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Exhibit 10.2 Dollar Tree Stores, Inc.   AUG 212002     DOLLAR TREE STORES, INC, AT   CASTLE SHOPS CHESAPEAKE, VA   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   TABLE OF CONTENTS   TABLE OF CONTENTS......................»...................»   LEASE AGREEMENT..........................................................,...............™ A.  BASIC LEASE PROVISIONS ................................................................................................ 1 1. Premises................................................................................................................................. 1   2. Trade Name............................................................................................................................. 1 3. Permitted Use .................................................................................................................... 1 4. Notices............................................................................................»^ 5. Effective Date of Lease ....................................................................................................... 2 6. Delivery Date for Possession of Premises (............................................................................ 2 7. Lease Term Commencement Date........................................................................................... 2 8. Rent Commencement Date ..................................................................................................... 2 9. Termination Date...................................................................................................................... 2 10. Rental Terms and Renewal..................................................................................................... 2 11. Additional Rent ..................................................................................................................... 2 12. First Year Operating Charges................................................................................................. 2 13. Annual Increases for Common Area Maintenance Charge..................................................... 3 14. Kickout Clause....................................................................................................................... 3   15. Exclusive............................................................................................................................... 3 16. Co-Tenancy........................................................................................................................... 3 17. Tenant Allowance.................................................................................................................. 3 S. PREM/SES...............................................^ 1. Description.............................................................................................................................. 4 2. Right to Remeasure................................................................................................................ 4 C. LEASE TERM................................................................,.................^ 1. Lease Effective Date............................................................................................................... 4 2. Commencement Certificate..................................................................................................... 4 3. Option to Renew..................................................................................................................... 4   D. CONSTRUCTION........................................................................................................................ 5 1. Delivery................................................................................................................................... 5 2. Force Majeure......................................................................................................................... 5 3. HVAC......................................................................................................................................5 4. Signage................................................................................................................................... 5 5. Tenant's Work..,......................................................................,............6» 6. Code Compliance.................................................................................................................... 6 7. Time is of the Essence............................................................................................................ 6 E. BASE RENT.................................................6 F. TAXES...................................6 1. Real Estate Taxes and Assessments...................................................................................... 6 2. Procedure for Payment........................................................................................................... 6   3. Municipal, County, State, or Federal Taxes............................................................................. 7 4. Other Taxes......,............................................7 G. COMMON AREAS.................................                                                                                                                                   7   1. Common Areas .................................................................................................................... 7 2. Common Area Maintenance Charge........................................................................................ 7 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   3. Procedure for Payment .................................................................................................. 8 4. Audit Rights ....................................................................... H. UTILITIES AND RUBBISH DISPOSAL ......................................................................................... 8 1. Utilities..........................................8   2. Rubbish Disposal.....................,....................8 3. Trash Compactor ..........................................................,.....8 /. USE OF PREMISES BY TENANT..........................................................................9 1. Use of Premises.....,........,.............................................,..............................9 2. Trade Name............................................................................................w9 3. Operation of Business........................................................................................................... 9   4. Retail Operations.................................................................................................................... 9 J. TENANT'S COVENANTS WITH RESPECT TO OCCUPANCY..................................................... 70 1. Landlord Access................................................................................................................... 10   2. Tenant's Compliance with Rules........................................................................................... 10 3. Landlord's Right to Show Premises...................................................................................... 10 K. REP>URS4WDALrERAr/OtfS...................__ 1. Repairs by Landlord.............................................................................................................. 10 2. Repairs by Tenant................................................................................................................. 11 3. Alterations or Improvements by Tenant................................................................................ 12 4. Removal of Improvements.................................................................................................... 12 L. INDEMNITY A ND INSURANCE................................................... ............................................... 12 1. Indemnification by Tenant..................................................................................................... 12 2. Indemnification by Landlord .................................................................................................. 12 3. Tenant's General Liability Insurance..................................................................................... 13 4. Landlord's Insurance............................................................................................................13   5. Self-insure............................................................................................................................. 13 6. Mutual Waiver .................................................................................................................... 13   M. DAMAGE AND DESTRUCTION................................................................................................. 14   1. Partial Damage...................................................................................................................... 14 2. Total Damage........................................................................................................................ 14 3. Repair.................................................................................................................................... 14   4. Abatement of Rent................................................................................................................ 14 N. ASSIGNING AND SUBLETTING ............................................................................................... 14   1. Tenant's Rights........................................^^ 2. Tenant's Stock..................................................................................................................... 15   3. Consent of Landlord............................................................................................................ 15 O. EMINENT DOMAW.............................^ 1. Condemnation Award ........................................................................................................... 15   2. Rights of Termination ........................................................................................................... 15 3. Restoration..............,.................................^                                                                                                                               15 P. DEFAULT AND REMEDIES....................................................................................................... 75   1. Default by Tenant.................................................................................................................. 15 2. Default by Landlord...................................................................,........................,..........^        17 Q. NOTICES..........................17 1. Proper Notice ................................................................................................,...„....„,...... 17   2. Change of Address .............................................................................................................. 17   Final Lease for Castie Shops - Chesapeake, VA     --------------------------------------------------------------------------------   R. MORTGAGE SUBORDINATION.......................................17 S. ESTOPPEL CERTIFICATES.....................................17 T. COVENANT OF QUIET ENJOYMENT......................................................................................... 17   U. LIABILITY OF LANDLORD..................................................18 1. Judgments........................................................................................................................... 18   2. Transfer of Title.................................,........................................18 V. ENVIRONMENTAL MATTERS - NO HAZARDOUS SUBSTANCES............................................. 18   1. ActS.....................,..........................».....»18   2. Asbestos........................................................................................19 3. Tenant's Operations............................................................................................................ 19   4. Indemnification of Landlord .................................................................................................. 19 5. Tenant's Limitation of Liability.............................................................................................. 19 IV. MISCELLANEOUS PKOWS/OWS......................................................^^ 1. Brokers Commissions........................................................................................................... 19 2. Surrender and Holding Over................................................................................................. 19 3. Storage Trailer...................................................................................................................... 19 4. Mechanic's Liens.................................................................................................................. 19   5. Mortgagee Clause................................................................................................................. 19 6. Landlord Title Report............................................................................................................ 20 7. Recording............................................................................................................................. 20 8. Severability ........................................................................................................................ 20 9. Attorneys' Fees.......................................................................»...............».............»..........»20   10. Jury Trial........................................................................................................................... 20 11. Waiver ......................................................................................................................20 12. Force Majeure...................................................................................................................... 20 13. No Partnership ................................................................................................................. 20   14. Section Headings................................................................................................................. 20   15. Lease Inures to the Benefit of Assignees............................................................................. 20 16. No Presumption Against Drafter.......................................................................................... 20 17. Authority to Sign Lease....................................................................................................... 21   18. Cancellation of Existing Lease............................................................................................ 21 19. Entire Agreement................................................................................................................21   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   LEASE AGREEMENT 19th day of August 2002,  between  DMK THIS  LEASE,  made  as  of this ASSOCIATES, a Virginia general partnership, whose address is Port Office Box 869, Virginia Beach, VA 23451 (hereinafter referred to as "Landlord") and DOLLAR TREE STORES, INC., a Virginia corporation, whose address is 500 Volvo Parkway, Chesapeake, Virginia 23320 (hereinafter referred to as Tenant").   WITNESSETH   THAT in consideration of the mutual covenants and agreements herein contained, it is agreed by   and between Landlord and Tenant as follows: ! A. BASIC LEASE PROVISIONS     the following constitute the basic provisions of this Lease;     1.         Premises (as defined in Section B)   A. Shopping Center Address County Township   Square Footage Frontage Castle Shops 1105 S. Military Highway Chesapeake, VA 23320 17,200 square feet 100 linear feet   Tenant's Proportionate Share. 47.1%. Tenant's Proportionate Share shall be equal to a fraction, the numerator of which shall be the number of square feet of gross leasable area within the Premises (17,200 square feet) ("Premises GLA") and the denominator of which shall be the Shopping Center gross leasable area (36,519 square feet) ("Shopping Center GLA").   d.         Space Number Trade Name. 2. DOLLAR TREE     3.         Permitted Use. The retail sale of general merchandise including, but not limited to, home decor and accessories, costume jewelry, bathroom accessories, toys, stationery, auto accessories, apparel, kitchen accessories, household and cleaning products, gift wrap, greeting cards, party supplies, health and beauty supplies, novelty candy and snacks, and other incidental food items as well as other items typically sold in a majority of Dollar Tree stores. Tenant agrees that no one category will become the primary product line of the retail business so that no product line will exceed twenty-five percent (25%) of the sales floor area. Landlord covenants that Tenant will be permitted to occupy the Premises for the entire Lease Term for the uses herein specified. Landlord warrants that as of the date hereof there are no recorded or unrecorded restrictions or other tenant exclusives which would prohibit Tenant's use of the Premises as stated above. The exclusives and restrictions in place in the Shopping Center, if any, are attached as Exhibit G.   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   4. Notices.   Landlord                                          DMK ASSOCIATES Post Office Box 869 Virginia Beach, VA 23451 Telephone: 769.631.7176 Facsimile: 769.631.7176   Tenant                                          DOLLAR TREE STORES, INC. Attn: Lease Administration Department 500 Volvo Parkway Chesapeake, VA 23320 Telephone: 769.631.7176 Facsimile: 769.631.7176     5.         Effective Date of Lease. Execution of the Lease Agreement and delivery of the Leases to all parties.   6.         Delivery Date for Possession of Premises ("Delivery Date"). January 31,2003.     7.         Lease Term Commencement Date. The Lease term shall commence the earlier of (a) ninety (90) days after the Delivery Date or (b) when Tenant opens for business.     8.         Rent Commencement Date. Base Rent (as defined in Section E) shall commence the earlier of (a) ninety (90) days after the Delivery Date or (b) when Tenant opens for business.   9. Termination Date. The Original Lease Term shall terminate on the last day of the twenty-     fourth (24m) calendar month following the Lease Term Commencement Date set forth in     Section A.7 hereof.   10.        Rental Terms and Renewal.   TERM   YEARS   PER SQ FT   MONTHLY   ANNUALLY   Original Lease Term   1-2   $4.90   $7,023.33   $84,280.00   First Renewal Term   3-7   $6.14   $8,800.67   $105,608.00   Second Renewal Term   8-14   $6.64   $9,517.33   $1 14,208.00                 11.       Additional Rent. Any amounts to be paid by Tenant to Landlord pursuant to the provisions of this Lease, including Common Area Maintenance Charges (as defined in Section G.2), Real Estate Taxes (as defined in Section F.1), and Insurance (as defined in Section L.4.b), whether such payments are to be periodic and recurring or not, shall be deemed to be "Additional Rent" and otherwise subject to all provisions of this Lease and of law as to the default in the payment of Base Rent. Additional Rent shall commence on the Rent Commencement Date. $0.72 per square foot $0.82 per square foot $0.04 per square foot   $1.13 per square foot   12.        First Year Operating Charges   Common Area Maintenance Taxes Insurance   Total   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   Tenant will pay its proportionate share of actual operating expenses for the first year of the Original Lease Term in accordance with this Section A.12, and Sections F.1 and G.2 of this Lease; however, Landlord represents the first year's operating charges will not exceed $1.13 per square foot.     13.       Annual Increases for Common Area Maintenance Charge. Annual increases for the Common Area Maintenance Charge will not exceed five percent (5%) of such charges on a non-cumulative basis for the previous year during the entire Lease Term and any Renewal Term(s) thereof.   14.       Kickout Clause. Intentionally deleted.                                                                                                   '     15.        Exclusive. Tenant shall have an "exclusive" for a single price point variety retail store. Landlord will not permit any other occupant in the Shopping Center to operate a retail variety store whose Principal Business (hereinafter defined), is selling merchandise at a single price point or retail operations with the word "Dollar" in their trade name. For the purpose of this section, Principal Business shall be defined as selling such single price point merchandise in twenty-five percent (25%) or more of the sales floor area (including one-half ("A) of the adjacent aisle space).   If Landlord violates this exclusive, Tenant shall pay one-half (1/z) monthly Base Rent plus full Additional Rent beginning thirty (30) days after the violation occurs and continuing until the violation is cured. However, if the violation has not been cured within six (6) months, Tenant shall have the option to terminate the Lease. If Tenant does not elect to terminate the Lease, Tenant will continue to pay one-half (1/2) Base Rent plus full Additional Rent throughout the remainder of the then current Lease Term, or until the violation is cured.   If Tenant does elect to terminate the Lease, Landlord shall reimburse Tenant within thirty (30) days of Landlord's receipt of written notice for the unamortized value (using a straight-line amortization schedule over the Original Lease Term) of the cost of the Tenant's Improvements and other costs Incurred by Tenant. Upon such termination, Landlord and Tenant shall be relieved of any further obligations to the other hereunder.   16.       Co-Tenancv. Intentionally deleted.     17.       Free Rent. Landlord has agreed that Tenant's Base Rent and Additional Rent shall be     abated in the amount of Forty-Two Thousand Five Hundred Dollars ($42,500). Said rant     abatement is being taken as reduced rent over the first twenty-four (24) months of the     Initial lease term and is already reflected in the reduced rental terms for Original Lease   Term Years 1-2 shown in Section A.10. !   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   10   B.           PREMISES     1.         Description. Landlord hereby leases to Tenant the Premises ("Premises") described as follows: The space within a one-story unit (without basement, balcony, or mezzanine) as measured from the exterior face of any exterior walls and to the centerline of common walls, and crosshatched on the Site Plan attached hereto as Exhibit A. Landlord agrees that there is, as of the date of the Lease, tractor- trailer and/or dumpster-truck ingress to and egress from the rear service door of the Premises or Tenant's dumpster, and throughout the Lease term, as such may be extended, Landlord will take no action which would deprive Tenant's tractor-trailers or dumpster-trucks of such continued ingress and egress. Landlord warrants that no change in the Site Plan shall occur without Landlord first notifying Tenant. In the event the Shopping Center is new construction, Landlord shall furnish the engineered plans to be attached hereto as Exhibit A-2. The "Shopping Center" is more fully described in the legal description attached hereto as Exhibit B.     2.         Right to Remeasure. Prior to opening the store for business, Landlord and Tenant reserve the right to remeasure the Premises to determine the Premises GLA. In the event the remeasurement discloses that the actual Premises GLA as set forth in the preceding paragraph is incorrect, Landlord and Tenant shall execute an amendment to the Lease (i) reflecting the actual Premises GLA; (ii) adjusting the Base Rent based on the new square footage; (iii) adjusting Renewal Rent; and (iv) adjusting Tenant's Proportionate Share of the Shopping Center as defined in Section A.1.c, and all other charges accruing under the Lease which are based on the actual Premises GLA. In the event of an adjustment, Tenant will pay any excess Base Rent or Additional Rent owed to Landlord within thirty (30) days after receipt of a statement, or Tenant shall take a credit for any overpayment against the next monthly Base Rent and Additional Rent payments.   C.         LEASE TERM     1.         Lease Effective Date. The Lease shall be effective upon the mutual execution of the Lease and delivery of the Lease to all parties. The Original Lease Term shall commence upon the Lease Term Commencement Date and shall terminate on the last day of the twenty-fourth (24th) calendar month following the Lease Term Commencement Date as set forth in Section A.7 hereof. In no event shall the Expiration Date occur during the months of October, November, or December, and as such the Termination Date shall be extended to January 31 following the date of termination of the Lease.   Commencement Certificate. Upon the Rent Commencement Datet Tenant will prepare a written instrument stipulating the Lease Term Commencement Date, \ the Rent Commencement Date, and the Lease /Termination Date to be signed by all parties. Option to Renew. Provided Tenant is not in default beyond any applicable cure period under any of the terms and provisions\herein contained at the time of renewal, Landlord hereby grants to Tenant the option to\renew this Lease for the periods .stipulated in Section A.10. The First Renewal Term and each succeeding Renewal Term(s) (if any) shall be based upon all the terms and conditions contained in this lease except for payment of Base Rent that shall be increased pursuant to Section A.10 ("Renewal Rent). Notice of election by Tenant to exercise each option shall be given to Landlord in writing at least six (6) months prior to the expiration of the then current term; provided, however, that Tenant's right to exercise any option hereunder shall not expire unless and until Landlord has given Tenant written notice of Tenant's failure to timely exercise its option. After receipt of such notice from Landlord, Tenant shall have fifteen (15) days to notify Landlord if Tenant wishes to exercise such option.   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   D.         CONSTRUCTION   Delivery. The Delivery Date of the Premises from Landlord to Tenant shall be on January 31, 2003, As Is. If Landlord is unable to deliver the Premises within sixty (60) days after the Delivery Date, Tenant, at its discretion, may either (a) cancel this Lease with no further obligation hereunder, or (b) receive a credit against Base Rent equal to Five Hundred Dollars ($500) per day for each day commencing on the sixty-first (61st) day after the Delivery Date above specified and ending with the date the Premises is delivered to Tenant.   Tenant will not be required to accept delivery of stores between September 15th and October 31st.   Force Maieure. The period of time during which Landlord or Tenant is prevented or delayed in the performance of, or the making of any improvements or repairs or fulfilling any obligation required under this Lease due to delays caused by fire, catastrophe, strikes or tabor trouble, civil commotion, acts of God, governmental prohibitions or regulations including administrative delays in obtaining building permits, inability to obtain materials or other causes beyond the responsible party's control, shall be added to that party's time for performance hereof, and Landlord or Tenant shall have no liability by reason thereof. Tenant's obligation to pay rent is excluded from Force Majeure except when caused by administrative delays in obtaining building permits, subject to Tenant timely applying for such permits.   HVAC. Landlord, upon delivery of the Premises, will warrant that the HVAC system will be in good working order. System will be maintained by Tenant, but replaced by Landlord, if age and condition dictate.   Sign Package. Tenant's sign package is attached as Exhibit D and made a part of this Lease, Tenant will place no sign on the exterior of the Premises or on the interior surface of any windows of the Premises (except for Tenant's standard window decal treatment which in no event shall occupy more than fifteen percent (15%) of said window) unless it meets the standards set forth in Exhibit D attached hereto. Exterior signs are to be provided by Tenant, individually lit, sixty (60) inch (or larger if allowed by focal code) channel letters in Dollar Tree's registered trademark logo and face color 5121-0 Green by Cyro, and are to be located on the store front. Exterior signage as shown on Exhibit D is hereby approved by Landlord, subject to local codes. Tenant will have the right to place temporary signage announcing the opening of a new store. Tenant agrees not to display any pennants, searchlights, window signs, or similar temporary advertising media. Tenant may display banners inside the Premises within two (2) feet from the front of the store as long as they are professionally prepared.     b.         Pylon. Tenant shall have the right to place signage on any existing or future pylon signs at no additional cost other than manufacture and installation of its panel.     c.         Maintenance and Removal. Tenant agrees to maintain its signs in good states of repair and save Landlord harmless from any loss, cost, or damage resulting from the signs' condition and shall repair any damage which may have been caused by the erection, existence, maintenance, or removal of such signs. Upon vacating the Premises, Tenant agrees to remove all signs and repair all damages caused by such removal.   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   12     5.         Tenant's Work. Tenant's work, if any, is detailed in Exhibit C of this Lease. Prior to the execution of this Lease, Landlord must provide Tenant a copy of the Tenant Handbook, if one exists, to be attached hereto as Exhibit F. Failure to provide Tenant a copy of the Tenant Handbook will exempt Tenant from abiding by any conditions contained therein.     6.         Code Compliance. Landlord warrants that, to the best of Landlord's knowledge, as of the Delivery Date, the structure of the Premises is in compliance with all applicable laws, codes, rules, and regulations of governmental authorities ("Applicable Laws") and free from patent and latent defects. In the event it is determined that the structure is not in compliance with Applicable Laws (i) as of the Delivery Date, and as a result, the municipality having jurisdiction over the Premises refuses to issue Tenant a building permit or certificate of occupancy, or (ii) after the Delivery Date, if Tenant is notified that the Premises was not in compliance with applicable laws on the Delivery Date, Tenant shall notify Landlord, and Landlord shall act promptly to bring the structure into compliance. The foregoing warranty shall not apply to any conditions created or related to Tenant's Work, remodeling, specific use or occupancy of the Premises, or assignment or subletting of the Premises. In addition, in the event any structural modifications to the Shopping Center or the Premises are required by governmental or insurance regulations, Landlord shall be responsible to perform any such modifications unless required by Tenant's specific use of the Premises. Tenant shall be responsible to perform any necessary nonstructural modifications to the Premises as well as any modifications, regardless of where located, if occasioned by Tenant's use of the Premises. Nothing contained herein shall negate Landlord's or Tenant's right to challenge any such requirements in administrative and/or judicial proceedings.     7.         Roof. Landlord will be responsible to provide a structurally sound, leak-free roof. Landlord is responsible for all costs associated with correcting all deficiencies prior to the Delivery Date.     8. Time is of the Essence. TIME IS OF THE ESSENCE WITH REGARD TO SECTION D       OF THIS LEASE.   E.           BASE RENT.   Tenant agrees to pay to Landlord, at the address noted above, or at such place as Landlord may from time to time designate in writing, Base Rent for the Premises during the Lease Term, as set forth in Section A.10, in advance on the first day of each calendar month. The amounts to be paid by Tenant for Base Rent and Additional Rent shall be pro-rated on a per diem basis for any partial month in the first Lease Year.   F,         TAXES     1.         Real Estate Taxes and Assessments. Tenant agrees to pay Tenant's Proportionate Share of all real estate taxes and assessments, together with any and all expenses incurred by Landlord in negotiating, appealing, or contesting such taxes and assessments, both general and special, levied and assessed against the land, buildings, and all other improvements which may be added thereto, or constructed within the Shopping Center. Tenant's Proportionate Share of taxes will include all discounts and exclude all penalties and interest. Tenant's Proportionate Share shall be as defined in Section A.1.c. Tenant's Proportionate Share shall be at the time such taxes were levied or assessed, but excluding the gross leasable area of any buildings within the Shopping Center which are separately assessed for tax purposes and billed to an entity other than Landlord or paid directly by an entity other than Landlord.     2.         Procedure for Payment. During the Lease Term, or any Renewal Term(s) thereof, Tenant shall pay to Landlord, monthly in advance, an amount equal to one-twelfth (1/12th)   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------     of Tenant's Proportionate Share of real estate taxes and assessments for the current tax year as reasonably estimated by Landlord. If Tenant's Proportionate Share of real estate taxes and assessments with respect to any tax year is less than the total amount paid by Tenant for such period, the excess shall be credited against the next rental payment. If Tenant's Proportionate Share of real estate taxes and assessments for any tax year exceeds the total amount paid by Tenant for such period, Tenant shall, within thirty (30) days of receipt of a copy of the actual tax bill from Landlord, pay the difference between the actual amount paid by Tenant and Tenant's Proportionate Share of real estate taxes and assessments.     3.         Municipal. County. State, or Federal Taxes. Tenant shall pay, before delinquent, all municipal, county, state, or federal taxes assessed against Tenant's fixtures, furnishings, equipment, stock-in-trade, or other personal property owned by Tenant in the Premises.     4.         Other Taxes. Should any governmental taxing authority levy, assess, or impose any tax, excise, or assessment (other than income, inheritance, gift, or franchise tax) upon or against the rentals payable by Tenant to Landlord, by way of substitution for or in addition to any existing tax on land and buildings, Tenant shall be responsible for and shall pay any such tax, excise, or assessment, or shall reimburse Landlord for the amount thereof, as the case may be.   G.         COMMON AREAS                                                                                                              !     1. Common Areas. Landlord grants to Tenant and Tenant's invitees the right to use, in common with all others to whom Landlord has or may hereafter grant rights to use same, the Common Areas located within the Shopping Center. The term "Common Areas," as used in this Lease, shall mean the parking areas, roadways, pedestrian sidewalks, loading docks, delivery areas, landscaped areas, service courts, open and enclosed courts and malls, fire corridors, meeting areas, public restrooms, and all other areas or improvements which may be provided by Landlord for the common use of the tenants of the Shopping Center. Landlord hereby reserves the following rights with respect to the Common Areas:     9.         Rules and Regulations. To establish reasonable rules and regulations for the use thereof which shall be uniformly enforced;     t>-         Use. To use or prohibit the use by others to whom Landlord may have granted such rights for promotional activities;     c.         Closings. To close all or any portion thereof as may be deemed necessary by Landlord's counsel to prevent a dedication thereof or the accrual of any rights to any person or the public therein; and     d.         Maintenance. Landlord shall operate, equip, light, repair, and maintain said Common Areas for their intended purposes in an efficient and economical manner.     2.         Common Area Maintenance Charge. Tenant shall pay to Landlord as a "Common Area Maintenance Charge" Tenant's Proportionate Share as defined in Section A.1.c of all costs and expenses paid or incurred by Landlord in operating, maintaining, and repairing the Common Areas. In no event shall the Common Area Maintenance Charge include any depreciation on improvements or equipment, the cost of correcting or repairing construction or design defects in the Common Area, or legal fees attributable to any matters concerning any other tenant of the Shopping Center. Such costs and expenses may include but not be limited to: cleaning, lighting, repairing, and maintaining all Common Area improvements, paving, roadways, sprinkler equipment, driveways,   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   14   sidewalks, curbs, culverts and drainage facilities, barriers, retaining walls, fences, directional and Shopping Center signage (other than signs to be maintained by individual tenants), sewer and water supply lines and related facilities, snow and ice removal, parking lot striping, painting, and painting of exterior walls, landscaping, providing security, property damage, fire and extended insurance coverage, personal property taxes, supplies, fire protection and fire hydrant charges, water and sewer charges, and utility charges.     3.         Procedure for Payment. Tenant's Common Area Maintenance Charge shall be paid in monthly installments on the first day of each month in an amount to be estimated by Landlord beginning on the Rent Commencement Date. Within ninety (90) days following the end of the period used by Landlord in estimating Landlord's cost, Landlord shall furnish to Tenant a detailed statement of the actual amount of Tenant's Proportionate Share of such Common Area Maintenance Charge for such period. Within ninety (90) days thereafter. Tenant shall pay to Landlord or take a credit against the next rental payment, as the case may be, the difference between the estimated amounts paid by Tenant and the actual amount of Tenant's Common Area Maintenance Charge for such period as shown by such statement.     4.        Audit Rights. The Common Area Maintenance Charge described in Section G shall be subject to audit by Tenant or an accounting firm of Tenant's choice, at the address Landlord sets forth in this Lease, at Tenant's expense during regular business hours for one (1) year following the end of the period used by Landlord in assessing Tenant's Proportionate Share ("Audit Period"). Landlord shall keep accurate records showing in detail the Common Area Maintenance Charge. These records shall, upon demand, after reasonable notice, be made available during normal business hours at an office of Landlord for inspection by Tenant. Tenant, or its authorized agents, shall, at any time upon reasonable notice to Landlord, have the right to examine and audit any and all books, records, papers and documents relating to the Common Area Maintenance Charge for the Audit Period and the previous three (3) years. Tenant shall keep such information confidential, except in connection with any proceeding regarding same between Landlord and Tenant. Tenant shall pay all costs in connection with any audit by Tenant, unless Landlord's charges exceed the amount that Landlord is entitled to charge Tenant by more than three percent (3%), in which event the reasonable cost of such audit shall be borne by Landlord. Each party shall also immediately pay any and all sums shown by the audit to the other party as additional or overpayment of charges under this paragraph.   Notwithstanding anything to the contrary in this Lease, in the event there is a year-end adjustment or adjustment resulting from an error in calculation of any Additional Rent payable by Tenant under this Lease, other than real estate taxes, Landlord shall notify Tenant of any such adjustment within twelve (12) months after the end of the Lease Year to which such adjustment is applicable. If Landlord fails to notify Tenant of any such adjustment within such twelve (12) month period, Landlord's claim to such adjustment shall be deemed waived.   H.           UTILITIES AND RUBBISH DISPOSAL   1-         Utilities.     a.         Maintenance. Commencing on the Delivery Date, the Landlord shall provide and maintain ail necessary pipes, mains, conduits, wires, and cables to the Premises for water, gas, electricity, and telephone service.     • b.         Tenant's Responsibilities.   Tenant shall have ail utilities serving the Premises     (electric, natural gas, water, sewer, and telephone) placed in Tenant's name and   8   Final Lease for Castle Shops - Chesapeake, VA                                                                                                             !     --------------------------------------------------------------------------------   Tenant shall be responsible for the payment of all utility bills directly to the provider.   c. Landlord's Responsibilities. Notwithstanding the foregoing, Tenant will not be     responsible for the cost of any utility tap fees, cost of meter installation, or any     other cost which may be levied by a utility other than those charges specifically     related to the Tenant's consumption of such utility. Such cost: shall be the sole     responsibility of the Landlord.     2.         Rubbish Disposal. Tenant shall be responsible for its trash and refuse collection and disposal. Landlord will provide Tenant an area at the rear of the Premises for the location of such trash and refuse collection. In addition. Tenant agrees to:     a.         Proper Containers. Keep any refuse in proper containers until the same is removed from the Shopping Center and to permit no refuse to accumulate around the exterior of the Premises; and     b.         Regulations. Handle and disposal of all rubbish, garbage, and waste in accordance with regulations established by Landlord and not permit the accumulation (unless in sealed metal containers) or burning of any trash. rubbish, refuse, garbage, or waste materials in, on, or about any part of the Shopping Center.   <     3.         Trash Compactor.   Tenant reserves the right, at Tenant's sole cost and expense, to   install a trash compactor at the location shown on Exhibit A.   In no event shall Landlord be liable for the quality, quantity, failure, or interruption of the foregoing utility or rubbish disposal services to the Premises unless caused by Landlord's negligent or willful acts.   I.           USE OF PREMISES BY TENANT     1.         Use of Premises. Tenant's Use of Premises will be for the Permitted Use as set forth in Section A.3.     2.         Trade Name. Unless otherwise provided for herein, Tenant agrees to conduct its business in the Premises under the name of DOLLAR TREE.     3.         Operation of Business. Unless otherwise provided for herein, Tenant agrees to open its store for business, fully fixtured, stocked, and staffed, and to operate in one hundred percent (100%) of the Premises during the hours set by Landlord for all tenants of the Shopping Center, on all business days the Shopping Center is open for business, except where Tenant is prevented from doing so by strikes, casualty, or other causes beyond Tenant's control. Tenant shall be permitted to stock its [email protected].   4.         Retail Operations.                                                                                                        ;     a.         Go Dark. Notwithstanding any provision in this Lease to the contrary, it is expressly acknowledged by Landlord that this Lease contains no implied or express covenant for Tenant to conduct business in the Premises, continuously or otherwise, subject to the Lease terms. In the event Tenant discontinues retail operations in the Premises (excluding, however, an Exempted Discontinuance of retail operations, as defined in Section 4.b), and such discontinuance of retail operations continues for thirty (30) consecutive days, Landlord may, at any time thereafter during the Lease term, elect to terminate this Lease and regain possession of the Premises by written notice to Tenant (the "Termination   9   Final Lease for Castle Shops - Chesapeake. VA     --------------------------------------------------------------------------------   16   Notice"), in which event this Lease shall terminate as to all obligations accruing thirty (30) days after the date of receipt of the Termination Notice, Tenant shall give Landlord advance notice of any intended discontinuance of business from the Premises as soon as would be reasonable for Tenant to do so, considering Tenant's need to keep such decision confidential. However, unless Landlord terminates the Lease and takes possession as provided above, Tenant shall be obligated to pay Base Rent and Additional Rent until the end of the Lease Term with respect to this Section 1.4.     b.         Exempted Discontinuances. The following discontinuances of retail operations shall be exempted from the applicability of Landlord's right to terminate hereunder ("Exempted Discontinuance"): (i) any good faith discontinuance occasioned by a force majeure event as herein described; (ii) cessation of retail operations not to exceed ninety (90) days in connection with a transfer of possession caused by a permitted assignment or sublet; (iii) any discontinuance not to exceed thirty (30) days in connection with a remodeling; or (iv) a period not to exceed three (3) days per year to conduct inventory.   J.    TENANT'S COVENANTS WITH RESPECT TO OCCUPANCY     1.         Landlord Access. Tenant agrees to permit Landlord free access to the Premises at all reasonable times after notice to Tenant (except in the event of an emergency when no prior notice shall be required) for the purpose of examining the same or making alterations or repairs to the Premises that Landlord may deem necessary for the safety or preservation thereof.     2.        Tenant's Compliance with Rules. Tenant agrees to comply with all reasonable rules and regulations which Landlord may from time to time establish and uniformly enforce for all tenants of the Shopping Center for the use and care of the Premises, the Common Areas, and other facilities and buildings in the Shopping Center.     3.         Landlord's Right to Show Premises. Tenant agrees to permit Landlord or its agents, on or after the last one hundred and eighty (180) days of the Lease Term, to show the Premises to potential tenants.   K.           REPAIRS AND ALTERATIONS     1.         Repairs by Landlord. Landlord shall keep the foundations, roof, floor slab, and structural portions of the outer walls of the Premises in good repair, except for repairs required thereto by reason of the acts of Tenant, Tenant's employees, agents, licensees, or contractors. Tenant shall give Landlord written notice of the necessity for repairs coming to the attention of Tenant following which Landlord shall commence such repairs within fifteen (15) days of receipt of notice as provided in Section Q and shall have a reasonable time to complete such repairs. Notice from Tenant of the need for Landlord to perform a repair to the Premises shall not be a condition to Landlord commencing such repair if Landlord has actual knowledge of the need for repairs. The provisions of this subsection shall not apply in the case of damage or destruction by fire or other casualty or by Eminent Domain, in which events the obligations of Landlord shall be controlled by either Section M or O hereof. Further, Landlord shall not be liable to Tenant for damages to Tenant's inventory or equipment resulting from Landlord's delay in making the repairs required hereunder, provided Landlord is proceeding with reasonable diligence to make the required repairs.     a.         Right of Offset. Notwithstanding the foregoing, in the event of a breach by Landlord of this Section K.1, beyond any applicable cure periods, the Landlord and Tenant agree that Tenant shall be given the right to offset against the Base   10 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   Rent and Additional Rent ("Right of Offset"), the reasonable costs incurred by Tenant to remedy such breach by Landlord so long as:     1)         Landlord is given written notice and applicable cure periods as provided herein;     2)         Landlord's breach substantially interferes, in Tenant's reasonable business judgment, with Tenant's ability to conduct its business in the Premises; and     3)        Landlord shall not have a good faith and commercially reasonable contest to the breach and the Tenant's Right of Offset.     b.         Emergency Repairs. Notwithstanding the foregoing, in the event of an emergency which would affect the health, safety, and welfare of Tenant's employees or customers, Tenant may make such emergency repairs to the Premises as Tenant deems reasonably necessary to protect the Tenant's employees and/or customers and property. Tenant will notify Landlord as soon as possible as to what repairs were made and the cost to affect such repairs. Landlord agrees to reimburse Tenant within thirty (30) days; after Landlord's receipt of a breakdown for such costs incurred by Tenant for such repairs. If Landlord fails to reimburse Tenant within such thirty (30) days, Tenant shall have the Right of Offset against Tenant's Base Rent and Additional Rent until Tenant has recovered the cost of such emergency repairs.     c.         Rights of Recovery. Should Tenant exercise its Right of Offset as provided hereunder, it will not affect any other rights or remedies available to Tenant for recovery which may be available to Tenant at law or in equity in the jurisdiction where the Premises are located.     d.         HVAC System. Landlord, upon delivery of the Premises, will warrant that the HVAC system will be in good working order. System will be maintained by Tenant, but replaced by Landlord, if age and condition dictate.     e.         Tenant's Portion of Construction. It is expressly understood that Landlord shall not be responsible for any portions of the Premises constructed by Tenant.   2.           Repairs bv Tenant. Except as provided in Subsection K.1, Tenant shall keep:     8.         Premises. The Premises and every part thereof and any fixtures, facilities, or equipment contained therein, in good condition and repair, including, but not limited to, exterior and interior portions of all doors, door checks and their operation, windows, plate glass, and showcases surrounding the Premises, the heating, air conditioning, electrical, plumbing (excluding any repair to the sprinkler system) and sewer systems, the exterior doors, window frames, and ail portions of the store front area, and shall make any replacements thereof of all broken and/or cracked plate and window glass which may become necessary during the Lease Term, and any Renewal Term(s) thereof, excepting any repairs to items of Landlord's original construction made necessary by reason of damage due to fire or other casualty covered by standard fire and extended coverage insurance,     b.         HVAC system. In connection with Tenant's obligation to maintain the HVAC system servicing the Premises, Tenant shall, during the Lease Term, and any Renewal Term(s) thereof, at its sole cost and expense, maintain a service contract for the routine performance of standard HVAC system maintenance, Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   18   including but not limited to, quarterly replacement of filters, oiling of mechanical components and inspection for wear and tear. Within fifteen (15) days of Landlord's written request, Tenant shall provide Landlord with a copy of the foregoing HVAC service contract.   3. Alterations or Improvements by Tenant. Tenant shall be permitted to make any interior,     nonstructural alterations to the Premises up to an amount not to exceed Five Dollars ($5)     per square foot, without Landlord's prior written consent. Any alterations exceeding Five     Dollars ($5) per square foot which may be permitted by Landlord shall be based upon     plans and specifications submitted by Tenant and approved by Landlord and upon the     condition that Tenant shall promptly pay all costs, expenses, and charges thereof, shall     make such alterations and improvements in accordance with the applicable laws and     building codes and ordinances and in a good workmanlike manner, and shall fully and     completely indemnify Landlord, which indemnification shall be in a form acceptable to     Landlord against any mechanic's lien or other liens or claims in connection with the     making of such alterations, additions, or improvements. Tenant shall promptly repair any     damages to the Premises, or to the buildings of which the Premises are a part, caused by     any alterations, additions, or improvements to the Premises by Tenant. Landlord's     approval of Tenant's plans shall not be unreasonably withheld, conditioned, or delayed.     Notwithstanding anything else contained in this Lease, Landlord agrees that such     alterations or improvements may require that the business conducted in the Premises     discontinue for a period not to exceed thirty (30) days during such construction.     4.         Removal of Improvements. All items of Landlord's construction, all heating and air conditioning equipment, and all alterations, additions, wall coverings, and other improvements by Tenant shall become the property of Landlord at the termination of the Lease and shall not be removed from the Premises. All trade fixtures, furniture, furnishings (including, but not limited to, Tenant's removable carpet tiles), and signs installed in the Premises by Tenant and paid for by Tenant shall remain the property of Tenant and shall be removed upon the expiration of the Lease Term; provided (a) that any of such items as are affixed to the Premises and require severance may be removed only if Tenant repairs any damage caused by such removal, and (b) that Tenant shall have fully performed all of the covenants and agreements to be performed by Tenant under the provisions of this Lease. If Tenant fails to remove such items from the Premises within ten (10) days of the expiration or earlier termination of this Lease, all such trade fixtures, furniture, furnishings, and signs shall become the property of Landlord. Landlord shall have the right to remove same and sell such trade fixtures, furniture, furnishings, and signs to pay for the cost of removal.   L.           INDEMNITY AND INSURANCE   1. Indemnification by Tenant. Except to the extent caused by Landlord's negligence,     Tenant will indemnify and hold Landlord harmless from and against all loss, cost,     expense, and liability (including Landlord's costs of defending against the foregoing, such     cost to include reasonable attorney's fees and costs) resulting or occurring by reason of     Tenant's construction, use, or occupancy of the Premises.     2.         Indemnification by Landlord. Except to the extent caused by Tenant's negligence,     Landlord will indemnify and hold Tenant harmless from and against all loss, cost,     expense, and liability (including Tenant's costs of defending against the foregoing, such     costs to include reasonable attorney's fees and costs) resulting or occurring by reason of     Landlord's breach of any representation and warranties made by Landlord contained in     this Lease or Landlord's operation and maintenance of the Shopping Center and   Common Areas. |   12 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------     3.        Tenant's General Liability Insurance. Tenant agrees to carry general commercial liability insurance covering the Premises and Tenant's use thereof, with a minimum limit of One Million Dollars ($1,000,000) for any casualty resulting in bodily injury, death, or property damage for each occurrence and a minimum limit of Two Million Dollars ($2,000,000) general aggregate and an umbrella policy with a minimum additional overage of One Million Dollars ($1,000,000). Tenant shall provide certificates of such coverage to Landlord prior to the date of any use or occupancy of the Premises by Tenant; said certificate shall name Landlord as an additional insured, as its interests may appear, under such insurance policy, and the insurer agrees to notify Landlord and such other parties designated by Landlord as additional insureds not less than ten (10) days in advance of any substantial modification or cancellation thereof.   4.         Landlord's Insurance.                                                                                                    :     a.         Insurance for Improvements. Landlord agrees to carry policies insuring the improvements on the Shopping Center and Common Areas against fire and such other perils as are normally covered by special coverage endorsements in the county where the Premises are located, in an amount equal to at least eighty percent (80%) of the insurable value of such improvements. Tenant shall have no rights in said policy or policies maintained by Landlord and shall not be entitled to be a named additional insured thereunder.     b.         Tenant's Proportionate Share. During the Lease Term, or any Renewal Term(s) thereof, Tenant shall pay to Landlord, monthly in advance, an amount equal to one-twelfth (1/12*) of Tenant's Proportionate Share of Landlord's insurance premium for the current year as reasonably estimated by Landlord. If Tenant's Proportionate Share of the insurance premium is less than the total amount paid by Tenant for such period, the excess shall be credited against the next rental payment. If Tenant's Proportionate Share of the insurance premium exceeds the total amount paid by Tenant for such period, Tenant shall, upon receipt of a copy of the actual insurance premium invoice from Landlord, pay the difference between the actual amount paid by Tenant and Tenant's Proportionate Share of the insurance premium. Tenant reserves the right to audit Landlord's insurance payments.   c.                                Liability  Insurance.     Landlord  agrees to  carry general  commercial liability   insurance covering the Shopping Center and Common Areas with a minimum   limit of One Million Dollars ($1,000,000) for any casualty resulting in bodily injury, death, or property damage for each occurrence and a minimum limit of Two   _______Million Dollars ($2.000.0001 general aggregate.___________________     5-         Self-insure. Tenant may self-insure its leasehold improvements, inventory, fixtures, equipment, and plate glass in the Premises during the Lease Term and any Renewal Term(s) or extensions thereof so long as Tenant shall have a net worth of at least Ten Million Dollars ($10,000,000). At Landlord's written request, Tenant shall furnish Landlord with an Annual Report evidencing such net worth if Landlord cannot access the Annual Report and other financial data on Tenant's web [email protected].     ~B!         Mutual Waiver. Tenant hereby waives any claim against Landlord for property damage occurring in the Premises and Tenant's all-risk insurer hereby waives its rights of subrogation against Landlord for property damage occurring in the Premises, and in consideration thereof, Landlord waives any claim against Tenant for property damage occurring in the Shopping Center and Common Areas and Landlord's all-risk insurer shall waive its rights of subrogation against Tenant for property damage occurring in and to the Shopping Center and Common Areas.   13   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   20   M.         DAMAGE AND DESTRUCTION     1.        Partial Damage. In the event the Premises are damaged to an extent which is less than fifty percent (50%) of the cost of replacement of the Premises, the damage shall, except as hereinafter provided, promptly be repaired by Landlord, at Landlord's expense and such repairs shall commence not later than thirty (30) days after such casualty and completed within ninety (90) days after commencement of repairs. In the event the Premises are damaged less than fifty percent (50%) of the cost of replacement of the Premises in the last two (2) years of any Lease term, including any Renewal term(s), Landlord or Tenant shall have the right to terminate the Lease. However, if Landlord can repair the damage and return the Premises to Tenant so that there is a minimum of thirteen and one-half (131/2) months remaining on the then current Lease term, then Tenant shall not have the right to terminate the Lease. If the Landlord elects to terminate the Lease as provided above, then Tenant can negate Landlord's election to terminate the Lease by exercising early its upcoming Renewal term, provided there is at least one additional Renewal term remaining under the Lease.     2.         Total Damaoe. In the event (a) the Premises are damaged to the extent of fifty percent (50%) or more of the cost of replacement of the Premises or (b) the buildings in the Shopping Center are damaged to the extent of fifty percent (50%) or more of the cost of replacement, notwithstanding the extent of damage to the Premises, then either Landlord or Tenant may elect to terminate this Lease upon giving notice of such election in writing to the other within thirty (30) days after the event causing the damage. If this Lease is not terminated as provided for above, the Landlord will commence the repairs or rebuilding not later than forty-five (45) days after the casualty and complete such repairs within one hundred and eighty (180) days after commencement of such repairs.     3.         Repair. If Landlord is required under Section M.1, or elects to repair under Section M.2, Tenant shall repair or replace its stock-in-trade, trade fixtures, furniture, furnishings, equipment, and personal property in a manner and to at least a condition equal to that prior to its damage or destruction.     4.        Abatement of Rent. If the casualty, repairing, or rebuilding shall render the Premises untenantable, in whole or in part, a proportionate abatement of the Base Rent and Additional Rent shall be allowed until the date Landlord completes the repairs or rebuilding and Tenant has a reasonable time, not to exceed ninety (90) days from Delivery by Landlord to complete Tenant's required build out and opens for business.   N.         ASSIGNING AND SUBLETTING     1.         Tenant's Rights. Tenant shall have the right, without Landlord's consent, to assign this Lease or to sublet the whole or any part of the Premises at any time provided that notice is given within thirty (30) days after such assignment or sublet, and provided:   a.         Tenant will remain liable hereunder;   b.         Tenant's assignee or sub-tenant will assume all obligations under the Lease;     c. The Premises will continue to be used only for retail sales consistent with the     Permitted Use clause; and     d.         Tenant transfers at least five percent (5%) of its stores in connection with such assignment.   14 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------     2.         Tenant's Stock. A portion of Tenant's stock is publicly traded arid any change in ownership of capital stock shall not constitute an Assignment for the purposes of this Lease.     3.         Consent of Landlord. Except as provided above, Tenant shall not assign this Lease or sublet the Premises, in whole or in part, without the prior written consent of Landlord; however, such consent shall not be unreasonably withheld, delayed, or conditioned. The use of such sublet or assignment shall be for any lawful use, as approved by Landlord, provided such consent shall not be unreasonably withheld, delayed, or conditioned, which does not violate any recorded restriction or any existing exclusives of other tenants at the time of such assignment or sublet. In the event of such assignment or sublet, Tenant will remain primarily liable for the performance of the covenants herein contained binding upon Tenant. Landlord's consent to the assignment or subletting shall not waive the requirements that Landlord's consent be obtained for further assignment or sublets.   O.         EMINENT DOMAIN     1. Condemnation Award. In the event the Shopping Center or any part thereof shall be taken or condemned either permanently or temporarily for any public or quasi-public use or purpose by any authority in appropriate proceedings or by any right of eminent domain, the entire compensation award thereof, shall belong to Landlord, without any deduction therefrom, for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title, and interest to any such award. Tenant shall have the right to recover such compensation as may be awarded on account of the value of leasehold improvements made by Tenant and for moving and relocating expenses.     2.        Rights of Termination. In the event of a taking under the power of eminent domain of (a) more than twenty-five percent (25%) of the Premises or (b) a sufficient portion of the Shopping Center so that after such taking less than fifty percent (50%) of the Shopping Center GLA (as constituted prior to such taking) are occupied by tenants, either Landlord or Tenant shall have the right to terminate this Lease by notice in writing given within thirty (30) days after the condemning authority takes possession, in which event all Base Rent and Additional Rent shall be pro-rated as of the date of such termination.     3.         Restoration. In the event of a taking of any portion of the Premises riot resulting in a termination of this Lease, Landlord shall use as much of the proceeds of Landlord's award for the Premises as is required therefore to restore the Premises to a complete architectural unit and this Lease shall continue in effect with respect to the balance of the Premises, with a reduction of Base Rent and Additional Rent in proportion to that portion of the Premises taken.   P. DEFAULT AND REMEDIES                                                                                   ;     1.         Default bv Tenant.                                                                           !   a. Financial Default. The Tenant shall be in financial default if it fails to pay when     due each installment of Base Rent or Additional Rent.   b. Notice. In the event Tenant is in financial default, it shall have a grace period of     ten (10) days to cure such default after Tenant shall have received notice of such     default by certified mail, return receipt requested or by a nationally recognized     overnight courier that provides verification of receipt to the address stated in     Section A.4 of this Lease.   15 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   22     c.         General Default. Tenant shall be in general default if it shall fail to keep or shall violate any other conditions, stipulations, or agreements contained herein on the part of the Tenant to be kept and performed.     d.         Notice. In the event Tenant is in general default, it shall have a grace period of thirty (30) days to cure such default after Tenant shall have received notice of such default by certified mail, return receipt requested or by a nationally recognized overnight courier that provides verification of receipt to the address stated in Section A.4 of this Lease, Tenant must be given written notice of every event of default and shall be permitted thirty (30) days within which to cure that default. Notwithstanding the foregoing the default hereunder shall be deemed cured if Tenant in good faith commences performance requisite to cure same within thirty (30) days after receipt of notice and thereafter continuously and with reasonable diligence proceeds to complete the performance required to cure such default.   In no event, however, shall Landlord be required to forebear from exercising its remedies for a period in excess of ninety (90) days.     e.         Landlord's Options. In the event Tenant is in either financial or general default, Landlord, at its option may:   1)        Terminate this Lease; or     2)         Enter upon the Premises without terminating this Lease and may re-let the Premises in its own name for the account of Tenant for the remainder of the Term and recover from Tenant any deficiency for the balance of the Term between the amount for which the Premises were re-let, and the Base Rent and Additional Rent provided hereunder as it becomes due. Tenant agrees to pay all reasonable costs incurred by Landlord in reletting the premises.   f. Failure to Exercise Rights. No delay or omission by Landlord to exercise any     right or power accruing upon any noncompliance or default by Tenant with     respect to any of the terms hereof, shall impair any such right or power or be     construed to be a waiver thereof. Every such right or power may be exercised at     any time during the continuation of this Lease. It is further agreed that a waiver     by Landlord of any of the covenants and agreements hereof to t* performed by     Tenant shall not be construed to be a waiver of any subsequent breach thereof     or of any covenant or agreement herein contained.     g.         Re-entry. In addition to all other rights granted to Landlord under this Lease, or under prevailing law, or if Tenant shall be in default, Landlord or its agents or employees may immediately or any time hereafter re-enter the Premises and remove Tenant, Tenant's agents, any subtenants, any licensees, any concessionaires and any invitees, and any of its or their property from the Premises, provided Landlord has an appropriate court order. Re-entry and removal may be effectuated by summary dispossession proceedings, by any suitable action or proceeding at law, by force, or otherwise. Landlord shall be entitled to the benefits of all provisions of law respecting the speedy recovery of lands and tenements held over by Tenant or proceedings in forcible entry and detainer. Tenant's liability under the terms of this Lease shall survive Landlord's re-entry, the institution of summary proceedings, and the issuance of any warrants with respect thereto.   16 Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------     2.         Default bv Landlord. In the event Landlord shall fail to perform any obligations specified in this Lease, then Tenant may, after the continuance of any such default for thirty (30) days after written notice thereof to Landlord, cure such default, all on behalf of and at the expense of Landlord, and do ail necessary work in connection therewith, and Landlord shall pay Tenant, within thirty (30) days of demand, the amount so paid by Tenant. A default hereunder shall be deemed cured if Landlord in good faith commences performance requisite to cure same within thirty (30) days after receipt of notice and thereafter continuously and diligently proceeds to complete the performance required to cure such default. In the event of default under this provision by Landlord, Tenant shall have all remedies accorded to it under the laws of the state in which the Premises are located. In no event, however, shall Tenant be required to forebear from exercising its remedies for a period in excess of ninety (90) days.   Q.         NOTICES                                                                             !     1.         Proper Notice. Any notice or consent required to be given by or on behalf of either party to the other shall be in writing and shall be deemed given when received or rejected after such notice shall have been mailed by certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier that provides verification of receipt to the address stated in Section A.4 of this Lease. Landlord shall not mail or deliver any notice or consent required to be given by or on behalf of Landlord to the Premises.     2.         Change of Address. Either party's address may be changed from time to time by such party giving written notice to the other party of the new address.   R.         MORTGAGE SUBORDINATION.   Landlord is the fee simple owner of the Shopping Center. This Lease is and shall at all times, unless Landlord shall otherwise elect, be subject and subordinate to all easements and encumbrances now or hereafter affecting the fee title of the Shopping Center and to all mortgages, deeds of trust, financing or refinancing in any amounts which may now or hereafter be placed against or affect any or all of the land or any or all of the building and improvements now or at any time hereafter constituting part of or adjoining the Shopping Center. Notwithstanding the foregoing, any successor to Landlord's interest in the Premises, including any ground lesser or holder of any mortgage or deed of trust, or to any purchaser at foreclosure (or by deed in lieu of foreclosure) shall, so long as Tenant is not in default of the terms and conditions of this Lease (beyond any applicable cure periods), recognize and accept this Lease and all terms, conditions, and obligations of the Landlord contained herein. Tenant also agrees that any mortgagee or trustee may elect to have this Lease deemed prior to the lien of its mortgage or deed of trust, and upon notification by such mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant agrees that if Landlord's mortgagee or trustee requests confirmation of such subordination, within twenty (20) days after receipt of writing request therefore, Tenant shall execute and deliver whatever instruments (including but not limited to a Memorandum of Lease and/or a Non-Disturbance and Adornment Agreement in recordable form) may be required for such purposes to carry out the intent of this section.   S.           ESTOPPEL CERTIFICATES   At any time and from time to time, Tenant agrees, within twenty (20) days after receipt of written request from Landlord, to execute and deliver to Landlord, for the benefit of such persons as Landlord names in such request, a statement in writing and in form and substance provided by Landlord certifying to such of the following information as Landlord shall request: (a) that this Lease constitutes the entire agreement between Landlord and Tenant and is unmodified and in   17   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   24   full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications); (b) the dates to which the Base Rent, Additional Rent, and other charges hereunder have been paid; (c) that the Premises have been completed on or before the date of such letter and that all conditions precedent to the Lease taking effect have been carried out; (d)that Tenant has accepted possession, that the Lease Term has commenced, that Tenant is occupying the Premises, that Tenant knows of no default under the Lease by Landlord and that there are no defaults or offsets which Tenant has against enforcement of this Lease by Landlord; (e) the actual Rent Commencement Date of the Lease and the expiration date of the Lease; and (f) that Tenant's store is open for business; provided such facts are true and ascertainable.   T.           COVENANT OF QUIET ENJOYMENT   Landlord hereby covenants that if Tenant shall perform all the covenants and agreements herein stipulated to be performed on Tenant's part, Tenant shall at all times during the continuance hereof have quiet enjoyment of the Premises without hindrance from any person.   U.         LIABILITY OF LANDLORD     1.        Judgments. Notwithstanding anything to the contrary provided in 'this Lease, it is specifically understood and agreed, such agreement being a primary consideration for the execution of this Lease by Landlord, that if Landlord shall fail to perform any covenant, term, condition, or warranty contained in this Lease upon Landlord's part to be performed and, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, title, and interest of Landlord in the Shopping Center, as the same may then be encumbered, and neither Landlord, nor, if Landlord be a partnership, any of the partners comprising such partnership shall be liable for any deficiency. It is understood that in no event shall Tenant have any right to levy execution against any property of Landlord other than its interest in the Shopping Center as herein before expressly provided.     2.         Transfer of Title. In the event of the sale or other transfer of Landlord's right, title, and interest in the Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder only if its transferee shall assume in writing the obligations of Landlord herein set forth.   V.   ENVIRONMENTAL MATTERS - NO HAZARDOUS SUBSTANCES       '.     1.         Acts. For the purposes of this Lease, the term "Hazardous Materials" shall include, without limitation, those substances, materials, or waste described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), (42 US.C. 9601, et seq.); The Resource Conservation and Recovery Act, as amended (RCRA), (42 U.S.C. 6901, et seq,); Emergency Planning & Community Right-to-Know Act, as amended (EPCRA), {42 U.S.C. 11991, et seq.); Clean Water Act, as amended (CWA), (33 U.S.C. 1251, et seq.);Clean Air Act, as amended (CAA), (42 U.S.C. 7401, et seg.);Toxic Substances Control Act, as amended (TSCA), (15 U.S.C. 2601, et sep.); Safe Drinking Water Act, implementing regulations for such Acts, and as amended (SDWA), (42 U.S.C. 300(f) et seq.), and any other applicable federal, state, local laws or ordinances, and the regulations adopted thereunder, or any other substance, material or waste which has been determined by the United States Environmental Protection Agency, the Federal Occupational Health and Safety Administration, or any other federal or state agency, to be capable of posing significant risk of injury to human health or safety.   18   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   25 W.     2.         Asbestos. Landlord warrants that upon the Delivery Date to Tenant the Premises will be free of asbestos and other Hazardous Materials, and if found, Landlord wilt remove immediately at Landlord's expense.     3.         Tenant's Operations. Tenant shall not engage in operations at the Premises which involve the generation, manufacture, refining, transportation, treatment, storage, handling, or disposal of "Hazardous Materials," without the prior written consent of Landlord, which consent shall be at Landlord's sole discretion.     4.         Indemnification of Landlord. Tenant will defend, protect, indemnify, and hold Landlord harmless from and against any and at) claims, causes of action, liabilities, damages, costs, and expenses, including, without limitation, attorneys' fees arising from or in any way connected with Hazardous Materials (as defined in Section V.1) introduced to the Premises by Tenant.     5.         Tenant's Limitation of Liability. Notwithstanding the provisions of this Section V, Tenant's liability hereunder will be limited to compliance with all federal and state environmental regulations dealing with release of Hazardous Materials by Tenant and Landlord's rights under this Section V shall not extend to requiring Tenant to perform any duties in excess thereof.   MISCELLANEOUS PROVISIONS     1.         Brokers Commissions. Landlord and Tenant hereby warrant to the other that there are no claims for brokers' commissions or finders' fees in connection with the execution of this Lease, and Landlord and Tenant agree to indemnify and save the other harmless from any liability that may arise from such claims, including reasonable attorneys' fees.   2.         Surrender and Holding Over.     a.         Surrender. Subject to the provisions of Section K.4, Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration of the Lease term, or its prior termination for any reason, in as good condition and repair as the same shall be at the commencement of said term (damage by fire and other perils covered by standard fire and extended coverage insurance and ordinary wear and tear excepted).     b.         Holdover. If Tenant fails to surrender the Premises on the date that the Lease term expires or terminates, Tenant's continued occupancy shall be deemed to be a tenancy from month-to-month and such tenancy shall be subject to all of the provisions of this Lease in effect at the time of holdover; provided, however, if said holdover is not consented to by Landlord, then Tenant shall pay monthly Base Rent equal to one hundred and fifty percent (150%) of the monthly Base Rent in effect during the Term immediately preceding the holdover.   Storage Trailer.   Tenant shall be permitted to place a storage trailer at the rear of the" Premises at a location approved by Landlord and subject to local codes and ordinances.   Mechanic's Liens. Should any mechanic's liens or other liens or affidavits claiming liens be filed against the Leased Premises or any portion thereof or interest therein for any reason whatsoever incident to the acts or omissions of Tenant, its agents or contractors, Tenant shall cause the same to be canceled and discharged of record by payment, bonding, or otherwise, within thirty (30) days after notice by Landlord.   Mortgagee Clause. Landlord represents that it has obtained the existing mortgagee's consent to this Lease Agreement, or that such consent is not necessary. 19   Final Lease for Castle Shops - Chesapeake. VA     --------------------------------------------------------------------------------   26     6.         Landlord Title Report. Landlord agrees to furnish Tenant with a current Title Report which will be made a part of this Lease and attached as Exhibit E.     7.         Recording. This Lease shall not be recorded. However, upon the request of either Landlord or Tenant, the other party agrees to execute a Memorandum of Lease setting forth such terms and provisions as may be acceptable to both Landlord and Tenant that may be recorded at the cost of the party desiring recording.     8.         Severabilitv. In the event that any provision or section of this Lease is rendered invalid by the decision of any court or by the enactment of any taw, ordinance or regulation, such provision of this Lease shall be deemed to have never been included therein, and the balance of this Lease shall continue in effect in accordance with its terms.     9.        Attorneys' Fees. In the event of any legal proceeding arising out of a dispute among the parties with regard to enforcement of the provision of this Lease, the prevailing party will be entitled to an award of its reasonable attorneys' fees and costs from the non-prevailing party.     1iO.       Jury Trial. In the event of a dispute, Landlord and Tenant agree to waive the right to jury trial.     11. Waiver. No waiver of any condition or legal right or remedy shall be implied by the failure of Landlord or Tenant to declare a forfeiture, or for any other reason, and no waiver of any condition or covenant shall be valid unless it is in writing and signed by Landlord or Tenant.     12.       Force Maieure. In addition to the provisions of Section D.2, Force Majeure, with respect to the Lease in general, shall mean strikes, delays caused by the other party or any governmental or quasi-governmental entity, shortages of materials, natural resources or labor, or any and all causes beyond the reasonable control of the performing party. Neither party shall be in default under this Lease for failure to perform due to Force Majeure. The time period for such performance shall be extended for each day performance is delayed by Force Majeure.     13.       No Partnership. Landlord and Tenant do not. in any way or for any purpose, become a partner with the other in the conduct of cither's business.     14.       Section Headings. The section headings are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope or intent of this Lease nor in any way affect this Lease.     15.        Lease Inures to the Benefit of Assignees. This Lease and all of the covenants, provisions, and conditions herein contained shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns respectively, of the parties hereto, provided, however, that no assignment by, from, through, or under Tenant in violation of the provisions hereof shall vest in the assigns any right, title, or interest whatsoever.     16.        No Presumption Against Drafter. Both parties have freely negotiated this Lease. In any controversy, dispute, or contest over the meaning, interpretation, validity, or enforceability of this Lease or any of its terms or conditions, there shall be no inference, presumption, or conclusion drawn whatsoever against either party by virtue of that party having drafted this Lease or any portion thereof.   20   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------   27     17.       Authority to Sign Lease. Each of the persons who has signed this Lease represents and warrants that he has been duly authorized to sign this Lease by all necessary action on the part of the entity on whose behalf he has signed this Lease.   18.       Cancellation of Existing Lease. The existing lease dated August 28, 2001, by and   between Landlord and Tenant expires January 31, 2003 (the "Existing Lease"). The   Existing Lease shall be continued on a month-to-month basis with a monthly base rental   in the amount of $9.00 per square foot until The Commencement Date of this Lease,   Upon the Commencement Date of this Lease, the Existing Lease shall be canceled and   terminated and the parties shall be relieved from obligations accruing under said Existing   ;                   Lease from and after the Rent Commencement Date.     19.        Entire Agreement. This Lease and the exhibits attached hereto set forth all the covenants, promises, agreements, conditions, and understandings between Landlord and Tenant concerning the Premises, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than are herein set forth. No subsequent alteration, amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them.   IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be signed as of the date and year first above written.     Witness                                                                          Landlord     /s/Terry A. Thompson                                                                          DMK Associates     A Virginia General Partnership     /s/ J. Douglas Perry     General Partner     Tenant     Witness                                                                          Dollar Tree Stores, Inc.     /s/Judy Melle                                                                          /s/ Robert G. Gurnee, Vice President   21   Final Lease for Castle Shops - Chesapeake, VA 28 28   Final Lease for Castle Shops - Chesapeake, VA     --------------------------------------------------------------------------------     Dollar tree stores, inc.     March 17, 2004 i VIA FACSIMILE NO 769.631.7176 AND CERTIFIED MAIL. RETURN RECEIPT REQUESTED   DMK Associates - Castle Shops 1023 Laskin Road, Suite4 102 Virginia Beach, VA 23451     Re:      Dollar Tree Stores, Inc. #171 Castle Shops Chesapeake, VA   Dear Sir or Madam: i   Reference is made to that certain Lease Agreement dated August 19, 2002, for approximately 17,200 square feet, located in Castle Shops, in the City of Chesapeake, State of Virginia.   We are exercising our renewal option under this Lease for a period of five (5) years to expire on March 31, 2010. All other terms and conditions of the Lease shall remain in full force and effect. Please sign and return a copy of this letter ("Option Renewal") to acknowledge confirmation of this Option renewal   It has been a pleasure working with your Company and we look forward to several more prosperous years together. Very truly yours, /s/ John L. Cote Vice President, Corporate Counsel     cc:      Terry Erney, Real Estate Manager File Scan   Acceptance of renewal option for Dollar Tree Stores, Inc.   By: Terri A. Thompson Title: Property Manager Date: 4-1-04         500 Volvo Parkway, Chesapeake, Virginia 23320 Phone: 769.631.7176 Fax: (757) 321-5292
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs October 27, 2004 Session STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. B.B.M. Appeal from the Juvenile Court for Hancock County No. 12753 through 12756 Mindy Norton Seals, Judge No. E2004-00491-COA-R3-PT - FILED NOVEMBER 17, 2004 This appeal involves the Juvenile Court’s termination of the parental rights of B.B.M. (“Mother”) to her four children. After a trial, the Juvenile Court held there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The Juvenile Court also concluded that DCS had proven by clear and convincing evidence that Mother’s parental rights should be terminated on three separate grounds. Finally, the Juvenile Court held there was clear and convincing evidence that termination of Mother’s parental rights was in the children’s best interest. The record on appeal is lacking in many respects and does not contain even the permanency plans developed by DCS to assist Mother in the unsuccessful attempt to reunite her with her children. We conclude the record, such as it is, does not contain sufficient evidence to support the Juvenile Court’s conclusion that there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The judgment of the Juvenile Court is, therefore, reversed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed; Case Remanded D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and SHARON G. LEE, J., joined. Scott A. Hodge, Morristown, Tennessee, for the Appellant B.B.M. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s Services. OPINION Background This litigation began in August of 1998 when DCS filed a Petition for Temporary Custody of Mother’s four children, who then were ages 1, 3, 6, and 8. In the petition, DCS claimed the children were dependent and neglected because both parents, who were divorced and living apart, had lost their homes and were unable to care for the children. Apparently, the children’s father had placed them with various relatives who no longer were able to care adequately for them. Along with the petition, DCS filed an Affidavit of Reasonable Efforts setting forth what efforts had been made to prevent removing the children from their home. The Juvenile Court granted the petition and awarded DCS temporary custody. In April and July of 1999, temporary custody of three of the four children was returned to the father on a “trial home placement.” Although the record contains no order returning temporary custody of the fourth child to the father, the Juvenile Court’s final judgment stated “that is in fact what occurred.” DCS filed a second Petition for Temporary Custody in May of 2000, claiming all four children once again were dependent and neglected. With regard to the father, DCS alleged he had a “lengthy alcohol dependency problem,” although he had expressed an intention to seek treatment. With regard to Mother, DCS stated she was receiving Social Security disability benefits for “mental problems” and was not an available resource for placement of the children. No Affidavit of Reasonable Efforts was filed by DCS or, if one was filed, it is not contained in the record on appeal. The Juvenile Court apparently granted the petition and awarded DCS temporary custody, but the order granting the petition likewise is not in the record. In August of 2000, Mother filed a Petition seeking custody of all four children. She asserted that she was in a position to provide proper care for her children. According to Mother, she was remarried and living in a three bedroom home. Mother noted that she was receiving a Social Security disability check for a physical disability, not a mental disability, and that her new husband was actively employed building homes. On May 11, 2001, DCS filed a motion asking the Juvenile Court to review “the necessity of continued foster care, the appropriateness of the placement, the extent of compliance of all parties with the terms of the foster care plan, the extent of progress made in achieving the goal of the plan, and the future status of the children.” DCS also filed a Notice stating the review would be heard by the Juvenile Court on May 22, 2001. The record contains no information regarding what happened at the review, or if it even happened. The next document in the record is a combined motion and order dated September 5, 2001, which restored full legal custody of the two oldest children to their father on a “trial home placement” effective November 29, 2001. In the meantime, DCS filed another motion requesting that the Juvenile Court review the current foster care situation and the parents’ progress in completing the terms of their permanency plans. DCS filed a Notice saying this review would take -2- place on September 12, 2001. Once again, the record contains no information regarding what happened at the review hearing, assuming it even took place. On November 21, 2001, the Juvenile Court entered an Order declaring that the two older children continued to be dependent. This was eight days before custody of the two older children was to be returned to the father per the September 5, 2001, order. Custody of the two older children never was returned to the father because he officially surrendered his parental rights to all four children on November 14, 2001. On February 25, 2002, DCS filed another motion asking the Juvenile Court to review “the necessity of continued foster care, the appropriateness of the placement, the extent of compliance of all parties with the terms of the foster care plan, the extent of progress made in achieving the goal of the plan, and the future status of the child[ren].” A guardian ad litem was appointed on the children’s behalf on February 27, 2002. One month later, the guardian ad litem filed a report with the Juvenile Court recommending, among other things, that the children remain in foster care at least until Mother completed the terms of her permanency plan. On March 27, 2002, the Juvenile Court conducted a hearing to review the status of the foster care placement and Mother’s compliance with the terms of the permanency plan. Following this hearing, the Juvenile Court entered an Order continuing the current foster care placement and ordering Mother to complete the terms of the permanency plan by May 27, 2002. The next pertinent document in the record is dated October 21, 2002, and is the petition to terminate Mother’s parental rights to all four children. In this petition, DCS alleged, among other things, that: 1) the children had been removed from the home for at least six months and the conditions which led to their removal persisted; 2) there was little likelihood that these conditions would be remedied at an early date which would permit a safe return of the children to Mother; 3) Mother was unable to provide a suitable home for the children and had made no reasonable efforts to provide a suitable home; and 4) continuation of the parent/child relationship would greatly diminish the children’s chances of early integration into a safe, stable and permanent home. DCS also alleged there had not been substantial compliance by Mother with the terms of “periodic foster care plans” or permanency plans. According to DCS, Mother had willfully abandoned the children by failing to visit or engaging only in token visitation with them and by refusing to pay child support for more than four consecutive months preceding the filing of the petition. Finally, DCS alleged it would be in the best interests of the children for Mother’s parental rights to be terminated. The next documents in the record pertain to the father’s November 14, 2001, surrender of his parental rights and are not directly pertinent to this appeal. There are no documents in the record pertaining to Mother which were entered between the time DCS filed its petition to terminate Mother’s parental rights on October 21, 2002, and the Juvenile Court’s final judgment -3- granting that petition on January 28, 2004.1 In its final judgment, the Juvenile Court held there was sufficient evidence to terminate Mother’s parental rights on three grounds. Specifically, the Juvenile Court stated: [M]other’s lack to provide a suitable home and demonstrated lack of concern for the children precluding an early return of the children to her care, conditions which led to the removal still persist, other conditions persist which would in all probability cause the children to be subjected to further abuse and neglect and mother has failed to comply in a substantial manner with the permanency plan. These grounds have been proven by clear and convincing evidence. The Juvenile Court also held there was clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. Mother appeals claiming there was no clear and convincing evidence to support terminating her parental rights on any of the three grounds relied upon by the Juvenile Court. Mother also claims there was no clear and convincing evidence to support a finding that termination of her parental rights was in the best interest of the children. Mother also maintains the termination of her parental rights must be reversed because DCS did not exercise reasonable efforts on her behalf. Discussion The factual findings of the Juvenile Court are accorded a presumption of correctness, and we will not overturn those factual findings unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). In In re Adoption of T.A.M., No. M2003-02247- COA-R3-PT, 2004 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 12, 2004), no appl perm appeal filed, this Court observed that: Because of the heightened burden of proof required by Tenn. Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s customary standard of review for cases of this sort. First, we must review the trial court's specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d). Thus, each of the trial court's specific factual findings will be presumed to be correct unless the evidence 1 The one document filed during this time period was the order on the March 27, 2002, hearing. The order pertaining to this hearing actually was signed by the Juvenile Court on November 13, 2002, but was entered nunc pro tunc to March 27. -4- preponderates otherwise. Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the grounds for terminating the biological parent's parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; Ray v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659, No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct. App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001). In re Adoption of T.A.M., 2004 Tenn. App. LEXIS 317, at ** 8-9 (footnote omitted). In Dep't of Children's Servs. v. D.G.S.L., this Court discussed the relevant burden of proof in cases involving termination of parental rights. Specifically, we observed: It is well established that “parents have a fundamental right to the care, custody, and control of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). "However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." Id. (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent's or guardian's rights is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent's rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c).… Dep't of Children's Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. -5- Termination of parental rights may be based upon a number of statutory grounds. The statutory provisions relied upon by the Juvenile Court provide that parental rights can be terminated for the following reasons: (1) Abandonment by the parent or guardian, a defined in § 36-1-102, has occurred; (2) There has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4; (3)(A) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and: (i) The conditions which led to the child's removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist; (ii) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and (iii) The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home. Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) (Supp. 2004). As relevant to this appeal, Tenn. Code Ann. § 36-1-102(1)(A)(ii) defines abandonment as follows: The child has been removed from the home of the parent(s) or guardian(s) as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child's situation prevented reasonable efforts -6- from being made prior to the child's removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or guardian(s) have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. In the present case, the Juvenile Court found there was clear and convincing evidence that the statutory grounds for termination in Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) had been met. Clear and convincing evidence supporting any single ground will support a termination order. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Initially, we note that there were at least two permanency plans prepared for Mother by DCS and approved by the Juvenile Court. Generally, permanency plans are designed, inter alia, to assist the parent in taking the necessary steps to be reunited with his or her child and so the parent can provide a safe environment for the child’s eventual return. We already have mentioned the significant lack of information contained in the record on appeal. In addition to what we already have noted, and much to this Court’s consternation, neither of the permanency plans are in the record. Due to the heightened burden of proof necessitated by the constitutional ramifications of forever terminating a parent’s rights to his or her child, we believe it is the responsibility of DCS to ensure that this critical information is contained in the record on appeal. One of the grounds for terminating Mother’s parental rights was the Juvenile Court’s factual conclusion that Mother failed to substantially comply with the statement of responsibilities contained in her permanency plans. In its final judgment the Juvenile Court did set forth many of the requirements contained in Mother’s most recent permanency plan. However, without the ability to actually review all the requirements of the permanency plan because we have no way of even knowing what all the requirements were, we cannot and will not affirm the conclusion that Mother failed to substantially comply with these requirements of the plan. Because we are effectively precluded from reviewing whether Mother did or did not substantially comply with the terms of her permanency plan, the Juvenile Court’s conclusion that she did not must be reversed. Permanency plans typically provide this Court with much relevant information, or at least they do when they are included in the record. Not only do the plans provide this Court with the various requirements the parent must complete in order to be reunited with his or her children, but they usually contain information on assistance that has been provided to the parent by DCS with the hope of enabling the parent to achieve the goal of reunification. One of Mother’s claims on appeal is that DCS failed to provide her with adequate assistance in achieving the goal of reunification. -7- In the recent case of In re C. LaC. and D.L., No. M2003-02164-COA-R3-PT, 2004 Tenn. App. LEXIS 172 (Tenn. Ct. App. Mar. 17, 2004), no appl. perm. appeal filed, this Court observed that: Before we evaluate whether there is sufficient evidence to establish the grounds for termination, we must ascertain whether the Department made reasonable efforts to prevent the need for removal and thereafter to return the children safely to their home for this is not a case where reasonable efforts are excused. Unless remaining with the parent exposes the children to substantial risk of harm, the Department must make reasonable efforts to prevent the need for removal of the children prior to separating the children from the family, Tenn. Code Ann. § 37-1-166(a)(1), and thereafter to return the children to their home unless it exposes the children to substantial harm. Tenn. Code Ann. § 37-1-166(a)(2); Tenn. Code Ann. § 37-1-166(g)(2). The Department must establish by clear and convincing evidence that it made reasonable efforts to reunite the children with the parent. In re Valentine, 79 S.W.3d at 546; In re C.M.M. & S.D.M., 2004 Tenn. App. LEXIS 160, No. M2003-01122-COA-R3- PT, 2004 WL at *11, (Tenn. Ct. App. March 9, 2004); Tenn. Code Ann. § 36-1-113(c). This burden requires that the Department present sufficient evidence to enable us to conclude, without serious or substantial doubt, that the efforts were reasonable under the circumstances. In re Valentine, 79 S.W.3d at 546; Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997); In re C.D.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000). In re C. LaC. and D.L., 2004 Tenn. App. LEXIS 172, at ** 14-16.2 In the present case, the Juvenile Court made no finding, nor is it alleged, that DCS was excused from providing reasonable efforts because the children would be exposed to a risk of substantial harm if they were reunited with Mother. This conclusion is supported by the express 2 W e went on to add that DCS “is not required to make reasonable efforts every time it removes a child. In certain aggravated circumstances, such as severe child abuse, the Department is relieved of this duty. Tenn. Code Ann. 37-1-102, Tenn. Code Ann. 37-1-166(g)(4) and Tenn. Code Ann. 36-1-113(g)(7).” In re C. LaC. and D.L., 2004 Tenn. App. LEXIS 172, at * 15 n.5. See also In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at * 28 n.26 (Tenn. Ct. App. Mar. 9, 2004), no appl. perm. appeal filed, (“Termination proceedings based on the grounds in Tenn. Code Ann. § 36-1-113(g)(4) - (8) usually will not require the Department to demonstrate that it has made reasonable efforts to reunite a child with his or her parents.”). -8- finding of the Juvenile Court that “DCS case managers used reasonable efforts in assisting mother in the reunification process until the time of the termination petition.” In In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160 (Tenn. Ct. App. Mar. 9, 2004), no appl. perm appeal filed, this Court noted that what constitutes reasonable efforts will vary on a case-by-case basis, and courts should consider, among other things, “(1) the reasons for separating the parent from his or her child or children, (2) the parent's physical and mental abilities, (3) the resources available to the parent, (4) the parent's efforts to remedy the conditions that required the separation, (5) the resources available to the Department, (6) the duration of the parent's remedial efforts, and (7) the closeness of the fit between the conditions that led to the initial separation, the requirements in the permanency plan, and the Department's efforts.” 2004 Tenn. App. LEXIS 160, at *26. We went on to add: In many circumstances, the success of a parent's remedial efforts is intertwined with the efforts of the Department's staff to provide assistance and support. State Dep't of Children's Servs. v. Demarr, 2003 Tenn. App. LEXIS 569, 2003 WL 21946726, at *10. Reasonable efforts entail more than simply providing parents with a list of service providers and sending them on their way. The Department's employees must use their superior insight and training to assist parents with the problems the Department has identified in the permanency plan, whether the parents ask for assistance or not. In re D.V.V., 2002 Tenn. App. LEXIS 126, 2002 WL 225891, at *8. However, the remedial responsibility does not rest solely on the Department's shoulders. Parents must also make reasonable efforts to rehabilitate themselves and to remedy the conditions that required them to be separated from their children. In re R.C.V., 2002 Tenn. App. LEXIS 811, 2002 WL 31730899, at *12. In Re C.M.M. & S.D.M., 2004 Tenn. App. LEXIS 160, at ** 27-28. Before we discuss the remaining grounds for termination of Mother’s parental rights, we will review the trial testimony and other evidence contained in the record regarding the reasonable efforts provided by DCS case managers. Carol Maxey, a former DCS employee, testified at trial that she left the employment of DCS in December of 2000. Maxey testified she developed a permanency plan on Mother’s behalf and went over that plan in detail with Mother.3 Maxey stated that she informed Mother that she would have to undergo mental health counseling and that she (i.e., Maxey) made appointments for Mother. By the time of trial Maxey had not seen Mother’s file in three and one-half years and did not have access to any documentation she may have prepared while 3 It is unclear whether the permanency plan developed by Maxey followed the first or second petition for temporary custody filed by DCS. The permanency plan referenced by the Juvenile Court in the final judgment was developed well over a year after Maxey left the employ of DCS. -9- assisting Mother. According to Maxey, this information would be contained in the DCS file. None of this information is in the record on appeal. Leanne Holcomb (“Holcomb”) was the DCS case manager for Mother and her children from May 1, 2002, until May 12, 2003. Holcomb testified she made several appointments for counseling on Mother’s behalf and went over the terms of the permanency plan with Mother. Holcomb testified she discussed the housing situation with Mother. When asked if she discussed a time table for Mother to complete the necessary changes to her housing situation, Holcomb stated it needed to be done as soon as possible, but “that was kind of after the fact to me when I got the case because the Judge had already given the May 27th, 2002 deadline so really they were past the deadline.” Holcomb testified she discussed with Mother what needed to be done concerning her case, but she never sent Mother any correspondence explaining in writing what needed to be done. When questioned further about what reasonable efforts she made to assist Mother in obtaining suitable housing for the children, Holcomb stated: At the point when I got the case the kids had been in custody for five years and when I got the case we were already at the point of termination, so I feel like the Department did make reasonable efforts to try to help this family and help her. There’s only so much we can do.… I can guide her and give her instruction on what she needs to do, but I don’t hold her hand to have her do it. *** At the time that I got the case I was instructed by Mr. Eidson to proceed with termination; that we would still focus on the Permanency Plan that was there, but to go ahead and proceed with the termination which is what I did. I continued to have the visits with [Mother], did the home visits, tried to help them get the testing done that needed to be done. Jalana Clingan (“Clingan”) was the DCS case manager assigned to this case following Holcomb’s departure. When Clingan was assigned this case in June of 2003, the petition to terminate Mother’s parental rights already had been filed. When Clingan was asked what reasonable efforts she made to reunite Mother and the four children, Clingan testified she supervised the hourly visits between Mother and the children. The following discussion than occurred between Clingan and the guardian ad litem: Q. Okay. And you testified earlier that you really haven’t made any efforts for reunification? A. No. -10- Q. And will you explain to the Court why that is? A. It was my understanding that she had until May 27th of 2002 to complete the, her goals on the Perm Plan. So when I got the case I was just waiting on termination, the termination date. Q. So are you saying that it’s departmental policy that after that time period has lapsed that you don’t have to make any efforts whatsoever towards reunification after that time has lapsed? A. No. In summary, there is the testimony of Maxey who developed a permanency plan and made one or more appointments for Mother. This covers the time from when the children came into DCS custody up until December of 2000. There was no testimony or other evidence in the record regarding any reasonable efforts made by DCS from December of 2000 until Holcomb was assigned to the case in May of 2002. By that time, however, it was a fait accompli that DCS was going to seek to terminate Mother’s parental rights and this clearly impacted the efforts made by Holcomb to assist Mother. It is for this very same reason that the next case worker, Clingan, admittedly made very little, if any, reasonable effort to assist Mother. In all fairness, we expect that DCS may have made other reasonable efforts to assist Mother in the reunification process. The problem again falls back to the inadequacy of the record on appeal. Were we to have the permanency plans and at least some of the DCS case file in the record, or testimony from the case manager assigned to the file after Maxey and before Holcomb, it certainly is possible that we would conclude that the evidence was clear and convincing that reasonable efforts had been made by DCS. However, this evidence is missing, and we refuse simply to assume reasonable efforts were taken by DCS on Mother’s behalf when such a fundamental right [email protected]. We acknowledge that Tenn. Code Ann. § 37-1-166(g)(6) specifically provides that reasonable efforts to place a child for adoption can be made concurrently with reasonable efforts to make it possible for a child to safely return home. We do not interpret this statutory section to mean that reasonable efforts to return the child safely home need no longer be made once DCS makes the decision that it will proceed with termination proceedings at some point in the future. This duality behind the need for making reasonable efforts may account, at least in part, for Holcomb’s and Clingan’s admittedly lackluster efforts following the expiration of Mother’s May 27, 2002 deadline. However, this also makes the need for testimony or other proof of reasonable efforts made by Mother’s prior case managers even more necessary. Having an adequate record on appeal is critical to this Court to enable it to review the judgment of the lower court, and is even more crucial when fundamental constitutional rights [email protected]. Due to the unfortunate state of the record in the present case, we have in large part been precluded from effectively reviewing the judgment of the Juvenile Court. There is insufficient evidence before us to conclude that DCS proved by clear and convincing evidence that reasonable -11- efforts were made by DCS to assist Mother to reunite with her children. Accordingly, the judgment of the Juvenile Court is reversed and the remaining issues are pretermitted. On remand, DCS is instructed to develop a new permanency plan consistent with the children’s and Mother’s current situation. Conclusion The judgment of the Juvenile Court is reversed, and this cause is remanded to the Juvenile Court for further proceedings as may be necessary, if any, consistent with this Opinion and for collection of the costs below. Costs on appeal are assessed against the Appellee State of Tennessee, Department of Children’s Services. ____________________________________ D. MICHAEL SWINEY, JUDGE -12-
