orders of our trial courts.”). 8 ¶12. In Johnson, the plaintiff argued that special circumstances existed for his untimely designation of an expert, because the date that the trial was set left a two-week period before Rule 4.04 required disclosure. Johnson v. Lee, 17 So. 3d 1140, 1143 (Miss. Ct. App. 2009). The Court of Appeals affirmed the trial judge’s holding that a two-week period to designate experts did not establish special circumstances. Id. Similarly, in Deiorio, expert testimony was excluded when the plaintiff claimed that Christmas and other concerns were the reasons expert witnesses were untimely designated forty-two days before trial instead of sixty. Estate of Deiorio ex rel. Deiorio v. Pensacola Health Trust, Inc., 990 So. 2d 804, 806 (Miss. Ct. App. 2008). On the other hand, special circumstances for the late designation of experts were found in Brennan, where the Uniform Rules of Circuit and County Court Practice did not come into effect until nineteen months after the suit was filed, the defendant did not request the identity of expert witnesses in pretrial discovery, and the defendant did not claim unfair surprise. Brennan v. Webb, 729 So. 2d 244 (Miss. Ct. App. 1998). ¶13. In this case, the MBN failed to show special circumstances for the untimely designation of Agents McMahan and Sullivan. The MBN was fully aware of the requirements of Rule 4.04 and knew that the expert testimony of at least Agent McMahan was required to establish the content of the plastic bags found, yet it still failed to identify him as an expert. The MBN argues that special circumstances were present because the defense was not unduly surprised. Yet, even after designating expert witnesses less than two weeks before trial, the MBN never produced the resume of either expert witness to assist Brown in voir dire. Therefore, it was error to allow Agents McMahan and Sullivan to testify 9 as experts, because the MBN did not timely disclose Agents McMahan and Sullivan as expert witnesses under Rule 4.04A and because the MBN failed to show special circumstances existed for the untimely designations. Although it was error to allow Agents McMahan and Sullivan to testify as experts, because Brown failed to establish an ownership interest in the seized currency, we find that this was harmless error. ¶14. The Court of Appeals additionally found that the trial judge did not err in admitting the expert testimony because Brown failed to request a continuance and therefore waived the issue. We find that Brown was not required to request a continuance under Rule 4.04A. Brown properly objected to the untimely disclosure of Agents McMahan and Sullivan as expert witnesses, and failure to request a continuance did not result in waiver of the issue.",analysis
+798,4519643,1,2,"Under Rule 1:1, a trial court may modify, vacate, or suspend any judgment, order, or decree within 21 days after the date of entry, but not longer. A trial court is divested of jurisdiction after the passage of 21 days. Subject to limited exceptions, “[a]t the expiration of that 21-day period, the trial court loses jurisdiction to disturb a final judgment, order, or decree.” School Bd. of City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 554 (1989). An order entered in violation of Rule 1:1 is void. Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 563 (2002). This rule serves important objectives. 2 Moreover, the finality 2 See, e.g., Montana v. United States, 440 U.S. 147, 153-54 (1979) (“[P]reclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.”). 3 of judgments ranks very high among the interests in our system of law. See, e.g., Strickland v. Washington, 466 U.S. 668, 693-94 (1984) (noting the “profound importance of finality in criminal proceedings”). Litigation, and its attendant expense and uncertainty, must end sometime. Code § 19.2-303 is an exception to Rule 1:1. Code § 19.2-303 states, in part: If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine. 3 “A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning.” Loudoun Cty. Dep’t of Social Servs. v. Etzold, 245 Va. 80, 85 (1993). “The manifest intention of the legislature, clearly disclosed by its language, must be applied.” Anderson v. Commonwealth, 182 Va. 560, 566 (1944). In Stokes v. Commonwealth, 61 Va. App. 388, 394 (2013), the Court of Appeals held that “[t]he legislature’s intent expressed in Code § 19.2-303 is clear and needs no interpretation.” Rejecting arguments similar to those advanced by Akers here, the Court of Appeals in Stokes held that “Code § 19.2-303 establishes an absolute event, i.e., a transfer to the Department of Corrections, when a trial court can no longer modify a sentence.” Id. We agree with the Court of Appeals. The trial court and the Court of Appeals correctly interpreted the plain language of 3 The predicate for the application of Code § 19.2-303 is a felony sentencing. For purposes of this opinion, we will assume that the statute applies to revocations of partially suspended felony sentences. 