Citation Nr: 1530042 Decision Date: 07/14/15 Archive Date: 07/21/15 DOCKET NO. 12-28 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a chronic back condition and if so, whether service connection is warranted. 2. Entitlement to service connection for degenerative joint disease of the knees. 3. Entitlement to service connection for degenerative joint disease of the shoulders. 4. Entitlement to service connection for kidney cancer (renal cell carcinoma) status post right kidney removal, to include as due to contaminated water at Camp Lejeune, North Carolina. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2015. A transcript of those proceedings is of record. In June 2015 the Veteran submitted additional evidence along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such newly received evidence. The issue of entitlement to service connection for lung cancer, to include as due to contaminated water at Camp Lejeune, North Carolina, has been raised by the record at the Veteran's Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The May 1972 Board decision that denied the Veteran's appellate claim for service connection for a back condition was not appealed and no new and material evidence was received within the appeal period. 2. Evidence received since May 1972 including the Veteran's hearing testimony and VA treatment records are not duplicative or cumulative of evidence previously received, relates to relevant unestablished facts, and raises a reasonable possibility of substantiating the Veteran's service connection claim. 3. Resolving all doubt in the Veteran's favor, his preexisting back condition was aggravated by an in-service injury. CONCLUSIONS OF LAW 1. The unappealed May 1972 Board decision that denied the Veteran's appeal of a claim for service connection for a back condition is final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 20.302, 20.1100 (2014). 2. The Veteran has submitted new and material evidence sufficient to reopen his claim for a chronic back condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. The criteria for service connection for a chronic back condition have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board reopens the Veteran's claim for service connection for a chronic back disability and grants service connection. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. New and Material Evidence The Veteran's initial claim for back condition was denied in a June 1969 rating decision and again in a July 1971 rating decision, which was affirmed by a May 1972 Board decision. The Veteran did not appeal the May 1972 Board decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within the appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 1972 Board decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104(b); 38 C.F.R. § 20.1100. A previously denied claim can be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding reopening. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. Shade, supra. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the May 1972 Board decision, new evidence has been received, including hearing testimony concerning the Veteran's in-service injury and post-service symptomatology and medical records diagnosing degenerative disc disease As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, is neither duplicative nor cumulative of evidence previously received, and bears a reasonable possibility of substantiating the claim, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for a chronic back condition See Smith v. West 12 Vet. App. 312, 314-315 (1999); Shade supra; 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II. Service Connection The Veteran maintains that he injured his back during training and that he has suffered from back pain ever since. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service induction examination does not identify any disabling conditions. Service treatment records appear to be deficient as to portions of the Veteran's actual treatment during service; however the Veteran notes recurrent back pain as a problem on his separation report of medical history. The Veteran's separation examination notes spina bifida occulta L5 and S1, spondylolysis L5, and sacralization L5. It appears from the record that the Veteran was discharged from service on account of these conditions. A March 1969 report of the medical board notes a preexisting injury to the Veteran's back and treatment for much increased pain in the lumbar region in February 1968. A contemporaneous statement from the Veteran indicates that he was told from a treating physician during service that he had a birth defect that had been made worse and aggravated by training. The Veteran also noted that his injury prior to service was a minor muscle pull which resolved completely prior to service. A September 1969 letter from the Veteran's family physician states that he never treated the Veteran for a back problem prior to enlistment. At a June 1971 physical examination, the Veteran reported injuring his back during service. He was diagnosed with chronic disc disease. Recent VA treatment records show the Veteran to be diagnosed with degenerative joint disease of the lumbar, lumbar stenosis and chronic backache. The Veteran has consistently maintained that he injured his back during a fall while training during service. This account is supported by the record in that the March 1969 report of the medical board references prior military treatment for back pain. While the exact nature of this treatment is unknown, owing to the lack of these treatment records, an injury or flare-up of the Veteran's congenital condition during service seems likely based on the evidence of record. Additionally, where a veteran served ninety days or more of active service, and certain "chronic diseases", such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from service, the disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" following service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. However, if the condition noted during service is not among those identified as presumptively chronic, then a showing of "continuity of symptoms" after service is generally required for service connection. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). While the record does not contain a formal medical statement of nexus between the Veteran's in-service injury and his current condition, the Veteran has been assessed with degenerative joint disease, a form of arthritis, and has consistently described recurring back pain since service. Where, as here, the evidence is in relative equipoise concerning a nexus between the claimed in-service disease or injury and the present disability, the Veteran will receive the benefit of the doubt on the issue. 38 U.S.C.A. § 5107(b). Moreover, as the Veteran has reported painful motion, a 10 percent evaluation would be warranted under diagnostic code 5003. 38 C.F.R. § 4.71a. Therefore, based on the Veteran's statements concerning his back, and the supporting medical evidence and resolving all doubt in the Veteran's favor, service connection for a back condition is granted. ORDER New and material evidence having been received; the Veteran's claim for service connection for a chronic back condition is reopened. Service connection for a chronic back condition is granted. REMAND The August 201 2 statement of the case lists "Dublin and Augusta VAMC treatment reports dated March 2007 through August of 2012" as evidence reviewed. However, the only recent VA treatment records currently associated with the Veteran's electronic file are from the Dublin VAMC and only for the period from July 2010 to July 2011. The remaining treatment records from the Dublin and Augusta VAMC should be obtained and associated. Furthermore, in a January 2011 authorization and consent to release information the Veteran identified several treatment providers but did not provide addresses or phone numbers. The Veteran should be contacted to request clarification on whether he would like VA to obtain these records, and if so, he should provide contact information for these providers. Additionally, both the Veteran and the March 1969 medical report on his back condition identify treatment at Parris Island, Camp Pendleton, and Twenty-nine Palms. However the Veteran's service medical records do not contain any such treatment notes. As such, VA should make additional efforts to obtain these records. Finally, the Veteran has alleged that his renal cell carcinoma is due to exposure to contaminated water at Camp Lejeune. Fifteen disease conditions have been identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. See 38 U.S.C.A. § 1710(e); 38 C.F.R. § 17.400; See Federal Register, Vol. 79, No. 185 (September 24, 2014). While none of these conditions are presumptively associated with service at Camp Lejeune, manifestation of any of those diseases is considered to be sufficient to conduct a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. As such, the Veteran's personnel records must be obtained in order to ascertain whether he meets the requirements for service connection. If, based on his personnel records, the Veteran is shown to have been stationed at Camp Lejeune for 30 days or more, an examination is warranted in order to assess any nexus between his exposure to contaminated water and his current renal cell carcinoma. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service shoulder and knee symptomatology. The Veteran should also be requested to submit contact information along with the appropriate releases for any treatment providers whose records he would like VA to obtain. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain and associate any VA treatment records from the Augusta or Dublin VAMCs that pertain to the Veteran. 3. Obtain the Veteran's service treatment records, to include specifically any treatment received at Parris Island South Carolina; Camp Pendleton, California; and Twenty-nine Palms, California. 4. Obtain the Veteran's personnel records identifying the locations and dates of his postings during service, specifically any records indicating a posting at Camp Lejeune. 5. If the Veteran is found to have served at Camp Lejeune for a period of 30 days or more, schedule the Veteran for an examination by an appropriate VA medical professional in order to determine whether it is at least as likely as not that the Veteran's renal cell carcinoma is related to exposure to contaminated water. The examiner should review the Veteran's claims file, conduct any necessary testing, and provide an explanation for all elements of his/her opinion, citing to clinical findings, claims file documents, and/or medical literature as appropriate. 6. Then readjudicate the issues on appeal, consistent with 38 U.S.C.A. § 1710(e) and 38 C.F.R. § 17.400 regarding Camp Lejeune Veterans. If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Steven D. Reiss Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
Citation Nr: 1803011 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 09-26 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable rating for mechanical low back pain. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2014, when it was remanded for further evidentiary development. The record reflects the Veteran has filed a VA Form 9, Substantive Appeal, on matters seeking a rating in excess of 50 percent for mood disorder, entitlement to an effective date prior to March 21, 2012 for the assignment of a 50 percent rating for mood disorder, and entitlement to service connection for posttraumatic stress disorder, a disability manifested by short-term memory loss, type II diabetes mellitus, carpal tunnel syndrome of the bilateral upper extremities, and loss of teeth. The record reflects the Agency of Original Jurisdiction (AOJ) is still taking action on these claims. Therefore, they are not currently before the Board and will not be addressed further in this decision. FINDINGS OF FACT 1. During the appellate period, the Veteran's mechanical low back pain was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, but not favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes with a total duration of at least four weeks, but less than six weeks, in a twelve month period. 2. The Veteran's mechanical low back pain has contributed to moderate incomplete paralysis of the sciatic nerve in the left and right lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for a lumbosacral spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate rating of 20 percent for moderate incomplete paralysis of the sciatic nerve in the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, DC 8520. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate rating of 20 percent for moderate incomplete paralysis of the sciatic nerve in the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria and Analysis The Veteran seeks a compensable rating for mechanical low back pain. Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'' as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's service-connected mechanical low back pain is rated as noncompensable under DC 5237. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply: A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1) provides that for purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran filed his claim for a compensable rating for mechanical low back pain in February 2005. Private treatment records from 2004 reflect intermittent lumbar back pain, which increased with activity. The Veteran also reported chronic right lower extremity pain. An MRI in May 2004 reflected a diagnosis of radiculopathy in the left lower extremity and mild generalized peripheral polyneuropathy in the right lower extremity. A March 2005 VA examination report indicates that the Veteran reported back pain at a level five, which increased to a level ten with activity. The Veteran indicated that he must rest and lie down for the pain to be manageable; he also noted he was not prescribed bed rest by a physician in the last twelve months. The Veteran reported he could walk a block, had no difficulty with daily activity, and did not require a device to help him ambulate. He had been wearing an elastic low back support. He reported recently beginning to experience pain down the left leg to the knee and indicated that he had previously been experiencing such pain in the right leg. On physical examination, the spine had flexion of 0 to 40 degrees, extension of 0 to 20 degrees, left and right lateral flexion of 0 to 10 degrees, left and right lateral rotation of 0 to 10 degrees. There was increased pain with flexion and extension upon repeated testing. Objective evidence indicated moderate weakness, fatigability, and lack of endurance with repeated use. There was spasm on the left lumbar area on palpation. The examiner noted that the Veteran had pain radiating down the right leg to the calf with a major functional component of back pain. A March 2005 X-ray report indicated early degenerative disc changes at L3-4 with mild depression of the superior and inferior endplates at all levels. Some sclerosis of the endplates at L3-4 with minor anterior spur at L4 and normal sacroiliac joints. A June 2006 VA examination report indicates the Veteran reported moderate, constant leg or foot weakness, erectile dysfunction, numbness and paresthesias. He did not have any urinary incontinence, urinary frequency, urinary urgency, or fecal incontinence. He reported having moderate flare-ups weekly lasting two to three days, aggravated by sitting, bending, and twisting. The Veteran endorsed a moderate decrease in motion, moderate fatigue, moderate weakness of the legs, moderate spasming of the low back, and moderate daily pain in the low back which radiated to the right foot and left calf and was aching, burning, lancinating, sharp, shock-like, shooting, and stabbing. The Veteran did not endorse any incapacitating episodes which required bed rest prescribed by a doctor. The Veteran reported use of a brace and was unable to walk more than a few yards. On physical examination, the spine had active and passive motion as follows: flexion of 0 to 40 degrees, extension of 0 to 10 degrees, left and right lateral flexion of 0 to 10 degrees, and left and right lateral rotation of 0 to 20 degrees. There was objective evidence of pain on active and passive range of motion testing. The VA examination report indicated the examiner tested additional limitation of range of motion following three repetitions with pain causing loss of 10 degrees of motion on flexion. There was no evidence of ankylosis. There was objective evidence of mild atrophy of the lumbar sacrospinalis bilaterally, and moderate spasm, guarding, tenderness, weakness, and pain with motion of the bilateral lumbar sacrospinalis. However, there was no objective evidence that muscle spasm, localized tenderness or guarding resulted in abnormal gait or spinal contour. Sensory examination indicated impaired sensation in the right lower extremity to vibration, pinprick, light touch, and position sense in the medial lateral thigh, lateral calf, foot, and sole of foot. Deep tendon reflexes at the knee and ankle were hypoactive in both lower extremities. The June 2006 VA examiner indicated that the etiology of the Veteran's complaints were related to his claimed mechanical low back pain. June 2006 X-ray reports reflect degenerative disc disease with mild compression of multiple endplates and osteophytic spurring at the L3-4 level. Per the January 2014 remand instructions, the Veteran underwent another VA examination in April 2015. The examiner diagnosed chronic low back pain and degenerative disc disease of the lumbar spine with radiculopathy of both lower extremities, status post laminectomy. The Veteran did not report flare-ups of the low back. The Veteran reported functional loss of the thoracolumbar spine, evidenced by the need for constant use of a walker to ambulate. On physical examination, the spine had flexion of 0 to 70 degrees, extension of 0 to 25 degrees, left lateral flexion of 0 to 15 degrees, right lateral flexion of 0 to 20 degrees, left lateral rotation of 0 to 15 degrees, and right lateral rotation of 0 to 20 degrees. There was objective evidence of pain on range of motion on flexion, left and right lateral flexion, and left and right lateral rotation. The VA examination report indicates the examiner tested additional limitation following three repetitions with no additional loss of motion. There was no evidence of ankylosis. There was objective evidence of localized tenderness or pain on palpation of the joints of the thoracolumbar spine. The examiner noted that pain, weakness, fatigability, or incoordination significantly limit the functional ability with repeated use over time. The examiner also noted muscle spasming which resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability were less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle or peripheral nerve injury, disturbance of locomotion, interference with sitting, and interference with standing. Sensory testing revealed decreased dermatome testing in the right and left lower leg/ankle and the right foot/toes. Muscle strength testing of the lower extremities was 4/5 (active movement against some resistance). There was no muscle atrophy. Reflex testing of the lower extremities was normal. Straight leg raising testing was positive. No intervertebral disc syndrome or incapacitating episodes requiring bed rest were reported. An April 2015 X-ray report reflects arthritis and a moderate narrowing of the L3-4 intervertebral disc spaces with endplate sclerosis and irregularity with slight anterior slippage of the L4. The April 2015 VA examiner opined that the current changes reflected on the X-ray report, including degenerative disc disease, occurred after the Veteran's work injuries in 2002 and 2005, as well as surgery in 2003. The examiner continued that these changes are independent of the service connected mechanical chronic low back strain and that the progression in back pain can only be explained by his injuries in 2002 and after. An April 2015 addendum opinion by the April 2015 VA examiner clarified that the Veteran's decreased range of motion and muscle spasms are attributable to the Veteran's degenerative disc disease, work injuries, and surgery. Further, the examiner opined that the Veteran's localized tenderness of the thoracolumbar spine is attributable to his service connected low back pain and his 2002 and 2005 work injuries and 2003 surgery. The examiner continued that "we cannot attribute [pain] to one or other as he always had pain." Based on the reported symptomatology and functional impairment of his service-connected mechanical low back pain, the Board finds that when affording the Veteran the benefit of the doubt that a 20 percent rating is warranted for the Veteran's service-connected mechanical low back pain disability. The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, DC 5237. For the period on appeal, such impairment was noted in the March 2005 and June 2006 examinations. The Board notes that the range of motion testing done on April 2015 examination reflects forward flexion to 70 degrees, which does not fall within the criteria for a 20 percent evaluation. However, in considering the Veteran's complete medical history during the appellate period, to include limited range of motion and functional loss due to pain, weakness, and excess fatigability, the Board finds that the Veteran's overall disability picture most closely approximates the criteria for a 20 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Schafrath, 1 Vet. App. at 594; DeLuca, 8 Vet. App. 202; Burton, 25 Vet. App. at 5. The medical evidence demonstrates that the Veteran had increasing difficulty with lower back pain as his symptoms had worsened and that he had to use a cane or walker to ambulate as a result of the pain in his lumbar spine. Of note, the Veteran reported that he had constant back pain at a level of 5 out of 10 at the March 2005 VA examination and at the June 2006 VA examination he reported moderate weekly flare-ups, lasting two to three days. Although the April 2015 VA addendum opinion indicates that range of motion limitations were related to the Veteran's non service-connected degenerative disc disease and post-service injuries and surgeries, the examiner also indicated that his pain and localized tenderness could not clearly be attributed to the service-connected or nonservice-connected back disability. The April 2015 VA examiner also noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Therefore, as the symptoms of pain and the resultant functional loss, as shown by decreased range of motion findings, cannot clearly be attributed to the service-connected or nonservice-connected back disability, the Board must associate them with the service-connected back disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)) (noting that the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence that does so). As such, when considering the factors of pain, weakness, and fatigue and associated functional impairment, coupled with the range of motion findings taken during the appeal period, the Board finds that a 20 percent rating for the service-connected low back disability is warranted. See 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher initial evaluation in excess of 20 percent for mechanical low back pain. Regarding the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Such impairment was not documented as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less at any time during the appeal period and the Veteran did not have any type of spinal ankylosis noted. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 204-07. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although pain was noted on the March 2005, June 2006, and April 2015 VA examinations, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a. Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experienced as a consequence of his mechanical low back pain. Therefore, a preponderance of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic manifestations. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.59. Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a higher rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. However, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veterans service-connected mechanical low back pain because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243. Notably, on the March 2005 VA examination the Veteran reported that with activity, he experiences pain to a level of 10 and must rest and lie down but denied being prescribed bedrest by a physician. On the June 2006 VA examination, the Veteran reported flare-ups to a pain level of six with sitting, bending and twisting. However, there is no indication that the Veteran was prescribed bed rest by a physician at that time. Thus, even with the Veteran's reported flare-ups in 2005 and 2006, the Board finds that the Veteran did not have any incapacitating episodes as defined by the rating criteria that would warrant a rating in excess of 20 percent. Therefore, a rating in excess of 20 percent based on incapacitating episodes is also not warranted. See 38 C.F.R. § 4.71a. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent rating for mechanical low back pain. However, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a low back disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. However, the record does reflect the Veteran has radiculopathy of the bilateral lower extremities. Under the Diagnostic Code 8520 criteria, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, and moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). Notably, private treatment records in 2004 reflect that the Veteran was experiencing chronic right lower extremity pain and an MRI in May 2004 diagnosed the Veteran with mild generalized peripheral polyneuropathy of the right lower extremity and radiculopathy of the left lower extremity. The March 2005 VA examination report reflects pain radiating down the Veteran's right leg to the calf with associated lumbar muscle moderate weakness, fatigability, and lack of endurance. The June 2006 VA examination report reflects moderate, constant leg or foot weakness, numbness, and paresthesias with moderate daily pain in the low back which radiates to the right foot and left calf. The April 2015 VA examination found the Veteran had radiculopathy of both lower extremities. Sensory testing reflected decreased sensation in the right and left lower extremity and right foot. Muscle strength testing was 4/5 (active movement against some resistance) and straight leg raising testing was positive. The examiner noted that the Veteran experienced additional contributing factors due to his mechanical back pain, to include weakened movement due to muscle or peripheral nerve injury. Although the examiner indicated the Veteran had degenerative disc disease with radiculopathy of the lower extremities, the examiner did not specifically provide an opinion regarding whether the radiculopathy was related to the service-connected or nonservice-connected back disability. Therefore, such radiculopathy must be attributed to the service-connected back disability. Resolving any reasonable doubt in favor of the Veteran, the Board finds that right and left lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve (the criteria for a 20 percent rating each). Therefore, separate initial ratings of 20 percent under Diagnostic Code 8520 for moderate incomplete paralysis of the sciatic nerve for both the left and right lower extremity are warranted. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that higher ratings in excess of 20 percent for the left and right lower extremity radiculopathies are not warranted for any part of the rating period on appeal. The weight of the lay and medical evidence demonstrates that the left and right lower extremity radiculopathies have not more nearly approximated moderately severe incomplete paralysis of the sciatic nerve (the criteria for a 40 percent rating), severe incomplete paralysis with marked muscular atrophy of the sciatic nerve (the criteria for a 60 percent rating), or complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of the muscles below the knee, or flexion of the knee is weakened or lost (the criteria for a 100 percent rating). For these reasons, and resolving any doubt in favor of the Veteran, the Board finds that separate 20 percent, but no higher, disability ratings under DC 8520 for left and right lower extremity radiculopathies are warranted. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a rating of 20 percent, but no higher, for mechanical low back pain is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent, but no higher, disability rating for left lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent, but no higher, disability rating for right lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) BRIJOHNEA JOHNSON , ) ) Plaintiff, ) ) v. ) Civil Action No. 16-cv-0603 (KBJ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ) MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE In May of 2011, the mother of then-minor Brijohnea Johnson applied to the Commissioner of Social Security (“Commissioner” or “Defendant”) for supplemental benefits on behalf Johnson, claiming that Johnson was disabled due to a learning disability, difficulty concentrating, stress, depression, and Johnson’s status as HIV positive . (AR, ECF No. 7-9, at 88.) 1 An Administrative Law Judge (“ALJ”) held a hearing on Johnson’s application in September of 2014, and ultimately, the ALJ determined that Johnson is not disabled under the Social Security Act. (AR, ECF No. 7-2, at 33–54.) 2 In the instant lawsuit, Johnson requests that this Court reverse the ALJ’s denial decision and grant her benefits, or alternatively, Johnson seeks a remand 1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns. 2 In the time between when Plaintiff’s mother filed the initial application and when the ALJ issued her decision, Johnson celebrated her eighteenth birthday. (AR, ECF No. 7-2, at 33.) Therefore, Johnson is the plaintiff in the instant action, and she seeks an award of both child and adult benefits. of this case to the Commissioner for a new hearing regarding benefits. (See generally Compl., ECF No. 1.) On June 8, 2016, this Court referred this matter to a Magistrate Judge for full case management. (See Min. Order of June 8, 2016.) On July 14, 2016, Johnson filed a motion seeking reversal of the ALJ’s decision denying her application on the grounds that the ALJ had mistakenly assessed her residual functional capacity (“RFC”) and had erroneously determined that her impairment was not functionally equivalent to a listed impairment. (Mem. in Supp. of Pl.’s Mot. for J. of Reversal, ECF No. 10-1, at 4–12.) On August 29, 2016, the Commissioner filed a motion seeking affirmance of the ALJ’s decision; the agency’s motion maintains that the record contains substantial evidence to support both the ALJ’s assessment of Johnson’s residual functional capacity and the ALJ’s determination that Johnson’s limitations “in the domains of acquiring and using information and attending and completing tasks” were not sufficient to qualify for benefits. (Def.’s Mem. in Supp. of Her Mot. for J. of Affirmance & in Opp’n to Mot. for J. of Reversal, ECF No. 11, at 10–12.) Before this Court at present is the comprehensive Report and Recommendation that the assigned Magistrate Judge (Deborah A. Robinson) has filed regarding Johnson’s motion for reversal and Defendant’s motion for affirmance. (See R. & R., ECF No. 16.) 3 The Report and Recommendation reflects Magistrate Judge Robinson’s opinion that Johnson’s motion for reversal should be granted in part, and that Defendant’s motion for affirmance should be denied. (See id. at 1, 13.) Specifically, Magistrate Judge Robinson finds that the ALJ’s decision regarding Johnson’s RFC did 3 The Report and Recommendation, which is 13 pages long, is attached hereto as Appendix A. 2 not comport with a governing regulation that provides that the ALJ’s RFC determination “‘must contain a narrative discussion identifying the evidence that supports each conclusion’ and ‘explain how [she] considered and resolved any material inconsistencies or ambiguities evidence in the record[.]’” (R. & R. at 9 (quoting Butler v. Barnhart, 353 F.3d 992, 1000 (D.C. Cir. 2004) (alterations in original)).) Magistrate Judge Robinson further finds that the ALJ failed to explain adequately whether, and to what extent, the ALJ credited the opinion that Plaintiff’s former special education instructor proffered regarding Johnson’s functional limitations. (Id. at 10–13.) The Report and Recommendation also specifically advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (Id. at 13.) The Report and Recommendation further advises that the failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id.) Under this Court’s local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party’s receipt of the Report and Recommendation, LCvR 72.3(b), and as of the date of the instant Opinion—more than three months and a half months after the Report and Recommendation was issued—no objections have been filed. This Court has reviewed Magistrate Judge Robinson’s Report and Recommendation and agrees with its careful and thorough analysis and conclusions. In particular, the Court agrees with the Magistrate Judge that the ALJ failed to explain sufficiently the reasons underlying her determination regarding Johnson’s RFC, in 3 violation of SSR 96-8p (see R. & R. at 8–10), and that the ALJ’s statements regarding the weight that she afforded to the opinion of Johnson’s former teacher on the question of Johnson’s functional limitations are deficient and, in fact, self-contradictory (id. at 10–13). As a result, this Court concurs with Magistrate Judge Robinson’s conclusion that “the ALJ’s determinations were not made in accordance with the applicable law[,]” and that remand to the agency for further proceedings is warranted. (Id. at 13.) In sum, in the absence of any timely-filed objections, and after conducting its own review of this matter, this Court accepts Magistrate Judge Robinson’s analysis of the ALJ’s findings and the record evidence in full, and will ADOPT the Report and Recommendation in its entirety. Accordingly, Plaintiff’s [10] Motion for Judgment of Reversal will be GRANTED IN PART, that Defendant’s [11] Motion for Judgment Affirmance will be DENIED, and this matter well be REMANDED to the Social Security Administration for further administrative proceedings consistent with the Report and Recommendation. A separate Order accompanies this Memorandum Opinion. DATE: July 3, 2017 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge 4 Appendix A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIJOHNEA JOHNSON, Plaintiff, Civil Action No. 16-603 v. KBJ/DAR NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. REPORT AND RECOMMENDATION Plaintiff Brijohnea Johnson seeks judicial review of an unfavorable decision by the Acting Commissioner of the Social Security Administration (“SSA”) denying her claims for supplemental security income benefits pursuant to 42 U.S.C. § 405(g). See Complaint (ECF No. 1). This case was referred to the undersigned for full case management. 06/08/2016 Docket Entry. Currently pending for consideration are Plaintiff’s Motion for Judgment of Reversal (ECF No. 10), and Defendant’s Motion for Judgment of Affirmance (ECF No. 11). Upon consideration of the motions, the memoranda in support thereof and in opposition thereto, and the entire record herein, the undersigned will recommend that the court deny Defendant’s motion and grant Plaintiff’s motion in part. 1 BACKGROUND On May 18, 2011, Plaintiff’s mother protectively filed a Title XVI application for supplemental security income on behalf of Plaintiff, who was at that time a minor. Administrative 1 Acting Commissioner of Social Security Nancy A. Berryhill is automatically substituted for Carolyn W. Colvin pursuant to Federal Rule of Civil Procedure 25(d). Appendix A Record (“AR”) (ECF No. 7) at 220–23, 270, 273. Plaintiff reached eighteen years of age after the initial application was filed, but before the Administrative Law Judge issued her decision. See id. at 32. Accordingly, Plaintiff seeks both an award of child benefits and an award of adult benefits for the corresponding time periods. See Memorandum in Support of Plaintiff’s Motion for Judgment of Reversal (“Plaintiff’s Mem.”) (ECF No. 10-1) at 4–12. On her disability report, Plaintiff’s mother identified several disabling conditions for her child: a learning disability, difficulty concentrating, stress, depression, and Plaintiff’s status as HIV positive. See id. at 273. Plaintiff’s mother provided a disability onset date of December 4, 2009. Id. Plaintiff’s application was initially denied by the SSA, and was denied again upon reconsideration. See id. at 124, 130. Plaintiff filed a written request for a hearing, see id. at 134–35, and appeared before an Administrative Law Judge (“ALJ”) on September 11, 2014, see id. at 62. The ALJ denied Plaintiff’s request for benefits on November 28, 2014. See id. at 27. 2 In her decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date. Id. at 38. Additionally, the ALJ recognized that Plaintiff had the following severe impairments: “mood disorder due to medical condition; learning disorder; and depression[.]” Id. The ALJ also found that before reaching the age of eighteen, Plaintiff “did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, Part A or B[.]” Id. at 39. Finally, the ALJ found that before reaching the age of eighteen, Plaintiff did not have an impairment or combination of impairments that “functionally equaled the listings[.]” Id. at 40. With regard to the Plaintiff’s adult claims, the ALJ found that Plaintiff continued to experience severe impairments, but that those impairments did not “meet[] or medically equal[] a 2 The ALJ’s decision refers to the Plaintiff as “the claimant.” Appendix A listed impairment[.]” Id. at 49. Lastly, the ALJ found that, as an adult, Plaintiff has the residual functional capacity (“RFC”) to perform: a full range of work at all exertional levels but with the following nonexertional limitations: The claimant’s work is limited to simple as defined in the Dictionary of Occupational Titles as SVP levels 1 and 2. The claimant is limited to routine and repetitive tasks. She is limited to occasional decision-making and judgment. The claimant is limited to only occasional changes in the work setting. She is precluded from production rate or pace work. The claimant is limited to tasks, which are learned and performed by rote with few variables and little judgment involved, and where supervision is simple, direct and concrete. Id. at 51. Based on this determination, the ALJ found that Plaintiff “has not been under a disability, as defined in the Social Security Act[.]” Id. at 53. Plaintiff sought review of the ALJ’s decision from the SSA, id. at 26, which the SSA denied on January 13, 2016, thereby rendering the ALJ’s decision “the final decision of the Commissioner[.]” Id. at 1. Plaintiff then commenced the instant action. STATUTORY FRAMEWORK The Social Security Act established a framework for the provision of supplemental income benefits to eligible, disabled individuals. 42 U.S.C. §§ 1381, 1381a. Determining the Disability of Minor Claimants With respect to the eligibility of minors, the statute provides, in pertinent part: (i) An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. (ii) Notwithstanding clause (i), no individual under the age of 18 who engages in substantial gainful activity . . . may be considered to be disabled. Appendix A 42 U.S.C. § 1382c(a)(3)(C). The SSA has promulgated regulations for the determination of disability for minors. See 20 C.F.R. § 416.924. 3 First, the SSA evaluates whether the child is “doing substantial gainful activity”; if so, the child is not disabled. 20 C.F.R. § 416.924(a), (b). If not, the SSA determines whether the child has a medically determinable “physical or mental impairment,” or combination of impairments, that is “severe.” 20 C.F.R. § 416.924(a), (c). If deemed severe, the SSA then determines whether the impairment, or combination of impairments, “meets, medically equals, or functionally equals the listings.” 20 C.F.R. § 416.924(a), (d). The “listings” refers to a “listing of impairments,” found at 20 C.F.R. Part 404, Subpart P, Appendix 1, which, for children, “describes impairments that cause marked and severe functional limitations.” 20 C.F.R. § 416.925(a). When determining whether an impairment, or combination of impairments, functionally equals the listings, the SSA considers six domains, or “broad areas of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). These include: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. Id. A child’s impairment, or combination of impairments, “functionally equal[s] the listings” if it “result[s] in ‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a(a). In making this determination, the SSA considers “functional limitations resulting from all of [the child’s] impairments, including their interactive and cumulative effects.” 20 C.F.R. § 416.926a(e)(1)(i). 3 The regulations provide that benefit payments are to be used for the “current maintenance” of the disabled child, which includes the costs associated with “obtaining food, shelter, clothing, medical care and personal comfort items.” 20 C.F.R. § 416.640(a). Appendix A If the SSA concludes that the child’s impairment, or combination of impairments, meets, medically equals, or functionally equals the listings, and “it meets the duration requirement,” the SSA determines that the child is disabled. 20 C.F.R. § 416.924(a). Determining the Disability of Adult Claimants The SSA has also promulgated regulations outlining the five-step process for the determination of the disability of adult claimants. See 20 C.F.R. §§ 404.1520, 416.920. First, the agency evaluates whether the claimant is “doing substantial gainful activity.” If so, the SSA concludes that the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i). Next, if the claimant is not engaging in substantial gainful activity, the SSA determines whether the claimant has a “severe medically determinable physical or mental impairment that meets the duration requirement . . . or a combination of impairments that is severe and meets the duration requirement . . . .” 20 C.F.R. §§ 404.1520(a)(4)(ii) (emphasis added). Third, if the claimant has an impairment that is deemed severe, the next determination is whether said impairment “meets or equals” one of the listings in 20 C.F.R. § 404.1525(a). 20 C.F.R. §§ 404.1520(a)(4)(iii). The “listings” refer to a “listing of impairments” which “describes for each of the major body systems impairments that [SSA] consider[s] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a). Fourth, if the claimant’s impairment does not satisfy one of the listings, the SSA assesses the claimant’s RFC to determine whether the claimant is still capable of performing “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is able to perform past work, the claimant is not disabled. Id. A claimant’s RFC is “the most [an individual] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545. Appendix A Finally, if the claimant is unable to perform his or her “past relevant work,” the SSA evaluates the claimant’s RFC along with his or her “age, education, and work experience to see if [he or she] can make adjustment to other work.” 20 C.F.R. §§ 404.1520(a)(4)(v) (emphasis added). If the claimant cannot make such an adjustment, the SSA finds that the individual is “disabled.” 20 C.F.R. §§ 404.1520(g)(1). APPLICABLE STANDARD OF REVIEW A plaintiff may seek judicial review in this court of “any final decision of the Commissioner of Social Security made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The decision made by the Commissioner will not be disturbed “if it is based on substantial evidence in the record and correctly applies the relevant legal standards.” Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations omitted). In other words, a “district court’s review of the [SSA’s] findings of fact is limited to whether those findings are supported by substantial evidence.” Broyles v. Astrue, 910 F. Supp. 2d 55, 60 (D.D.C. 2012) (citations omitted). Substantial evidence is defined as relevant evidence such that “a reasonable mind might accept as adequate to support a conclusion.” Butler, 353 F.3d at 999 (internal quotation marks omitted) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A finding of substantial evidence requires “more than a scintilla, but can be satisfied by something less than a preponderance of evidence.” Id. (citation omitted) (internal quotation marks omitted). This Circuit has held that “[s]ubstantial-evidence review is highly deferential to the agency fact-finder,” Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008), and that “a reviewing judge must uphold the ALJ’s legal ‘determination if it . . . is not tainted by an error of law.’” Jeffries v. Astrue, 723 F. Supp. 2d 185, 189 (D.D.C. 2010) (quoting Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987)). The reviewing court “examines whether the ALJ has analyzed Appendix A all evidence and has sufficiently explained the weight he had given to obviously probative exhibits,” Nicholson v. Soc. Sec. Admin., 895 F. Supp. 2d 101, 103 (D.D.C. 2012) (citation omitted) (internal quotation marks and alteration omitted), but should not “review the case ‘de novo’ or reweigh the evidence,” Guthrie v. Astrue, 604 F. Supp. 2d 104, 112 (D.D.C. 2009) (citation omitted). It is the plaintiff who bears the “burden of demonstrating that the Commissioner’s decision [was] not based on substantial evidence or that incorrect legal standards were applied.” Muldrow v. Astrue, No. 11-1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012) (citation omitted). DISCUSSION Plaintiff moves for reversal of the Commissioner’s decision on the grounds that the ALJ’s decision was not supported by substantial evidence, and was erroneous as a matter of law. Plaintiff’s Mem. at 1. Alternatively, Plaintiff moves to remand this matter to the SSA for a new administrative hearing. Id. Specifically, Plaintiff claims that (1) the ALJ erred in assessing Plaintiff’s RFC by failing to provide a function-by-function assessment of Plaintiff’s ability to work, and (2) the ALJ erred in finding that Plaintiff’s impairments do not functionally equal a listed impairment. Id. at 4–12. For the reasons outlined below, the undersigned finds that the ALJ’s determination of Plaintiff’s RFC, and the ALJ’s evaluation of Plaintiff’s functional limitations, were not made in accordance with the applicable law. Accordingly the undersigned will recommend that the court deny Defendant’s motion, grant Plaintiff’s motion in part, and remand this matter to the SSA for further administrative proceedings. Appendix A The ALJ’s Evaluation of Plaintiff’s RFC Was Not Made in Accordance with the Applicable Law Plaintiff’s first argument is that the ALJ erred when she “failed to provide any explanation to support” Plaintiff’s RFC, and “failed to set forth a narrative discussion” including “how the evidence supported each conclusion[.]” Plaintiff’s Mem. at 6. There is an apparent lack of consensus within this Court regarding the requirement that the ALJ articulate the “function-by- function” analysis required by Social Security Ruling 96-8p, 1996 WL 374184 (July 2, 1996). Compare Johnson v. Astrue, No. 11-788, 2012 WL 3292416 (D.D.C. Aug. 12, 2012) (holding that ALJ decision does not require written assessment of all functions) and Banks v. Astrue, 537 F. Supp. 2d 75 (D.D.C. 2008) (holding that a written function-by-function analysis is not required) with Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63 (D.D.C. 2006) (remanding case where ALJ did not discuss in detail each individual function). In perhaps the most detailed discussion of this issue, this Court held that in lieu of a “written articulation of all seven strength demands,” an ALJ’s decision will be deemed sufficient so long as it “provided a thorough narrative discussion of [the plaintiff’s] limitations,” and built a “logical bridge” from the evidence in the record to the conclusions reached by the ALJ. See Banks, 537 F. Supp. [email protected]. Defendant argues that the ALJ “comprehensively discussed Plaintiff’s treatment regimen and diagnostic findings, as well as Plaintiff’s subjective complaints.” Defendant’s Memorandum in Support of Her Motion for Judgment of Affirmance and in Opposition to Plaintiff’s Motion for Judgment of Reversal (“Defendant’s Mem.”) (ECF No. 12) at 8. Additionally, Defendant claims that Plaintiff is “arguing that the ALJ’s evaluation of the evidence is incorrect simply because she does not agree with her findings.” Id. In reply, Plaintiff contends that the ALJ’s determination of Plaintiff’s RFC “contains no explanation to support the limitations expressed within the [RFC] assessment[.]” Plaintiff’s Appendix A Opposition to Defendant’s Motion for Judgment of Affirmance and Reply to Defendant’s Opposition to Plaintiff’s Motion for Judgment of Reversal (“Plaintiff’s Reply”) (ECF No. 13) at 2. Defendant avers that the ALJ “comprehensively discussed Plaintiff’s treatment regimen and diagnostic findings, as well as Plaintiff’s subjective complaints” and that “substantial evidence supports the ALJ’s decision.” Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion for Judgment of Affirmance (“Defendant’s Reply”) (ECF No 15) at 1–2. While an ALJ’s decision must be supported by substantial evidence in the record, that is not the extent of the court’s inquiry; additionally, the ALJ must also apply the “relevant legal standards.” See, e.g., Butler, 353 F.3d at 999; Dowell v. Colvin, No. 15-cv-1542, 2017 WL 107997, at *4 (D.D.C. Jan. 11, 2017); Muldrow, 2012 WL 2877697, at *6. One such legal standard is that the ALJ’s determination of a plaintiff’s RFC “must contain a narrative discussion identifying the evidence that supports each conclusion” and “explain how [she] considered and resolved any material inconsistencies or ambiguities evidence in the record[.]” Butler, 353 F.3d at 1000 (citations and internal quotation marks omitted). Upon review of the ALJ’s decision, the undersigned finds that the ALJ did not meet this standard. Defendant argues that the restrictions incorporated into Plaintiff’s RFC “amply accounted for Plaintiff’s work-related limitations that were supported by the record.” Defendant’s Mem. at 9. Nowhere, however, does Defendant identify any explanation for why the ALJ incorporated said limitations into Plaintiff’s RFC, nor the record evidence that led to their inclusion. See id. at 8–9; Defendant’s Reply at 1–2. In support of her finding regarding Plaintiff’s RFC, the ALJ found: [T]he claimant testified that she graduated from high school in June 2014. She is an adult and she is enrolled in college, taking remedial courses. The claimant testified that she takes pride in her appearance. She also testified that she has no difficulty bathing or showering. The claimant testified that she goes shopping with her best friend. Furthermore, she testified that she feels “okay” and that she has no problems with her physical health. Appendix A [email protected]. This one paragraph contains virtually no explanation for any of the limitations expressed in Plaintiff’s RFC. The ALJ does not provide any rationale for why Plaintiff “is limited to simple” work, “routine and repetitive tasks,” only “occasional decision-making and judgment,” “only occasional changed in the work setting,” and no “production rate or pace work.” Id. While “the court need not remand in search of a perfectly drafted opinion,” the undersigned finds that here, the ALJ did not comply with the narrative discussion requirement outlined in SSR 96-8p, and that remand therefore is appropriate. See Cobb v. Astrue, 770 F. Supp. 2d 165, 174 (D.D.C. 2011) (quoting Lane-Rauth, 437 F. Supp. 2d at 68) (remanding when the ALJ’s decision did not follow the analytical framework of SSR 96-8p). The ALJ’s Evaluation of Plaintiff’s Functional Limitations Was Not Made in Accordance with the Applicable Law Plaintiff’s second argument is that the ALJ erred in finding that Plaintiff’s impairments did not “functionally equal” a listed impairment. Plaintiff’s Mem. at 8. In order to “functionally equal” a listing the child must have a “marked” limitation in at least two domains of functioning, or an “extreme” limitation in one domain of functioning. See SSR 09-1p, 2009 WL 396031, at *1 (Feb. 17, 2009). Plaintiff contends that the ALJ’s finding that she did not have at least a marked limitation in the domains of Acquiring and Using Information, and Attending and Completing Tasks, is not supported by substantial evidence. See Plaintiff’s Mem. at 8–12. The ALJ found that prior to turning eighteen, Plaintiff had a “less than marked limitation” in the domain of Acquiring and Using Information, and a “less than marked limitation” in the domain of Attending and Completing Tasks. AR at 44, 45. Plaintiff claims that in making these determinations, the ALJ erroneously relied on outdated IQ testing, and did not explain how she weighed the opinion evidence offered through Plaintiff’s special education teacher, Brenda Richardson. See id. at 9–11. Appendix A Plaintiff first argues that the IQ testing done by psychologist Dr. Tina Nguyen was performed “58 months prior to the [ALJ’s] decision” and that the result of that testing therefore was “no longer valid” pursuant to 20 C.F.R. Part 404. Id. at 9–10; Plaintiff’s Reply at 3. Defendant argues that there was additional testing performed more recently, in December 2014, which placed Plaintiff in “the low-average to borderline range of intellectual functioning.” See Defendant’s Mem. at 9–10; Defendant’s Reply at 2. This Court has long held that when “the government attempts to explain the ALJ’s reasoning, . . . the Court may only consider the grounds proffered by the agency in its decision for post hoc rationalizations do not suffice.” Espinosa v. Colvin, 953 F. Supp. 2d 25, 32–33 (D.D.C. 2013) (citing Clark v. Astrue, 826 F. Supp. 2d 13 (D.D.C. 2011)); see also Settles v. Colvin, 121 F. Supp. 3d 163, 169–70 (D.D.C. 2015). The December 2014 testing results were not included in the ALJ’s decision—nor could they have been, as they post-date the ALJ’s November 28, 2014 decision. Accordingly, the undersigned does not accept this post hoc rationalization as support for the ALJ’s determination of Plaintiff’s limitations. Since Defendant does not dispute Plaintiff’s contention that the IQ testing done by Dr. Nguyen was no longer current as of the date of the ALJ’s decision, the undersigned finds that the ALJ’s reliance on this testing—to the extent that she did rely on it—was not proper. Cf. Conway ex rel. Tolen v. Astrue, 554 F. Supp. 2d 26, 36 (D.D.C. 2008) (finding that an ALJ’s refusal to credit outdated IQ testing was proper). Plaintiff also contends that the ALJ’s determination was improper because while the ALJ stated that she afforded Ms. Richardson’s opinion ‘great weight’ in the domains of Acquiring and Using Information and Attending and Completing Tasks, “[the ALJ] failed to explain how a ‘very serious problem’ in all areas evaluated did not equate to a marked impairment” in those two Appendix A domains of functioning. See Plaintiff’s Mem. at 11, 12 (citing AR at 43). 4 Defendant does not directly address this contention, but instead, argues that “two agency physicians and two state agency psychologists reviewing Plaintiff’s claim for benefits all opined that Plaintiff had a less than marked limitation in the [two] domains[.]” Defendant’s Mem. at 10; Defendant’s Reply at 2. As discussed above, the ALJ’s decision does not simply need to be supported by substantial evidence in the record; it must also comply with the applicable law and regulations. One such regulation is SSR 06-03p, which states that: [A]n adjudicator generally should explain the weight given to opinions from these “[non-medical] sources,” or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the case. SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). While the ALJ did state that she was affording Ms. Richardson’s opinion “great weight” in the domains of Acquiring and Using Information and Attending and Completing Tasks, it is not apparent from the entirety of the ALJ’s decision that she actually did so. Ms. Richardson opined that Plaintiff has a very serious problem in every activity in the domain of Acquiring and Using Information, and a serious or very serious problem in eight activities in the domain of Attending and Completing Tasks. AR at 258, 259. It is unclear how the ALJ could afford these opinions “great weight” and yet not find that Plaintiff had a marked limitation in either of these two domains without further explanation. The ALJ noted that the explanation for her finding is “detailed in the domain evaluations below,” id. at 43, and yet the domain evaluation sections do not mention Ms. Richardson’s opinions at all, id. at 44, 45. 4 The undersigned observes that the ALJ afforded both Ms. Richardson’s opinion, and the opinion of Plaintiff’s tenth grade teacher, Tara Miller, “great weight” only with regard to the two domains of Acquiring and Using Information and Attending and Completing Tasks. See [email protected]. The ALJ appears to afford the opinions of Ms. Richardson and Ms. Miller only “limited weight” in the domains of Interacting and Relating with Others, Moving About and Manipulating Objects, and Caring for Herself. Id. The distinction between the levels of weight the ALJ afforded to different portions of Plaintiff’s teachers’ opinions is also not explained. Appendix A While the ALJ cited some evidence in the record to support her finding that Plaintiff has a “less than marked limitation” in the two domains of functioning, the ALJ did not properly explain the weight given to the non-medical sources. It appears that the ALJ discredited the opinions of Ms. Richardson, and yet the ALJ indicated that she “assign[ed] [them] great weight.” Without a more thorough explanation of whether, and to what extent, the ALJ actually credited the opinion of Plaintiff’s special education teacher, the undersigned is not able to “follow the adjudicator’s reasoning” in this matter. See SSR 06-03p, 2006 WL 2329939, at *6. CONCLUSION For the foregoing reasons, the undersigned concludes that the ALJ’s determinations were not made in accordance with the applicable law. It is therefore, this 16th day of March, 2017, RECOMMENDED that Plaintiff’s Motion for Judgment of Reversal (ECF No. 10) be GRANTED IN PART, and that this matter be remanded to the Social Security Administration for further administrative proceedings consistent with this Report and Recommendation; and it is FURTHER RECOMMENDED that Defendant’s Motion for Judgment of Affirmance (ECF No. 11) be DENIED. /s/ DEBORAH A. ROBINSON United States Magistrate Judge Within fourteen days, either party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each such objection. In the absence of timely objections, further review of issues addressed herein may be deemed waived.
STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED October 27, 2015 In re I A PAUL, Minor. No. 326032 Wayne Circuit Court Family Division LC No. 14-517077-NA Before: METER, P.J., and WILDER and RONAYNE KRAUSE, JJ. PER CURIAM. Respondent father (respondent) appeals as of right the order terminating his parental rights to the minor child, IAP, under MCL 712A.19b(3)(b)(i) (the parent’s act caused sexual abuse of a sibling of the minor child, and it is likely that abuse will occur in the foreseeable future) and (j) (reasonable likelihood that the child will be harmed if returned to the home of the parent). We affirm. I. Termination of Respondent’s Parental Rights Respondent first argues that the trial court clearly erred in finding that statutory grounds for termination were established by clear and convincing evidence. We disagree. This Court reviews for clear error a trial court’s decision that a ground for termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Trejo Minors, 462 Mich. 341, 356-357; 612 NW2d 407 (2000). “A trial court’s decision is clearly erroneous if although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” In re Olive/Metts Minors, 297 Mich. App. 35, 41; 823 NW2d 144 (2012) (quotation marks and citation omitted). “Clear error signifies a decision that strikes [this Court] as more than just maybe or probably wrong.” In re Williams, 286 Mich. App. 253, 271; 779 NW2d 286 (2009). “Due regard is given to the trial court’s special opportunity to judge the credibility of witnesses.” In re LE, 278 Mich. App. 1, 18; 747 NW2d 883 (2008); see also MCR 2.613(C). “Termination of parental rights is appropriate when the [Department of Health and Human Services (DHS)] proves one or more grounds for termination by clear and convincing evidence. It is only necessary for the DHS to establish by clear and convincing evidence the existence of one statutory ground to support the order for termination of parental rights.” In re Frey, 297 Mich. App. 242, 244; 824 NW2d 569 (2012) (citations omitted). “If a statutory ground for termination is established and the trial court finds ‘that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional -1- efforts for reunification of the child with the parent not be made.’ ” In re Ellis, 294 Mich. App. 30, 32-33; 817 NW2d 111 (2011), quoting MCL 712A.19b(5). A. Termination of Parental Rights Under MCL 712A.19b(3)(b)(i) The first ground for termination at issue here is MCL 712A.19b(3)(b)(i), which provides for termination when: (b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances: (i) The parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home. In In re HRC, 286 Mich. App. 444, 460; 781 NW2d 105 (2009), this Court upheld a termination of the respondent’s parental rights over all of his children under MCL 712A.19b(3)(b)(i) when the evidence showed that the respondent sexually abused at least two of his daughters, SRC and HRC. This Court reasoned: Although [the respondent] denied sexually abusing the children, the trial court apparently believed the testimonies of SRC and HRC, both of whom asserted that [the respondent] sexually abused them. It is not for this Court to displace the trial court’s credibility determination. Further, [the respondent’s] treatment of SRC and HRC is probative of how he will treat their other siblings. And MCL 712A.19b(3)(b)(i) specifically states that it applies to a child on the basis of the parent’s conduct toward the child’s siblings. Thus, because grounds for termination of [the respondent’s] parental rights were established under at least MCL 712A.19b(3)(b)(i), termination of his rights to all the children is proper. [In re HRC, 286 Mich. App. at 460-461 (citations omitted).] In this case, the trial court terminated respondent’s parental rights to IAP on the basis of respondent’s sexual abuse of IAP’s sibling, BB, and the likelihood that IAP will suffer abuse if returned to respondent. Respondent argues that the trial court clearly erred in finding that clear and convincing evidence supported termination of his parental rights under MCL 712A.19b(3)(b)(i). According to respondent, BB’s testimony was inconsistent and untrustworthy. Respondent calls into doubt BB’s testimony concerning the four or five incidents of abuse when BB was 9 or 10 years old and that respondent touched BB’s vagina in bed. Respondent bases his claim on the assertion that BB at one point said she felt respondent’s penis on her vagina and later said she did not know whether he put his penis in her vagina. However, respondent overlooks the fact that the trial court did not rely on these incidents in its termination decision. Instead, the trial court referred to two other incidents of abuse of BB for which there was independent corroboration or an admission by respondent: respondent’s placement of a potato chip clip on BB’s naked vagina when she was approximately 10 years old and his touching of her breast during a camping trip when she was 13 or 14 years old. The chip clip incident was testified to by BB’s older sister, BB2. BB2 testified that, while in the living room, she heard BB cry and then scream. BB2 then went into the kitchen and -2- saw that respondent had placed a potato chip clip on BB’s naked vagina. MP, the children’s mother, recalled the chip clip incident. Although she did not recall actually seeing the clip on BB’s vagina, MP did remember walking into the kitchen and seeing BB upset and crying. MP and respondent then argued, and respondent said it was an accident. In his testimony, respondent admitted that the chip clip incident occurred. He claimed that it was a “bad joke” related to the fact that “[BB] peed all the time.” Respondent claimed that he accidentally released the clip on BB and that it clipped her inner thigh close to her vagina. With respect to the camping trip incident, BB testified that when she was 13 or 14 years old, she and respondent went camping by themselves and slept on the same mattress in a van. She stated that respondent touched her breasts while her eyes were closed and that she told MP about this incident a few weeks later. Respondent testified that he took BB’s word that this incident occurred. However, he claimed he could not recall the incident and speculated that he must have thought that BB was MP, even though MP was not on the camping trip. Respondent claims that BB was inconsistent regarding how old she was at the time of the camping trip in which respondent touched her breast. BB testified at trial that she was 13 or 14 years old at the time of the camping trip. On cross-examination, DHS worker Aerial Ali indicated that the petition stated that the camping incident occurred when BB was 9 or 10 years old. However, the petition, which references all of the alleged incidents, including the touching of the breasts and the vagina, says that BB “reported that these incidents occurred when she was between the ages of 9 and 10 as well as the age of 14.” It is reasonable to conclude that the petition is consistent with BB’s testimony regarding her age at the time of the camping trip. Moreover, as discussed, this Court pays due regard to the trial court’s opportunity to assess the credibility of witnesses. In re LE, 278 Mich. App. at 18. Furthermore, respondent’s argument that BB made inconsistent or unreliable statements regarding his alleged touching of her vagina in bed ignores the fact that the trial court relied on two other incidents of abuse that were corroborated by other witnesses or admitted to by respondent. Therefore, the trial court did not clearly err in finding that respondent sexually abused IAP’s sibling, BB. Further, the trial court did not clearly err in finding a reasonable likelihood that IAP will suffer from sexual abuse in the foreseeable future if returned to respondent. As discussed, respondent’s sexual abuse of BB is probative of how respondent will treat IAP. In re HRC, 286 Mich. App. at 460-461. Indeed, there was evidence that respondent was “grooming” IAP for sexual abuse. IAP disclosed during a forensic interview that respondent had touched her vaginal area and buttocks with his hand and toilet paper and that “[i]t felt weird.” She stated that respondent threatened to “whoop” IAP’s sisters with a belt if they disclosed that he had touched IAP.1 IAP also disclosed 1 The trial court found that parts of IAP’s statement were unclear, including her assertion regarding the toilet paper being used, and that this assertion alone would not comprise clear and convincing evidence to satisfy a statutory ground for termination. We discuss this portion of -3- that she and respondent played “a dirty game” called “toilet” in which he sat on her face while clothed. In addition, respondent and IAP wrestled on respondent and MP’s bed. IAP stated that she and respondent sometimes showered together and that respondent did not wear anything when he was in the shower with her. Respondent acknowledged that he and IAP showered naked together until IAP was approximately four years old. MP testified that once IAP reached four or five years of age, MP told respondent to wear boxers in the shower because it did not look appropriate for him to be naked. After that, respondent sometimes wore boxers in the shower with IAP. However, sometimes he still showered naked with IAP, even though MP had told him to wear boxers. While supervising a visit between respondent and IAP, Ali observed IAP act like a puppy and lick respondent’s face, while sitting on respondent’s lap. While supervising another such visit, Dr. Vida Fiorenino, a therapist who testified as an expert in the counseling of children who are the subject of abuse and neglect, observed unusually affectionate behavior between respondent and IAP, including extended kisses on the lips and respondent’s caressing of IAP’s hair throughout the entire hour-long visit. Also during this visit, IAP sniffed respondent for a long time when she asked him if he remembered playing the toilet game. Dr. Fiorenino explained that the accumulation of multiple incidents could reflect grooming. Ali believed that respondent’s actions taken together amounted to grooming behaviors designed to make IAP more comfortable and to escalate things in a sexual manner. Christine Brohl, the forensic interviewer who interviewed IAP, likewise concluded that the acts IAP described comprised a form of grooming because there was “a series of games and exposures of body parts, getting children comfortable, I believe they had also played a game on their [sic] mom’s bed of wrestling. So in my mind, yes, that’s a form of grooming.” Brohl had concerns that IAP was being groomed for more sexual behavior. Accordingly, given respondent’s sexual abuse of BB and the evidence of multiple incidents suggesting that respondent was grooming IAP for sexual abuse, the trial court did not clearly err in finding a reasonable likelihood that IAP will suffer sexual abuse in the foreseeable future if returned to respondent’s care. B. Termination of Parental Rights under MCL 712A.19b(3)(j) This Court need not consider the additional ground on which the trial court based its termination decision because at least one ground for termination existed. In re HRC, 286 Mich [email protected]. We will nonetheless address the additional ground raised on appeal. The other ground for termination in this case is MCL 712A.19b(3)(j), which requires a court to find by clear and convincing evidence that “[t]here is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.” Harm includes both physical harm and emotional harm. In re Hudson, 294 Mich. App. 261, 268; 817 NW2d 115 (2011). “Evidence of how a parent treats one child is evidence of how he or she may treat the other children.” Id. at 266. As discussed, there IAP’s statement only in connection with several other incidents as pertinent to the broader issue of whether respondent was grooming IAP for sexual abuse. -4- was evidence that respondent sexually abused IAP’s sibling and that respondent was grooming IAP for sexual abuse. Based upon these findings, the trial court did not clearly err in finding clear and convincing evidence that IAP would be harmed if returned to respondent. II. Recanted Testimony Next, respondent contends that he is entitled to a remand to the trial court because he attached to his appellate brief an affidavit recanting statements made by BB during trial.2 A motion for new trial on the basis of newly discovered evidence must first be brought in the trial court in order to preserve the issue for review. People v Darden, 230 Mich. App. 597, 605-606; 585 NW2d 27 (1998). Respondent did not move for a new trial, a new termination hearing, or otherwise raise the issue of the recanting affidavit below. Therefore, because this issue is not preserved, our review is for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). Also, respondent did not raise this issue in his statement of questions presented. This Court may therefore decline to review the issue. Marx v Dep’t of Commerce, 220 Mich. App. 66, 81; 558 NW2d 460 (1996). In addition, the affidavit is not part of the lower court record. “This Court’s review is limited to the record established by the trial court, and a party may not expand the record on appeal.” Sherman v Sea Ray Boats, Inc, 251 Mich. App. 41, 56; 649 NW2d 783 (2002). Even if the affidavit is considered, respondent has failed to establish that he is entitled to any relief. In People v Cress, 468 Mich. 678, 692; 664 NW2d 174 (2003), our Supreme Court explained: For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. [Quotation marks omitted.] Respondent has not established that the evidence is newly discovered. The affidavit is undated. Although the language of the affidavit suggests that it was written after BB testified at trial, the trial occurred on six dates in October and December of 2014. BB testified on October 22, 2014. Trial concluded on December 11, 2014. Therefore, even though the affidavit was apparently written after BB testified, there is no basis to conclude that the affidavit was written after the trial ended and after respondent’s parental rights were terminated. Respondent has failed to establish that the evidence is newly discovered. 2 We note that this affidavit is highly dubious on its face, beyond the ordinary skepticism with which we treat supposed recantations. The affidavit is undated, respondent’s own attorney acted as the notary, and the notarization itself was improper due to the lack of the notary’s signature or the date of notarization. See MCL 55.287. -5- Respondent also has not shown that the affidavit makes a different result probable at a new termination hearing. “[W]here newly discovered evidence takes the form of recantation testimony, it is traditionally regarded as suspect and untrustworthy.” People v Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992). No form of proof is as unreliable as recanting testimony given its untrustworthy character. Id. at 559-560, citing People v Van Den Dreissche, 233 Mich. 38, 46; 206 N.W. 339 (1925). “Michigan courts have expressed reluctance to grant new trials on the basis of recanting testimony.” Canter, 197 Mich. App. at 560. In this case, BB’s affidavit recants her testimony that there was sexual penetration or attempted sexual penetration. However, BB expressed at trial that she was uncertain whether respondent’s penis penetrated her vagina. Moreover, the trial court did not rely on the incidents involving respondent’s penis touching BB’s vagina. Rather, the trial court relied on the placement of a chip clip on BB’s vagina and the fondling of BB’s breast on a camping trip to find that respondent sexually abused BB. As discussed, these incidents were corroborated by other witnesses and respondent’s admissions. Therefore, the recantation concerning whether respondent’s penis penetrated BB’s vagina does not implicate the trial court’s rationale and is not likely to lead to a different result. The assertion in BB’s affidavit that respondent lacked an illegal or wrongful sexual intent also fails to establish a probability of a different result. Newly discovered evidence must be admissible to warrant a new trial. See People v Grissom, 492 Mich. 296, 324; 821 NW2d 50 (2012) (Marilyn Kelly, J., concurring) (“[T]o potentially effect a different result on retrial and thereby satisfy the fourth Cress factor, the newly discovered evidence must be admissible.”). “Evidence which is not relevant is not admissible.” MRE 402. “ ‘Relevant evidence’ means 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.” MRE 401. “ ‘Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate parts . . . if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification [or] done for a sexual purpose . . . ” MCL 750.520a(q) (emphasis added). This statutory language provides “a reasonable person standard[.]” People v Piper, 223 Mich. App. 642, 647; 567 NW2d 483 (1997). BB’s subjective opinion concerning respondent’s intent when he touched her is therefore irrelevant. The trial court rejected respondent’s exculpatory explanations for why he put a chip clip on BB’s naked vagina and touched her breast. Therefore, because the portion of BB’s affidavit expressing her personal opinion about respondent’s intent is inadmissible, it does not make a different result probable. III. Best Interest of the Child Respondent next argues that the trial court clearly erred in finding that termination of his parental rights was in IAP’s best interests. We disagree. This Court reviews the trial court’s best interest determination for clear error. In re Olive/Metts Minors, 297 Mich. App. at 40. Whether termination is in a child’s best interests is determined by a preponderance of the evidence standard, rather than the clear and convincing evidence standard used to determine whether a statutory ground for termination has been met. In re Moss, 301 Mich. App. 76, 90; 836 NW2d 182 (2013). “Once a statutory ground for termination has been proven, the trial court must find that termination is in the child’s best interests before it can terminate parental rights.” In re -6- Olive/Metts Minors, 297 Mich. App. at 40, citing MCL 712A.19b(5). “In deciding whether termination is in the child’s best interests, the court may consider the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home over the parent’s home.” Id. at 41-42 (quotation marks and citations omitted). “The trial court may also consider a parent’s history of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation history with the child, the children’s well-being while in care, and the possibility of adoption.” In re White, 303 Mich. App. 701, 714; 846 NW2d 61 (2014). The trial court did not clearly err in finding that termination of respondent’s parental rights was in IAP’s best interests. Although numerous witnesses testified that respondent and IAP had a close and loving relationship, that bond must be weighed against the risk of harm to IAP. As discussed, there was evidence that respondent sexually abused IAP’s sibling, BB. Evidence of how a parent treats one child is probative of how the parent will treat that child’s sibling. In re Hudson, 294 Mich. App. at 266. There was also evidence that respondent was grooming IAP for sexual abuse. Dr. Fiorenino testified that if BB was sexually abused, a continued relationship between IAP and respondent could be harmful to IAP and that there was a danger of recidivism. Further, although IAP remained in the custody of her mother, MP, there was a risk that if respondent’s rights were not terminated, respondent could obtain custody if something happened to MP that caused her to be unable to care for IAP. Accordingly, the trial court’s best-interests determination was not clearly erroneous. Affirmed. /s/ Patrick M. Meter /s/ Kurtis T. Wilder /s/ Amy Ronayne Krause -7-
This conviction was for rape by fraud, the penalty assessed being five years confinement in the penitentiary. On July 4, 1903, there was a picnic in Comanche, which defendant and his wife Florence and Andrew Huffman and his wife Fannie attended. These Huffmans and their wives spent the night with the Frazier family. Andrew Huffman and appellant are cousins, and they and their families had known each other intimately a long time. Appellant had three children, and Andrew one child. After supper Andrew and appellant went to town. When those at the Frazier residence retired for the night, beds in the east room were prepared in the same room for Andrew, his wife and baby; and appellant, his wife and three children. Appellant's wife and one child were placed on a bed, which was in the room, and their children were put to sleep on a pallet. Prosecutrix (Fannie) and her husband (Andrew) were to sleep on a mattress on the floor. These ladies retired, as did the Frazier family, while Andrew and appellant were out in town. About midnight appellant returned *Page 429 from town, after everybody had retired. Quilla Frazier testified that he and his wife slept on the gallery on the south side of the room, and that they had already been asleep when defendant came in. This witness further testified: "I heard him come in through the door in the east room. At the time I thought Ed Huffman and Andrew Huffman were together, and I began to tell them where to sleep. I said, `Ed, you will sleep on the bedstead there by the window with Florence, your wife, where she is sleeping,' and `Andrew, you sleep on the mattress made down on the floor where your wife Fannie is sleeping.' I did not at that time know Ed Huffman was alone, but thought he and Andrew had come home to go to bed, and that is the reason I told both of them where to sleep. Defendant asked for a drink of water, and I told him his wife had carried the bucket of water into the room there where she and the children were sleeping so as to give the children water through the night. He was in this same room when talking to me. When he first came in he made some noise which awakened me. He seemed to talk in his natural tone and I did not notice that he spoke like he had been drinking or there was anything unusual in his voice. I did not hear his wife speak to [email protected]. There was quiet some little time in the room and I supposed defendant had gone to bed. The moon was shining bright that night and shone right in on his wife's bed so that he could see her plainly. In a little while after defendant had ceased talking to me, I heard Mrs. Fannie Huffman began to scream, cry and abuse defendant Ed Huffman, and heard sounds as if she was fighting or striking him. I then got up. Mrs. Fannie Huffman said to defendant, `You old devil you, you thought you would come in here and ruin me while my husband was gone. You tried to deceive me;' and such language; and all this time crying and [email protected]. She was greatly excited and wrought up. She said, `I am going to hunt my husband and have him to whip you. I am going to tell him what you have done.' She said then and there that she heard me tell Ed Huffman where to sleep and Andrew where to sleep; and she thought that Andrew was with Ed, and thought it was Andrew, her husband, getting in bed with her, and thought Ed Huffman, defendant, was getting in bed with his wife, on the bed by the window." Prosecutrix, Fannie Huffman, testified that she was the wife of Andrew, and had never been the wife of defendant Ed Huffman. After detailing their visit to Comanche on July 4th, and some other facts and circumstances which are not necessary here to repeat, she says that after supper her husband went up town; that her baby was nursing at the time, "and I had the care of her that day and was fatigued greatly and very sleepy, and retired early, and soon went sound asleep. Florence also retired at the same time I did, and in the same room. She and her baby slept on the bedstead by the window in the southwest corner of the same room. The two children of Florence slept on the pallet. Neither of the husbands were there when the ladies retired. About midnight, I suppose, I was aroused by someone coming in the house. I was awakened enough to hear Quilla *Page 430 Frazier, who slept south of the room in which we were sleeping, tell them where to sleep. I supposed that both Andrew and Ed had come in to go to bed. I heard Quilla say, `Ed, you will sleep with Florence who is on the bedstead by the window,' and `Andrew, you will sleep with Fannie, who is on the bed made down on the floor near the door.' From what Quilla had said directing both Ed and Andrew where to sleep, I thought both were together and that Andrew would shortly get in the bed with me. Not suspecting anything wrong and being very tired and sleepy I dozed off again, and in a few minutes I was again aroused by some one whom I thought to be my husband getting in the bed with me. At the time my face was towards the wall and my baby was lying on my left arm nursing, and my back was toward the person whom I thought was my husband as he got in the bed with me. He was raising the cover and getting in the bed with me was what aroused me again. As soon as he lay down on the bed, he whispered in my ear and said, `Turn over, Fannie.' His calling me by my given name still caused me to think it was my husband. I started to turn over to him and while doing so I said, `Andrew, did you get that meat, kerosene and snuff?' and he answered, `No, I thought I would wait until tomorrow.' I had told Andrew as he went to town that evening to get some meat, kerosene and snuff. This was why I asked him if he had gotten it. When he said, `No, I thought I would wait until tomorrow,' I was still confirmed in my belief that I was talking to my husband who was there in the bed with me. Before I had turned over good, defendant, whom I thought to be my husband, raised one of my legs up, put his leg in between mine, and put his male organ into my female organ from behind. He had just gotten it fairly in, when I heard his wife, Florence, say, `Ed, what makes you treat me this way?' I thought then that Ed was in the bed with her and she was talking to him about being out so late. When she said this, however, defendant, whom I still thought was my husband, took his male organ out of my female organ, and lay over on his back perfectly still a moment. I still thought it was my husband there with me, and thought that he had withdrawn his male organ from my female organ on finding that Florence and Ed were awake by their talking, and that he did not want Ed and Florence to discover him in the act of intercourse with me. Again Florence said, `Ed, what makes you treat me this way?' Defendant began to get up and I discovered that it was Ed Huffman, defendant, and not my husband. This discovery greatly excited and angered me, and I sprang at him and beat him and abused him in every way I could. I acted on impulse, and was so excited and wrought up I can hardly tell all I did say or do. Ed said that he had made a mistake and got in the wrong bed. His wife said, `No, you didn't; you have lived with me too long not to know the difference between me and Fannie.' She also said, `Ed, you know Fannie never did give you any cause to do her that way.' He said, `She never had.' She said `that you (meaning defendant) knew that I never did sleep in my bare arms.' I always slept in my bare arms, but Florence *Page 431 (defendant's wife) did not sleep in her bare arms. She further said there to him and me, that when Ed came in that night she did not speak to him because she was mad at him for staying out late. She said that after Quilla told him where to sleep and that his bed was on the bedstead by the window and mine on the floor, he sat down on the foot of the bed on which she was sleeping and pulled off his clothes; that after he got his clothes off he sat there a minute and would look first at her and then down at the bed on which I was sleeping; that she was lying there like she was asleep; that he then got on the bed with me and got under the cover and then she heard some whispering, and she called `Ed.' She said to him, `You thought I was asleep and Fannie was asleep, and that you would take advantage of her and ruin her while her husband was away.' She said further that she would not live with any man who would do that way. I told defendant I would go and find my husband and have him to whip him. He said he would explain it to him himself." The husband of prosecutrix testified as to the condition of things about the room, and that he returned after the trouble, and when he did return his wife told him what defendant had done; in fact, she stated to him practically what she testified. Mrs. Carter testified that prosecutrix had a conversation with her in regard to this matter, and said: "I just want to tell you how it was. Ed came and got in bed with me.' I said, Why, Fannie, it looks like Ed has got sense enough to know that he would be caught up with." Fannie replied "that he was too drunk to know what he was doing; that we have got him where we want him; we'll show him how to get drunk and get in bed with another man's wife." The wife of defendant was called as a witness in his behalf, and she testified practically as detailed by witness Fannie Huffman, as to the matters up to the time that her husband got in bed with prosecutrix. She testified further, "Ed asked for some water, and Quilla told him it was there in the room. He got a drink of water and sat down on and leaned against the foot of my bed, and pulled off his clothes. The moon was shining in at the window where I was. He then disappeared from my sight and I raised up and saw him in Fannie's bed with the cover partly over him. I had not spoken to him up to this time. I was [email protected]. I heard Fannie whispering to him, and then I raised up and said, `Ed, what do you mean by doing me this way?' I repeated the question and he rose up out of the bed, and as he did so Fannie rose too, shrieking and crying and fighting Ed. She cursed and abused and fought him for a long time. She said, `You old devil you, you tried to ruin me here when you knew my husband was gone.' She said he did not go through with the act but started to. She said he called her `Fannie,' and told her to turn over; and said that he said he had not gotten the meat, kerosene and snuff, but he would do so to-morrow; and that with what Quilla had said about where Ed and Andrew would sleep caused her to think it was her husband. Defendant was drunk. He did not have time from the time he got in Fannie's bed until he got out *Page 432 to have intercourse with her or to penetrate her. Yes, I heard some whispering, but I could not tell what was said. Defendant said he made a mistake. I said, `No, you have lived with me too long not to know me from Fannie.' Fannie said then that I had just called Ed in time to save her. He was not on Fannie. The cover was partially over him and her. Fannie was sleeping with her face to the wall, but when Ed got in bed with her she turned over and put her arms around his neck, and was in this position when I called Ed." Defendant testified in his own behalf, and said that he was drunk and it was a mistake. There was some evidence tending to show that appellant was in an intoxicated condition. Andrew Huffman further testified, that he went by a wagon with a stranger and stopped a moment; that the stranger was carrying supper to a woman in the wagon; that he did not know her name, and did not know her name was Callie Suggs. Appellant offered to prove that Andrew Huffman (husband of prosecutrix) was with one Callie Suggs a short distance from Frazier's house, where the Huffmans were staying and where prosecutrix was sleeping. He proposed to show that Callie Suggs was a notorious prostitute and was intimate with prosecutrix; and that Andrew Huffman was alone in the dark on the creek with Callie Suggs, and about 100 yards from where his wife (prosecutrix) was then sleeping. This was offered for the purpose of impeaching the credibility of Andrew Huffman and prosecutrix, and to show the character of these witnesses. This was excluded. Under the view we take of the testimony it is not necessary to discuss this as well as other bills of exception. We do not believe this testimony justifies the conviction of rape by fraud. In order to justify such conviction, appellant should have used some trick, device or stratagem to induce the prosecutrix to believe that he was her husband. As we understand the testimony there was no trick, nor artifice, nor stratagem employed. Prosecutrix had known appellant a long time; her husband and appellant were cousins. They seemed to call each other by their given names; and there is nothing in the record to indicate a similarity in personal appearance between her husband and appellant, except the fact that they were related by consanguinity. She testifies that she thought this was her husband getting in bed with her; that appellant and her husband had come in the room together, and she thought she heard appellant getting in the bed with his wife. She does not even testify to the similarity of the voices of the two men. The moon was shining brightly, and all the circumstances tend to place her in the attitude where she knew or ought to have known that appellant was not her husband. These circumstances exclude rather than prove appellant used any artifice or trick or stratagem upon her to induce her to believe that he was her husband. The evidence, in our judgment, does not authorize the conviction for rape by fraud. The judgment is reversed and the cause remanded. Reversed and remanded. *Page 433
The decree appealed from in this case should be reversed without prejudice and the cause remanded to the Circuit Court for reconsideration and further decree as the facts may warrant, not inconsistent with the holding of this Court in the case of Liggett Drug Company v. Lee, 126 Fla. 359, 171 Sou. Rep. 326, which was argued and submitted as a companion case to this case and decided at the present term. Reversed without prejudice and remanded for further proceedings. WHITFIELD, C.J., and TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.
ORIGINAL ACTION JOURNAL ENTRY AND OPINION J.W. Walker, the relator, has filed a complaint for a writ of procedendo through which he seeks an order from this court which requires Judge Judith Kilbane Koch, the respondent, to "issue Findings of Fact and Conclusions of Law concerning the Summary Judgments and subsequent dismissal" as rendered in the underlying case of Walker v. Karp, et al., Cuyahoga County Court of Common Pleas Case No. 440575. Judge Koch has filed a motion to dismiss Walker's complaint for a writ of procedendo, which motion we grant for the following reasons. Initially, we find that Walker's complaint for a writ of procedendo should be dismissed because it is Improperly captioned. The application for a writ "must be by petition, in the name of the state on the relation of the person applying." The failure to caption a writ action properly constitutes sufficient grounds for dismissal of the petition. Cf. Allenv. Court off Common Pleas of Allen County (1962), 173 Ohio St. 226,181 N.E.2d 270, Dunning v. Judge Cleary, et al. (Jan. 11, 2001), Cuyahoga App. No. 78763, unreported. In addition, Walker has failed to comply with the mandatory requirement of R. C. 2969.25(A), which provides that an inmate, when filing a civil action against a government entity or employee, must also file an affidavit that contains a description of each civil action or appeal of a civil action filed in the previous five (5) years in either state or federal court. State ex rel. Akbar-El v.Cuyahoga Cty. Court of Common Pleas (2002), 94 Ohio St. 3d 210,761 N.E.2d 624; State ex rel. Sherrills v. Franklin Cty. Clerk offCourts (2001), 92 Ohio St. 3d 402, 750 N.E.2d 594. Finally, Walker has failed to establish that this court should issue a writ of procedendo on his behalf. Procedendo is an extraordinary remedy issued by a court of superior jurisdiction. ordering an inferior court to proceed to judgment in a case. State ex rel. Miley v. Parrott (1996),77 Ohio St. 3d 64, 671 N.E.2d 24; State ex rel. Sherrills v. CuyahogaCty. Court of Common Pleas (1995), 72 Ohio St. 3d 461, 650 N.E.2d 899;State ex rel. Carnett v. Lyons (1975), 44 Ohio St. 2d 125, 339 N.E.2d 628. In order for this court to issue a writ of procedendo, Walker must establish that: 1) he possesses a clear legal right to require Judge Koch to proceed to judgment; 2) Judge Koch possesses a clear legal duty to proceed to judgment; and 3) there exists no other adequate remedy in the ordinary course of the law. State ex rel. Grove v. Nadel (1998),81 Ohio St. 3d 325, 691 N.E.2d 275; State ex rel. Crandall, Pheils Wisniewski v. DeCessna (1995), 73 Ohio St. 3d 180, 652 N.E.2d 742. In the case sub judice, Walker has failed to establish the first and second prongs of the aforesaid three-part test. Judge Koch has already proceeded to judgment, in the underlying action of Walker v. Karp, etal., supra, by granting motions to dismiss as filed by each and every named defendant and denying Walker's motion for summary judgment. In addition, Judge Koch possesses no duty to enter findings of fact and conclusions of law with regard to the dispositions of the motions to dismiss and the motion for summary judgment. Civ.R. 52; Mayer v. Bristow (2000), 91 Ohio St. 3d 3, 740 N.E.2d 656; State ex rel. Drake v. AthensCty. Bd. of Elections (1988), 39 Ohio St. 3d 40, 528 N.E.2d 1253. Accordingly, we grant Judge Koch's motion to dismiss. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment and date of entry, pursuant to Civ.R. 58(B), upon all parties. Costs to Walker. Complaint for procedendo dismissed. MICHAEL J. CORRIGAN, J. AND COLLEEN CONWAY COONEY, J. CONCUR.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1385 JAMAL ANTONIO MIDDLETON, Plaintiff - Appellant, v. MOTLEY RICE LLC, Defendant – Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:08-cv-03256-CWH) Submitted: August 30, 2011 Decided: September 9, 2011 Before KING, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jamal Antonio Middleton, Appellant Pro Se. Allan Riley Holmes, Sr., GIBBS & HOLMES, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamal Antonio Middleton appeals the district court’s orders: adopting the recommendation of the magistrate judge and granting summary judgment to Defendant in this action alleging a violation of Title VII of the Civil Rights Act of 1964, as amended; and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Middleton v. Motley Rice LLC, No. 2:08-cv-03256-CWH (D.S.C. Mar. 23, 2011). We grant the motion to file an amended informal brief and deny the motions for preparation of a transcript at government expense and for entry of default. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2
EXHIBIT 10.1 FOURTH AMENDMENT TO CREDIT AGREEMENT THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”), dated as of April 24, 2018, is entered into by and among Gentherm Incorporated, a Michigan corporation (the “Company”), Gentherm (Texas), Inc., a Texas corporation (“Gentherm Texas”), Gentherm Licensing, Limited Partnership, a Michigan limited partnership (“Gentherm Licensing US”), Gentherm GmbH, a German limited liability company (“Gentherm Germany”), Gentherm Enterprises GmbH, a German limited liability company (“Gentherm Enterprises”), Gentherm Licensing GmbH, a German limited liability company (“Gentherm Licensing Germany”; Gentherm Licensing Germany, together with Gentherm Germany and Gentherm Enterprises, the “German Borrowers”), Gentherm Global Power Technologies Inc., an Alberta corporation (“Global”), Gentherm Canada ULC, an Alberta unlimited liability company (“Gentherm Canada”; Gentherm Canada, together with Global, the “Canadian Borrowers”), the Designated Borrower party hereto (the “Designated Borrower”; the Designated Borrower, together with the Company, Gentherm Texas, Gentherm Licensing US, the German Borrowers and the Canadian Borrowers, the “Borrowers” and each, a “Borrower”), the Guarantors party hereto, the Lenders party hereto, and Bank of America, N.A., as Administrative Agent (the “Administrative Agent”). W I T N E S S E T H: WHEREAS, the Borrowers, the Lenders and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, are all parties to that certain Credit Agreement, dated as of August 7, 2014 (as amended or otherwise modified prior to the date hereof, the “Credit Agreement”); WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent amend certain provisions of the Credit Agreement as set forth herein; and WHEREAS, the Lenders party hereto and the Administrative Agent are willing to effect such amendments, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Article I. DEFINITIONS SECTION 1.1.Definitions. Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Credit Agreement. Article II. AMENDMENTS TO CREDIT AGREEMENT SECTION 2.1.Section 1.01. SECTION 2.1.1.The last sentence in the definition of “Investment” in Section 1.01 of the Credit Agreement is hereby amended to read as follows: For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested (and, if such Investment is made in a currency other than Dollars, shall -------------------------------------------------------------------------------- be the equivalent amount thereof in Dollars as reasonably determined by the Company at the time such Investment is made on the basis of the spot rate for the purchase by the Company of such currency with Dollars at such time), without adjustment for subsequent increases or decreases in the value of such Investment (including, with respect to any Investment made in a currency other than Dollars, as a result of changes in rates of currency exchange occurring after the time such Investment is made). SECTION 2.1.2.The following defined terms are hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order: “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “Fourth Amendment Effective Date” means April 24, 2018. “LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time). “LIBOR Successor Rate” has the meaning specified in Section 3.07. “LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, the definition of Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Company). “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. “Scheduled Unavailability Date” has the meaning specified in Section 3.07. SECTION 2.2.Article III.  Section 3.07 of the Credit Agreement is hereby amended to be Section 3.08 of the Credit Agreement and a new Section 3.07 is hereby added to Article III of the Credit Agreement immediately following Section 3.06 of the Credit Agreement to read as follows: 3.07LIBOR Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or the Required Lenders (as applicable) have determined, that: (a) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, because the LIBOR Screen Rate is not -------------------------------------------------------------------------------- available or published on a current basis and such circumstances are unlikely to be temporary; or (b) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”); or (c) syndicated loans currently being executed, or that include language similar to that contained in this Section 3.07, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR; then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Company may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. If no LIBOR Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Company and each Lender.  Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (ii) the Eurocurrency Rate component of the Base Rate shall no longer be utilized in determining the Base Rate.  Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (ii)) in the amount specified therein. Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement. SECTION 2.3.Section 5.12.  Section 5.12 of the Credit Agreement is hereby amended by adding a new subsection (f) immediately following subsection (e) to read as follows: (f)Each Borrower represents and warrants, as of the Fourth Amendment Effective Date, that such Borrower is not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments. SECTION 2.4.Section 7.02.  Section 7.02 of the Credit Agreement is hereby amended as follows: SECTION 2.4.1.The reference in Section 7.02(h) of the Credit Agreement to “$35,000,000” is hereby replaced with “$45,000,000”. SECTION 2.4.2.The reference in Section 7.02(i) of the Credit Agreement to “$50,000,000” is hereby replaced with “$75,000,000”. -------------------------------------------------------------------------------- SECTION 2.5.Section 7.03.  Section 7.03 of the Credit Agreement is hereby amended to replace the reference in Section 7.03(l) of the Credit Agreement to “$10,000,000” with “$25,000,000”. SECTION 2.6.Article IX.  A new Section 9.13 is hereby added to Article IX of the Credit Agreement immediately following Section 9.12of the Credit Agreement to read as follows: 9.13ERISA Matters. (a)Each Lender (i) represents and warrants, as of the date such Person became a Lender party hereto, and (ii) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent, the Arranger, and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that at least one of the following is and will be true: (A) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit, or the Commitments; (B) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (C)(1) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (2) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (3) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14, and (4) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement; or (D) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (b)In addition, unless subclause (A) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in subclause (D) in the immediately preceding clause (a), such Lender further (i) represents and warrants, as of the date such Person became a Lender party hereto, and (ii) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arranger, and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that: (A) none of the Administrative Agent, the Arranger, or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document or any documents related to hereto or thereto); (B) the Person making the investment decision on behalf of such Lender with respect to the entrance into, -------------------------------------------------------------------------------- participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E); (C) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations); (D) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder; and (E) no fee or other compensation is being paid directly to the Administrative Agent, the Arranger, or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. (c)Each of the Administrative Agent and the Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender, or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. SECTION 2.7.Section 11.01.  The language preceding the first proviso in the first paragraph of Section 11.01 of the Credit Agreement is hereby amended to read as follows: Except as provided in Section 3.07, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the applicable Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; -------------------------------------------------------------------------------- Article III. CONDITIONS TO EFFECTIVENESS; PAYMENT OF EXPENSES SECTION 3.1.Conditions to Effectiveness.  This Agreement shall become effective upon and subject to receipt by the Administrative Agent of counterparts of this Agreement duly executed by each Borrower, each Guarantor, the Required Lenders, and the Administrative Agent. SECTION 3.2.Payment of Expenses.  The Company agrees to reimburse the Administrative Agent for all reasonable out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, including the reasonable fees, charges and disbursements of Moore & Van Allen PLLC. Article IV. EFFECT OF THIS AGREEMENT; REAFFIRMATION SECTION 4.1.Effect of this Agreement.  Except as expressly modified and amended in this Agreement, all of the terms, provisions and conditions of the Loan Documents shall remain unchanged and in full force and effect.  The Loan Documents and any and all other documents heretofore, now or hereafter executed and delivered pursuant to the terms of the Credit Agreement are hereby amended so that any reference to the Credit Agreement shall mean a reference to the Credit Agreement, as amended by this Agreement. SECTION 4.2.Reaffirmation.  Each Loan Party hereby (a) restates, ratifies and reaffirms each and every term and condition set forth in, and its obligations under, the Credit Agreement and the other Loan Documents as of the date hereof, and (b) acknowledges and agrees that the Liens granted under the Collateral Documents continue to secure the full payment and performance of the Obligations.  Each Guarantor (i) hereby acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents. Article V. MISCELLANEOUS SECTION 5.1.Cross-References. References in this Agreement to any Article or Section are, unless otherwise specified, to such Article or Section of this Agreement. SECTION 5.2.Loan Document Pursuant to Credit Agreement.  This Agreement is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with all of the terms and provisions of the Credit Agreement, including Article XI thereof. SECTION 5.3.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 5.4.Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of -------------------------------------------------------------------------------- this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement. SECTION 5.5.Governing Law. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTION 5.6.Full Force and Effect. Except as expressly amended hereby, all of the representations, warranties, terms, covenants, conditions and other provisions of the Credit Agreement and the other Loan Documents shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms. The amendments set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment to or modification of any other term or provision of the Credit Agreement or any other Loan Document or of any transaction or further or future action on the part of any Loan Party which would require the consent of the Lenders under the Credit Agreement or any of the Loan Documents. SECTION 5.7.Miscellaneous.  Each Loan Party that is a party hereto hereby represents and warrants as follows: (a) the execution, delivery and performance by such Loan Party of this Agreement has been duly authorized by all necessary corporate or other organizational action, (b) such Loan Party has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, (c) this Agreement has been duly executed and delivered by such Loan Party and constitutes such Loan Party’s legal, valid and binding obligation, enforceable in accordance with its terms, and (d) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with execution, delivery or performance by, or enforcement against, such Loan Party of this Agreement, or for the consummation of the transactions contemplated hereby. SECTION 5.8.Lender Representations, Warranties and Covenants.  Each Lender party hereto represents and warrants that, after giving effect to this Agreement, the representations and warranties of such Lender set forth in the Credit Agreement (as amended by this Agreement) are true and correct as of the date of this Agreement.  Each Lender party hereto hereby agrees to comply with the covenants applicable to such Lender set forth in the Credit Agreement (as amended by this Agreement). SECTION 5.9.Loan Party Representations and Warranties. In order to induce the Lenders to execute and deliver this Agreement, the Loan Parties hereby represent and warrant to the Lenders that both before and after giving effect to this Agreement, (a) no event has occurred and is continuing which constitutes a Default or an Event of Default and (b) the representations and warranties of (i) the Borrowers contained in Article V of the Credit Agreement (as amended by this Agreement) and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and except that for purposes of this Agreement, the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to, respectively, of Sections 6.01(a) and (b) of the Credit Agreement. -------------------------------------------------------------------------------- [signature pages follow]     --------------------------------------------------------------------------------   IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written. BORROWERS:GENTHERM INCORPORATED, a Michigan corporation By: /s/ Barry Steele   Name:  Barry Steele Title:Chief Financial Officer GENTHERM (TEXAS), INC., a Texas corporation By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM LICENSING, LIMITED   PARTNERSHIP, a Michigan limited partnership By: /s/ Barry Steele Name:  Barry Steele Title:Chief Financial Officer GENTHERM GMBH, a German limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM ENTERPRISES GMBH, a German limited liability company By: /s/ Barry Steele Name:  Barry Steele Title:Chief Financial Officer GENTHERM LICENSING GMBH, a German limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   GENTHERM GLOBAL POWER TECHNOLOGIES INC., an Alberta corporation   By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM CANADA ULC, an Alberta unlimited liability company By: /s/ Barry Steele Name:Barry Steel Title:Chief Financial Officer     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   DESIGNATED BORROWER:CINCINNATI SUB-ZERO PRODUCTS, LLC, an Ohio limited liability company By: /s/Barry Steele Name:Barry Steele Title:Chief Financial Officer     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   GUARANTORS:GENTHERM PROPERTIES I, LLC, a Michigan limited liability company By:/s/ Barry Steele Name:  Barry Steele Title:Chief Financial Officer GENTHERM PROPERTIES II, LLC, a Michigan limited liability company By:/s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM PROPERTIES III, LLC, a Michigan limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM HOLDING (MALTA) LIMITED, a Maltese limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM AUTOMOTIVE SYSTEMS (MALTA) LIMITED, a Maltese limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer GENTHERM HUNGARY KORLÁTOLT FELELŐSSÉGŰ TÁRSASÁG, a Hungarian limited liability company By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   GENTHERM LUXEMBOURG I S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 41, avenue de la Gare, L-1611 Luxembourg and registered with the Luxembourg trade and companies register under number B 191.251 By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officwer GENTHERM LUXEMBOURG II S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 41, avenue de la Gare, L-1611 Luxembourg and registered with the Luxembourg trade and companies register under number B 191.252 By: /s/ Barry Steele Name:Barry Steele Title:Chief Financial Officer     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   ADMINISTRATIVE AGENT:BANK OF AMERICA, N.A., as Administrative Agent By:  /s/ Felicia Brinson Name:Felicia Brinson Title:Assistant Vice President     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   LENDERS: BANK OF AMERICA, N.A., as a Lender, Swing Line Lender and L/C Issuer By:  /s/ Gregory J. Bosio Name:Gregory J. Bosio Title:Senior Vice President     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   JPMorgan Chase Bank, N.A., as a Lender By:  /s/ Wieslaw R. Sliwinski Name:Wieslaw R. Sliwinski Title:Authorized Officer JPMorgan Chase Bank, N.A., TORONTO BRANCH, as a Lender By:  /s/ Michael N.Tam Name:Michael N. Tam Title:Senior Vice President       Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender By: /s/ Alexander R. Caldiero Name:Alexander R. Caldiero Title:Assistant Vice President     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   COMERICA BANK, as a Lender By: /s/ Nicole Swigert Name:Nicole Swigert Title:Vice President     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   The Huntington National Bank, as a Lender By:  /s/ William N. Bartok Name:William N. Bartok Title: Vice President     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   KeyBank National Association, as a Lender By: /s/ James Clay Harris Name:James Clay Harris Title:Commercial Credit Analyst     Gentherm Incorporated FOURTH Amendment to Credit Agreement --------------------------------------------------------------------------------   PNC BANK, NATIONAL ASSOCIATION, as a Lender By:  /s/ Scott Neiderheide Name:Scott Neiderheide Title:Vice President Gentherm Incorporated FOURTH Amendment to Credit Agreement
Electronically Filed Supreme Court SCPR-12-0001059 20-DEC-2012 12:03 PM SCPR-12-0001059 IN THE SUPREME COURT OF THE STATE OF HAWAI#I IN RE JULIA C. WO, Petitioner. ORIGINAL PROCEEDING ORDER GRANTING PETITION TO RESIGN AND SURRENDER LICENSE (By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.) Upon consideration of Petitioner Julia C. Wo’s petition to resign and surrender her license to practice law in the State of Hawai#i, filed pursuant to Rule 1.10 of the Rules of the Supreme Court of the State of Hawai#i (RSCH), and of the affidavits and exhibits in support thereof, IT IS HEREBY ORDERED that the petition is granted. IT IS FURTHER ORDERED, pursuant to RSCH Rule 1.10(g), that Petitioner shall comply with the notice, affidavit, and record requirements of RSCH Rule 2.16(a), (b), (d), and (g). IT IS FINALLY ORDERED that the Clerk shall remove the name of Petitioner Julia C. Wo, attorney number 5915, from the roll of attorneys of the State of Hawai#i, effective with the filing of this order. DATED: Honolulu, Hawai#i, December 20, 2012. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Simeon R. Acoba, Jr. /s/ Sabrina S. McKenna /s/ Richard W. Pollack
Ads In Motion, Inc. 159 South Street Morristown, New Jersey 07960 May 4, 2011 Larry Spirgel Assistant Director, U.S. Securities and Exchange Commission Division of Corporation Finance treet, N.E. Washington, D.C. 20549 Re: Ads In Motion, Inc. Form 8-K/A Filed April 11, 2011 File No. 000-53460 Dear Mr. Spirgel: We are in receipt of the comment letter issued by the United States Securities & Exchange Commission (the “Commission”) dated April 21, 2011 related to the Company’s Form 8-K/A filed on April 11, 2011. Please accept this correspondence as a request for an extension of time to provide the Commission with our response to the comment letter. As discussed with the Commission today, the Company will respond to the Commission’s comment letter, dated April 21, 2011, no later than May 9, 2011. Thank you for your attention to this matter. Sincerely, /s/ Jordan Glatt Jordan Glatt President and Chief Executive Officer
*1099OPINION". Lansdon: The respondent has determined that the transaction here involved was effected by the new corporation purchasing for cash the stock of the old companies. The petitioners contend that such merger was a tax-free reorganization under the provisions of section 112' of the Revenue Act of 1928.1 The undisputed testimony shows that the plan of reorganization contemplated no cash payments by the new corporation to the stockholders of the old com-*1100pañíes, and that on the completion of the merger none of such stockholders had received any cash or any consideration for their stock other than the stocks and bonds of the new corporation. Unless the use of checks in the process of transferring the old stock to the new corporation, as set out in our findings of fact, can be regarded as the payment of cash by such new corporation to the stockholders of the old concerns, it is obvious that under the facts and the law the petitioners have overcome the presumption of correctness that attaches to the determination of the respondent. A careful study of the various steps through which the new corporation acquired the stock of the old companies by the issue of its securities convinces us that no cash was paid for such stock. The checks used were in the nature of tokens or counters. The only check received by any stockholder of any old company was unsigned and the only check that any such stockholder gave in the process of converting his old stock into the securities of the new corporation was drawn on a bank in which he had no account. The unsigned check could not have been cashed and the stockholder’s own check on the Royal Bank of Canada, in which he had no account,- was worthless except as a counter or token to be used only in connection with the conversion of the old stock into new securities. In our opinion the use of the checks in question did not evidence any cash payments and was merely one of the parts of a single transaction contemplated by the reorganization plans. In support of his determination the respondent cites J. Hampton Hoult, 24 B.T.A. 79; B. F. Saul, 4 B.T.A. 639; Minnie C. Brackett, Administratrix, 19 B.T.A. 1154; Minnesota Tea Co., 28 B.T.A. 591; Georgetown Water, Gas & Electric Co., 28 B.T.A. 321; Prairie Oil & Gas Co. v. Motter, 66 Fed. (2d) 309; Tucker v. Alexander, 25 Fed. (2d) 425; Charles T. Kountze, 24 B.T.A. 405; affd., Burnet v. Kountze, 66 Fed. (2d) 141. In the Hoult case, supra, the Board held that the stockholders of the old company actually sold their stock therein for cash and with the proceeds purchased preferred and *1101common stock of the new company, but there is nowhere any showing that the stockholders of the old company acquired all the securities of the new concern and the facts disclose that other parties not interested in the old corporation held a controlling.interest in the voting stock of the new concern. It is obvious, therefore, that upon the facts in that proceeding it has no bearing on the situation here. In B. F. Saul, supra, also cited by the respondent, the merger agreement provided for the purchase of all the assets of the Home Savings Bank by the American Security & Trust Co. for $400,000 in cash, and that, upon the surrender of the stock owned by the stockholders of the vendor concern, each was to receive four shares of the stock of the vendee for every share so surrendered. The stockholders of the vendor did not acquire all the securities of the vendee. That transaction, which was based upon the sale of assets for cash and the subsequent use of such cash to acquire a minority of the stock of the purchasing company, is so essentially different in fact from the reorganization here under consideration that it is plain that no rule established in our decision therein has any bearing on the controversy. In Minnie C. Brackett, Administratrix, supra, the old company sold for cash to a new concern and with such cash purchased shares of stock in the vendee, but there is no showing that after the transaction was completed the stockholders of the old concern ratably owned all the securities of the new company and there was an actual use of cash deposited in a bank for the purposes of the transactions. In Georgetown Water, Gas & Electric Co., supra, the owners of all the stock of the petitioner, pursuant to a contract, sold all of its tangible and intangible assets for a recited consideration in cash, but for a part of the amount thereof agreed to take bonds of a third concern, with the provision that the purchasing company should have the right to take over such bonds at stated intervals and pay the petitioners cash in the amount of the par value thereof. This was plainly a sale of assets in which the stockholders of the old company acquired no securities of the purchasing concern. It has no bearing on the issue here. Careful consideration of the facts in the other cases cited by the respondent discloses that all are easily distinguishable from the instant proceeding. The facts here do not indicate even the form of a transaction in which cash was received by the petitioners. There never was a time in the course of the negotiations for merger in which it was contemplated that any stockholder of an old company should receive cash for his interest therein. The plan of reorganization provided for no cash payments. In the process of transferring the *1102stock of the old companies for the securities of the new concern, it was very carefully provided that none of the old stockholders could receive any cash. Petitioners who testified all swore that they never expected any cash and received none and that all they did receive was their ratable proportion of the securities of the new corporation. We are convinced that the petitioners have shown that the merger in question falls squarely within the statutory provisions upon which they rely. Our conclusion above renders it unnecessary to decide the alternative plea of the petitioners relating to the basic cost of their shares in the old companies. All other issues have been abandoned. Reviewed by the Board. Decision will be entered under Rule SO. SEC. 112. RECOGNITION OP GAIN OR LOSS. (a) G-eneral rule. — Upon the sale or exchange of property the entire amount of the gain or loss * * * shall be recognizes, except as hereinafter provided in this section. (b) Exchanges solely in hind. — • »****»» (3) Stock iron stock on keoeganization. — No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of *1100reorganization', exchanged solely ior stock or securities in such corporation or in another corporation a party to the reorganization. * ⅝ * ⅜ * * * (i) Definition of reorganization. — As used in this section * * * (1) The terra “ reorganization ” means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the yoting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred * * *. (2) The term “ a party to a reorganization ” includes a corporation- resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the yoting stock and at least a majority of the total number pf shares of all other classes of stock of another corporation.
108DECISIONS OF NATIONAL LABOR RELATIONS BOARDAndrews Wire CorporationandUnited Steelworkersof America,AFL-CIO. Cases 11-CA-4239 and11-CA-4312March 19, 1971DECISION AND ORDERBY CHAIRMAN MILLER ANDMEMBERSFANNING AND JENKINSOn October 16, 1970, Trial Examiner LowellGoerlich issued his Decision in the above-entitledproceeding, finding that the Respondent had engagedin and was engaging in certain unfair labor practicesand recommending that it cease and desist therefromand take certain affirmative action, as set forth in theattached Trial Examiner's Decision. He also recom-mended that certain allegations of the complaint bedismissed. Thereafter, the Respondent filed excep-tions to the Trial Examiner's Decision and a support-ing brief.Pursuant to the provisions of Section 3(b) of theNational Labor Relations Act, as amended, theNational Labor Relations Board has delegated itspowers in connection with this case to a three-memberpanel.The Board has reviewed the rulings of the TrialExaminer made at the hearing and finds that noprejudicial error was committed. The rulings arehereby affirmed. The Board has considered the TrialExaminer's Decision, the exceptions and briefs, andthe entire record in this case, and finds merit in certainof the exceptions.' Accordingly, the Board adopts thefindings, conclusions, and recommendations of theTrial Examiner only to the extent consistent herewith:1.We agree with the Trial Examiner's findings, forthe reasons stated in his Decision, that Respondentviolated Section 8(a) (3) and (1) of the Act bydischarging employee Brantley, and Section 8(a) (1)by taking the organizer committee sheet from him andby interrogating him concerning his union activities.2.We do not adopt the Trial Examiner's findingthat the discharges of employees Tisdale, Altman,Green, Nesbitt, and Casselman violated Section 8(a)(3).All these discharges resulted from a common setof facts and the same cause.At the time the above employees were hired, theywere given safety glasses and hard hats which theywere told must be worn at all times. The hats are madeofmetal and have a bright aluminum color. Theemployee's name is affixed to the front of the hatabove the brim. The particular hat was chosen byRespondent because of its bright lustre which made itIWe find nomerit in Respondent's exceptionto the TrialExaminer'sfailure tomake separate findings of fact and conclusionsof law in thisconsolidated proceeding The recordshows,and the TrialExaminer found,thatRespondent was awareof all the issuesraised in the consolidatedcomplaint, that its answerdenied thecommission of all unfair laboreasier tospot in the mull, where lighting is poor. It alsoprotects the employeefrom fallingobjects.On July 2, 1970, some employees attached redstickerswith blacklettering"Go, Steelworkers" totheir hard hats. At the request of a leadman, theemployees removed thestickers.On July 7, 1970,employees on the third shift attached circular unioninsignia, about 2 inchesin diameter, to their hard hats.The next day, Plant Superintendent Powell noticedthe insignia"all over [the] safety hats" of the third shiftemployees. At the end of the shift, Powell observedthat the first shift employees had also appended theinsigniato their hats.He informed Plant ManagerSchlett of this fact. Schlett told Powell to tell theemployees who had attachedthe insigniato their hats"to please remove them." Powell asked the employeeson the first shift who had attached the unioninsigniato their hats to take them off. He said that the hat wasa safety hat and company property. He also threat-ened to discharge employees who refused to removethe insignia.Some employees said they would notremove theinsignia.Powell recounted this attitude toSchlett who told Powell to "Go back and talk to themlike a damn Dutch Uncle and tell them to take themoff . . . Don't threaten them, just tell them to takethem off." Powell reported back to Schlett that someemployees still refused to remove the insignia. Schlettthen assembled the first shift employees, told them thehelmets were for their own safety, admonished themnot to "mark up safety glasses or the helmets," andwarned themthat unlessthe stickers were removed by12:30 p.m. that day, their jobs would be in jeopardy.During his talk Schlett also told the employees thatthey couldwear a unionbadge or stickers anywhereon their clothing, but not on the hat. After Schlett'sspeech, employees Altman, Tisdale, and Green on thefirst shift still refused to remove the insignia fromtheir hats when requested to do so. They were thendischarged.When General Foreman Haselden of thesecond shift arrived, Powell acquainted him with thedischarges that had occurred among employees of thefirst shift, and told him to advise his employees ofwhat had occurred on the first shift and try to have thesecond shift employees remove theinsigniafrom theirhats.Haselden assembled his shift employees, toldthem of the employees discharged on the first shift forrefusal to remove the stickers, advised them to removethe stickers, and threatened with discharge anyemployee who refused to do so. All employees exceptNesbitt and Casselman removed the stickers. Nesbittand Casselman were thereupon discharged.practices alleged in all pertinent paragraphs and subparagraphs therein,and at the hearing Respondent was affordedeveryopportunity to presentevidence and introduce defenses The consolidation also was in accordancewith the Board's Rules and Regulations and resulted in no prejudice toRespondent189 NLRB No.24 ANDREWS WIRE CORPORATION109The Trial Examiner found that during the period ofthe hard hat incident the employees had worn unioninsigniaon their clothing without restriction.InStandard Oil Company of California,168 NLRB153, a case whose facts are practically identical withthose in the present case, the Board found that anemployer had not violatedSection 8(a)(3) and (1) oftheAct by disciplining employees who refused toremove union emblems from their safety hats. TheBoard explained:"On the facts presented by this record, we cannotsay,as urged by the General Counsel and theCharging Party, that the maintenance and enforce-mentof the Respondent's rule againstadornment ofthe safety hats violatedSection 8(a)(1) or (3), simplybecause the decorationsin issue wereunion emblems.The Respondent established that it hada legitimate,longstanding, and not unwarranted concern about thethreat to safety posed by the use of unauthorizeddecorations on work hats. Furthermore, the evidenceshows that employees were freely permitted to wearemblems signifying union affiliation on any part oftheir clothing except their safety hats."In the presentcase,as inStandard Oil,theEmployer showed that it had a legitimate and notunwarranted concern about the threat to safety posedby the use of unauthorized decorations on work hats.Respondent picked the bright lustre for the safety hatso that it could be seen in the dim light of the mill.Respondent feared that if employees were permittedto attach to the hat insignia of less bright colors, assome employees did, visibility of the hat and conse-quently the safety of employees would be impaired.According to Respondent, employees had pastedstickers all over their hats and they were not limited tothe ones illustrated by the Trial Examiner. In thesecircumstances,we are not prepared to say thatRespondent's expressed concern with safety in direct-ing removalof union insigniafrom the safety hats wasnot legitimate.Although, in this case, unlike inStandard Oil,the rule was not of longstanding, thiswas because the plant itself was recently established.Further, again as inStandard Oil,the Employer toldthe employees that they could wear union insignia onany item of clothing except the safety hat, and in factthey did so.2 Finally, the reasonable efforts made byRespondent to persuade the employees to complywith the rule and to remove the union insignia fromthe hats before resorting to disciplinarymeasures alsonegatesthe Trial Examiner's conclusion that Respon-dent instituted the rule against wearing unioninsigniaon safety hats, and discharged employees for refusingto comply therewith, for the purpose of discouragingmembership in a labor organization. Accordingly, weshall dismiss the allegation of the complaint based onthe rule and the discharge of employees who refusedto comply herewith.AMENDED CONCLUSIONS OF LAWDelete the names of George R. Tisdale, William L.Altman, Sylvester A. Green, Julius B. Nesbitt, andRichard L. Casselman from the Trial Examiner'sfourth Conclusion of Law.ORDERPursuant to Section 10(c) of the National LaborRelationsAct, as amended, the National LaborRelations Board hereby orders that the RespondentAndrewsWire Corporation,Georgetown, SouthCarolina, its officers, agents, successors, and assigns,shall take the action set forth herein:1.Cease and desist from:(a)Discouraging membership in United Steelwork-ers of American, AFL-CIO, or in any other organiza-tion, by discharging any of its employees or discrimi-nating in any other manner in regard to their hire ortenure of employment or any term or condition ofemployment.(b)Unlawfully taking organizer committee formsfrom employees.(c) In any like or related manner interfering with,restraining, or coercing its employees in the exerciseof the right to self-organization, to form labororganizations, to join or assist United Steelworkers ofAmerica, AFL-CIO, or any other labor organization,to bargain collectively through representatives of theirown choosing, and to engage in other concertedactivities for the purpose of mutual aid or protectionand to refrain from any or all such activities.2.Take the following affirmative action which theBoard finds will effectuate the policies of the Act:(a)Offer Robert T. Brantley immediate and fullreinstatement to his former position or, if suchposition no longer exists, to a substantially equivalentposition,without prejudice to his seniority or otherrights and privileges, and make him whole for any lossof pay that he may have suffered by reason of theRespondent's discrimination against him in accord-ance with the recommendation set forth in the sectionof the Trial Examiner's Decision entitled "TheRecommended Remedy."(b) Preserve and, upon request, make available tothe Board or its agents, for examination and copying,all payroll records, social security payment records,timecards, personnel records and reports, and allother records necessary to analyze the amount ofbackpay due under the terms of this Order.2The Trial Examiner sought to distinguish theStandard Oilcase on anumber of grounds,allofwhichwe find to be without merit. 110DECISIONS OF NATIONALLABOR RELATIONS BOARD(c) Notify immediately the above-named individual,if presently serving in the Armed Forces of the UnitedStates,of the right to full reinstatement, uponapplication after discharge from the Armed Forces, inaccordance with the Selective Service Act and theUniversalMilitaryTraining and Service Act, asamended, after discharge from the Armed Forces.(d) Post at its Andrews, South Carolina, plant copiesof the attached notice marked "Appendix." 3 Copiesof said notice, on forms provided by the RegionalDirector for Region 11, after being duly signed by theRespondent's representative, shall be posted by itimmediately upon receipt thereof, and be maintainedby it for 60 consecutive days thereafter, in conspicu-ous places, including all places where notices toemployees are customarily posted. Reasonable stepsshall be taken by Respondent to insure that saidnotices are not altered, defaced, or covered by anyother material.(e)Notify the Regional Director for Region 11, inwriting, within 20 days from the date of this Order,what steps the Respondent has taken to complyherewith.IT IS FURTHER ORDERED that the amended complaintbe, and it hereby is, dismissed insofar as it allegesviolations of the Act other than those found in thisDecision.3 In the event that this Order is enforced by a Judgment of a UnitedStates Court of Appeals,the words in the notice reading "Posted by Orderof the National Labor Relations Board" shall be changed to read "PostedPursuant to a Judgment of the United States Court of Appeals Enforcingan Order of the NationalLaborRelations Board "APPENDIXNOTICE TOEMPLOYEESPOSTED BY ORDER OF THENATIONAL LABORRELATIONS BOARDAn Agencyof the United States GovernmentThe National Labor Relations Board, after ahearing in which all parties were permitted tointroduce evidence, found that we discharged RobertT. Brantley unlawfully in that by this discharge wediscouraged employees from becoming and remain-ing members of the United Steelworkers of America,AFL-CIO, and that this discharge violated theNational Labor Relations Act.WE WILL give this employee back his job or, ifhis job no longer exists, a substantially equivalentjob.WE WILL restore his seniority and pay him thebackpay he has lost because we discharged him.WE WILL NOT discharge any employee for thesame reasons for which the Trial Examiner foundthat we discharged the above-named employee.WE WILL NOT unlawfully discharge employeesfor lawfully engaging in union activities.WE WILL NOT take away any organizer commit-tee forms from any employee without his consent.The Act gives all employees these rights:To organizethemselves;To form, join, or help unions;To bargain as a group through a represent-ative they choose;To act together for collective bargainingor other mutual aid or protection; andTo refuse to do any or all of these things.All of you are free to become or remain or refrainfrom becoming or remaining members of any labororganization.ANDREWS WIRECORPORATION(Employer)DatedBy(Representative)(Title)We will notify immediately the above-namedindividual, if presently serving in the Armed Forces ofthe United States, of the right to full reinstatement,upon application after discharge from the ArmedForces, in accordance with the Selective Service Actand the Universal Military Training and Service Act.This is an official notice and must not be defaced byanyone.This notice must remain posted for 60 consecutivedays from the date of posting and must not be altered,defaced, or covered by any other material.Any questions concerning this notice or compliancewith its provisions may be directed to the Board'sOffice, 16th Floor Wachovia Building, 301 NorthMain Street, Winston-Salem, North Carolina 27101,Telephone (760)384-2981.TRIAL EXAMINER'S DECISIONSTATEMENT OF THE CASELOWELL GOERLICH, Trial Examiner: A charge in Case11-CA-4239 was filed by the United Steelworkers ofAmerica, AFL-CIO, herein referred to as the Union, onMay 19, 1970, and served on the Andrews Wire Corpora-tion,the Respondent herein,on the same date.A complaintand notice of hearing were issued on June 30,1970. In thecomplaint it was alleged that the Respondent violatedSection 8(a)(1) of the National Labor Relations Act, asamended, herein referred to as the Act, by unlawfullyinterrogating an employee concerning his union sympa-thies, activities,and desires and took without consent aunion authorization form from an employee.It is furtheralleged in said complaint that the Respondent discharged ANDREWS WIRE CORPORATION111Robert T.Brantley in violation of Section 8(a)(3) of theAct.The charge in Case I 1-CA-4312 was filed bythe Unionon July 13,1970, and was served on the Respondent on orabout the same date.An order consolidating cases,complaint,and notice of hearing was issuedon July 23,1970, in Cases11-CA-4239 and 11-CA-4312. Theconsolidated complaint incorporated the allegations in thecomplaint issued in Case 11-CA-4329 andadded allega-tions that the Respondent had unlawfully threatened todischarge employees who wore union insignia and hadunlawfully dischargedGeorge R. Tisdale,William L.Altman,SylvesterDock Green,Julius B. Nesbitt, andRichard L.Casselmanon July8, 1970.1The Respondent filed timely answer denying that it hadengaged in or was engaging in any of the unfair laborpractices alleged.The consolidated cases came on forhearing on August11, 12, and 13,1970, at Georgetown,South Carolina.Each party was afforded a full opportunityto be heard,to call,examine,and cross-examine witnesses,to argue orally on the record,to submit proposed findingsof fact and conclusions,and to file briefs.All briefs havebeen carefully consideredby theTrial Examiner.Upon the whole record2and upon his observation of thewitnesses,the Trial Examiner makes the following:FINDINGSOF FACT, CONCLUSIONS, ANDREASONS THEREFOR1.THE BUSINESS OF THE RESPONDENTThe Respondent is a Delaware corporation with a plantlocated at Andrews, South Carolina, where it is engaged inthe manufacture and sale of wire. The Respondent duringthe past 12 months, which period is representative of alltimes material herein, received goods and materials valuedin excess of 50,000, which goods were shipped to itsAndrews, South Carolina, plant directly from points andplaces outside the State of South Carolina. During the sameperiod of time Respondent produced and shipped goodsvalued in excess of 50,000 from its Andrews, SouthCarolina, plant directly to places and points outside theState of South Carolina.The Trial Examiner finds that the Respondent is now andhas been at all times material herein an employer engaged1While the Respondent posed no objection at the heanng to thesimultaneous receipt of evidence in respect to the consolidated cases, theRespondent objected to the trial of the cases as consolidated cases TheRespondent maintained that since the complaint in Case 11-CA-4312 hadnot been withdrawn,a tnal should have been conducted in each case and aseparate decision drawn for each caseThe Trial Examiner overruled the Respondent's objections at thehearing with the stipulation that the Trial Examiner would reconsider hisruling if the question was raised at the close of the hearing and would drawtwo decisions as requestedby theRespondent in the event it was hisopinion that the Respondent's objections were well taken In its brief to theTrial Examiner the Respondent has statedRespondent at the hearing and at the present time does not assertthat the cases should be severed for purposes of hearing On thecontrary,Respondent agrees that such a severance would createunnecessary cost ordelayWhat Respondent contends is that eachcase should be considered on its merits standing alone with separatefindingsof fact and conclusions of law To hold otherwise,Respondent contends that it has been denied substantive andin commerce within the meaning of Section 2(6) and (7) ofthe Act.II.THE LABOR ORGANIZATION INVOLVEDUnited Steelworkers of America, AFL-CIO, is now andhas been atall times materialherein a labor organizationwithin themeaning ofSection 2(5) of the Act.III.THE UNFAIR LABOR PRACTICESA.The Discharge of Robert T. BrantleyRobert T. Brantley was hired by the Respondent onMarch 2, 1970, and was discharged on May 11, 1970. At thetime of his discharge he was performing the work of apickler. In performing this job, Brantley used an overheadcrane to place wire in an acid tank where the wire wascleaned of rust. After the rust was removed, the wire wasrinsed and put in Borax or lime to preserve the wire fromfurther rusting. It was then placed in a dryer for 15 minutesafter which it was hung on racks. While the wire lay in theacid it was Brantley's responsibility to see that it did notbum .3 Since the job did not require constant attendance,Brantley had considerablefree time.Out of the 8-hour day,Brantley estimated that he worked 5 hours. When his workwas caught up "most of the time, [he] would just walkaround the mill or sit back in the crane."Brantley had no established time during the 8-hourworkday which was specifically set aside for a luncheonbreak. This was also true of other employees who werepermitted to take a 15-minute luncheon break at any timeduring the 8-hour workday providing that they wererelievedby another employee and their jobs werecontinued. By reason of the nature of Brantley's job, heneeded no relief during his luncheon break.Brantley normally took his luncheon break in noparticular place.Sometimeshe ate in the crane; other timeshe walked outside the plant to eat. Most of the time he ateat 12 noon; however, he had no set lunchtime nor had hebeen instructed where or when to eat his lunch.Brantley joined the Union on April 25, 1970. On May 10,1970, Brantley attendeda union meetingand signed an"organizing committee sheet." He carrieda similarsheet tothe plant on Monday morning, May 11, 1970.On Monday morning, about 10:30 a.m., Brantley ran outproceduraldue process of lawAt most the objectionswhich are raisedby the Respondentare technicalobjectionswhich do notraise a matterwhich maybe deemed to beprejudicialto the Respondent In respect to the issues raised in theconsolidated complaint,as well as the complaintoriginally issued in Case11-CA-4312, itisclear that the Respondenthas been afforded everyopportunityto present evidence and introduce defensesThe consolidationof the casesappears to havebeenin accordwiththe Board'sRules andRegulationsAccordingly,sincethe TrialExaminer finds noprejudice totheRespondent in the consolidation and hearing of these cases theobjections of theRespondent are overruled2General Counsel'smotion to correct transcriptisgranted and thetranscript is corrected accordingly.3DanielW Schlett, generalmanager of the Respondent, testified inreferenceto Brantley's job "That job isa little unusualin that respect, thatifyouhad matenal in the acid,you don't haveto stand over and watch it,but shouldbe aware that it's thereand close byto take care of it,because itcould bum " 112DECISIONS OF NATIONAL LABOR RELATIONS BOARDof work and, having heard that "they had run some badwire over on the graveyard shift Friday," he departed to asksomebody about it. As he proceeded through the plant,GeneralManager Schlett, who with several others wasinspecting reject wire,motioned him to come to him."Robert," Schlett said, "I understand you're hot and heavyfor the Union." Brantley replied, "I wouldn't say I'm hotand heavy for it. I'm a member of it, would you like to seemy card?" Schlett said, "No sir, that's okay."During the conversation Schlett asked Brantley why hewanted a union "to come to Andrews Wire." Brantleyanswered, "[S]eniority and the hike in pay." Schlettcommented that "he had worked in mills that didn't haveUnions and he found that they always got along betterwithout a Union."4At 12 o'clock Brantley went to the canteen where heobtained a drink and a sandwich. He walked out of theback door of the plant where he met employee JimmyWard. Ward said that he understood that Brantley had apaper for him tosign.Brantley replied that Ward could notsign it then because he was working but that he would"catch" him after work. Brantley returned to the canteenfor another sandwich and a drink. He again passed Wardwho told him that there was a boy in his car who was eatinghis "dinner" and wanted to sign the paper. Brantleyproceeded to the car. While Brantley and the boy, employeeRichard L. Casselman, were seated in the car finishing theirlunch,ChasteenM. Powell, plant superintendent, ap-proached the car. The organizing committee sheets lay onthe front seat between Brantley and Casselman. Powell"reached through the window and grabbed the paper" andsaid, "Let me see this." Brantley said, "No" and grabbedfor the paper. In this contest the paper was torn. Powell wasable to retain the paper which he delivered to Schlett.Brantley finished eating his "dinner" and returned insidethe plant about 12:15 p.m.Powell reported to Schlett6 that he had observed Brantleyand Casselman sitting outside the plant in Jimmy Ward'scar with a piece of paper; that he had reached into theautomobile and said, "Robert, I want that piece of paper";that he had picked up the paper and walked away. At 14Schlett testified"Isaid,Robert,there's a rumor around here thatyou're hot for the UnionIsaid,Now, I don't put much stock inunions-or, rather,rumors-and you don't have to answer me about it,you don'thave to tell me anything,but if you are, then there's reason forcomplaintDo you have any complaints? He said,No He said, But I aminterestedin the Union, I'll even show you my Union card I said, No, noproblem He said,Iworked at another plant that had a union and I preferto have one here I said, Well, that's your decision You've been a goodworker Continue to be a good worker "5The following appeared on the organizing committee sheetIhereby request to be a Voluntary Organizer for the UnitedSteelworkers,AFL-CIO Thiswill authorize the Representative for saidUnion to use my name for the purpose of organizing Andrews WireCorp This will include sending my name to the Company with a copyto the National Labor Relations Board.Also to be used in the signingof leafletsNameDate6 Schlett testified that Powell called him and said that Brantley was in acar parked outside the plant with Casselman soliciting for the UnionWhen asked whether Brantley was doing the soliciting,Powell answered"Apparently so "rSchlett testified-Robert,this could be seriousDo you want a witness in here oranybody to listen to what's going on? And he said, No I said, Do yourealize you're not allowed to carry on activities for the Union ono'clock Powell returned the paper to Brantley on Schlett'sinstructions, at which time Powell directed Brantley to go toSchlett's office.In Schlett's office Schlett said that he couldn't under-stand Brantley's "carrying a paper around the mill oncompany time and trying to get signatures on it." Brantleyreplied that he wasn't on company time, that he was on hisluncheon break. Powell remarked that Brantley had notbeen relieved for dinner, to which Brantley responded, "Ihad never been relieved for dinner and that I didn't have areliever."Powell observed that that made no difference,"you still haven't been relieved for dinner." Schlett added,"I can't tolerate this, you carrying a paper around the milltrying to get signatures on it. If I let you get by with it,everyone in the mill will be wanting to do it." He looked atPowell and said, "[C] all up his time." Brantley responded,"Mr. Schlett, this is the first time I've ever been fired off ajob." Schlett replied, "you're a good worker, I'll recom-mend you to anotherjob.... I'm letting you go on accountof you was performing Union activities on Companytime." 7In his testimony Schlett cited the following reasons forthe discharge of Brantley: "Interfering with production ofthe plant, engaging in other than company activities onworking hours. . . . Soliciting for the Union. . . .Acquiringnamesfor union support."The Respondent maintained no defined break periodsbut as noted above allowed employees a 15-minute eatingbreak during the 8-hour workday to be taken when jobswere properly relieved. As was also noted above Brantley'sjob neither required a relief nor constant attendance.Additionally, the Respondent did not maintain a solicita-tion rule of any kind.Based upon the credible record, the Trial Examiner isconvinced that at the time Brantley was engaged insoliciting employee Casselman as a signer of the organizingcommittee sheet, he and Casselman were properly on theirluncheon breaks, a fact which Schlett knew when hedischarged Brantley.8However, even though the Respondentdid not know that Brantley was on his luncheon break butCompany time?He said,Well, they toldme I coulddo it I said, Whotold you? He said, The Union.I said,They told you you could do thison Companytime?And he didn'tanswer He said,Well, they told meIcoulddo it on lunch and break I said, Wereyou on lunch? He said,No, butIwas on break.I lookedatChasteen,said,Was heon break? And hesaid,No I said,Robert, I find that hard to believe because I saw you walking aroundthemill this morning myself as long as your normallunch or break, sohow could you be on break? And he didn't say anythingI said, I'mgoing tohave to dischargeyou, andI said, I won't blackballyou, I'llrefer you toanother job,but if I let you getawaywith this, theneverybody will be doingwhatevertheywanton Companytime.Doyou think that's fair?And he said,Yes And heleft and got his,checkHe told me he wasn't talking aboutUnion toWinston Boyd Hesaid,You canbelievemeor not,Iwas talking to those people aboutsomething elseYou can believe that or not.Isaid,Well, that'simmaterial.Powell's testimony was substantially the same as that of Schlett.He notedthat Schlett asked Brantley whether hewas "onlunch"According toPowell Brantley did not answerIn drawing his findings, the Trial Examiner has not considered Schlettas a reliable witnessaThe TrialExaminer credits Brantley's testimony that he related toSchlett that he was on his luncheon break and credits Casselman's ANDREWS WIRE CORPORATION113mistakenly believed he was not, the Respondent may notescape from being charged with a violation of the Act."In sub Section 8(a)(1) is violated if it is shown that thedischarged employee was at the time engaged in a protectedactivity, that the employer knew it was such, that the basisof the discharge was an alleged act of misconduct in thecourse of that activity, and the employee was not, in fact,guilty of that misconduct."N.L.R.B. v. Burnup and Sims,Inc.,379 U.S. 21, 23. Brantley, in fact, was not guilty of themisconduct charged and at the time when his cause fordischarge was alleged to have arisen, he was engaging inactivitiesprotectedby Section 7 of the Act as wasevidenced by the paper purloined by Powell.9 Thus hisdischarge must be deemed unlawful. Accordingly, in thatthe discharge of Brantley for engaging in protected unionactivities discouraged membership in a labor organization,the Respondent thereby violated Section 8(a)(1) and (3) ofthe Act.The Trial Examiner further finds that the Respondent, bySchlett's coercive interrogations of employee Brantley asabove detailed, interfered with, restrained, and coercedemployees in rights guaranteed by Section 7 of the Act toand thereby the Respondent violated Section 8(a)(1) of theAct.The Trial Examiner further finds that the Respondent, byPowell's purloining of the union authorization form asdetailed herein, an act inherently destructive of importantemployee rights, interfered with, restrained, and coercedemployees in rights guaranteed by Section 7 of the Act andthereby the Respondent violated Section 8(a)(1) of the Act.B.The Hard Hat Incident and the Discharges ofGeorge R. Tisdale,William L. Altman, Sylvester"Dock"11 Green, Julius B. Nesbitt, and Richard L.CasselmanAt the time employees George R. Tisdale, William L.Altman, Sylvester A. Green, Julius B. Nesbitt, and RichardL. Casselman, among others, were hired they were handedhard hats. These hard hats resembled a helmet with a billand were of an aluminum color. The employee's name inwhite letters on red plastic tape about one fourth inch highappeared above the bill. According to General ManagerSchlett the hat was chosen because of its bright lustre whichmade it "easier to spot" than most of the other hatsconsidered. Schlett explained the dual purpose of the hats:"Number one, for identification and you can see the man;number two, if something should fall on him or hit him onthe head, he's protected. It's a dual purpose, I would say theformer more so than the latter. Because there are areaswhen you're dealing with a lift truck that somebody couldbe missed and hit with a boom."The credible evidence reveals that the employees weregiven no specific instructions governing the wearing of thehats. Employee Tisdale had pasted a small red sticker onthebackofhishat inscribedwithblack letters,testimony that Brantley came to the car with a drink and a sandwich in hishand9 Sect,on 7 grants employees,inter alia,"the right to self-organization,to form, join, or assist labor organizations "N L R B v Burnup andSims,Inc, supra,23iiiSchlett's interrogations were oppressiveThey served no legitimate"Flammable,close valve when not in use." EmployeeJimmy Haselden's hat bore a green sticker on the back withthe words"lard ass"on it.Leadman Walter Fulton andemployee Douglas Lambert painted Lambert's hat black.On July 2, 1970,some employees attached red stickerswith black lettering"Go, Steelworkers"to their hats.Leadman Fulton relayed to these employees that ForemanHaselden was going to ask them to take them off and that"he wasn'tordering[them] to take them off,but if anyCompany official saw it,itmight get him in hot water." Theemployees removed the stickers because they"didn't wantto get Mr.Haselden in any trouble."A circular union insignia,about 2 inches in diameter,appeared for the first time onJuly 7.Employees on thethird shift had appended the insignia to their hard hats. The2-inch diameter insignia was of paper composition, white,edged in blue with a 1-1/4-inch-diameter blue circle in thecenter.In the blue circle appeared the word "Join" in whiteletters.Around theinsignia in the surrounding whitesurfacewas inscribed"AFL-CIO-CLC United SteelWorkers of America"in red letters. An exact copy, exceptfor the coloring,is set out below.About 3 o'clock on the morning of July 8, 1970, PlantSuperintendent Powell noticed "practically all of the thirdshiftwith union stickers and insignia all over their safetyhats." About 10 o'clock, some timeafter the third shift hadended,Powell informed PlantManager Schlett thatfirst-shift employees had appended union stickers to theirhard hats. Schlett instructed Powell to "tell those peoplethat had union stickers on their safety hats to please removethem." About 10 first-shift employees were displaying theunion insignia on their hats.According to Powell, he first spoke to Altman, whom hetold to remove theunion insigniafrom his hat; "that thiswas a safety hat and company property." Altman addedthat Powell said, "If you want yourjob, you'll have to takeemployer purpose but soughtinformation most usefulfor discriminationand for combatingunion organizationSeeProfessional Tape Company,Inc,171NLRB No 61, affdN LR B v Professional Tape Co, Inc,422F 2d 989 (C A 7).ii"Dock"was a nickname 114DECISIONS OF NATIONAL LABOR RELATIONS BOARDthat sticker off your hat." Nearby were George Martin andRandy Tisdale 12 who were also wearing the union insigniaon their hats. Martin removed his insignia. Powell askedTisdale to inform "Dock" Green to remove his stickers.Next Powell asked employees Hemstraw, Rudolph,Cooper, and Brand "to remove the Union stickers off theirsafety hats, that this was Company property and wecouldn't allow to have Company property-it was jeopard-izing our insurance." 13 All of these employees removedtheir insignia.Powell then approached "Dock" Green and "asked himto remove his Union stickers from his safety hat." Greenrefused.Whereupon Powell said, "Dock, you have until 12o'clock to take them off." 14Powell also instructed Leadmen Radcliffe and Harring-ton "to make sure that everybody in the plant got the wordto remove the stickers from their safety hat." Harringtonreported to Powell that all the men under his supervisionhad removed their insignia; Radcliffe reported thatAltman,Green, and Tisdale continued to display theinsigniaon their hard hats. Powell informed Schlett.According to Schlett he told Powell to "Go back and talkto them like a damn Dutch Uncle and tell them to takethem off. . . . Don't threaten them, just tell them to takethem off." Powell reported that the employees refused.Schlett gave instructions to get the shift together.A meeting of the entire first shift was held in the dyeroomat which Schlett addressed the employees.On cross-examination Schlett testified that he said:Take those things off your helmets for your own good,for your own safety. Don't ever mark up safetyglassesor the helmets. I said to have them off by 12:30 or you'lljeopardize your job. They still refused to take them off.13I told them we got that color of helmet because it hasa good lustre. I said, if you mark them up or you putUnion stickers on there or Joe's Diner signs on there-ifyou mar those things up and lift truck hits you, the firstthing the insurance company will say to us is why didwe let you do it, and I'm not going to answer that.You're going to take them off.On direct examination, which occurred after the GeneralCounsel had produced other witnesses on the point, Schlettremembered that he said that his talk was not "regardingunion or management" but was "regarding an attitudewhich [he thought was] apparent"; they were "acting likehigh school kids." He said, "We asked you severaltimes totakethose damn things off your helmets and you wouldn'ttake themoff." Schlett continued:That's a safety device for your own protection. Thecolor is that color for areason,and if we let you putthose stickers on-because I saw them at thistime-somebody could put Joe's Diner on the damnthing.Now, just take them off. I told them that I wasdamn dissatisfiedwith the attitude. I said, It doesn'tbother me one damnbit-if you want a union, you12Tisdale testified, "He. asked us to take them[union insignia] off,itwas Company property..Itmeans your job."13Powell's testimonydeserve it, but I didn't like the attitude or the way theywere going about it.I said I was under the impression that I'd moved to arural area where people were independent. Most ofthem were used to work, they'd work on the farms, andI couldn't understand this attitude to save my ass.I told them there's been rumors of threats about logsfalling on people, and I said if somebody threatened melike that, I'd knock them flat on their ass right now.I told them they had until 12:30 to get their stickersoff. I said, Don't jeopardize yourjob with something sodamn idiotic. I said, You can wear them on your ass,you can wear them on your shirt, you can wear them onyour shoes, but not on your helmet. It's our propertyand it's safety equipment. Two things you don't foolwith are safety glasses and those helmets. I told themthey had until 12:30. I said, Get them off.I said that we will manage this plant. If they get me inthe corner they're going to have a damn tiger by the tailbecause we'll stillmanageit,union or no union. I said,If you want a union, get it, but don't act like a damnhigh school kid.Altman remembered that Schlett had said that "he wouldrather none of us would try to back him up in a cornerbecause if we did he would knock us, our damned ass, onthe floor. Even if it cost him his job." Schlett said, "Pull thestickers off your hats or hit the road."Tisdale remembered that Schlett said that they weregreen and greedy and a bunch of farm boys "who didn'tknow what they wanted." "He didn't know what [they]wanted the Union for." Schlett also said, "nobody wasgoing to back him up in the comer and if they did they hada tiger by the tail. And if anybody tried it, he'd knock themon their ass. And he didn't give a f- who did it, even if itmeant his job." Schlett said that the employees could wearunion insigniaon their "clothing," or their "shoes," and ontheir "butts" but not the hard hats. Schlett also told theemployees that the hard hats were issued for safetypurposes. At one point Schlett said whether the employeeshad a union was up to them.Green remembered that Schlett said that the employeeswere a greedy bunch offarmboys who did not know whatthey wanted; that "the Union didn't run that plant, that itnever will, that he run it." Green also remembered the tigersimile.Employees were also asked to remove the stickers orthey "had to go." Schlett also said the hard hats were"Company property."Powell testified Schlett "started off by saying,Men, I amsurprised at you jeopardizing your job by not removingsuch a small thing as a Union sticker from your safety hat.He said, I don't know what you want by acting as greedy asyou're acting. He said, All these threats I've been hearingabout trees falling on people's cars.He said, If somebodybacks me in a corner I'll knock them on their butt. (Excepthe just said the other word.) . . . I want all the Unionstickersoff the hats by 12:30. . . . These hatsand glasses14Green testified that he told Powell that "if the rest of them pull offtheirs, I'll pull off mine." ANDREWS WIRE CORPORATION115were issued to you for safety and they would be treated assuch...You can wear a Union badge or sticker anywhereon your clothing-knees, feet, butt, shirt,-anywhere, aslong as you don't put it on your hat."Employee Albert M. Lambert, a witness called on behalfof the Respondent, testified Schlett said:the hard hats were company property and you couldn'twear anything on your hard hats other than your joband your name. He gave everybody till 12:30 to getthem off there. . . . you could wear Union badgesanywhere on your body-your feet, your butt, yourelbow-it doesn't matter where you wore them otherthan your hard hat. He said he'd heard threats abouttrees falling on cars and things like that. He said nobodywas going to back him in a corner because if they did,they'd have a tiger by the tail and he'd knock them ontheir ass . . . He said . . . something about "green andgreedy."After Schlett's speech Foreman Henry G. Radcliffe, Jr.,approached Altman and according to Radcliffe, Jr., hesaid, "Bill, I see you've taken the stickers off your hat."Radcliffe, Jr., described the incident. "And he kind ofsmiled and put his hat back on his head like that and saidyep, and it was under the brim." 15 Radcliffe, Jr., alsocontacted Tisdale and Green and reported to Powell thatthe three employees had refused to remove the unioninsignia from their hats. Powell then went to each employeeand asked him whether he was going to remove the insignia.Each answered in the negative. Powell then requested themto report to the office where, according to Powell, he askedthem whether they understood the speech of Schlett"pertaining to them removing the Union stickers from theirhats."All answered, "Yes." Whereupon the employeeswere instructed to punch out and leave their hats on thedesk. They placed their hats on the desk but Tisdale refusedto punch his timecard. Powell signed out each employee,making the appropriate entry on his timecard.During the exit conversation Altman, whose unioninsignia was concealed under the bill of his hat, said that he"didn't see how the sticker could hurt." Powell replied, "I'mnot holding conversation. Take the sticker off your hat."Altman said, "No." "Put your hat on the desk," respondedPowell.When the general foreman of the second shift, WilliamBeckman Haselden, arrived at the Respondent's plant,Powell acquainted him with the discharges which occurredduring the first shift and told him to advise his employees"of the situation that had developed, and attempt to havethem remove these insignia from their hats." Three-fourthsof the employees on the second shift were wearing theunion insignia on their hard hats.Haselden assembled the employees and asked them toremove the insignia from their hats as they had done before.He called attention to the fact that three men on the15Altman testified that he placed the union sticker under the billbecause he "didn't think there was any harm in it "16The time in the letters to Altman, Tisdale, and Green was stated as12.45 p in17SeeRepublic Aviation Corporation v N L R B,"the right of employees to wear unioninsigniaat work has long beenrecognized as a reasonable and legitimate form of union activityFloridan Hotel of Tampa, Inc,137 NLRB 1484, 1486, enfd as modified onmorning shift had been fired for refusing to remove theunion stickers from their hats. He said, "I'm just telling youyou're going to have to take them off . . . or you can befired . .. I'm going to let you all talk it over amongyourselves. Let me know what you decide to do." Thereason given by Haselden for removing the stickers was"the hats were company property." Haselden also said that"the best thing to do would be to take them off becausewhat the Company was trying to do was postpone [the]electione l e c t i o n .The employees discussed the matter among themselvesand all removed the stickers except Nesbitt and Casselman.Haselden then contacted Casselman and told him that inhis opinion "he was jeopardizing a good job over a piece ofpaper that was inconsequential. The union election was Iweek off, he should not do it, I though he was making agrave error in judgment." Casselman responded that he"thought he was doing right." Casselman's timecard waspunched out at 3:05 p.m. and Nesbitt's, at 4:16 p.m.On the same date Lambert was requested by theCompany to remove the black paint from his hat which hedid by dropping it in an acid tank.The employees had affixed the union insignia to theirhard hats upon the advice of the Union. During the periodof the hard hat incident the employees had worn otherunion insignia without restriction.Employees were not required to sign for the hard hatswhen they were given to them nor were they required toleave the hat when they left the Respondent's premises atthe end of a shift. There were no restrictions againstwearing the hat for fishing or hunting or "anywhere else."The parties stipulated that a representation election wasconducted on July 15, 1970; 33 ballots were cast for theUnion, 18 against the Union, and 11 ballots werechallenged.Each of the employees were given a letter which read:Your employment with Andrews Wire Corporation isterminated as of 3:00 p.m.,16 July 3, 1970. Reasons fortermination of employmentare asfollows:1.Defacing Company Property2.Willfully disobeying orders to take correctiveaction3.InsubordinationBased upon precedent and the ruling case law prior toStandard Oil Company of California,Western Operations,Inc.,168 NLRB 153, the Trial Examiner would have hadlittle difficultym concluding that the discharge of Tisdale,Altman, Green, Nesbitt, and Casselman was unlawful 17 fora rule against wearing unioninsigniaon hard hats, in orderto have been valid, must have been, in the absence ofspecial circumstances, necessary to maintain productionand discipline. According to Schlett the hard hats wereworn "for identification and you can see the man" and "ifsomething should fall on him or hit him on the head he isother grounds 318 F 2d 545 (C A. 5) "The promulgationof a ruleprohibitingthe wearing of buttons constitutes a violation of Section 8(aXl)in the absenceof `special circumstances'showing thatsuch rule isnecessarytomaintainproductionand discipline"Harrah's Club,143NLRB 1356,WebbFurnitureCorporation,158 NLRB 1003;Serv-Air Inc,161NLRB 382, 416-417,Portage Plastics Company,163NLRB 753, 759 SeealsoHalliburtonCompany,168 NLRB1091, which wasdecided shortly afterStandard Oil Company of California, supra 116DECISIONS OF NATIONAL LABOR RELATIONS BOARDprotected." As to the latter, the adornment of the hard hatsby union insignia did not impair the protective features ofthe hats against impact nor did the insignia interfere withthe identification of the wearer since all hats were alike andthe union insignia was not placed so as to conceal theemployee'sname plate. Thus the pertinent questionremains whether the visibility of the hats was obscured bythe union insignia adornment. A visual examination of thehats would lead an ordinary reasonable human being toconclude that there was no diminution of the hats' visibilitybut, as viewed by the General Counsel, "If the red, white,and blue stickers affect the visibility of the hats at all, it isby making them more visible." General Counsel's brief,page 4. Moreover, the Respondent has not satisfactorilyexplained how the visibility of Altman's hat was impairedby the placement of the union insignia out of sight under itsbill.Thus, ifFloridan Hotel of Tampa, Inc., supra,and thecases cited above were followed, the Trial Examiner wouldbe compelled to find a violation of the Act since no "specialcircumstances" are present showing that the rule was"necessary to maintain production and discipline."But in footnote I ofStandard Oil Company of Californiathe Board has opined:" On the facts presented by this record, we cannot say, asurged by the General Counsel and the Charging Party, thatthe maintenance and enforcement of the Respondent's ruleagainst adornment of the safety hats violated Section8(a)(1) or (3), simply because the decorations in issue wereunion emblems. The Respondent established that it had alegitimate, longstanding, and not unwarranted concernabout the threat to safety posed by the use of unauthorizeddecorations on work hats. Furthermore, the evidence showsthat employees were freely permitted to wear emblemssignifying union affiliation on any part of their clothingexcept their safety hats. But while we agree with the TrialExaminer that the complaint should be dismissed for theforegoing reasons,we do not adopt or rely upon hisalternative finding that because no union organizationalcampaign was in progress at the time the rule was enforced,this in itself is a separate reason for finding that noprotected purpose could be served by the employees whowore the union decals."While there may be some doubts, after reading of theTrialExaminer's Decision inStandard Oil Company ofCalifornia, supra,the Trial Examiner concludes that it iscontrolling in the instant case. Thus the Trial Examinermust consider whether the "true purpose" or "real motive"of the Respondent in promulgating the rule and precipi-touslydischarging employees Tisdale, Altman,Green,Nesbitt,andCasselman for wearing union insigniaadornments on their hard hats unlawfully discouragedmembership in a labor organization. In this regard it issignificant that the Board has said "even assuming suchspecial circumstances existed, it was incumbent upon theRespondent to advise the employees why it was orderingthem to give up a protected right."Mayrath Co.,132 NLRB1628, 1630.18 Schlett testified "Number one, for identification and you can see theman, number two, if something should fall on him or hit him on the head,he's protected It's a dual purpose, I would saythe former moresothan thelatterBecause there are areas when you're dealing with a lift truck thatsomebody could be missed and hit with a boom." (Emphasis supplied )In the defense of its promulgation of the rule theRespondentinsiststhat the preservation of the hats'visibility was its prime concern, of even greater importancethan the protective cover afforded by the hats.18 However,inPowell'swarning to Altman this was not mentionedMoreover, Schlett's alleged instructions to Powell were "Goback and talk to them like a Dutch Uncle and tell them totake them off...Just tell them to take them off." Creditedtestimony does not indicate that Schlett touched on thesubject at all when he addressed the first shift.19 Neitherwas the subject mentioned to the second shift. The reasongiven for the removal order was "the hats were companyproperty."Whether the hats were company property isirrelevant here since the Respondent has advanced nocredible reason drawn from its need to enforce the rule inorder to insure efficient and orderly operations and serveproduction and discipline as the basis for curtailingprotected Section 7 rights. Cf.N.L.R.B. v. Floridan Hotel ofTampa, Inc.,318F.2d 545, 546 (C.A. 5). Moreover, "anemployer's rights cannot outweigh the equal rights ofemployees to associate freely, as those rights are embodiedinSection 7 and protected by Section 8(a)(1) and theproviso in Section 8(c)" and thus the property rights of anemployermust yield to the overriding rights givenemployees under the Act. Cf.N.L.R.B. v. Gissel PackingCo, Inc.,395 U.S. 575.The Board stated' inMayrath Company, supra,1630, by"the preemptory order" the Respondent "conveyed to theemployees the idea that they had no right to wear the [unioninsignia ] at work and gave them a Hobson's choice of eitherforegoing the protected rights or being discharged." Suchlanguage is equally applicable to the instant case.Assuming,arguendo,that the Respondent's rule was avalid exercise of management's right to serve production,order, and discipline, such rule, nevertheless, may not be"promulgated or utilized in order to prevent or impede theorganizationof [an employer's] employees."AvondaleMills,155 NLRB 840, 841.Upon the examination of the record as a whole and withthe demeanor of the witnesses in mind, the Trial Examinerisof the opinion that the Respondent instituted the ruleagainstwearing union adornment on hard hats anddischarged employees Tisdale, Altman, Green, Nesbitt, andCasselman for the purpose of discouraging membership ina labor organization. Of controlling importance in reachingthis conclusion are the following factors: (1) The Respon-dent, without adequate explanation, well knowing that arepresentation election would occur within 7 days andbeing cognizant of the effect of its action,20 nevertheless,promulgated a rule banning the use of union insignia onhard hats which rule as administered bore no relevance tothe preservation of efficient and orderly operations orproduction and discipline, yet the Respondent, until theunion insignia had appeared, had tolerated incongruouslyother decorations on its hard hats and permitted oneemployee to wear a hat which was painted black. (2) TheRespondent directed its prohibition primarily against the10 See particularly Powell's and Lambert's testimony20General foreman of the second shift,Haselden,in reference to theunion stickers,told employees that "the best thing to do would be to takethem off because what the Company was trying to do was postpone [the Ielection" Uncontroverted and credited testimony of Nesbitt ANDREWS WIRE CORPORATION117adornment of union insignia on hard hats leaving it unclearas to whether other types of decorations were also banned.(3)The short deadline set for the removal of the unioninsignia and the severity of the threatened penalty was ofsuch an arbitrary nature in view of the exigencies of thesituation as to imply to the employees that the Employer'sdisapproval was aimed against the union msignia.21 (4)While only three employees refused to obey orders, Schlett,instead of dealing with these alleged culprits individually,utilized such circumstance to assemble all first-shiftemployees, at which assemblage he availed himself of theopportunity not only to threaten the employees withdischarge for wearing union insignia on their hats but alsoto tell them that they were "green and greedy," that he"couldn't understand this attitude to save [his] ass," that hedidn't know what they wanted the Union for," that "hewould rather none of [them] would try to back him up in acorner because if [they] did he would knock [them, their]damned ass on the floor"; that "the Union didn't run thatplant, that it never will, that he run it" and that "nobodywas going to back him into a corner if they did, they'd havea tiger by the tail and he'd knock them on their ass." 22(5) Schlett's speech to the first-shift employees was notconfined to advising "the employees why it was orderingthem to give up a protected right" (seeMayrath Co., supra)but included a discourse on the Respondent's attitudetoward the Union and the employees who supported theUnion and was thus calculated to set the stage for thedischarge of the few employees whom the Employer musthave known retained the courage to assert their protectedrights for the Employer and must have known that the threeemployees who had already refused to remove their unioninsignia upon threat of discharge would have persisted eventhough lectured by Schlett. (6) The Respondent revealedthe speciousness of its position when it discharged Altman,even though he affixed his union insignia where it wouldhave been impossible for it to have diminished the visibilityof his hard hat. (7) The employees on the second shift weregiven no valid reasons for the removal of the union insigniafrom their hard hats.The Employer's unreasonable and unnatural conduct asrevealed in the record lacks explanation, unless it is viewedas an attempt to discourage employees' affection for theUnion. Although it may have been within the Employer'sprovince, it made no clear disclosure of the Employer'salleged real reason, i.e., the diminution of the visibility ofthe hard hats, to the concerned employees. In promulgatingand enforcing what might have been a valid rule (seeStandard Oil Company of California, supra)the Respondent21 It seems inconceivable that employees would have been dischargedwith such dispatch had the emblem been, for example, an American flagMoreover, that the Employer condoned the wearing of union insigniaelsewhere, when viewed in the light of Schlett'smanner of commune ation,would not necessarily lead employees to believe that such representationsof the Employer were sincere, but might well deter an employee fromwearing anyunion insignia or cause anemployee to believe that he wasacting at his peril in wearing union insignia Indeed no representationswere made to the second shift at all that they could wearunion insigniaelsewhere22The pertinent question is "what did the speaker intend and thelistener understand."N L R B v Gissel Packing Co,Inc,395 U S 575Schleti's revelations, in which employees could read his animosityagainstthe Union and his antagonisticattitutetoward its advent, colored his orderto remove the unioninsigniawith coercive implications from whichoverstepped and tumbled over the brink.Moreover,assumingarguendothat the Respondent did not intend theconsequences,which the Trial Examiner finds to beunlawful discouragement of employee membership in alabor organization,the intent nevertheless is presumedsince the natural consequence of the Respondent's conductwas to discourage membership in a labor organization inviolation of Section 8(a)(3) of theAct.23As promulgatedand administered the Respondent's rule was void of validbusiness considerations and was inherently destructive ofimportant employee rights.Cf.N.L.R.B. v. Great DaneTrailers,Inc.,388 U.S. 26.Accordinglythe Trial Examiner concludes and finds thatby the discharges of George R. Tisdale,William L.Altman,SylvesterA.Green,Juluis B. Nesbitt,and Richard L.Casselmanon July8, 1970,the Respondent discriminatedagainst them in violation of Section 8(a)(3) and(1)of theAct.CONCLUSIONS OF LAW1.The Union is a labor organization within the meamngof the Act.2.The Respondent is engaged in commerce within themeaning of Section 2(6) and (7) of the Act and it willeffectuate the purposes of the Act for jurisdiction to beexercised herein.3.By interfering with, restraining, and coercing em-ployees in the exercise of rights guaranteed them by Section7 of the Act, Respondent has engaged in unfair laborpractices within the meaning of Section 8(a)(1) of the Act.4.By unlawfully discharging Robert T. Brantley onMay 11, 1970, and George R. Tisdale, William L. Altman,SylvesterA.Green, Julius B. Nesbitt, and Richard L.Casselman on July 8, 1970, the Respondent has engaged inunfair labor practices within the meaning of Section 8(a)(1)and (3) of the Act.5.The aforesaid unfair labor practices are unfair laborpractices within themeamngof Section 2(6) and (7) of theAct.THE RECOMMENDED REMEDYIt having been found that the Respondent has engaged incertain unfair labor practicesit isrecommended that itcease and desist therefrom and take certain affirmativeaction designed to effectuate the policies of the Act. Ithavingbeen found that the Respondent unlawfullydischarged Robert T. Brantley, George R. Tisdale, Williamemployees could well denvethat theprohibitionof union adornment onhard hatsstemmed fromSchlett'santipathytoward the Union and the factthat the adornmentwas unioninsignia and not fromany alleged safetyconsiderationsThe effect was clearlyto dissuadeemployees from openlydisplayingtheir union affection and theprohibition, an inextricable part ofSchlett's remarks, tendedto discourageemployees'continued adherence tothe Union23 "an employer's protestationthathe didnot intend to encourageor discouragemust be unavailing where a natural consequence of hisactionwas suchencouragement or discouragementConcluding thatencouragement or discouragementwillresult,itispresumed that heintended such consequence.In such circumstances intent to encourage issufficiently established "The Radio Officers' Union of the CommercialTelegraphers Union, AFL [A H Bull Steamship Company] v N L.R B, 347US 17,45 118DECISIONS OF NATIONALLABOR RELATIONS BOARDL.Altman, Sylvester A. Green, Julius B. Nesbitt, andRichard L. Casselman and thereby violated Section 8(a)(3)and (1) of the Act, it is recommended that the Respondentremedy such unlawful conduct. It is recommended inaccordance with Board policy24 that the Respondent offereach of the foregoing persons immediate and full reinstate-ment to their former positions or, if such positions nolonger exist, to substantially equivalent positions, withoutprejudice to their seniority or other rights and privileges,and make them whole for any loss of earnings they mayhave suffered as a result of the discrimination against themby payment to them respectively of a sum of money equalto the amount they would have earned from the date oftheir discriminatory discharges to the date of an offer ofreinstatement less net earnings during said period to becomputed on a quarterly basis in the manner established bythe Board inF.W. Woolworth Company,90 NLRB 289, andincluding interest at the rate of 6 percent per annum in themanner set forth inIsis Plumbing & Heating Co.,138 NLRB716.[Recommended Order omitted from publication.]24 SeeTheRushtonCompany,158 NLRB 1730, 1740
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6009 UNITED STATES OF AMERICA, Petitioner - Appellee, v. RAPHAEL MENDEZ, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:91-hc-00350-BR) Submitted: March 20, 2014 Decided: April 9, 2014 Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Raphael Mendez, Appellant Pro Se. David T. Huband, BUREAU OF PRISONS, Butner, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Raphael Mendez appeals a district court order granting the Government’s motion to reconsider the order granting a hearing under 18 U.S.C. § 4247(h) (2012) and vacating the order scheduling the hearing. We affirm for the reasons stated by the district court. United States v. Mendez, No. 5:91-hc-00350-BR (E.D.N.C. Dec. 11, 2013) (unpublished). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2
324 U.S. 499 (1945) UNITED STATES v. WILLOW RIVER POWER CO. No. 312. Supreme Court of United States. Argued February 8, 9, 1945. Decided March 26, 1945. CERTIORARI TO THE COURT OF CLAIMS. Mr. Paul A. Freund, with whom Solicitor General Fahy, Assistant Attorney General Shea and Miss Cecelia H. Goetz were on the brief, for the United States. Mr. R.M. Rieser, with whom Mr. John Wattawa was on the brief, for respondent. MR. JUSTICE JACKSON delivered the opinion of the Court. The Willow River Power Company has been awarded $25,000 by the Court of Claims as just compensation for impaired efficiency of its hydroelectric plant caused by the action of the United States in raising the water level of the St. Croix River. Reality of damage and reasonableness of the award are not in issue. Our question is *500 whether the damage is the result of a "taking" of private property, for which just compensation is required by the Fifth Amendment. Willow River in its natural state was a non-navigable stream, which flowed to within a few rods of the St. Croix River, turned and roughly paralleled it for something less than a mile, and then emptied into the St. Croix. Many years ago an earth dam was thrown across the Willow about a half-mile above its natural mouth. A new mouth was cut across the narrow neck which separated the two rivers and a dam was built across the artificial channel close to or upon the banks of the St. Croix. Here also was built a mill, which operated under the head produced in the pool by the two dams, which obstructed both the natural and the artificial channel of the Willow River. These lands and appurtenant rights were acquired by the Willow River Power Company, a public utility corporation of the State of Wisconsin, and were devoted to hydroelectric generation for supply of the neighborhood. The plant was the lowest of four on Willow River operated by the Company as an integrated system. The powerhouse was located on land owned by the Company above ordinary high water of the St. Croix. Mechanical energy for generation of electrical energy was developed by water in falling from the artificial level of non-navigable Willow River to the natural level of navigable St. Croix River. The elevation of the head water when at the crest of the gates was 689 feet above mean sea level. The operating head varied because elevation of the tail water was governed by the fluctuating level of the St. Croix. When that river was low, the maximum head was developed, and was 22.5 feet; when the river was at flood stage, the operating head diminished to as little as eight feet. The ordinary high-water mark is found to have been 672 feet, and the head available above that was seventeen feet. *501 The Government, in pursuance of a Congressional plan to improve navigation, in August of 1938 had completed what is known as the Red Wing Dam in the upper Mississippi, into which the St. Croix flows. This dam was some thirty miles downstream, but it created a pool which extended upstream on the St. Croix beyond respondent's plant at an ordinary elevation of 675 feet. Thus the water level maintained by the Government in the St. Croix was approximately three feet above its ordinary high-water level at claimant's property. By thus raising the level at which tail waters must flow off from claimant's plant, the Government reduced the operating head by three feet, using ordinary high water as the standard, and diminished the plant's capacity to produce electric energy. The Company was obliged to supplement its production by purchase from other sources. Loss of power was made the only basis of the award. The Court of Claims found as a fact that "The value of the loss in power as a result of the raising of the level of the St. Croix River by three feet above ordinary high water was $25,000 at the time and place of taking," and it rendered judgment for that amount. There is no finding that any fast lands were flooded or that other injury was done to property or that claimant otherwise was deprived of any use of its property. It is true that the water level was above high-water mark on the St. Croix River banks and on claimant's structures, but damage to land as land or to structures as such is not shown to be more than nominal and accounts for no part of the award. The court held that the Government "had a right to raise the level of the river to ordinary high-water mark with impunity, but it is liable for the taking or deprivation of such property rights as may have resulted from raising the level beyond that point." Turning, then, to ascertain what property right had been "taken," the Court referred *502 to United States v. Cress, 243 U.S. 316, 329, 330, which it said was identical in facts, and held it had no option but to follow it and that "It results that plaintiff is entitled to recover the value of the decrease in the head of its dam."[1] The Fifth Amendment, which requires just compensation where private property is taken for public use, undertakes to redistribute certain economic losses inflicted by public improvements so that they will fall upon the public rather than wholly upon those who happen to lie in the path of the project. It does not undertake, however, to socialize all losses, but those only which result from a taking of property. If damages from any other cause are to be absorbed by the public, they must be assumed by act of Congress and may not be awarded by the courts merely by implication from the constitutional provision. The court below thought that decrease of head under the circumstances was a "taking" of such a "property right," and that is the contention of the claimant here. It is clear, of course, that a head of water has value and that the Company has an economic interest in keeping the St. Croix at the lower level. But not all economic interests are "property rights"; only those economic advantages are "rights" which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion. The law long has recognized that the right of ownership in land may carry with it a legal right to enjoy some benefits from adjacent waters. But that a closed catalogue of abstract and absolute "property rights" in water hovers over a given piece of shore land, good against all the world, is not in this day a permissible assumption. We cannot start the process of decision by calling such a claim as we have here a *503 "property right"; whether it is a property right is really the question to be answered. Such economic uses are rights only when they are legally protected interests. Whether they are such interests may depend on the claimant's rights in the land to which he claims the water rights to be appurtenant or incidental; on the navigable or non-navigable nature of the waters from which he advantages; on the substance of the enjoyment thereof for which he claims legal protection; on the legal relations of the adversary claimed to be under a duty to observe or compensate his interests; and on whether the conflict is with another private riparian interest or with a public interest in navigation. The claimant's assertion that its interest in a power head amounts to a "property right" is made under circumstances not present in any case before considered by this Court. Claimant is the owner of lands riparian to the St. Croix River, and under the law of Wisconsin, in which the lands lie, the shore owner also has title to the bed of the stream. Kaukauna Co. v. Green Bay Canal Co., 142 U.S. 254, 271; Jones v. Pettibone, 2 Wis. 308; Willow River Club v. Wade, 100 Wis. 86, 76 N.W. 273. The case seems to have been tried on the theory that the Company may also claim because of interference with its rights as a riparian owner on the Willow. But the Government has not interfered with any natural flow of the Willow past claimant's lands. Where it was riparian owner along Willow's natural channel claimant already had created an artificial level much above the Government level. If claimant's land along the Willow was at all affected it was at the point where the land was riparian to the artificial channel, just back of the shore line of the St. Croix, where the land had been cut away to install the dam and power plant and to utilize the advantages of being riparian to the St. Croix. We think the claimant's maximum and only interest in the level of the St. Croix arises from its riparian position *504 thereon and is not helped by the fact that its utilization of riparian lands on the St. Croix involves conducting over them at artificial levels waters from the Willow. The property right asserted to be appurtenant to claimant's land is that described in United States v. Cress, 243 U.S. 316, 330, as "the right to have the water flow away from the mill dam unobstructed, except as in the course of nature" and held in that case to be an "inseparable part" of the land. The argument here is put that the waters of the St. Croix were backed up into claimant's tailrace, causing damage. But if a dyke kept the waters of the St. Croix out of the tailrace entirely it would not help. The water falling from the Willow must go somewhere, and the head may be preserved only by having the St. Croix channel serve as a run-off for the tail waters. The run-off of claimant's water may be said to be obstructed by the presence of an increased level of Government-impounded water at the end of claimant's discharge pipes. The resulting damage may be passed on to the Government only if the riparian owner's interest in "having the water flow away" unobstructed above the high-water line is a legally protected one. The basic doctrine of riparian rights in flowing streams prevails with minor variations in thirty-one states of the Union.[2] It chiefly was evolved to settle conflicts between *505 parties, both of whom were riparian owners. Equality of right between such claimants was the essence of the resulting water law. "The fundamental principle of this system is that each riparian proprietor has an equal right to make a reasonable use of the waters of the stream, subject to the equal right of the other riparian proprietors likewise to make a reasonable use."[3] With this basic principle as a bench mark, particular rights to use flowing water on riparian lands for domestic purposes and for power were defined, each right in every riparian owner subject to the same right in others above and to a corresponding duty to those below. The doctrine of riparian rights attained its maximum authority on non-navigable streams. No overriding public interest chilled the contest between owners to get the utmost in benefits from flowing streams. Physical conditions usually favored practical utilization of theoretical rights. In general non-navigable streams were small, shifted their courses easily and were not stable enough to serve as property lines as larger streams often do. They were shallow, could be forded and were no great obstacle to tillage or pasturage on two sides of the stream as a single operation. Such streams, like the lands, were fenced in, and while the waters might show resentment by carrying away a few spans of fence in the spring, the riparian owner's rights in such streams were acknowledged by the custom of the countryside as well as recognized by the law. In such surroundings and as between such owners equality of benefits from flowing waters was sought in the rule that each was entitled to their natural flow, subject *506 only to a reasonable riparian use which must not substantially diminish their quantity or impair their quality. It was in such a stream that this Court found Cress as a landowner under the law of Kentucky possessed "the right to have the water flow away from the mill dam unobstructed, except as in the course of nature." 243 U.S. 316, 330. Cress owned riparian lands and the bed as well of a non-navigable creek in Kentucky. He built a dam which pooled the water and diverted it to his headrace; after it turned the wheel of his mill, it was returned to the stream by his tailrace. The Government built a dam in the navigable Kentucky River which backed up the water in this non-navigable tributary to a point one foot below the crest of the mill dam, leaving an unworkable head. The Court concluded that Cress was entitled to compensation as for a taking. It found that Cress had the right as a riparian owner to the natural flow-off of the water in this non-navigable stream. The Cress case is significant in that it measured the rights of a riparian owner against the Government in improving navigation by the standard which had been evolved to measure the rights of riparian owners against each other. The rights of the Government at that location were held to be no greater than those of a riparian owner, and therefore, of course, not paramount to the rights of Cress. We are of opinion that the Cress case does not govern this one and that there is no warrant for applying it, as the claimant asks, or for overruling it, as the Government intimates would be desirable. The Government there was charged with the consequences of changing the level of a non-navigable stream; here it is sought to be charged with the same consequences from changing the level in a navigable one. In the former case the navigation interest was held not to be a dominant one at the property damaged; here dominance of the navigation interest at the St. Croix is clear. And the claimant in this *507 case cannot stand in the Cress shoes unless it can establish the same right to have the navigable St. Croix flow tail waters away at natural levels that Cress had to have the non-navigable stream run off his tail waters at natural levels. This could only be done by an extension of the doctrine of the Cress case. As we have already said, it "must be confined to the facts there disclosed." United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597. On navigable streams a different right intervenes. While riparian owners on navigable streams usually were held to have the same rights to be free from interferences of other riparian owners as on non-navigable streams, it was recognized from the beginning that all riparian interests were subject to a dominant public interest in navigation. The consequences of the latter upon the former have been the subject of frequent litigation. Without detailing the long struggle between such conflicting interests on navigable streams, it may point out that by 1909 the lines had become sharply drawn and were then summarized by a leading author:[4] "The older authorities hold that such an owner has no private rights in the stream or body of water which are appurtenant to his land, and, in short, no rights beyond that of any other member of the public, and that the only difference is that he is more conveniently situated to enjoy the privileges which all the public have in common, and that he has access to the waters over his own land, which the public do not." "Access to and use of the stream by the riparian owner is regarded as merely permissive on the part of the public and liable to be cut off absolutely if the public sees fit to do so." And he quoted another writer of standing:[5] "The owner of the bank has no jus privatum, or special usufructuary interest, in the water. He does not, *508 from the mere circumstance that he is the owner of the bank, acquire any special or particular interest in the stream, over any other member of the public, except that, by his proximity thereto, he enjoys greater conveniences than the public generally. To him, riparian ownership brings no greater rights than those incident to all the public, except that he can approach the water more readily, and over lands which the general public have no right to use for that purpose. But this is a mere convenience, arising from his ownership of the lands adjacent to the ordinary high-water mark, and does not prevent the State from depriving him entirely of this convenience, by itself making erections upon the shore, or authorizing the use of the shore by others, in such a way as to deprive him of this convenience altogether, and the injury resulting to him therefrom, although greater than that sustained by the rest of the public, is `damnum absque injuria.'" On the other hand, the author pointed out, there were cases holding that the riparian owners on navigable streams "have valuable rights appurtenant to their estates, of which they cannot be deprived without compensation." He considered this the better rule, and suggested that the courts indicated some tendency to adopt it. However, in 1913 this Court decided United States v. Chandler-Dunbar Co., 229 U.S. 53. It involved the claim that water power inherent in a navigable stream due to its fall in passing riparian lands belongs to the shore owner as an appurtenant to his lands. The Court set aside questions as to the right of riparian owners on non-navigable streams and all questions as to the rights of riparian owners on either navigable or non-navigable streams as between each other. And it laid aside as irrelevant whether the shore owner did or did not have a technical title to the bed of the river which would pass with it "as a shadow follows a substance." It declared that "In *509 neither event can there be said to arise any ownership of the river. Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable." 229 U.S. at 62, 69. This Court then took a view quite in line with the trend of former decisions there reviewed, that a strategic position for the development of power does not give rise to right to maintain it as against interference by the United States in aid of navigation. We have adhered to that position. United States v. Appalachian Electric Power Co., 311 U.S. 377, 424. The Chandler-Dunbar case held that the shore owner had no appurtenant property right in two natural levels of water in front of its lands or to the use of the natural difference between as a head for power production. In this case the claimant asserts a similar right to one natural level in front of his lands and a right of ownership in the difference between that and the artificial level of the impounded water of the Willow River. It constituted a privilege or a convenience, enjoyed for many years, permissible so long as compatible with navigation interests, but it is not an interest protected by law when it becomes inconsistent with plans authorized by Congress for improvement of navigation. It is conceded that the riparian owner has no right as against improvements of navigation to maintenance of a level below high-water mark, but it is claimed that there is a riparian right to use the stream for run-off of water at this level. High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid. But the award here does not purport to compensate a flooding of fast lands or impairment of their value. Lands below that level are subject always to a dominant servitude in the interests of navigation and its exercise calls for no compensation. United States v. Chicago, M., St. P. & P.R. *510 Co., 312 U.S. 592; Willink v. United States, 240 U.S. 572. The damage here is that the water claimant continues to bring onto its lands through an artificial canal from the Willow River has to leave its lands at an elevation of 675 instead of an elevation of 672 feet. No case is cited and we find none which holds a riparian owner on navigable waters to have such a legal right. The Cress case which the Court of Claims relied upon does not so hold and does not govern here. Rights, property or otherwise, which are absolute against all the world are certainly rare, and water rights are not among them. Whatever rights may be as between equals such as riparian owners, they are not the measure of riparian rights on a navigable stream relative to the function of the Government in improving navigation. Where these interests conflict they are not to be reconciled as between equals, but the private interest must give way to a superior right, or perhaps it would be more accurate to say that as against the Government such private interest is not a [email protected]. Operations of the Government in aid of navigation ofttimes inflict serious damage or inconvenience or interfere with advantages formerly enjoyed by riparian owners, but damage alone gives courts no power to require compensation where there is not an actual taking of property. Cf. Gibson v. United States, 166 U.S. 269; Scranton v. Wheeler, 179 U.S. 141; Bedford v. United States, 192 U.S. 217; Jackson v. United States, 230 U.S. 1; Hughes v. United States, 230 U.S. 24; Cubbins v. Mississippi River Commission, 241 U.S. 351. Such losses may be compensated by legislative authority, not by force of the Constitution alone. The uncompensated damages sustained by this riparian owner on a public waterway are not different from those often suffered without indemnification by owners abutting on public highways by land. It has been held in *511 nearly every state in the Union that "there can be no recovery for damages to abutting property resulting from a mere change of grade in the street in front of it, there being no physical injury to the property itself, and the change being authorized by law."[6] This appears to be the law of Wisconsin. Smith v. Eau Claire, 78 Wis. 457, 47 N.W. 830; Walish v. Milwaukee, 95 Wis. 16, 69 N.W. 818; McCullough v. Campbellsport, 123 Wis. 334, 101 N.W. 709; cf. Smith v. Washington, 20 How. 135; Transportation Co. v. Chicago, 99 U.S. 635. It would be strange if the State of Wisconsin is free to raise an adjacent land highway without compensation but the United States may not exercise an analogous power to raise a highway by water without making compensation where neither takes claimant's lands, but each cuts off access to and use of a natural level. We hold that claimant's interest or advantage in the high-water level of the St. Croix River as a run-off for tail waters to maintain its power head is not a right protected by law and that the award below based exclusively on the loss in value thereof must be reversed. MR. JUSTICE REED concurs in the result on the ground that the United States has not taken property of the respondent. MR. JUSTICE ROBERTS. I think the judgment of the Court of Claims should be affirmed. The findings of fact by that court are supported by the evidence. They are to the following effect. The St. Croix River is navigable. The Willow River is a non-navigable stream emptying into the St. Croix at Hudson, Wisconsin. The respondent has constructed several dams in the Willow River for the purpose of generating *512 power. The one farthest down stream is "located near the confluence of the Willow River and the St. Croix River in the city of Hudson, Wisconsin, on land owned by [respondent] above ordinary high water of the St. Croix River." At the time of the erection of the respondent's dam, ordinary high water in the St. Croix at Hudson was 672 feet above sea level. The respondent's dam raised the water level in Willow River to a height of 694.5 feet above sea level, thus affording a power head of 22.5 feet.[1] By the Government's erection of Red Wing Dam the water level in the St. Croix at Hudson was raised to 675.3 feet above mean sea level. The backing up of the water reduced the power head of respondent's dam by approximately three feet, and diminished its supply of power accordingly. In the court below, the United States denied that the Red Wing Dam had raised the level of the St. Croix at Hudson to the extent claimed by the respondent, and contended that Willow River was a navigable stream and the respondent's dam was, therefore, an obstruction in the navigable waters of the United States for interference with or injury to which the United States was not responsible. These contentions were overruled and are now abandoned. There was no claim by the Government that any portion of the respondent's construction was below *513 ordinary high-water mark in the St. Croix. In fact the Government's answer admitted averments of the petition that the dam and power plant were located near a point where the Willow River discharges into the St. Croix River, and upon the respondent's property described in the petition. The answer further alleged that the "dam so constructed by the plaintiff near the point where the Willow River discharges into the St. Croix River . . . was constructed upon a concrete foundation extending across or occupying the full width of the mouth of a navigable stream" (meaning the Willow River, which the Government then claimed was navigable). The opinion of the court below states that respondent's tailrace emptied into the St. Croix River below ordinary high-water level, and this seems to be true. But the fact is irrelevant. The respondent owned the land on either side of the Willow River at and above the point where its dam was constructed. Under the law of Wisconsin the respondent owned the bed of Willow River, and both by common and statute law of Wisconsin it had the right to erect and use the dam.[2] That right was property; and such a right recognized as private property by the law of a state is one which under the Constitution the federal government is bound to recognize. Monongahela Navigation Co. v. United States, 148 U.S. 312; Fox River Paper Co. v. Railroad Commission, 274 U.S. 651, 654, 655. Compare Ford & Son v. Little Falls Fibre Co., 280 U.S. 369, 375, 377. *514 Unless United States v. Cress, 243 U.S. 316, is to be disregarded or overruled, the respondent is entitled to recover for the property taken by the reduction of the efficiency of its dam due to the raising of the high-water mark. If the respondent's power dam had been in Willow River at a distance of one hundred yards or more above the confluence of the two streams, there can be no question that the decision in the Cress case would require payment for the injury done to its water power. Since under local law the owner of the land and the dam was entitled to have the water of the non-navigable stream flow below his dam at the natural level of the Willow River, which is affected by the natural level of the St. Croix, the raising of that level by navigation works in the St. Croix invaded the respondent's rights. This is the basis of decision in the Cress case. The fact that the respondent's dam is close to the high-water mark of the St. Croix River can not call for a different result. The court concludes that the Cress case is inapplicable by ignoring the finding of the trial court that the increase in level of the St. Croix above high-water mark has diminished the head of respondent's dam by three feet. But to reach its conclusion the court must also disregard the natural law of hydraulics that water seeks its own level. At the confluence of the two rivers at normal high water of the St. Croix, both the St. Croix and the Willow are at the same level. Any increase in the level of the St. Croix above high-water mark must result in raising the natural level of the Willow to some extent. The court below has found that the increase in the level of the St. Croix operates to diminish the head at respondent's dam by the specified amount. The facts thus established are in all relevant respects precisely those on the basis of which this court sustained the recovery of damages in the Cress case. If the fact is that respondent discharges the water from its power plant through a tailrace extending below high-water *515 mark of the St. Croix, that fact is irrelevant to the problem presented. Respondent claims, and the court below has sustained, only the right to have the flow of the Willow maintained at its natural level. That level has been increased by raising the level of the St. Croix above its high-water mark. The increase in the level of the St. Croix above high-water mark has operated to raise the level below the respondent's dam to an extent which has damaged respondent by diminishing the power head. To that extent respondent has suffered damage and is entitled to recover on principles announced in the Cress case. United States v. Cress has stood for twenty-eight years as a declaration of the law applicable in circumstances precisely similar to those here disclosed. I think it is a right decision if the United States, under the Constitution, must pay for the destruction of a property right arising out of the lawful use of waters not regulable by the federal government because they are not navigable. The CHIEF JUSTICE concurs in this opinion. NOTES [1] 101 Ct. Cls. 222, certiorari granted, 323 U.S. 694. [2] The other 17 have some form of the appropriative system. It is based on the principle of priority or seniority, under which rights accrue to users in the order in which they first put waters to beneficial use. The principle is not equal right of use but paramount right in the earlier user. The use is not limited to riparian tracts but may be diverted to sites remote from the stream, thus spreading the benefits beyond riparian lands, a considerable advantage to some arid regions. The beneficial use is more extensive and includes use for irrigation, mining, manufacturing as well as domestic uses, and the water may be permanently diverted and the stream thereby diminished to an extent not allowable under the riparian rights theory. See Bannister, Interstate Rights in Interstate Streams in the Arid West (1923) 36 Harv. L. Rev. 960. [3] Bannister, supra, at 960. Choice of the arid sections of the country of the appropriative in preference to the riparian system is cited in Cardozo, Growth of the Law, 118, 119-20, as an example of "conscious departure from a known rule, and the deliberate adoption of a new one, in obedience to the promptings of a social need so obvious and so insistent as to overrun the ancient channel and cut a new one for itself." [4] 1 Lewis on Eminent Domain (3d ed. 1909) 116, 119. [5] Wood on Nuisances (1st ed.) § 592. [6] 1 Lewis on Eminent Domain (3d ed. 1909) 210. [1] The court's opinion refers to the circumstance that the dam in question is not built across the natural channel of Willow River. Neither the court below nor the Government relies on this phase of the case, and I take it that decision does not depend upon it. The facts are that the St. Croix runs substantially from north to south. Willow River, which runs westward, formerly turned southward a short distance from the St. Croix and substantially paralleled the latter before emptying into it. The respondent dammed the natural channel to form a pool just east of the St. Croix, and then built its powerhouse, dam and spillway at a point at the edge of the pool nearest the St. Croix. [2] Revised Statutes Wisconsin 1858, Chap. XLI, §§ 2, 3; Chap. LVI, § 1; Wisconsin Stats. 1943, §§ 30.07; (2) (3) c, 31.07; Wisconsin Laws, Private & Local, 1866, Ch. 122; 1872, Ch. 115; Mabie v. Matteson, 17 Wis. 1; A.C. Conn Co. v. Little Suamico Lumber Mfg. Co., 74 Wis. 652, 43 N.W. 660; Kaukauna Water Power Co. v. Green Bay & M. Canal Co., 75 Wis. 385, 390-391, 44 N.W. 638; Water Power Cases, 148 Wis. 124, 134 N.W. 330; McDonald v. Apple River Power Co., 164 Wis. 450, 160 N.W. 156; Apfelbacher v. State, 167 Wis. 233, 167 N.W. 244.