4 the statute and held that once Akers had been transferred to the Department of Corrections, the trial court could no longer modify his sentence. E.C. v. Virginia Dep’t of Juvenile Justice, 283 Va. 522 (2012), relied upon in part by Akers, has no bearing on this case. E.C. was a habeas corpus case governed by a separate body of law. We concluded that E.C.’s release from custody while his habeas corpus petition was pending did not preclude the court from adjudicating the petition. Id. at 529-30. In this case, we are dealing with a statutory grant of jurisdiction. The specific and plain language of the statute, noted above, controls and barred the trial court from entertaining Akers’ motion. We note that there are several avenues by which a defendant who has sought relief under Code § 19.2-303 can seek to preserve the status quo so that the motion can be heard. First, the defendant can ask the court to suspend or vacate the sentencing order. A trial court can exercise its discretion to enter such an order. Code § 19.2-310, states, in relevant part: Every person sentenced by a court to the Department of Corrections upon conviction of a felony shall be conveyed to an appropriate receiving unit operated by the Department in the manner hereinafter provided. The clerk of the court in which the person is sentenced shall forthwith transmit to the Central Criminal Records Exchange the report of dispositions required by § 19.2-390. The clerk of the court within 30 days from the date of the judgment shall forthwith transmit to the Director of the Department a certified copy or copies of the order of trial and a certified copy of the complete final order . . . . Under Code § 53.1-20, “[t]he Director shall receive all such persons [those convicted of a felony] into the state corrections system within sixty days of the date on which the final sentencing order is mailed by certified letter or sent by electronic transmission to the Director.” 4 Without a sentencing order, the DOC will refrain from taking a defendant into custody. 4 In reality, however, the period of time that elapses prior to the DOC assuming custody of inmates housed at local or regional jails varies greatly. 5 Second, the court can, in its discretion, order the DOC to refrain from taking the defendant into custody as a means of protecting its jurisdiction to hear a pending motion for modification. It is the responsibility of the defendant to ensure that the DOC is aware of such an order. 5 Akers also raises a number of insubstantial constitutional arguments. He claims that his rights under the Fifth, Eighth and Fourteenth Amendments were violated. U.S. Const. amend. V, VIII, XIV. Turning first to procedural due process, Akers does not contest that he was provided with notice prior to his revocation hearing. He received a hearing before a judge where he was represented by counsel at the hearing and where he had the opportunity, among other things, to call for evidence in his favor. Nothing more was required. See Gagnon v. Scarpelli, 411 U.S. 778, 787-89 (1973). “The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold.” Addington v. Texas, 441 U.S. 418, 431 (1979). The federalist structure of our Constitution allows states to provide avenues for relief that go beyond the strict constitutional minimum, but it also contemplates that States can decide how such relief should be limited. As for the Eighth Amendment of the United States Constitution, it forbids excessive bail and fines as well as cruel and unusual punishments. U.S. Const. amend. VIII. To the extent the Eighth Amendment contains a procedural component, it has not been extended to a situation like this one, where a hearing provided by state law to reconsider an otherwise final sentence is foreclosed because a precondition for such a hearing, i.e., the defendant’s continued custody in the regional jail, is no longer satisfied. Additionally, Akers’ punishment imposed as a result of the revocation hearing stems from his prior guilty plea for a crime, for which he received a 5 This case does not call upon us to address the question of whether a trial court retains jurisdiction to consider the merits of a motion to modify a sentence when the trial court has entered such an order, but the defendant was nevertheless taken into the DOC custody. 6 partially suspended sentence, followed by several new felony convictions. We are nowhere close to an Eighth Amendment violation on these facts. Finally, Akers alleges a violation of Article I, section 8 of the Constitution of Virginia, which states that “in criminal prosecutions a man hath a right to . . . call for evidence in his favor.” Va. Const. art. I, § 8. Akers, however, had ample opportunity to call for evidence in his favor, both at his underlying trial and in the revocation hearing. No violation of this constitutional provision occurred here.",analysis
+799,2543700,1,1,¶ 1 Defendant Marie Sullivan appeals from a summary judgment entered against her in this action brought by plaintiff Betty Goodnow to declare the removal of defendant as a successor trustee under the Fern Hansen Morrison Jensen Inter Vivos Trust.,introduction