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 13-2401 ___________ DAN YAN WU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-841-260) Immigration Judge: Honorable Donald Farlise ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) October 9, 2013 Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges (Opinion filed: October 10, 2013) ___________ OPINION ___________ PER CURIAM Dan Yan Wu, a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her immigration proceedings. For the reasons that follow, we will deny the petition for review. In 2006, an Immigration Judge found Wu removable from the United States because she did not have valid entry and travel documents and because she was likely to become a public charge. The Immigration Judge also denied Wu’s applications for asylum, withholding of removal, and relief under the Convention Against Torture. Wu, who was a Jehovah’s Witness, claimed that she feared persecution based on her religion. The BIA dismissed Wu’s appeal in 2008 and Wu did not seek judicial review. In January 2013, Wu filed a motion to reopen her immigration proceedings in order to apply for asylum. Wu attested that in 2012 she began attending the Church of Grace to Fujianese. She stated that she fears she will be persecuted if removed to China because she will not attend a government-sanctioned church. Wu argued that, since her merits hearing, conditions in China have changed and there is increased persecution of Christians who attend unauthorized churches. The BIA denied relief and this petition for review followed. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the denial of a motion to reopen for abuse of discretion. Khan v. Att’y Gen., 691 F.3d 488, 495 (3d Cir. 2012). Under this standard, we will not disturb the BIA’s decision unless it is arbitrary, irrational, or contrary to law. Id. As recognized by the BIA, a motion to reopen must generally be filed within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). There is no time limit, however, on the filing of a motion to reopen to apply for asylum or withholding of 2 removal “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered . . . .” Id. § 1229a(c)(7)(C)(ii). To the extent Wu’s claim is based on a new religious practice or a change in her personal circumstances, she may file an asylum application beyond the 90-day statutory period only if she establishes changed country conditions. Liu v. Att’y Gen. 555 F.3d 145, 150 (3d Cir. 2009). Wu does not dispute that her motion to reopen was filed more than 90 days after the final removal order in her case, but she contends that, contrary to the BIA’s decision, she established changed conditions in China. She argues that the 2011 Annual Report by the China Aid Association reflects that cases of persecution in China have risen since 2006. She notes, for example, that the report states that the number of people persecuted increased from 665 in 2006 to 4322 in 2011. In concluding that this report did not establish changed country conditions, the BIA explained that it appeared that China Aid’s definition of persecution is broader than what constitutes persecution for purposes of asylum law. The BIA also stated that, even if there has been a rise in incidents of harm, the new evidence shows that there has been a rise in the number of Christians since Wu’s last hearing, and that the evidence submitted at that hearing reflects that the number of Protestants was estimated to be growing at a rate of 600,000 a year. The BIA thus ruled that Wu had not shown that “she has a materially greater risk of persecution in China now than at the time of the last hearing.” A.R. at 4. 3 Wu does not address the BIA’s reasoning in her brief. The BIA’s finding that China Aid’s definition of persecution may be broader than the definition used for purposes of asylum is arguably supported by the tables in the report, which state that 4322 people were persecuted in 2011 but that less than one-third of that number were detained or abused. The BIA also correctly recognizes that the report does not take into account the reported growing population of Christians in China. Wu has not shown that the BIA’s decision is arbitrary, irrational, or contrary to law. Wu further argues that the BIA did not adequately consider the evidence she submitted in support of her motion to reopen. The BIA recognized that, in addition to the China Aid report, Wu submitted news articles and other reports about religion in China, but the BIA found that these documents addressed specific instances of harm, not a material change in conditions for Christians. Wu does not point to any evidence that the BIA did not address that establishes changed country conditions. She has not shown that the BIA abused its discretion. Accordingly, we will deny the petition for review. 4
423 B.R. 914 (2009) In re Joshua Scott MITCHELL and Stephanie Judith Mitchell a/k/a Stephanie Judith Cabral, Debtors. Mortgage Electronic Registration Systems, Inc., Appellant, v. Joshua Scott Mitchell and Stephanie Judith Mitchell a/k/a Stephanie Judith Cabral, Appellees. No. 2:09-cv-0668-JCM-RJJ. Bankruptcy No. BK-S-07-16226-LBR. Appellate Ref. No. 09-00018. United States District Court, D. Nevada. December 30, 2009. Jeffrey A. Silvestri, McDonald Carano Wilson, Las Vegas, NV, K. Issac DeVyver, Raymond A. Cardozo, Reed Smith LLP, Pittsburgh, PA, Ryan Jefferson Works, McDonald Carano Wilson, Las Vegas, NV, for Mortgage Electronic Registration Systems, Inc. Laura L. Fritz, Andrew S. T. Fritz, Ltd., Las Vegas, NV, for Joshua Scott Mitchell, Stephanie Judith Mitchell. Lenard E. Schwartzer, Schwartzer & McPherson Law Firm, Las Vegas, NV, for Lenard E. Schwartzer. ORDER JAMES C. MAHAN, District Judge. Presently before the court is appellant Mortgage Electronic Registration Systems, Inc.'s (hereinafter "MERS") 28 U.S.C. § 158(a) appeal from the bankruptcy court's order (No. BK-S-07-16226-LBR, *915 Doc. #99) denying MERS' motion for relief from automatic stay. Having considered the briefs, the record on appeal, and the parties' arguments at the consolidated hearing on November 10, 2009, the court affirms the bankruptcy court decision. I. FACTS AND PROCEDURAL HISTORY On July 15, 2008, MERS filed its motion to lift stay in the underlying bankruptcy court case, pursuant to Federal Rule of Bankruptcy Rule 4001. MERS was seeking to conduct a non-judicial foreclosure sale of appellees/debtors Joshua and Stephanie Mitchell's real property, which secured a loan that was in default. (BK-S-07-16226-LBR, Doc. # 30.) MERS filed its motion to lift stay "Solely as Nominee for Plaza Home Mortgage, Inc., its successors and/or assigns." (Id., Doc. # 30 at 1:19-20.) The deed of trust attached to the motion identified "Plaza Home Mortgage Inc." as the lender and MERS as the beneficiary and nominee. ((Id., Doc. #[email protected].) The motion, however, neither attached the note, nor any documentation demonstrating that Plaza Home Mortgage or any of its successors and/or assigns were the note's current payee or had authorized the foreclosure proceeding and motion to lift stay. Additionally, no affidavit or other documentation supported the motion's assertions. Based on the foregoing, Bankruptcy Trustee Lenard E. Schwartzer (hereinafter "trustee") filed objections to MERS' motion to lift stay arguing that, under the Bankruptcy Rules, MERS lacked standing as a real party in interest to file the motion. (Id., Doc. # 34). On April 29, 2008, the bankruptcy court issued an order setting twenty-seven (27) cases, all cases involving MERS' motions to lift stays, for an en banc, joint hearing on June 9, 2008. The bankruptcy court also ordered consolidated briefing for all cases to be filed in the instant case, as the "lead case." ((Id., # 44 at 2.) In ten (10) of the cases now on appeal, including the instant case, MERS attempted to withdraw its motion to lift stay prior to the en banc hearing, but was procedurally unable to because the bankruptcy trustee objected. (Id., # 99 at 2-3, n. 8.) On August 19, 2008, the bankruptcy court held its final hearing. (See id., # 83.) At the hearing, MERS' counsel argued that MERS need not disclose the beneficial interest holder's identity to establish that MERS was, as an agent for the beneficial interest holder, a real party in interest. Further, a declaration by MERS Secretary William Hultman stated that "every one of these loans is registered to a MERS member[,]" thereby implying MERS had authority to act for an undisclosed beneficial owner. On March 31, 2009, the bankruptcy court issued memorandum opinions and orders denying MERS' motion to lift stays in this, and two other cases. The bankruptcy court held MERS lacked standing because it was not a real patty in interest as the bankruptcy rules require. Specifically, the court found that "[w]hile MERS may have standing to prosecute the motion in the name of its Member as nominee, there is no evidence that the named nominee is entitled to enforce the note or that MERS is the agent of the note's holder." The court further held that MERS' asserted interest as beneficiary under the contract terms did not confer standing because MERS lacked actual beneficial interest in the note and, therefore, was not a true beneficiary. MERS now appeals, asserting the bankruptcy court erred as a matter of law when it determined that MERS was not a true beneficiary under the deeds of trust at *916 issue in the eighteen (18) consolidated cases, where the express language of the deeds of trust provide that MERS is the beneficiary. The trustee continues to assert that MERS lacks standing because it is not a real party in interest. II. STANDARD OF REVIEW This court has jurisdiction pursuant to 28 U.S.C. § 158(a) and reviews the bankruptcy court's findings under the same standard that the court of appeals would apply in reviewing a district court's findings in a civil matter. 28 U.S.C. § 158(c)(2). Therefore, the court reviews the bankruptcy court's factual findings under a clearly erroneous standard, and its conclusions of, law de novo. See In re Healthcentral.com, 504 F.3d 775, 783 (9th Cir.2007); In re First Magnus Fin. Corp., 403 B.R. 659, 663 (D.Ariz.2009). III. ANALYSIS This appeal is one of many that have been filed with the various Nevada district judges from bankruptcy court holdings that MERS was not a real party in interest and accordingly lacked standing to move to lift the bankruptcy stay of 11 U.S.C. Section 362(d). The lower court held that MERS lacked standing because it was not a holder in due course of the promissory note underlying the deed of trust that it was seeking to foreclose and thus was not a real party in interest. That rationale appears to conflict with numerous rulings by the district judges in Nevada dismissing unrelated, non-bankruptcy lawsuits brought by homeowners who seek to enjoin MERS from foreclosing on their homes. The district judges have dismissed the homeowners' complaints and ruled that MERS is authorized by state statute to foreclose the deeds of trust that encumber these various properties. Nevertheless, this court will affirm the bankruptcy court, albeit on alternative grounds. FRCP 17 requires that an action be prosecuted in the name of the real party in interest and then provides that certain parties, such as executors and trustees, may sue in their own names without joining the party for whose benefit the action is being prosecuted. One of the parties authorized to sue in its own name is one who is authorized to do so by statute. FedRCivP. 17(a)(1)(G). That category would appear to include MERS, as provided in prior rulings by the various district judges holding that MERS is a proper party under Nevada statutes to conduct a foreclosure sale. Courts from other jurisdictions have recognized that state law provides the basis for such a party to initiate foreclosure. See In re Tainan, 48 B.R. 250, 252 (Bankr.E.D.Pa.1985). In order to obtain a lift of stay, however, an additional requirement is imposed by the Local Rules of Practice for Nevada. LR 4001(5) requires that a party seeking to lift the automatic bankruptcy stay must certify that it has attempted to confer with debtor or debtor's counsel and despite "sincere effort," the parties were unable to resolve the matter without court action. This rule requires more than a pro forma conversation with debtor's counsel before filing a motion. Rather, the requirement envisions a true effort to negotiate the dispute before resorting to court action. Clearly, in order to have a meaningful negotiation, the secured creditor must be able to alter or compromise the debtor's obligation, for example by changing the payment amount, interest rate, or repayment schedule of the promissory note and deed of trust. In order to be able to compromise the obligation, the secured creditor must be the owner of that obligation or an agent of the owner with written *917 authority to agree to alteration of the obligation. Here, MERS was unable to produce either the promissory note underlying the debtor's obligation or written authority from the holder of that note. Accordingly, MERS could not comply with the requirements of LR 4001 in a meaningful way, and the bankruptcy court correctly held that MERS was not entitled to lift the automatic stay. Accordingly, the order of the bankruptcy court that MERS lacked standing to move to lift the automatic stay is AFFIRMED.
360 F.2d 861 149 U.S.P.Q. 541 UNITED STATES RUBBER COMPANY, Plaintiff-Appellant,v.BORG-WARNER CORPORATION, Defendant-Appellee. No. 15432. United States Court of Appeals Seventh Circuit. May 4, 1966. George B. Newitt, Chicago, Ill., Malvin R. Mandelbaum, New York City, Bair, Freeman & Molinare, Chicago, Ill., Roger W. Robinson, Kenyon & Kenyon, New York City, Henry M. Leigh, Arthur, Dry, kalish, Taylor & Wood, New York City, of counsel, for appellant. Dugald S. McDougall, Richard R. Trexler Donald W. Banner, Chicago, Ill., William S. McCurry, Jr., Chicago, Ill., of counsel, for appellee. Before DUFFY and SWYGERT, Circuit Judges, and MAJOR, Senior Circuit judge. DUFFY, Circuit Judge. 1 Plaintiff brought this suit under Title 35 U.S.C. 146 seeking judicial review and relief from a decision of the Board of Patent Interferences in Interference No. 89,636. The Board had awarded to defendant's Calvert application, Serial No. 383,379, priority of invention over plaintiff's Childers and Fisk Patent No. 2,820,773. The effect of that order is to authorize issuance of a patent on the disputed invention to defendant, and to require cancellation of the claim defining that invention from plaintiff's patent. 2 The invention in controversy is a method for making hard rubber-and-resin plastic compositions which have greatly increased impact strength at low temperatures, as shown by their having a high impact strength (more than 1 foot-pound per inch of Izod notch) at a specified low temperature (-40 degrees C.) when tested by a specific method (the Izod notch test).1 3 The application on which plaintiff's patent issued was filed on August 1, 1955. Borg-Warner's claim rests on an earlier application filed by its assignor, William C. Calvert, on September 30, 1953. 4 In establishing an interference, the Patent Office defines in words what the disputed invention is by designating a representative claim as the 'interference count.' In this case, Claim I of United States Rubber's Patent No. 2,820,773 was selected as the interference count. 5 The interference count is somewhat difficult for a layman to understand and is set forth below.2 However, plaintiff concedes that Example 3 of defendant's Calvert application describes a process fully responsive to all the method steps in the count. The real issue in the case is whether the Example 3 disclosure in defendant's application, satisfies the count's preamble, in which the invention is characterized as a 'method of preparing a rubber-and-resin product having an impact strength at -40 degrees C. of over 1 foot-pound per inch of Izod notch.' 6 The interference was initiated by a Patent Office order dated September 11, 1958. Since United States Rubber's inventors, Childers and Fisk, had failed to claim a date as early as the filing date of the Borg-Warner application, the Patent Office issued an order to show cause why judgment should not be entered against them on the rrcord. United States Rubber responded with a motion to dissolve the interference on the ground that Borg-Warner's inventor, Calvert, had not disclosed a process of preparing a product 'having an impact strength at -40 degrees C. of over 1 foot-pound per inch of Izod notch.' That motion was heard and denied by the Primary Examiner who acts as the Patent Office tribunal of first instance. 7 United States Rubber then moved for leave to take testimony. This motion was heard by the Board of Patent Interferences and was denied. Pointing out that United States Rubber's asserted position was inconsistent with the statements in its own patent that all products made according to the delineated process have the required impact strength, the Board held United States Rubber could not make a showing of inoperativeness as to its adversary's disclosure that would not also extend to its own disclosure. 8 United States Rubber then submitted a petition to the Commissioner of Patents asking him to overrule the Board and grant it leave to take testimony on tha Izod notch question. That petition was denied. The Commissioner held that United States Rubber could not attack the adequacy of Borg-Warner's disclosure on any ground that would impugn the provisions of its own disclosure. 9 The interference then went back to the Board of Patent Interferences for final hearing. Briefs were filed, the cause was heard, and the issue was again decided against United States Rubber. 10 The factual statements in United States Rubber's patent which the Patent Office held United States Rubber would not be permitted to repudiate, are as follows: 11 'The products of the present invention are free from bloom and have greatly increased impact strength at low temperatures showing an impact strength at -40 degrees C. of over 1 foot-pound per inch of Izod notch (ASTM Test D 256-47T). 12 'The compositions of the present invention comprise 20 to 75 parts of an emulsion polymerized synthetic rubber which is preferably a polybutadiene synthetic rubber, but which may be a copolymer of not less than 95% Of polymerized butadiene and not more than 5% Styrene copolymerized therwith, and correspondingly 80 to 25 parts of a synthetic resin emulsion polymerizate of a mixture of 25% To 90% Of styrene and correspondingly 75% To 10% Of acrylonitrile.' 13 During the period in which interference No. 89,636 was before various tribunals in the Patent Office, United States Rubber filed in another branch of the Patent Office, an application to reissue Patent No. 2,820,733, the patent involved in the interference. 14 The reissue application filed on March 4, 1959, stated that in the text of the original patent the range of proportions of ingredients had been extended on the basis of deponent's knowledge of polymer chemistry and that it had been discovered just recently that the range of proportions was 'overly broad' and that the patent was, in consequence, 'wholly or partly inoperative or invalid by reason of a defective specification and by reason of the patentees claiming more than they had a right to claim in the patent.' 15 The Patent Office took no action on the reissue application until after Interference No. 89,636 had been terminated. Then, on October 13, 1964, the reissue application was rejected in its entirety because the proposed reissue claims were 'unpatentable over the disclosure of the application of Calvert' and additionally because they are 'based upon new matter which was discovered after the original patent had issued and was not a part of the disclosure thereof.' 16 In the District Court, the issue was limited to the same question, whether Example 3 of Borg-Warner's Calvert application adequately disclosed the subject matter of the interference count. A stipulation was entered into as follows: 17 '6. On the issue whether Calvert Application Serial No. 383,379 supports the count in Interference No. 89,686, (a) defendant will rely solely on Example 3 of said application, and (b) plaintiff will raise solely the question whether the product of said Example 3 satisfies the recitation in the count that the product has an impact strength at -40 degrees C. of over 1 foot-pound per inch of Izod notch. The evidence submitted by both parties shall relate to that question.' 18 At the trial, plaintiff, United States Rubber Company, tendered testimony and exhibits directed to its contention that the product of defendant's process lacks the Izod notch impact strength called for by the count. 19 One of the two witnesses testifying for plaintiff was William E. Wolstenholme, holder of an electrical engineering degree and employed as a research scientist in the United States Rubber Company's physics department. Wolstenholme testified mainly as to tests he had conducted which the Izod notch machine on plastic specimens. The trial court held plaintiff's proof lacked persuasive force especially insofar as it was grounded on plaintiff's Izod testing speciality who was, as the Court said, 'evasive, contradictory and lacking in forthrightness.' 20 After considering the briefs and the proposed findings of fact and conclusions submitted by each of the parties, the District Court decided the issues in favor of the defendant. A final judgment was entered upholding the decision of the Patent Office in Interference No. 89,636. 21 As hereinbefore indicated, plaintiff's only ground to support its contentions that the disputed invention was not adequately disclosed in defendant's patent application, was rejected by three different tribunals in the Patent Office-- the Primary Examiner, the Board of Patent Interferences and the Commissioner of Patents. 22 We hold that the decisions reached by the various tribunals in the Patent Office were correct. It might be possible to rest our affirmance of the District Court on this ground alone as suggested by the defendant. 23 However, the District Court gave plaintiff an opportunity to offer evidence which the Patent Office tribunals had correctly refused to receive. Before the District Court, plaintiff offered proof respecting Izod notch tests which purported to show that the product of the defendant's process did not break or tear under the impact of the hammer of the testing machine. However, the District Court noted the different conditions under which the tests were made and held the record does not afford even prima facie support for plaintiff's contention that the product of defendant's process will not break under the Izod notch test. 24 It is clear that no error of the administrative agency was shown. The Patent Office rightfully decided Interference No. 89,636 by awarding priority of invention to defendant's assignor, William C. Calvert. 25 Plaintiff has failed to establish any meritorious cause of action against the defendant, and the District Court was, therefore, correct in ordering that the complaint be dismissed. 26 Judgment affirmed. 1 In the test, a notched specimen is clamped vertically in a vice and broken by a blow from a swinging pendulum or hammer. The device has a scale which indicates the energy expended by the pendulum during the test. The American Society for Testing Material's Publication is in the record as PX15. It describes in detail the manner in which the specimens are to be prepared and the apparatus to be used in testing them, as well as how the Izod notch value is to be calcaulated from the energy consumed in breaking the specimens 2 'The method of preparing a rubber-and-resin product having an impact strength at -40 degrees C. of over 1 foot-pound per inch of Izod notch which comprises polymerizing in a latex of a synthetic rubber containing not less than 95% Of polymerized butadiene-- 1, 3 and not more than 5% Of styrene coploymerized threwith, a mixture of styrene and acrylonitrile, the styrene content of said mixture being 25% To 90% Of styrene and the acrylonitrile content being correspondingly 75% To 10%, maintaining the amount of dispersing agent in the latex at not more than 5 parts per 100 perts of synthetic rubber and polymerized styrene-acrylonitrile contained therein until at least onehalf of the styrene and acrylonitrile monomer mixture to be polymerized in admixture with the synthetic rubber has been converted to polymer, the amount of said resin being polymerized in the rubber latex being in the range from onethird to four parts of resin per part of synthetic rubber, and separating the thus formed rebber-resin product from the aqueous medium, said dispersing agent being alkali-metal soap.'
731 N.W.2d 741 (2007) Timothy A. GROSSKLAUS, Plaintiff-Appellee, v. Susan R. GROSSKLAUS, Defendant-Appellant. Docket No. 133234. COA No. 263376. Supreme Court of Michigan. May 30, 2007. On order of the Court, the application for leave to appeal the November 21, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
This defendant, Shackelford, was evidently the "getaway driver." The actual robber was armed with a gun and fired a shot. While Shackelford's responsibility is unquestioned, I fail to understand how he could have committed the "worst form" of the offense — surely being armed and shooting at someone is worse than being unarmed and not [email protected]. Mr. Banks, the shooter, received a lesser sentence for the crime of Aggravated Robbery and Attempted Murder! How Mr. Shackleford committed a "worse form" than Mr. Banks is difficult to understand. I would hold that the record does not support the sentence, and instead impose a sentence of seven years.
Citation Nr: 9933339 Decision Date: 11/29/99 Archive Date: 12/06/99 DOCKET NO. 99-07 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a low back disorder, including migraine headaches and a nervous disorder claimed as secondary. REPRESENTATION Appellant represented by: Nancy Lee Presson, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. That rating decision denied the appellant's claim for service connection for residuals of a low back disorder. Thereafter, the appellant filed a timely notice of disagreement and substantive appeal pertaining to this decision. In September 1999, a hearing was held before Bettina S. Callaway, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's inservice back injuries were acute and transitory. 3. There is no competent medical evidence of a chronic back disorder having been incurred or aggravated during service. The report of the veteran's discharge examination, dated June 1971, noted that his spine was normal. 4. A post service treatment report, dated November 1983, noted the veteran's complaints of "intermittent low back pain with leg pain on either the left or right side for about a year." It also noted that the veteran "has been quite active doing a great deal of various manual physical jobs in the past and never had any back or leg pain." 5. Subsequent post service medical treatment reports revealed treatment for a lumbar herniated disc, L5-S1, and spinal stenosis. An X-ray examination of the veteran's back, dated October 1998, revealed an impression of fairly advanced selective lumbar spondylosis at L5-S1 with idiopathic dextroscoliosis of upper lumbar spine. 6. The veteran's current back disorder is not shown to be causally related to his active duty service. CONCLUSION OF LAW Residuals of a low back disorder, including migraine headaches and a nervous disorder, were not incurred in, or aggravated by, the veteran's active duty military service. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1154 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection may be established for a current disability in several ways, including on a "direct" basis, on the basis of "aggravation," and on a "secondary" basis. 38 U.S.C.A. §§ 101(16), 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.310(a) (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be granted for a disability that is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997)." Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Lay evidence is also acceptable to show incurrence in service if the veteran was engaged in combat and the evidence is consistent with the circumstances, conditions and hardships of such service, even though there is no official record of such incurrence. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1999). II. Factual Background The RO has retrieved the veteran's service medical records and they appear to be complete. A review of the veteran's report of separation from service revealed that he served on active duty in the United States Army from July 1968 to July 1971. The veteran's entrance examination, dated July 1968, noted essentially normal findings throughout. A review of the veteran's service medical records revealed treatment for a variety of conditions, including low back pain. An inservice treatment report, dated October 1968, noted the veteran's complaint of low back pain for the past three days. A November 1968 treatment report noted the veteran's complaints of continuing low back pain. Physical examination of the veteran's back revealed "normal findings." An X-ray examination of the back, performed in November 1968, was normal. In January 1969, the veteran sought treatment for recurrent low back pain. A treatment report, dated June 1969, noted that the veteran had fallen injuring the lumbar region of his back. Physical examination revealed "spasm, paravertebral group. No other findings." X-ray examination of the back was negative. A May 1970 treatment report noted the veteran's complaints of back trouble. A neurological examination was performed and the findings were negative. The report recommended Williams' exercises. In June 1971, the veteran's discharge examination was conducted. The report of this examination noted that the veteran's spine and extremities were normal. A medical history report, completed at that time, indicated that the veteran did not have back trouble of any kind. Post service medical treatment reports, from November 1983, were submitted in support of the veteran's claim. A hospitalization report, dated November 1983, noted that the veteran had sought treatment for "intermittent low back pain with leg pain on either the left or the right side for about a year. The patient has been quite active doing a great deal of various manual physical jobs in the past and never had any back or leg pain. The patient states that he believes that the bouncing in the bus on the seats has aggravated his pain and really is responsible for this pain." A preoperative evaluation revealed a concave left acute lumbosacral scoliosis with limited flexion of the spine at that location. No neurological abnormalities were found. A myelogram was performed and showed a central disk protrusion at L5, S1, more on the right than left. A microdiskectomy, L5, S1, on the right, was subsequently performed, and the veteran was given a final diagnosis of herniated disk at L5, S1, on the right. A treatment report, dated February 1984, noted that the veteran "feels fine and feels completely able to return to his usual work." In April 1984, the veteran sought treatment for complaints of back pain after going over some bumps while riding a bus. The report noted an impression of acute lumbosacral spasm, status post L5-S1 microdiskectomy. A treatment report, dated January 1985, noted that the veteran "had an exacerbation of symptoms recently while lifting furniture around his house." In February 1985, the veteran filed an Application for Compensation or Pension, VA Form 21-526, seeking a pension for his back condition. On his application form, the veteran indicated that he had been receiving treatment for a chronic back disorder since 1983. Where the application form asked about inservice treatment for illness or injuries, the veteran indicated "none." A treatment report, dated May 1985, noted that the veteran underwent a computerized tomography (CT) scan revealed a recurrent midline herniated disc. The examining physician, N. Payne, M.D., stated: He has apparently been dropped from the Workmen's Compensation benefits and/or his benefits from MARTA. I'm not quite sure of the reason for this, but nonetheless I think he has a valid problem that was initially felt to be related to an on-the job injury and this certainly continues to be related to that on-the-job injury in my mind if the first problem was accepted as related to on-the job-injury. Numerous records, dated in November 1985, were retrieved from the Social Security Administration. A review of these records revealed that the veteran was granted Social Security disability benefits. The decision noted that the veteran "has severe status-post L5-S1 microdisckectomy, with recurrent L5-S1 disc herniation or new [email protected]." The report also noted that the veteran "has past relevant work experience as a bus operator and has also worked as a laborer and warehouse worker." In May 1989, another CT scan of the veteran's back was conducted and revealed a recurrent herniated disc at L5-S1 on the right side. X-ray examination of the back, dated June 1989, revealed disk space narrowing with sclerosis and spurring involving the L5-S1 space, consistent with degenerative disk disease. In June 1989, the veteran underwent an L5-S1 microdiskectomy. The report of this procedure noted that the veteran's post-operative condition was satisfactory. A treatment summary report, dated January 1998, was submitted by N. Payne, M.D. The report of this examination noted that the veteran's gait was markedly uncomfortable. A follow-up treatment report, dated March 1998, noted that the veteran had a narrowing of the spinal canal in the lower lumbar area. The report also noted that a magnetic resonance imaging examination, performed in January 1998, revealed "no herniated disc nor any sign of pressure on the L-5 or S-1 nerve root. There is an impressive spinal [email protected]. There is some narrowing at the L3-L4 level." Medical treatment records, dated October 1998 through December 1998, were retrieved from the VA medical center in Atlanta, Georgia. The report of a myelogram of the spine, performed in March 1998, noted an impression of severe central stenosis at L3-4 and L4-5 levels, mild central stenosis at L2-3, and a "component of underlying congenital stenosis due to relatively short pedicles." In support of his claim, multiple lay statements were received from individuals associated with the veteran. At the heart of these letters is the contention by these individuals that they were unaware of any of the veteran's back problems prior to his having entered military service, and that his back condition has been constant ever since his military service. In November 1998, a hearing was conducted before the RO. At the hearing, the veteran testified that he injured his back during basic training carrying ammunition crates. He also alleged that he injured his back unloading a truck while stationed at Fort Hood, Texas. As a result of these injuries, the veteran claims to have had intermittent back pain ever since. After his discharge from the service, the veteran testified that he was refused treatment at the VA hospital in Clairmont, Georgia. He indicated that he subsequent treated his back condition himself with Doan Pills and by using other people's pain medicine. The veteran reported that he went to work for the United States Post Office following his discharge from the service. He testified that he was given a physical examination pursuant to this employment and that an X-ray examination of his back "was clear." See Hearing transcript, November 25, 1998, p. 16. He left this job after approximately one year because he could not maintian his ability to lift the mail bags. Subsequently, the veteran worked as a cottage parent raising children, a driver for Georgia Pacific, and also as a prison guard at the Nebraska Penal Complex. In December 1979, the veteran indicated that he went to work for MARTA. He noted that he was required to take and pass a physical examination in order to obtain this position. The veteran's wife also testified at the RO hearing. She indicated that she had married the veteran in May 1972, but that she knew the veteran prior to his having entered the service. She reported that she was unaware of any back problems prior to his entry into the service. Following his discharge from service, she indicated that the veteran complained of some back discomfort and that this condition has worsened ever since. In September 1999, a hearing was held before the Board at the RO. At the hearing, the veteran testified that he developed back problems as a result of his inservice injuries. He indicated that he has continued to experience back pain ever since these injuries were incurred. He also claimed that as a result of his back disorder, he eventually developed a bipolar disorder and migraine headaches. When questioned whether a physician had related these conditions to his low back disorder, the veteran stated "No. I'm not sure." See Hearing transcript, September 15, 1999, p. 12. Also testifying at this hearing was the veteran's wife. She reported that the veteran first developed a back disorder during his active duty service. She stated that "[a]fter he got out of service we were married and had a couple of children and at that time we enjoyed outdoors, camping and what have you." Id. at 15. In response to questions concerning when the veteran's back disorder started to affect his usual activities, the veteran's wife stated: "Well, it got really, really severe I'd say it was in the 80's, it was in the 80's. I know and that's when we were still involved in outdoor activities and what have you and he'd complain, complain, complain." When asked about the severity of the veteran's back problems at the time they married in 1971, the veteran's wife stated "Well, you know, at that time they were minor because he mentioned to me he had back problems but see he was young, a young adult, a young adult and sometimes you can't tell a young adult anything." Id. at 17. III. Analysis The veteran's claim for service connection for residuals of a low back disorder, including secondary conditions of migraines and a nervous disorder, is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Review of the appellant's claim requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court), formerly the United States Court of Veterans Appeals. See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Furthermore, as the Court has pointed out, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed.Cir.1997) and cases cited therein. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the veteran contends that he injured his back on two separate occasions during his active duty service. The determinative issues presented by this claim are: (1) whether the veteran incurred, or aggravated, a chronic back disorder during service; (2) whether he has a current disability; and, if so, (3) whether the current disability is etiologically related to his active military service. As the veteran's alleged inservice back injuries were not sustained in combat, the presumption under 38 U.S.C.A. §1154 does not apply. After a thorough review of the veteran's claim file, the Board concludes that the medical evidence of record does not show that a chronic back disorder was incurred during service. See 38 C.F.R. § 3.303(b) (1999). Although the Board accepts the veteran's contention that he injured his back as alleged during service, there is no indication that he sustained a chronic back disorder as a result of these incidents. There is no diagnosis of a chronic back disorder noted in the veteran's service medical records. X-ray examinations of the veteran's spine, performed in November 1968 and June 1969, revealed normal findings. His final inservice treatment for back pain occurred in May 1970, one year prior to his final discharge in July 1971. A neurological examination, performed at that time, was negative. The veteran's discharge examination, dated June 1971, noted that his spine and lower extremities were normal. A medical history report, completed at that time, noted that the veteran did not have back trouble of any kind. The first post service medical evidence of record noting any treatment for a back disorder is dated November 1983, over 12 years after the veteran's discharge from the service. That treatment report indicated that the veteran started to experience intermittent low back pain with leg pain one year earlier. The report also noted that the veteran "has been quite active doing a great deal of various manual physical jobs in the past and never had any back or leg pain." Through his statements and testimony herein, the veteran has alleged that he has experienced continuing back pain ever since his discharge from the service. However, in light of the medical evidence of record, lay statements are not competent to establish the onset of a chronic disability during service. Lay evidence alone will not support a finding on a medical question requiring special expertise or special knowledge, such as diagnosis or causation of a disease. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). As noted above, the veteran last sought treatment during service for back pain in May 1970, over one year before his final discharge. The veteran's discharge examination, performed in June 1971, noted that his spine and extremities were normal. In his testimony herein, the veteran indicated that he passed a physical examination pursuant to his post service employment with the United States Post Office and that an X-ray examination of his back, performed at that time, was clear. A post service treatment report, dated November 1983, noted that the veteran "never had any back or leg pain." It also noted that the veteran "states that he believes that the bouncing in the bus on the seats has aggravated his pain and really is responsible for this pain." Finally, on his application form for a pension, dated February 1985, the veteran indicated that he began receiving treatment for a back disorder in 1983. Where the application form asked for information concerning any inservice treatment for illness or injuries he may have received, the veteran indicated "none." Thus, the objective evidence of record directly contradicts the veteran's claim of ongoing back pain following his discharge from the service. Under these circumstances, including the affirmative findings of a normal back on the veteran's discharge examination and the lack of any specific medical evidence showing treatment for a back disorder for over 12 years after the veteran's discharge from service, the Board concludes that the back injuries sustained during service were acute and transitory and resolved without chronic residuals. The veteran has also failed to establish the required nexus between his current low back disorder and his active duty military service. See Caluza, 7 Vet. App. at 506, Dean v. Brown, 8 Vet. App. 449, 455 (1995), Slater v. Brown, 9 Vet. App. 240 (1996). During the course of this appeal, the veteran testified and submitted statements, by himself and others, alleging that his current low back disorder is the result of his active duty service. The testimony and statements given by the veteran and others, however, are not competent evidence to establish the etiology of his current disorder. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because they are not shown to be physicians, these individuals are not competent to make a determination that his current back disorder is the result of inservice injuries over two decades ago. See Espiritu, 2 Vet. App. at 495; Grottveit, 5 Vet. App. at 93. After a careful review of the veteran's claims file, the Board concludes that there is no competent evidence of record relating the veteran's current back disorder to his active duty service. A November 1983 treatment report noted that the veteran "has been quite active doing a great deal of various manual physical jobs in the past and never had any back or leg pain." The November 1983 treatment report also noted that the veteran believed "that the bouncing in the bus on the seats has aggravated his pain and really is responsible for this pain." A treatment report from N. Payne, M.D., dated May 1985, noted that "I think he has a valid problem that was initially felt to be related to an on-the job injury and this certainly continues to be related to that on-the-job injury in my mind if the first problem was accepted as related to on-the-job injury." In view of the foregoing, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a low back disorder 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Because the evidence is not evenly balanced, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999); Gilbert v. Derwinski, 1 Vet. App. at 55. As the Board has denied service connection for a low back disorder, the veteran's claims for secondary conditions flowing therefrom, migraine headaches and a psychiatric disorder, are denied as well. See 38 C.F.R. § 3.310 (1999). The veteran does not claim that he developed headaches or a psychiatric disorder during service. In reaching this decision, the Board fully acknowledges that additional evidence may exist which could be helpful to the veteran's claim. At the hearing before the RO in November 1998, the hearing officer informed the veteran that additional evidence may be available in this matter, and that this evidence may be beneficial to the veteran's claim. Specifically, the RO referenced possible additional medical evidence which may be available from J. Williams, M.D., and from the veteran's post service employers, the United States Post Office and MARTA. The RO also informed the veteran of the importance of these records. "I'm looking for medical evidence of a continuous, i.e. chronic problem since service up until 1983." See Hearing transcript, November 25, 1998, p. 16. At the veteran's November 1998 hearing, the veteran, through his attorney, agreed to submit three VA Form 4142s so that these records could be obtained. Although given 60 days to complete this task, no forms were forthcoming. In February 1998, the RO issued a Statement of the Case reminding the veteran and his representative that "none of the VA Forms 21-4142s have been received and associated with the claims file." Still, no release forms were subsequently received. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under the circumstances presented in this case, the Board concludes that the RO has fulfilled its duty to assist the veteran. ORDER Service connection for residuals of a low back disorder, including secondary conditions of migraines and a nervous disorder, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals
IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 47547 STATE OF IDAHO, ) ) Filed: December 31, 2020 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) ROBERT WILLIAM BIGGS, ) ) Defendant-Appellant. ) ) Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear Lake County. Hon. Mitchell W. Brown, District Judge. Judgment of conviction and concurrent, unified sentences of thirty years, with minimum periods of confinement of fourteen years, for one count of lewd conduct with a minor under sixteen and nine counts of sexual exploitation of a child, affirmed. Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________ LORELLO, Judge Robert William Biggs appeals from his judgment of conviction for one count of lewd conduct with a minor under sixteen and nine counts of sexual exploitation of a child. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Pursuant to a plea agreement, Biggs pled guilty to one count of lewd conduct with a minor under sixteen, I.C. § 18-1508, and nine counts of sexual exploitation of a child, I.C. § 18-1507(2)(d). In exchange for his guilty pleas, the State dismissed eleven additional counts of sexual exploitation of a child and three counts of sexual abuse. The parties agreed to 1 jointly recommend concurrent, determinate ten-year sentences with no agreement as to the indeterminate term; however, that recommendation was not binding on the district court. The district court sentenced Biggs to concurrent, unified terms of thirty years, with minimum periods of confinement of fourteen years. Biggs appeals. II. STANDARD OF REVIEW An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). III. ANALYSIS Biggs argues that the district court imposed excessive sentences by failing to “give proper consideration” to certain mitigation evidence, including his amenability to sex-offender treatment, health issues, family support, and acceptance of responsibility and remorse. The State responds that the district court properly exercised its sentencing discretion and that Biggs has failed to meet his burden of showing otherwise. We hold that Biggs has failed to show the district court abused its sentencing discretion. Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct 2 an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). At sentencing, Biggs asked the district court to impose the agreed-upon, concurrent, ten-year determinate sentences included in his plea agreement. In support of that request, Biggs highlighted his age (fifty years old at the time of sentencing), difficult upbringing, lack of treatment and counseling for his “underlying issues,” and remorse. In imposing the sentences, the district court noted it “closely reviewed” the presentence investigation report and all of the materials related to sentencing, including a psychosexual evaluation. The district court expressly recognized the objectives of sentencing--protection of society, punishment, deterrence, and rehabilitation--but also acknowledged the existence of “mitigating factors and circumstances.” The district court discussed, in detail, both the objectives of sentencing relative to Biggs’s criminal behavior and the mitigation cited by Biggs. Ultimately, the district court exceeded the recommended determinate sentences because it did not believe that fixed terms of ten years were adequate relative to the offenses Biggs pled guilty to and “the need for society to have a response to those issues.” In doing so, the district court described the offenses, based on the evidence that was presented to it, as “horrific” and “deviant.” Based on the relevant sentencing criteria and the facts of the case, the district court imposed concurrent, thirty-year terms, with minimum periods of confinement of fourteen years. Biggs first argues that the district court “failed to give proper consideration to his amenability to sex[-]offender treatment.” Biggs cites State v. Jackson, 130 Idaho 293, 939 P.2d 1372 (1997), in support of this contention. In Jackson, the Idaho Supreme Court held a fixed-life sentence for one count of lewd conduct with a minor under sixteen was excessive because, among other reasons, Jackson wanted to participate in sex-offender treatment and would cooperate in any way necessary. Id. at 295-96, 939 [email protected]. Setting aside the factual distinction that Biggs did not receive a fixed-life sentence like the defendant in Jackson, Biggs’s acknowledgment that he “needs help,” and the psychosexual evaluator’s conclusion that Biggs “may potentially be a suitable treatment candidate,” does not show inadequate consideration of this mitigating factor. The district court directly addressed the psychosexual evaluation, 3 including other information within the psychosexual evaluation that support its sentencing decision. For example, the psychosexual evaluation contained information indicative of “significant deviance” and a related concern that Biggs has not fully disclosed the full scope of his sexually deviant conduct as evidenced by the results of his polygraph examination. Thus, Biggs’s claim that the district court did not give “proper consideration to his amenability to sex[-]offender treatment” is not supported by the record. Biggs next argues that “his health concerns counsel toward a less severe sentence,” citing State v. James, 112 Idaho 239, 731 P.2d 234 (Ct. App. 1986). In James, the defendant received an indeterminate, five-year sentence upon his guilty plea to grand theft by possession of stolen property, which was consistent with the sentence the State agreed to recommend as part of a plea agreement. Id. at 240-41, 731 [email protected]. In support of an I.C.R. 35 motion to reduce his sentence, James argued he “had a medical problem that required surgery” that he wanted performed by a doctor of his own choosing. Id. at 243, 731 [email protected]. The district court acknowledged James’s health concerns but declined to reduce his sentence in light of the leniency shown in imposing sentence and the need to protect society. Id. On appeal, this Court noted that “although rehabilitation and health problems are factors to consider in a motion for reduction of sentence, they are not necessarily determining factors.” Id. at 243-44, 731 [email protected]. Because the sentencing judge “gave detailed consideration to James’[s] original sentencing, as well as his arguments for lenience” and “determined the protection of society outweighed those factors,” this Court found no abuse of discretion. Id. at 244, 731 [email protected]. As in James, the district court in this case gave “detailed consideration” to Biggs’s mitigating factors and specifically acknowledged Biggs’s physical health issues. However, the district court determined the protection of society, as well as the other objectives of sentencing, outweighed those issues. Biggs has failed to show that his “health concerns counsel toward a less severe sentence.” Biggs’s third argument is that, pursuant to State v. Shideler, 103 Idaho 593, 651 P.2d 527 (1982), the support of family and friends should be considered when imposing sentence. While a defendant’s support network may be considered as part of a sentencing determination, such is not a requirement under Shideler. In Shideler, the Idaho Supreme Court determined the defendant’s indeterminate sentence of twenty years for armed robbery was excessive based on an 4 “overwhelming impression from [the] record” that, “except for this particular incident the defendant’s character was good,” and he had made significant improvements “since the incident and incarceration pending hearing.” Id. at 595, 651 [email protected]. Included in the list of mitigating factors noted by the Court was that the defendant’s “family and employer have shown considerable interest in his future.” Id. While Biggs’s sister submitted a supportive letter, there is nothing in the record to suggest that the district court did not consider it, as Biggs’s argument implies. Regardless, unlike in Shideler, there is no impression from the record in this case that, except for the many “horrific” and “deviant” acts perpetrated on the young victims in this case, Biggs’s character required lesser sentences. Finally, Biggs argues that his acceptance of responsibility and remorse for his criminal conduct establish that his sentences are excessive, citing State v. Alberts, 121 Idaho 204, 824 P.2d 135 (Ct. App. 1991) as an example. In Alberts, the defendant pled guilty to two counts of sexual abuse of a child under the age of sixteen and received consecutive, unified sentences of fifteen years with five years determinate. On appeal, this Court, in a 2-1 decision, held that the district court’s decision to run the sentences consecutive was an abuse of discretion “in light of the circumstances of the crimes and the character and background of the defendant.” Id. at 205, 824 [email protected]. The Court specifically noted the defendant’s “expression of remorse for his conduct, his recognition of his problem, his willingness to accept treatment, and other positive attributes of his character” as reasons he should get “some leniency in his sentences” in the form of concurrent versus consecutive sentences. Id. at 209, 824 [email protected]. The Court’s concern over the consecutive versus concurrent nature of the sentences in Alberts does not exist here. Moreover, although Biggs pled guilty and stated that he feels “horrible, disgusted, sorry, [and] stupid” by his conduct, the record does not demonstrate that Biggs has fully accepted responsibility for his crimes. Both Biggs’s allocution and the psychosexual evaluation indicate that Biggs, at least partially, attributes his criminal conduct in this case to his upbringing and a pornography addiction that he believes is genetic. Biggs’s psychosexual evaluation specifically recommended treatment to address “thinking errors” that prevent Biggs from accepting responsibility for his deviant conduct. Nothing in Alberts compels the conclusion that Biggs’s alleged acceptance of responsibility and remorse require lesser sentences. 5 Although our standard of review of an excessive sentence claim requires an independent review of the record, having regard for the nature of the offense, the character of the offender and the protection of the public interest, we do not reweigh the evidence. State v. Windom, 150 Idaho 873, 879, 253 P.3d 310, 316 (2011). Rather, our role is to determine whether reasonable minds could reach the same conclusion as did the district court. Id. We easily reach that conclusion in this case. The district court identified the correct legal standards, correctly perceived sentencing as a discretionary decision, acted within the boundaries of its discretion, and exercised reason in imposing sentence. Biggs has failed to show the district court abused its discretion or that his sentences are excessive. IV. CONCLUSION Biggs failed to demonstrate that the district court abused its sentencing discretion. Therefore, Biggs’s judgment of conviction and sentences are affirmed. Chief Judge HUSKEY and Judge GRATTON, CONCUR. 6
Case: 11-60458 Document: 00512283135 Page: 1 Date Filed: 06/21/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 21, 2013 No. 11-60458 Lyle W. Cayce Clerk FAITH JAMES, Plaintiff - Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant - Appellee. Appeals from the United States District Court for the Southern District of Mississippi Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges. CARL E. STEWART, Chief Judge: Defendant-Appellee State Farm Mutual Automobile Insurance Co. (“State Farm”) tendered the policy limit on its uninsured motor vehicle coverage to Plaintiff-Appellant Faith James nearly thirty months after James was injured in a car accident. James brought a bad faith claim under Mississippi law, and the district court granted State Farm’s motion for summary judgment. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND. I. BACKGROUND A. Facts On February 3, 2006, James was involved in a car accident with Jarvis Smith. The parties do not dispute that Smith’s negligence was the sole cause of Case: 11-60458 Document: 00512283135 Page: 2 Date Filed: 06/21/2013 No. 11-60458 the accident. James’s vehicle turned over at least once, and she was taken from the scene in an ambulance to Wayne General Hospital. James received numerous stitches for a head wound and testified in her deposition that she felt significant pain in her chest, back, and head immediately after the accident. At the time of the accident, James and/or her husband owned four State Farm insurance policies. The policy on the vehicle James was driving at the time of the accident included $5,000 in medical payments coverage, collision coverage, and $10,000 per person in uninsured/underinsured motor vehicle (“UM”) coverage. Each of the other three policies also provided $10,000 per person UM coverage for a stacked total of $40,000 in UM benefits. The parties do not dispute that James’s policies were in effect at the time of the accident. After James promptly notified State Farm of the accident, State Farm quickly paid out under its medical payments and collision coverage. At issue is State Farm’s delay in paying James benefits under her UM coverage. As the timeline of events contained in the record underpins our analysis of James’s claims, we refrain from a lengthy factual recitation here and instead present critical events in our below discussion. We now continue our summary of this case’s background with an overview of its procedural history. B. Procedural History On October 23, 2007, James and her husband1 filed a complaint against State Farm in federal district court on diversity grounds. On February 13, 2008, James filed an amended complaint, which alleged that State Farm was intentionally engaging in delaying tactics to avoid paying on the policies. Because of this delay, the complaint alleged that State Farm had, inter alia, committed the tort of bad faith.2 The complaint requested a jury trial and 1 James’s husband later voluntarily dismissed his complaint. 2 James also asserted that State Farm’s actions were “a breach of Defendant’s duties of good faith and fair dealings and duty to fairly and promptly adjust claims under the 2 Case: 11-60458 Document: 00512283135 Page: 3 Date Filed: 06/21/2013 No. 11-60458 sought $40,000 due under the policy, compensatory damages, and punitive damages. Over the next several months, the magistrate judge granted two motions to compel against State Farm. On July 29, 2008, State Farm paid its stacked UM policy limit of $40,000 to James. State Farm then filed a motion for summary judgment on October 29, 2008. On May 6, 2011, the district court granted State Farm’s motion for summary judgment, entered final judgment in favor of State Farm, and dismissed the complaint with prejudice. No. 4:07-CV- 137, 2011 WL 1743421 (S.D. Miss. May 6, 2011). This appeal followed.3 II. DISCUSSION On appeal, James makes two arguments related to her bad faith claim: (1) State Farm withheld payment under one policy in order to coerce a lower settlement for claims under other policies, and (2) State Farm unreasonably delayed payment on the claim without a legitimate or arguable basis for doing so. A. Standard of Review We review a district court’s grant of summary judgment de novo. Bradley v. Allstate Ins. Co., 620 F.3d 509, 516 (5th Cir. 2010) (citation omitted). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material Plaintiffs’ policy.” Even if the pleadings indicate James may have asserted these as claims separate from her bad faith claim, James has pressed only her bad faith claim on appeal. 3 On appeal, James appears to assert a separate breach of contract claim. The district court apparently interpreted this claim as a sub-issue within James’s bad faith claim. On appeal, James combines this claim with her argument as to the independent tort of bad faith. Assuming arguendo that James intended to assert a breach of contract claim separate from her bad faith claim, we hold this claim to have been waived on appeal because James points to no policy provisions supporting this claim. See Fed. R. App. P. 28. Accordingly, we affirm the district court to the extent that it granted summary judgment to State Farm on a breach of contract claim. 3 Case: 11-60458 Document: 00512283135 Page: 4 Date Filed: 06/21/2013 No. 11-60458 fact exists when the evidence presented on summary judgment is such that a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We view all facts and evidence in the light most favorable to the non-movant, here James. Bradley, 620 F.3d at 516 (citation omitted). When a defendant moves for summary judgment and identifies a lack of evidence to support the plaintiff’s claim on an issue for which the plaintiff would bear the burden of proof at trial, then the defendant is entitled to summary judgment unless the plaintiff is able to produce “summary judgment evidence sufficient to sustain a finding in plaintiff’s favor on that issue.” Kovacic v. Villarreal, 628 F.3d 209, 212 (5th Cir. 2010) (citations omitted) (quoting Thompson v. Upshur Cnty, Tex., 245 F.3d 447, 456 (5th Cir. 2001). “[T]he propriety of summary judgment [is] bound up in the burdens of proof at trial . . . .” Steven Alan Childress & Martha S. Davis, 1 Federal Standards of Review § 5.02, at 5-26 (4th ed. 2010) (citing Anderson, 447 U.S. at 247-48, 254). We review the district court’s interpretation of state law de novo, and we “give no deference to its determinations of state law issues.” Bradley, 620 F.3d at 516 (citation omitted). B. Applicable Law Because James brought this case in federal court on diversity grounds, Mississippi substantive law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). “To determine issues of state law, we look to final decisions of the state’s highest court, and when there is no ruling by that court, then we have the duty to determine as best we can what the state’s highest court would decide.” Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 238 n.5 (5th Cir. 2012) (citation omitted). “In making an [Erie] guess in the absence of a ruling from the state’s highest court, this Court may look to the decisions of 4 Case: 11-60458 Document: 00512283135 Page: 5 Date Filed: 06/21/2013 No. 11-60458 intermediate appellate state courts for guidance.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (citation omitted). 1. Claim against insurer for bad faith James asserts that State Farm committed the tort of bad faith when it delayed payment on her UM claim. “[A] bad faith refusal claim is an ‘independent tort’ separable in both law and fact from the contract claim asserted by an insured under the terms of the policy.” Spansel v. State Farm Fire & Cas. Co., 683 F. Supp. 2d 444, 447 (S.D. Miss. 2010) (alteration in original) (quoting Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888, 895 (Miss. 2006)). The Mississippi Supreme Court has recognized that claimants can bring bad faith claims against and recover punitive damages from insurers who refuse to pay out on a valid claim. See Caldwell v. Alfa Ins. Co., 686 So. 2d 1092, 1098 (Miss. 1996) (holding that denial of a valid insurance claim is critical for the submission of punitive damages to a jury). Additionally, although Mississippi courts are skeptical of such claims, they have permitted claimants to recover damages on bad faith claims when resolution of an insurance claim is merely delayed rather than ultimately denied.4 See, e.g., Travelers Indem. Co. v. Wetherbee, 368 So. 2d 829, 834-35 (Miss. 1979) (affirming jury award for punitive damages where insurer withheld payment for eight months); AmFed Cos., LLC v. Jordan, 34 So. 3d 1177, 1191 (Miss. Ct. App. 2009) (affirming trial judge’s decision to submit punitive damages issue to the jury in a delay-of-payment case); Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 400 (Miss. Ct. App. 2004) (“[T]here may be cases where a delay [of payment for one month] could possibly be sufficient grounds for a bad faith claim.”); see also Essinger v. Liberty Mut. 4 Thus, here, we treat caselaw that refers to a “denial of a claim” as interchangeable with a “delay of payment on a claim” unless the context indicates that the law pertains specifically to a denial. 5 Case: 11-60458 Document: 00512283135 Page: 6 Date Filed: 06/21/2013 No. 11-60458 Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir. 2008) (citation omitted) (“Inordinate delays in processing claims and a failure to make a meaningful investigation have combined to create a jury question on bad faith.”); but see Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1399 (5th Cir. 1986) (per curiam) (reversing jury’s punitive damage award where payment was delayed during an ongoing dispute between insured and insurer); Caldwell, 686 So. 2d at 1098 (affirming grant of summary judgment where insurance company delayed payment for three months in complex wrongful death claim, including a six-week delay after it completed its investigation). Our review of the case law illustrates that whether to submit a delay-of- payment claim to a jury is a highly fact-sensitive analysis. 2. Compensatory and punitive damages James seeks to recover compensatory and punitive damages for State Farm’s payment delay. In Mississippi, compensatory5 and punitive damages are related. To establish a claim for punitive damages in the context of a bad faith claim, a party must first establish her entitlement to compensatory damages. See Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 628 (5th Cir. 2008) (“Mississippi law does not permit parties to recover punitive damages unless they first prove that they are entitled to compensatory damages.” (citations omitted)). To do so, the trial judge must decide, as a matter of law, that the insurer lacked ‘a reasonably arguable basis’ for denying the claim.” See id. at 628 (citation omitted) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1186 n.13 (Miss. 1990); U.S. Fid. & Guar. Co. v. Wigginton, 964 F.2d 487, 492 (5th Cir. 1992) (citation omitted); Fulton v. Miss. Farm Bureau Cas. Ins. Co., 105 So. 3d 284, 288 (Miss. 2012) (“When an insurer denies a claim without an arguable basis . . . extracontractual damages may provide [a] form of relief.” 5 For purposes of this appeal, we use compensatory damages interchangeably with consequential and extra-contractual damages. 6 Case: 11-60458 Document: 00512283135 Page: 7 Date Filed: 06/21/2013 No. 11-60458 (footnote omitted)). Then, the trier of fact determines whether compensatory damages are to be awarded and in what amount. Miss. Code Ann. § 11-1- 65(1)(b) (West 2012). If and only if the trier of fact does award compensatory damages, then “the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.” Id. § 11-1-65(c); see also Jordan, 34 So. 3d at 1189 (describing process whereby after the jury awarded the claimant compensatory damages, the claimant moved to submit the issue of punitive damages to the jury). Moreover, an insurer can be held liable for compensatory damages without simultaneously being held liable for punitive damages. See Broussard, 523 F.3d at 628 (“Insurers who are not liable for punitive damages may nonetheless be liable for consequential or extra-contractual damages (e.g., reasonable attorney fees, court costs, and other economic losses) where their decision to deny the insured’s claim is without a reasonably arguable basis but does not otherwise rise to the level of an independent tort.” (citations and internal quotation marks omitted)). Extra-contractual damages also include emotional distress, inconvenience, and accounting fees. Spansel, 683 F. Supp. 2d at 448 (collecting Mississippi Supreme Court citations). Because whether the insurer “lacked ‘a reasonably arguable basis’ for denying the claim” is a threshold issue for a punitive damages claim, if a court decides as a matter of law that the insurer does have an arguable or legitimate basis for its denial, the plaintiff is entitled to neither compensatory nor punitive damages. If, however, a court determines as a matter of law that the insurer lacks such a basis, the trier of fact must determine whether to award compensatory damages before the court can determine whether the trier of fact may also consider punitive damages. Thus, if an appellate court determines that an insurer lacks an arguable or legitimate basis, then the court must remand to 7 Case: 11-60458 Document: 00512283135 Page: 8 Date Filed: 06/21/2013 No. 11-60458 the district court for trial on compensatory damages and cannot simultaneously determine whether punitive damages are warranted. 3. Arguable or legitimate basis As noted above, whether an insurer possessed an arguable or legitimate reason is a question of law. Wigginton, 964 F.2d at 492 (citation omitted); Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228, 232-33 (Miss. 2001). “Arguable reason is defined as nothing more than an expression indicating the act or acts of the alleged tortfeasor do not rise to [the] heightened level of an independent tort.” Caldwell, 686 So. 2d at 1096 (citation and internal quotation marks omitted). The initial burden placed on the insurer is low: it “need only show that it had reasonable justifications, either in fact or in law” for its actions. Wigginton, 964 F.2d at 492 (citation omitted). Once an insurance company articulates an arguable or legitimate reason for its payment delay, the insured bears the burden of demonstrating that the insurer had no arguable reason. Caldwell, 686 So. [email protected]. “The plaintiff’s burden in this respect likewise exists at the summary judgment stage where the insurance company presents an adequate prima facie showing of a reasonably arguable basis for denial so as to preclude punitive damages.” Id. at 1097 n.1 (citation omitted). Whether a claimant has proven an insurer acted without a reasonable or arguable basis is determined by a preponderance of the evidence. See, e.g., Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 484 (Miss. 2002) (approving of jury instructions that used preponderance of the evidence standard); Mut. Life Ins. Co. of N.Y. v. Estate of Wesson, 517 So. 2d 521, 530 (Miss. 1987), abrogated on other grounds by Gen. Am. Life Ins. Co. v. McCraw, 963 So. 2d 1111, 1114 (Miss. 2007) (same).6 6 State Farm argues that James must establish the lack of an arguable or legitimate basis by clear and convincing evidence. While it is clear that the second part of the punitive damages test under State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So. 2d 637, 641 (Miss. 8 Case: 11-60458 Document: 00512283135 Page: 9 Date Filed: 06/21/2013 No. 11-60458 4. Insurer duties under Mississippi law Mississippi places a duty on insurers to properly investigate the claims asserted by their insured. Specifically, “[u]nder Mississippi law, insurers have a duty ‘to perform a prompt and adequate investigation and make a reasonable, good faith decision based on that investigation’ . . . .” Broussard, 523 F.3d at 627-28 (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 535 (Miss. 2003)). “A proper investigation means obtaining ‘all medical information relevant to a policyholder’s claim.’” McLendon v. Wal-Mart Stores, Inc., 521 F. Supp. 2d 561, 565 (S.D. Miss. 2007) (quoting Lewis v. Equity Nat’l Life Ins. Co., 637 So. 2d 183, 187 (Miss. 1994)). To do so, an insurer must “make a reasonable effort to secure all medical records relevant to the claim.” Stewart v. Gulf Guar. Life Ins. Co., 846 So. 2d 192, 204 (Miss. 2002) (citation and internal quotation marks omitted). C. Analysis Having set up the legal background to James’s bad faith claim, we now proceed to determine whether State Farm has an arguable or legitimate basis for delaying payment on James’s claim.7 The parties have framed the analysis of this issue as an all-or-nothing proposition. State Farm delayed payment from February 2006, when James reported the accident to State Farm, until July 29, 1998), does require clear and convincing evidence, see Miss. Code Ann. § 11-1-65, State Farm has identified no Mississippi court that has squarely addressed the question of whether establishing the lack of an arguable basis requires a similarly heightened standard. Moreover, the plain language of the Mississippi statute limits its heightened standard to proof of “actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or . . . actual fraud.” Miss. Code Ann. § 11-1-65(1)(a). This plainly addresses the second part of the punitive damages test, not the threshold issue that we consider today. Therefore, as State Farm has presented no contrary authority, we hold that the lack of an arguable or legitimate basis requires only proof by a preponderance of the evidence. 7 James also argues that State Farm withheld payment under one policy in order to coerce a lower settlement for claims under other policies. She concedes that she has no evidence to support this contention, and so she has waived this argument on appeal. See Fed. R. App. P. 28(a)(9)(A). 9 Case: 11-60458 Document: 00512283135 Page: 10 Date Filed: 06/21/2013 No. 11-60458 2008, when State Farm tendered payment. James argues State Farm had no arguable or legitimate basis for the entirety of this thirty month delay. According to State Farm, it reasonably delayed payment during the entire thirty-month period because it “was actively investigating the claim and attempting to resolve the relevant issues,” namely, the cause of James’s injuries. We agree that conducting a prompt and adequate investigation provides a legitimate basis for a payment delay. See Caldwell, 686 So. [email protected]. Therefore, to properly determine whether State Farm reasonably delayed payment, we need to analyze the record to understand when State Farm was actively investigating James’s claim and thus had a legitimate basis for its payment delay. The record shows the following: (1) State Farm was actively investigating James’s claim for about seventeen months of the thirty-month period and (2) State Farm had no arguable or legitimate basis for about thirteen months of the delay. 1. Legitimate Basis for Delay: February-May 30, 2006 (~4 months) State Farm argues it had a legitimate or arguable basis for delay from February through May 30, 2006 because it was attempting to determine whether Smith, the accident’s tortfeasor, was insured. We agree that State Farm was conducting a prompt and adequate investigation during this time period. James promptly notified State Farm of the accident in early February, and State Farm immediately began communicating with James about her collision and medical payments coverage. At the same time, State Farm was investigating whether Smith or the owner of the vehicle he was driving at the time of the accident had insurance coverage. If they had adequate insurance coverage, James’s UM coverage would not apply. During this period of time, State Farm’s claim representative attempted to reach Progressive, Smith’s former insurance company, multiple times, and left numerous voicemail messages for a Progressive contact who never returned State Farm’s calls. On 10 Case: 11-60458 Document: 00512283135 Page: 11 Date Filed: 06/21/2013 No. 11-60458 May 30, 2006, State Farm confirmed that Progressive had denied coverage, triggering State Farm’s UM coverage for accident-related injuries. The record thus shows that State Farm had a legitimate basis for failing to tender payment from February through May 30, 2006 as it was actively investigating whether James was covered by her policy’s UM benefits. 2. Legitimate Basis for Delay: May 31, 2006-July 20, 2006 (~6 weeks) State Farm argues its active investigation of James’s claim provides a legitimate or arguable basis for its delay. We agree with this contention for the time period lasting from May 31 through July 20, 2006. The record shows that State Farm received James’s signed medical authorization form, authorizing State Farm to obtain James’s medical records, on February 20, 2006. Thereafter, James continued to experience significant back pain for which she sought treatment. On May 8, 2006, she began seeing Dr. Ken Staggs at the Pain Treatment Center. On June 5, 2006, State Farm requested James’s medical records and bills from three medical facilities. James continued to apprise State Farm of her on- going medical treatment for which State Farm continued to promptly request medical records and bills. On June 21, 2006, State Farm received medical records from the Pain Treatment Center. The records stated that James had “compression fractures at T2, T3, T5 and T11 all ensuing from a motor vehicle accident presumed February 03, 2006 as there is edema on the MRI indicating that these are new.” Soon after, Renee Powell, the State Farm claim representative recently assigned to James’s file, noted that she had received the Pain Treatment Center records and reported that they diagnosed James as having “traumatic multi-thoracic compression fractures w/out retropulsion, T7-8 HNP w/o myelopathy or radiculopathy . . . .” Powell also observed the records listed past medical and surgical treatment James had received, and she specifically noted that the list did not include any spinal surgery. On July 18, 11 Case: 11-60458 Document: 00512283135 Page: 12 Date Filed: 06/21/2013 No. 11-60458 2006, Powell repeated her earlier entry about James’s diagnosis and further stated that “[i]f records do not show any more evidence of pre-existing issues, it seems that the medical records are supporting that [James’s] problems are a result of the [motor vehicle accident].” On July 20, 2006, Powell noted in James’s file, “Records from Wayne General indicate some degenerative changes in thoracic vertebrae with compression, but apparently the condition had not been causing any symptoms prior to loss, but I will review material closely as rec’d [sic].” By requesting and reviewing James’s medical records related to the accident, State Farm was engaged in an active investigation of James’s bodily injury claim during this time period. As an active investigation into an insured’s claim justifies a delay in payment, see Caldwell, 686 So. 2d at 1098, we agree with State Farm that there was a legitimate basis for this six-week delay. 3. No Legitimate Basis for Delay: July 20-October 4, 2006 (~11 weeks) State Farm argues its active investigation of James’s claim provides an arguable or legitimate basis for its payment delay. Because State Farm was not actively investigating James’s claim during this time period, we hold that James has met her burden of demonstrating by a preponderance of the evidence that State Farm did not have an arguable reason for this eleven-week period of delay. During this time period, James continued to receive medical treatment for her injuries, about which she continued to apprise State Farm. On July 25, 2006, James reported to Powell that her doctors attributed her medical problems to the motor vehicle accident. On July 30, 2006, State Farm received a bill from Staggs, which indicated that James was being treated for a thoracic compression fracture. Although Powell’s July 20 review of James’s medical records recognized that James’s symptoms might be due to a pre-existing injury that would not be 12 Case: 11-60458 Document: 00512283135 Page: 13 Date Filed: 06/21/2013 No. 11-60458 eligible for coverage under James’s UM motor vehicle coverage, State Farm did not act on this concern until October 5, 2006. On that date, Powell sent James a letter asking her to call to discuss the claim and, in the subsequent phone call, she apprised James of her questions about whether the injuries were caused by a pre-existing injury. The record does not show that Powell received any additional information bolstering her concern about a potential pre-existing injury during this time. Between July 20, 2006 and October 5, 2006, Powell spoke to James at least twice, but Powell admitted in her deposition that she did not discuss her pre-existing condition concerns “in detail.” Nor does the record provide any evidence that Powell raised these concerns with James prior to October 5, 2006. Because State Farm was not conducting any investigation during this time period, we conclude that it was not acting in accordance with its duty under Mississippi law “to perform a prompt and adequate investigation.” Broussard, 523 F.3d at 627 (citation omitted). State Farm has provided no explanation for its failure to inquire further into its concerns during this nearly three-month period. Critically, State Farm does not point to any evidence in the record that Powell received any additional information during this time before she contacted James on October 5, 2006 to obtain prior medical records. It thus follows that Powell could have sought this information in July. State Farm’s inexplicable delay in seeking these records did not comport with its duty to conduct a prompt investigation. Accordingly, we hold that James has satisfied her burden of demonstrating that State Farm had no arguable or legitimate reason for this eleven-week delay between July 20 and October 4, 2006. 13 Case: 11-60458 Document: 00512283135 Page: 14 Date Filed: 06/21/2013 No. 11-60458 4. Legitimate Basis for Delay: October 5, 2006-January 16, 2007 (~14 weeks) State Farm argues its active investigation of James’s claim provides a legitimate or arguable basis for its delay. We agree with this contention for the time period lasting from October 5, 2006 through January 16, 2007. During this period of time, Powell acted on her concern that James’s injury may have pre-dated the accident. On October 5, 2006, Powell sent James a letter asking her to call to discuss the claim. The letter stated, “If I can obtain some of your prior records, I may then be in a position to evaluate your uninsured motorist claim.” On October 9, 2006, James disclosed to Powell that she had fallen on concrete over twenty years ago and had been treated for lower back pain at that time, but had not been recently treated for any back problems. James also provided the names of all of her doctors to Powell. On October 10, 2006, Powell sent James an authorization for release of prior medical records. On October 19, 2006, Powell wrote James a letter, reminding her to return the medical authorization that would allow the release of her prior medical records. On October 27, 2006, James left a message for Powell, stating that she would not sign the medical authorization. The same day, Powell sent James a letter acknowledging James’s refusal. The letter noted in reference to some of the medical records State Farm had obtained, “As you can see, this does not clearly relate your ongoing treatment to an injury sustained in the accident and I am merely trying to determine if you had to treat for any of these pre-existing conditions prior to the accident [or] if they became symptomatic following the loss. I do not know if I will be able to properly evaluate your claim without that information, but I am waiting on some information from Dr. Staggs at this time.” On October 30, 2006, James called Powell to let her know that she would sign the medical authorization. James 14 Case: 11-60458 Document: 00512283135 Page: 15 Date Filed: 06/21/2013 No. 11-60458 then executed the prior records release on November 1, 2006, and State Farm received it on November 6, 2006. On October 27, 2006, State Farm sent a letter to Staggs, requesting all of James’s medical records. The letter elaborated, “I am trying to determine if [the thoracic compression fracture for which Staggs was treating James] was caused by the accident of February 3, 2006, since the intial radiology report indicated that this injury was probably old. If your notes do not comment on what injuries were caused in this accident or how the accident may have affected any pre- existing injuries, please advise via letter.” State Farm sent Staggs a second request for James’s medical records on November 17, 2006. On January 16, 2007, Total Pain Care responded to State Farm’s medical records request, but advised that records prior to August 14, 2006 needed to be requested from a different facility. Powell did not contact Staggs again. Seeking further clarification from the insured’s treating physician as to the cause of the insured’s injury is a legitimate basis for a delay of payment. Therefore, we conclude that State Farm’s actions in attempting to resolve its questions via James’s treating physician met State Farm’s low burden to provide a legitimate justification for its delay during this time period. 5. No Legitimate Basis for Delay: January 17, 2007-July 11, 2007 (~25 weeks) State Farm asserts its active investigation of James’s claim provides a legitimate or arguable basis for its delay. Because State Farm was not engaged in an active investigation between January 17, 2007 and July 12, 2007, we reject this argument. State Farm also presses that James’s lawyer, Joe Clay Hamilton, failed to provide medical records, the delay of which should not be attributed to State Farm. Because the record contains no evidence that State Farm informed James’s lawyer that it was concerned about the etiology of James’s injuries, we decline to attribute the delay to James. State Farm also 15 Case: 11-60458 Document: 00512283135 Page: 16 Date Filed: 06/21/2013 No. 11-60458 argues that the delay is attributable to Staggs, whose medical records allegedly caused further confusion as to the cause of James’s injuries. We similarly reject this argument because Staggs sufficiently responded to State Farm’s inquiry, and State Farm did not follow up with Staggs to seek further clarification. On December 11, 2006, Hamilton notified State Farm that he was representing James and advised that he would forward James’s medical bills and records when she had completed treatment. The same day, Powell acknowledged Hamilton’s representation and added, “Please forward all related medical and wage information you have concerning your client’s injuries.” Over the next several months, Powell sent Hamilton several letters, requesting “material” for James. Critically, it was not until July 12, 2007 that Powell notified Hamilton that she required prior medical records to fully assess James’s claim. State Farm argues on appeal that Staggs’ January 16, 2007 medical records further confused its claim representatives, but the record does not disclose that Powell ever mentioned that confusion to Hamilton or the need for prior medical records until her July 12, 2007 letter. While it is true that Powell sent several letters to Hamilton during this time period to which he did not respond, Powell’s letters do not indicate any active investigation into State Farm’s concern about the etiology of James’s injury. The record does not demonstrate that Powell ever communicated to Hamilton during this time period that she was concerned about the possible pre- existing nature of James’s injuries, nor does the record show that Powell indicated to Hamilton that he should seek to gather prior medical records, not just evidence of current treatment.8 Specifically, in her letter, Powell explained that “the initial [radiologist] reports indicated the compression fractures that 8 Indeed, it was not until September 25, 2007 that Powell informed Hamilton that she required one year of prior records from all of James’s physicians, whom she specifically named. James had disclosed the names of her physicians to Powell in October 2006. 16 Case: 11-60458 Document: 00512283135 Page: 17 Date Filed: 06/21/2013 No. 11-60458 Ms. James has are probably old. . . . We will likely need some of her prior records to confirm her condition prior to loss as opposed to following the loss so you may want to request those as well.” There is no evidence in the record that Powell obtained these records after she became aware of Hamilton’s representation. To the contrary, there is ample evidence that, prior to January 17, 2006, she had these records and had noted the possibility that James’s injuries pre-dated the accident. Therefore, the record demonstrates no reason why Powell waited until July 2007 to inform Hamilton of her concerns and her need for prior medical records. Under Mississippi law, a delay is not attributable to an insurer where the insured or his counsel refuses to cooperate or provide the necessary information. See Pilate, 865 So. [email protected]. If an insured’s lawyer advises the insurer to stop its investigation pending his sending medical records, the resulting delay until the lawyer sends the records is attributable to the insured. However, as the burden is on the insurer to gather all necessary medical records, if the insurer fails to inform the lawyer of critical information necessary to further its investigation, the delay in obtaining that information is not attributable to the lawyer but to the insurer. As State Farm did not inform Hamilton that it needed James’s prior medical records to resolve questions about the causation of her injuries, State Farm is responsible for the resulting delay in investigating James’s claim. State Farm also argues that its delay should be attributed to Staggs because he did not provide clarification as to whether James’s injuries were a result of the motor vehicle accident. We disagree. We do not express an opinion as to whether Staggs’s medical records actually were confusing. Instead, we observe that after Powell received Staggs’s medical records in January 2007, she never contacted Staggs to seek further clarification nor did she notify Hamilton of her confusion. Moreover, the delay is not attributable to Staggs because, as 17 Case: 11-60458 Document: 00512283135 Page: 18 Date Filed: 06/21/2013 No. 11-60458 James argues, he reasonably could have believed that he had complied with Powell’s request to provide further information. If Staggs believed his records were clear, he needed to provide no further information. That they were unclear to Powell, who did not seek further clarification, is not Staggs’s fault and thus is not chargeable to James. See Stewart, 846 So. 2d at 204 (citation omitted). Accordingly, we conclude that James has met her burden of proving that State Farm had no legitimate or arguable basis for delaying its payment during this time period. 6. Legitimate Basis for Delay: July 12, 2007-March 28, 2008 (~8 months) We agree that State Farm had a legitimate reason for the eight-month period of delay between July 12, 2007 and March 28, 2008 because State Farm was actively attempting to resolve causation issues related to James’s injuries. As discussed above, on July 12, 2007, Powell informed Hamilton that the medical records presented conflicting information about the age of James’s injuries and advised him that “[w]e will likely need some of [James’s] prior records to confirm her condition prior to the loss as opposed to following the loss so you may want to request those as well.” Powell also talked to Hamilton multiple times in August, and he assured her that he would obtain clarification from Staggs. Once Powell received the medical records from Hamilton, Powell conducted a prompt review and then sought a second opinion from another State Farm employee, who also pointed out the conflicting information about the etiology of the injuries.9 On September 25, 2007, Powell requested that 9 James contends that this review was improper because the Injury Claim Trainer who evaluated the records was not a medical doctor. However, James has provided no authority to support her claim, so she has waived this argument. See Fed R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . citations to the authorities . . . .”); see also Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (collecting citations) (“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”). 18 Case: 11-60458 Document: 00512283135 Page: 19 Date Filed: 06/21/2013 No. 11-60458 Hamilton provide one year of prior records from all of James’s doctors. On March 28, 2008, State Farm received, from Hamilton, Staggs’s clarification about his medical records. Therefore, based on the evidence in the record, we conclude that State Farm was engaged in an active investigation of the cause of James’s medical condition. As this justifies a payment delay, we conclude that State Farm had a legitimate reason for its delay during this time period. See Caldwell, 686 So. [email protected]. 7. No Legitimate Basis for Delay: March 29, 2008-July 29, 2008 (~4 months) State Farm argues that it paid James’s UM claims “in an attempt to resolve and streamline issues of dispute in this case.” The record contains little evidence of State Farm’s investigative actions during this time period because State Farm’s claims file terminates on September 27, 2007. The evidence in the record shows that James filed suit against State Farm on October 23, 2007. On March 28, 2008, State Farm received Staggs’s clarification about his medical records, although State Farm claims this clarification only served to create further confusion. There is no evidence in the record that State Farm received any additional information about James’s medical claims between March 28, 2008 and July 29, 2008, when State Farm paid James’s claims in full.10 “[A]n insured’s filing of a suit on the claim does not suspend the insurer’s obligation to promptly pay claims that are admittedly owed.” Jeffrey Jackson, Mississippi Insurance Law & Practice § 10.2 (2012). There is no evidence in the record that State Farm received any additional information from James after March 28, 2008, yet State Farm waited an additional four months before it 10 For example, Staggs was not deposed until January 2009. 19 Case: 11-60458 Document: 00512283135 Page: 20 Date Filed: 06/21/2013 No. 11-60458 tendered payment. State Farm has not advanced an explanation for this delay nor presented any evidence of additional investigative actions it undertook during this time period, even though it has had ample opportunity to do so over the course of this lengthy litigation. Therefore, we hold that James has met her burden of proving that State Farm had no legitimate or arguable basis for delaying its payment during this time period. D. Conclusion In summary, this case falls far short of any standard of prompt handling by either side. Compounding this delay is that State Farm’s summary judgment motion lay dormant in the district court for over two years. It is inexplicable that an accident that occurred in February 2006 has not moved past the preliminary stages of litigation by the Spring of 2013. All parties will be best served by the expeditious resolution of this case. After our careful review of the lengthy summary judgment record, we hold as a matter of law that State Farm had no arguable or legitimate basis for about fifty-three weeks of its delay, from July 20, 2006 through October 4, 2006, from January 17, 2007 through July 11, 2007, and from March 29, 2008 through July 29, 2008. Because James established, as a matter of law, that State Farm had no arguable or legitimate basis for these periods of the delay, she is entitled to present her compensatory damages claim to a finder of fact upon remand.11 We make no determination as to whether James is entitled to present the issue of punitive damages to a jury. 11 The dissent asserts that the record shows “at most . . . mere negligence on the part of State Farm” and that negligence alone is insufficient to support a trial on compensatory damages. Post, at 6. Neither party asserted that State Farm’s delay was due to negligence. Therefore, we have not considered this issue, nor do we express an opinion on it. Our opinion holds that State Farm has no arguable or legitimate basis for some of its payment delay. When James presents her claim to a fact finder, our opinion does not precludes State Farm from arguing that its delay was attributable to mere negligence. It is for the fact finder to determine whether James is entitled to compensatory damages—and if so, in what amount—given State Farm’s delays. 20 Case: 11-60458 Document: 00512283135 Page: 21 Date Filed: 06/21/2013 No. 11-60458 III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment as to any breach of contract claim. We hold as a matter of law that State Farm had no arguable or legitimate basis for its delay between July 20, 2006 through October 4, 2006, from January 17, 2007 through July 11, 2007, and from March 29, 2008 through July 29, 2008. Therefore, we REVERSE the district court’s grant of summary judgment as to James’s bad faith claim and REMAND for further proceedings consistent with this opinion. Given the length of time that has elapsed since James filed suit, we ORDER the district court to proceed expeditiously. 21 Case: 11-60458 Document: 00512283135 Page: 22 Date Filed: 06/21/2013 No. 11-60458 EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that we should affirm the district court to the extent that it granted summary judgment on James’ breach of contract claim. I dissent in the reversal of the grant of summary judgment on James’ claim for compensatory and punitive damages for the reasons specifically stated by the district court in its opinion, attached hereto as an Appendix. I disagree with the majority’s conclusion that State Farm had no arguable or legitimate basis for delaying payment to James on her uninsured motorist claim from July 20, 2006 through October 4, 2006, from January 17, 2007 through July 11, 2007, and from March 29, 2008 through July 29, 2008. The majority holds State Farm had no legitimate basis for delay from July 20, 2006 until October 4, 2006 because, despite State Farm’s determination that James’ symptoms might be due to pre-existing injuries, State Farm did not “act on this concern” until October 5, 2006, when Powell wrote to James asking her to call to discuss her claim. Ante, at 13. Despite the fact that during this period State Farm’s activity log indicates Powell made multiple attempts to reach James, and Powell and James had at least three conversations, the majority holds that State Farm was not actively investigating James’ claim because Powell stated in her deposition that she did not discuss James’ pre-existing condition concerns “in detail” during her conversations with James during this period, Ante, at 13. On July 18, 2006, just two days prior to the start of this period, Powell sent medical record requests to six different facilities. When Powell noted on July 20, 2006, that the medical records from Wayne General indicated degenerative changes, State Farm could not yet make a conclusive determination with respect to James’ symptoms because medical record requests made to five other facilities were still outstanding. During the following six weeks Powell continued to follow up on requests for medical records and pay 22 Case: 11-60458 Document: 00512283135 Page: 23 Date Filed: 06/21/2013 No. 11-60458 invoices for records. Therefore, in light of the facts that the etiology of James’ injury was in doubt, State Farm had multiple outstanding medical record requests, and Powell made multiple attempts to reach James and had at least three conversations with James during the six-week period, I cannot agree that State Farm did not have a legitimate basis for delaying payment on James’ claim during this period. The majority holds that State Farm had no legitimate basis for delay from January 17, 2007 through July 11, 2007 because even though State Farm did not yet have the requisite medical records to evaluate James’ claim, during this period State Farm did not specifically communicate “the need for prior medical records” to James or her attorney, Hamilton. Ante, at 15–18. The majority holds, “[b]ecause the record contains no evidence that State Farm informed James’ lawyer that it was concerned about the etiology of James’ injuries, we decline to attribute the delay to James.” Ante, at 15. State Farm did, however, request James’ medical records from (1) James on October 5, 2006 and October 27, 2006 (2) James’ doctor, Dr. Staggs, on October 27, 2006 and November 17, 2006 and (3) Hamilton on December 11, 2006, May 3, 2007, and June 13, 2007. Letters from Powell to James and Dr. Staggs clearly state the need for prior medical records in order to fully assess James’ claim and determine the etiology of James’ injury. An October 5, 2006 letter to James stated: “If I can obtain some of your prior records, I may then be in a position to evaluate your uninsured motorist claim.” The follow-up letter on October 27, 2006 was even more specific: “I am merely trying to determine if you had to treat for any of these pre- existing conditions prior to the accident or if they became symptomatic following the loss. I do not know if I will be able to properly evaluate your claim without that information, but I am waiting on some information from Dr. Staggs at this time.” A letter to Dr. Staggs, sent first on October 27, 2006 and again on 23 Case: 11-60458 Document: 00512283135 Page: 24 Date Filed: 06/21/2013 No. 11-60458 November 17, 2006 explained: “I am trying to determine if this was caused by the accident of February 3, 2006, since the initial radiology report indicated that this injury was probably old. If your notes do not comment on what injuries were caused in this accident or how the accident may have affected any pre- existing injuries, please advise via letter. In a letter from Hamilton on December 7, 2006, Hamilton stated he would “forward to you [State Farm] copies of all medical bills and medical records when my clients have completed treatment. Powell acknowledged receipt of Hamilton’s letter. And, in accordance with the practices Powell and Hamilton had established over their 30 years of prior dealings, as well as Hamilton’s December 7, 2006 letter indicating he would send the records, Powell waited for Hamilton to send a medical records package. In State Farm’s activity log, Powell noted again on January 22, 2007 that Hamilton would send all material when he has it. Powell followed up with Hamilton on May 3, 2007 and June 13, 2007, reminding him to forward James’ medical records when they became available, but Hamilton did not respond. The conflict between, on the one hand, Dr. Staggs’ report indicating the injuries were new, and on the other hand, notes from an office visit indicating the fractures were old, radiology reports stating the injuries were likely chronic, and James’ own report of a prior back injury, was not resolved, if at all, until March 28, 2008 when Dr. Staggs clarified by fax that his opinion was that James’ injuries were new.1 In Dr. Staggs’ deposition, he acknowledged the lack of clarity, confusing nature, and misleading language in the reports multiple times. In light of the conflicting reports and State Farm’s efforts to 1 Dr. Staggs’ clarifying fax consisted only of the words, “According to my 7/6/06 notes those fractures were recent at that time.” 24 Case: 11-60458 Document: 00512283135 Page: 25 Date Filed: 06/21/2013 No. 11-60458 obtain the required medical records from James, Dr. Staggs, and Hamilton, and Powell’s reasonable belief that Hamilton would send the records when he had them, I cannot agree that State Farm had no arguable basis for delaying payment on James’ claim during this period. The majority holds State Farm lacked an arguable basis for delaying payment on James’ claim from March 29, 2008, the day after State Farm received the clarifying fax from Dr. Staggs, until July 29, 2008, when State Farm tendered payment on James’ uninsured motorist claim. Ante, at 19–20. While Dr. Staggs’ fax clarified his opinion on James’ injuries, the radiology reports conflicted with Dr. Staggs’ fax and State Farm never received some of James’ prior medical information, initially requested in October 2006.2 In his deposition Dr. Staggs stated (1) the radiology reports were inconsistent with his finding that the injuries were new, (2) the CT showed evidence of a preexisting injury, and (3) there were inconsistencies in James’ medical records as to the origin of her injury. Even assuming Dr. Staggs’ fax provided sufficient information to clarify the inconsistences, upon receiving Dr. Staggs’ fax, State Farm needed at least some reasonable amount of time to review James’ claim in light of the new information. The bad faith clock does not begin to tick “as soon as there is any information available that could subsequently be considered as sufficient evidence to support the payment of [the claim].” Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 399 (Miss. Ct. App. 2004) (holding insurer did not act in bad faith in delaying payment on claim even five months after receiving sufficient 2 Powell logged a package of medical records as received from Hamilton on August 31, 2007. Powell wrote to Hamilton on September 25, 2007, requesting prior medical records from Dr. Byrd, Dr. Green, and Dr. Daggett, but Hamilton never responded to this request. 25 Case: 11-60458 Document: 00512283135 Page: 26 Date Filed: 06/21/2013 No. 11-60458 medical records to make determination regarding disability); Caldwell v. Alfa Ins. Co., 686 So. 2d 1092, 1098 (Miss. 1996) (affirming grant of summary judgment to insurer on bad faith claim even though insurer delayed payment for six weeks after it completed investigation). Therefore, State Farm did not lack an arguable basis for delaying payment on James’ claim from March 29, 2008 through July 29, 2008. Moreover, the majority cites no authority in support of its methodology of dividing the investigation into different intervals and selecting intervals of apparent inaction for which the plaintiff is entitled to present a claim for compensatory damages to a jury. The parties have not cited, nor have we found, any Mississippi Supreme Court case suggesting that in bad faith delayed payment claims courts should parse out intervals of apparent inaction when the record as a whole indicates repeated attempts to obtain the records necessary to determine liability. The district court’s more holistic approach of evaluating whether State Farm’s actions throughout the course of its investigation rose to the level of an independent tort is more in line with precedent. To prove bad faith, whether in a denial of payment or a delay of payment case, the plaintiff must show the insurer had no arguable basis for denying or delaying payment on the claim. Id. at 871. “[T]he plaintiff bears a heavy burden in demonstrating to the trial court that there was no reasonably arguable basis for denying the claim.” Windmon v. Marshall, 926 So. 2d 867, 872 (Miss. 2006). “An arguable reason has been defined by this Court as nothing more than an expression indicating the act or acts of the alleged tortfeasor do not rise to [the] heightened level of an 26 Case: 11-60458 Document: 00512283135 Page: 27 Date Filed: 06/21/2013 No. 11-60458 independent tort.”3 Id. (quoting Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 293 (Miss. 1992)). Where the record at most demonstrates mere negligence, an insurer’s actions do not rise to the level of an independent tort. Id. Assuming for the sake of argument that the majority is correct that State Farm’s investigation lacked diligence during certain intervals, the majority at most demonstrates mere negligence on the part of State Farm. See Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1187 (Miss. 1990) (“[A]s a matter of law, ordinary torts, the product of forgetfulness, oversight, or the like, do not rise to the heightened level of an independent tort . . . .”) (internal quotation marks omitted). Concluding that during particular intervals State Farm’s investigation was inactive, the majority holds James is entitled to present her compensatory damages claim to a finder of fact upon remand. Ante, at 20. In Windmon v. Marshall, however, the Mississippi Supreme Court held that where the insurer’s conduct in delaying payment on a claim did not rise to the level of an independent tort, a trial on compensatory damages was improper. 926 So. 2d at 875; see Fulton v. Mississippi Farm Bureau Cas. Ins. Co., 105 So. 3d 284, 288 (Miss. 2012) (“[T]his Court has noted that mere negligence, without bad faith, ‘is not such an independent tort that would support extracontractual damages.’” 3 The majority separates the inquiry of whether State Farm had an arguable or legitimate basis for its payment delay from whether State Farm’s actions amounted to mere negligence. Ante, at 20 n.11. Windmon squarely contradicts this approach, as the Mississippi Supreme Court held the two inquiries are inseparable. Windmon, 926 So. [email protected]. The majority also states “that neither party asserted that State Farm’s delay was due to negligence.” Ante, at 20 n.11. In State Farm’s brief, however, while not admitting to negligence, State Farm alleges that in any event, the delay was not so unreasonable as to constitute an independent tort. See Brief of Appellee at 29, 52, 54–55. 27 Case: 11-60458 Document: 00512283135 Page: 28 Date Filed: 06/21/2013 No. 11-60458 (quoting Veasley, 610 So.2d at 295)).4 As James was in large part responsible for the delay, the etiology of James’ injury was legitimately in doubt, and State Farm made numerous unsuccessful attempts to obtain the required records from James, her doctors, and her attorney, the facts in this case do not rise to the level of an independent tort. Accordingly, I agree with the district court that summary judgment was appropriate on James’ compensatory and punitive damages claims.5 Respectfully, I dissent. 4 The Mississippi Supreme Court’s holding in Fulton v. Mississippi Farm Bureau Casualty Insurance Company, that by awarding the plaintiff compensatory damages, the jury did not necessarily find the insurer liable for an “independent and intentional tort,” is not inapposite. 105 So. [email protected]. The court repeatedly stressed that the propriety of the jury’s award of compensatory damages was [email protected]. Id. at 289. Thus, the court did not hold that a jury may award compensatory damages absent conduct rising to the level of an independent tort, but rather held where a jury has awarded compensatory damages and the propriety of those damages is not at issue on appeal, courts cannot infer that the jury necessarily found an independent tort. Id. at 290 n.25 (“[W]ithout a finding, the court cannot assume the jury found conduct rising to the level of an intentional tort, amounting to gross negligence or recklessness, thus warranting extracontractual damages.” (citing Stewart v. Gulf Guar. Life Ins. Co., 846 So. 2d 192, 201 (Miss. 2002))). 5 Given my agreement with the district court that State Farm had an arguable basis for delaying payment on James’ claim, I need not address the issue of punitive damages. Even if, however, State Farm had no arguable basis for delay, punitive damages would be improper. “In order to recover punitive damages from the insurer for bad faith, the insured must demonstrate that the insurer’s breach of the insurance contract ‘results from an intentional wrong, insult, or abuse as well as from such gross negligence as constitutes an intentional tort.’” Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 (5th Cir. 2008) (quoting Caldwell, 686 So. 2d at 1095). I agree with the district court that the facts here do not present a genuine issue of material fact as to whether that standard was met. 28 Case: 11-60458 Document: 00512283135 Page: 29 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 30 Date Filed: 06/21/2013 No. 11-60458 Appendix Case: 11-60458 Document: 00512283135 Page: 31 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 32 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 33 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 34 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 35 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 36 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 37 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 38 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 39 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 40 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 41 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 42 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 43 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 44 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 45 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 46 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 47 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 48 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 49 Date Filed: 06/21/2013 No. 11-60458 Case: 11-60458 Document: 00512283135 Page: 50 Date Filed: 06/21/2013 No. 11-60458
MEMORANDUM DECISION Jun 11 2015, 9:18 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana Tracy A. Nelson Angela N. Sanchez Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Gary Wilson, June 11, 2015 Appellant-Petitioner, Court of Appeals Cause No. 79A02-1410-PC-694 v. Appeal from the Tippecanoe Circuit Court Cause No. 79C01-1004-PC-2 State of Indiana, Appellee-Respondent. The Honorable Donald Daniel, Judge Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 1 of 12 Case Summary [1] Gary Wilson appeals the denial of his petition for post-conviction relief, which challenged two of his convictions for Class B felony sexual misconduct with a minor. We affirm. Issue [2] The sole issue before us is whether Wilson received ineffective assistance of trial counsel. Facts [3] On July 6, 2005, fourteen-year-old D.W. told her mother that Wilson, her father, had been committing sexual acts with her. Specifically, D.W. later testified during trial that Wilson had started fondling her breasts and vagina about one year before she told her mother. The fondling progressed from initially being over her clothes to under them. D.W. further testified that, on the morning of July 6, 2005, Wilson kissed her legs and rubbed her breasts, and he then pulled aside her shorts and kissed her vagina. D.W. also testified that a few days before this incident, Wilson had kissed her legs and rubbed her breasts but had not kissed her vagina; she also stated that no other incidents similar to these had ever occurred. [4] After D.W. reported Wilson’s conduct to her mother, her mother contacted police, and Wilson agreed to a videotaped interview at the police station. During the interview, Wilson admitted that he had briefly performed oral sex on D.W. on the morning of July 6, 2005, after first kissing her legs. Wilson also Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 2 of 12 stated that he had performed similar acts on D.W., each lasting less than a minute, on two other occasions in the week and a half prior to July 6. Wilson denied ever fondling D.W.’s vagina and also stated that he had fondled her breasts once, about two weeks earlier. [5] Later, Wilson wrote several letters to his wife and son. Several of the letters contained general apologies without going into details of what had occurred with D.W. In the final letter to his wife, Wilson provided more details of what had occurred and his thought processes: I was ashamed to admit I had a problem with my own lust. “Pride” kept me from asking for help or addressing the issue. . . . In my confusion of mind and my fear of all the time she was spending with boys I was afraid she would end up pregnant . . . so in some sick way I thought I’d show her another way to experience pleasure and maybe she wouldn’t let boys jump on her the other way. . . . If [D.W.]’ll admit that she tried to hide the truth by saying I came to her room and fondled her breast “which never happened once” I was at work I’ll prove that. I only admitted to putting my face in her private area once and pressing in with my nose and mouth, that she wasn’t unclothed and it was only a couple of seconds. The other 2 times I just admitted to kissing her legs and moving up slightly. Which was normal for as you know I always kissed them both all over and it was never perverted, but that last time the Medication, my state of trauma (you know my mind was broke. Jekll & Hide [sic]“) Lust and perversion” Immorality did get me. Ex. 12, 13.1 Wilson also stated to his wife: Get rid of these more serious charges. I can beat her at a jury if you don’t talk or agree on the extent of the seriousness of these incidents 1 Exhibit 12 was the original handwritten letter, while Exhibit 13 was a photocopy of the letter. Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 3 of 12 that it had just happened it hadn’t been going on for some time and hadn’t escalated to any penetration or sexually deviant crime. Id. [6] The State filed a thirteen-count information against Wilson, charging him with four counts of Class B felony incest, four counts of Class B felony sexual misconduct with a minor, and five counts of Class C felony sexual misconduct with a minor. At Wilson’s jury trial, the State introduced without objection his videotaped police interview. Additionally, the State introduced without objection the letters Wilson had written to his wife and son. The jury found Wilson guilty of three counts of incest, three counts of Class B felony sexual misconduct with a minor, and two counts of Class C felony sexual misconduct with a minor. The trial court merged the incest convictions with the three Class B felony sexual misconduct with a minor convictions. These convictions were related to Wilson having performed oral sex on D.W. The trial court sentenced Wilson to a total term of sixty years. On direct appeal, we rejected Wilson’s claim of a violation of Indiana Trial Rule 4(C) and found that his sentence was not inappropriate. Wilson v. State, No. 79A05-0807-CR-429 (Ind. Ct. App. May 4, 2009), trans. denied. [7] Wilson subsequently filed a PCR petition, alleging that he had received ineffective assistance of trial counsel. Specifically, Wilson asserted that trial counsel should have objected to introduction of his videotaped statement and his letters to his wife and son because there was insufficient corpus delicti evidence, independent of his confession, that he committed three acts of Class B Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 4 of 12 felony sexual misconduct with a minor via oral sex as opposed to just one act, as testified to by D.W. at trial. Wilson did not attempt to present any evidence from his trial attorney, by testimony or affidavit. On this claim, Wilson only sought to set aside two of his Class B felony sexual misconduct with a minor convictions. The post-conviction court rejected Wilson’s argument and denied his PCR petition.2 In part, the post-conviction court held that Wilson’s letters to his wife and son helped provide corroborating evidence for D.W.’s testimony that provided a sufficient corpus delicti to allow admission of his videotaped statement. However, the post-conviction court failed to address Wilson’s contention that the letters themselves could not provide corroborating evidence of D.W.’s testimony because they also were out-of-court admissions, just like the videotaped statement. Wilson now appeals. Analysis [8] A post-conviction relief petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013) (citing Ind. Post–Conviction Rule 1(5)). A petitioner appealing the denial of post-conviction relief is appealing from a negative judgment. Id. “To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion 2 Wilson also argued that appellate counsel was ineffective for not arguing that his crimes were subject to consecutive sentencing limitations. The post-conviction court also rejected this claim, and Wilson does not raise it on appeal. Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 5 of 12 opposite that reached by the post-conviction court.” Id. Additionally, Indiana Post–Conviction Rule 1(6) requires a post-conviction court to enter findings of fact and conclusions of law. We do not defer to any legal conclusions made by the post-conviction court, but we will reverse its findings and judgment only when there has been clear error—“‘that which leaves us with a definite and firm conviction that a mistake has been made.’” Id. (quoting Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), cert. denied). [9] A petitioner claiming to have received ineffective assistance of trial counsel in violation of the Sixth Amendment must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Id. First, a petitioner must show that counsel’s performance was deficient. Id. “This requires a showing that counsel’s representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.” Id. Second, a petitioner must show that the deficient performance prejudiced the defense. Id. This requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial, meaning a trial whose result is reliable. Id. In order to establish prejudice, it must be shown that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. “A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Id. “We afford counsel considerable discretion in choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 6 of 12 representation ineffective.’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied). If a claim of ineffective assistance is based upon a failure to object to evidence, “a defendant must prove that an objection would have been sustained, that the failure to object was unreasonable, and that he was prejudiced.” Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 1997). [10] Our supreme court has discussed Indiana’s corpus delicti rule as follows: In Indiana, a crime may not be proven based solely on a confession, and admission of a confession requires some independent evidence of the crime including evidence of the specific kind of injury and evidence that the injury was caused by criminal conduct. However, this evidence need not prove that a crime was committed beyond a reasonable doubt, but merely “provide an inference that a crime was committed.” Finally, this inference of a crime may be established by circumstantial evidence. Workman v. State, 716 N.E.2d 445, 447-48 (Ind. 1999) (citations omitted). In 1990, our supreme court considered arguments for rejecting the corpus delicti rule but ultimately declined to do so: The corpus delicti rule arose from judicial hesitancy to accept without adequate corroboration a defendant's out-of-court confession of criminal activity. The primary function of the rule is to reduce the risk of convicting a defendant based on his confession for a crime that did not occur. Other justifications include the reduction of confessions produced by coercive tactics and the encouragement of thorough police investigations. The extent to which the rule actually furthers these goals has been seriously questioned, especially in light of developing procedural safeguards for voluntary confessions. Willoughby v. State, 552 N.E.2d 462, 466 (Ind. 1990) (citations omitted). Ultimately, the court in Willoughby held: Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 7 of 12 We are persuaded that where a defendant confesses to several crimes of varying severity within a single criminal episode, strict and separate application of the corpus delicti rule to each offense adds little to the ultimate reliability of the confession once independent evidence of the principal crimes is introduced. The confession at that point has been substantially corroborated. In such a case the confession stands as direct evidence of each crime, even those not separately corroborated, if the independent evidence establishes the corpus delicti of the principal crime or crimes. Id. at 467. [11] In Workman, the court further elaborated on what the phrase “single criminal episode” means within the context of the corpus delicti rule. It looked to decisions from this court defining “criminal episode” in the context of statutory consecutive sentencing limitations. Workman, 716 [email protected]. Specifically, the court stated, “‘[E]pisode means an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.’” Id. (quoting Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995)). “Indiana Code § 35-50-1-2(b) defines an episode of criminal conduct as ‘a connected series of offenses that are closely related in time, place, and circumstance.’” Id. In Workman, the court held that the defendant’s abuse of his wife’s corpse several hours after he had murdered her was part of the same “criminal episode” as the murder for which there was ample independent evidence, and so the defendant’s confession for also abusing the corpse was admissible. Id. [12] Here, the post-conviction court specifically found that three different acts of oral sex upon D.W. by Wilson on three separate days would not have constituted a Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 8 of 12 “single criminal episode.” Regardless, it found that there was sufficient corroborative evidence of three different such acts, despite D.W.’s testimony that there was only one act. In large part, however, the post-conviction court relied upon the letters from Wilson to his wife and son, especially the last letter he wrote. Wilson specifically challenged the admission of these letters on corpus delicti grounds as well, but the post-conviction court did not address that challenge. [13] It is unclear whether the corpus delicti rule is intended to apply to any out-of- court statements made by a defendant, as opposed to only statements made during police interrogations. Wilson has not cited any cases where the rule was applied to statements made outside of a police interrogation. And, one of the central purposes of the rule is reduce “confessions produced by coercive tactics and the encouragement of thorough police investigations.” Willoughby, 552 [email protected]. That purpose does not apply to voluntary statements made by a defendant to third parties who are not law enforcement officers. On the other hand, the rule has not been explicitly limited only to police interrogation “confessions” and has been said to apply to “admissions” as well. See, e.g., Green v. State, 159 Ind. App. 68, 79, 304 N.E.2d 845, 851-52 (1973) (referring to corpus delicti rule and application to “an admission or confession”). “‘An admission differs from a confession in that a confession acknowledges all of the essential elements of the crime.’” Flanders v. State, 609 S.E.2d 346, 350 (Ga. 2005) (quoting Walsh v. State, 499 S.E.2d 332, 335 (Ga. 1998)). We conclude that, given the lack of a definitive holding that admissions by a defendant to Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 9 of 12 another person outside the context of a police interview are covered by the corpus delicti rule, we cannot say trial counsel was ineffective for not objecting to introduction of Wilson’s letters as violating that rule. [14] In any event, even if both the letters and Wilson’s videotaped statement were covered by the corpus delicti rule, we believe trial counsel was not ineffective for failing to object to either the letters or the videotaped statement. D.W. testified that Wilson molested her over the course of about a year. She described the acts as progressing from fondling her breasts and vagina over her clothes, to fondling under her clothes, to kissing her legs but not her vagina, and finally to an instance where Wilson briefly performed oral sex on her. Even though D.W. only recalled one instance of oral sex, she described a pattern of escalating molestation over the course of a year culminating in oral sex. Thus, there is evidence of D.W. being subjected to repeated sexual acts by Wilson. Even if her testimony did not establish all the elements for three counts of Class B felony sexual misconduct with a minor, it did not have to do so in order for Wilson’s extrajudicial statements to be admissible. Wilson’s videotaped statement and letters also describe several sexual acts and, although Wilson’s statements are not perfectly consistent with D.W.’s testimony, there is significant overlap. In other words, D.W.’s testimony sufficiently corroborates Wilson’s out-of-court statements. [15] Wilson nonetheless contends that, because the other two alleged acts of oral sex with D.W. as related in his videotaped statement occurred on other days than the act to which D.W. testified, they cannot be considered part of the same Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 10 of 12 “criminal episode” and so Wilson’s confession to those other two acts are inadmissible, per the holding in Workman. We agree that, in strictly applying the sentencing definition of a “single criminal episode,” the three alleged acts of oral sex did not constitute such an episode, as found by the post-conviction court and essentially conceded by the State on appeal. See Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (holding defendant’s six cashing of checks stolen from two victims at different times and at different locations were not a single episode of criminal conduct because “they were not ‘simultaneous’ and ‘contemporaneous’ with one another”) (quoting Tedlock, 656 N.E.2d at 276). However, it is not perfectly clear that Workman was intended to create a bright- line rule whereby a series of crimes falling outside the sentencing definition of “single criminal episode” was governed by the corpus delicti rule while only those series of crimes falling within it were exempt from the rule. Rather, we believe Willoughby and Workman can be read together as indicating that flexibility should be applied in considering whether the corpus delicti rule has been satisfied so as to allow admission of a defendant’s extrajudicial admissions and confessions. Workman looked to the sentencing definition of “single criminal episode” for guidance, but it did not state that such definition was binding in all cases in which a corpus delicti issue is raised. [16] Especially within the context of an ineffective assistance of counsel claim, it would have been within the broad realm of judgment entrusted to an attorney to conclude that the corpus delicti rule would not prohibit introduction of Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 11 of 12 Wilson’s videotaped statement and letters.3 It appears that the purposes of the corpus delicti rule were satisfied by D.W.’s testimony: to establish by evidence independent of Wilson’s out-of-court statements that multiple sex crimes against her had in fact occurred, and that those statements were not the result of coercion. As such, we cannot say it was unreasonable for trial counsel not to object to introduction of Wilson’s videotaped statement and letters. Wilson did not meet his burden of establishing that he received ineffective assistance of trial counsel. Conclusion [17] The post-conviction court did not clearly err in concluding that Wilson did not receive ineffective assistance of trial counsel. We affirm the denial of Wilson’s PCR petition. [18] Affirmed. Riley, J., and Bailey, J., concur. 3 Wilson failed to obtain either trial counsel’s presence at the post-conviction hearing or an affidavit from counsel, and so we know nothing of his thought processes with respect to this issue. Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-694 | June 11, 2015 Page 12 of 12
Citation Nr: 0800313 Decision Date: 01/04/08 Archive Date: 01/22/08 DOCKET NO. 05-28 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Public Advocate for Veteran's Affairs ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from January 1960 to January 1968. His medals and badges include the Combat Infantryman Badge. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the veteran's claim. FINDING OF FACT Credible lay evidence provided by the veteran establishes chronicity and continuity of symptoms of tinnitus beginning in service. CONCLUSION OF LAW Tinnitus was incurred in active service. See 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Here, the Board is granting the veteran's appeal for service connection for tinnitus. Thus, no further discussion of the VCAA is required. Service Connection for Tinnitus. Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). To establish service connection, the record must contain (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence, of in service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in service disease or injury. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). The first question is whether the competent evidence demonstrates a current disability. Several examinations from 1994 to the present indicate that the veteran has tinnitus. Therefore, a current disability is established. Regarding in-service incurrence, service medical records contain no complaints of or treatment for tinnitus. However, the veteran is already service-connected for post-traumatic stress disorder based, in part, on evidence of the veteran's participation in combat operations. Thus, although the available service medical records do not show treatment for tinnitus, in its determination of the credibility of the veteran's account of how his injury occurred, VA can consider whether the veteran's description is consistent with combat service. See 38 U.S.C.A. § 1154(b). The veteran states that he was exposed to loud noises such as explosions, artillery fire, aircraft, and his own weapon while in Vietnam. He stated that he has experienced ringing in his ears since right after he left military service. The veteran is competent to testify as to his own symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is satisfactory evidence of an in-service incurrence of tinnitus and the veteran's lay statements, especially when considered with the service records, are consistent with the circumstances and conditions of his service. Thus, the Board accepts the veteran's lay evidence as sufficient proof of an in-service incurrence of tinnitus. The final issue in a claim for direct service connection is whether there is a medical nexus between the current disability and the in-service incurrence. The veteran attended a VA examination in September 2004. The examiner stated that the veteran has no ear conditions secondary to ear disease, such as disturbance of balance, and does not experience dizziness. However, the record contains several complaints of dizziness and loss of balance by the veteran. The examiner stated that the veteran's tinnitus is not related to service since the veteran does not have any hearing loss and the audiogram performed in October 2001 showed completely normal hearing. However, an audiogram performed the day after this VA examination showed mild to moderate hearing loss at one level in the left ear. The examiner also failed to discuss the veteran's long history of complaints of tinnitus symptoms. Given the fact that the examiner did not consider the latest audiogram and did not discuss other evidence favorable to the veteran's claim, the Board finds that, to the extent this opinion is not favorable to the veteran, its persuasiveness is diminished. Also, the VA opinion is based in part on information that the veteran did not have tinnitus is service. Credible statements made by the veteran indicate that he had experienced ringing in his ears in service after exposure to loud noises, as noted above. The Board finds that this opinion neither supports nor refutes the veteran's claim. However, the veteran has provided evidence that shows the onset of tinnitus in service with continued symptoms in the subsequent years. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The Board finds the veteran provided sufficient lay evidence of continuous symptoms of tinnitus. The veteran stated that he has had a ringing in his ears since service. While he did not complain of it until 1994, the Board notes that his complaints coincide with the beginning of his treatment at the VA facility and precede his claim for service connection by many years. There is sufficient evidence to show the manifestations of tinnitus beginning in service, as the veteran is competent to report his own symptoms and asthe circumstances of its incurrence in service are consistent with his military record and history. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The Board finds this evidence sufficient to grant service connection for tinnitus under 38 C.F.R. § 3.303(b). ORDER The appeal for service connection for tinnitus is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
Order Michigan Supreme Court Lansing, Michigan December 28, 2005 Clifford W. Taylor, Chief Justice 127871 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly ROBERT THOMAS CROUCHMAN and Maura D. Corrigan SUGAR M. CROUCHMAN, Robert P. Young, Jr. Plaintiffs, Stephen J. Markman, Justices v SC: 127871 COA: 248419 Wayne CC: 01-112063-NI MOTOR CITY ELECTRIC COMPANY and CITIZENS INSURANCE COMPANY, Defendants, and KEVIN JAMES WIECZOREK, Defendant/Third-Party Plaintiff/Appellee, v AUTO-OWNERS INSURANCE COMPANY, a/k/a HOME-OWNERS INSURANCE COMPANY, Third-Party Defendant/Appellant. _________________________________________/ On December 1, 2005, the Court heard oral arguments on third-party defendant’s application for leave to appeal the October 28, 2004 judgment of the Court of Appeals. On order of the Court, the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and the summary disposition orders of the Wayne Circuit Court, and REMAND this case to the Wayne Circuit Court for entry of an order granting third-party defendant’s motion for summary disposition. The unambiguous language of §IV.1.a(1) of the insurance policy does not extend liability coverage to the vehicle the third-party plaintiff was operating. See Farm Bureau Mutual Ins Co of Michigan v Nikkel, 460 Mich. 558 (1999). Coverage cannot be based on the language in §IV.1.c(2) of the policy, because the language of that provision excludes coverage and does not create coverage. See Auto-Owners Ins Co v Harrington, 455 Mich. 377, 381-2 (1997). CAVANAGH and KELLY, JJ., concur in the result only. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 28, 2005 _________________________________________ d1221 Clerk
United States Bankruptcy Court Northern District of Ohio In re: Case No. 20-11348-jps Jonathon Samuel Ethan Sawyer Chapter 7 Amelia Lina Zatik Debtor(s) CERTIFICATE OF NOTICE District/off: 0647-1 User: mgaug Page 1 of 2 Date Rcvd: Oct 28, 2020 Form ID: pdf853 Total Noticed: 5 The following symbols are used throughout this certificate: Symbol Definition + Addresses marked '+' were corrected by inserting the ZIP, adding the last four digits to complete the zip +4, or replacing an incorrect ZIP. USPS regulations require that automation-compatible mail display the correct ZIP. Notice by first class mail was sent to the following persons/entities by the Bankruptcy Noticing Center on Oct 30, 2020: Recip ID Recipient Name and Address db/db + Jonathon Samuel Ethan Sawyer, Amelia Lina Zatik, 335 Fairview Ave., Winnetka, IL 60093-4210 cr + Chemical Bank, c/o Kirk W. Roessler, Esq., 1301 East Ninth Street Suite 3500, Walter Haverfield LLP, Cleveland, OH 44114-1821 cr + Mercedes-Benz Financial Services USA LLC, c/o BK Servicing, LLC, PO Box 131265, Roseville, MN 55113-0011 TOTAL: 3 Notice by electronic transmission was sent to the following persons/entities by the Bankruptcy Noticing Center. Electronic transmission includes sending notices via email (Email/text and Email/PDF), and electronic data interchange (EDI). Electronic transmission is in Eastern Standard Time. Recip ID Notice Type: Email Address Date/Time Recipient Name and Address cr + Email/PDF: [email protected] Oct 28 2020 22:41:18 PRA Receivables Management, LLC, PO Box 41021, Norfolk, VA 23541-1021 cr + Email/Text: [email protected] Oct 28 2020 22:46:00 Westfield Bank, FSB, 4940 Enterprise Parkway, Seville, OH 44273-8929 TOTAL: 2 BYPASSED RECIPIENTS The following addresses were not sent this bankruptcy notice due to an undeliverable address, *duplicate of an address listed above, *P duplicate of a preferred address, or ## out of date forwarding orders with USPS. Recip ID Bypass Reason Name and Address cr PNC Bank, National Association cr Promenade Delaware LLC db *+ Amelia Lina Zatik, 335 Fairview Ave., Winnetka, IL 60093-4210 TOTAL: 2 Undeliverable, 1 Duplicate, 0 Out of date forwarding address NOTICE CERTIFICATION I, Joseph Speetjens, declare under the penalty of perjury that I have sent the attached document to the above listed entities in the manner shown, and prepared the Certificate of Notice and that it is true and correct to the best of my information and belief. Meeting of Creditor Notices only (Official Form 309): Pursuant to Fed .R. Bank. P.2002(a)(1), a notice containing the complete Social Security Number (SSN) of the debtor(s) was furnished to all parties listed. This official court copy contains the redacted SSN as required by the bankruptcy rules and the Judiciary's privacy policies. Date: Oct 30, 2020 Signature: /s/Joseph Speetjens CM/ECF NOTICE OF ELECTRONIC FILING 20-11348-jps Doc 62 FILED 10/30/20 ENTERED 10/31/20 00:15:54 Page 1 of 5 District/off: 0647-1 User: mgaug Page 2 of 2 Date Rcvd: Oct 28, 2020 Form ID: pdf853 Total Noticed: 5 The following persons/entities were sent notice through the court's CM/ECF electronic mail (Email) system on October 28, 2020 at the address(es) listed below: Name Email Address David M. Neumann on behalf of Creditor Promenade Delaware LLC [email protected] [email protected];[email protected] David R. Mayo on behalf of Creditor Westfield Bank FSB [email protected], [email protected];[email protected] Douglas M. Eppler on behalf of Creditor Chemical Bank [email protected] Kate M. Bradley ust44 on behalf of U.S. Trustee United States Trustee [email protected] Kirk W. Roessler on behalf of Creditor Chemical Bank [email protected] [email protected];[email protected];[email protected] Richard H. Nemeth on behalf of Debtor Jonathon Samuel Ethan Sawyer [email protected] [email protected];[email protected];[email protected] Richard H. Nemeth on behalf of Debtor Amelia Lina Zatik [email protected] [email protected];[email protected];[email protected] Richard John LaCivita on behalf of Creditor Mercedes-Benz Financial Services USA LLC [email protected] Seth Greenhill on behalf of Creditor PNC Bank National Association [email protected], [email protected] Waldemar J. Wojcik on behalf of Trustee Waldemar J. Wojcik [email protected] [email protected] Waldemar J. Wojcik [email protected] [email protected] TOTAL: 11 20-11348-jps Doc 62 FILED 10/30/20 ENTERED 10/31/20 00:15:54 Page 2 of 5 IT IS SO ORDERED. Dated: 27 October, 2020 02:48 PM UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO CLEVELAND DIVISION In re: ) Case No. 20-11348-jps ) Jonathon Samuel Ethan Sawyer ) Chapter 7 aka Jonathan Sawyer ) ) Judge JESSICA E. PRICE SMITH Amelia Lina Zatik ) aka Amelia Zatik-Sawyer ) ORDER GRANTING MOTION OF PNC aka Amelia Sawyer ) Bank, National Association FOR RELIEF ) FROM STAY AND ABANDONMENT Debtors. ) DOCKET NO. 57 ) ) PROPERTY DESCRIPTION: ) 2017 FORD F150 ) VIN #1FTEW1EF7HFC36354 This matter came before the Court on the Motion for Relief from Stay (the “Motion”) filed by PNC Bank, National Association (“Movant”). (Docket 57 ). Movant has alleged that good cause for granting the Motion exists, and that Debtor(s), counsel for the Debtor(s), the 20-11348-jps Doc 62 FILED 10/30/20 ENTERED 10/31/20 00:15:54 Page 3 of 5 Chapter 7 Trustee, and all other necessary parties were served with the Motion, and with notice of the hearing date on the Motion. No party filed a response or otherwise appeared in opposition to the Motion, or all responses have been withdrawn. For these reasons, it is appropriate to grant the relief requested. IT IS, THEREFORE, ORDERED that the Motion is granted. The automatic stay imposed by § 362 of the Bankruptcy Code is terminated with respect to the Movant, its successors, and assigns. IT IS FURTHER ORDERED that the Chapter 7 Trustee is authorized and directed to abandon the personal property 2017 FORD F150 VIN #1FTEW1EF7HFC36354. IT IS SO ORDERED. ### SUBMITTED BY: PADGETT LAW GROUP /s/ Seth Greenhill Seth Greenhill, Esq. Ohio Bar # 99380 6267 Old Water Oak Road, Suite 203 Tallahassee, FL 32312 (313)955-4155 (telephone) (313)955-4155 (facsimile) [email protected] Attorney for Creditor COPIES TO: Via the court’s Electronic Case Filing System on these entities and individuals who are listed on the court’s Electronic Mail Notice List: Richard H. Nemeth, on behalf of Debtor(s), at [email protected] 20-11348-jps Doc 62 FILED 10/30/20 ENTERED 10/31/20 00:15:54 Page 4 of 5 Waldemar J. Wojcik, Trustee, at [email protected] United States Trustee, US Trustee, at [email protected] And by regular U.S. mail, postage prepaid, on: Jonathon Samuel Ethan Sawyer, Debtor, 335 Fairview Ave., Winnetka, IL 60093 Amelia Lina Zatik, Co-Debtor, 335 Fairview Ave., Winnetka, IL 60093 20-11348-jps Doc 62 FILED 10/30/20 ENTERED 10/31/20 00:15:54 Page 5 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division AMY H. TANG, ) Plaintiff, ) ) v. ) Civil Action No. 2:20cv575 (RCY) ) EASTERN VIRGINIA ) MEDICAL SCHOOL, ) Defendant. ) ) MEMORANDUM OPINION This matter is before the Court on Eastern Virginia Medical School’s Motion to Dismiss, (ECF No. 13.) The motion has been fully briefed, and the Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons stated below, the Court will grant the Motion in part and deny the Motion in part. I. FACTUAL HISTORY Taking as true the facts alleged in the Amended Complaint for purposes of the instant motion, 1 (Am. Compl., ECF No. 9), the Court will recount the relevant background facts surrounding the claims of the plaintiff, Amy H. Tang (“Plaintiff”), against defendant Eastern Virginia Medical School (“Defendant”). Plaintiff is a female Asian-American of Chinese national origin and ethnicity employed by Defendant as a Professor of Cancer Biology. (Id. ¶¶ 1, 9.) On October 10, 2018, Plaintiff provided an invention disclosure to Defendant that contained trade secrets as defined by the Defend Trade 1 In considering a motion to dismiss, a plaintiff’s well-pleaded allegations are assumed to be true, and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (citations omitted). 1 Secrets Act and the Virginia Uniform Trade Secrets Act. (Id. ¶ 10.) Plaintiff owned and developed trade secrets, including treatments related to the exploitation and use of Ethylenediaminetetraacedic [sic] Acid (“EDTA”) for anti-NFkB, anti-inflammatory, and anti- septic treatments. (Id. ¶ 11.) Plaintiff took measures to keep the information secret, including securing all data electronically and requiring staff to leave data locked within the lab facilities and password-protected computer systems. (Id.) Plaintiff owns all of her trade secrets and intellectual property, and her trade secrets have independent economic value. (Id. ¶¶ 12, 13.) In October 2018, Plaintiff reported “academic and research misconduct by a PhD candidate” to Defendant. (Id. ¶ 14.) The misconduct continued in February 2019, and Plaintiff reported it again. (Id.) The misconduct involved theft of Plaintiff’s intellectual property. (Id.) Defendant did not take any action to address and reverse the misconduct by the student, and Defendant reprimanded Plaintiff for opposing the student’s misconduct. (Id. ¶¶ 17, 18.) Additionally, Defendant removed Plaintiff from the student’s dissertation committee. (Id. ¶ 17.) Defendant also permitted the student to publish Plaintiff’s trade secrets as a poster for a scientific meeting, permitted the student to publish a dissertation misappropriating Plaintiff’s intellectual property, and condoned or assisted the student in filing for patent protection. (Id.) Plaintiff alleges that Defendant treats Caucasian, male, and non-Chinese national origin faculty better than it treats her and those similarly situated. (Id. ¶ 19.) She describes four instances in which Caucasian, male faculty members were engaged in misconduct and were not disciplined. (Id.) She also lists three instances in which Chinese-American employees either pursued discrimination charges with the EEOC against the Defendant, sued the Defendant, or left the Defendant’s employment because of discrimination. (Id. ¶ 21.) Plaintiff first complained of discrimination to Defendant in May 2019, and she filed her Equal Employment Opportunity Commission (“EEOC”) charge in March 2020. (Id. ¶ 24.) 2 Because of Plaintiff’s actions, Defendant “retaliated against her by denying her grievance of its reprimand of her in August 2019, giving her a negative performance evaluation in August 2019 thereby reducing the salary she would have otherwise received, denying her grievance of her performance evaluation in November 2020, and continuously steering students away from courses and mentorship.” (Id.) Plaintiff alleges she has suffered emotional pain and suffering, loss of wages and benefits, past and future pecuniary losses, and other damages. (Id. ¶¶ 26, 27.) II. PROCEDURAL HISTORY Plaintiff filed her Complaint on November 18, 2020. (ECF No. 1.) On January 20, 2021, Defendant filed a Motion to Dismiss, (ECF No. 5), and an Answer and Affirmative Defenses, (ECF No. 7). On February 3, 2021, Defendant filed an Amended Complaint, (ECF No. 9), and a Brief in Opposition to Motion to Dismiss, (ECF No. 10). Plaintiff filed a Reply Memorandum in Support of its Motion to Dismiss on February 5, 2021, (ECF No. 11). On February 16, 2021, the Court denied the Motion to Dismiss, (ECF No. 5), as moot because Plaintiff had filed an Amended Complaint. The Court directed the Defendant to file a response to Plaintiff’s Amended Complaint. On February 19, 2021, Defendant filed the instant Motion to Dismiss, (ECF No. 13), and an Answer and Affirmative Defenses to the Amended Complaint, (ECF No. 15). Plaintiff filed a Brief in Opposition to Motion to Dismiss on March 5, 2021, (ECF No. 16). Defendant filed its Reply Brief in Support of its Motion to Dismiss on March 11, 2021, (ECF No. 17), at which time the Motion became ripe. III. LEGAL STANDARD “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). 3 Dismissals under Rule 12(b)(6) are generally disfavored by the courts because of their res judicata effect. Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1471 (4th Cir. 1991). The Federal Rules of Civil Procedure only require that a complaint set forth “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” “detailed factual allegations” are not required in order to satisfy the pleading requirement of Federal Rule 8(a)(2). Id. (citations omitted). In considering a motion to dismiss, a plaintiff’s well- pleaded allegations are assumed to be true, and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc.,7 F.3d at 1134 (citations omitted); see also Martin, 980 F.2d at 952. IV. DISCUSSION Count One: Disparate Treatment on the Basis of Race, Sex, and/or National Origin in Violation of Title VII Plaintiff alleges in Count One of her Amended Complaint that she received disparate treatment from Defendant on the basis of race, sex, and/or national origin in violation of Title VII. (Am. Compl. ¶¶ 29-35.) “[A]n employee challenging an employment practice of an employer in Virginia has 300 days from the last date of alleged discrimination to file a charge with the EEOC,” and “[i]f the statutory time period elapses between the allegedly discriminatory incident and the filing of the EEOC charge, the litigant is forever barred from Title VII relief.” Edwards v. Murphy-Brown, L.L.C., 760 F. Supp. 2d 607, 619 (E.D. Va. 2011) (citations omitted). “The limitations periods [of Title VII], while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment 4 decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S. 250, 256–57 (1980) (citations omitted). Plaintiff filed her EEOC Charge of Discrimination on March 16, 2020. (Am. Compl. ¶ 24; ECF No. 14-3.) 2 Three hundred days before March 16, 2020, is May 21, 2019. Therefore, for her Title VII disparate treatment claims, the Court may only consider events described in the EEOC charge that occurred no earlier than May 21, 2019. According to the Plaintiff’s Amended Complaint, she was removed from the PhD student’s dissertation committee 3 and reprimanded by the Defendant prior to May 21, 2019. 4 (Am. Compl. ¶¶ 17, 18.) Because these events occurred prior to May 21, 2019, they are time barred under Title VII for disparate treatment. For the events that are not time barred, the Court must determine if Plaintiff has sufficiently exhausted her administrative remedies. “Before filing suit under Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC.” Smith v. First Union Nat. Bank, 202 F.3d 234, 247 (4th Cir. 2000) (citing King v. Seaboard Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir.1976)). “A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.” Id. (citing Evans v. Techs. Applications and Serv. Co., 80 F.3d 954, 962–63 (4th Cir.1996)). 2 The Court on a motion to dismiss may “also consider documents that are explicitly incorporated into the complaint by reference . . . and those attached to the complaint as exhibits,” as well as any document submitted by the movant if the document was “integral to the complaint and there is no dispute about the document’s authenticity.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citations omitted). Although the EEOC Charge of Discrimination was not attached to the Complaint, it was integral to the Complaint, and the Plaintiff agrees that it “may be used for a limited purpose.” (Am. Compl. ¶¶ 8, 24, 44, 49; Mem. Opp’n at 7.) 3 The EEOC charge states that Plaintiff complained about being removed from the dissertation committee “in May 2019,” and she later received a letter of reprimand discussing her removal on May 13, 2019. (ECF No. 14-3 at 1.) This suggests that the removal from the dissertation committee had to have occurred prior to May 13, 2019, which is before the 300-day cut-off of May 21, 2019. 4 The EEOC charge states that the letter of reprimand was issued on May 13, 2019. (ECF No. 14-3 at 1.) 5 After the removal of the time barred events, there are two remaining events that Plaintiff alleges constitute disparate treatment: receiving a negative performance evaluation and having students steered away from her courses and mentorship. (Am. Compl. ¶ 24.) These two events, however, are not included in her March 16, 2020 EEOC Charge of Discrimination. (ECF No. 14- 3.) Additionally, Plaintiff has not alleged that she filed any other EEOC Charges of Discrimination. Therefore, Plaintiff did not exhaust her administrative remedies for these events, and as such she cannot yet file a suit. Thus, the Court will grant the Motion to Dismiss as to Count One. Count Two: Disparate Treatment on the Basis of Race and Ethnicity in Violation of 42 U.S.C. § 1981 In Count Two of the Amended Complaint, Plaintiff alleges disparate treatment on the basis of race and ethnicity in violation of 42 U.S.C. § 1981. (Am. Compl. ¶¶ 36-42.) Unlike Title VII claims, § 1981 claims do not require a plaintiff to exhaust her administrative remedies before filing a lawsuit. Johnson v. Portfolio Recovery Assocs., LLC, 682 F. Supp. 2d 560, 577 n.12 (E.D. Va. 2009). Therefore, the Court will analyze Plaintiff’s § 1981 disparate treatment claims without considering the EEOC Charge. “To establish a prima facie disparate treatment claim under Title VII or § 1981, the plaintiff must show: (1) membership in a protected class; (2) adverse employment action; (3) satisfactory job performance; and (4) that similarly-situated employees outside the protected class received more favorable treatment.” Cepeda v. Bd. of Educ. of Baltimore Cty., 814 F. Supp. 2d 500, 510 (D. Md. 2011) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). The Court must determine whether the events alleged by Plaintiff are “adverse employment actions.” Plaintiff alleges that she was (1) removed from the PhD student’s dissertation committee, (2) reprimanded by Defendant, (3) given a negative performance evaluation, and (4) had students steered away from her courses and mentorship. (Am. Compl. ¶¶ 27, 24.) “An adverse employment 6 action is a discriminatory act that ‘adversely affect[s] the terms, conditions, or benefits of the plaintiff's employment.’” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citing James v. Booz-Allen & Hamilton, Inc., 368 F. 3d 371, 375 (4th Cir. 2004)). The typical requirements an adverse employment action are “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion . . . .” Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) Plaintiff’s removal from the PhD student’s dissertation committee and the steering away of students from courses and mentorship could be construed as a loss of supervisory responsibility. Therefore, Plaintiff will be allowed to proceed with this claim. The reprimand alone, however, will not be considered an adverse employment action. A reprimand cannot satisfy the adverse employment action element of a . . . discrimination claim unless the complaint specifically alleges that: (1) the reprimand has had a direct adverse employment effect or (2) the reprimand, under the employer’s disciplinary practices or for some other plausible reason, will exacerbate future discipline in a way that plausibly can be expected to create a future adverse employment effect. Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 821 (E.D. Va. 2016). Plaintiff did not allege that the reprimand created a direct adverse employment effect or that the reprimand would exacerbate future discipline. Therefore, the reprimand will not be considered an adverse employment action, and this event will not survive the Motion to Dismiss as to Count Two. The case law concerning negative performance evaluations is more complicated. “A ‘downgrade of a performance evaluation could effect [sic] a term, condition, or benefit of employment’ if it has a tangible effect on the terms or conditions or employment.” Shetty v. Hampton Univ., No. 4:12CV158, 2014 WL 280448, at *10 (E.D. Va. Jan. 24, 2014) (quoting Booz- Allen & Hamilton, Inc., 368 F. 3d at 377). “However, a poor performance evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment.” Id. Plaintiff alleges that her negative 7 performance evaluation “reduc[ed] the salary she would have otherwise received.” (Am. Compl. ¶ 24.) The Court does not have enough information at this time to determine whether this performance evaluation detrimentally altered the terms or conditions of Plaintiff’s employment. Therefore, this claim will survive the Motion to Dismiss. Thus, the Court will grant in part and deny in part the Motion to Dismiss as to Count Two. Count Three: Retaliation in Violation of Title VII In Count Three, Plaintiff alleges that the Defendant retaliated against her in violation of Title VII after she filed her first complaint of discrimination in May 2019 and her EEOC Charge in March 2020. (Id. ¶¶ 24, 43-47) She states that the retaliation involved “denying her grievance of its reprimand of her in August 2019, giving her a negative performance evaluation in August 2019 . . . denying her grievance of her performance evaluation in November 2020, and continuously steering students away from her courses and mentorship.” (Id.) To establish a prima facie case for retaliation, a plaintiff must show “(1) that [s]he engaged in a protected activity; (2) that [her] employer took an adverse employment action against [her]; and (3) that a causal connection existed between the protected activity and the asserted adverse action.” King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). Filing an EEOC Charge and making informal complaints are both protected activities. Id.; El v. Tek Sys., Inc., 311 F. Supp. 2d 516, 520 (E.D. Va. 2002) (citing Laughlin v. Metro. Washington Airports, 149 F. 3d 253, 259 (4th Cir. 1998)), aff’d, 55 F. App’x 201 (4th Cir. 2003). As this Count is under Title VII, the Court would ordinarily look to the EEOC Charge and the 300-day time limit. The Fourth Circuit, however, has ruled that a plaintiff may raise a retaliation claim for the first time in federal court and does not have to file an EEOC Charge alleging retaliation first. Nealon v. Stone, 958 F. 2d 584, 590 (4th Cir. 1992.) The Court reasoned 8 that “a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation.” Jones v. Calvert Grp., Ltd., 551 F. 3d 297, 302 (4th Cir. 2009). Therefore, the Court can consider the Plaintiff’s retaliation claims under Title VII without determining whether she filed an EEOC Charge. Plaintiff engaged in a protected activity by complaining informally and filing her EEOC claim. The question then becomes whether the events she describes are adverse employment actions, and whether there is a causal connection between the protected activities and the adverse employment action. As discussed previously, the negative performance evaluation and the steering of students away from her courses and mentorship could be adverse employment actions. Plaintiff also alleges that her protected activities and these events are connected. These claims, therefore, will survive the Motion to Dismiss as to Count Three. The remaining events are the denial of her grievance of the reprimand and the denial of her grievance of the performance evaluation. At this point in the litigation, the Court cannot conclude that these are not discriminatory acts that adversely affected the terms, conditions, or benefits of her employment. These claims, therefore, will survive the Motion to Dismiss as well. The Court will deny the Motion to Dismiss as to Count Three. Count Four: Retaliation in Violation of 42 U.S.C. § 1981 Plaintiff alleges in Count Four that Defendant retaliated against her in violation of 42 U.S.C. § 1981. (Am. Compl. ¶¶ 48-52.) The elements of retaliation under § 1981 are the same as the elements of retaliation under Title VII. Booz-Allen Hamilton, Inc., 383 F. 3d [email protected]. The analysis is the same, and thus, for the reasons described in Count Three, the Court will deny the Motion to Dismiss as to Count Four. 9 Counts Five and Six: Pattern and Practice Discrimination in Violation of Title VII and in Violation of 42 U.S.C. § 1981 Plaintiff alleges in Counts Five and Six of her Amended Complaint that Defendant’s “pattern and practice was to discriminate on the basis of race and national origin in its treatment of Asian and Chinese national origin employees” and “to discriminate on the basis of race and ethnicity in its treatment of Asian and Chinese ethnicity employees.” (Am. Compl. ¶¶ 54, 57.) She alleges that Defendant’s “conduct over more than ten years evidences a systemic policy of discrimination . . . .” (Id.) “The Fourth Circuit has stated clearly that non-class action plaintiffs may not assert a pattern and practice claim." Demuren v. Old Dominion Univ., 33 F. Supp. 2d 469, 479 (E.D. Va. 1999) (citing Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 759 (4th Cir. 1998) (“[I]ndividuals do not have a private, non-class cause of action for pattern or practice discrimination under §1981 or Title VII.”), aff’d, 188 F.3d 501 (4th Cir. 1999)). As Plaintiff is a non-class action plaintiff, she cannot bring a pattern and practice claim under either Title VII or 42 U.S.C. § 1981. Therefore, the Court will grant the Motion to Dismiss as to Counts Five and Six. Count Seven: Violations of the Defend Trade Secrets Act In Count Seven of the Amended Complaint, Plaintiff alleges that Defendant violated the Defend Trade Secrets Act (“DTSA”). (Am. Compl. ¶¶ 60-63.) A trade secret is defined as “all forms and types of . . . scientific . . . information . . . if — (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value . . . from not being generally known to . . . another person who can obtain economic value from the disclosure or use of the information . . . .” 18 U.S.C. § 1839(3). To establish an action under the DTSA, a plaintiff must show that “(1) it owns a trade secret; (2) the trade secret was misappropriated; and (3) the trade secret implicates interstate or foreign commerce.” Space Sys./Loral, LLC v. Orbital ATK, Inc., 306 F. Supp. 3d 845, 853 (E.D. 10 Va. 2018) (citing 18 U.S.C. §1836(b)(1)). To establish the misappropriation element, Plaintiff must show: (A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (B) disclosure or use of a trade secret of another without express or implied consent by a person who— (i) used improper means to acquire knowledge of the trade secret; (ii) at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was— (I) derived from or through a person who had used improper means to acquire the trade secret; (II) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or (III) derived from or through a person who had owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret . . . . 18 U.S.C. §1839(5). In her Amended Complaint, Plaintiff asserts that the scientific treatments she developed were trade secrets because they were scientific information that she attempted to keep secret, and they had independent economic value from not generally being known to another who can obtain economic value from the disclosure and use of the information. (Am. Compl. ¶¶ 11, 12.) She alleges that her trade secrets were misappropriated by Defendant because Defendant: used improper means to acquire the trade secrets and at the time that it acquired the trade secrets knew or had reason to know that knowledge of the trade secrets was: a. derived from [Defendant]’s relationship with Plaintiff and through the student who had used improper means to acquire the trade secrets; b. acquired under circumstances giving rise to a duty of both the student and [Defendant] to maintain the secrecy of the trade secrets or limit the use of the trade secrets and/or; c. derived from or through the student and faculty of [Defendant] who owed a duty to Plaintiff to maintain the secrecy of the trade secrets and/or limit the use of the trade secrets. (Am. Compl ¶ 62.) Additionally, Plaintiff alleges that Defendant acquired the trade secrets of Plaintiff without the express or implied consent of Plaintiff, and that she was damaged by these actions. (Id. ¶¶ 61, 63.) 11 In support of these claims, Plaintiff states that the Defendant protected a PhD student who stole her intellectual property when the student had a duty to maintain the secrecy and/or limit the use of the trade secrets. (Id. ¶¶ 14, 17.) She alleges that Defendant had a duty to maintain the secrecy and/or limit the use of Plaintiff’s trade secrets, but instead of punishing the student, Defendant permitted the student to publish trade secrets as a poster for a scientific meeting and a dissertation misappropriating Plaintiff’s intellectual property. (Id. ¶¶ 16, 17.) Defendant also allegedly assisted or allowed the student to file for patent protection. (Id.) At this point in the litigation, Plaintiff has sufficiently pled the elements of a violation of the Defend Trade Secrets Act. Therefore, the Motion to Dismiss as to Count Seven will be denied. Count Eight: Violations of the Virginia Uniform Trade Secrets Act In Count Eight of the Amended Complaint, Plaintiff alleges violations of the Virginia Uniform Trade Secrets Act (“VUSTA”). (Am. Compl. ¶¶ 64-68.) Under this Act, a trade secret is information that “(1) derives independent economic value from not being generally known, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Tao of Sys. Integration, Inc. v. Analytical Servs. & Materials, Inc., 299 F. Supp. 2d 565, 574 (E.D. Va. 2004) (citing Va. Code. Ann. § 59.1-336.) Misappropriation of a trade secret under VUSTA is defined as: 1. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or 2. Disclosure or use of a trade secret of another without express or implied consent by a person who a. Used improper means to acquire knowledge of the trade secret; or b. At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was (1) Derived from or through a person who had utilized improper means to acquire it; (2) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; (3) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use . . . . 12 Va. Code Ann. § 59.1-336. These elements are substantially similar to the elements under DTSA. Plaintiff alleges that she has information that derives economic value from not being generally known and is the subject of reasonable efforts to maintain its secrecy. (Am. Compl. ¶¶ 11, 12.) She contends that Defendant misappropriated her trade secrets by allowing the PhD student who stole her trade secrets to publish them on a poster and in a dissertation without her consent, as well as allowing or assisting the student in filing for patent protection. (Id. ¶¶ 16, 17.) At this time, the violations of VUSTA are sufficiently pled, and the Motion to Dismiss as to Count Eight will be denied. Counts Nine and Ten: Conspiracy Under Va. Code § 18.2-499 and Conspiracy in Violation of Virginia Common Law In Counts Nine and Ten of her Amended Complaint, Plaintiff alleges claims for conspiracy under Va. Code § 18.2-499 and Virginia common law. (Am. Compl. ¶¶ 69-74.) “To state a claim for a violation of the business conspiracy statute, Va. Code. Ann. §18.2-499, a plaintiff must allege (1) a combination of two or more persons for the purpose of willfully and maliciously injuring a plaintiff’s business, and (2) resulting damage to the plaintiff.” SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593, 616 (E.D. Va. 2005) (citations omitted). Similarly, “[i]n Virginia, the elements of a common law civil conspiracy claim are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff.” Firestone v. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) (citing Glass v. Glass, 321 S.E. 2d 69, 74 (Va. 1984)). Plaintiff alleges that Defendant “acted in combination with the [PhD] student for the purpose of willfully and/or maliciously injuring Plaintiff in her business and profession” and “acted in combination with the [PhD] student to accomplish the theft of Plaintiff’s intellectual property and trade secrets by unlawful means.” (Am. Compl. ¶¶ 70, 73.) These actions resulted in damage to Plaintiff. (Id. ¶¶ 71, 74.) 13 Defendant argues that both of the conspiracy claims are barred by the intracorporate immunity doctrine. (Mem. Supp. at 14.) The doctrine of intracorporate immunity “recognizes that a conspiracy ‘requires two or more persons and that, because a corporation and its agents comprise a single legal entity, they are legally incapable of conspiracy.’” SecureInfo Corp., 378 F. Supp. 2d at 616 (quoting Lewin v. Cooke, 95 F. Supp. 2d 513, 524-25 (E.D. Va. 2000) aff’d, 28 F. App’x 186 (4th Cir. 2002)) (citations omitted). Defendant argues that the PhD student was Defendant’s agent because she was "(1) subject to the control of the principal with regard to the work to be done and manner of performing it, and (2) the work [was] done on the business of the principal or for the principal’s benefit.” (Mem. Supp. at 24 (citing Whitfield v. Whittaker Mem’l Hosp., 169 S.E. 2d 563, 567 (Va. 1969)).) Defendant highlights that the Amended Complaint states that the PhD student was under “the direct supervision and control” of Plaintiff, who herself was an employee of Defendant, and the PhD student was doing things for the benefit of the Defendant. (Mem. Supp. at 25.) Defendant argues that this makes the PhD student an agent of the Defendant, and therefore the conspiracy claims should fail because a Defendant cannot conspire with its agent. (Id.) Construing the Amended Complaint in the light most favorable to the Plaintiff, the Court cannot find as a matter of law that the defense of intra-corporate immunity applies. Therefore, the Court will deny the Motion to Dismiss as to Counts Nine and Ten. Count Eleven: Breach of Contract Count Eleven in Plaintiff’s Amended Complaint alleges Breach of Contract. (Am. Compl. ¶¶ 75-78.) In Virginia, “[t]he elements of a breach of contract action are (1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation.” Rogers v. Deane, 992 F. Supp. 2d 621, 629 (E.D. Va. 2014) (quoting Filak v. George, 594 S.E. 2d 610, 614 (2004)) 14 (citations omitted), aff’d, 594 F. App’x 768 (4th Cir. 2014). Plaintiff alleges that she had an agreement with Defendant “wherein [Defendant] assigned to her any and all rights it had in her intellectual property and trade secrets,” and Defendant “breached that agreement by giving those rights to the student, and facilitating/allowing the student to pursue patent protection for the intellectual property and trade secrets that belonged to Plaintiff.” (Am. Compl. ¶¶ 76, 77.) She alleges that Defendant’s breach of this agreement resulted in damage to her. (Id. ¶ 78.) At this stage in the litigation, Plaintiff has adequately pled the elements of a breach of contract claim. Therefore, the Motion to Dismiss will be denied as to Count Eleven. V. CONCLUSION For the reasons detailed above, Defendant’s Motion to Dismiss (ECF No. 13) will be granted in part and denied in part. An appropriate Order shall issue. /s/ Roderick C. Young Younng United Statess District Judge Juddge Richmond, Virginia Date: July 12, 2021 15
The plaintiffs are owners of village lots upon which residences are erected abutting on an alley in the village of Swanton, Fulton county, and bring this action for the purpose of enjoining the village and the interurban railroad company from granting rights and privileges and constructing and maintaining a spur or branch of the railroad through the alley. After the case was tried in the court of common pleas, resulting favorably to the defendants, the railroad proceeded with the construction of the track, and has substantially completed the same. The alley is 16 feet wide and about 760 feet long, and the track is constructed to provide an outlet for the products of a manufacturing company abutting on the alley. The spur track extends along the center of the alley for something more than 500 feet, from which place it swerves to the east onto the property of the Pilliod Cabinet Company, for whose convenience it appears to have been planned. The owners of a majority of the feet front on the alley consented to the passage of the ordinance and the construction of the track. The plaintiffs contend that the construction of the spur track constitutes *Page 510 an additional burden upon their property, for which they are entitled to be compensated, and for that reason seek this injunction, they not having consented to the building of the track. This court has given a very careful examination to the interesting questions of law involved in this action, and we think it may be fairly said to be established in Ohio that the construction of the track of a steam railroad upon a street or alley of a city or village is per se an additional burden upon the property of the abutting owners. We think, further, that it may safely be stated as a general rule that the construction of the track of a street railroad in a street or alley of a municipality is not per se an additional burden. While this principle is of general application, this court is of the opinion that a case may well exist where a spur track or side-track constructed by an interurban railroad company in a street or alley of a municipality may be so located and built as to constitute an additional burden upon the property of an abutting owner and cause substantial damage. In other words, it may become a question of fact under the circumstances whether such track does or does not constitute an added burden. The matter is discussed in Ghaster v. City of Fostoria, 115 Ohio St. 210, 217,152 N.E. 651, 653, 46 A.L.R., 1439. As was said in that case, in the course of the opinion, we are not concerned with the extent of the damage by the interference or obstruction, but we are concerned with the question whether there is some substantial interference or obstruction which would render the property of the plaintiffs less valuable, and the Supreme Court in the case cited used this language: "In this respect there is *Page 511 no essential difference between a steam railroad and a street railroad." In the instant case, evidence was introduced tending to show very substantial damages to the property of the plaintiffs, resulting from the construction of the track, but it may be that the witnesses so testifying failed to base their opinions solely on the proper elements of damage in such cases. An interesting and instructive case is that of Cincinnati Spring Grove Ave.St. Ry. Co. v. Village of Cumminsville, 14 Ohio St. 523. See, also, Schaaf v. Cleveland, Medina Southern Ry. Co., 66 Ohio St. 215, 64 N.E. 145. It may be noted in the instant case that the spur track is not at all intended for the transportation of anything except freight. The evidence discloses that, considering the width of the track and the width of the cars to be operated thereon, sufficient space is not left for a vehicle to stand in the alley when a car travels along the track. If one of the plaintiffs has, or should have in the future, a garage in the rear of his lot, and should run his car out of the garage into the alley, it would be impossible to safely park it along the side of the alley. This, of course, applies only to the portion of the alley where the railroad track is constructed along the center thereof. We have examined a good many authorities which shed more or less light upon the questions at issue, among which are the following: 22 A.L.R., 145, where an extensive note may be found; 2 A.L.R., 1404, in which the annotation is confined to cases involving electric railways, where the decision turns upon the carrying of freight; Chicago, Lake Shore *Page 512 South Bend Ry. Co. v. Guilfoyle, 198 Ind. 9, 152 N.E. 167, 46 A.L.R., 1465. I cite also Chambers v. Cleveland South Western Traction Co., 5 C.C. (N.S.), 298, 17 C.D., 193, affirmed without report in 73 Ohio St., at page 348, 78 N.E. 1122. This case, however, did not involve a track in the municipality. The fact that the railroad company has the consent of the municipality by ordinance to occupy the alley for the spur track does not deprive the plaintiffs of their remedy. For the reasons given, the railroad company will be enjoined from using the spur track until the right shall have been acquired from abutting property owners, as was done in Trusteesof Cincinnati Southern Ry. Co. v. McWilliams, 18 Ohio App. 225. Decree for plaintiffs. WILLIAMS and LLOYD, JJ., concur. *Page 513
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT EDDIE T. NEAL, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D19-138 [February 21, 2019] Appeal order denying rule 3.853 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-1998-CF-004715-AXXX-MB. Eddie T. Neal, Florida City, pro se. No appearance required for appellee. PER CURIAM. Affirmed. DAMOORGIAN, LEVINE and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION JIMELLA HARRIS, Plaintiff, v. CAUSE NO.: 1:18-CV-284-TLS CENTRAL STATES PENSION FUND, Defendant. OPINION AND ORDER This matter is before the Court on the Defendant’s, Central States, Southeast and Southwest Areas Pension Fund, Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF No. 13], the Plaintiff’s, Jimella Harris, Motion for Judgment of Partial Findings [ECF No. 21], and the Plaintiff’s Request for Sanctions [ECF No. 20]. BACKGROUND The Plaintiff was married to a participant in the Defendant’s pension plan from August 25, 1995 to August 27, 2003. (Pl.’s Compl. ¶ 5, ECF No. 1.) After the Plaintiff became aware that her ex-husband retired from the Defendant’s employ, she contacted the Defendant on August 23, 2004 to state that she was entitled to her ex-husband’s pension. (Id. ¶ 8.) The Plaintiff claimed her divorce decree from the Allen County Superior Court entitled her to her ex- husband’s pension. The Plaintiff requested a lump sum payment of the money owed and verification of her beneficiary status. (Id. at 23.) On September 14, 2004, the Defendant informed the Plaintiff that she was not entitled to benefits from the Defendant. (Def.’s Br. in Supp. of Mot. to Dismiss at 4, ECF No. 14.) The Defendant stated that the Plaintiff’s divorce decree was not a Qualified Domestic Relations 1 Order (QDRO) 1 and a QDRO was needed because her ex-husband’s pension was an ERISA regulated plan. (Id.) The Plaintiff would not be an alternate payee entitled to pension benefits until the Defendant received a QDRO. The Defendant then explained the requirements for a QDRO to the Plaintiff. (Id.) The Plaintiff obtained a QDRO until May 2008. (Pl.’s Compl. ¶ 9.) On June 14, 2008, the Plaintiff sent the Defendant two versions of domestic relations orders, which she requested the Defendant qualify as QDROs. (Def.’s Reply to Pl.’s Mot. for Partial Findings at 3, ECF No. 30.) On June 10, 2008, the Defendant informed the Plaintiff it had received the two proposed QDROs and informed her that it would establish an escrow account for up to 18 months to determine whether the parties were able to submit an order that the Defendant considered a QDRO. (Id. at 4.) On September 17, 2008, the Defendant received a letter from the Plaintiff, which requested that the Defendant discontinue the escrow account established pursuant to the June 10, 2008 letter “because the May 22, 2008 Court Order was not submitted as a QDRO.” (Id.) On September 18, 2008, the Defendant informed the Plaintiff’s ex-husband that it would release the escrowed amounts. (Id.) The Defendant received a signed and notarized statement from both the Plaintiff and her ex-husband that requested the release of the escrowed amounts. (Id.) The Defendants ultimately determined that the remaining proposed QDRO was defective. (Def.’s Br. in Supp. of Mot. to Dismiss at 6.) The Plaintiff’s ex-husband died in November 2008 (Pl.’s Compl. at 75) and the Plaintiff appealed the denial of benefits in 2009. (Def.’s Reply to Pl.’s Mot. for Partial Findings at 6.) The Defendant advised the Plaintiff on June 17, 2009 that she was not eligible to receive any pension 1 A Qualified Domestic Relations order is defined in § 206(b)(3)(B)(i) of ERISA as a “domestic relations order – (I) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and (II) with respect to which the requirements of subparagraphs (C) and (D) are met…” 29 U.S.C. § 1056(d)(2)(B)(i). 2 benefit and the proposed QDROs were defective. (Id.) The Defendant determined that the Plaintiff was not eligible for a surviving spouse benefit because she was not married to her ex- husband at the time of his death. Since she had not submitted a QDRO assigning her surviving spouse rights and the Plaintiff’s Decree of Dissolution of Marriage did not constitute a QDRO, she was not eligible for a surviving spouse benefit. (Id.) The Plaintiff later had a new proposed domestic relations order that could have qualified as a QDRO, but the Defendant needed a certified copy of the signed order entered by the Court. (Id.) The Defendant never received such an order. (Id.) The Plaintiff requested that the Defendant reopen her appeal in 2018. On January 4, 2018, the Defendant informed the Plaintiff that while her appeal had been denied on June 9, 2009, it would review new information provided. (Id.) The Plaintiff, however, failed to provide any new information and the Defendant denied her request to reopen her 2009 appeal. (Id.) On February 1, 2018, the Plaintiff submitted an appeal in the administrative appeal process, which the Defendant’s Benefit Claims Appeals Committee denied on March 21, 2018. (Id.) The Plaintiff then appealed to the Trustees and her appeal was denied again. (Id.) The Plaintiff, proceeding pro se, filed a Complaint [ECF No. 1] and Motion for Leave to Proceed in Forma Pauperis [ECF No. 2] on September 11, 2018. 2 The Plaintiff lists several causes of action but all her arguments center around her claim that the Defendant breached its fiduciary duty to her as she was a beneficiary to the Defendant’s plan. (Pl.’s Compl. ¶ 11.) The Plaintiff also alleges that there was willful concealment of material information on two fronts: (i) the Defendant willfully concealed its possession of the Plaintiff’s divorce decree; and (ii) failed to notify the Plaintiff of the pension plan procedures. (Id. ¶¶ 13–14, 23(A)–(B).) Finally, 2 The Court denied the Plaintiff’s Motion to Proceed in Forma Pauperis [ECF No. 3] because her income exceeds the Poverty Line the United States Department of Health and Human Services established. See 42 U.S.C. § 9902. 3 the Plaintiff argues that the Defendant withheld $4,000 in an escrow fund for the Plaintiff and then required the funds to be returned to the Plaintiff. (Id. ¶ 20.) On November 16, 2018, the Defendant filed a Motion to Dismiss [ECF No. 13] pursuant to Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). First, the Defendant contends that the Plaintiff’s Complaint failed to present a short and plain statement of her claim showing that she is entitled to relief pursuant to Rule 8(a)(2). (Def.’s Br. in Supp. of Mot. to Dismiss at 1.) Second, the Defendant argues that the Plaintiff’s claims are barred by the three-year statute of limitations for fiduciary breaches. (Id.) The Plaintiff filed a response [ECF No. 19], the Defendant filed a reply [ECF No. 24], the Plaintiff filed a sur-response [ECF No. 26], and the Defendant filed an additional reply [ECF No. 29]. On November 26, 2018, the Plaintiff filed a Request for Sanctions [ECF No. 20] and a Motion for Judgment on Partial Findings [ECF No. 21]. The Plaintiff requests sanctions against the Defendant for failure to provide timely service and requests that the Court order that all future copies of filings are sent via express mail. (Pl.’s Mot for Sanctions at 1–2.) In her Motion for Judgment on Partial Findings, the Plaintiff argues that the Defendant should pay $4,000 due to loss of funds as a direct result of the Defendant’s errors. (Pl.’s Mot. for J. on Partial Findings at 1–2.) The Defendant filed a response [ECF No. 28] to the Plaintiff’s Motion for Judgment on Partial Findings and the Plaintiff filed a reply [ECF No. 30]. LEGAL STANDARD Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A complaint does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Rule 12(b)(6) “challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). The Court presumes that all well-pleaded allegations are true, views these well-pleaded allegations in the light most favorable to the Plaintiff, and accepts as true all reasonable inferences that may be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605 ,608 (7th Cir 1995). The Complaint need not contain detailed facts, but surviving a Rule 12(b)(6) motion “requires more than labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). ANALYSIS A. Defendant’s Arguments Pursuant to Federal Rule of Civil Procedure 8(a)(2) The Defendant contends that the Plaintiff’s Complaint fails to provide a short and plain statement of her entitlement to relief. (Def.’s Br. in Supp. of Mot. to Dismiss at 1.) The Plaintiff argues that her Complaint is sufficiently clear. (Pl.’s Resp. to Mot. to Dismiss at 2, ECF No. 19.) 5 Federal Rule of Civil Procedure 8(a)(2) requires a “showing” rather than a blanket assertion of entitlement to relief. Twombly, 550 U.S. at 556. There is no heightened pleading standard for a plaintiff who alleges breaches of fiduciary duties and ERISA violations. Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For a Plaintiff proceeding pro se, the Court should liberally construe a complaint that has been prepared without the benefit of expertise to determine whether the pleader is entitled to relief. French v. Heyne, 547 F.2d 994, 996 (7th Cir. 1976). Dismissal of a complaint pursuant to Rule 8 is a harsh sanction and is appropriate where a complaint is “a confusing mishmash of disjointed allegations and random musings.” Carroll v. Dowling, 2006 WL 2990420, at *2 (N.D. Ind. Oct. 19, 2006). A complaint may not be dismissed at the pleadings stage “unless no relief could be granted ‘under any set of facts that could be proved consistent with the allegations.” Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). The Plaintiff’s complaint presents a plain, if not short, statement of the Plaintiff’s entitlement to relief. The Plaintiff clearly articulates her belief that she is entitled to relief pursuant to 29 U.S.C. § 1132. Accordingly, the Court will not dismiss the Plaintiff’s Complaint pursuant to Rule 8(a)(2). That a complaint is sufficient pursuant to Rule 8(a)(2), however, does not mean that it can survive an attack pursuant to 12(b)(6). A complaint which complies with Rule 8(a)(2) is not immune from a motion to dismiss. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). While Rule 8 requires a “short and plain statement” to demonstrate a plaintiff is entitled to relief, Rule 12(b)(6) provides for the dismissal of claims that fail to state a claim upon which relief can be granted. It is possible for a complaint to comply with Rule 8(a)(2) but “be highly vulnerable to dismissal under Rule 12(b)(6). Id. The Court thus 6 must analyze the Plaintiff’s Complaint for 12(b)(6) sufficiency separately in accordance with the Defendant’s Motion to Dismiss. B. Defendant’s Arguments Pursuant to Federal Rule of Civil Procedure 12(b)(6) The Defendant argues that the Plaintiff’s Complaint should be dismissed with prejudice pursuant to Rule 12(b)(6) because her claims are barred by a three-year statute of limitations contained in ERISA § 413(2). 29 U.S.C. § 1113(2). (Def.’s Br. in Supp. of Mot. to Dismiss at 1.) In response, the Plaintiff argues that the Defendant’s willful fraudulent concealment extends the statute of limitations and cites ERISA §413, 29 U.S.C. §§ 1113, 1451, and ERISA § 4301(f)(2) in support. (Pl.’s Resp. to Mot. to Dismiss at 3). A motion to dismiss should not be granted “unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” Kennedy v. Nat’l Juvenile Detention Ass’n, 187 F.3d 690, 694 (7th Cir. 1994). An affirmative defense, a statute of limitations defense is not appropriate normally for a decision under a motion to dismiss pursuant to Rule 12(b)(6). Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010). The Court may grant a 12(b)(6) motion predicated on the statute of limitations only when the allegations of the complaint set forth everything necessary to satisfy the affirmative defense. Id. at 383 (“Although the statute of limitations is an affirmative defense to liability and so ordinarily must be pleaded and proved by the defendant, if it is plain from the complaint that the defense is indeed a bar to the suit dismissal is proper without further pleading.”); Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (noting that a statute of limitations defense is appropriate “when a complaint plainly reveals that an action is untimely under the governing statute of limitations”); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 7 899, 901 (7th Cir. 2004) (“Only when the plaintiff pleads itself out of court – that is, admits all the ingredients of an impenetrable defense – may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).”); Wilkow v. Forbes, Inc., 241 F.3d 552, 555 (7th Cir. 2001) (noting that a court will not grant a motion to dismiss for failure to state a claim unless the complaint is self-defeating.). The Defendant argues that the Plaintiff has affirmatively pled herself out of Court because the statute of limitations accrued when she received notice in September 2004 that she was not entitled to benefits from the Defendant. (Def.’s Br. in Supp. of Mot. to Dismiss at 8.) Since the Plaintiff had actual knowledge of her harm in 2004, the Defendant argues, her claim is untimely and subject to dismissal. The Plaintiff argues that the Defendant committed “willful fraudulent concealment” when it responded to the Plaintiff’s September 2004 letter with false information, which extends the statute of limitations. (Pl.’s Resp. to Def.’s Mot. to Dismiss at 2, 6.) The Plaintiff’s claims center around an alleged breach of fiduciary duty, for which 29 U.S.C. § 1113 provides the relevant statute of limitations. The statute provides: No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty or obligation…(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation. 29 U.S.C. § 1113(1)–(2). The statutory period begins to run when the person harmed acquires “actual knowledge” of the occurrence. The Seventh Circuit defines “‘[A]ctual knowledge’ in this context as knowledge of the ‘essential facts of the transaction or conduct constituting the violation,’” and has explained that this means it is “‘not necessary for a potential plaintiff to have knowledge of every last detail of a transaction, or knowledge of its illegality.’” Rush v. Martin Petersen Co., 83 8 F.3d 894, 896 (7th Cir. 1996) (quoting Martin v. Consultants & Adm’rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992). Even under the standard of review and limited scope of information considered pursuant to Rule 12(b)(6), the Court may find that the claim is untimely where a plaintiff has received notice and actual knowledge of the violation. Biglands v. Raytheon Emp. Sav. & Inv. Plan, 801 F. Supp. 2d 781, 788–89 (N.D. Ind. 2011). In September 2004, the Defendant informed the Plaintiff via letter that “no benefits would be payable to you from this Fund” due to the lack of a QDRO. The Plaintiff herself points to the September 2004 letter as “critical to this case.” (Pl.’s Compl. at 3.) This letter demonstrates that the Plaintiff had actual knowledge of the alleged violation in September 2004 and the statute of limitations has long since expired. The Plaintiff’s argument that the statute of limitations should be either tolled or extended due to the Defendant’s alleged fraud are unavailing. ERISA, at most, provides a six-year statute of limitations in cases of willful concealment or fraud. Radiology Ctr., S.C. v. Stifel, Nicolaus & Co., 919 F.2d 1216, 1220 (7th Cir. 1990); 29 § U.S.C. 1113(2). 3 As the Court previously noted, the Plaintiff first had actual knowledge of her harm in 2004. Even with the six-year statute of limitations, the Plaintiff’s claim is untimely. Finally, the Plaintiff argues that there was a fiduciary breach by the Defendant regarding the “90-day period.” (Pl.’s Sur-Resp. at 1, ECF No. 26.) The Defendant contends that this argument must fail as the 90-day period is irrelevant to the Plaintiff as it applies only to elections made by a participant who is married when they retire. (Def.’s Br. in Supp. of Mot. to Dismiss at 3 The Court also notes that the Plaintiff’s fraud claim does not trigger the six-year period by virtue of the “underlying nature of the plaintiffs’ claim.” Radiology Ctr., 919 [email protected]. “Fraud claims do not receive the benefit of ERISA’s six-year statute of limitations simply because they are fraud claims. There must be actual concealment—i.e., some trick or contrivance intended to exclude suspicion and prevent inquiry.” Martin, 966 F.2d at 1095 (internal quotations omitted). The Plaintiff has alleged no such concealment here. 9 5.) As the Plaintiff herself states in her Complaint, the Plaintiff and the participant were divorced prior to his retirement. (Pl.’s Compl. ¶ 5.) Thus, the 90-day period does not save the Plaintiff’s Complaint for failing to state a claim for relief on statute of limitations grounds. Accordingly, as the Plaintiff has pled herself out of Court on statute of limitations and other grounds, the Court GRANTS the Defendant’s Motion to Dismiss. C. Remaining Motions The Plaintiff also filed a Plaintiff’s Motion to Deny Defendant’s Motion to Dismiss and Request for Sanctions of Express Mail [ECF No. 20] and a Motion for Judgment on Partial Findings [ECF No. 21] on November 26, 2018. The Defendant filed a response [ECF No. 28] and the Plaintiff filed a reply [ECF No. 30]. In her Request for Sanctions, the Plaintiff requests that the Court impose appropriate sanctions against the Defendant “for not providing timely service and requests the court to order that all future copies of filings are sent to the Plaintiff by express mail, and all other proper and just relief.” (Request for Sanctions ¶ 1.) The Plaintiff also includes arguments in rebuttal to the Defendant’s Motion to Dismiss. (Id. ¶¶ 2–6.). The Plaintiff does not specify under which rule she brings sanctions, but Federal Rule of Civil Procedure 11 governs the Plaintiff’s request. The Plaintiff’s Request for Sanctions fails on two fronts: (1) the motion was not filed as a separate motion in contravention of Rule 11; and (2) the Plaintiff did not adhere to Indiana Local Rule 7- 1(a), which requires motions to be filed separately. Due to the Plaintiff’s failure to follow federal and local rules, the Court DENIES the Plaintiff’s Motions for Sanctions. In the Plaintiff’s Motion for Judgment on Partial Findings, the Plaintiff requests that the Court order the Defendant to pay $4,000 to the Plaintiff as the Plaintiff incurred this loss due to the Defendant’s actions. (Pl.’s Mot. for J. on Partial Findings ¶ 4.) This claim was already 10 presented in the Complaint that the Court considered. As previously explained, the statute of limitations for the Plaintiff’s claims pursuant to ERISA has expired. The Court therefore DENIES the Plaintiff’s Motion for Judgment on Partial Findings. D. Opportunity to Amend A court “should freely give leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District courts routinely do not terminate a case at the same time that they grant a defendant's motion to dismiss; rather, they generally dismiss the plaintiff's complaint without prejudice and give the plaintiff at least one opportunity to amend her complaint.”); Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004) (stating that the general rule is that “the district court should grant leave to amend after granting a motion to dismiss”). However, a court should not grant leave to amend “where the amendment would be futile.” Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)). As discussed above, the Plaintiff’s claims against the Defendant pursuant to her present ERISA claims are clearly time-barred. Any future amendments would be futile and the Plaintiff’s Complaint should be dismissed with prejudice. CONCLUSION Based on the foregoing, the Court hereby GRANTS the Defendant’s Motion to Dismiss the Plaintiff’s Complaint [ECF No. 13]. The Court DISMISSES WITH PREJUDICE all the Plaintiff’s claims against the Defendant. The Court DENIES the Plaintiff’s Motion to Deny Defendant’s Motion to Dismiss and Request for Sanctions [ECF No. 19] and Motion for Judgment on Partial Findings [ECF No. 21]. 11 SO ORDERED on April 15, 2019. s/ Theresa L. Springmann CHIEF JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT 12
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2007-3203 CRAIG A. ADAMS, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent. Nicole M. Smithson, The Law Offices of Sherriee L. Detzler, P.L.L.C., of Utica, Michigan, argued for petitioner. Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Jeffrey S. Bucholtz, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief was Therese M. Novell, Attorney, Department of the Army, of Warren, Michigan. Appealed from: Merit Systems Protection Board NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2007-3203 CRAIG A. ADAMS, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent. Judgment ON APPEAL from the Merit Systems Protection Board in CASE NO(S). CH0752060251-1-1 This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: Per Curiam (GAJARSA, LINN, and DYK, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT DATED April 10, 2008 /s/ Jan Horbaly__ Jan Horbaly, Clerk
[Cite as Gallagher Sharp, L.L.P. v. Miller Goler Faeges Lapine, L.L.P., 2019-Ohio-3508.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA GALLAGHER SHARP, L.L.P., : Plaintiff-Appellant, : No. 107493 v. : MILLER GOLER FAEGES LAPINE : L.L.P., ET AL., Defendants-Appellees. : JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 29, 2019 Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-869606 Appearances: Gallagher Sharp, L.L.P., Richard C.O. Rezie, and Theresa A. Richthammer, for appellant. Robert D. Schwartz, pro se. RAYMOND C. HEADEN, J.: Plaintiff-appellant Gallagher Sharp L.L.P. (“Gallagher”) appeals from the trial court’s order denying Gallagher’s motion for summary judgment against defendant-appellee Robert D. Schwartz (“Schwartz”) because the claims against Schwartz were moot.1 For the reasons that follow, we affirm, albeit on other grounds. Statement of the Facts Schwartz was “of counsel” with the law firm Miller Goler Faeges Lapine (“MGFL”).2 As part of his employment package, MGFL provided professional liability insurance to Schwartz. During his employment with MGFL, Quirino DiPaolo (“DiPaolo”) was a client of Schwartz. In February 2009, DiPaolo brought suit against Schwartz and a “Doe” legal firm alleging legal malpractice, subsequently amending the complaint in April 2010 to identify MGFL as the “Doe” legal firm. MGFL held professional liability insurance with Chubb Group of Insurance Companies (“Chubb”) and Schwartz was an insured under the Chubb policy. Pursuant to the terms of the insurance policy, Chubb retained Gallagher to defend Schwartz in the legal malpractice claim while MGFL opted to provide its own defense. Gallagher’s legal services to Schwartz resulted in a bill totaling $39,117. To date, Schwartz has not paid the bill. On September 26, 2016, Gallagher filed suit under breach of contract and unjust enrichment seeking compensation from Schwartz and MGFL. Following 1This appeal is a companion case to the appeal in Gallagher Sharp, L.L.P. v. Miller Goler Faeges Lapine, L.L.P., 8th Dist. Cuyahoga No. 107483, 2019-Ohio-2113. 2In its brief, MGFL states that “[w]hen Schwartz first affiliated with the firm, the firm name was Miller Goler Faeges LLP[,] * * * [but] was subsequently changed to” its current name of Miller Goler Faeges Lapine. discovery, Gallagher and MGFL filed motions for summary judgment. The trial court granted Gallagher’s motion for summary judgment against MGFL on breach of contract. The trial court denied Gallagher’s motion for summary judgment against Schwartz because Schwartz was not the policyholder, but only an included insured under the Chubb policy, and the issue was rendered moot when summary judgment was granted against MGFL. Gallagher filed this timely appeal on July 30, 2018. MGFL also appealed the granting of Gallagher’s motion for summary judgment against MGFL. On August 1, 2018, this court sua sponte ordered that the appeals filed by Gallagher against Schwartz and MGFL be treated as companion appeals. Specifically, the court ordered that the cases share the trial court record, but be briefed, argued, and disposed of separately by the same merit panel.3 For the following reasons, we affirm the decision of the trial court. Law and Analysis Gallagher appeals the trial court’s decision denying its motion for summary judgment against Schwartz and finding all issues moot based upon the court’s granting summary judgment against MGFL. Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate “when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, 3In the companion case, Gallagher Sharp, L.L.P., 8th Dist. Cuyahoga No. 107483, 2019- Ohio-2113, we affirmed the lower court’s judgment granting Gallagher’s motion for summary judgment against MGFL. and, (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.” Marusa v. Erie Ins. Co., 136 Ohio St. 3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St. 3d 280, 292-293, 662 N.E.2d 264 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St. 3d 356, 359, 604 N.E.2d 138 (1992). Gallagher filed a complaint against MGFL and Schwartz seeking to recover their costs for the legal services provided by Gallagher to Schwartz. This appeal considers only the action against Schwartz; the action against MGFL has been decided in our companion case. Chubb retained Gallagher to provide legal services for Schwartz in the DiPaolo legal malpractice case. Gallagher now argues that Schwartz is responsible for its outstanding legal fees incurred while defending Schwartz. We must look to the insurance policy to determine whether Schwartz is responsible for payment of Gallagher’s invoice. The interpretation of an insurance policy is a question of law appropriate for summary judgment. If the insurance policy is clear and unambiguous, it should be given its plain and ordinary meaning. Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St. 3d 403, 2005-Ohio-5410, 835 N.E.2d 692, ¶ 9, citing Gomolka v. State Auto Mut. Ins. Co., 70 Ohio St. 2d 166, 167-168, 436 N.E.2d 1347 (1982). Relevant portions of the Chubb policy read as follows: Insured means the Firm and any Insured Person. Claim means: (1) Any of the following: a. A written demand or written request for monetary damages or non-monetary relief; b. A written demand for arbitration; c. A civil proceeding commenced by the service of a complaint or similar pleading; or d. A formal civil administrative or civil regulatory proceeding (including a disciplinary or grievance proceeding before a court or bar association) commenced by the filing of a notice of charges or similar document or by the entry of a formal order of investigation or similar document, against an Insured for a Wrongful Act, including any appeal therefrom; * * * *** Loss means the amount that an Insured becomes legally obligated to pay as a result of any covered Claim, including but not limited to damages (including punitive or exemplary damages if and to the extent that such punitive or exemplary damages are insurable under the law of the jurisdiction most favorable to the insurability of such damages, provided such jurisdiction has a substantial relationship to the relevant Insured, to the Company, or to the Claim giving rise to the damages), judgments, settlements, pre-judgment and post-judgment interest and Defense Costs. Defense Costs mean that part of Loss consisting of reasonable costs, charges, fees (including attorneys’ fees and experts’ fees) and expenses (other than regular or overtime wages, salaries, fees, overhead or benefits of any Insured) incurred in defending any Claim and the premium for appeal, attachment or similar bonds; provided that the Company will have no obligation to procure or provide any bonds. RETENTION AMOUNT The Company’s liability under this Policy shall apply only to that part of covered Loss on account of each Claim (other than a disciplinary or grievance proceeding) which is excess of the applicable Retention Amount set forth in ITEM 5 of the Declarations. Such Retention Amount shall be depleted only by Loss otherwise covered under this Policy and shall be borne by the Insured uninsured and at their own risk. In the event that any Insured Person is unwilling or unable to bear the Retention Amount it shall be the obligation of the Firm to bear such Retention Amount uninsured and at its own risk. No Retention Amount shall be applicable to a disciplinary or grievance proceeding. Ohio Small Law firm Endorsement: Section XII, DEFENSE AND SETTLEMENT, is amended by deleting paragraph[ ] (A) and * * * replacing [it] with the following: (A) The Company shall have the right and duty to defend any Claim covered by this Policy. Coverage shall apply even if any of the allegations are groundless, false or fraudulent. The Company shall assign counsel to defend the Insured. It shall not be unreasonable for the Company to withhold its consent to the representation of any Insured by another Insured or, if more than one Insured is involved in a Claim, to withhold its consent to separate counsel for one or more of such Insureds, unless there is a material actual or potential conflict of interest among such Insureds. Gallagher alleges Schwartz is liable for its legal fees under a breach of contract theory. “To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damages or loss resulting from the breach.” Claris, Ltd. v. Hotel Dev. Servs., L.L.C., 2018-Ohio-2602, 104 N.E.3d 1076, ¶ 28 (10th Dist.), citing Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St. 3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 41. We must first determine whether Schwartz is a party to the insurance contract so that Gallagher can maintain a claim for breach of contract against him. While Schwartz was not a signatory to the Chubb policy, he was an intended third- party beneficiary. To be an intended third-party beneficiary under a contract, “there must be evidence that the contract was intended to directly benefit that third party.” Huff v. FirstEnergy Corp., 130 Ohio St. 3d 196, 2011-Ohio-5083, 957 N.E.2d 3, ¶ 12. An intended third-party beneficiary has enforceable rights under the contract. Id. at ¶ 11. The Chubb policy provided insured persons, which included Schwartz, a benefit, specifically, malpractice insurance and legal representation. Schwartz possessed enforceable rights under the Chubb policy and actually received those benefits because Gallagher Sharp represented him in the DiPaolo legal malpractice action. Therefore, as an insured under the Chubb policy, Schwartz is also an intended third-party beneficiary of the Chubb insurance contract with MGFL. 4 With the understanding that Schwartz is an insured and MGFL is the Firm as defined in the Chubb policy, we review the terms of the policy. Under the Chubb policy, a claim was filed in regard to the DiPaolo legal malpractice claim against MGFL and Schwartz. Gallagher was retained to defend Schwartz, and defense costs payable to Gallagher were incurred. Gallagher now seeks payment of those legal fees. Defense costs are considered a “Loss” and their payment is addressed under the clause entitled “Retention Amount.” The insurance policy has a $50,000 Retention Amount requiring an insured under the policy to pay the first $50,000 of legal fees and related costs. The Retention Amount is to be paid in full before Chubb has any liability. The third sentence in “Retention Amount” reads: “In the event that any Insured Person is unwilling or unable to bear the Retention Amount it 4This court found in Gallagher Sharp, L.L.P., 8th Dist. Cuyahoga No. 107483, 2019- Ohio-2113, at ¶ 38, that Schwartz was an “insured” under the policy. shall be the obligation of the Firm to bear such Retention Amount uninsured and at its own risk.” In other words, if Schwartz is unwilling or unable to bear the Retention Amount, it is the Firm’s responsibility, here MGFL’s responsibility, to pay any outstanding amounts. The evidence reviewed in compliance with Civ.R. 56 supports the trial court’s decision regarding Gallagher’s motion for summary judgment against Schwartz. In Schwartz’s answer to plaintiff’s complaint, Schwartz denies there is a deductible amount and/or retention amount he must pay under the Chubb policy and denies he owes Gallagher for provided legal services. Schwartz raises as affirmative defenses recoupment, setoff, and/or indemnification and asserts that any monies owed to Gallagher must be paid by MGFL. Schwartz believes MGFL is responsible for Gallagher’s legal fees. Schwartz has not paid Gallagher’s legal fees during the pendency of this lawsuit and continues to defend himself against Gallagher’s claims of breach of contract and unjust enrichment. Schwartz’s answer as well as the absence of his payment for the outstanding legal fees and his ongoing defense demonstrate Schwartz is unable, or unwilling, to pay the legal fees owed Gallagher.5 As a result of his unwillingness or inability to pay the outstanding legal fees, Schwartz is not obligated to satisfy Gallagher’s defense costs and has not breached any contract with Gallagher. The terms of the Chubb policy state where 5As noted in our companion case, MGFL did not argue Schwartz was able or willing to pay Gallagher’s legal fees. Gallagher Sharp, L.L.P., 8th Dist. Cuyahoga No. 107483, 2019- Ohio-2113, at ¶ 42, fn. 5. an insured is unwilling or unable to pay, the Firm is required to satisfy the outstanding debt. Just as we found in our companion case, the Firm, or MGFL, is required to pay the retention amount, including the outstanding balance due to Gallagher. Gallagher Sharp, L.L.P. at ¶ 46. We do not limit our analysis to whether Schwartz is an insured under the Chubb policy. We adopt a similar approach to that presented in our companion case where we stated, “The central issue, therefore, is who is responsible for paying Gallagher Sharp.” Id. at ¶ 42. The Chubb policy’s language is clear and unambiguous and states if an insured is unwilling or unable to pay the full Retention Amount, it is the firm’s obligation to pay the outstanding amount. In its motion for summary judgment, Gallagher argues Schwartz is responsible for its outstanding legal fees under the terms of the Chubb policy. Simply finding Schwartz is an insured does not fully address the presented issue. We found in our companion case that MGFL was obligated to pay Gallagher’s legal fees because Schwartz was unable or unwilling to pay: “By refusing to pay Gallagher Sharp’s invoice for its representation of Schwartz, which Gallagher Sharp was retained to do pursuant to the insurance contract, MGFL breached its duty to pay for the retention amount that Schwartz was unable or unwilling to pay.” Gallagher Sharp, L.L.P., 8th Dist. Cuyahoga No. 107483, 2019-Ohio-2113, at ¶ 46. In conformity with that decision, we find the record supports the position that Schwartz was unwilling or unable to pay Gallagher’s legal fees. The Retention Amount requires only the insured, Schwartz, or the Firm, MGFL, to be liable for the outstanding amount. Where the insured, Schwartz, is unable or unwilling to pay, the contract shifts the obligation to pay the Retention Amount to MGFL to satisfy the outstanding payment. Because Schwartz is unable or unwilling to pay, his lack of payment was not a breach of contract with Gallagher, but an act that shifted the responsibility for payment to MGFL. In addition to alleging a breach of contract, Gallagher sought payment from Schwartz under an unjust enrichment theory. “Unjust enrichment is an alternative theory of recovery, which ‘operates in the absence of an express contract or a contract implied in fact to prevent a party from retaining money or benefits that in justice and equity belong to another.’” Cantlin v. Smythe Cramer Co., 2018- Ohio-4607, 114 N.E.3d 1260, ¶ 41 (8th Dist.), citing Gallo v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No. 91893, 2009-Ohio-1094, ¶ 19. Unjust enrichment is not applicable where an express contract exists. Cantlin at ¶ 42. Because the parties’ responsibilities stem from the Chubb insurance contract, unjust enrichment does not apply. In denying Gallagher’s motion for summary judgment against Schwartz, the trial court found Schwartz was “not the policy holder but only an included insured” and the motion for summary judgment against Schwartz was moot based upon the trial court’s granting Gallagher’s motion for summary judgment against MGFL. We agree with the trial court’s denial of Gallagher’s motion for summary judgment against Schwartz, but on other grounds. We find that Schwartz is a third-party beneficiary and an insured under the Chubb policy. Because Schwartz, as an insured, was unwilling, or unable, to pay the outstanding legal fees, the terms of the Chubb policy obligated MGFL to satisfy Gallagher’s outstanding legal fees. The trial court’s granting of Gallagher’s motion for summary judgment against MGFL identified MGFL as the liable party and rendered the motion for summary judgment against Schwartz moot.6 No genuine issues of material fact exist. There is no merit to Gallagher’s assignment of error and, as a result, it is overruled. Judgment affirmed. It is ordered that appellees recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. 6 Under Civ.R. 54(B), a judgment on less than all of the claims presented in an action is a final appealable order so long as the court order includes an express statement that “there is no just reason for delay.” The trial court’s decision included the required language and presented a final, appealable order resolving all claims between the parties. Hence, there was no error when the trial court denied Gallagher’s motion for summary judgment against Schwartz and found the claim against Schwartz rendered moot by its decision granting summary judgment against MGFL. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. RAYMOND C. HEADEN, JUDGE KATHLEEN ANN KEOUGH, J., CONCURS; MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY
NOTE : This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ VALEO NORTH AMERICA, INC., VALEO EMBRAYAGES, Appellants v. SCHAEFFLER TECHNOLOGIES AG & CO. KG, Cross-Appellant ______________________ 2018-1196, 2018-1228 ______________________ Appeals from the United States Patent and Trade- mark Office, Patent Trial and Appeal Board in No. IPR2016-00502. ______________________ JUDGMENT ______________________ ROBERT CARTER MATTSON, Oblon LLP, Alexandria, VA, argued for appellants. Also represented by TIA FENTON, LISA MANDRUSIAK, PHILIPPE J.C. SIGNORE . JUSTIN J. OLIVER, Venable LLP, Washington, DC, argued for cross-appellant. Also represented by S TEPHEN KAI-TUNG YAM. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER C URIAM (REYNA, SCHALL, and HUGHES, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE C OURT January 15, 2019 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court
1 F O R P U B L I C A T I O N 2 3 I N T H E S U P R E M E C O U R T O F T E N N E S S E E 4 5 6 A T N A S H V I L L E ( H E A R D A T C O L U M B I A ) FILED 7 8 December 15, 1997 9 10 Cecil W. Crowson 11 S T E V E H E N L E Y , ( Appellate Court Clerk 12 ( 13 A p p e l l e e , ( 14 ( J a c k s o n C r i m i n a l 15 ( 16 v . ( H o n . J . O . B o n d , J u d g e 17 ( 18 ( S . C t . N o . 0 1 S 0 1 - 9 7 0 3 - C C - 0 0 0 5 6 19 S T A T E O F T E N N E S S E E , ( 20 ( 21 A p p e l l a n t . ( 22 23 24 25 26 D I S S E N T I N G O P I N I O N 27 28 I d i s s e n t f r o m t h e m a j o r i t y ’ s d e c i s i o n t h a t t h e 29 p e t i t i o n e r i n t h i s c a s e r e c e i v e d e f f e c t i v e a s s i s t a n c e o f c o u n s e l . 30 31 E v e n t h o u g h t h e t r i a l c o u r t d e n i e d t h e p e t i t i o n f o r 32 r e l i e f , t h a t c o u r t o b v i o u s l y w a s n o t p l e a s e d w i t h c o u n s e l ’ s 33 p e r f o r m a n c e a n d a t t r i b u t e d c o u n s e l ’ s f a i l u r e t o c a l l a n y w i t n e s s e s 34 o t h e r t h a n p e t i t i o n e r ’ s g r a n d m o t h e r t o “ t r i a l s t r a t e g y . ” I n 35 a n n o u n c i n g h i s d e c i s i o n , t h e c o u r t s t a t e d : “ I w o u l d h a v e l i k e d t o 36 h a v e h a d a n o t h e r w i t n e s s m a y b e t o h a v e b e e n p u t o n . I w o u l d h a v e 37 l i k e d f o r t h e m o t h e r t o h a v e t e s t i f i e d w h e n s h e r e f u s e d . ” A n d 38 a g a i n : “ I w o u l d h a v e l i k e d t o h a v e s e e n a n o t h e r w i t n e s s o r t w o , 39 b u t t h a t ’ s t r i a l s t r a t e g y . ” 40 1 T h e C o u r t o f C r i m i n a l A p p e a l s f o u n d t h a t c o u n s e l ’ s 2 p e r f o r m a n c e a t t h e s e n t e n c i n g p h a s e o f t h e t r i a l w a s d e f i c i e n t a n d 3 a l s o p r e j u d i c i a l , a n d t h e c a s e w a s r e m a n d e d b y t h a t c o u r t t o t h e 4 t r i a l c o u r t f o r a n e w s e n t e n c i n g h e a r i n g . I n s u p p o r t o f m y 5 d i s s e n t , I r e l y u p o n t h e f o l l o w i n g p o r t i o n s o f t h e C o u r t o f 6 C r i m i n a l A p p e a l s ’ o p i n i o n , w h i c h w a s w r i t t e n b y J u d g e J o h n H . P e a y , 7 w i t h P r e s i d i n g J u d g e J o e B . J o n e s a n d S p e c i a l J u d g e J o s e p h H . 8 W a l k e r c o n c u r r i n g : 9 10 W i t h r e s p e c t t o t h e s e n t e n c i n g p h a s e o f t h e 11 t r i a l , h o w e v e r , w e f i n d t h a t M r . R e n e a u ’ s i n v e s t i g a t i o n 12 a n d p r e p a r a t i o n w e r e c o n s t i t u t i o n a l l y d e f i c i e n t . O u r 13 C o u r t h a s r e c o g n i z e d t h a t 14 15 ‘ [ a ] l a w y e r a l s o h a s a s u b s t a n t i a l 16 a n d i m p o r t a n t r o l e t o p e r f o r m i n 17 r a i s i n g m i t i g a t i n g f a c t o r s b o t h t o 18 t h e p r o s e c u t o r i n i t i a l l y a n d t o t h e 19 c o u r t a t s e n t e n c i n g . T h i s c a n n o t 20 e f f e c t i v e l y b e d o n e o n t h e b a s i s o f 21 b r o a d g e n e r a l e m o t i o n a l a p p e a l s o r o n 22 t h e s t r e n g t h o f s t a t e m e n t s m a d e t o 23 t h e l a w y e r b y t h e d e f e n d a n t . 24 I n f o r m a t i o n c o n c e r n i n g t h e 25 d e f e n d a n t ’ s b a c k g r o u n d , e d u c a t i o n , 26 e m p l o y m e n t r e c o r d , m e n t a l a n d 27 e m o t i o n a l s t a b i l i t y , f a m i l y 28 r e l a t i o n s h i p s , a n d t h e l i k e , w i l l b e 29 r e l e v a n t , a s w i l l m i t i g a t i n g 30 c i r c u m s t a n c e s s u r r o u n d i n g t h e 31 c o m m i s s i o n o f t h e o f f e n s e i t s e l f . 32 I n v e s t i g a t i o n i s e s s e n t i a l t o 33 f u l f i l l m e n t o f t h e s e f u n c t i o n s . ’ 34 35 36 A d k i n s v . S t a t e , N o . 0 3 C 0 l - 9 l 0 6 - C R - 0 0 1 6 4 , p p . 4 2 - 3 , 37 W a s h i n g t o n C o u n t y ( T e n n . C r i m . A p p . f i l e d D e c e m b e r 2 , - 2 - 1 1 9 9 4 , a t K n o x v i l l e ) ( c i t a t i o n o m i t t e d ) . P e r s o n a l 2 b a c k g r o u n d a n d c h a r a c t e r i n f o r m a t i o n a r e h i g h l y r e l e v a n t 3 a t a c a p i t a l s e n t e n c i n g h e a r i n g “ b e c a u s e o f t h e b e l i e f , 4 l o n g h e l d b y t h i s s o c i e t y , t h a t d e f e n d a n t s w h o c o m m i t 5 c r i m i n a l a c t s t h a t a r e a t t r i b u t a b l e t o a d i s a d v a n t a g e d 6 b a c k g r o u n d , o r t o e m o t i o n a l a n d m e n t a l p r o b l e m s , m a y b e 7 l e s s c u l p a b l e t h a n d e f e n d a n t s w h o h a v e n o s u c h e x c u s e . ” 8 C a l i f o r n i a v . B r o w n , 4 7 9 U . S . 5 3 8 , 5 4 5 ( 1 9 8 7 ) ( O ’ C o n n o r , 9 J . , c o n c u r r i n g ) . 10 11 A l t h o u g h m a n y o f H e n l e y ’ s f a m i l y m e m b e r s , 12 i n c l u d i n g h i s m o t h e r , t e s t i f i e d a t t h e p o s t - c o n v i c t i o n 13 h e a r i n g t h a t t h e y w o u l d h a v e b e e n w i l l i n g t o t e s t i f y o n 14 H e n l e y ’ s b e h a l f h a d t h e y b e e n a s k e d , M r . R e n e a u s p o k e t o 15 n o n e o f t h e m p r i o r t o t h e s e n t e n c i n g h e a r i n g . M r . R e n e a u 16 c a l l e d t h e p e t i t i o n e r ’ s m o t h e r t o t h e s t a n d a t t h e 17 s e n t e n c i n g h e a r i n g w i t h o u t e v e r h a v i n g s p o k e n t o h e r 18 a b o u t t e s t i f y i n g . N o t u n d e r s t a n d i n g w h a t w a s e x p e c t e d o f 19 h e r , s h e r e f u s e d - i n f r o n t o f t h e j u r y - t o t e s t i f y . W e 20 d o n o t t h i n k i t i s a s s u m i n g t o o m u c h t o c o n c l u d e t h a t a 21 j u r y i s g o i n g t o b e p r e j u d i c e d a g a i n s t a d e f e n d a n t u p o n 22 t h a t p e r s o n ’ s o w n m o t h e r r e f u s i n g t o t e s t i f y o n h i s o r 1 23 h e r b e h a l f . 24 25 H a d t h e y b e e n p r e p a r e d a n d c a l l e d a t t h e 1 I n t h e p e t i t i o n e r ’ s o f f e r o f p r o o f a t t h e p o s t - c o n v i c t i o n h e a r i n g , o n e j u r o r w a s q u o t e d a s s a y i n g , “ I f a m a n ’ s o w n m o t h e r w o n ’ t t e s t i f y o n h i s b e h a l f t h e n w e k n o w w h a t w e ’ v e g o t t o d o . ” - 3 - 1 s e n t e n c i n g h e a r i n g , H e n l e y ’ s f a m i l y m e m b e r s w o u l d h a v e 2 t e s t i f i e d t h a t t h e y l o v e d t h e p e t i t i o n e r ; t h a t h e w a s a 3 g o o d a n d l o v i n g m a n ; t h a t h e w a s n o t a v i o l e n t m a n ; t h a t 4 t h e o f f e n s e s o f w h i c h h e w a s c o n v i c t e d w e r e t o t a l l y o u t 5 o f c h a r a c t e r f o r h i m ; a n d t h a t t h e y w e r e s h o c k e d b y h i s 6 a r r e s t . T h e y w o u l d h a v e p l e d f o r h i s l i f e . 7 A d d i t i o n a l l y , t h e p e t i t i o n e r p r o d u c e d e v i d e n c e a t t h e 8 p o s t - c o n v i c t i o n h e a r i n g t h a t o t h e r p o t e n t i a l l y m i t i g a t i n g 9 e v i d e n c e e x i s t e d t h a t w o u l d h a v e b e e n d i s c o v e r e d h a d 10 M r . R e n e a u c o n d u c t e d a m o r e t h o r o u g h i n v e s t i g a t i o n . 11 E x p e r t t e s t i m o n y i n d i c a t e d t h e p o s s i b i l i t y t h a t H e n l e y 12 h a d s u f f e r e d f r o m d e p r e s s i o n , a l c o h o l a n d d r u g a b u s e , a n d 13 l e a r n i n g d i s a b i l i t i e s . I n g r a d e s c h o o l , H e n l e y ’ s I . Q . 14 t e s t e d a t 8 9 . H e d r o p p e d o u t o f h i g h s c h o o l a f t e r t h e 15 t e n t h g r a d e . N o t l o n g b e f o r e t h e m u r d e r s , H e n l e y 16 s u f f e r e d s e v e r e f i n a n c i a l l o s s e s , w a s f o r c e d t o f i l e 17 b a n k r u p t c y , a n d l o s t t h e f a m i l y f a r m . A l l o f t h i s w o u l d 18 h a v e b e e n p r o p e r t e s t i m o n y f o r m i t i g a t i o n . E d d i n g s v . 19 O k l a h o m a , 4 5 5 U . S . 1 0 4 , 1 1 7 ( 1 9 8 2 ) ( t h e C o n s t i t u t i o n 20 r e q u i r e s t h e s e n t e n c e r t o “ c o n s i d e r a n d w e i g h a l l o f t h e 21 m i t i g a t i n g e v i d e n c e c o n c e r n i n g t h e p e t i t i o n e r ’ s f a m i l y 22 b a c k g r o u n d a n d p e r s o n a l h i s t o r y . ” ) ( O ’ C o n n o r , J . , 23 c o n c u r r i n g ) ; L o c k e t t v . O h i o , 4 3 8 U . S . 5 8 6 ( 1 9 7 8 ) . 24 25 I n s p i t e o f a l l t h e m i t i g a t i n g e v i d e n c e 26 a v a i l a b l e , o n l y t w o p e o p l e t e s t i f i e d o n H e n l e y ’ s b e h a l f 27 a t t h e s e n t e n c i n g h e a r i n g : H e n l e y h i m s e l f a n d h i s - 4 - 1 g r a n d m o t h e r . T h e j u r y h a d a l r e a d y i n d i c a t e d t h a t i t d i d 2 n o t b e l i e v e H e n l e y w h e n i t c o n v i c t e d h i m . A c c o r d i n g l y , 3 i t i s r e a s o n a b l e t o p r e s u m e t h a t H e n l e y ’ s t e s t i m o n y a t 4 h i s s e n t e n c i n g h e a r i n g w o u l d n o t h a v e b e e n p a r t i c u l a r l y 5 p e r s u a s i v e . I t i s a l s o p o s s i b l e , i f n o t l i k e l y , t h a t 6 H e n l e y ’ s g r a n d m o t h e r w a s v i e w e d w i t h a c e r t a i n a m o u n t o f 7 h o s t i l i t y b e c a u s e F l a t t t e s t i f i e d t h a t i t w a s o n h e r 8 b e h a l f t h a t H e n l e y h a d f e l t c o m p e l l e d t o a t t a c k t h e 9 S t a f f o r d s . T h u s , o f a l l t h e p e o p l e t h a t M r . R e n e a u h a d 10 a v a i l a b l e t o h i m , t h e o n l y t w o t h a t t e s t i f i e d w e r e 11 a r g u a b l y t h e t w o l e a s t h e l p f u l . 12 13 “ W h e n t h e r e c o r d s h o w s a s u b s t a n t i a l d e f i c i e n c y 14 i n i n v e s t i g a t i o n , t h e n o r m a l d e f e r e n c e a f f o r d e d t r i a l 15 c o u n s e l ’ s s t r a t e g i e s i s p a r t i c u l a r l y i n a p p r o p r i a t e 16 . . . . [ T h i s ] C o u r t w i l l n o t c r e d i t a s t r a t e g i c c h o i c e 17 b y c o u n s e l w h e n c o u n s e l ‘ d i d n o t e v e n k n o w w h a t e v i d e n c e 18 w a s a v a i l a b l e . ’ ” C o o p e r v . S t a t e , 8 4 7 S . W . 2 d a t 5 3 0 19 ( c i t a t i o n o m i t t e d ) . T h e r e c o r d i n t h i s c a s e s h o w s s u c h a 20 s u b s t a n t i a l d e f i c i e n c y . N o p s y c h o l o g i c a l o r p s y c h i a t r i c 21 e v a l u a t i o n w a s d o n e o n H e n l e y . O t h e r t h a n H e n l e y ’ s 22 g r a n d m o t h e r , M r . R e n e a u d i d n o t s p e a k w i t h H e n l e y ’ s 23 f a m i l y m e m b e r s p r i o r t o t h e s e n t e n c i n g h e a r i n g . T h e r e i s 24 n o e v i d e n c e f r o m M r . R e n e a u ’ s f i l e o r o t h e r w i s e t h a t h e 25 i n v e s t i g a t e d H e n l e y ’ s e d u c a t i o n a l b a c k g r o u n d , e m p l o y m e n t 26 h i s t o r y , o r t h a t h e s p o k e w i t h m e m b e r s o f t h e c o m m u n i t y 27 f a m i l i a r w i t h H e n l e y . H e “ ‘ s h o u l d h a v e i n v e s t i g a t e d h i s - 5 - 1 b a c k g r o u n d , c h e c k e d h i s s c h o o l r e c o r d s , . . . h i s m e d i c a l 2 h i s t o r y , t r i e d t o f i n d w i t n e s s e s t o d e m o n s t r a t e a l l 3 a s p e c t s o f h i s c h a r a c t e r . [ H e ] s h o u l d h a v e r e q u e s t e d a 4 p s y c h o l o g i c a l e v a l u a t i o n . ’ ” B e l l v . S t a t e , N o . 0 3 C 0 1 - 5 9 2 1 0 - C R - 0 0 3 6 4 , p . 4 2 , H a m i l t o n C o u n t y ( T e n n . C r i m . A p p . 6 f i l e d M a r c h 1 5 , 1 9 9 5 , a t K n o x v i l l e ) , c e r t . d e n i e d , 7 ( q u o t i n g t h e c o u r t b e l o w ) . 8 9 W h i l e w e h a v e h e l d t h a t M r . R e n e a u ’ s f a i l u r e t o 10 i n v e s t i g a t e h i s c l i e n t ’ s m e n t a l h e a l t h w a s n o t 11 i n e f f e c t i v e a s s i s t a n c e o f c o u n s e l w i t h r e s p e c t t o t h e 12 g u i l t p h a s e o f t h i s t r i a l , w e d o f i n d t h a t i t w a s 13 i n e f f e c t i v e w i t h r e s p e c t t o t h e s e n t e n c i n g p h a s e . 14 15 “ [ T ] h r e e i s a q u a l i t a t i v e d i f f e r e n c e 16 b e t w e n e o b t a i n i n g p s y c h o l o g i c a l 17 i n f o r a m t i o n f o r t h e p u r p o s e o f 18 p r e p a i r n g a d e f e n s e t o t h e c h a r g e s 19 a n d u i s n g s u c h e v i d e n c e f o r t h e 20 p u r p o e s o f m i t i g a t i n g t h e p u n i s h m e n t . 21 T h u s , i t i s n o t i n c o m p a t i b l e t o 22 p r e s n t e e v i d e n c e o f p s y c h o l o g i c a l o r 23 m e n t l a i m p a i r m e n t d u r i n g s e n t e n c i n g , 24 e v e n w h e r e a d e f e n s e o f f a c t u a l 25 i n n o c e n c e h a s b e e n i n t e r p o s e d a t t h e 26 g u i l t p h a s e . ” 27 28 29 30 B e l l v . S t a t e , s u p r a a t 4 6 ( c i t a t i o n o m i t t e d ) . C o m b i n e d 31 w i t h M r . R e n e a u ’ s f a i l u r e t o i n v e s t i g a t e H e n l e y ’ s 32 f a m i l y ’ s a v a i l a b i l i t y a n d w i l l i n g n e s s t o t e s t i f y , a n d h i s 33 f a i l u r e t o i n v e s t i g a t e o t h e r a s p e c t s o f H e n l e y ’ s p a s t , 34 M r . R e n e a u f a i l e d t o m e e t t h e l e v e l o r c o m p e t e n c e 35 r e q u i r e d b y a t t o r n e y s r e p r e s e n t i n g c l i e n t s a t t h e - 6 - 1 s e n t e n c i n g p h a s e w h o a r e f a c e d w i t h t h e d e a t h p e n a l t y . 2 S e e S t a t e v . T e r r y , 8 1 3 S . W . 2 d 4 2 0 , 4 2 5 ( T e n n . 1 9 9 1 ) ( t h e 3 q u a l i t a t i v e d i f f e r e n c e b e t w e e n t h e d e a t h p e n a l t y a n d a l l 4 o t h e r p u n i s h m e n t s r e q u i r e s g r e a t e r r e l i a b i l i t y i n t h e 5 s e n t e n c i n g d e t e r m i n a t i o n ) . 6 7 W e a l s o f i n d t h a t M r . R e n e a u ’ s d e f i c i e n t 8 p e r f o r m a n c e a t t h e s e n t e n c i n g p h a s e p r e j u d i c e d t h e 9 p e t i t i o n e r . T h e p e t i t i o n e r m a d e a n o f f e r o f p r o o f a t t h e 10 p o s t - c o n v i c t i o n h e a r i n g t h a t t h e j u r y c o n s i d e r e d t h e f a c t 11 t h a t H e n l e y ’ s m o t h e r r e f u s e d t o t e s t i f y o n h e r s o n ’ s 12 b e h a l f . E v e n w i t h o u t t h i s o f f e r o f p r o o f , w e h o l d t h a t 13 t h e d e a r t h o f f a v o r a b l e t e s t i m o n y o f f e r e d a t t h e 14 s e n t e n c i n g h e a r i n g , w h e n s i g n i f i c a n t a m o u n t s o f f a v o r a b l e 15 t e s t i m o n y w e r e a v a i l a b l e , e s t a b l i s h e s a r e a s o n a b l e 16 p r o b a b i l i t y t h a t , b u t f o r M r . R e n e a u ’ s d e f i c i e n t 17 p e r f o r m a n c e w i t h r e s p e c t t o t h e s e n t e n c i n g p h a s e o f 18 H e n l e y ’ s t r i a l , t h e r e s u l t o f t h e p r o c e e d i n g w o u l d h a v e 2 19 b e e n d i f f e r e n t . 20 21 T h i s w e l l r e a s o n e d o p i n i o n b y t h e C o u r t o f C r i m i n a l 22 A p p e a l s c o m p e l s t h e c o n c l u s i o n t h a t t h e p e t i t i o n e r w a s d e n i e d 23 e f f e c t i v e a s s i s t a n c e o f c o u n s e l g u a r a n t e e d b y t h e s t a t e a n d f e d e r a l 24 c o n s t i t u t i o n s a n d t h e r e f o r e i s e n t i t l e d t o a n e w s e n t e n c i n g 25 h e a r i n g . 2 U n l i k e S t a t e v . M e l s o n , 7 7 2 S . W . 2 d 4 1 7 ( T e n n . 1 9 8 9 ) , t h i s w a s n o t a c a s e w h e r e t h e a v a i l a b l e m i t i g a t i o n e v i d e n c e h a d a l r e a d y b e e n p r e s e n t e d d u r i n g t h e g u i l t p h a s e o f t h e p e t i t i o n e r ’ s t r i a l . - 7 - 1 I a m a u t h o r i z e d t o s t a t e t h a t J u s t i c e B i r c h j o i n s i n t h i s 2 D i s s e n t i n g O p i n i o n . 3 4 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5 R e i d , J . - 8 -
Exhibit 10.1 AGREEMENT This Agreement (this “Agreement”) is made and entered into as of August 5, 2006, by and among Acxiom Corporation (the “Company” or “Acxiom”), on the one hand, and VA Partners, LLC, ValueAct Capital Master Fund, L.P., ValueAct Capital Management, L.P., ValueAct Capital Management, LLC (collectively, the “ValueAct Group”), on the other hand. RECITALS A.    The ValueAct Group beneficially owns in the aggregate 10,325,355 shares of outstanding Acxiom Common Stock and has initiated a proxy solicitation (the “Proxy Solicitation”) to elect three individuals to the Acxiom Board of Directors (the “Acxiom Board”); B.    The parties have agreed that the ValueAct Group shall withdraw its nominees to the Acxiom Board and terminate the Proxy Solicitation; C.    Acxiom has informed the ValueAct Group that Acxiom intends to commence a $300 million dutch auction self tender offer promptly following the execution of this Agreement; D.    The Acxiom Board has determined that it is in the best interests of the stockholders of the Company to appoint one representative of the ValueAct Group and one ValueAct Group independent nominee to the Acxiom Board; and E.    The Company and the ValueAct Group desire, in connection with the appointment of two members to the Acxiom Board, to make certain covenants and agreements with one another pursuant to this Agreement; NOW THEREFORE, in consideration of the covenants and premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows; 1.    The ValueAct Group hereby withdraws its nomination of Messrs. Jeffrey Ubben, Michael Lawrie and Louis Andreozzi, withdraws and terminates the Proxy Solicitation and shall promptly file with the SEC a request to withdraw the preliminary Schedule 14A filed by the ValueAct Group. 2.    Consistent with the matters contemplated in paragraphs 3 and 4 below, effective as of the date of this Agreement the Acxiom Board has increased the size of the membership of the entire Acxiom Board from 9 to 11. For the time period that Mr. Ubben remains a member of the Acxiom Board and subject to contractual obligations in effect prior to the date of this Agreement; the size of the membership of the Acxiom Board shall not exceed a total of 11 members. -------------------------------------------------------------------------------- 3.    The Acxiom Board has appointed Mr. Ubben to serve on the Acxiom Board in the class whose term ends at the annual meeting of stockholders to be held in calendar 2008 and to serve on the Corporate Governance and Finance Committees of the Acxiom Board, subject to the execution of this Agreement. 4.    Prior to the first Acxiom Board meeting (the “First 2006 Board Meeting”) subsequent to Acxiom’s 2006 Annual Meeting of Stockholders (the “2006 Annual Meeting”), the ValueAct Group shall identify one independent individual who is not an employee, principal or affiliate of the ValueAct Group to serve as a director of Acxiom. Provided that such person is reasonably acceptable to the Acxiom Board, the Acxiom Board shall appoint such person at the First 2006 Board Meeting to be a member of the Acxiom Board in the class whose term ends at the annual meeting of stockholders to be held in calendar 2008. 5.    At the 2006 Annual Meeting, including any adjournment or postponement thereof, the ValueAct Group agrees to appear and vote all shares of Acxiom Common Stock beneficially owned by the ValueAct Group in favor of the election to the Acxiom Board of Charles Morgan, Ann Die Hasselmo and Bill Henderson and Michael J. Durham, the Acxiom Board’s nominees (the “Acxiom Slate”). 6.    From the date hereof through the 2006 Annual Meeting, the ValueAct Group shall not directly or indirectly engage in any activities in opposition to the election of the Acxiom Slate at the 2006 Annual Meeting. 7.    The ValueAct Group agrees that until the first year anniversary of this Agreement that it shall not sell or trade, whether directly or indirectly any securities of Acxiom, including without limitation, any derivative securities of Acxiom or related thereto, except with the prior written consent of the Executive Committee of the Acxiom Board. The ValueAct Group agrees that for so long as Mr. Ubben is a member of the Acxiom Board, the ValueAct Group will not acquire, whether directly or indirectly, any securities of Acxiom, including without limitation, any derivative securities of Acxiom or related thereto, except with the prior written consent of the Executive Committee of the Acxiom Board. 8.    From the date hereof through the 2007 Annual Meeting of Stockholders, the ValueAct Group agrees that it shall not, nor shall any member of the ValueAct Group permit any ValueAct Group controlled affiliate to act in concert with any person to, directly or indirectly, solicit or participate in any solicitation of proxies, written consents or similar authorizations with respect to any Acxiom voting securities or seek to advise or influence in any manner any person with respect to the voting of any Acxiom voting securities. 9.    The ValueAct Group agrees that it will cause its controlled affiliates to comply with the terms of this Agreement. 10.    Promptly following the execution of this Agreement, the Company and the ValueAct Group shall jointly issue a mutually agreeable press release announcing the terms of this Agreement. [The remainder of this page intentionally left blank]   2 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.   ACXIOM CORPORATION By:   /s/    Jerry C. Jones           Name: Jerry C. Jones Title: Vice President   VA PARTNERS, LLC By:   /s/    George F. Hamel, Jr.           Name: George F. Hamel, Jr. Title: Managing Member   VALUEACT CAPITAL MASTER FUND, L.P. By:   /s/    George F. Hamel, Jr.           Name: George F. Hamel, Jr. Title: Managing Member   VALUEACT CAPITAL MANAGEMENT, L.P. By:   /s/    George F. Hamel, Jr.           Name: George F. Hamel, Jr. Title: Managing Member   VALUEACT CAPITAL MANAGEMENT, LLC By:   /s/    George F. Hamel, Jr.           Name: George F. Hamel, Jr. Title: Managing Member [SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]   3
Exhibit 10.12.6 AMENDMENT NO. 6 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT      THIS AMENDMENT NO. 6 (this “Amendment”) TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of July 1, 1999, between Brightpoint, Inc., an Indiana corporation (the “Employer” or the “Company”), and Steven E. Fivel (the “Employee”) is entered into as of December 19, 2008.      WHEREAS, the Employer and the Employee have entered into an amended and restated employment agreement, dated as of July 1, 1999, as amended by those certain amendments dated as of January 1, 2001, January 1, 2002, January 1, 2003, January 1, 2004 and April 7, 2005 (the “Employment Agreement”); and      WHEREAS, the Employer and Employee wish to amend certain sections of the Employment Agreement as provided below.      NOW, THEREFORE, in consideration of the premises and mutual benefits and covenants contained herein, the parties hereto agree as follows:      1. Unless the context indicates otherwise, capitalized terms used and not defined in this Amendment shall have the respective meanings assigned thereto by the Employment Agreement.      2. This Amendment is effective as of the date first set forth above, except as specifically provided otherwise.      3. Section IX(i)(A) shall be amended and restated in its entirety as follows:      (i) Severance Cap.      (A) Notwithstanding Subsection 9(d)(ii) and Section 9(h) above, the total value to be received by the Employee due to the Severance Pay pursuant to Subsection 9(d)(ii) and the accelerated vesting pursuant to Section 9(h) (the “Accelerated Vesting”) (such total value referred to herein as the “Total Severance Value”) may not exceed $2.25 million (the “Severance Cap”). With respect to a Date of Termination after January 1, 2010 the Severance Cap shall be (i) $1.25 million in the event that, prior to and not as a result of a Change of Control, the Employee’s employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, and (ii) 2.25 million in the event that (x) the employee, without Good Reason, terminates his employment at any time within twelve months after a Change of Control (provided that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement, it is ascertainable on the date of such Termination that such Change of Control has occurred), or (y) if after or as a result of a Change of Control, the Employee’s employment is terminated either by the Employee for Good   --------------------------------------------------------------------------------   Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof. For the avoidance of doubt, any accelerated vesting of the restricted stock award granted to the Employee on April 7, 2005 and any Increase provided to the Employee pursuant to Section 9(e) hereof shall not count toward or be subject to the Severance Cap.      4. A new Section 13 is added to the Employment Agreement as follows:           “13. Compliance with Code Section 409A.           (a) It is intended that any amounts payable under this Employment Agreement and the Employer’s and the Employee’s exercise of authority or discretion hereunder shall comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), including the Treasury regulations and other published guidance relating thereto, so as not to subject the Employee to the payment of any interest or additional tax imposed under Code Section 409A. To the extent any amount payable to the Employee from the Employer, per this Employment Agreement or otherwise, would trigger the additional tax imposed by Code Section 409A, the payment arrangements shall be modified to avoid such additional tax. Notwithstanding any provision in the Employment Agreement to the contrary, as needed to comply with Code Section 409A, payments due under this Agreement shall be subject to a six (6) month delay such that amounts otherwise payable during the six (6) month period following the Employee’s separation from service shall be accumulated and paid in a lump-sum catch-up payment as of the first day of the seventh-month following separation from service.           (b) The Employer shall pay in full any Delayed Payment in accordance with Section 13(a) and shall not deduct from or setoff against any Delayed Payment (i) any compensation earned by the Employee as the result of employment by another employer or business or profits earned by the Employee from any other source at any time before and after the Date of Termination, or (ii) any other amounts actually owed or claimed by the Employer to be owed by the Employee to the Employer in connection with any claim the Employer has or makes against the Employee.”      5. Miscellaneous.           (a) This Amendment is a legal and binding obligation of the parties, enforceable in accordance with its terms.           (b) This Amendment shall be construed in accordance with the internal laws and not the choice of law provisions of the State of Indiana.           (c) Except as specifically amended hereby, the Employment Agreement shall remain in full force and effect. In the event the terms of the Employment Agreement conflict with this Amendment, the terms of this Amendment shall control. 2 --------------------------------------------------------------------------------             (d) Except as otherwise provided herein, this Amendment contains the entire understanding between the parties, and there are no other agreements or understandings between the parties with respect to the subject matter hereof. No alteration or modification hereof shall be valid except by a subsequent written instrument executed by the parties hereto.           (e) This Amendment may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute only one agreement. Any facsimile of this Amendment shall be considered an original document. 3 --------------------------------------------------------------------------------        IN WITNESS WHEREOF, each of the parties hereto has duly executed this Amendment No. 6 to Amended and Restated Employment Agreement as of the date first set forth above.           12/30/08 BRIGHTPOINT, INC.       By:   /s/ Robert J. Laikin         Name:   Robert J. Laikin         Title:   CEO        EMPLOYEE       /s/ Steven E. Fivel       Steven E. Fivel             4
Citation Nr: 9934357 Decision Date: 12/09/99 Archive Date: 12/16/99 DOCKET NO. 97-07 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased disability evaluation for post traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The veteran served in active service from August 1951 to June 1953. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's current global assessment of functioning (GAF) scores range from 40 to 50, which in essence reflect that he is either unable to keep a job or unable to work. His symptoms include paranoia, recurrent nightmares (related to Korean war combat), obsessive-compulsive behavior, anxiety, somatization, and depression. CONCLUSION OF LAW The criteria for a 100 percent disability evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.125-4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (1999); Rhodan v. West, 12 Vet. App. 55 (1998); Karnas v. Derwinski, 1 Vet. App. 308 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for an increased rating for PTSD is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, he has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In addition, where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Furthermore, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In this case, in a March 1990 rating decision, the veteran was granted service connection and a 30 percent disability evaluation for PTSD under Diagnostic Code 9411. At present, the veteran contends his current PTSD symptomatology entitles him to a disability evaluation in excess of 30 percent. With respect to the applicable law, the Board observes that, during the pendency of the veteran's appeal, the regulation with respect to rating mental disorders has been changed. See 61 Fed. Reg. (742)413-8388 (October 8, 1996), effective November 7, 1996, (codified at 38 C.F.R. §§ 4.16, 4.125- 4.132). In Karnas v. Derwinski, the United States Court of Veterans Appeals (the Court) held that where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, in Rhodan v. West, 12 Vet. App. 55 (1998) (Haywood v. West, No. 97-25), the Court noted that the revised regulations regarding mental disorders expressly stated an effective date of November 7, 1996 and contained no provision for retroactive applicability. In view of the effective date rule contained in 38 U.S.C.A. § 5110(g), the Secretary was obligated to apply November 7, 1996 as the effective date for the revised criteria for mental disorder, and thus, was prevented from applying the liberalizing law rule stated in Karnas, see supra. As such, the revised rating schedule for mental disorders cannot be applied to a claim for any date prior to November 7, 1996. See Rhodan v. West, 12 Vet. App. 55 (1998) (Haywood v. West, No. 97-25); see 38 U.S.C.A. § 5110(g)(West 1991). Previous to November 7, 1996, in assessing the severity of a psychoneurosis, such as PTSD, the effect of the disorder on the veteran's ability to interact on both a social and industrial level, as confirmed by the current clinical findings, was considered. Social inadaptability, however, was evaluated only as it affected or impaired industrial adaptability. See 38 C.F.R. § 4.132, Diagnostic Code 9411, Note (1) (1996). The prior Schedule for Rating Disabilities envisioned that a 10 percent evaluation for PTSD was warranted where the claimant presented symptomatology which was less severe than that required to meet the criteria for a 30 percent evaluation, but also presented evidence of emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). A 30 percent disability evaluation for PTSD was warranted where there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. See id. In this regard, the Board acknowledges that VA General Counsel opinion 9-93 defines the word "definite," as used in 38 C.F.R. § 4.132 to describe a 30 percent degree of disability for purposes of rating claims involving psychiatric disabilities, as meaning distinct, unambiguous, and moderately large in degree, more than moderate but less than rather large. See VAOPGCPREC 9-93 (November 1993) (emphasis added). A 50 percent evaluation for PTSD was warranted where the ability to establish and maintain effective or favorable relationships with people was considerably impaired, and the psychoneurotic symptoms resulted in such reductions in initiative, flexibility, efficiency and reliability levels as to result in considerable industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). A 70 percent evaluation for PTSD was warranted where the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. See id. A 100 percent evaluation was warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. In the alternative, a 100 percent evaluation was warranted if there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality and disturbed thought or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic, and explosions of aggressive energy resulting in a profound retreat from mature behavior. As well, a 100 percent evaluation was awarded if the veteran was demonstrably unable to obtain or retain employment. See id. The appellant only need meet one of these criteria to be granted a 100 percent evaluation. Johnson v. Brown, 7 Vet. App. 95 (1994). The revised schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Under the revised schedular criteria, a 10 percent schedular evaluation for mental disorders, including PTSD, contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 30 percent schedular evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See id. A 50 percent schedular evaluation contemplates reduced reliability and productivity in occupational and social situations due to such symptomatology as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See id. A 70 percent evaluation now envisions occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently; appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. See id. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. See id. With respect to the evidence of record, the evidence includes medical records from the Brecksville VA Medical Center (VAMC) dated from September 1989 to February 1997, and the Wade Park VAMC dated from May 1990 to June 1995 describing the treatment the veteran received over time for various health problems including, but not limited to, PTSD. Specifically, February 1990 notations from the Brecksville VAMC note the veteran suffered from PTSD, delayed type, secondary to Korean war trauma and precipitated by fighting trauma. At that time, he was unemployed and had held only several odd jobs since 1982. September 1992 and February 1993 VA examination reports contain various psychiatric diagnoses for the veteran, including PTSD, antisocial personality disorder, major depression, and paranoid personality disorder. As well, the February 1993 VA examination report notes the veteran had few interpersonal relationships outside of his family and had recurrent altercations with the neighbors and police. Even within his family, his wife was at that time pursuing a divorce and 5 of his 6 children were estranged. He was deemed severely disabled interpersonally due to both PTSD and pervasive paranoid personality. In addition, records from the Southwest General Hospital dated March 1993 show he was hospitalized with diagnoses of depression and PTSD; the veteran had become very restless as he was going through his divorce, became very violent, and was brought in by the police handcuffed. An October 1995 VA special psychological evaluation report notes the veteran reported having feelings of depression, helplessness, hopelessness, and loneliness; occasional suicidal ideas, but no intent; and a 27 year history of excess (daily) alcohol consumption. And, an October 1995 VA examination report shows diagnoses of mild PTSD, alcohol addiction, and obsessive compulsive disorder at axis I; and a diagnosis of mixed personality disorder with obsessive compulsive paranoid and schizoid elements at axis II. Axis IV notes he was going through the stress caused by the death of his wife, losing his home and being alienated from his children. And, axis V shows he was assigned a global assessment of functioning (GAF) score of 50, which was partially due to his alcohol addiction and personality traits. He was also not expected to function in a job in any consistent manner. In this regard, according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), a GAF score of 50 equates to serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). An October 1995 VA PTSD examination report shows the veteran's GAF score was 45, which includes the same symptomatology as a GAF score of 50. However, an October 1996 VA mental disorders examination report assigned the veteran a GAF score of 60, which according to the DSM-IV equates to moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers.) An October 1997 statement from a VA psychologist notes the veteran had been receiving treatment since 1993 at the Brecksville VAMC for his PTSD symptoms including paranoia, recurrent nightmares (related to Korean war combat), obsessive-compulsive behavior, anxiety, somatization, depression and alcohol abuse. The statement further notes the veteran reportedly had impaired social relationships such as frequent "disagreements" with neighbors and interventions by the police department, and was estranged from his children due to years of physical and emotional abuse directed towards his wife and children following his discharge from service in the 1950s. Lastly, a May 1998 VA examination report indicates the veteran made very little eye contact, was anxious and tense throughout the interview, and was almost in tears when he was talking about his Korean experience and the attack on the hill. Upon examination, it was found he was oriented to time, place and person, had difficulty concentrating, had intact memory for recent and past events, had paranoid ideas, and heard voices talking to him, although he could not make out what the voices were saying. Also, he reported having suicidal thoughts and having had put a gun to his head. He was diagnosed with PTSD and alcohol abuse, and was assigned a GAF score of 40, which according to DSM-IV equates to some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). His current stressors included financial problems and loss of family, friends, and home. After a review of the evidence, the Board finds the evidence above discussed, including the two October 1995 VA examination reports and the May 1998 VA examination report, shows the veteran has been assigned GAF scores ranging from 40 to 50, which in essence reflect that he is either unable to keep a job or unable to work. In addition, although the veteran suffers from other non-service connected psychiatric disorders such as mixed personality disorder with obsessive compulsive paranoid and schizoid elements, and a history of alcohol abuse, the Board finds that the majority of his present symptomatology appears to be most likely due to his PTSD, as shown by the October 1997 Statement from a VA psychiatrist and the May 1998 VA examination report. Specifically, this evidence shows his present symptoms include paranoia, recurrent nightmares (related to Korean war combat), obsessive-compulsive behavior, anxiety, somatization, and depression. Furthermore, during the May 1998 examination, he was almost in tears when he was talking about his Korean experience. Therefore, the Board finds the evidence shows the veteran meets the requirements for an award of a 100 percent disability evaluation under the old criteria for evaluating mental disorders. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); Karnas, supra. The potential application of various provisions of Title 38 of the Code of Federal Regulations are to be considered whether or not they were raised by the veteran, as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. However, as the Board has awarded the veteran the maximum benefit allowed for his PTSD under the regular schedular standards, consideration of the veteran's claim under the provisions of 38 C.F.R. § 3.321(b)(1) is moot in this case. ORDER Entitlement to a 100 percent disability evaluation for PTSD is granted, subject to provisions governing the payment of monetary benefits. WARREN W. RICE, JR. Member, Board of Veterans' Appeals
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS October 30, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-30253 Summary Calendar CARINE LILIANE UMUZAYIRE, Plaintiff-Appellant, versus HIPOLITO ACOSTA, Interim District Director, Bureau of Citizenship and Immigration Services, Houston, Texas, Defendant-Appellee. -------------------- Appeal from the United States District Court for the Eastern District of Louisiana (02-CV-1338-R) -------------------- Before JOLLY, JONES, and WIENER, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Carine Liliane Umuzayire appeals from the district court’s dismissal of her declaratory-judgment action for lack of subject-matter jurisdiction. Umuzayire argues that the district court had jurisdiction to review her asylum application. Because Umuzayire is required to exhaust her administrative remedies by renewing her request for asylum in the context of * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. removal proceedings, the district court did not have jurisdiction over the present case. See Kashani v. Nelson, 793 F.2d 818, 826-27 (7th Cir. 1986). As the district court lacked jurisdiction, we too lack jurisdiction and therefore must dismiss Umuzayire’s appeal. AFFIRMED DISMISSED.
Case 3:18-cv-06810-JST Document 70 Filed 12/04/18 Page 1 of 1 Reset Form 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ) East Bay Sanctuary Covenant et al. 3:18-cv-06810 ) Case No: _______________ 4 ) Plaintiff(s), ) APPLICATION FOR 5 ) ADMISSION OF ATTORNEY v. ) PRO HAC VICE 6 DONALD J. TRUMP ) (CIVIL LOCAL RULE 11-3) ) 7 Defendant(s). ) ) 8 I, Peter S. Margulies , an active member in good standing of the bar of 9 Florida , hereby respectfully apply for admission to practice pro hac vice in the 10 Northern District of California representing: Professors of Immigration Law in the above-entitled action. My local co-counsel in this case is __________________________________, David C. Marcus an 11 attorney who is a member of the bar of this Court in good standing and who maintains an office 12 within the State of California. MY ADDRESS OF RECORD: LOCAL CO-COUNSEL’S ADDRESS OF RECORD: 13 Roger Williams University School of Law 350 S. Grand Avenue, Suite 2100, 14 10 Metacon Avenue, Bristol, RI 02809 Los Angeles, CA 90071 MY TELEPHONE # OF RECORD: LOCAL CO-COUNSEL’S TELEPHONE # OF RECORD: 15 386-999-1998 386-999-1998 MY EMAIL ADDRESS OF RECORD: LOCAL CO-COUNSEL’S EMAIL ADDRESS OF RECORD: 16 [email protected] [email protected] I am an active member in good standing of a United States Court or of the highest court of 17 another State or the District of Columbia, as indicated above; my bar number is: 0023663 . 18 A true and correct copy of a certificate of good standing or equivalent official document from said bar is attached to this application. 19 I agree to familiarize myself with, and abide by, the Local Rules of this Court, especially the Standards of Professional Conduct for attorneys and the Alternative Dispute Resolution Local Rules. 20 I declare under penalty of perjury that the foregoing is true and correct. 21 Dated: Peter S. Margulies 22 APPLICANT 23 ORDER GRANTING APPLICATION 24 FOR ADMISSION OF ATTORNEY PRO HAC VICE 25 IT IS HEREBY ORDERED THAT the application of Peter S. Margulies is granted, subject to the terms and conditions of Civil L.R. 11-3. All papers filed by the attorney must indicate 26 appearance pro hac vice. Service of papers upon, and communication with, local co-counsel 27 designated in the application will constitute notice to the party. 28 Dated: December 4, 2018 UNITED STATES DISTRICT/MAGISTRATE JUDGE PRO HAC VICE APPLICATION & ORDER October 2012
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 00-3593 ___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. James Luvene, * * Defendant - Appellant. * ___________ Submitted: March 13, 2001 Filed: April 2, 2001 ___________ Before MURPHY, LAY, and BYE, Circuit Judges. ___________ MURPHY, Circuit Judge. James Luvene was found guilty by a jury of conspiracy to possess with the intent to distribute and to distribute over 50 grams of crack cocaine and also of aiding and abetting another in possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2. The district court1 sentenced Luvene to 151 months, and he appeals from the judgment. We affirm. 1 The Honorable David S. Doty, United States District Judge for the District of Minnesota. On April 13, 2000, Luvene was arrested after his involvement in a sale of crack cocaine to Minneapolis undercover police officer Kevin Angerhofer. Earlier that evening Angerhofer had received information from a woman arrested for selling heroin that Luvene and Bryant Cribbs were crack dealers. She agreed to arrange a drug deal with them. The informant made three taped telephone calls to Luvene and Cribbs. In the first call she told Luvene that she wanted to buy 4 ½ grams of crack for $4,500. She later arranged to meet Cribbs in the parking lot of a hotel. Angerhofer drove with her to the hotel lot where she joined Luvene and Cribbs in Luvene's car while Angerhofer waited in his unmarked vehicle. Angerhofer testified that through his open window he could hear the others discussing the crack deal since a window in Luvene's car was also partially open. An agreement was reached, and Luvene and Cribbs told the informant and Angerhofer to wait in the parking lot until they returned. Surveillance officers followed Luvene and Cribbs to their apartment, where the two remained for approximately twenty minutes. Luvene dropped Cribbs off elsewhere before driving back to the hotel lot where he told Angerhofer that his friend had the crack at another location and that Angerhofer should follow him there. Angerhofer expressed concern that Luvene was trying to cheat him, and Luvene said "No, no. We're not trying to rip you off." Angerhofer told Luvene that he wanted to hold the crack to determine its quality. Luvene answered, "That's not a problem, you can make sure it's good." Luvene then drove to the house where he had left Cribbs, and Angerhofer parked directly behind him. Luvene made a call on his cell phone, and Cribbs came out and walked over to Angerhofer's vehicle where the informant took the crack from Cribbs and passed it to Angerhofer. He then signaled waiting officers to arrest Cribbs and Luvene. Luvene was searched after he was arrested. He was carrying a key to the apartment he shared with Cribbs, $295 in small denominations, and a cell phone. Officers obtained a search warrant for the one bedroom apartment. The officers found crack in a black backpack and in a jacket, a triple beam scale on the kitchen counter -2- with crack residue on its balance, small plastic bags, another scale with razor marks and cocaine residue in the dining room, $900 cash in an unlocked safe in the bedroom closet, a bulletproof vest, ammunition, and a Glock pistol case. Cribbs and Luvene were charged jointly, but several days before trial Cribbs pled guilty. Cribbs testified during his plea colloquy that both he and Luvene had possessed the crack with the intent to distribute it, and that they had conspired to do so. Before trial Luvene hired an investigator to locate the informant. Counsel mentioned at oral argument that the investigator had talked to her on the phone, and Luvene himself had a telephone conversation with her. The investigator also spoke to members of her family, but he was not able to learn where she was. The government disclosed its witness list the week before trial, and the informant's name was not on it. On the day before trial Luvene moved in limine, asking the court to order the government to disclose the location of the informant. The court told the government to disclose that information and offered Luvene a continuance if he should require more time to locate the informant. Luvene did not pursue the court's offer, however. After the government turned over the informant's name and last known address, Luvene complained to the court that she was no longer there and that the government must have additional undisclosed information. He requested an absent witness instruction. The court ordered the government to turn over all the information that it had on the informant, including phone numbers, and ruled that Luvene was not entitled to an absent witness instruction because of the untimeliness of his discovery request. The court inspected the government files in camera and found no undisclosed matter on the informant. Luvene indicated he wanted to question Angerhofer about the whereabouts of the informant, and the court held an evidentiary hearing for that purpose. Angerhofer -3- testified that the informant had called him the week after Luvene's arrest to ask if she would be subpoenaed. She told Angerhofer that she would not appear in court if she were subpoenaed and implied that she was afraid of being physically harmed. She refused to meet with Angerhofer, but gave him a telephone number in Chicago. Later it was discovered that she could not be reached at that number. Angerhofer had no other phone number or address for her. Luvene's theory of defense at trial was mere presence, and he testified before the jury. Neither Cribbs nor the informant testified. The jury found Luvene guilty on both counts. The court calculated his sentencing range at 151-188 months and sentenced him at the low point of the range.2 On appeal Luvene asks that his conviction be reversed, arguing that his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process were violated when the government failed to inform him of the location of the informant and that the district court abused its discretion by not giving an absent witness instruction. Luvene claims that the informant's testimony was important to his case because it would have shown that the drug negotiation was between her and Cribbs and that Luvene was merely present during their discussion. He claims that her testimony would have been especially important because Angerhofer's version at trial about what happened when the informant got into the car with Luvene and Cribbs differed from his police report and from Luvene's testimony. The Sixth Amendment provides that "[in] all criminal prosecutions, the accused shall enjoy the right to . . . have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI. The right to 2 Luvene was assigned a base offense level of 32 for possession of between 50 and 150 grams of crack cocaine. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(4). The district court found that Luvene testified falsely when he denied involvement in the drug transaction and applied a two level enhancement for obstruction of justice. See id. at § 3C1.1. -4- compulsory process is not absolute. Both the Sixth Amendment compulsory process and the Fifth Amendment due process clauses require that a defendant show that the witness "testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 872 (1982). Material testimony is testimony that might affect the outcome of the trial. See id. at 868. There was ample evidence at trial that Luvene was involved in the drug transaction. The informant's initial telephone contact was with Luvene when she told him that she wanted to buy crack, Luvene and Cribbs went together to their apartment before producing the crack, Luvene led Angerhofer and the informant to the site where the crack was to be turned over, and assured Angerhofer that "We're not trying to rip you off." The search of the one bedroom apartment revealed crack, drug paraphernalia, and large amounts of money. Luvene carried a key for the apartment, and his name was on the mailbox. He had an opportunity to cross examine Angerhofer, and the jury chose to believe Angerhofer's version of what happened rather than his. In light of all the evidence against Luvene, the informant's testimony was not material to his defense. See Perry v. Lockhart, 871 F.2d 1384, 1388 (8th Cir. 1989). He has not shown a violation of the compulsory process or due process clauses. We review the denial of Luvene's motion for an absent witness instruction under an abuse of discretion standard. See United States v. Johnson, 562 F.2d 515, 517 (8th Cir. 1977) (per curiam). This type of instruction tells the jury that the government's failure to call a witness "peculiarly within its power to produce" may give rise to the inference that the witness would have given testimony unfavorable to the government and need not be given unless the defendant shows that the government possesses the sole power to produce the witness. See id. Luvene has not shown that the informant was peculiarly within the government's power to produce. Luvene alleges that the government was responsible for her unavailability and speculates that her refusal to testify was from fear of being charged -5- for heroin possession rather than from fear of being harmed by Luvene or his friends.3 Angerhofer's testimony, that the informant implied she would be afraid to testify and that she gave him a non-working Chicago phone number, was unrebutted and supports the government's argument that it had no control over the informant. Angerhofer's only face to face contact with the informant was on the day of Luvene's arrest. Luvene knew the identity of the informant and was acquainted with her and her family. He was aware the week before trial that the government did not plan to call the informant to testify, and he waited until the day before trial to ask for disclosure of information about her whereabouts. The court arranged for the government to give him the information, and it conducted an in camera review of the prosecutor's file and an evidentiary hearing. It also offered Luvene a continuance so that he could try to locate her, but Luvene did not pursue the offer. Luvene has not shown that the government had sole power to produce the informant, and the district court did not abuse its discretion in declining to give an absent witness instruction. For these reasons, we affirm the judgment of the district court. 3 Luvene now argues that the government should have used its influence with the informant to persuade her to testify, but he never asked the government to attempt to produce the witness. In any event there was sufficient evidence for the jury to find Luvene guilty even if the informant would have given the testimony he has hypothesized. -6- A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -7-
Daniel P. Deegan, Esq. Informal Opinion Glen Cove City Attorney No. 2004-7 Crowe Deegan, LLP 1 School Street, Suite 303 Glen Cove, New York 11592 You have asked whether a vacancy on the Glen Cove City Council, occurring by virtue of a tie vote at the preceding general election, may be filled by appointment by the Mayor and City Council under section C2-8 of the Glen Cove City Charter (the "Charter"), which governs vacancies that occur "otherwise than by expiration of term," or whether it may be filled by a special election proclaimed by the Governor under Public Officers Law ("POL") § 42(3). We conclude that the vacancy is created by expiration of term and may be filled by special election under POL § 42(3). I. Factual Background The City Council is Glen Cove's elective governing body. You have advised that the Charter provides for six city council members who are elected at large to serve for two-year terms. You have also advised that there was a tie vote for the sixth seat on the City Council at the November 2003 general election, as certified by the Nassau County Board of Elections. Consequently, there is a vacant city council seat for the term beginning January 1, 2004. You have also stated that the Charter contains no provision permitting the Mayor or City Council to order a special election, and have directed our attention to section C2-8 of the Charter which provides for the filling of vacancies in city office. II. Analysis POL § 42(3) authorizes the Governor to proclaim a special election to fill a vacancy that arises when there is a failure to elect someone to assume an office at a general or special election held to fill that office: Upon the failure to elect to any office, except that of governor orlieutenant-governor, at a general or special election, at which suchoffice is authorized to be filled, or upon the death or disqualification of a person elected to office before the commencement of his official term, or upon the occurrence of a vacancy in any elective office which cannot be filled by appointment for a period extending to or beyond the next general election at which a person may be elected thereto, thegovernor may in his discretion make proclamation of a special election tofill such office, specifying the district or county in which the election is to be held, and the day thereof, which shall be not less than thirty nor more than forty days from the date of the proclamation. POL § 42(3) (emphasis supplied). The Court of Appeals has affirmed that POL § 42(3) applies to a situation where a tie vote results in a failure to elect someone to assume office.See Mastandrea v. Travia, 20 N.Y.2d 678 (1967). In Mastandrea, the Court of Appeals refused to enjoin the Governor from calling for a special election under POL § 42(3), where a tie vote at a general election resulted in a failure to elect a delegate to the Constitutional Convention. In affirming the order dismissing the petition, the Court rejected the petitioners' contention that the vacancy should have been filled by the remaining district delegates under Article 19, § 2 of the Constitution, which referred to a vacancy in the office of constitutional convention district delegate caused by the delegate's death, resignation or other cause after such delegate has been elected. The conclusion that the Governor may exercise his power to proclaim a special election where a tie vote results in a failure to elect someone to assume office is also consistent with opinions of this office. See 1979 Op. Att'y Gen. 13 (Governor may proclaim special election to fill vacancy on city council following tie vote at general election); 1915 Op. Att'y Gen. 451 ("Special elections by proclamation of the Governor after a tie vote at a general election were provided for as early as 1842 [and such provision has been] continuously preserved."); 1910 Op. Att'y Gen. 397 (Governor is authorized to proclaim special election under former section 292 of Election Law1 to fill vacancy in city office following a tie vote at the preceding general election). One of these opinions, issued in 1979, further explains that in these circumstances, the vacancy in an office arises by virtue of the expiration of the incumbent's term. See 1979 Op. Att'y Gen. 13 (POL § 42(3) "covers a vacancy that arises by a failure to elect someone to assume an office at the beginning of the political year, January 1, by virtue of the expiration of the term of office of the incumbent."). As here, the 1979 opinion involved the failure to elect a member of the city council by reason of a tie vote at the general election, and the Attorney General concluded that POL § 42(3) provided the method for filling such office unless the city had provided for a different method for filling vacancies that exist by virtue of the expiration of the term and the failure to elect a successor. The current vacancy on the City Council occurred at the expiration of a term of office where, by reason of a tie vote at the preceding general election, there was a failure to elect someone to assume such office. Consistent with our earlier opinion, we conclude that POL § 42(3) therefore applies to fill the vacancy, unless the City "has provided a different method for filling an elective office that becomes vacant upon the failure to elect a successor." 1979 Op. Att'y Gen. 13. You have directed our attention to Charter § C2-8, which applies to a vacancy that arises "in any elective office of the city, otherwise than by expiration of term," and authorizes the Mayor and City Council to appoint someone "to fill such vacancy until the next general election." It thus covers vacancies that occur during a term of office, and excludes vacancies that occur "by expiration of term."2 As noted, the vacancy you describe was created by the expiration of the term, and the office remains vacant because the tie vote resulted in a failure to elect a successor. See People ex rel. Bast v. Voorhis,227 N.Y. 167, 173 (1919) ("The expiration of a term necessarily creates a vacancy therein."); People ex rel. Mitchellv. Sohmer, 209 N.Y. 151, 157 (1913) ("[a] vacancy for the purpose of choosing a successor has existed by reason of the statute [POL § 5] from the date of the expiration of the term"). The fact that the term has now commenced should not create a different result. Consequently, because your charter provision by its terms excludes vacancies that occur by expiration of term, it appears inapplicable to the current vacancy. See 1979 Op. Att'y Gen. 13 (charter provision providing for appointment to fill a vacancy that excludes vacancies that occur "by expiration of term" inapplicable to vacancy occurring at expiration of term by reason of tie vote at preceding general election). Insofar as the City has not provided for the filling of a vacancy where, by reason of a tie vote at the preceding general election, there has been a failure to elect someone to assume the office of City Council member, POL § 42(3) applies to the present circumstances. The Governor, in his discretion, may call a special election to fill the office. The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent. Very truly yours, LAURA ETLINGER, Assistant Solicitor General In Charge of Opinions By: _____________________________ Ann P. Zybert Assistant Solicitor General 1 Former section 292 of the Election Law of 1909 is the predecessor to POL § 42(3). 2 Section C2-8 provides in pertinent part: Other than as provided in this Charter, if a vacancy shall occur in any elective office of the city, otherwise than by expiration of term, the Mayor and City Council shall appoint a person to fill such vacancy until the next general election. Charter § C2-8 (emphasis supplied).
534 Pa. 23 (1993) 626 A.2d 499 COMMONWEALTH of Pennsylvania, Appellant and Cross-Appellee, v. Frederick MAXWELL, Appellee and Cross-Appellant. Supreme Court of Pennsylvania. Argued January 26, 1993. Decided May 26, 1993. *24 Catherine Marshall, Ronald Eisenberg, Commonwealth, Norman Gross, Philadelphia, for appellant/cross-appellee. Michael Salmanson, F. Maxwell, Philadelphia, for appellee/cross-appellant. Before: NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ. OPINION ANNOUNCING THE JUDGMENT OF THE COURT LARSEN, Justice. These cross-appeals arise under the Post Conviction Relief Act (PCRA).[1] Frederick Maxwell, appellee and cross-appellant, (hereinafter, appellee) was convicted by a jury in 1981 of murder of the first degree and sentenced to death. This Court, on direct appeal, sustained the conviction and affirmed the judgment of sentence. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied 469 U.S. 971, 105 S. Ct. 370, 83 L. Ed. 2d 306 (1984). Appellee, in 1991, filed a *25 PCRA petition alleging numerous instances of ineffective assistance of counsel. After a hearing, the PCRA court, based upon its view that evidence had been improperly admitted at the penalty phase of appellee's trial, entered an order vacating the sentence of death and remanding for a new sentencing hearing; the order denied all other claims raised by the petition. The Commonwealth appeals from the portion of the order vacating the sentence of death and remanding for a new sentencing hearing. Appellee appeals from the portion of the order denying his remaining claims.[2] At the penalty phase of appellee's trial, the jury found that the Commonwealth had proved beyond a reasonable doubt the existence of the following two aggravating circumstances: (1) the defendant committed a killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); and the defendant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). Appellee offered no evidence of mitigating circumstances. In order to prove that appellee had a significant history of felonies involving the use or threat of violence, the Commonwealth introduced evidence of two felony convictions in the state of New York, one in 1971 for robbery and the other in 1974 for criminal possession of a loaded weapon. Although appellee, in his PCRA petition, did not challenge the admission of evidence involving his 1971 conviction, he did assert that *26 evidence of his 1974 New York conviction had been erroneously admitted; the basis of his argument is that the Pennsylvania crime which is most closely related to the New York crime in question is possession of an instrument of crime, 18 Pa.C.S. § 907, a misdemeanor, and that the 1974 New York conviction, therefore, would not have the status of a "felony conviction" in Pennsylvania. The Pennsylvania legislature, according to appellee, obviously intended "felony convictions" under 42 Pa. C.S. § 9711(d)(9) to mean Pennsylvania felonies. Absent the allegedly improper evidence of his 1974 New York conviction, appellee correctly pointed out that his 1971 New York felony conviction, standing alone, would be insufficient to constitute a significant history of felony convictions involving the threat or use of violence under § 9711(d)(9). (See Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985)). Appellee further contended that his 1974 New York conviction not only lacked the status of a felony conviction in Pennsylvania but that it lacked the element of the threat or use of violence required by § 9711(d)(9). The PCRA court agreed with appellee. The Commonwealth now contends that the PCRA court erred in vacating the sentence of death. We agree. In order to be eligible for relief under the PCRA, appellee is required to plead and prove by a preponderance of the evidence, inter alia, that the allegation of error has not been previously litigated. (See 42 Pa.C.S. § 9543(a)(3)). As evidenced by the following excerpt from this Court's opinion in appellee's direct appeal, appellee's claim with regard to his 1974 conviction in the state of New York has been previously litigated. Appellant also has raised, by pro se letters addressed to this Court, numerous allegations of ineffectiveness of counsel. These assertions include: (1) failing to visit appellant at prison; (2) drafting a trial brief without consulting appellant; (3) failing to investigate how the cellar door was broken; (4) failing to challenge the Commonwealth's evidence that appellant had pled guilty to two violent felonies committed in New York; (5) failing to raise that the prosecutor was a dishonorable man; (6) turning over to the prosecutor a statement written by appellant; (7) failing to *27 prove at trial that appellant's girlfriend was his wife; (8) failing to object to a question asked by the prosecutor during the sentencing hearing; (9) failing to object to the admission of appellant's handwriting exemplars, and (10) failing to object to a Commonwealth witness' usage of notes to refresh his recollection. After having carefully reviewed the record and the applicable precedent, we find the claims to be meritless. (Emphasis added). (Commonwealth v. Maxwell, 505 Pa. 152, 157 n. 5, 477 A.2d 1309 (1984)).[3] In light of the foregoing, appellee's claim of ineffectiveness centering on his 1974 New York conviction is not cognizable under the PCRA.[4] *28 Moreover, whether the evidence of appellee's 1974 conviction was properly admitted is irrelevant for the purpose of determining whether appellee's sentence of death is valid. Had the challenged evidence not been admitted, the fact still remains that the jury found at least one aggravating circumstance (appellee killed his victim while perpetrating the felony of robbery) and no mitigating circumstance. Pennsylvania's sentencing code mandates that "the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance." 42 Pa.C.S. § 9711(c)(1)(iv); (See also Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984)). Accordingly, the order of the PCRA court vacating the sentence of death and remanding for a new sentencing hearing is reversed. The sentence of death is reinstated. The order denying all remaining issues raised in appellee's PCRA petition is affirmed. NIX, C.J., and FLAHERTY, ZAPPALA and CAPPY, JJ., concur in the result. NOTES [1] 42 Pa.C.S. § 9541 et seq. [2] In his cross-appeal, Maxwell raises the following issues: "Was Maxwell's sentence of death . . . invalid on the . . . grounds that Maxwell's death sentence was improper because of (a) errors committed by the prosecutor in closing argument (including references to appellate review, the Bible, his own view of the proper sentence), (b) defense counsel's ineffectiveness in failing to put on mitigating evidence and in his closing argument and (c) the trial court's improper use of a verdict form which told jurors that mitigating evidence must be found unanimously and its excusal of jurors who were ambivalent about the death penalty? Did the court below err in refusing to reverse Maxwell's conviction because of improper prosecutorial arguments, an improper jury charge regarding malice and evidence of racial bias, or at least affording Maxwell the full opportunity to demonstrate that his conviction was tainted by racial bias?" We have fully reviewed these issues, and the law relevant thereto, and find that they are without merit. [3] In addition to this Court's review of the issue involving appellee's 1974 New York conviction, the issue was also reviewed by the trial judge after appellee had submitted the aforementioned pro se letters to this Court in December, 1982 while his direct appeal was pending. This Court's Chief Justice at the time (Chief Justice Roberts) entered an order referring the matter to the trial court for a determination of whether new appellate counsel should be appointed. An evidentiary hearing was conducted by the trial judge on March 3, 1983, during which the issue involving appellee's 1974 New York conviction was addressed. The trial court, prior to our opinion in appellee's direct appeal, ruled that new appellate counsel should not be appointed since appellee's claims (including the claim involving his 1974 New York conviction) were without merit. [4] Even assuming that appellee's claim is cognizable for the purpose of this appeal (and we make the assumption only because this is a death penalty case), we have no hesitation in holding that appellee's conviction in the state of New York in 1974 for criminal possession of a weapon was a felony conviction involving the use or threat of violence to the person under 42 Pa.C.S. § 9711(d)(9). To hold otherwise and accept appellee's argument would require that we interpret the phrase, "felony convictions" under § 9711(d)(9) as including only those felony convictions which have occurred in Pennsylvania or, if they have occurred in another state, have an exact corollary in the Pennsylvania Crimes Code. To adopt such an interpretation would result in this Court, in effect, amending the statute. A felony is a felony no matter where it is committed. Furthermore, appellee's argument overlooks a material distinction between the New York and Pennsylvania statutes. New York Penal Law § 265.02(4) provides that a person is guilty of criminal possession of a weapon in the third degree (a felony) if he "possesses any loaded firearm . . . [outside of his] home or place of business." Section 907 of the Pennsylvania Crimes Code, on the other hand, encompasses weapons which are not loaded. Thus, we have no analogous crime in Pennsylvania. Additionally, it is apparent that appellee's claim regarding the lack of the threat or use of violence is without merit. The police officer who arrested appellee for the crime which resulted in his 1974 conviction in New York testified that, on the date of the arrest, he had responded to a call of a robbery in progress and had encountered appellee, and an individual later named as the complainant, in the hallway of an apartment building. The police officer testified that appellee was holding a loaded gun.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION Robert Segi appeals from a judgment of the Vandalia Municipal Court, which found him guilty of driving under the influence ("DUI") after overruling his motion to suppress evidence. The facts of this case are undisputed. Late in the evening of November 1, 1999, Sergeant Jeffrey Dallas of the Ohio State Highway Patrol saw Segi driving southbound on North Dixie Drive in a van. Sergeant Dallas, who was also traveling southbound on North Dixie, observed Segi drive his van over the right lane edge marker three times. The third time, Segi crossed over the edge marker by "at least one tire width" and "stayed to the right of that marker for approximately five to ten seconds." Sergeant Dallas activated his overhead lights just as Segi began to turn right onto Buena Vista, the street on which he lived. Segi proceeded into his driveway, which was four houses from the corner, and exited the van along with his brother. Sergeant Dallas asked Segi whether he had been drinking, and Segi responded that he had. Sergeant Dallas detected a "strong" odor of alcohol from Segi, but he did not observe any other indicia of intoxication. Sergeant Dallas ordered Segi into the back of his cruiser and removed him from his driveway to a nearby parking lot to conduct field sobriety tests. According to Sergeant Dallas, he did this to prevent anyone inside Segi's home from coming out and interfering with the administration of the sobriety tests. When Segi could not perform the field sobriety tests properly, he was arrested for DUI and was transported to a patrol post. Segi refused to take a breath-alcohol test, and an administrative license suspension was imposed. Segi pled not guilty and filed a motion to suppress in which he argued that he had been detained unlawfully and that there had not been probable cause for his arrest. The trial court overruled the motion to suppress. The trial court found that Segi had been arrested when he was placed in the rear of the cruiser at his home, rather than after the sobriety tests had been conducted at the nearby parking lot, but that the arrest had nonetheless been proper because the marked lane violations, admission of drinking, and strong odor of alcohol, standing alone, had given Sergeant Dallas probable cause to arrest Segi. The trial court also stated that the traffic violation was not de minimis because the last marked lane violation had lasted five to ten seconds. It appears from the record that Segi changed his plea to no contest following the ruling on the motion to suppress, upon which he was found guilty by the trial court. He was sentenced to six months in jail, with all but three days suspended, and was fined $1,000, with $800 suspended. Segi raises three assignments of error on appeal. We address the first two assignments together. I. THE TRIAL COURT ERRED IN HOLDING THAT NOTHING MORE THAN A MARKED LANES VIOLATION COUPLED WITH AN ODOR OF AN ALCOHOLIC BEVERAGE IS REQUIRED TO JUSTIFY DETENTION FOR THE PURPOSE OF ADMINISTERING FIELD SOBRIETY TESTS. II. THE TRIAL COURT ERRED IN HOLDING THAT NOTHING MORE THAN A MARKED LANES VIOLATION COUPLED WITH AN ODOR OF AN ALCOHOLIC BEVERAGE IS SUFFICIENT TO CONSTITUTE PROBABLE CAUSE FOR AN ARREST FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL. Segi contends that Sergeant Dallas detained him for field sobriety tests without a reasonable, articulable suspicion of criminal activity and arrested him without probable cause to believe that he had been driving under the influence. Segi relies on State v. Spillers (March 24, 2000), Darke App. No. 1504, unreported, in support of his position. Segi concedes that Sergeant Dallas was justified in detaining him for a traffic violation. Moreover, the state seems to concede that Segi had been arrested when he was placed in the back of the cruiser and removed from the scene of the traffic stop. Because it is dispositive, we will first address the question of whether Sergeant Dallas had probable cause to arrest Segi when he placed Segi in the back of the cruiser. Probable cause exists where, under the facts and circumstances presented, a prudent person would believe that the offense had been committed. State v. Otte (1996), 74 Ohio St. 3d 555,559. In Spillers, the patrolman testified that he saw the defendant drive on the yellow line and across the white line three times within a span of approximately one mile, and Spillers denied this claim. The patrolman then followed the car for a significant distance during which he did not observe any traffic violations. The trial court characterized the alleged lane violations as "de minimis." When the patrolman stopped the defendant, he detected a "slight" odor of alcohol but did not observe any other indicia of impairment, such as slurred speech or bloodshot eyes. At the time of the stop, Spillers admitted to the patrolman that he had consumed "a couple" of beers. We held that "traffic violations of a de minimis nature are not sufficient, combined with a slight odor of an alcoholic beverage, and an admission of having consumed `a couple' of beers, to support a reasonable and articulable suspicion" of DUI. Spillers, supra. The facts in Spillers are strikingly similar to the facts in this case except that Spillers smelled "slightly" of alcohol and Segi smelled "strongly" of alcohol. In Spillers, we found that the facts presented did not even create a reasonable, articulable suspicion that the defendant had been driving under the influence so as to justify conducting field sobriety tests. We concluded that "[a] slight odor of an alcoholic beverage is insufficient, by itself, to trigger a reasonable suspicion of DUI, and nominal traffic violations, being common to virtually every driver, add nothing of significance." (Emphasis sic.) Id. Having found in Spillers that a slight odor of alcohol coupled with a minor traffic violation did not constitute reasonable, articulable suspicion, we cannot rationally conclude that the stronger odor in this case created not only reasonable, articulable suspicion but probable cause to arrest as well. The law prohibits drunken driving, not driving after a drink. State v. Taylor (1981), 3 Ohio App. 3d 197, 198; Spillers,supra. Smelling too drunk to drive, without other reliable indicia of intoxication, is not enough to constitute probable cause to arrest. SeeState v. Finch (1985), 24 Ohio App. 3d 38, 40. The second assignment of error is sustained. The first assignment of error challenges whether Sergeant Dallas had a reasonable, articulable suspicion sufficient to detain Segi for field sobriety tests. Because Segi's arrest preceded the field sobriety tests and we have found that Sergeant Dallas did not have probable cause to arrest Segi, we need not address whether Sergeant Dallas had a reasonable, articulable suspicion to detain Segi for such tests. III. THE TRIAL COURT ERRED IN HOLDING THAT NOTHING MORE THAN A MARKED LANES VIOLATION COUPLED WITH AN ODOR OF AN ALCOHOLIC BEVERAGE IS SUFFICIENT TO ESTABLISH REASONABLE GROUNDS TO BELIEVE A DRIVER IS OMVI IN ORDER TO JUSTIFY IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION. Because Sergeant Dallas did not have probable cause to arrest Segi for DUI, he had no authority to require Segi to elect between the alternatives presented by R.C. 4511.191-to take a potentially incriminating test or to suffer a six month driving suspension. Taylor,3 Ohio [email protected]. Accordingly, the driving suspension which resulted from Segi's election not to take the test cannot stand. The third assignment of error is sustained. The judgment of the trial court will be reversed. _________________________ WOLFF, J. FAIN, J. and YOUNG, J., concur.
Dear Mr. Kearns: Your request for an Attorney General's Opinion has been assigned to me for research and reply. On behalf of the St. Tammany Parish Hospital Service District No. 2 doing business as Slidell Memorial Hospital ("Slidell"), you have asked for our opinion on matters related to Louisiana's Public Bid Law, La.Rev.Stat. 38:2211, et. seq. According to your request, Slidell owns and operates a diagnostic imaging center known as "MD Imaging." Slidell proposes to expand the center with the construction of a new wing to accommodate mammography and ultrasound equipment. This new wing will be constructed via the public bid process. Your request goes on to indicate that the existing mammography and ultrasound equipment will be relocated to the new wing, while the room which currently houses the mammography and ultrasound services will be renovated and refitted to accommodate Positron Emission Tomography-Computed Tomography (PET-CT) equipment. Renovations costs are estimated to be $425,000, exclusive of equipment. According to your request, complex and unique specifications and engineering will be required to renovate and refit the room. Further, specialized shielding must be incorporated into the floor, walls, and ceiling to contain the electromagnetic field generated by the PET-CT equipment. Due to the complexity of the specifications, and the use of proprietary systems and criteria, among other things, Slidell would like to engage a singe contractor capable of completing the project properly and safely. To that end, you ask for our opinion as to whether Slidell may directly engage a contractor to design, renovate, and refit the PET-CT room and install PET-CT equipment without engaging in the public bid process. In general terms, public entities are prohibited from directly engaging a contractor to design and renovate a building. Commonly referred to as the design-build method, such a practice is prohibited by La.Rev.Stat. 38:2225.2 which provides the following: *Page 2 Neither the state nor any local entity, unless specifically authorized by law, may execute any agreement for the purchase of unimproved property which contains provisions related to the successful design and construction of a construction project prior to transfer of title to the state or local entity. As a public entity, as defined in La.R.S. 38:2211(A)(11), Slidell is subject to the provisions of the Louisiana Public Bid Law.See La.R.S. 38:2211 et seq. Under Louisiana's Public Bid Law, contracts for public works projects exceeding $150,000 must be advertised and let to the lowest responsible and responsive bidder. A public works project means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity. La.Rev.Stat. 38:2211. Public works projects that are estimated to cost less than $150,000 are not subject to the advertising and bidding requirements of the Public Bid Law and may be undertaken by the public entity with its own employees or may be negotiated with one or more contractors. Based upon the plain language of La.Rev.Stat. 38:2211, it is our opinion that the proposed renovation of the PET-CT room falls under the purview of Louisiana's Public Bid Law. As such, the project must be competitively bid. Louisiana's public bid law mandates that Slidell develop the plans and specifications for the project and then advertise the project and accept sealed bids. Slidell is free to require whatever licenses and/or industry certifications it deems are necessary to ensure the project is completed properly and safely. Further, Slidell has the ability to develop its plans and specifications in such a manner to ensure the building is constructed to fit its needs. Still further, all bids submitted must be evaluated to determine bidder responsiveness and responsibility, thereby giving Slidell another opportunity to ensure that the low bidder on the project is capable of completing the project to the Slidell's specifications. We trust this adequately responds to your request. If you should have any questions about the response contained herein, please feel free to contact our office. Yours very truly, JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL BY:__________________________ MICHAEL J. VALLAN Assistant Attorney General JDC/MJV/crt
Frances I. Warren v. Commissioner.Warren v. CommissionerDocket No. 25193.United States Tax Court1952 Tax Ct. Memo LEXIS 74; 11 T.C.M. 986; T.C.M. (RIA) 52291; October 2, 1952Harold E. Smith, Esq., and Ralph R. Quillian, Esq., for the petitioner. Newman A. Townsend, Jr., Esq., for the respondent. RAUMMemorandum Findings of Fact and Opinion This proceeding involves the following deficiencies in income tax and additions to tax determined by the respondent against the petitioner: 50% addition6% addition10% additionYearDeficiencyto taxto taxto tax1944$28,115.12$14,057.56$ 40.5619454,654.312,327.16279.2619469,307.124,653.56585.60$976.0119471,300.44650.22112.92194.09The issues are: (1) Did the respondent err in including unidentified bank deposits in the petitioner's taxable net income for the years 1944, 1945, 1946 and 1947? (2) Is1952 Tax Ct. Memo LEXIS 74">*75 the petitioner liable for the 50 per cent addition to tax for fraud provided for in Section 293(b) of the Internal Revenue Code? (3) Is the petitioner liable for the 6 per cent addition to tax prescribed by Section 294(d)(2) of the Internal Revenue Code for substantial underestimate of tax? (4) Is the petitioner liable for the 10 per cent addition to tax provided for by Section 294(d)(1)(A) of the Internal Revenue Code for failure to file a declaration of estimated tax for the taxable years 1946 and 1947? (5) Is the assessment and collection of the deficiency for the year 1945 barred by the provisions of Section 275(a) of the Internal Revenue Code? Other issues raised by the pleadings with respect to minor adjustments made by the respondent for the year 1946 were waived by the petitioner at the trial. Findings of Fact The parties have filed a stipulation as to some of the facts involved herein; that stipulation is hereby adopted as part of our findings, and is incorporated herein by reference. Petitioner is a resident of Atlanta, Georgia. She filed her income tax returns for1952 Tax Ct. Memo LEXIS 74">*76 the taxable years with the collector of internal revenue for the district of Georgia. Petitioner and Robert L. Warren were married in September 1923. They had three children. They were separted on or about January 22, 1946, and divorced on or about June 6, 1946. Robert L. Warren died on March 18, 1949. The Warren Produce Company commenced business in 1929. During its existence it had at various times from one to five leased stores in Atlanta which sold poultry and produce. Robert L. Warren operated this business for approximately one year. In the early part of 1930 he became bankrupt and the petitioner purchased the fixtures of the business from a bank which was one of the creditors. Petitioner operated the business from 1930 until it was discontinued in June or July, 1942, during which time her husband had nothing to do with the operation of the stores, except that he worked for petitioner as the buyer for the main store which was located at 195 Edgewood Avenue in Atlanta. Petitioner kept the books of the business, which had approximately thirty employees, and during each of the years 1941 and 1942, its total receipts amounted to approximately $100,000. In a joint return filed1952 Tax Ct. Memo LEXIS 74">*77 by petitioner and her husband for 1942, a net loss of $3,837.42 from the operation of the business was reported. Petitioner ceased to operate the poultry and produce business in June, 1942. Thereafter until June 1945, when she lost the leases to the stores, she subleased to her former store managers the buildings and equipment on a profit-sharing basis, each sublessee paying her an amount equal to the rent she paid the owners of the real estate plus a percentage of the profits. In 1942, when the poultry and produce business was discontinued, Robert L. Warren entered the used-car business under the name of R. L. Warren Motor Company. He used the money in the bank account of the Warren Produce Company in the East Atlanta Bank to get started. During 1942, the operations of the used-car business were entered in the same set of books that had theretofore been used for the poultry and produce business. The bank account of the Warren Produce Company was closed out about January 1, 1943, and accounts were opened at the East Atlanta Bank in the name of the R. L. Warren Motor Company and in the name of the petitioner. Petitioner kept the books of the usedcar business during the period the1952 Tax Ct. Memo LEXIS 74">*78 company engaged in business, with the exception of the year 1943, when her husband employed a bookkeeper. Petitioner's husband authorized petitioner to sign checks on the account of the company, and she signed a substantial number of checks on this account, some of which were payable to various payees, some to cash with no endorsement, and some to herself with her endorsement. Vendors often would not accept checks for cars, and her husband would on occasion send petitioner to the bank to get cash needed to purchase automobiles. She got this cash by drawing checks on the company account. Petitioner also drew checks on her personal account to pay for automobiles purchased by the company and for some of its expenses. She was at the place of business of the company about once or twice a week. Often when her husband was out of town attending auction sales, employees of the company would come to her home to get checks needed to purchase cars. Checks issued under these circumstances were on her personal bank account at the East Atlanta Bank. The employees were authorized by her husband to purchase cars when he was out of town. Petitioner considered the checks drawn on her account for or1952 Tax Ct. Memo LEXIS 74">*79 on behalf of the company to be loans. No notes were given by her husband and no interest was paid by him. The following is a list of checks drawn on the account of the R. L. Warren Motor Company at the East Atlanta Bank during the years 1944 and 1945 payable to petitioner: January 3, 1944$2,225.00January 18, 1944927.00April 21, 194484.81August 14, 1944325.00August 29, 19441,040.00September 11, 19441,500.00December 12, 19446,880.00April 16, 1945500.00June 2, 19457,000.00 With the exception of the April 16, 1945, check for $500, which was a counter check, all of the above-listed checks were endorsed by the petitioner. The following is that portion of the "Notes Payable" account of R. L. Warren Motor Company for the years 1944 and 1945, which reflects loans made by petitioner: 1944DebitsCreditsFeb. 18 F. R. Warren (loan)$1,000.00Mar. 11 F. R. Warren (loan)2,000.00Mar. 13 F. R. Warren (loan)425.00Mar. 13 F. R. Warren (loan)1,080.00Mar. * F. R. Warren (loan)900.00Mar. * F. R. Warren (loan)1,075.00Mar. * F. R. Warren$ 900.00Mar. * F. R. Warren1,500.00Mar. * F. R. Warren175.00Apr. 1 F. R. Warren1,740.00May 29 F. R. Warren2,175.00July 12 F. R. Warren (loan)1,285.00Oct. * Frances Warren6,000.00Oct. * Frances Warren1,000.00Dec. * Frances Warren6,880.001945Mar. * F. R. Warren$2,500.00Apr. * Frances Warren4,500.00May * Frances Warren$1,451.75June * Frances Warren7,000.0046.751952 Tax Ct. Memo LEXIS 74">*80 The "credits" to this account record amounts paid to the company or to R. L. Warren by the petitioner, and the "debits" payments made to her. Checks were issued by petitioner on her personal account in 1944 in the amounts of $1,075 on January 29, $1,080 on February 9, $425 on March 9, and $2,000 on March 11, and in 1945 for $46.80 on October 18. Deposits were made in petitioner's bank account on March 20, 1944, December 12, 1944, May 8, 1945, and June 5, 1945, in amounts sufficient to cover the payments made of $175, $6,880, $1,451.75, and $7,000, respectively. The R. L. Warren Motor Company had a safe in its office which was used by petitioner and R. L. Warren exclusively. They were the only persons who knew the combination. The safe had two locked compartments, one for petitioner and the other for her husband. Petitioner kept some cash in her compartment during the years 1944 and 1945. During the year 1944 the petitioner had total bank deposits and withdrawals as follows: Bank balance, January 1, 1944$ 576.12Total Deposits65,382.99Total$65,959.11Disbursements by checks61,715.39Bank balance December 31, 1944$ 4,243.721952 Tax Ct. Memo LEXIS 74">*81 Petitioner's income tax return for the year 1944 disclosed the following.. Income - Rents Leased Stores$7,779.51Less: Depreciation$637.55Repairs534.821,172.37$6,607.14Less: Deduction500.00$6,107.14Less: Surtax Exemption500.00$5,607.14Tax Liability$1,426.07In determining the deficiency for the year 1944, the respondent added to the income reported by petitioner in her return unidentified bank deposits of $45,958.48. In arriving at the amount of $45,958.48, he eliminated from the total deposits of $65,382.99, the rents from leased stores of $7,779.51 reported in petitioner's return, and also $11,645 which he identified as having been received by petitioner from the R. L. Warren Motor Company and deposited in her account during 1944. The checks received by petitioner from the R. L. Warren Company which were eliminated by the respondent from unidentified bank deposits for the year 1944 were the following: January 3$ 2,225August 291,040September 111,500December 126,880$11,645Petitioner received a check from R. L. Warren Company in the amount of $325, dated August 14, 1944, which1952 Tax Ct. Memo LEXIS 74">*82 she deposited in her personal account on the same date. In addition to the rental income of $7,779.51 reported by petitioner and eliminated from deposits by respondent, she also received in 1944 from the sublessees $2,660 to reimburse her for rents which she paid to the store owners. She deposited this $2,660 in her bank account for 1944. She did not report this amount in her return as income received or take any deduction for rent paid. During 1944 the petitioner collected from Jesse M. Danger advance rent on a store in the amount of $188.70, which she deposited in her bank account. Danger could not get the money to operate the store and petitioner refunded to him the $188.70 and leased the store to another person. Paul J. Davis, a sublessee of one of petitioner's stores, received some out-of-state checks at a time when he had to leave to join the armed forces. He could not get credit for the amount of these checks at his bank until they cleared. As a matter of accommodation the petitioner deposited these checks, totaling $1,828.93, in her account in 1944, and in exchange therefor gave Davis three checks on her account, one for $483.35 on March 2, one for $484.45 on April 4, 1952 Tax Ct. Memo LEXIS 74">*83 and another for $861.13 on May 2. Petitioner purchased a bond for $750 and paid for it by check dated July 6, 1944. She held this bond for a short time and then cashed it. She deposited $700 of the proceeds in her bank account. The petitioner sold fixtures in the store at 815 Gordon Street in 1944, after she lost the lease thereon, for $2,000. Their cost was in excess of $3,000. She deposited the $2,000 in her bank account. She did not report this sale on her 1944 return as she did not think this was necessary because she had not realized any profit. Petitioner sold her home at 808 Argonne Avenue, Atlanta, Georgia, for $6,000 in November, 1944, at which time she received $1,000 earnest money; on December 11, 1944, she received $3,300 from the purchaser, who at the same time assumed the note which represented the balance of the purchase price. The property cost $4,750 in 1940. She made improvements on the house but had no record of the cost. She did not report this sale on her return because in her opinion she had realized no profit. She deposited the $4,300 cash received in her bank account. Petitioner's husband gave her $1,000 for a Christmas present in 1944. She had bought1952 Tax Ct. Memo LEXIS 74">*84 a new home and he gave her this money to buy some furniture. She deposited this $1,000 in her bank account. During the year 1944 the petitioner issued checks on her personal account to or for the benefit of the R. L. Warren Motor Company as follows: Checks payable to R. L. Warren,R. L. Warren Motor Co., or tocash, endorsed by R. L. Warrenor the R. L. Warren Motor Co.$16,160.00Checks payable to others containingnotations thereon indicating pur-chases of automobiles or otheritems connected with the used-carbusiness4,396.33Checks payable to others for the ac-count of R. L. Warren or theR. L. Warren Automobile Com-pany10,983.93$31,540.26Petitioner received taxable income during the year 1944, which was not reported in her return for that year, in the amount of $14,385.49. During the year 1945 the petitioner had total bank deposits and withdrawals as follows: First NationalBankEast Atlanta(North AvenueBankBranch)Bank Balance 1-1-45$ 4,243.72NoneTotal Deposits for the year 194540,376.03$3,500.00$44,619.75$3,500.00Withdrawals44,089.272,500.00Bank Balance 12-31-45$ 530.48$1,000.00Petitioner's return for the year 1945 disclosed the following: Income - Rents on leased equipment$1,267.66Less: Repairs609.30$ 658.36Gain on sale of residence1,594.07Fixtures: Sales price$5,200.00Add depreciation allowed3,566.88$8,766.88Less: Cost or other basis6,375.59Capital gain (1/2)$2,391.291,195.65$3,448.08Tax from table$ 606.001952 Tax Ct. Memo LEXIS 74">*85 In determining the deficiency for the year 1945, the respondent added to the income reported by the petitioner in her return unidentified bank deposits of $12,712.53. In arriving at the amount of $12,712.53, he eliminated from the bank deposits of $43,876.03 the following: Received from R. L. Warren MotorCo. and deposited in petitioner'saccount$ 7,000.00Rents from leased stores1,267.66Proceeds from sale of residence17,695.84Receipts from sale of store furnitureand fixtures5,200.00Total bank deposits identifiedby respondent$31,163.50Petitioner received from the R. L. Warren Motor Co. a counter check $500for on April 16th which was deposited by her on April 30. In addition to the rents from leased stores of $1,267.66, reported in petitioner's 1945 return, she also received from the sublessees $616.66 to reimburse her for rent which she paid to the owners of the stores during that year. In her income tax return she did not report the $616.66 nor take any deduction of this amount for rent paid. She deposited $616.66 in her personal account during the year 1945. The capital gain of $2,391.29 reported in petitioner's return for 1945 resulted1952 Tax Ct. Memo LEXIS 74">*86 from the sale of her residence for $18,500 in April of that year. She purchased the residence in December 1944. On April 11, 1945, she deposited $17,695.84 of the proceeds of the sale in her bank account. In 1945 the petitioner sold some furniture and draperies to the purchaser of her residence and received $1,167, which she deposited. The East Atlanta Bank charged back to the petitioner's account a bad check of W. B. Austin for $1,600 received from the sale of store fixtures. The check was redeposited and thus was included in deposits twice. During the year 1945 the petitioner issued checks on her account payable to cash or to R. L. Warren, as follows: April 18R. L. Warren$3,000.00July 7Cash300.00September 5Cash400.00September 13R. L. Warren1,300.00 These checks were endorsed by petitioner's husband, with the exception of the check for $300 which was endorsed "Pay to the order of East Atlanta Bank - for deposit only - R. L. Warren Motor Co." On June 19, 1945, petitioner issued a check on her account for $700. This check was endorsed by the Terminal Used Car Exchange. On October 18, 1945, she issued a check on her account payable to1952 Tax Ct. Memo LEXIS 74">*87 Boomershine Motors in the amount of $46.80, which was endorsed by the payee. Petitioner's income tax return for the year 1945 was filed on March 13, 1946. The notice determining the deficiency for the year 1945 was issued by the respondent on June 29, 1949. Petitioner received taxable income during the year 1945, which was not reported in her return for that year, in the amount of $8,828.87. R. L. Warren sold his used-car business in the "midsummer" of 1945, and did not engage in business thereafter except for isolated purchases and sales of cars. During the year 1946, the petitioner had total bank deposits and withdrawals as follows: East Atlanta BankFirst Nat'l BankBank Balance, Jan. 1, 1946$ 530.48$1,000.00Total deposits63,890.920$64,421.40$1,000.00Disbursements by checks64,088.691,000.00Bank Balance, Dec. 31, 1946$ 332.71NonePetitioner's income tax return for the year 1946 discloses the following: Rents$ 2,007.50Less: Expenses and depreciation1,842.06$ 165.44Gain on sale of Graham-Paige stock1,165.29Sale of residence, capital gain (1/2 of $3,979.10)1,989.55Adjusted gross income$3,320.28Less: DeductionsChurch$ 50.00Local taxes121.20Attorney fees200.00Truck insurance100.00471.20Net income$2,849.08Tax$ 452.961952 Tax Ct. Memo LEXIS 74">*88 In determining the deficiency for the year 1946, the respondent added to the income reported by the petitioner in her return unidentified bank deposits totalling $22,775.44. In arriving at the amount of $22,775.44, the respondent eliminated from the total bank deposits of $63,890.92 the following: Rents$ 2,007.50Proceeds from sale of residence18,864.59Receipts upon sale of stock11,100.00Sale of stock reported on returnof R. L. Warren1 9,143.391952 Tax Ct. Memo LEXIS 74">*89 Total bank deposits identified byrespondent$41,115.48The $7,000 loan eliminated by the respondent represents the proceeds of a loan of $6,000 from the East Atlanta Bank which petitioner deposited on September 16, 1947, and the proceeds of a loan of $1,000 from the same bank which she deposited on June 26, 1947. The $16,510 eliminated by the respondent represents the portion of the proceeds of a sale of real estate located at 195 Edgewood Avenue which petitioner deposited in her account on June 16, 1947. This real estate was sold on June 15, 1947, for $27,500, the purchaser having assumed a mortgage loan in the amount of $10,000. The $4,773.16 eliminated by the respondent represents the proceeds of a sale of stock of the York Corporation which petitioner deposited. The $562.25 eliminated by the respondent represents salary of $650 she received from the Naval Air Station Officers' Club, less an employment agency fee of $87.75 which she paid by check dated October 11, 1947. She deposited the $650 in her account. Petitioner's son, Robert Reagin Warren, borrowed $1,250 from her in 1946 to purchase an automobile. 1952 Tax Ct. Memo LEXIS 74">*90 He paid the loan in 1947 and petitioner deposited the $1,250 received in her bank account. During 1947 petitioner paid the Sharp Appliance Co. $342.75 for a frigidaire. She never received it and the company made a refund. She deposited $328.75 of the amount refunded on December 4, 1947. During the year 1947, the petitioner issued checks on her account to or for the benefit of Robert L. Warren in the amount of $1,542. Petitioner received taxable income during the year 1947, which was not reported in her return for that year, in the amount of $3,331.56. The petitioner filed false and fraudulent returns for each of the years 1944, 1945, 1946 and 1947, with intent to evade tax, and part of the deficiencies determined by the respondent for each of these years was due to fraud with intent to evade tax. Petitioner and her husband filed joint declarations of estimated tax for the years 1944 and 1945 in the amounts of $3,000 and $3,500, respectively. On her income tax return for 1944, the petitioner claimed a prepayment credit for 1944 of $750, and in her return for 1945, she claimed a prepayment credit for 1945 of $606. The petitioner substantially underestimated her tax for each1952 Tax Ct. Memo LEXIS 74">*91 of the years 1944 and 1945. Declarations of estimated tax were not filed by the petitioner for the years 1946 and 1947, and reasonable cause for failure to file such declarations has not been shown. Upon the return filed by the petitioner for the year 1945, she omitted and failed to disclose an amount of gross income which was in excess of 25 per cent of the gross income actually disclosed on that return. Opinion RAUM, Judge: The controversy in this proceeding relates to substantial deposits made by petitioner in her bank accounts which were not reflected in her income tax returns for the years 1944 to 1947, inclusive. To the extent that the respondent was unable to trace the source and nature of these deposits, he added them to the income reported by petitioner and determined deficiencies. Petitioner has the burden of proving that the additions made by the respondent did not represent taxable income. Most of her deposits during the taxable years were made in the East Atlanta Bank. She produced lists showing deposits made to this account and checks drawn against it during the years1952 Tax Ct. Memo LEXIS 74">*92 1943 to 1947, inclusive. She also produced canceled checks showing amounts paid to or on behalf of Robert L. Warren in each of these years. She was able to identify some of the deposits as resulting from transactions reported in her returns, and some as receipts from transactions which did not result in taxable income. The substance of her testimony with respect to the remaining deposits was that they represented primarily repayment of loans made by her to Robert L. Warren or the R. L. Warren Motor Company. She also testified that she received $100 a week from her husband for household expenses or for support, and that these amounts were also included in her deposits. 2Petitioner testified at the trial. Her memory was good as to some deposits and bad as to others. Her bank account at the East Atlanta Bank was opened early in 1943 at about the same time that the R. L. Warren Motor Company opened a bank account in its name at the same bank. She did not recall whether she had had any substantial amount1952 Tax Ct. Memo LEXIS 74">*93 either in the bank or in cash before 1943. She did not recall how much money was put into this account when it was opened or whether it was more or less than $1,000. She was unable to produce any check stubs or duplicate deposit slips that might indicate the source or nature of deposits. She did not remember the first loan made to her husband. She did not recall whether "a lot" of the transfers from her husband to her were in cash. When asked "How did he pay you back? Did he bring the money in and give it to you?", she replied, "I don't recall that." She did not keep a record of how much money her husband owed her at any time during the years 1944 to 1947, inclusive. When questioned concerning deposits of $1,500, $1,500, $1,000, $2,000, and $2,200 made in November 1944, she replied she could not identify them unless they were repayments made by her husband. She thought the $1,000 deposit might have been the down payment on a house she sold during that month. When asked about five deposits totaling $14,500 in June 1945, she testified that two of them totaling $4,200 were from the sale of fixtures, and as to the remaining $10,000 she testified, "Well, I presume it was repayments of loans1952 Tax Ct. Memo LEXIS 74">*94 from Mr. Warren." She did not recall what the loans to her husband were for after he sold his business in the midsummer of 1945. She testified that any advances to her husband during 1946 were for purposes other than the automobile business. It was quite apparent from her testimony that she could not, or would not, state the source and nature of a large number of the deposits made in her accounts. Most of the documentary evidence submitted by petitioner was directed to showing how the deposits were expended rather than to showing the source and nature of the deposits. Such evidence is not enlightening where, as here, the amounts of checks issued differ materially from the amounts of the deposits. The excerpt from the notes payable account set forth in our findings indicates that petitioner did make some loans to the R. L. Warren Motor Company. No notes were issued and no interest was paid on such loans. Wherever a repayment of a loan was made and the deposit of the repayment could be identified, it has been eliminated from unidentified deposits. Petitioner's self-serving testimony that a substantial amount of deposits in each year, not reflected in the notes payable account, represented1952 Tax Ct. Memo LEXIS 74">*95 repayment of any loans made by petitioner to her husband is neither persuasive nor convincing. We are satisfied, however, that during the year 1944 and the portion of the year 1945, when purchases and sales of used cars were being made, money was being deposited in petitioner's account from the operation of that business and she was issuing checks on her account for the purchase of cars and the payment of certain expenses incurred in connection with the business. Just why petitioner's account was used in this manner is not satisfactorily disclosed. Nevertheless, we have made eliminations from the deposits, in excess of those made by the respondent, to the extent that the evidence indicates that some of the deposits did not result in the realization by petitioner of gain or profit. 3 The record before us is in an unsatisfactory state, but doing our best with the materials at hand we have reached the conclusion, and found as facts, that the petitioner received unreported taxable income in 1944 of $14,385.49, in 1945 of $8,828.87, in 1946 of $22,340.74, and in 1947 of $3,331.56. 1952 Tax Ct. Memo LEXIS 74">*96 The next question is whether the respondent was justified in imposing additions to tax for fraud for each of the taxable years. The statute places on the respondent the burden of proving fraud. "Because direct and clear-cut proof of fraud is seldom available, it must be established by a full consideration of the records and testimony offered, the appearance and manner of the witnesses, the conduct of the taxpayer, and all conditions and circumstances surrounding the transactions which produced the disputed income." Wallace H. Petit, 10 T.C. 1253">10 T.C. 1253, 10 T.C. 1253">1257. The respondent has established that the petitioner made deposits in her bank accounts of amounts substantially in excess of those disclosed on her income tax returns for the taxable years of years and was familiar with the keeping of books; that she kept no books or other records from which the source and nature of substantial amounts of the deposits made by her in each of the taxable years could be determined; that she failed to report such amounts as income in her returns; and that she had no reasonable excuse for failing to1952 Tax Ct. Memo LEXIS 74">*97 include them in her taxable income. "A failure to report for taxation income unquestionably received, such action being predicated on a patently lame and untenable excuse, would seem to permit of no difference of opinion. It evidences a fraudulent purpose." M. Rea Gano, 19 B.T.A. 518">19 B.T.A. 518, 19 B.T.A. 518">533. We are convinced that the petitioner understated her income with intent to evade tax in each of the taxable years. Consequently, the respondent's assertion of additions to tax for fraud for each of the taxable years is approved. In view of our findings that petitioner filed a false and fraudulent return for the year 1945 with intent to evade tax, and that she omitted and failed to disclose in her 1945 return an amount of gross income which was in excess of 25 per cent of the gross income actually disclosed on that return, the respondent's determination of the deficiency for that year was timely under the provisions of Sections 275 (c) and 276 (a) of the Internal Revenue Code. The remaining questions relate to the imposition of the 6 per cent addition to tax prescribed1952 Tax Ct. Memo LEXIS 74">*98 by Section 294 (d) (2) of the Internal Revenue Code for substantial underestimate of tax for the taxable years 1944 to 1947, inclusive, and the imposition of the 10 per cent addition to tax imposed under Section 294 (d) (1) (A) of the Internal Revenue Code for failure to file a declaration of estimated tax for the taxable years 1946 and 1947. The petitioner makes no argument on brief that these additions to tax were improperly asserted by the respondent, and contends only that they be based upon the tax liability as determined by this Court. We agree with this contention. Decision will be entered under Rule 50. Footnotes*. No dates shown.↩1. The petitioner deposited $9,701 on May 29, 1946. This included the $9,143.39 received from the sale of Fruehauf Trailer stock on May 29th. R. L. Warren reported this sale in his return. The check for $9,143.39 from Courts & Company was issued to petitioner and endorsed by her. On September 17, 1945, an account was opened in the name of petitioner with Courts & Company, investment bankers. This account discloses purchases of 3,000 shares of Graham-Paige stock in September and October 1945 for $31,578.80, and that this stock was sold on January 1, 1946, for $35,442.17. As a result of this transaction, and other previous transactions, Courts & Company issued a check to petitioner in the amount of $36,280.45 on January 11, 1946. This check was endorsed by the petitioner. In her return for 1946 petitioner reported that $2,698.08 of the gain of $3,863.37 was distributed to her husband. She reported the remainder of $1,165.29 as her share of the gain with the notation "I put up $10,000 on 3000 S. Graham Paige and received $11,165.29 back, a gain of $1,165.29." A deposit of $11,100 was made in her bank account at the East Atlanta Bank on January 14, 1946. The Courts & Company account shows other purchases and sales of stock during the year 1946. In reporting her share of the gain on the Graham Paige stock, the petitioner stated that "All other trades that were in my name other than the above were and should have been in R. L. Warren's name". On February 1, 1946, after petitioner and her husband separated, the address on the Courts & Company account was changed to "Mrs. Frances I. Warren, 633 Peachtree Street, c/o Elks Club, Atlanta, Ga." On January 22, 1946, the petitioner and her husband entered into an agreement wherein, after stating that they were separated, that a petition for divorce was about to be filed, and that they were desirous of settling questions of alimony, custody of minor children, etc., the husband among other things agreed to pay petitioner $435 per month for the support, maintenance and education of their three sons for a period of five years, payments to begin on February 1, 1946. This separation agreement was incorporated in the final decree of divorce entered by the Superior Court of Fulton County on or about June 6, 1946. During the months of February to August 1946 the petitioner received $435 per month from Robert L. Warren under the agreement of January 22, 1946. One of these $435 payments was deposited by the petitioner in her bank account on June 21, 1946. The petitioner sold a residence at 361 Tenth Street in the year 1946 for $19,000 and reported the profit realized on the sale in her return for that year. She deposited $18,864.59 of the proceeds in her bank account on February 16, 1946. On February 21, 1946, petitioner issued a check on her account to R. L. Warren in the amount of $20,000. Other checks issued by petitioner on her account during 1946, which were payable to R. L. Warren, or endorsed by him, or which bore notations indicating that they were issued on his behalf, were the following: Jan. 10$ 2,000.00Jan. 19250.00Jan. 2350.00March 122,575.77March 12247.00March 12250.00March 12461.24March 1650.00March 27900.00March 2762.22June 17,000.00August 10293.39Sept. 1350.00Dec. 2115.00$14,204.62On August 31, 1946, another agreement was entered into between petitioner and R. L. Warren wherein, after stating that the latter was indebted to petitioner in the sum of $17,500 and that the parties desired to make provision for the payment of that indebtedness as well as provide for a novation by mutual agreement of the original agreement of January 22, 1946, R. L. Warren conveyed to petitioner two parcels of real estate which was subject to loans aggregating $30,000, in satisfaction of the indebtedness of $17,500 and in complete and full satisfaction and performance of the agreement dated January 22, 1946. The rental income of $2,007.50 which the respondent excluded in his determination of unidentified deposits for the year 1946 was received by the petitioner from one of the properties acquired from her husband on August 31. Petitioner received taxable income during the year 1946, which was not reported in her return for that year, in the amount of $22,340.74. During the year 1947 the petitioner had total bank deposits and withdrawals as follows: Bank Balance at January 1, 1947$ 332.71Total Deposits, 194739,310.97$39,643.68Disbursements by checks39,465.27Bank Balance at December 31,1947$ 178.41In her income tax return filed for the year 1947 the petitioner reported the following: Income N.A.S. OfficersClub$ 650.00Less: Employment AgencyFee87.75$ 562.25Long-term capital loss onstock (1/2 of $4,500)($2,275.13)Long-term capital gain onbuilding, 195 EdgewoodAvenue (1/2 of $10,264)5,132.002,856.87Dividends received120.00Net rents received1,706.99Adjusted gross income$5,246.11Deductions (Standard)500.00Net income$4,746.11Exemptions1,500.00$3,246.11Tax$ 640.43In determining the deficiency for the year 1947, the respondent added to the income reported by petitioner in her return unidentified bank deposits totaling $4,998.06. In arriving at this amount, the respondent eliminated from the total deposits of $39,310.97 made by petitioner during 1947, the following: Loan from East Atlanta Bank$ 7,000.00Gross rents received and depositedThese rents were received from properties R. L. Warren transferred to petitioner under the August 31, 1946, agreement.*↩ 5,347.50Proceeds sale of real estate de-posited16,510.00Receipts from sale of stock4,773.16Salaries562.25Dividends120.00Total deposits identified byrespondent$34,312.912. From February to August 1946, she received $435 a month for support of her children, pursuant to the separation agreement, and she contends that these payments were deposited.↩3. As to petitioner's contention that some of her unidentified deposits represent support payments made to her by her husband, we are not satisfied after a study of all of her deposits that any of them other than the deposit of June 21, 1946, had their source in such payments. And we have excluded $435 from her income on account of the June 21, 1946, deposit.↩
323 F.2d 995 George C. HOOPER, Petitioner,v.E. V. NASH, Warden, Missouri State Penitentiary, Respondent. No. 17478. United States Court of Appeals Eighth Circuit. October 28, 1963. Rehearing Denied November 1, 1963. George Hooper, petitioner, pro se. Thomas F. Eagleton, Atty. Gen., of Missouri, Jefferson City, Mo., for the State. Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge. PER CURIAM. 1 Petitioner, an inmate of the Missouri State Penitentiary, made application to the District Court for the Western District of Missouri for a writ of habeas corpus, which the Court denied on the ground that the state remedy existing under Rule 27.26 Missouri Rules of Criminal Procedure, V.A.M.S., had not been exhausted by him. Rule 27.26 makes provision for a motion to vacate sentence, in substance the same as that under 28 U.S.C.A. § 2255 in the federal practice. 2 The Court refused to issue a certificate of probable cause under 28 U.S.C.A. § 2253, to enable petitioner to take an appeal from the denial made of his writ application. He was granted leave, however, to file a notice of appeal in forma pauperis and also to prosecute an appeal on this basis, but in view of the Court's refusal to issue a certificate of probable cause, we take it that these grants were intended merely to serve facilitatingly in case a certificate of probable cause were to be issued by a judge of this Court. 3 A letter of inquiry has been addressed to the Clerk of this Court by petitioner seeking information on how to proceed. In the circumstances, the letter will be treated as an application to have a certificate of probable cause issued by a judge of this Court. The request must, however, be denied under our ruling in the similar situations of Mahurin v. Nash, 8 Cir., 321 F.2d 662; Knicker v. Nash, 8 Cir., Misc. No. 218 (unpublished order dated September 6, 1963); and Donnell v. Nash, 8 Cir., 323 F.2d 850. 4 Our ruling in those cases requires a Missouri prisoner to accord the Missouri courts, both trial and appellate, an opportunity to deal with any claims of constitutional violation as to his conviction or sentence on the basis of the concepts and standards of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, and Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770, through the filing of a motion by him under Rule 27.26, supra, before he seeks to have any scrutiny or consideration given to such claims by a federal court. 5 Application to have a certificate of probable cause issued denied.
Case 1:21-cv-01041-DAD-BAM Document 21 Filed 07/30/21 Page 1 of 4 1 René P. Voss (CA Bar No. 255758) Natural Resources Law 2 15 Alderney Road 3 San Anselmo, CA 94960 Phone: 945-332-7252 4 Email: [email protected] LEAD COUNSEL 5 6 Matt Kenna (CO Bar No. 22159) Public Interest Environmental Law 7 679 E. 2nd Ave., Suite 11B Durango, CO 81301 8 Phone: 945-332-7252 9 Email: [email protected] Pro Hac Vice 10 LEAD COUNSEL 11 Attorneys for Plaintiffs 12 TODD KIM 13 Assistant Attorney General Environment and Natural Resources Division 14 United States Department of Justice 15 HAYLEY A. CARPENTER 16 KRYSTAL-ROSE PEREZ 17 Trial Attorneys Natural Resources Section 18 P.O. Box 7611 Washington, D.C. 20044-7611 19 Phone: 945-332-7252 (Carpenter) 20 945-332-7252 (Perez) [email protected] 21 [email protected] 22 PHILLIP A. TALBERT 23 Acting United States Attorney 24 Attorneys for Defendants 25 26 27 28 Sequoia Forestkeeper, et al. v. United States Forest Service, No. 1:21-cv-01041-DAD-BAM Joint Resp. re Court’s July 23, 2021 Or. 1 Case 1:21-cv-01041-DAD-BAM Document 21 Filed 07/30/21 Page 2 of 4 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 2 FRESNO DIVISION 3 SEQUOIA FORESTKEEPER, et al., ) Case No. 1:21-cv-01041-DAD-BAM 4 ) ) 5 Plaintiffs, ) JOINT RESPONSE REGARDING THE 6 ) COURT’S JULY 23, 2021 ORDER v. ) [ECF No. 19] 7 ) UNITED STATES FOREST SERVICE, ) 8 ) 9 Defendant. ) ) 10 11 The parties hereby submit this joint response in accordance with the Court’s July 23, 12 2021 Order, ECF No. 19, directing the parties to “meet and confer as to whether any further 13 evidence or briefing need be presented or whether the court may adopt this order in ruling on the 14 pending motion for preliminary injunction.” 15 Defendant requests leave to file a short memorandum of no more than five pages to 16 address two issues raised for the first time in the Court’s July 23 Opinion and to briefly expand 17 on one issue presented by the Court’s ordered relief. Specifically, Defendant intends to address 18 whether the agency may, as a matter of law, distinguish Environmental Protection Information 19 Center v. Carlson, 968 F.3d 985 (9th Cir. 2020), by supplying more information in support of the 20 agency’s decision and whether the agency has done so in this case. Defendant also intends to 21 request—and provide justification for—a modest modification to the Court’s Temporary 22 Restraining Order, or to any Preliminary Injunction, to allow the Forest Service to cut and 23 remove what it anticipates to be a small number of incidental trees that pose a hazard to the 24 contractor while felling and removing hazard trees in compliance with the Court’s Order. 25 Defendant proposes to file its five-page memorandum on August 6, 2021. Defendant 26 also proposes that if Plaintiffs intend to file a reply, they do so by August 13, 2021, and that their 27 reply also be limited to five pages. 28 Sequoia Forestkeeper, et al. v. United States Forest Service, No. 1:21-cv-01041-DAD-BAM Joint Resp. re Court’s July 23, 2021 Or. 2 Case 1:21-cv-01041-DAD-BAM Document 21 Filed 07/30/21 Page 3 of 4 1 Plaintiffs do not believe that the issues referred to by Defendant are new issues raised for 2 the first time in the Court’s July 23 Opinion, and do not believe that additional briefing on those 3 issues is warranted. As such, Plaintiffs ask the Court to adopt its temporary restraining order in 4 ruling on the pending motion for preliminary injunction. Defendant has already provided a 5 lengthy argument on the very issues it now seeks reargue. 1 See D’s Opp Br. at 16-19 (ECF No. 6 16). And the Court summarily rejected Defendant’s assertions and arguments both during oral 7 argument and in the Court’s opinion finding that Defendant’s argument “simply appears to 8 embrace the dissenting opinion in EPIC, which obviously does not control” and was just 9 “supplying more information in support of arguments that were explicitly rejected [in EPIC].” 10 TRO [email protected]. However, should the Court think that more briefing is appropriate, Plaintiffs 11 are amenable to Defendant’s suggested schedule. 12 Regarding modifying the injunction, Plaintiffs are not sure what Defendant’s requested 13 modification would allow. Plaintiffs requested any non-privileged documents regarding 14 implementation of the Court’s injunction, such as instructions to the operator or documents 15 originating from the operator, or agency memoranda (excluding privileged legal or policy 16 deliberations). Defendant’s counsel represented that they will confer with the agency next week 17 when essential personnel return from leave and determine whether the Forest Service is willing 18 to provide any documents in response to Plaintiffs’ request. If after reviewing any documents 19 provided by Defendant in support of its proposed modification, or in response to Plaintiffs’ 20 request more generally, the parties remain at an impasse regarding Plaintiffs’ document requests, 21 Plaintiffs may file a motion seeking an order directing the Forest Service to provide Plaintiffs 22 with additional documents. 23 Respectfully submitted on this 30th day of July, 2021. 24 /s/ Matt Kenna (with permission)_ René Voss 25 Matt Kenna, Pro Hac Vice 26 Attorneys for Plaintiffs 27 1 28 Moreover, any further arguments on these issues are more appropriate for cross-motions of summary judgment with a fully-developed administrative record. Sequoia Forestkeeper, et al. v. United States Forest Service, No. 1:21-cv-01041-DAD-BAM Joint Resp. re Court’s July 23, 2021 Or. 3 Case 1:21-cv-01041-DAD-BAM Document 21 Filed 07/30/21 Page 4 of 4 1 2 TODD KIM Assistant Attorney General 3 Environment and Natural Resources Division 4 United States Department of Justice 5 /s/ Krystal-Rose Perez HAYLEY A. CARPENTER 6 KRYSTAL-ROSE PEREZ 7 Trial Attorneys Natural Resources Section 8 P.O. Box 7611 Washington, D.C. 20044-7611 9 Phone: 945-332-7252 (Carpenter) 10 945-332-7252 (Perez) [email protected] 11 [email protected] 12 PHILLIP A. TALBERT 13 Acting United States Attorney 14 Attorneys for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sequoia Forestkeeper, et al. v. United States Forest Service, No. 1:21-cv-01041-DAD-BAM Joint Resp. re Court’s July 23, 2021 Or. 4
[Cite as In re J.O., 2018-Ohio-943.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY In re J.O., A.O., C.O., Aa.O., M.H. Court of Appeals Nos. L-17-1235 L-17-1236 L-17-1237 Trial Court No. JC 15248949 JC 17260801 DECISION AND JUDGMENT Decided: March 14, 2018 ***** Stephen D. Long, for appellant, M.O. Laurel A. Kendall, for appellant, P.H. Bradley W. King, for appellee. ***** JENSEN, J. I. Introduction {¶ 1} This is a consolidated appeal from the August 28, 2017 judgment of the Lucas County Court of Common Pleas, Juvenile Division, terminating the parental rights of appellants, M.O. (“mother”) and P.H. (“father”), and awarding permanent custody of J.O., An.O., C.O., Aa.O., and M.H. (collectively referred to as the “children”) to appellee, Lucas County Children Services (“LCCS”).1 A. Facts and Procedural Background {¶ 2} On July 13, 2015, LCCS filed a complaint in dependency and motion for shelter care hearing based upon referrals received by the agency concerning mother’s mental health deficits, lack of housing, and general lack of supervision of J.O., An.O., C.O., and Aa.O. The following day, the juvenile court awarded LCCS interim temporary custody of J.O., An.O., C.O., and Aa.O. {¶ 3} On August 27, 2015, an adjudicatory hearing concerning J.O., An.O., C.O., and Aa.O. was held before a magistrate. At the conclusion of the hearing, the magistrate found the foregoing children to be dependent, and awarded temporary custody to LCCS. In her decision, the magistrate found that LCCS had made, and continued to make, reasonable efforts to prevent the continued removal of the children from the home. The case plan services LCCS provided to mother consisted of a diagnostic assessment, interactive parenting, and housing. These services were offered to mother with the goal of reunification, and the magistrate ordered mother to comply with said case plan. The juvenile court subsequently adopted the magistrate’s decision. 1 P.H. is the father of M.H. Ja.O. is the father of the remaining children. Ja.O. has not filed a notice of appeal and is therefore not a party to this appeal. 2. {¶ 4} Based in part upon its assertion that mother failed to substantially remedy the conditions that caused the removal of J.O., An.O., C.O., and Aa.O. from her home, LCCS filed a motion for permanent custody on December 22, 2016. LCCS alleged that an award of permanent custody was in the children’s best interests. {¶ 5} During the pendency of LCCS’s motion, M.H. was born. Eleven days later, LCCS filed a motion for permanent custody of M.H., in which LCCS referenced the pending motion for permanent custody of J.O., An.O., C.O., and Aa.O., and noted that father’s parental rights had previously been terminated in a case involving M.H.’s sibling. Appellants appeared before the juvenile court for adjudication on LCCS’s motion for permanent custody of M.H. on April 28, 2017. At this time, appellants consented to a finding of dependency, and the court found M.H. to be a dependent child. Thereafter, a two-day dispositional hearing was held on LCCS’s motions for permanent custody on June 30, and July 6, 2017. {¶ 6} At the dispositional hearing, LCCS called several witnesses. As its first witness, LCCS called Dr. Michael Neverauskas. Dr. Neverauskas has been the children’s family doctor for the last five years, during which time he treated An.O., J.O., and C.O., and Aa.O. Aa.O. was subsequently taken to a different provider by her foster mother. {¶ 7} As the children’s family doctor, Dr. Neverauskas testified that C.O. was of normal mental capacity, but that An.O. and J.O. have “some mental disabilities.” He went on to indicate that he has seen An.O., J.O., and C.O. more often since they were placed into foster care. Dr. Neverauskas also observed that the children seemed to be doing better in the foster care environment, which he described as “more structured and 3. not as chaotic.” Dr. Neverauskas testified that he was concerned about mother and Ja.O.’s lack of attention to the children’s medical needs. Nevertheless, Dr. Neverauskas acknowledged on cross examination that the children were clean and appeared to be properly fed while under mother’s care. {¶ 8} Next, LCCS called Sheila Irwin to the stand. Irwin is the foster mother for C.O. and An.O. Irwin was also the foster mother to Aa.O. and J.O. until they were removed from her care four months prior to the hearing, following an incident in which Aa.O. reported that J.O. had “been messing with her butt.” Irwin testified that she would be interested in adopting J.O., An.O., and C.O. Irwin stated that her daughter was interested in adopting Aa.O. and M.H. {¶ 9} On direct examination, Irwin testified that An.O., Aa.O., and J.O. are enrolled in special education classes. She also stated that C.O. and An.O. are receiving mental health services. Irwin explained that An.O.’s services were more intensive than C.O.’s because An.O. was inappropriately touched while he was residing at a homeless shelter with mother and Ja.O. The family was forced into the shelter after being evicted from an apartment following a disagreement with the landlord over a $50 increase in the monthly rent, which she refused to pay. While she was pregnant with M.H., mother told Irwin that she “takes a little bit of liquor drink.” Mother also discussed an incident with Irwin in which father choked her because he thought that she had lost some of his marijuana. Mother went on to inform Irwin that father was a marijuana dealer and that he sometimes sold the drugs out of the residence where the children were residing. Indeed, Irwin testified that mother’s nickname for father was “dope man.” 4. {¶ 10} During cross examination, Irwin stated that she had no concerns regarding mother’s care of the children. Notably, Irwin acknowledged that she and mother are “really good friends.” {¶ 11} At the conclusion of Irwin’s testimony, LCCS called its caseworker, Lauri Wolfe, who was assigned to this case by the agency in June 2016. According to Wolfe, LCCS’s history with mother and Ja.O. dated back to 2009, but the agency became involved in this case in April 2015 due to the parents’ lack of supervision of the children. {¶ 12} By the time Wolfe took the case over, mother had completed parenting services and was engaged in mental health services, but concerns remained regarding her ability to demonstrate appropriate parenting skills. Moreover, mother’s attendance at her weekly mental health visits was sporadic. Mother expressed to Wolfe that she would engage in mental health services to the extent she deemed appropriate. Although she was informed that further participation in mental health services could make her eligible for additional services to assist her with the children, mother refused to engage and stated that she did not want to be “labeled.” {¶ 13} Additionally, mother tested positive for marijuana during a drug screen in November 2016. Mother was pregnant with M.H. at the time of her drug screen. Subsequent drug screens have been negative, but mother refused to attend “AOD group,” which was part of her case plan services according to Wolfe. Mother’s failure to complete her drug services precluded her from engaging in domestic violence services as required under her case plan. Concerning the domestic violence incident that involved 5. father choking mother, Wolfe testified that mother excused father’s conduct by stating that he was so drunk that he blacked out and did not know what he was doing. {¶ 14} Regarding father, Wolfe indicated that LCCS was concerned about his criminal history, which included domestic violence and drug charges. LCCS was also concerned about father’s lack of compliance with case plan services in a prior case that resulted in the termination of his parental rights with respect to another child. Given the prior termination of father’s parental rights, LCCS informed father that it would be seeking original permanent custody of M.H. upon her birth. Consequently, father was not placed on a case plan and was not offered services through LCCS. Nonetheless, Wolfe encouraged father to engage in services to address his substance abuse issues. To that end, father submitted one urine screen in July 2016, which tested positive for THC. Father refused to submit any further urine screens, despite being asked to do so by Wolfe on at least four occasions. {¶ 15} Concerning the children, Wolfe testified regarding several mental health concerns. First, Wolfe indicated that J.O. was diagnosed with autism, mild mental retardation, and depressive disorder. According to Wolfe, J.O. has made progress with his special needs in his foster home and is currently doing well. An.O. was diagnosed with oppositional defiant disorder after he reported that a man “touched him and messed with him while the family was in the shelter.” C.O. is the highest functioning of the children, and Wolfe stated that he was diagnosed with depressive disorder. Aa.O. was diagnosed with an anxiety disorder and is on growth hormone injections. Wolfe reported that Aa.O. is doing well in her foster home. Finally, M.H. was born with Down 6. Syndrome and has physical and cognitive delays that are being addressed in the Help Me Grow program. As with the other children, Wolfe testified that M.H. was doing well with her foster placement. {¶ 16} In light of the children’s special needs, mother’s involvement with father despite a history of drug use and domestic violence, and mother’s inadequate housing, Wolfe testified that an award of permanent custody of the children to LCCS was in the children’s best interests. When asked about the possibility of the children being exposed to mother and father in the event that Irwin and her daughter adopted the children, Wolfe stated that she liked that idea since mother and father visited the children with “near perfect regularity.” {¶ 17} On cross examination, Wolfe acknowledged that mother had completed most of her case plan services and was generally compliant. Further, Wolfe agreed that mother and father routinely visited the children and that their interaction with the children was appropriate during the visits. {¶ 18} At the close of Wolfe’s testimony, LCCS rested subject to calling the children’s guardian ad litem at the close of all testimony. Thereafter, mother took the stand. Regarding her housing situation, mother explained that she was paying $600 on a month-to-month lease when her landlord informed her that he was raising her rent by $50. Mother then directed her mother, who was living with her at the time, not to pay the increased rent, which resulted in the family being evicted from the apartment. Subsequently, appellants moved into a three-bedroom residence where they pay $500 per month for rent. Mother cares for her mother, who also resides in the apartment. 7. {¶ 19} As regards mother’s lack of participation in group substance abuse counseling, mother testified that she attempted to complete the counseling but found that she did not prefer the group setting. Mother stated that “as soon as the groups started getting bigger, I just backed down and started doing it all on my own.” Mother indicated that she was under the impression that she was in compliance with her substance abuse services, and stated that LCCS had not informed her otherwise. {¶ 20} Father was the next witness to take the stand. In general, father testified that he was capable of providing appropriate care for M.H. Father indicated that he has been employed as a nurse’s aid at a group home owned by his aunt for over five years. He stated that the three-bedroom apartment that he and mother lived in could be renovated in order to add another bedroom. The children’s guardian ad litem questioned how father could add a third bedroom given the small size of the apartment. {¶ 21} Regarding father’s alleged domestic violence, father admitted that he could not remember his actions because he was intoxicated. He further acknowledged committing acts of domestic violence toward the mother of his previous child. Nonetheless, father testified that he did not exhibit a pattern of domestic violence. Moreover, father agreed that he would be willing to engage in domestic violence classes in order to alleviate any concerns LCCS may have concerning his history of violence. Father went on to state that he underwent a mental health assessment one day prior to the hearing. Father explained that it took him several months to obtain health insurance, which precipitated his delay in obtaining a mental health assessment for this case. 8. {¶ 22} The children’s guardian ad litem was called to the stand by LCCS following father’s testimony. The guardian’s report, which contained a recommendation of permanent custody to LCCS, was introduced into evidence and referenced during the guardian’s testimony. In explaining her findings, the guardian testified that mother had not remedied the problems that brought about the removal of the children from the home. She went on to state that mother did not appear to recognize her mental health issues or the severity of the issues facing the children. {¶ 23} At the conclusion of the hearing, the juvenile court issued its judgment entry in which it found that J.O., An.O., C.O., and Aa.O. had been in LCCS’s custody for 12 or more months of a consecutive 22-month period under to R.C. 2151.414(B)(1)(d). The court further found that M.H. was placed in LCCS’s permanent custody pursuant to R.C. 2151.353(A)(4) because she could not and should not be placed with mother or father within a reasonable period of time and permanent custody was in her best interest under R.C. 2151.414(D)(1). The court went on to find that LCCS was not required to make reasonable efforts to prevent the removal of M.H. from father because father previously had his parental rights involuntarily terminated with regard to M.H.’s sibling. Moreover, the court found that father failed to demonstrate that he could provide a legally secure permanent placement and adequately care for M.H. notwithstanding the prior termination of his parental rights. {¶ 24} Although LCCS was not required to make reasonable efforts concerning father, the court found that LCCS did make reasonable efforts by encouraging father to 9. participate in services, but father failed to utilize the services. Instead, father submitted one drug screen that tested positive for marijuana and refused to provide any additional drug screens or engage in substance abuse services. {¶ 25} The court also found that LCCS made reasonable efforts toward reunification with mother by offering her case plan services. Notwithstanding these case plan services, the court found that mother failed to remedy the conditions causing the children to be placed outside the home under R.C. 2151.414(E)(1). After acknowledging the fact that mother participated in many of the case plan services that she was offered, the court determined that she failed to make any significant changes since LCCS initiated this case. {¶ 26} In support of its finding under R.C. 2151.414(E)(1), the court noted mother’s denial of any safety concerns for the children, including the J.O.’s inappropriate sexual behavior, as well as her continued relationship with father despite his history of domestic violence and substance abuse. Additionally, the court found that mother’s housing situation, which was one of the causes of the children’s removal, continued to be problematic in that the three-bedroom apartment was too small for the children and lacked appropriate safety precautions to address the children’s sexual behavior. The court went on to describe mother’s utilization of mental health services as minimal, and expressed concern over mother’s consumption of alcohol and marijuana while she was pregnant with M.H. Finally, the court found that mother did not take advantage of all the resources that were made available to her, including a cash-assistance benefit through the Board of Developmental Disabilities. 10. {¶ 27} After concluding that the children could not and should not be placed with mother or father within a reasonable period of time, the court moved on to a consideration of the children’s best interests under R.C. 2151.414(D)(1). The court again noted that J.O., An.O., C.O., and Aa.O. had been in LCCS’s custody for 12 or more months. The court also found that the children made significant improvements while in LCCS’s custody, and that their needs for a legally secure permanent placement could not be met without a grant of permanent custody to LCCS. Concerning father, the court reiterated the prior termination of parental rights. Finally, the court noted that the children’s guardian ad litem concluded that permanent custody to LCCS was in the children’s best interests. {¶ 28} In light of the foregoing findings, the juvenile court granted LCCS’s motion for permanent custody. Mother and father filed timely notices of appeal, and the matter was consolidated sua sponte on October 13, 2017. B. Assignments of Error {¶ 29} On appeal, mother asserts the following assignment of error: The trial court erred in granting appellee Lucas County Children Services Board’s motion for permanent custody as the decision was against the manifest weight of the evidence. {¶ 30} In addition, father asserts the following assignments of error: I. The trial court committed reversible error when it held that appellee did not have to make reasonable efforts to reunify the family herein based on a prior termination of father’s parental rights for a sibling 11. of M.H., when LCCS invited father to participate in services for a case in which he was not a party, thereby waiving the right to refuse reasonable efforts. II. The trial court’s finding that the agency made reasonable efforts to reunify the child herein, when father was not offered any case plan services for his own child, and when the court is required to explain the facts upon which it based its determination in regard to reasonable efforts, is against the manifest weight of the evidence. II. Analysis A. Mother {¶ 31} In mother’s sole assignment of error, she argues that the juvenile court’s award of permanent custody to LCCS was against the manifest weight of the evidence. {¶ 32} “A trial court’s determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. In conducting a review on manifest weight, the reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. We recognize that, as the 12. trier of fact, the trial court is in the best position to weigh the evidence and evaluate the testimony. In re Brown, 98 Ohio App. 3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus, “[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.” Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984). {¶ 33} Here, the juvenile court found that J.O., An.O., C.O., and Aa.O. had been in LCCS’s temporary custody for 12 or more months of a consecutive 22-month period under R.C. 2151.414(B)(1)(d). Mother acknowledges that the children had been in LCCS’s temporary custody for more than 12 months on December 22, 2016 (the date that the motion for permanent custody was filed). However, she contends that the court erred in relying upon R.C. 2151.414(B)(1)(d) because the children had not been removed from mother’s home for at least 22 months as of that date. {¶ 34} In support of her argument, mother cites our decision in In re E.P., 6th Dist. Wood No. WD-09-070, 2010-Ohio-3529, ¶ 58, where we held that the juvenile court’s finding under R.C. 2151.414(B)(1)(d) was not supported by clear and convincing evidence where the child was in temporary custody for at least 12 months, but the 22- month consecutive time period was not complete at the time the agency filed its permanent custody motion. But see In re T.B., 9th Dist. Summit No. C.A. 21124, 2002- Ohio-5036, ¶ 23 (“There is nothing in the plain language of [R.C. 2151.414(B)(1)(d)] that requires a public agency to wait until a child has been in its custody for twenty-two months before filing a motion for permanent custody.”); In re I.D., 7th Dist. Columbiana 13. No. 09 CO 13, 2009-Ohio-6805, ¶ 50 (“[T]he twenty-two consecutive month requirement in the ‘12 of 22’ provision does not prevent a court from granting permanent custody of a child under twenty-two months of age who has been in the permanent custody of the agency for at least twelve months.”); In re N.R., 12th Dist. Butler No. CA2007-12-314, 2008-Ohio-1993, ¶ 18 (upholding the juvenile court’s finding under R.C. 2151.414(B)(1)(d) where the children were only in the agency’s temporary custody for 21 months at the time the motion for permanent custody was filed). {¶ 35} In In re E.P., we went on to state that the juvenile court’s erroneous finding was not fatal so long as a ground other than R.C. 2151.414(B)(1)(d) existed to support a grant of permanent custody. In the present case, the juvenile court also found that the children could or should not be placed with their parents within a reasonable time under R.C. 2151.414(B)(1)(a). Admittedly, the court did not explicitly reference R.C. 2151.414(B)(1)(a) in its entry. However, the court’s reliance on the statute is evident from the fact that it considered the factors contained in R.C. 2151.414(E), which guide the court’s determination of whether a child could or should be placed with either parent within a reasonable period of time. Notably, mother acknowledges in her appellate brief that the juvenile court “appears, in its judgment entry, to have proceeded as if R.C. 2151.414(B)(1)(a) was the basis of the permanent custody.” At the conclusion of the dispositional hearing, the juvenile court explained its decision, stating: Pursuant to section 2151.414(B)(1)(d), even without any issues regarding the (E) components, I could find that the children just based on 14. that section, since they’ve been in care at the time of filing of the motion for permanent custody * * * for more than 12 out of the previous 22 months that an award of permanent custody is affirmed – you know, supported. However, looking at the (B)(1)(a) and (E)(11) factors, I do find that the choices that mom has made, which I just discussed, * * * I do find that an award of permanent custody to the Agency is supported by clear and convincing evidence. {¶ 36} In light of the juvenile court’s application of R.C. 2151.414(B)(1)(a) in addition to R.C. 2151.414(B)(1)(d), the juvenile court’s application of the 12 of 22 month rule was not fatal in this case. {¶ 37} If the court finds that R.C. 2151.414(B)(1)(a) applies, it must consider whether granting permanent custody to the agency is in the children’s best interest and whether any of the factors enumerated in R.C. 2151.414(E) are present that would indicate that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent. In re B.K., 6th Dist. Lucas No. L-10-1053, 2010- Ohio-3329, ¶ 43. If the court finds that at least one factor in R.C. 2151.414(E) applies, it must then determine whether awarding permanent custody to the agency is in the child’s best interest by considering the factors in R.C. 2151.414(D)(1). {¶ 38} In this case, the juvenile court found that mother failed to remedy the conditions causing the children to be placed outside the home under R.C. 2151.414(E)(1). The court supported its finding by referencing mother’s denial of any safety concerns for 15. the children, including J.O.’s inappropriate sexual behavior, as well as her continued relationship with father, who had committed at least one prior act of domestic violence toward her and was selling drugs out of the home. Additionally, the court found that the three-bedroom apartment in which mother was residing with father and mother’s mother was not suitable for the children. The court reasoned that the apartment was too small to allow the children to be separated, which would be necessary in order to address the children’s inappropriate sexual behavior. In further support of its determination that mother failed to remedy the conditions that led to the removal of the children, the court noted mother’s minimal utilization of available mental health services and her consumption of alcohol and marijuana while she was pregnant with M.H. {¶ 39} Having reviewed the record in its entirety, we find that the foregoing facts that were cited by the juvenile court support its determination that mother failed to remedy the conditions causing the children to be placed outside the home under R.C. 2151.414(E)(1). Therefore, we find that the juvenile court’s determination under R.C. 2151.414(E)(1) was not against the manifest weight of the evidence. {¶ 40} Turning now to the juvenile court’s best-interest determination, R.C. 2151.414(D)(1) requires the court to consider all relevant factors, including: (a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; 16. (b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child; (c) The custodial history of the child * * *; (d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child. {¶ 41} Under R.C. 2151.414(D)(1)(a), the record reveals that the children made significant improvements while in LCCS’s custody and were bonded with their foster parents. This finding is supported by the testimony of several witnesses, including mother, who acknowledged that her children’s behavior had improved while in foster care to the point that she did not even recognize them. Concerning R.C. 2151.414(D)(1)(b), the children’s guardian ad litem concluded that permanent custody to LCCS was in the children’s best interests. Moreover, the custodial history of the children supports the juvenile court’s best interest determination under R.C. 2151.414(D)(1)(c). Indeed, J.O., An.O., C.O., and Aa.O. had been in LCCS’s custody for 12 or more months at the time of the dispositional hearing, and M.H. was placed into LCCS custody upon birth. Under R.C. 2151.414(D)(1)(d), the court also determined that the children’s need for a 17. legally secure permanent placement could not be met without a grant of permanent custody to LCCS. R.C. 2151.414(D)(1)(e) does not apply here since the factors in R.C. 2151.414(E)(7) to (11) are inapplicable to mother. {¶ 42} In light of the foregoing analysis, we find that the juvenile court’s determination that an award of permanent custody to LCCS was in the children’s best interest was not against the manifest weight of the evidence, but, rather, was supported by competent, credible evidence. Having already upheld the court’s determination under R.C. 2151.414(E)(1), we find that the court’s termination of mother’s parental rights was not against the manifest weight of the evidence. Accordingly, mother’s sole assignment of error is not well-taken. B. Father {¶ 43} In father’s first assignment of error, he argues that the juvenile court committed reversible error when it held that appellee did not have to make reasonable efforts to reunify the family based on a prior termination of father’s parental rights for a sibling of M.H. Father contends that LCCS waived its right to seek permanent custody of M.H. without making reasonable efforts when it encouraged father to participate in services. {¶ 44} Under R.C. 2151.419(A)(2)(e), the juvenile court was required to find that LCCS was not required to make reasonable efforts to prevent the removal of M.H. from father’s home because father has had parental rights involuntarily terminated with respect M.H.’s sibling. The statutory language is mandatory, and we see no support for father’s 18. novel waiver argument. Father’s argument would force LCCS to refuse services to a parent who has had his or her parental rights previously terminated or risk waiving the application of R.C. 2151.419(A)(2). To limit the extent to which an agency such as LCCS can offer its services to a parent in pursuit of reuniting the parent with his or her child seems cruel and nonsensical. Therefore, we reject father’s waiver argument and find father’s first assignment of error not well-taken. {¶ 45} In his second assignment of error, father argues that the juvenile court’s finding that the agency made reasonable efforts to reunify M.H. was against the manifest weight of the evidence. We reject this argument outright because, as noted above, father has previously had his parental rights terminated with regard to M.H.’s sibling and, consequently, LCCS was not required to make reasonable efforts to prevent M.H.’s removal. Further, we find no merit to father’s contention that the juvenile court’s finding is against the manifest weight of the evidence. Indeed, the record reveals that father was encouraged to complete case plan services that were offered to father in his prior case involving M.H.’s sibling. Father also submitted one drug screen in this case that tested positive for marijuana and then refused to engage in any further substance abuse services or drug screens. {¶ 46} Ultimately, LCCS made reasonable efforts in this case despite being under no obligation to do so. Father failed to take advantage of those services, or to make himself available to LCCS caseworkers. Accordingly, father’s second assignment of error is not well-taken. 19. III. Conclusion {¶ 47} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE 20.
l Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 1 of 8 Page|D: 1 O’BRIEN, BELLAND & BUSHINSKY, LLC 1526 Berlin Road Cherry Hill, New Jersey 08003 (878)590-5710 .By.' Steven J. Bushinsky, Esquire W. Daniel Feehan, Esquire Attorngys for Plafnt;j?s UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TRUSTEES 013 THE IBEW LOCAL 351 PENSION FUND; IBEW LOCAL 351 , sURETY FUND; 113EW LOCAL 351 § ease NO. WELFARE FUND; IBEW LOCAL 351 ` JOINT APPRENTICESHIP AND TRAINING COMMITTEE; SOUTH JERSEY ELECTRICAL WORKERS TEMPORARY DISABILITY FUND for . and on behalf of themselves and said COMPLAINT FUNDS; IBEW LOCAL 351 PENSION ' FUND; IBBW LOCAL 351 SURETY FUND; 1BEW LOCAL 351 \ME;LFARE FUND; IBEW LOCAL 351 JOINT APPRENTICESI'HP AND TRAINING COMMITTEE; SOUTH JERSBY : ELECTRICAL WORKERS TEMPQRARY § DISABILITY FUND and IBEW LOCAL ' UNION NO. 351, Pzaimszv, V. 5 ` ELECTRICAL POWER SERVICES, INC., Defendant. Plaintiffs, by and through undersigned counsel, state as follows: ' Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 2 of 8 Page|D: 2 JURISDICTION AND VENUE 1. The jurisdiction of this Court is invoked pursuant to Section 502 and 515 of the Employee Retirernent Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1132 and §1145 respectively, and Section 301 of the Labor Managernent Relations Act (“LMRA”), 29 U.S.C. §185, and the common law of ERISA. 2. This Court is one of proper venue pursuant to Section 502(e)(2) of n ERISA, 29 U.S.C. §1132(e)(2), and Section 301 of the LMRA, 29 U.S.C. §185 because the Trust Funds are administered in the State of New Jersey, and the breach took place in New Jersey. 3. This Court is one of proper Venue pursuant to Section 502(e)(2) of ERISA, 29 U.S.C. §1132(e)(2) because Defendant maintains or maintained a principal place of business in the State ofNew Jersey 4. A copy of this Complaint is being served on the Secretary of Labor and the Secretary of Treasury of the United States by certified mail in accordance with 29 U.S.C. §1132(h). PARTIES 5. Plaintiff Trustees of the IBEW Local 351 Pension, Surety, Welfare, Joint Apprenticeship and Training Committee, and South Jersey Electrica] Workers Temporary Disability Funds (“Funds”) are fiduciaries of the Funds within the Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 3 of 8 Page|D: 3 meaning of Sections 3(21) and 502 of ERISA, 29 U.S.C. §1002(21) and §1132. The Plaintiff Funds are trust funds established and maintained pursuant to Section 302(c)(5) of the LMRA, 29 U.S.C. §186(0)(5), and are employee benefit plans established and maintained pursuant to Sections 3(1)(2) and (3) of ERISA, 29 U.S.C. §1002(1), (2) and (3), for the purpose of providing health benefits and other benefits to eligible participants The Funds are also multiemplog§r plans Within the meaning of Sections 3(37) and 515 of ERISA, 29 U.S.C. 1002(37)7 and 1145 respectively 6. PlaintiffFunds are multi-ernployer plans Within the meaning of sections 3(37) and 515 of ERISA, 29 U.S.C. 1002(37) and 1145 respectively 7. The Funds are authorized to sue in their own names pursuant to Section 502(d)(l) ofERlSA, 29 U.S.C. §1132(d)(1). 8. Plaintiff Funds have standing to commence this action under Se‘ction 502(d)(1) ofERISA, 29 U.S.C. §1132(d)(l). 9. The Trustees are fiduciaries Within the meaning of Section 3(21) of ERISA, 29 U.S.C. §1002(21)(A). 10. `Plaintiff Funds maintain their principal place of business at 830 Bear _ Tavem Road, West Trenton, New Jersey 08628. 11. Plaintiff Funds bring this action on behalf of their Trustees, committee members, participants and beneficiaries pursuant to Section 502 of ERlSA, 29 Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 4 of 8 Page|D: 4 U.S.C. §1132, and Section 301 ofLMRA, 29 U.S.C. §185. 12. Plaint`iff IBEW Local Union No. 351 (“Union”) is engaged in collective bargaining on behalf of construction electricians throughout the State of New Jersey. The Union qualifies to commence this action under Section 301 of LMRA, 29 U.S.C. §185. 13. The Union maintains their principal place of business at 1113 Black I-lorse Pike, Folsom, New Jersey 08037. 14. Defendant, Electrical Power S'ervices, Inc. (“EPS”) is referred to as “Defendant” or “employer” or “party in interest” as defined in Sections 3(5) and 3(14) 1 of ERISA, 29 U.S.C. §1002(5) and (14) respectively, is an employer in an industry affecting commerce Within the meaning of Section 301 of LMRA, 29 U.S.C. §185. 15. Upon information and belief, Defendant EPS’s principal place of business is located at 920 E. Blenheim Avenue, Blackwood, New Jersey 08012. 16. Defendant EPS conducts, or has conducted, business in the State of New Jersey during all times relevant to this Complaint. COUNT ONE 17. Plaintiffs incorporate the allegations of Paragraphs 1 through 16 of this Complaint as if set forth herein in their entirety. Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 5 of 8 Page|D: 5 18. At all times relevant hereto, Defendant EPS was party to and agreed to abide by the terms and conditions of a Collective Bargaining Agreement (“CBA”) With the Union or one or more local labor unions or district councils affiliated With the Union. 19. At all times relevant hereto, Defendant EPS also signed and agreed to abide by the terms of the Agreeinents and Declarations of Trust (“Trust Agreements"’) which, along with the CBA, requires fringe benefit contributions be made for eligible participants on a timely basis. 20. Defendant EPS failed to pay, or has only paid a portion of, the delinquent contributions as required by the Inside Agreernent, Trust Agreement, and Collection Policy for period including, but not limited to, the period of October l, 2018 through February 28, 2019. 21. Payment of the delinquent contributions and penalties has been demanded by the Funds, but Defendant EPS has refused to submit the required payments 22. Such delinquencies, constitute prohibited transactions under 29 U.S.C. §l 106(a)(1)(B). 23. Defendant EPS’s failure to remit timely fringe benefit contributions has resulted in a violation of 29 U.S.C. §1145. Case 1:19-cV-'11234-RBK-.]S Document 1 Filed 04/25/19 Page 6 of 8 Page|D: 6 24. This action is brought in part by the Plaintiffs pursuant to Section 502(g)(2), 29 U.S.C. §1132(g)(2), and Section 515 ofERISA, 29 U.S.C. §1145, pursuant to which this Court is directed to award all unpaid contributions, interest, liquidated damages up to or exceeding twenty percent, reasonable attorneys' fees, court costs, and any other fees or relief which the Court deems appropriate wHEREFoRE, marinaer respectruiiy request the following reiief; A. Order Defendant to pay contributions due and owing to the Plaintiff Funds; B. Order Defendant to pay all delinquent penalties owed to Plaintiff Funds; C. Order Defendant to pay interest on the delinquent contributions at the rate as provided by 29 U.S.C. §1132(g); D. Order Defendant to pay liquidated damages as provided by 29 U.S.C. §1132(g); E. Order Defendant to specifically perform all obligations to the Plaintiff Funds under the CBA; F. Order Defendant to pay the Funds’ reasonable attorneys’ fees and costs incurred in the prosecution of this action as provided by 29 U.S.C. §1132(g); and Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 7 of 8 Page|D: 7 G. Order such other and further relief as this Court may deem just and appropriate COUNT TWO 25. Plaintiffs incorporate the allegations of Paragraphs l through 24 of this Complaint as if set forth herein in their entirety 26. Defendant EPS is signatory to, or has assented to, the `CBA with the Union and employs Union members. 27. Defendant EPS failed to remit dues check-offs for the period including, but not limited to, October 1, 2019 through February 28, 2019. 28. Defendant EPS violated the CBA by failing to remit dues check-offs and other contributions to the Plaintiff Union. WHEREFORE, Plaintiff Union respectfully requests that this Court: A. Order Defendant EPS to pay dues-checkoffs due and owing to the Plaintifonion; and B. Order such further legal, equitable or other relief as is just and proper. Case 1:19-cV-11234-RBK-.]S Document 1 Filed 04/25/19 Page 8 of 8 Page|D: 8 Dated: AprilBé, 2019 Respectfully submitted, O'BRIEN, BELLAN]) & BUSI-]INSKY, LLC Arrorneysfor Plaintijj."s s 71/;% W.Danie\f Feehan, Esquire 1526 Berlin Road Cherry Hill, NJ 08003 (878)590-5710/Fax (878)590-5710 [email protected]
257 F.2d 910 A. Marlo MILLER, Appellant,v.Jack STINNETT and Clifford Shervee, Appellees. No. 5757. United States Court of Appeals Tenth Circuit. July 9, 1958, Rehearing Denied Aug. 11, 1958. A. T. Hannett, Albuquerque, N.M. (G. W. Hannett and Thomas G. Cornish, Albuquerque, N.M., were with him on the brief), for appellant. James B. Cooney, Farmington, N.M. (W. A. Keleher, A. H. McLeod, Russell Moore, Albuquerque, N.M., and Jack M. Morgan, Farmington, N.M., were on the brief), for appellees. Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. MURRAH, Circuit Judge. 1 In this diversity action against a police officer and a private instigator, the appellant seeks damages for wrongful arrest and imprisonment for violation of a city ordinance, said to be unconstitutional. At the conclusion of the appellant's opening statement to the jury, the court directed a verdict for the defendant-appellees, and this is an appeal from a judgment thereon. 2 Without indulging in any formal pleadings, and taking the opening statement as the true operative facts, the question is whether the appellant stated a claim upon which relief can be granted on any legally sustainable theory. 3 Thus considered, the facts are that appellant Miller is an itinerant vendor who takes orders for tailored clothing for men and women, which, after manufacture, is shipped in interstate and foreign commerce in the original package C.O.D. directly to the customer. The appellee Stinnett is a police officer in the town of Farmington, New Mexico; and the appellee Shervee is engaged in the clothing business at a fixed establishment in Farmington. A duly enacted ordinance of the town of Farmington imposed an occupational tax upon numerous occupations, trades and pursuits; provided for the issuance of licenses upon the payment of the tax; and fixed penalties for the violation thereof. Without having paid the tax or obtained a license under the ordinance, Miller went to the town of Farmington, measured prospective customers, obtained their orders, and forwarded them in interstate commerce to be filled and shipped directly to the customer in the usual manner. At the instigation of Shervee, officer Stinnett went to a certain place where Miller was engaged in measuring a prospective customer for clothing. After witnessing the measuring process, Stinnett, acting without a warrant, arrested Miller and took him in a police car to the jail and booked him for violation of the ordinance. Thereafter, Miller furnished bail and was released. On two previous occasions, Miller had been arrested, charged, tried and fined for violation of the same ordinance. On appeal the charges had been dismissed and Miller released. But at the commencement of this suit, this charge had not been dismissed or otherwise failed. At the time of the arrest in question, Stinnett and Shervee both knew that Miller claimed immunity from the incidence of the ordinance by reason of the fact that he was engaged in interstate commerce. 4 Since the arrest was not effected under authority of a warrant or other process issued by a court having jurisdiction and regular upon its face, appellee cannot invoke the rule which generally gives police officers immunity from liability who act merely as the administrative arm of the court issuing the process. Snyder v. Hausheer, 10 Cir., 268 F. 776; Reilly v. United States Fidelity & Guaranty Co., 9 Cir., 15 F.2d 314; Schneider v. Kessler, 3 Cir., 97 F.2d 542; Williams v. Franzoni, 2 Cir., 217 F.2d 533; Pallett v. Thompkins, 10 Wash.2d 697, 118 P.2d 190; Vallindras v. Massachusetts Bonding & Insurance Co., 42 Cal. 2d 149, 265 P.2d 907; Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451, L.R.A.1918F, 1132; David v. Larochelle, 296 Mass. 302, 5 N.E.2d 571; Click v. Parish, 155 Ohio St. 84, 98 N.E.2d 293; Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470; Zeitinger v. Mitchell, Mo., 244 S.W.2d 91; 22 Am.Jur. False Imprisonment 67. But the arrest was made for violation of the ordinance in the presence of the officer, and if the ordinance is valid, the arrest was lawful and no claim for false arrest can arise out of it. 14-17-6 N.M.S.A.1953; Cave v. Cooley, 48 N.M. 478, 152 P.2d 886; City of Clovis v. Archie, 60 N.M. 239, 290 P.2d 1075. It is clear, however, that as applied to the activities of the appellant, the ordinance runs afoul of the federal Constitution. See Nippert v. City of Richmond, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760; Memphis Steam Laundry Cleaner v. Stone, 342 U.S. 389, 72 S. Ct. 424, 96 L. Ed. 436; Annotation 162 A.L.R. 857. And see also 60-2-1, 60-2-2, 60-2-3, 60-2-4, 60-2-5, N.M.S.A.1953. Indeed, the trial court assumed the inapplicability of the ordinance to the appellant and his right to injunctive relief against its enforcement as to him. The court went so far as to suggest a right of action for malicious prosecution. It took the view, however, that a claim for false arrest or imprisonment did not lie, because, as the trial court observed, a policeman is under no duty to interpret the law he is called upon to enforce; that an arrest otherwise lawful is not rendered unlawful because the statute or ordinance under which the arrest was made is subsequently declared invalid; that inasmuch as the arrest was made for acts committed in the presence of the officer constituting a violation of an ordinance valid on its face, no claim could be sustained against the arresting officer or the private person instigating the arrest. 5 The repeated arrests and detention of the appellant by the officer at the instance of Shervee, and the subsequent dismissal of the first two cases after imposition of fine, partakes of malicious prosecution. Of course if the appellant's statement made out a case for malicious prosecution, he is entitled to proceed upon it, regardless of his pleadings or stated legal theories. But, according to its common law definition, malicious prosecution is the malicious use of valid process to an unsuccessful end. It presupposes an innocent or acquitted accused. This claim is based on the last arrest and conviction-- reference is made to the former aborted arrests and convictions apparently for the only purpose of showing malice and want of probable cause. As far as this record shows, no final disposition favorable to the appellant had been made of the charge which is the gravamen of this suit. Meanwhile, malicious prosecution will not lie for the last detention. 6 The appellant denies any intention to claim under the Civil Rights Act, 42 U.S.C.A. 1981 et seq. in view of Agnew v. City of Compton, 9 Cir., 239 F.2d 226. But see Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240; Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281; Downie v. Powers, 10 Cir., 193 F.2d 760, 765. 7 But even so, the acts complained of here were intended to and did result in the appellant's conscious confinement without his consent, and it is civilly actionable unless privileged. See Restatement Torts, 35, 36, 37. The detention is a form of assault and battery, and is called false imprisonment. There is good and respectable authority for saying that an arrest made by a police officer for acts committed in his presence in violation of an ordinance valid upon its face, is privileged and not actionable for subsequent declaration of invalidity. These cases reason, as did the trial court, that public officers are entitled to assume the validity of the law they are sworn to uphold and enforce, and that it would be contrary to public policy to require such public officers to enforce laws, valid on their face, at the risk of holding them civilly liable if they are subsequently declared invalid. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509; Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661; Village of Dolton v. Harms, 327 Ill.App. 107, 63 N.E.2d 785; Golden v. Thompson, 194 Miss. 241, 11 So. 2d 906; Odinetz v. Budds, 315 Mich. 512, 24 N.W.2d 193. See Annotation on Civil Liability of Law Enforcement Officers for Malicious Prosecution, 28 A.L.R. 2d 646. 8 On the other hand, there is authority for holding the officer civilly liable for arrests made under statutes subsequently declared invalid. The rule is predicated upon the concept, first announced in Norton v. Shelby County, 118 U.S. 425, 6 S. Ct. 1121, 30 L. Ed. 178, to the effect that an unconstitutional act confers no rights, imposes no duty and affords no protection to anyone acting under authority of it. See Smith v. Costello, 77 Idaho 205, 290 P.2d 742, 56 A.L.R. 2d 1020; 43 Am.Jur. Public Officers, 284; 11 Am.Jur. Constitutional Law, 149; Annotation 53 A.L.R. 268. And, this is so even in the absence of malice and in the presence of probable cause. See Annotation 137 A.L.R. 504. Good faith and honest belief is admissible only in mitigation of the damages. S. H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757; Gogue v. MacDonald, 35 Cal. 2d 482, 218 P.2d 542, 21 A.L.R. 2d 639; Singleton v. Perry, 45 Cal. 2d 489, 289 P.2d 794. Restatement protects the officer for an arrest without a warrant where he acts under a reasonable mistake of fact, but affords no protection where he acts, however reasonably, under a mistake of law, 'other than a mistake as to the validity of a statute or ordinance.' As to that, it expressly refrains from an opinion. See Restatement Torts, 121, Caveat to Comment i. 9 New Mexico, whose law governs the legal sufficiency of the claim, has not expressly resolved the conflict, but in a recent action against an enforcement officer and a justice of the peace for both false imprisonment and malicious prosecution, the court sustained the claim, based upon 'the trumpted up charge' that the complainant was driving on the wrong side of the road in violation of a city ordinance, the officers well knowing that no such ordinance was in existence. In that case, the process was void on its face, and both the officer and the judge acted 'wholly without jurisdiction.' Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853, 855. There was ample room for malice and want of probable cause, and punitive damages were sought. And, since the prosecution was terminated in favor of the accused-complainant, the action was thus readily sustainable on either asserted theory of false imprisonment or malicious prosecution. But, the New Mexico court did not concern itself with nomenclature. It was content to rest the compensatory claim on the simple tort of unprivileged detention. 10 The only significant difference between the Vickrey case and ours lies in the fact that the arrest and detention in that case was executed under a knowingly nonexistent ordinance, and the prosecution thereunder had been formally determined in favor of the accused-complainant; while in our case, the arrest and detention was executed under an existent ordinance valid on its face, but invalid and inapplicable in fact. The charge had not been formally terminated, but, as we have seen, the ordinance was clearly inapplicable to the accused-complainant, and under the stated facts, both the arresting officer and the instigator had good reason to know and believe that it was inapplicable and the charge therefore unsustainable. While a detention made in good faith reliance on an ordinance valid on its face, but invalid or inapplicable in fact may be privileged, certainly that privilege does not extend to a detention by those who know or have reason to believe that the ordinance is invalid or inapplicable. We think the stated facts susceptible to the permissible inference that the arrest and detention was not made in good faith reliance on the ordinance, but instead for the purpose of harassment to serve selfish ends, thus defeating privileged detention as in the Vickrey case. In short, we think the appellant stated a case for the trier of the facts. 11 As to the appellee, Shervee, who, on this record instigated the false arrest, it is well established and apparently agreed that he stands on the same footing with the arresting officer. And see 21 A.L.R. 2d 643, 687, Subdivision 4, Sec. 19. 12 The judgment is reversed. 13 HUXMAN, Circuit Judge (dissenting). 14 I find myself in disagreement with my Associates in this case. As stated in the majority opinion, the town of Farmington, New Mexico, has an occupation tax ordinance on its statute books. It is a general ordinance apparently applying to all forms of endeavor or pursuits for profit, with certain exceptions not material herein. It imposes an occupation tax beginning at $5 per annum. It applies equally to all classes of occupations. It provides for applications for licenses, issuance of licenses, and makes it an offense to engage in business without having a license. 15 New Mexico has a statute (N.M.S.A.1953 Comp. 14-17-6) which is necessary to consider. It relates to the powers and duties of marshals and other peace officers and so far as material herein provides that such officers 'shall apprehend any person in the act of committing any offense against the laws of the state or ordinances of the city, town or village, and forthwith bring such persons before the competent authority for examination and trial; * * *'. 16 As stated in the majority opinion, Miller was an itinerant vendor, taking orders for tailored clothing to be fitted and shipped in interstate commerce. He did not have a license to engage in business in Farmington. Some attention is given in the majority opinion to the fact that there had been previous arrests and there are suggestions of bad faith in making these arrests which might partake of malicious prosecution. I lay these aside because, as I read the majority opinion, it is not based on bad faith or acts that smack of malicious prosecution. I think the statement is warranted that the record is devoid of anything which would in any way tend to establish bad faith on the part of the officer making the arrest, say what you may about the conduct of the local merchant. 17 Here are the essential facts. At the instigation of Shervee, a local merchant, Officer Stinnett went to a place where Miller was engaged in measuring a purchaser of clothing and, after witnessing the measuring, arrested Miller without a warrant and took him to jail, where he made bond and was released. Both Stinnett and Shervee knew that Miller claimed immunity from the ordinance. 18 The majority opinion, as I read it, is predicated upon the assumption that the Farmington occupation tax ordinance is unconstitutional. I am not so sure in my own mind that this is so. Reliance for this position is placed upon the so-called drummer ordinance cases, beginning with the early case of Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694, and adhered to by a divided court in the later cases of Nippert v. City of Richmond, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760, and Memphis Steam Laundry Cleaner v. Stone, 342 U.S. 389, 72 S. Ct. 424, 96 L. Ed. 436. The Farmington ordinance in many respects is vastly different from the ordinary drummer ordinances considered by the Supreme Court in these cases. But since in my view the validity of the ordinance is immaterial to the fundamental issue, the question need not be developed. 19 To me the single question is, can an officer who makes an arrest for the violation of an ordinance committed in his presence, which by law he is required to make,1 be subjected to liability if thereafter it should be judicially determined that the ordinance was void and, therefore, in fact no offense had been committed. To so hold would in my opinion be against public policy and would cause a complete break-down in law enforcement. To so hold would mean that if an officer were asked to make an arrest without a warrant for a violation of an ordinance, committed in his presence, when the statute required him to do so, he would be warranted in refusing. He might well say, 'I do not know whether this ordinance is valid. Go institute a declaratory judgment action and have its validity determined and then I will act.' 20 By the great weight of authority, in fact almost by unanimous authority, it is held that an arrest made by an officer for acts committed in his presence in violation of ordinances valid upon their face are privileged and do not subject him to liability if thereafter the ordinance is held void. The reason for this is well stated by the Tennessee Supreme Court in Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661, 664, where the Supreme Court said, 'The general public welfare, and more especially the peace and good order of society, will not admit of ministerial officers being the judge of the constitutionality of statutes and ordinances. Their failure and refusal to enforce the law as written, in the absence of any proper adjudication of unconstitutionality, would be intolerable.' Of all the cases relied upon by the majority for a contrary holding, only Smith v. Costello, 77 Idaho 205, 290 P.2d 742, involves the liability of a peace officer acting under an invalid statute and that case did not involve the liability of an officer for making an arrest under such a statute without a warrant. 21 In City of Clovis v. Archie, 60 N.M. 239, 290 P.2d 1075, the New Mexico Supreme Court construed the statute requiring an officer to make an arrest without a warrant for an offense committed in his presence. In that case Archie was arrested without a warrant and on trial was convicted. On appeal, it was contended that the arrest was illegal because made without a warrant. The Supreme Court, referring to the statute, held that thereunder an arrest without a warrant was lawful. The case of Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853, 855, by the New Mexico Court, upon which reliance is placed by the majority, is clearly distinguishable upon the facts. The arrest there was made for the violation of a city ordinance which did not exist and for an offense which was committed, if at all, outside the city limits. Under these facts, the officer was held liable for false arrest because he did not act even under color of ostensible authority and was wholly without jurisdiction to act. The Court, however, recognized the general rule of non-liability of officers acting under color of authority. In the opinion it is stated, 'No rule is more firmly established than that judicial officers are not liable for the erroneous exercise of judicial powers vested in them; * * *'. 22 I have been able to find only one case directly in point. In Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661, 664, the plaintiff averred that he had been unlawfully arrested without a warrant, for the violation of an ordinance which was unconstitutional and void, and sued the arresting officers for false arrest. The officers' demurrer to the complaint was sustained, and the case was dismissed. On appeal, the decision was affirmed. The Tennessee Court laid down the principles which to me are basic in such clear language that I quote therefrom at some length. The Court said "An unconstitutional act is not void but voidable only and ministerial officers are therefore authorized to treat every act of the Legislature as primafacie valid and they are not liable for any acts committed under an unconstitutional statute on account of its unconstitutionality." And 'Ministerial officers are not as a general rule permitted to question the validity of a statute or city ordinance.' And "Every act of the Legislature is presumptively constitutional until judicially declared otherwise, and the oath of office 'to obey the Constitution,' means to obey the Constitution, not as the officer decides, but as judicially determined." Because I agree wholeheartedly with the pronouncement of the Tennessee Court that 'The general public welfare, and more especially the peace and good order of society, will not admit of ministerial officers being the judge of the constitutionality of statutes and ordinances.' and that 'Their failure and refusal to enforce the law as written, in the absence of any proper adjudication of unconstitutionality, would be intolerable.', I am forced to respectfully dissent. 1 Under the ordinance, Stinnett was required to make the arrest because the violation of the license ordinance was committed in his presence
This is an appeal from the judgment of the district court of Marshall county in an action wherein plaintiff in error was defendant and defendant in error was plaintiff; parties will be referred to hereinafter as they appeared in the trial court. The judgment appealed from was rendered on the 7th day of May, 1928, and the motion for new trial was on the same day overruled, at which time notice of appeal was given, and the defendant was given 90 days from and after the time allowed by law within which to make and serve case-made upon the plaintiff. On August 3, 1928, by order of the court the time in which to serve case-made was extended 60 days in addition to the time already granted. The time thus granted in which to serve case-made expired October 19, 1928. On October 3, 1928, the court made an order granting a further extension of time of 20 days in addition to the time theretofore granted in which to prepare and serve case-made; this time expired on November 8, 1928, one day after the time in which to file the appeal in this court expired, on November 7, 1928. Section 789, C. O. S. 1921, provides the court in which any case is tried may from time to time make orders extending the time for making and serving case-made, but not beyond the period in which the proceedings in error may be filed in the appellate court, and under the rule announced by this court in the case of Saxon v. Green, 131 Okla. 15, 267 P. 465, Shinn v. Oklahoma City Building Loan Ass'n, 130 Okla. 173,266 P. 435, and cases cited therein, the order of the court made in this cause on October 3, 1928, is void for the reason the time granted therein in which to prepare and serve case-made extended beyond the period in which proceedings in error could, by law, be filed in this court. The time granted the defendant in which to prepare and serve case-made on August 3, 1928, the last valid order of the court, expired on October 19, 1928. The case-made was not served upon the plaintiff until October 23, 1928, and therefore was not served within the time fixed by law or valid order of the court, and under the rule announced in the case of Petty v. Foster, 122 Okla. 152, 252 P. 836, Rawleigh Co. v. Mills,117 Okla. 283, 246 P. 614, Harrison v. Reed, 81 Okla. 149,197 P. 159, and cases cited therein, the case-made in this case is a nullity and brings nothing before this court for review, and upon motion the appeal is dismissed. *Page 1
Citation Nr: 0910655 Decision Date: 03/23/09 Archive Date: 04/01/09 DOCKET NO. 06-00 357 ) DATE ) ) Received from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, currently rated as 10 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for bilateral hand disability. 4. Entitlement to service connection for bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active naval service from January 1952 to November 1955. The evidence shows that the Veteran was wounded in action. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Consideration of the Veteran's claims for service connection for bilateral hands and bilateral feet disabilities are deferred pending completion of the development sought in the remand that follows the decision below. The Board notes that evidence was received at the Board in February 2009, well after the case was certified to the Board. The evidence consists of medical treatment records from 2008 showing feet and hands complaints, and assertion by the Veteran to his treating physician that he thought he had frostbite in Korea. Also newly received are buddy statements corroborating that the Veteran served in an open gun mount during sub-freezing conditions, as well as other evidence duplicative of evidence already of record. Absent a waiver from the veteran, a remand is necessary when evidence is received by the Board that has not been considered by the agency of original jurisdiction (AOJ). Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Neither the Veteran nor his accredited representative has waived AOJ consideration of this newly received evidence. Since the Board will remand the bilateral hands and bilateral feet disability claims for another reason, this newly received evidence will be considered by the agency of original jurisdiction (AOJ) in the course of that remand. FINDINGS OF FACT 1. The veteran's bilateral hearing loss has increased and warrants an increased rating. 2. The veteran does not have PTSD that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for the veteran's bilateral hearing loss have been met, effective July 12, 2005. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100 (2008). 2. The veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in January 2005, before the RO decision that denied these claims was issued. Specifically regarding VA's duty to notify, the notification to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. While the notifications did not include the criteria for assigning disability ratings or for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), since the Veteran's PTSD service connection claim will be denied, these questions are not now before the Board. As regards the Veteran's hearing loss increased rating claim, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, once a decision awarding service connection, a disability rating, and an effective date has been made, as is the case here, VCAA notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess, [email protected]. Consequently, a remand for the purpose of a Dingess notification is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regarding the claimant's hearing loss increased rating claim, he was apprised that, to substantiate the claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. He has been given the rating criteria for hearing loss disability, and was provided examples of the types of medical and lay evidence that the claimant may submit or ask VA to obtain that are relevant to establishing entitlement to increased compensation. See Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). While the notification did not specifically mention that he should provide evidence demonstrating the effect that averred worsening had on employment and his daily life, the VCAA notice letter requested that that he provide statements from people who have witnessed how his symptoms have affected him, which would logically include both at a workplace and in his daily life activities. The Board therefore finds that the RO's notifications to the Veteran were in substantial compliance with the holding in Vasquez-Flores, supra. See Mayfield v. Nicholson, 19 Vet.App. 10, 121, 130 (2005) ("Mayfield I "), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (notice letter to claimant was in substantial compliance with regulation). The RO also provided a statement of the case (SOC) reporting the results of its reviews of the issues on appeal and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment record (STR) file (which contains both medical treatment records and non-treatment medical records such as reports of physical examinations and reports of diagnostic studies, as well as administrative documents and dental treatment records), and post-service medical records, and secured examinations in furtherance of his claims. In this regard, the Board notes that the Veteran's accredited representative averred that the Veteran's hearing loss has worsened since his audiological evaluation in June 2004, and that the hearing loss issue should be remanded in order to obtain another examination. See Palczewski v. Nicholson, 21 Vet. App 174, 180-82 (2007) (suggesting that evidence or allegation of worsening of a disability since a previous examination would warrant an additional VA examination). As will be seen, however, there is a more recent audiological evaluation of record that shows that the Veteran's hearing loss did, indeed, worsen after the June 2004 examination. Since there is sufficient competent medical evidence on file on which to render a decision, the Board finds that yet another audiological examination is not necessary. The Veteran requested a hearing before a member of the Board, but subsequently cancelled the scheduled hearing. VA has no duty to inform or assist that was unmet. II. Hearing loss The Veteran was granted service connection for bilateral hearing loss in a rating decision dated in October 2004, rated as 10 percent disabling. The Veteran did not appeal that decision, but did indicate in correspondence received in December 2004 that he had had a hearing test in Topeka, Kansas, that month. The RO interpreted this correspondence to be a new claim for an increased rating. The Veteran's 10 percent award was based on an audiological evaluation in June 2004. The Veteran was subsequently evaluated again in July 2005 at the request of his primary care provider. The July 2005 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 65 70 LEFT 30 40 60 60 60 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 64 percent in the left ear. Defective hearing is rated in accordance with the criteria set forth in 38 C.F.R. §§ 4.85, 4.86. In evaluating the veteran's hearing loss, the Board notes that hearing loss evaluations are determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. See, e.g, Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999). Ratings range from zero to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85. Entering Table VI (shown below, from 38 C.F.R. § 4.85) with the July 2005 examination results, the right ear average puretone threshold of 56.25 with speech recognition ability of 76 percent, yields a numeric score of level IV. The left ear average puretone threshold was 55 with speech recognition of 64 percent, yielding a numeric score of level VI. % of discri m- inatio n Table VI - Puretone Threshold Average 0- 41 42- 49 50- 57 58- 65 66- 73 74- 81 82- 89 90- 97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VII I 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VII I VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Entering Table VII (abbreviated below from 38 C.F.R. § 4.85) with the above results (better ear level score of IV; poorer ear level score of VI) shows that the level of the veteran's compensable hearing loss evaluation is 20 percent. Table VII IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VII I VI I VI V IV II I II I Poorer Ear Having applied the audiological examination results to the rating schedule, the Board finds that a higher, 20 percent, rating is warranted effective July 18, 2005, the date of the audiological evaluation showing the Veteran's hearing had decreased. To that extent, the Veteran's claim is granted. As is evident from the foregoing, the evidence of records does not warrant a rating higher than 20 percent. It follows then that a staged rating is also inapt. See Hart v. Mansfield, 21 Vet. App. 505 (2007). III. PTSD Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (which requires a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Where it is determined that the veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence, absent clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f). The record shows that the Veteran served aboard a Navy cruiser in combat during the Korean conflict. The Veteran's STRs show that he was awarded the Purple Heart for a shell fragment wound inflicted while serving on a gun crew, and contends that he has PTSD as a result of this incident. The Veteran was afforded a VA PTSD examination in April 2005 in order to determine if he has PTSD diagnosed in accordance with DSM-IV. The Veteran reported to his examiner that he has nightmares about once a week that deal with his being shelled and wounded while serving in Korea. He reported intrusive thoughts of the events two to three times per week that leave him somewhat alert and anxious. He did not report any flashbacks, and he had none of the avoidant signs. He reported currently having several close friends and a good social life. He has been married to his second wife for 25 years. He said he had no problems going into crowded places, but does have problems if he watches news because it can bring on more intrusive thoughts. He reported that he gets quite anxious when there is a loud noise. He said that he has noted that he has been irritable and hot tempered since his combat experience, but he does not have any feelings of foreshortening. He reported earlier problems with alcohol that were related to the breakup of his first marriage. He sleeps well. The examiner found no depression, and the Veteran said he had never been treated for depression. The examiner described the Veteran's post- service life as a "pretty good psychosocial adjustment," with good long-term employment and fairly long relationships of over 20 years in each of his two marriages. On examination the examiner found the Veteran to be cooperative and oriented in all spheres. There was no evidence of hallucinations, body image distortion, depersonalization, or derealization. Thoughts were coherent. There was no evidence of delusions. He had a little trouble remembering three items after five minutes; he could remember only one, but admitted that he was somewhat anxious. He could spell a word backwards and could categorize properly and show good judgment. Affect and mood were euthymic, and there were no tics or mannerisms. The examiner also found that there was no impairment of thought process or communication, and no delusions or hallucinations. Eye contact was good; he was interactive. There was no evidence of suicidal or homicidal ideation, and the Veteran looked well-groomed, evidencing the ability to maintain personal hygiene. Memory was "pretty good," even though he could only remember one of three items because of his anxiousness. Long term memory was good. There was no ritualistic behavior, and rate and flow of speech were relevant and not illogical. The Veteran reported no panic attacks and showed no impaired impulse control. The examiner concluded that the Veteran does not have PTSD. The Veteran met the criteria of having a stressor and remembering the stressor and being alert, but did not meet the avoidant criteria required for a diagnosis of PTSD. The examiner noted that the only one he meets is an increase in symptoms if he hears the news, but that even on hearing it, he does not stay away from the news. A diagnosis was made utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria. The DSM-IV Axis I (clinical disorders and other conditions that may be a focus of clinical attention) diagnosis was partial expression of PTSD, but not meeting the full criteria; history of alcohol abuse and dependence, in remission; and anxiety disorder probably related to partially expressed PTSD. There was no diagnosis in Axis II (personality disorders and mental retardation). In Axis III (general medical conditions) the examiner listed eight conditions. In Axis IV (psychosocial and environmental problems) the examiner noted chronic medical illnesses and some estrangement from his children. The Axis V (global assessment of functioning (GAF) score) report was 80 (which, the Board notes, is the top of the DSM-IV scale denoting no more than slight impairment in social, occupational, or school functioning). The examiner commented that the Veteran had a pretty good childhood, and had no trouble in employment. He noted that there are no other problems of a psychiatric nature. He summarized that the Veteran has done rather well. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the veteran currently has the disability for which benefits are being claimed. Here, there is no credible medical evidence of a current PTSD disability. As noted in the foregoing summary of the Veteran's PTSD examination, the Veteran does not have PTSD diagnosed in accordance with DSM-IV, which is required for service connection for PTSD. With no medical evidence of the claimed disability, the analysis ends, and service connection must be denied. The Board acknowledges the Veteran's contention that he has PTSD as a result of his described combat stressors in Korea. However, there is no evidence of record showing that the veteran has the specialized medical or psychological education, training, and experience necessary to render a competent diagnosis or opinion regarding PTSD. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1). Consequently, the veteran's own assertions in this regard have no probative value. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The veteran does not have PTSD that is etiologically related to his military service. ORDER Entitlement to a 20 percent rating for the Veteran's bilateral hearing loss is granted, effective July 12, 2005. Entitlement to service connection for post-traumatic stress disorder is denied. REMAND The Veteran contends that he has bilateral hands and bilateral feet disabilities that he believes to be related to his military service. Specifically, he has stated that he believes that he got frostbite in Korea. The Veteran's STRs show a single finger fracture in January 1954, but no other hand or foot complaint, and no complaint of treatment suggestive of frostbite. His separation examination reported normal clinical evaluation of the upper and lower extremities. A VA podiatrist has attributed current foot pain to diabetes-related peripheral neuropathy. Notwithstanding the foregoing, since the evidence of record suggests that the Veteran was exposed to subfreezing temperatures with a potential for cold injuries while serving in Korea, the Board finds that a medical opinion is required in order to determine whether it is at least as likely as not that the Veteran has either a hand or foot disability that is related to exposure to extreme cold weather or a hand injury related to his January 1954 finger fracture. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (examination required when insufficient competent medical evidence is on file with which to make a decision on the claim). Accordingly, the veteran's case is REMANDED to the AOJ for the following actions: 1. The AOJ must ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), is completed. Specifically, the AOJ must provide notice to the veteran of the criteria for assignment of disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should arrange for the veteran to undergo a VA cold injury protocol examination by a medical professional with appropriate expertise to determine whether it is at least as likely as not that the Veteran has any hand or foot disabilities that are related to his averred exposure to cold weather while serving aboard ship in Korean waters during the winter, or has a right hand disability that is related to his January 1954 hand injury. All indicated studies, tests, and evaluations deemed necessary should be performed and the results noted in the examination report. If the examiner finds any cold injury involving a joint and that affects limitation of motion, the examiner is requested to take into consideration the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A complete rationale should be given for any opinions and conclusions expressed. The veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The RO should ensure that the examination report complies with this remand and the questions presented in the RO's examination request, especially with respect to the instructions to provide medical opinions. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. The veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2008). 3. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal in light of all information or evidence received. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AOJ. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the AOJ. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
540 So. 2d 530 (1989) BRUNSON BONDING & INSURANCE AGENCY, INC. v. ELM, INC. No. CW 88 1494. Court of Appeal of Louisiana, First Circuit. February 28, 1989. Writ Denied April 21, 1989. *531 Stephen C. Poss, Boohaker and Austin, Baton Rouge, for appellant-plaintiff. Samuel C. Cashio, Maringouin, for appellee-defendant ELM, Inc., and Ann Bonaventure. Michael G. Lemoine, Roy, Carmouche, Bivins, Judice, Henke & Breaud, Lafayette, for defendants-appellees, and Ann Bonaventure. Before WATKINS, CRAIN and ALFORD, JJ. ALFORD, Judge. Plaintiff-Appellant, Brunson Bonding and Insurance Agency, Inc. (hereinafter referred to as "Brunson Bonding"), was granted a Writ of Certiorari to obtain review of the trial court ruling denying its "Motion to Substitute Party Defendant." The issue presented to this court for determination concerns whether the shareholders of a corporation become personally liable for a corporate debt on which suit has been filed against the corporation when the corporation is subsequently dissolved by affidavit under the provisions of La.R.S. 12:142.1. Brunson Bonding filed suit against E.L. M. Enterprises, Inc.[1] (hereinafter referred to as "E.L.M.") in August of 1986, alleging that it secured and advanced premiums for insurance coverage on behalf of the corporate defendant. E.L.M. answered the lawsuit denying the allegations.[2] Subsequently, the shareholders of E.L.M., Ann Duhon Bonaventure and Oliver Parker, dissolved the corporation by affidavit on September 28, 1987, complying with the procedural requirements of La.R.S. 12:142.1. Thereafter, Brunson Bonding filed a Motion to Substitute the shareholders[3] as party defendants. Following the trial court denial of its motion, Brunson Bonding sought a supervisory writ from this court which was granted on October 27, 1988. The resolution of the issue presented on appeal depends on the interpretation of La. R.S. 12:142.1, which reads as follows: In addition to all other methods of dissolution, if the corporation is not doing business and owes no debts, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, or by the incorporator if no shares have been issued, attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, or the incorporator if no shares have been issued, shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation. Appellees, herein, argue that La.R.S. 12:142.1 renders shareholders personally liable only for debts or claims against the corporation arising after dissolution, and not for debts or claims against the corporation existing at the time of the dissolution. We do not agree. We find that the concluding sentence of La.R.S. 12:142.1 clearly imposes liability, after dissolution of the corporation under the statute, on the shareholders or incorporators "for any debts or claims, if any, against the corporation ..." (Emphasis added.) "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La.Civ.Code art. 9. To *532 restrictively interpret the statute as the appellee suggests, by limiting recovery against shareholders to only those debts or claims arising after dissolution, would require the court to abandon its judicial function and assume the legislative function, which it cannot do. See State v. Maestri, 199 La. 49, 5 So. 2d 499 (1941). Although the method of corporate dissolution set forth in this statute was intended to be used only in those instances where a corporation owes no debts, we believe the Legislature enacted the personal liability provision of the statute to cover those situations where unliquidated debts or unanticipated claims are presented after dissolution as well as to those instances where the statutory procedure is inappropriately used.[4] Since the dissolution process under this statute is considerably expedited, we believe the Legislature provided this extra protection for creditors of corporations to deter abuse of this relatively quick and simple dissolution process.[5] We note that Appellee cites International Harvester Credit Corp. v. Seale, 509 So. 2d 684 (La.App. 3d Cir.1987), modified, 518 So. 2d 1039 (La.1988), in support of his argument that La.R.S. 12:142.1 renders the shareholder liable only for debts arising after dissolution of the corporation. The language Appellee refers to is as follows: This method of corporate dissolution renders the affiants personally liable for any debts or claims which may subsequently arise against the dissolved corporation. 509 [email protected]. We do not find this language authoritative for several reasons. Initially we note that the language is dicta and not pertinent to the resolution of the dispute presented in that case. The Third Circuit found that the wife of the deceased shareholder was not liable for the corporate debt for which the shareholder had become responsible since it was not proven at trial that the debt was a community obligation. Further, the language used by the Third Circuit does not correspond to the factual situation presented in that case. While the court speaks of debts or claims which subsequently arise, the debt actually arose prior to the dissolution of the corporation.[6] No jurisprudence could be found interpreting La.R.S. 12:142.1; consequently, the issue presented to this court is res nova. For the reasons stated herein, we find that La.R.S. 12:142.1 imposes shareholder liability after dissolution of the corporation under this statute for any debt or claim which could have been enforced against the corporation were it still in existence. Accordingly, the judgment of the trial court is reversed and the matter is remanded to the trial court for proceedings consistent with the foregoing, all costs of this appeal to be borne by the Appellee herein. REVERSED AND REMANDED. NOTES [1] The original petition was amended August 26, 1986, changing the named defendant from ELM, Inc. to E.L.M. Enterprises, Inc. [2] The original answer of E.L.M. was filed on October 23, 1986, followed by an amended answer filed on March 4, 1987. [3] Brunson Bonding prayed in its motion that Ann Duhon Bonaventure, Oliver Parker and Samuel C. Cashio, as shareholders of E.L.M., be substituted as party defendants. However, on appeal, Brunson Bonding has not cited as error that portion of the trial court judgment denying the substitution of Samuel C. Cashio as a defendant. [4] We recognize in some instances a creditor may be protected by other provisions of Title 12; such as, under La.R.S. 12:148(C) which extends corporate existence after dissolution for the purpose of any action or suit commenced timely against it, and under La.R.S. 12:93(D) which renders a shareholder liable to creditors of the corporation to the amount of unlawful distribution received. However, the personal liability provision of La.R.S. 12:142.1 is not inconsistent with these other provisions, it merely provides additional protection to creditors. [5] By its provisions, La.R.S. 12:142.1 does not require publication of a notice of dissolution or the appointment of a liquidator as required by La.R.S. 12:142. [6] The corporation was dissolved on October 11, 1983, while the overpayment the creditor sought to recover was made on September 26, 1983.
President Form N-CSR Certification under Sarbanes Oxley Act I, W. Douglas Beck, certify that: 1. I have reviewed this report, filed on behalf of DWS Enhanced Emerging Markets Fixed Income Fund, a series of DWS Global/International Fund, Inc., on Form N-CSR; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, changes in net assets, and cash flows (if the financial statements are required to include a statement of cash flows) of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the second fiscal quarter of the period covered by this report that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize, and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. December 28, 2012 /s/W. Douglas Beck W. Douglas Beck President Chief Financial Officer and Treasurer Form N-CSR Certification under Sarbanes Oxley Act I, Paul Schubert, certify that: 1. I have reviewed this report, filed on behalf of DWS Enhanced Emerging Markets Fixed Income Fund, a series of DWS Global/International Fund, Inc., on Form N-CSR; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations, changes in net assets, and cash flows (if the financial statements are required to include a statement of cash flows) of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Rule 30a-3(c) under the Investment Company Act of 1940) and internal control over financial reporting (as defined in Rule 30a-3(d) under the Investment Company Act of 1940) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of a date within 90 days prior to the filing date of this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the second fiscal quarter of the period covered by this report that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize, and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. December 28, 2012 /s/Paul Schubert Paul Schubert Chief Financial Officer and Treasurer
385 S.W.2d 586 (1964) CALLIHAN INTERESTS, INC., Appellant, v. Carl E. DUFFIELD, Jr., Appellee. No. 3909. Court of Civil Appeals of Texas, Eastland. November 20, 1964. Rehearing Denied January 8, 1965. McMahon, Smart, Sprain, Wilson & Camp, Marvin S. Sprain, Abilene, for appellant. Mays, Leonard, Moore & Dickson, George W. Leonard, Jr., Sweetwater, Whitten, Harrell & Wilcox, Abilene, for appellee. GRISSOM, Chief Justice. Nannie Box et al sued Callihan Interests, Inc. in Callahan County for damages to their land and water caused by Callihan's disposal of salt water in connection with its production of oil. Callihan sought leave to file a third party action against Bridwell, Fulwiler and Carl E. Duffield, Jr. who were alleged to be likewise disposing of their salt water on adjacent premises and contributing to Box's damage. The court permitted said third party action by Callihan only upon condition that its cause of action for indemnity or contribution against Duffield, Bridwell and Fulwiler be severed from the cause of action asserted by Nannie Box et al against Callihan Interests, Inc. Thereupon, Callihan filed a third party complaint bringing in Duffield et al and alleged that the sole cause of the damage to Box et al was the manner in which said third party defendants disposed of their salt water. Callihan also sought indemnity or, in the alternative, contribution from them. Duffield filed a plea of privilege to be sued in Taylor County and, by agreement, the case was transferred there. All of said parties, except Duffield, agreed to a judgment which was rendered awarding Box et al judgment for $18,500.00 against Callihan and awarding Callihan judgment against Bridwell and Fulwiler each for $800.00 contribution with provision that said judgment should not release the cause of action asserted by Callihan against Duffield. Callihan, Bridwell and Fulwiler paid said judgment in accord with its provisions. Duffield filed a motion for summary judgment in Callihan's third party proceeding *587 against him. The gist of that motion was that Callihan could not recover contribution from him because said judgment in favor of Box et al, more than $16,000.00 of which had been paid by Callihan, was an agreed judgment, not one judicially determined at the conclusion of a trial, and, therefore, under the terms of Article 2212, Callihan had no cause of action for contribution against Duffield. Duffield's motion for summary judgment was granted and judgment was rendered accordingly. Callihan has appealed. Callihan paid more than $16,000.00 on the judgment and to that extent discharged the liability, if any, of Duffield to Box. Under the common law Callihan has no cause of action against Duffield for either contribution or indemnity. The only question is whether Article 2212, as it has been construed by Texas courts, gave Callihan the cause of action it asserts. No Texas case that directly answers that question has been cited and, after diligent search, we have found none. Callihan was not permitted in the original case to pursue his claim against Duffield and he should be permitted to maintain this independent suit for contribution against Duffield if the cause of action he asserts comes within the purpose and intention of said statute. The trial court, supported by the decision in Brown & Root, Inc. v. United States, 5 Cir., 198 F.2d 138, apparently held that Callihan could not maintain the suit because it was based upon an agreed judgment and not upon a judgment arrived at by judicial determination at the conclusion of a trial. We think this is not in accord with the interpretation of the statute by the Texas Courts which is to the effect that the purpose of the statute was to create a cause of action for contribution and not to prescribe the procedure by which it is to be obtained. The statute created a cause of action for the benefit of one tort-feasor who, by paying a judgment, discharged the liability of his joint tortfeasor. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776; Gattegno v. The Parisian (Com.App.) 53 S.W.2d 1005, 1007 and 1008; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, (Sup.Ct.), 368 S.W.2d 594. To hold that Callihan lost its right to contribution because it agreed to the judgment, under circumstances where it was impossible for it to have the liability of Duffield determined, would be contrary to the policy of the law to encourage settlement of cases. Callihan's asserted cause of action against Duffield is not based strictly upon the judgment, which did not bind Duffield, but upon the fact that Callihan by paying the judgment against it discharged more than its just share of its and Duffield's alleged joint liability to Box. Huggins v. Johnston, 120 Tex. 21, 35 S.W.2d 688, 689. By the literal terms of Article 2212 the right to contribution is granted to one joint tort-feasor against another only when a plaintiff has recovered judgment jointly against both and one has paid the judgment. Notwithstanding its limited terms, our courts have held that the purpose of the statute was to place the burden equally upon joint tort-feasors; that it was enacted to prevent inequities between joint tort-feasors; that a defendant tort-feasor may bring in other wrongdoers not sued by the plaintiff; that a joint judgment against tort-feasors is not required as a prerequisite to recovery of contribution by one against another and that the "dominant purpose" of Article 2212 is to "create the right of contribution". Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776; Gattegno v. The Parisian (Com.App.) 53 S.W.2d 1005; Lottman v. Cuilla, (Com. App.), 288 S.W. 123, 126; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449. We think it was the purpose of the Legislature to create a cause of action for the benefit of one tort-feasor who by paying a judgment discharges more than his just share of the joint liability of himself and another joint tort-feasor to the injured party. We think Callihan should be permitted to attempt to establish such facts and, if successful, recover the part of Duffield's liability to Box, if any, which it has thus discharged. Although certainly not altogether analogous, the reasoning in Glasscock v. Hamilton, *588 62 Tex. 143, 151, indicates the answer suggested above. There the court said: "It does not furnish a defense against contribution by a surety that his cosurety has paid a judgment against himself to which the surety against whom contribution is sought was not a party. In such case it has been held that the judgment is competent evidence to show the amount of the payment made by the plaintiff, and the circumstances under which it was made, but not for the purpose of proving the liability. Brandt on Suretyship, sec. 246, citing Fletcher v. Jackson, 23 Vt., 581. "A surety may pay without suit and demand contribution under proper circumstances; a fortiori he may pay what is justly due, and exact contribution where judgment has been rendered against him therefor, irrespective of whether his co-sureties are parties to the suit. The law requires no one to wait for a suit, if he has no defense. 1 Parsons' Con., 32. The essential equity of the surety asking contribution consists in the fact that he has paid so much of a debt for which he and his co-surety were bound that was just and enforceable at law against them both. In an action for contribution between co-sureties, the record of a judgment recovered by the creditor against the principal and one of the sureties, to which the other surety is not a party, is competent evidence to prove the rendition of such judgment, by way of inducement to evidence that the surety against whom it was rendered has paid it. Brandt on Suretyship, sec. 529; Presllar v. Stallworth, 37 Ala., 402. "The rule of law applicable to the subject is that, as soon as the debt becomes due, any one of several cosureties may, without suit or compulsion on him of any kind, at once pay the debt and recover contribution from his co-sureties. All the co-sureties are equally liable for the whole debt, and a payment of the debt by one of them after it is due and without compulsion is in no sense a voluntary payment * * *" See also 8 A.L.R. 2d 196 and A.L.R.2d Supplement Service 1962 page 133; 26 Texas Law Review 150, 168; Gulf, Colorado & Santa Fe Railway Co. v. Bliss, (Sup. Ct.), 368 S.W.2d 594, 599. In the same kind of a case as the original suit by Box et al v. Callihan our Supreme Court has held that where the acts of two or more joint tort-feasors join to produce an indivisible injury, which from its nature cannot be apportioned with reasonable certainty to individual wrongdoers, all of the wrongdoers are jointly and severally liable to the injured party for his entire damages and the injured party may proceed to judgment against any one or all of the joint tort-feasors. Landers v. East Texas Salt Water Disposal Company, 151 Tex. 251, 248 S.W.2d 731. See also Riley v. Industrial Finance Service Company, 157 Tex. 306, 302 S.W.2d 652; Gammage v. Weinberg, Tex.Civ.App., 355 S.W.2d 788, (Ref.N.R. E.); Burns v. Lamb, Tex.Civ.App., 312 S.W.2d 730, (Ref.N.R.E.) and Dement v. Olin-Mathieson Chemical Corp., 5 Cir., 282 F.2d 76, 82. If Box had a cause of action against both Callihan and Duffield upon which he could have recovered judgment (without proof of the amount each damaged him) for his entire damage against either or both and Callihan, by paying said agreed judgment, has discharged the liability of Duffield to Box, and the purpose of Article 2212 was to create a cause of action for the benefit of one of two joint tort-feasors who has thus discharged more than his share of their joint liability to the injured party, Callihan is entitled to recover the share of Duffield's liability to Box, if any, which it has discharged. See Merchants' National Bank v. McAnulty, 89 Tex. 124, 33 S.W. 963; Austin Road Co. v. Pope, 147 Tex. *589 430, 216 S.W.2d 563; The City of Houston v. Watson, Tex.Civ.App., 376 S.W.2d 23, 33, (Ref.N.R.E.). The judgment is reversed and the cause is remanded.
17 F.3d 395 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Rizalde Cuaderno MENDOZA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 93-70358. United States Court of Appeals, Ninth Circuit. Submitted Feb. 7, 1994.*Decided Feb. 10, 1994. Before: SCHROEDER, CANBY, and WIGGINS, Circuit Judges. 1 MEMORANDUM** 2 Rizalde Cuaderno Joselino Mendoza, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal for lack of jurisdiction of Mendoza's motion for reinstatement of his voluntary departure period. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a), and we deny the petition for review as moot. 3 Mootness is a threshold issue. See Williams v. INS, 795 F.2d 738, 741 (9th Cir.1986). Because mootness is an element of justiciability, this court has a duty to consider it sua sponte. Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir.1983). If the reviewing court can no longer grant effective relief, then a case is moot. See Mafnas v. Superior Court, 936 F.2d 1068, 1071 (9th Cir.1991). 4 Here, the subject of Mendoza's petition for review is the BIA's refusal to consider his motion for reinstatement of his voluntary departure. Mendoza brought the motion after this court's November 27, 1992 order granting his motion for voluntary dismissal of an earlier petition for review and denying without prejudice his request for reinstatement of voluntary departure. On January 28, 1994, this court withdrew the November 27, 1992 order and mandate. See Mendoza v. INS, No. 92-70367, Order (9th Cir. Jan. 28, 1994). Our January 28, 1994 order provides Mendoza with a thirty-day voluntary departure period from the date this court's new mandate issues. See id. 5 Because Mendoza has obtained the relief he sought in his motion before the BIA, his petition for review of the BIA's dismissal is denied as moot.1 See Mafnas, 936 [email protected]. 6 PETITION FOR REVIEW IS DENIED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 We previously have stated that "a continuing dispute as to jurisdiction is sufficient to prevent a finding of mootness." See Williams, 795 F.2d at 741-42 (continuing jurisdictional dispute because although appellee obtained permanent resident alien status, government still sought deportation); see also Brown v. Board of Bar Examiners, 623 F.2d 605, 609 (9th Cir.1980) (continuing jurisdictional dispute because although appellee obtained the equitable relief she sought, such relief was only "a necessary first step towards a larger goal"). Here, the sole relief that Mendoza sought from the BIA was a reinstatement of his voluntary departure period, and he now has obtained that relief. We, therefore, conclude that there is no continuing dispute as to jurisdiction in this case. See Williams, 795 F.2d at 741
Exhibit 10.3 REVOLVING LINE OF CREDIT NOTE   $3,000,000              Columbus, Ohio              March 24, 2011 FOR VALUE RECEIVED, the undersigned PINNACLE DATA SYSTEMS, INC. (“Borrower”) promises to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”) at its office at 325 John H. McConnell Blvd., Suite 300, Columbus, Ohio 43215, or at such other place as the holder hereof may designate, in lawful money of the United States of America and in immediately available funds, the principal sum of Three Million Dollars ($3,000,000), or so much thereof as may be advanced and be outstanding, with interest thereon, to be computed on each advance from the date of its disbursement as set forth herein. DEFINITIONS: As used herein, the following terms shall have the meanings set forth after each, and any other term defined in this Revolving Line of Credit Note (this “Note”) shall have the meaning set forth at the place defined: (a) “Business Day” means any day except a Saturday, Sunday or any other day on which commercial banks in Ohio are authorized or required by law to close. (b) “Daily One Month LIBOR” means for any day, the rate of interest equal to LIBOR then in effect for delivery for a one (1) month period. (c) “LIBOR” means the rate per annum (rounded upward, if necessary, to the nearest whole  1/8 of 1%) and determined pursuant to the following formula:     LIBOR =    Base LIBOR         100% - LIBOR Reserve Percentage    (i) “Base LIBOR” means the rate per annum for United States dollar deposits quoted by Bank for the purpose of calculating effective rates of interest for loans making reference to the Daily One Month LIBOR Rate, as the Inter-Bank Market Offered Rate in effect from time to time for delivery of funds for one (1) month in amounts approximately equal to the principal amount of such loans. Borrower understands and agrees that Bank may base its quotation of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Bank in its discretion deems appropriate, including but not limited to the rate offered for U.S. dollar deposits on the London Inter-Bank Market. (ii) “LIBOR Reserve Percentage” means the reserve percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities” (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for expected changes in such reserve percentage during the applicable term of this Note. -------------------------------------------------------------------------------- INTEREST: (a) Interest. The outstanding principal balance of this Note shall bear interest (computed on the basis of a 360-day year, actual days elapsed) at a fluctuating rate per annum determined by Bank to be three percent (3%) above the Daily One Month LIBOR Rate in effect from time to time. Each change in the interest rate shall become effective each Business Day that the Bank determines that the Daily One Month LIBOR Rate has changed. Bank is hereby authorized to note the date, principal amount and interest rate applicable thereto and any payments made thereon on Bank’s books and records (either manually or by electronic entry) and/or on any schedule attached to this Note, which notations shall be prima facie evidence of the accuracy of the information noted. (b) Taxes and Regulatory Costs. Borrower shall pay to Bank promptly upon demand, in addition to any other amounts due or to become due hereunder, any and all (i) withholdings, interest equalization taxes, stamp taxes or other taxes (except income and franchise taxes) imposed by any domestic or foreign governmental authority and related in any manner to LIBOR, and (ii) future, supplemental, emergency or other changes in the LIBOR Reserve Percentage, assessment rates imposed by the Federal Deposit Insurance Corporation, or similar requirements or costs imposed by any domestic or foreign governmental authority or resulting from compliance by Bank with any request or directive (whether or not having the force of law) from any central bank or other governmental authority and related in any manner to LIBOR to the extent they are not included in the calculation of LIBOR. In determining which of the foregoing are attributable to any LIBOR option available to Borrower hereunder, any reasonable allocation made by Bank among its operations shall be conclusive and binding upon Borrower. (c) Payment of Interest. Interest accrued on this Note shall be payable on the first day of each month, commencing May 1, 2011. (d) Default Interest. From and after the maturity date of this Note, or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Bank’s option upon the occurrence, and during the continuance of an Event of Default, the outstanding principal balance of this Note shall bear interest at an increased rate per annum (computed on the basis of a 360-day year, actual days elapsed) equal to four percent (4%) above the rate of interest from time to time applicable to this Note. BORROWING AND REPAYMENT: (a) Borrowing and Repayment. Borrower may from time to time during the term of this Note borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the limitations, terms and conditions of this Note and of any document executed in connection with or governing this Note, including without limitation that certain Credit Agreement between Borrower and Bank dated as of even date herewith, as amended in writing from time to time (the “Credit Agreement”); provided however, that the total outstanding borrowings under this Note shall not at any time exceed the principal amount stated above. The unpaid principal balance of this obligation at any time shall be the total amounts advanced hereunder by the holder hereof less the amount of principal payments made hereon by or for Borrower, which balance may be endorsed hereon from time to time by the holder. The outstanding principal balance of this Note shall be due and payable in full on March 24, 2013.   -2- -------------------------------------------------------------------------------- (b) Advances. Advances hereunder, to the total amount of the principal sum stated above, may be made by the holder (i) pursuant to the terms of any cash management or related written agreement between Bank and Borrower, or (ii) at the oral or written request of (A) John D. Bair as CEO of Borrower or Nicholas J. Tomashot as CFO of Borrower, either one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the holder at the office designated above, or (B) any person, with respect to advances deposited to the credit of any deposit account of Borrower, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of Borrower regardless of the fact that persons other than those authorized to request advances may have authority to draw against such account. The holder shall have no obligation to determine whether any person requesting an advance is or has been authorized by Borrower. (c) Application of Payments. Each payment made on this Note shall be credited first, to any interest then due and second, to the outstanding principal balance hereof. PREPAYMENT: Borrower may prepay principal on any portion of this Note which bears interest determined in relation to the Daily One Month LIBOR Rate at any time, in any amount and without penalty. EVENTS OF DEFAULT: This Note is made pursuant to and is subject to the terms and conditions of the Credit Agreement. Any default in the payment or performance of any obligation under this Note which continues beyond any applicable grace or cure period, or any defined Event of Default under the Credit Agreement, shall constitute an “Event of Default” under this Note. MISCELLANEOUS: (a) Remedies. Upon the occurrence of any Event of Default, the holder of this Note, at the holder’s option, may declare all sums of principal and interest outstanding hereunder to be immediately due and payable without presentment, demand, notice of nonperformance, notice of protest, protest or notice of dishonor, all of which are expressly waived by Borrower, and the obligation, if any, of the holder to extend any further credit hereunder shall immediately cease and terminate. Borrower shall pay to the holder immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of the holder’s in-house counsel), expended or incurred by the holder in connection with the enforcement of the holder’s rights and/or the collection of any amounts which become due to the holder under this Note, and the prosecution or defense of any action in any way related to this Note, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in an arbitration proceeding   -3- -------------------------------------------------------------------------------- or otherwise, and including any of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by Bank or any other person) relating to Borrower or any other person or entity. (b) Obligations Joint and Several. Should more than one person or entity sign this Note as a Borrower, the obligations of each such Borrower shall be joint and several. (c) Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Ohio. IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.   PINNACLE DATA SYSTEMS, INC. By:   /s/ Nicholas J. Tomashot   Nicholas J. Tomashot, Chief Financial Officer   -4-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) þ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2011 or o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Verso Paper Corp. (Exact name of registrant as specified in its charter) Delaware 001-34054-64-2636389 (State of Incorporation or Organization) (Commission File Number) (IRS Employer Identification Number) Verso Paper Holdings LLC (Exact name of registrant as specified in its charter) Delaware 333-142054-64-2636634 (State of Incorporation or Organization) (Commission File Number) (IRS Employer Identification Number) 6775 Lenox Center Court, Suite 400 Memphis, Tennessee 38115-4436 (Address, including zip code, of principal executive offices) 218-708-1700 (Registrants’ telephone number, including area code) Indicate by check mark whether the registrant: (1)has filed all reports required to be filed by Section13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90days. Verso Paper Corp. þYes o No Verso Paper Holdings LLC þYes o No Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Verso Paper Corp. þYes o No Verso Paper Holdings LLC þYes o No Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act: Verso Paper Corp. Large accelerated filer o Accelerated filer o
Exhibit (a)(1)(v) Forms of Letters from the Fund to Investors in Connection with Acceptance of Offers of Tender CPG Carlyle Private Equity Fund, LLC This letter is being sent to you if you tendered Units of the Fund. Dear Investor: CPG Carlyle Private Equity Fund, LLC (the "Fund") has received and accepted your tender request. Because you tendered units of beneficial interest of the Fund ("Units"), a promissory note is being held on your behalf by the Fund's Administrator, UMB Fund Services, Inc. ("UMB"), as payment of your tender proceeds.Unless the tender offer has been oversubscribed, the promissory note, in the amount of 100% of the amount requested, will be paid as cash becomes available to the Fund, and is expected to be paid, in one or more installments, in full within 60 days after September 30, 2015. In the event that it is later determined, subsequent to the tender offer's valuation date of September 30, 2015, that the tender offer was oversubscribed, the amount of the promissory note issued to you may be reduced in accordance with the terms of the Offer to Purchase to reflect your proportional share of the aggregate tender offer amounts payable by the Fund.In that case, you will remain an investor in the Fund with respect to your Units that are not purchased. Payments of cash in respect of the promissory note will be wired directly into the account you have designated.If you did not provide account information, the cash payments will be mailed in the form of a check directly to you at your mailing address as listed in the Fund's records, unless you have advised the Fund in writing of a change in your mailing address. The Fund generally will be required to report to the Internal Revenue Service and furnish to you the cost basis and holding period for Units repurchased from you by the Fund.The Fund has elected the average cost method as the default cost basis method for purposes of this requirement.If you wish to accept the average cost method as your default cost basis calculation method in respect of Units in your account, you do not need to take any additional action.If, however, you wish to affirmatively elect an alternative cost basis calculation method in respect of your Units, you must contact UMB to obtain and complete a cost basis election form. Should you have any questions, please feel free to contact the Fund at (263)521-8153. Sincerely, CPG Carlyle Private Equity Fund, LLC CPG Carlyle Private Equity Fund, LLC This letter is being sent to you if you tendered Units of the Fund – Payment of Cash Amount. Dear Investor: Enclosed is a statement showing the breakdown of your withdrawal resulting from the repurchase of the requested units of beneficial interest ("Units") of CPG Carlyle Private Equity Fund, LLC (the "Fund"). Because you tendered Units of the Fund, you have previously been issued a promissory note entitling you to receive 100% of the repurchase price [(as adjusted for proration caused by oversubscription of the tender offer)] based on the net asset value of the Fund, determined as of September 30, 2015, in accordance with the terms of the tender offer.A cash payment of [approximately] []% of the repurchase price is being wired directly into the account you have designated.If you did not provide account information, the cash payment is enclosed in the form of a check.[Any balance remaining on the promissory note will be paid in one or more additional installments as soon as practicable hereafter.] Should you have any questions, please feel free to contact the Fund at (263)521-8153. Sincerely, CPG Carlyle Private Equity Fund, LLC Enclosure
Case: 19-11394 Date Filed: 03/13/2020 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-11394 Non-Argument Calendar ________________________ D.C. Docket No. 1:18-cr-20760-CMA-1 UNITED STATES OF AMERICA, Plaintiff–Appellee, versus ISAIAH MEME, Defendant–Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (March 13, 2020) Before BRANCH, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: Case: 19-11394 Date Filed: 03/13/2020 Page: 2 of 12 Isaiah Meme was convicted of access device fraud, in violation of 18 U.S.C. § 1029(a)(2); aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1); and possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3). He appeals these convictions. On appeal, Meme argues that there was insufficient evidence to support his convictions. For the reasons that follow, we affirm Meme’s convictions. BACKGROUND Because Meme appeals his conviction, specifically arguing that the evidence was insufficient to support a conviction, we review the evidence that was presented at trial in some detail. Isaiah Meme was indicted on September 18, 2018, in a multiple-count indictment alleging 1 count of access device fraud, in violation of 18 U.S.C. §1029(a)(2) (Count 1); 6 counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 2–5, 7–8); and 1 count of possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 6). On the second day of trial, the district court granted the government’s motion to dismiss Counts 2 and 3 on the grounds that Meme may have been a minor when the offenses were committed. Testimony at trial revealed the following. Robert Novakowski, an investigator with JPMorgan Chase Bank, was investigating compromised debit cards following customer complaints. Novakowski received a list of compromised 2 Case: 19-11394 Date Filed: 03/13/2020 Page: 3 of 12 debit cards and a list of transactions for those cards and obtained video surveillance of the person making the transactions. He testified that images captured on drive- up ATM cameras showed that Meme was making transactions with cards belonging to other people and with counterfeit payment cards. Some of those images showed Meme making transactions while driving a black Ford Mustang with a bumper sticker. Novakowski sought the assistance of law enforcement in identifying the person in the videos and images, and U.S. Secret Service Agent Sterling Posten identified that person as Meme. Novakowski conceded that he could not see the eye shape or eye color of the person in the images, but that the person had the same face as Meme and that he independently reviewed all photos and videos and, in so doing, was able to identify Meme as the person making the transactions. Secret Service Agent Greg Narano testified that the Secret Service had obtained surveillance of people conducting unauthorized ATM withdrawals, one of whom was Meme. Accordingly, the Secret Service set up surveillance on several ATMs in an attempt to locate a black Mustang that was connected to some of these unauthorized withdrawals. While conducting surveillance, Narano saw a person driving a black Mustang with a bumper sticker use an ATM. Narano maintained surveillance, identified the person in the car as Meme, and took several photos of him. He followed Meme to Meme’s father’s house and continued his surveillance. 3 Case: 19-11394 Date Filed: 03/13/2020 Page: 4 of 12 Narano conceded in cross-examination that the Mustang was not registered in Meme’s name, that Meme’s father owned the house, and that, based on his surveillance at the ATM, he was unable to determine the build of the person in the car or whether that person had facial hair. On redirect, he emphasized that he was able to identify the person in the Mustang as Meme because he had an unobstructed view of Meme’s face at one point. Secret Service Agent Ken Adams testified to the following. He, like Narano, was assigned to conduct surveillance at a Chase Bank ATM, saw a black Mustang pull up to the ATM, watched the driver commit a fraudulent transaction, identified the driver as Meme, and followed Meme to Meme’s father’s house. He also participated in Meme’s arrest, after which he recovered two cell phones from the Mustang. On cross-examination, Adams conceded that there were no debit cards, credit cards, or large amounts of cash in the car when Meme was arrested. Agent Posten then testified. He executed a search warrant of Meme’s father’s house and in one bedroom, recovered five plastic cards, a laptop, a firearm-training certificate in Meme’s name, several pieces of unopened mail, and high school textbooks. Accordingly, Posten concluded that the bedroom belonged to Meme. In a room that he concluded belonged to Meme’s brother, he recovered a plastic card, a personal check not belonging to anybody living in the house, a 4 Case: 19-11394 Date Filed: 03/13/2020 Page: 5 of 12 money order, and a re-encoded plastic card.1 In the living room of the house, Posten found a vehicle title belonging to Meme and traffic citations issued to Meme. He also found other pieces of mail, like bank records, that did not belong to anyone in the house—which he concluded was an indication of fraud taking place in the house. Posten conceded that the Mustang was a rental vehicle that was not rented by Meme; that according to the Florida Department of Highway Safety and Motor Vehicles, Meme did not live with his father; and that none of the cards in Meme’s bedroom had been re-encoded. Secret Service Agents Marcos Morales and Allen Thomasson testified that they had analyzed the phones recovered during Meme’s arrest. Morales discovered that one of the phones was registered to a user identified as “MasonM1267.” Thomasson’s analysis of the text messages in the phones revealed that one of the phones had received text messages that identified the recipient (and thus, the phone owner) as Meme. He also reviewed the email account on the phone and discovered several emails received by an account belonging to “MasonM1267” and several emails containing credit and debit card 1 In this context, re-encoding a plastic card serves to change the data on the card—in other words, from what source the card pulled funds or registered transactions—so that it no longer matched the information embossed on the card, e.g., the name or displayed number. See, e.g., United States v. Cruz, 713 F.3d 600, 608 (11th Cir. 2013) (discussing re-encoding credit and debit cards). Re- encoding cards is frequently charged as a violation of section 1029(a)(3), which prohibits the knowing, and with intent to defraud, possession of “devices which are counterfeit or unauthorized access devices.” E.g., United States v. Grimon, 923 F.3d 1302, 1306–1307 (11th Cir. 2019) (citing 18 U.S.C. § 1029(a)(3). 5 Case: 19-11394 Date Filed: 03/13/2020 Page: 6 of 12 numbers. Thomasson also found data on the phone showing that the phone’s owner had visited commercial background search websites (which are frequently used for identity theft and fraud) and disposable email service websites. On the other phone, Thomasson also found information that identified Meme as the account owner—the phone had sent a picture of Meme’s driver’s license and the received texts referred to the phone’s owner as Meme. He also discovered pictures of the Mustang, email accounts registered to “MasonM1267,” debit card numbers and personal identification numbers, and correspondence relating to purchasing debit card numbers and PINs on the phone, and that the phone had visited commercial background search websites and websites for selling stolen card numbers. Thomasson also testified that he analyzed the laptop recovered from what Posten had identified as Meme’s room. He discovered that the computer’s user account was “MasonM1627.” He also found credit card and debit card numbers, the card-owners’ personal information, software used to read and encode magnetic strips in cards, software used to read and encode card microchips, bank identification numbers, and bank routing numbers on the computer. All told, Thomasson estimated that hundreds of individuals’ personal information and 120 different debit and credit card numbers were on Meme’s laptop. He also discovered that the user of the laptop had visited websites selling credit card 6 Case: 19-11394 Date Filed: 03/13/2020 Page: 7 of 12 numbers and commercial background search websites. On cross-examination, he conceded that he could not tell whether someone other than Meme had used the laptop and phones. After the government rested its case, Meme moved for a judgment of acquittal. He argued that the government had failed to prove the existence of some of the victims named in the indictment, venue was improper, and some of the alleged criminal acts occurred while he was a minor. The district court denied Meme’s motion. Meme’s case solely consisted of calling his stepmother, Willaine Amedee, who testified that Meme had never lived in his father’s house or kept any belongings in the house. Meme rested, and then renewed his motion for a judgment of acquittal based on insufficient evidence. The district court again denied his motion. The jury found Meme guilty of Counts 1 and 4–8. The district court sentenced Meme to a 39-month prison term, which consisted of 15-month concurrent sentences on Counts 1 and 6 and a 24-month sentence on Counts 4–5 and 7–8. Meme timely appealed to us. ANALYSIS On appeal, Meme argues that the evidence was insufficient to support his conviction. We review the sufficiency of the evidence de novo, “viewing the 7 Case: 19-11394 Date Filed: 03/13/2020 Page: 8 of 12 evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the verdict.” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir. 2006). The district court’s denial of “motions for a judgment of acquittal will be upheld if a reasonable trier of fact could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). “[T]he issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt,” so we will not reverse a conviction solely because the defendant “put forth a reasonable hypothesis of innocence” at trial. United States v. Campo, 840 F.3d 1249, 1258 (11th Cir. 2016) (quotation omitted). We are bound by a jury’s “rejection of the inferences raised by the defendant.” United States v. Hernandez, 433 F.3d 1328, 1334–35 (11th Cir. 2005). Furthermore, we consider all evidence produced at trial against the defendant in evaluating his claim of insufficient evidence. United States v. Thomas, 8 F.3d 1552, 1558 n.12 (11th Cir. 1993). An individual is guilty of access device fraud when he “knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period.” 18 U.S.C. § 1029(a)(2). An individual is guilty of possession of 15 or more unauthorized access devices if he possesses such 8 Case: 19-11394 Date Filed: 03/13/2020 Page: 9 of 12 devices knowingly and with intent to defraud. Id. § 1029(a)(3). An individual is guilty of aggravated identity theft when he “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” during a felony violation of, among other things, “any provision contained in this chapter” relating to fraud. Id. §§ 1028A(a)(1), (c)(4). An “‘access device’ means any card, . . . account number, electronic serial number, . . . personal identification number, . . . or other means of account access that can be used, alone or in conjunction with another access device, to obtain money . . . or that can be used to initiate a transfer of funds.” Id. § 1029(e)(1). An “‘unauthorized access’ device means any access device that is lost, stolen, . . . or obtained with intent to defraud.” Id. § 1029(e)(3). We read Meme’s arguments on appeal as essentially arguing for a more favorable inference of the facts. He argues that fraud was taking place at his father’s house (but he was not a part of it), that the Secret Service agents could not identify who used the phones or computer, that the ATM surveillance photos were poor-quality and did not lend themselves to identification, that no one described the physical characteristics of the person who was using the access devices, that Novakowski’s identification of him was tainted, and that no counterfeit access devices were found in his “actual or constructive possession.” These arguments are unavailing. These arguments echo what Meme argued at trial—both to the district court and to the jury in his arguments for acquittal— 9 Case: 19-11394 Date Filed: 03/13/2020 Page: 10 of 12 and the jury was entitled to reject those arguments and draw a different inference. We are not able to revisit the inference that the jury drew. Hernandez, 433 F.3d at 1334–35. In any event, we conclude that the evidence at trial was sufficient to support Meme’s conviction for two reasons: (1) the phone and laptop evidence showed that Meme was committing access device fraud and (2) Meme was identified as the person committing access device fraud. We address each in turn. First, the testimony at trial clearly showed—although somewhat circumstantially—that Meme was committing access device fraud. With regard to the phones, the agents testified that Meme visited commercial background search websites and websites where he could purchase stolen card numbers, had stolen card numbers stored on his phones, and had correspondence relating to his purchase thereof. The agents found similar evidence on Meme’s laptop. Meme does not, and cannot, seriously contest the evidence found on both devices—and so he instead suggests that other people were using the devices. We wholly reject this argument, because it requires us to substitute the jury’s reasonable inference based on the evidence presented at trial for an unreasonable inference that happens to be more favorable to Meme. We think it is clear that the devices both belonged to, and were used by, Meme. Contrary to Meme’s argument, the phones were found in his “actual or constructive possession,” i.e., the car he was driving at the time he was arrested. And while the laptop was found 10 Case: 19-11394 Date Filed: 03/13/2020 Page: 11 of 12 in a room that Agent Posten had merely identified as Meme’s room, the evidence certainly supports an inference that the room was Meme’s. His argument that he did not live in the house, and thus that the room was not his, is strongly contradicted by the extent to which his belongings were found both in the room and elsewhere in the house. It is not likely that Meme’s firearm-training certificate, vehicle title, and traffic citations would be in a house where he did not live. Finally, we find it significant that the user account on Meme’s laptop was identical to the username of the email accounts on Meme’s phones. Second, Meme was identified as the person committing identity fraud. Though it is true that Novakowski’s identification was at least partially predicated on Agent Posten’s suggestion, we note that he testified that he independently reviewed all of the videos and images of the fraudulent ATM transactions and he provided an in-court identification of Meme. As we have explained previously, “[a]n in-court identification, even if preceded by a suggestive out-of-court identification procedure, is nevertheless admissible if the in-court identification has an independent source.” United States v. Cannington, 729 F.2d 702, 711 (11th Cir. 1984). But even if we concluded that Novakowski’s identification of Meme was impermissible, we note that there are two additional—and more persuasive— witnesses who identified Meme. Both Agents Adams and Narano identified Meme 11 Case: 19-11394 Date Filed: 03/13/2020 Page: 12 of 12 as the person in the black Mustang who made fraudulent transactions at an ATM. Their identification is significant—both were surveilling him and followed him to his father’s house, and Adams participated in Meme’s arrest. Accordingly, we conclude that the evidence was sufficient to support Meme’s conviction. The evidence as to the devices—both the phones in Meme’s constructive possession at the time of his arrest and the laptop that was clearly Meme’s—is persuasive evidence of Meme’s fraud. And the identification of Meme, especially the eyewitness testimony of Secret Service agents who saw Meme committing access device fraud, is even more persuasive. We reject Meme’s arguments to the contrary. AFFIRMED. 12
Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing EXHIBIT (j) CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Post-Effective Amendment No. 136 to Registration Statement No. 02-90946 on Form N-1A of our reports dated December 14, 2007, relating to the financial statements and financial highlights of Eaton Vance Mutual Funds Trust (the "Trust"), including Eaton Vance Tax-Managed International Equity Fund and Tax-Managed International Equity Portfolio appearing in the Annual Report on Form N-CSR of the Trust for the year ended October 31, 2007, and to the references to us under the headings "Financial Highlights" in the Prospectus and "Other Service Providers-Independent Registered Public Accounting Firm" inthe Statement of Additional Information, which are part of such Registration Statement. /s/ Deloitte & Touche LLP Boston, Massachusetts August 28, 2008
Case 2:20-cv-00659-DSF-PJW Document 62 Filed 06/19/20 Page 1 of 1 Page ID #:401 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV20-00659-DSF(PJWx) Date June 19, 2020 Title Washington Federal Bank v. Mark Gerold, et al. Present: The PATRICK J. WALSH, U.S. MAGISTRATE JUDGE Honorable Erica Valencia Recorder 6/19/20 Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiff: Attorneys Present for Defendants: James Ramos Joshua D. Stadtler Lori Herbst, Pro Se Proceedings: Telephonic Settlement Conference The case is called and appearances are made. The parties and their lawyers met with Magistrate Judge Walsh. The parties are unable to reach a settlement of the case. 5 : 00 Initials of Preparer ev CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 1
471 F. Supp. 446 (1979) Eldridge BERRY, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant. Civ. A. No. 77-C-298. United States District Court, E. D. Wisconsin. June 13, 1979. *447 Michael F. Hupy, Milwaukee, Wis. and Allan F. Glasschroeder, Milwaukee, Wis., for plaintiff. Joan F. Kessler, U.S. Atty. by James M. Fergal, Asst. U.S. Atty., Milwaukee, Wis., for defendant. ORDER REYNOLDS, District Judge. This is an action for judicial review of a final decision of the defendant Secretary of Health, Education and Welfare simultaneously denying plaintiff's application for disability insurance benefits pursuant to Title II, §§ 216(i) and 223 of the Social Security Act, 42 U.S.C. § 416(i), 42 U.S.C. § 423, and for Supplemental Security Income ("SSI") pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. The disability provisions of the Act allow for the payment of disability insurance benefits to those claimants who establish the inability to engage in any substantial gainful activity. The SSI provisions of the Act establish a federal program for the aged, blind, and disabled. Plaintiff filed an application for disability insurance benefits on June 12, 1975, which application was denied. On August 8, 1975, plaintiff requested reconsideration of the denial. Prior to a decision on the reconsideration, plaintiff filed an application for SSI on November 20, 1975. Both applications were denied on reconsideration by the Bureau of Disability Insurance upon evaluation of the evidence by a physician and a disability examiner from the Wisconsin Department of Health and Social Services. An Administrative Law Judge considered the case de novo and on August 9, 1976, found that plaintiff who appeared pro se was not under a disability. The decision of the Administrative Law Judge became the final decision of the Secretary of Health, Education and Welfare when the Appeals Council approved it on March 25, 1977. Next plaintiff obtained the services of an attorney and filed this action for judicial review of the decision of the Secretary. Defendant Secretary has filed a motion for summary judgment affirming his denial of benefits. For the reasons stated below, that motion will be denied and the case will be remanded to the Secretary for rehearing. The law provides that to qualify for disability insurance benefits under §§ 216(i) and 223 of the Social Security Act, an individual must meet the insured status requirements of these sections, be under age 65, file an application for disability insurance benefits, and be under a disability as defined in 42 U.S.C. § 423(d)(1)(A), which provides: "(d)(1) The term `disability' means — "(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; * * *." In order to qualify for SSI benefits on the basis of disability under 42 U.S.C. § 1381a, a person must file an application for benefits based on disability and must be an "eligible individual" as defined in that Act. An "eligible individual" must be disabled as defined in 42 U.S.C. § 1382c(a), essentially the same definition as quoted above. Plaintiff has the burden to establish his entitlement to disability insurance benefits under the Social Security Act. Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971). Ordinarily, the issue on judicial review, then, is whether there is a sufficient basis in the administrative record for the Administrative Law Judge to decide that plaintiff did not meet his burden in establishing a disability. The facts show that plaintiff has a sixth grade education and last worked as a janitor. He alleges that he became unable to work on May 25, 1975, because of a fractured skull, arm trouble, and farsightedness. Benefits were denied on the grounds that the evidence established that plaintiff's impairments were not severe enough for any period of twelve continuous months to prevent his performing light and sedentary work. *448 While some evidence exists in the record to support the Secretary's decision, this Court is nevertheless troubled by the fact that plaintiff was unrepresented by an attorney at the hearing. In the brief in opposition to the motion for summary judgment, plaintiff, who is now represented by counsel, asserts that several medical facts were ignored or downplayed at the hearing, including an elbow operation and subjective pain. Because it is highly questionable whether the claimant was able to adequately present his case pro se to the Administrative Law Judge, the case will be remanded to the defendant Secretary for rehearing for the reasons set forth herein and in this Court's decision in Pinkowski v. Secretary of Health, Education and Welfare, 472 F. Supp. 318 (E.D.Wis., May 24, 1979), a copy of which is attached hereto. IT IS THEREFORE ORDERED that this case is remanded to the Secretary of Health, Education and Welfare for rehearing.
EXHIBIT 10.1 FORBEARANCE AGREEMENT AND NOTICE OF CONTINUING DEFAULT (NOTICE - CONTAINS A WAIVER OF TRIAL BY JURY) This Forbearance Agreement and Notice of Continuing Default by and between PC Universe, Inc. ("Customer") and IBM Credit LLC ("IBM Credit") is dated August 29, 2008 (the "Forbearance Agreement"). WITNESSETH: WHEREAS, Customer and IBM Credit have entered into that certain Agreement for Wholesale Financing dated as of November 1, 2007 (as amended, supplemented or otherwise modified from time to time, the "Financing Agreement"); and all loans made by IBM Credit to the Customer, and all other liabilities and obligations at any time owing by the Customer to IBM Credit are secured by security interests granted by the Customer to IBM Credit pursuant to the terms of the Financing Agreement in all of the Customer's then existing and thereafter acquired inventory, equipment, accounts receivables, chattel paper, contract rights, documents, instruments, general intangibles and other items of personal property described in the Financing Agreement; WHEREAS, certain Events of Default (as defined in the Financing Agreement) have occurred and are continuing; WHEREAS, the Customer requests that IBM Credit forbear from exercising certain remedies available to IBM Credit under the Financing Agreement as a consequence of the Customer's defaults in order to afford the Customer an opportunity to reorganize its affairs and to pay the indebtedness owing to IBM Credit under the terms of the Financing Agreement and this Forbearance Agreement; WHEREAS, IBM Credit previously delivered to PC Universe a Notice of Event of Default, dated March 20, 2008 and a Line Reduction Letter, dated April 2, 2008 and other default notices (collectively the “Default Notices”); WHEREAS, IBM Credit has agreed to forbear from exercising those certain remedies available under the Financing Agreement pursuant to the terms and conditions of this Forbearance Agreement. NOW, THEREFORE, in consideration of the foregoing and the promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Customer, and IBM Credit agree as follows: Section 1. Capitalized Terms.  All capitalized terms not herein defined shall have the meaning set forth in the Financing Agreement. Section 2. Customer Acknowledgement.   (A) Customer acknowledges that the Default Notices accurately set forth that the Customer is in Default of certain of its Obligations to IBM Credit under the Financing Agreement.   (B) Customer acknowledges in particular that the Financing Agreements contain the following covenant requirements and, as indicated in Customer’s Form 10-Q filed with the Securities Exchange Commission for the quarter ended June 30, 2008, the Customer acknowledges that it is in default of such covenants due to Customer’s level of achievement being only as follows: PC Universe draft Forbearance Page  1  of  10 08.28.08 -------------------------------------------------------------------------------- Covenant   Requirement   Achievement           Tangible New Worth (TNW)       $1 million (at least)       $145 thousand           Total Liabilities to TNW   5 to 1 (no more than)   21.8 to 1           Profit (AT) to Revenue   minus 1%  (no less than)   minus 5.8%           Current Assets to Current Liabilities   1.1 to 1   (at least)   .9 to 1   (C) Customer further acknowledges that the preceding Defaults described in (A) and (B) above have occurred under the Financing Agreement and are continuing. Section 3. Collection Costs and Expenses.  Customer reaffirms the terms of the Financing Agreement and agrees to reimburse IBM Credit for all collection costs and expenses including out of pocket costs of representatives of IBM Credit in connection with visits to Customer on August 26, 2008 through August 29, 2008, expenses of IBM Credit’s outside attorneys in connection with review of the Financing Agreement and advice to IBM Credit in connection with Customer’s defaults and any all other costs which IBM Credit may incur in connection with or arising out of the Defaults or any other current or future Event of Default and any bankruptcy filing by Customer or against Customer or other insolvency proceeding involving Customer.  IBM Credit agrees that the expenses of its representatives for visits to the Customer and of its counsel for review and advice for periods prior to August 30, 2008 shall not exceed $4000.   Section 4. Forbearance Conditions.  IBM Credit is willing to forbear, subject to the terms of this Forbearance Agreement, from exercising its remedies as a result of the Defaults for the period from the date hereof until October 15, 2008 ("Termination Date"), provided that each and all of the following conditions (the "Forbearance Conditions") are satisfied at all times to the satisfaction of IBM Credit in its sole discretion: (A) Effective immediately, the Credit Line is reduced to Nine Hundred Fifty Thousand Dollars ($950,000.00), and the Credit Line will terminate on October 15, 2008. (B) The Customer shall duly and punctually observe, perform and discharge each and every obligation and covenant to be performed under this Forbearance Agreement, the   Financing Agreement, and any other agreement between IBM Credit and the Customer; (C) Customer shall, at all times, maintain a minimum credit line availability of at least $65,000 computed on the same basis as are currently reported on Collateral Management Reports (CMR)  being submitted by Customer to IBM Credit; (D) Customer will submit CMR reports with all backups weekly with the first CMR being computed based on data as of the close of business on August 28, 2008 and will provide a complete copy of each of the CMR reports no later than noon the following business day. (E) Customer will immediately deposit all payments received from Patriot in the lockbox under the control of IBM Credit. (F) On or before September 5, 2008, Customer shall execute and deliver to IBM Credit the form of Voluntary Surrender Acknowledgement in the form attached hereto.  On or before the close of business on Friday, September 5, 2008, all inventory of Customer shall be removed from its premises and delivered to Suddath United Van Line for storage except such items of inventory which are to be returned for credit on a basis approved by IBM Credit.  Items in storage with Suddath United Van Lines may be released for shipment to the customers of Customer upon such terms and conditions as may be PC Universe draft Forbearance Page  2  of  10 08.28.08 -------------------------------------------------------------------------------- approved by IBM Credit in its own discretion.  In lieu of the removal of the inventory, Customer may establish an irrevocable letter of credit with a financial institution acceptable to IBM Credit in an amount not less than the amount of inventory included in the CMR computation. (G) Customer shall provide such detail as IBM Credit may request concerning the reasons for amounts to be included in working capital advances, including names, dates of work and other information for employees and others to be included in advances to cover payroll, details of monthly rent payments, and other detail for items to be funded from such advances. (H) Customer will be available during regular business hours to provide such financial and business information to IBM Credit and discuss developments affecting the financial accommodations provided by IBM Credit as IBM Credit may request.  In particular, Customer shall provide current information and documentation related to all financing, buyout, equity infusions and other similar matters as may come into the possession of Customer. (I) The financial accommodations provided to Customer by IBM Credit under the Financing Agreement as modified by this Forbearance Agreement will cease and terminate on October 15, 2008 unless earlier terminated under the Financing Agreements as modified by this Forbearance Agreement.  At the time of the termination, Customer shall pay all obligations then due IBM Credit.   (J) No representation or warranty made by the Customer in this Forbearance Agreement or the Financing Agreement, shall prove to have been in error, or untrue; (K) No additional Defaults or Event of Defaults shall occur, other than the existing events of Default referred to in this Forbearance Agreement; (L) There shall occur no further deterioration of Customer's financial position, insolvency or any other event that could reasonably be expected to have a material adverse effect, (i) on the business, operations, results of operations, assets or financial condition of the Customer, (ii) on the aggregate value of the collateral granted to IBM Credit in connection with the Financing Agreement or any Other Documents ("Collateral") or the aggregate amount which IBM Credit would be likely to receive (after giving consideration to reasonably likely delays in payment and reasonable costs of enforcement) in the liquidation of such Collateral to recover the Obligations in full, or (iii) on the rights and remedies of IBM Credit under this Forbearance Agreement, the Financing Agreement; (M) Customer shall not assign any of its rights, title and interest in and to the Collateral, to any other party; and (N) By no later than September 8, 2008, Customer shall provide detail as to application of the One-Hundred and Forty Seven Thousand Dollar ($147,000.00) payment transaction. The failure to comply with the foregoing covenants within the time frames set forth above shall constitute an immediate Event of Default under the Financing Agreement and a default hereunder. Section 5. No Liens, Etc.  The Customer shall not, and will not permit any of its Subsidiaries to, create, incur, assume, grant or suffer to exist any lien, claim, mortgage, security interest, attachment or other encumbrance of any kind, (whether consensual or arising by operation of law) upon any of its property, assets or revenues, whether now owned or hereafter acquired, except upon the prior written consent of IBM Credit. Section 6. Termination.   (A) IBM Credit may, at it sole discretion, declare all of Customer's Outstanding Advances under the Financing Agreement to be immediately due and payable and immediately terminate the Financing Agreement and this Forbearance Agreement. Customer's Outstanding Advances under the PC Universe draft Forbearance Page  3  of  10 08.28.08 -------------------------------------------------------------------------------- Financing Agreement will be due and payable on the Termination Date (unless due sooner according to its terms or pursuant to the provisions hereof). (B) In the event that any one or more of the Forbearance Conditions is not fulfilled to IBM Credit's satisfaction in its sole discretion, IBM Credit's agreement to forbear as set forth herein shall, at IBM Credit's election but without further notice to or demand upon the Customer, terminate, and IBM Credit shall thereupon have and may exercise from time to time all of the remedies available to it under the Financing Agreement, this Forbearance Agreement and applicable law as a consequence of the existing events of Default.  In addition and provided that the Forbearance Conditions continue to be fulfilled to the satisfaction of IBM Credit, the Financing Agreement shall terminate on the Termination Date unless terminated earlier in accordance herewith and in accordance with the Financing Agreement.  Upon the termination of the Financing Agreement, all of the Customer's Obligations shall be immediately due and payable in their entirety, even if they are not yet due under their terms, on the effective date of termination.  IBM Credit's rights under the Financing Agreement and IBM Credit's security interest in the Collateral shall continue after termination of the Financing Agreement until all Customer's Obligations to IBM Credit are indefeasibly paid in full.   Section 7.0 Miscellaneous 7.1 The execution, delivery and performance by the Customer of this Forbearance Agreement and the consummation of the transactions contemplated hereby are within the corporate power of the Customer, and have been duly authorized by all necessary corporate actions on the part of the Customer and do not result in a breach of or constitute a default under any agreement or instrument to which the Customer is a party or by which it or any of its properties are bound. 7.2 This Forbearance Agreement constitutes a legal, valid and binding obligation of Customer and each Guarantor, enforceable against the Customer and each Guarantor in accordance with its terms. 7.3 Each party is entering into this Forbearance Agreement freely and voluntarily with the advice of legal counsel of its own choosing. 7.4 Each party has freely and voluntarily agreed to the releases, waivers and undertakings set forth in this Forbearance Agreement. 7.5 Customer has not engaged in any fraudulent transfer of its assets. 7.6 Except as disclosed by Customer in writing, there is no litigation, proceeding, investigation or labor dispute pending or threatened against Customer. 7.7 Except as specifically provided in this Forbearance Agreement, there exist no promises or agreements by IBM Credit to: (i) provide additional funding or credit to Customer, (ii) extend the terms for repayment of any obligation or provide additional funding or credit to the Customer under the Financing Agreement (Customer acknowledging that, upon the occurrence of an Event of Default, IBM Credit shall be entitled to enforce in full the terms of repayment for any obligation as set forth in the Forbearance Agreement), or (iii) make any future advances or other financial accommodations to Customer. 7.8  Except as specifically amended hereby, all of the provisions of the Financing Agreement shall remain unamended and in full force and effect. Customer represents that its obligations under the Financing Agreement shall remain in full force and effect and are enforceable obligations not subject to any claims, offsets or defects. PC Universe draft Forbearance Page  4  of  10 08.28.08 -------------------------------------------------------------------------------- Section 8. Waiver of Limitations Period.  The Customer hereby severally waives the benefit of any statute of limitations that might otherwise bar the recovery of any of the obligations from any one or more of them. Section 9. Relationship of Parties; No Third Party Beneficiaries. Nothing in this Forbearance Agreement shall be construed to alter the existing debtor-creditor relationship between the Customer and IBM Credit.  Nor is this Forbearance Agreement intended to change or affect in any way the relationship between IBM Credit and each Guarantor to one other than a debtor-creditor relationship.  This Forbearance Agreement is not intended, nor shall it be construed to create, a partnership or joint venture relationship between or among any of the parties hereto.  No party, other than a party hereto is intended to be a beneficiary hereof, and no party other than a party hereto shall be authorized to rely upon the contents of this Forbearance Agreement. Section 10. Waivers and Consents.  Neither this Forbearance Agreement nor any provisions hereof may be waived, discharged or terminated, nor may any consent to the departure from the terms hereof be given, orally (even if supported by new consideration), but only by an instrument in writing signed by the party against whom enforcement of the change, waiver discharge or termination is sought.  Any waiver or consent so given shall be effective only in the specific instance and for the specific purpose for which given. Section 11. Entire Forbearance Agreement; Modification of Forbearance Agreement.  This Forbearance Agreement and the Financing Agreement constitute the entire understanding of the parties with respect to the subject made hereof and thereof.  This Forbearance Agreement may not be modified, altered or amended except by agreement in writing signed by all the parties hereto. Section 12. Governing Law.  This Forbearance Agreement and all transactions contemplated hereunder and/or evidenced hereby shall be governed by, construed under, and enforced in accordance with the laws which govern the Financing Agreement. Section 13. Nonwaiver of Default.  IBM Credit expects Customer to strictly adhere to the provisions of the Financing Agreement and to perform its Obligations thereunder accordingly. Any failure by Customer to comply with the provisions of the Financing Agreement or the terms herein may result in the immediate termination of the Financing Agreement. Neither this Forbearance Agreement nor IBM Credit's forbearance hereunder shall be deemed a waiver of or consent to the existing events of Default referenced in this Forbearance Agreement or any other default that may have occurred in addition to the Existing Events of Default or a course of dealing with respect to any default.  The Customer agrees that such existing events of Default, as referenced in this Forbearance Agreement, shall not be deemed to have been waived, released or cured by virtue of such loans or IBM Credit's agreement to forbear pursuant to the terms of this Forbearance Agreement or the execution of this Forbearance Agreement. IBM Credit retains all of its rights and remedies contained in this Forbearance Agreement, and the Financing Agreement, including the right to make immediate demand as a result of Customer's default as provided thereunder. Section 14. No Novation, etc.  This Forbearance Agreement is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and except as otherwise expressly stated herein, the Financing Agreement remains in full force and effect.  Notwithstanding any prior mutual temporary disregard of any of the terms of the Financing Agreement, the parties agree that the terms of the Financing Agreement shall be strictly adhered to on and after the date hereof except as expressly modified by this Forbearance Agreement. Section 15. Counterparts; Waivers of Notice of Acceptance.  This Forbearance Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall constitute an original, but all of which taken together shall be one and PC Universe draft Forbearance Page  5  of  10 08.28.08 -------------------------------------------------------------------------------- the same instrument.  In proving this Forbearance Agreement or the Financing Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.  Notice of IBM Credit's acceptance hereof is hereby waived. Section 16. JURY TRIAL WAIVER.  EACH OF IBM CREDIT, THE CUSTOMER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH IBM CREDIT, THE CUSTOMER AND THE GUARANTORS ARE PARTIES AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS FORBEARANCE AGREEMENT, THE FINANCING AGREEMENT, THE GUARANTY OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED IN CONNECTION HEREWITH. Section 17. RELEASE OF CLAIMS.  TO INDUCE IBM CREDIT TO ENTER INTO THIS FORBEARANCE AGREEMENT, THE CUSTOMER AND EACH OF THE GUARANTORS HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES IBM CREDIT AND IBM CREDIT'S OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS FROM ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTIONS OF ANY KIND (IF THERE BE ANY), OR ANY BASIS FOR INSTITUTING SUIT FOR LEGAL OR EQUITABLE RELIEF, WHETHER ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED OR UNDISPUTED, ANTICIPATED, LIQUIDATED OR UNLIQUIDATED, AT LAW OR IN EQUITY, THAT ANY ONE OR MORE OF THEM NOW HAVE OR EVER HAVE HAD AGAINST IBM CREDIT , AND IBM CREDIT'S OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, WHETHER ARISING UNDER OR IN CONNECTION WITH THE FINANCING AGREEMENT, THE ORIGINAL FORBEARANCE AGREEMENT, THIS FORBEARANCE AGREEMENT, THE GUARANTIES OR OTHERWISE. THIS RELEASE SHALL SURVIVE THE TERMINATION OF THIS FORBEARANCE AGREEMENT AND THE FINANCING AGREEMENT. Section 18. SUBMISSION AND CONSENT TO JURISDICTION.  TO INDUCE IBM CREDIT TO DELIVER THIS FORBEARANCE AGREEMENT, EACH OF THE CUSTOMER AND GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) SUBMITS ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS FORBEARANCE AGREEMENT, THE FINANCING AGREEMENT, THE GUARANTIES AND ANY OTHER DOCUMENT, OR FOR THE RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE NEW YORK AND ANY FEDERAL DISTRICT COURT IN NEW YORK. (B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREINAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME. (C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO CUSTOMER AND GUARANTOR AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF OR AT SUCH OTHER ADDRESS OF WHICH IBM CREDIT SHALL HAVE BEEN NOTIFIED IN WRITING. (D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION. PC Universe draft Forbearance Page  6  of  10 08.28.08 -------------------------------------------------------------------------------- Section 19. Relief from Stay.  Customer hereby agrees that in consideration of IBM Credits' forbearance of the exercise of its rights and remedies in accordance with the terms hereof, in the event Customer shall: (A) file with any bankruptcy court of competent jurisdiction or be the subject of any petition under Title 11 of the U.S. Code, as amended; (B) be the subject of any order for relief issued under such Title 11 of the U.S. Code, as amended; (C) file or be the subject of any petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state law relating to bankruptcy, insolvency, or other relief for debtors; (D) have sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator, or liquidator; or E) be the subject of any order, judgment, or decree entered by any court of competent jurisdiction approving a petition filed against such party for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act of law relating to bankruptcy, insolvency, or relief for debtors, IBM Credit shall thereupon be entitled to relief from the stay imposed by Section 362 of Title 11 of the U.S. Code, as amended, or otherwise, on or against the exercise of the rights and remedies otherwise available to IBM Credit as provided in the Financing Agreement and this Forbearance Agreement and as otherwise provided by law. Section 20. Other Restrictions.  Customer agrees not to make distributions, loans, advances, contributions or payments of money or goods to any Affiliate, Subsidiary or parent company or any officer, director or stockholder of Customer or its Affiliates, Subsidiaries, or parent company. Customer shall continue to pay when due all amount under the Financing Agreement and to direct all payments by Customer's Account debtors to the Lockbox.  IBM Credit retains all of its rights and remedies contained in this Forbearance Agreement, the Financing Agreement , the right to make immediate demand as a result of Customer's Existing Defaults or any other Event of Default as provided thereunder. IBM Credit may exercise any and all rights and remedies of a secured party under the Uniform Commercial Code and any other rights and remedies it may have under applicable law.   THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK PC Universe draft Forbearance Page  7  of  10 08.28.08 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have read this entire Forbearance Agreement and have caused this Forbearance Agreement to be duly executed and delivered on the date first written above. PC Universe, Inc. ATTEST: By: /s/ Gary Stern /s/ Thomas M. Livia   (Secretary) Print Name: Gary Stern       Title: CEO (Corporate Seal)     Address: 504 NW 77th Street                Boca Raton, FL 33487   IBM CREDIT LLC   By:     /s/ Peter F. Brown   Print Name: Peter F. Brown   Title: Credit Manager PC Universe draft Forbearance Page  8  of  10 08.28.08 -------------------------------------------------------------------------------- Exhibit A VOLUNTARY SURRENDER City_____________________ State____________________ Date_____________, 200__ The undersigned customer hereby acknowledges that it is voluntarily surrendering to IBM Credit LLC (“IBM Credit") the goods listed on Schedule A attached hereto and that such Schedule is a complete and detailed list of all goods surrendered. Undersigned further acknowledges that IBM Credit has made no promise or representation of any kind, oral or written, for the surrender of the goods and that such surrender is made without relieving the undersigned of any obligations pursuant to any written agreements between it and IBM Credit. The undersigned hereby waives any right that it may have to notice of the sale of the repossessed goods. WITNESS: ______________________       (Name of Customer)         Name        By:________________________               Print Name:____________________               Title:________________________ PC Universe draft Forbearance Page  9  of  10 08.28.08 -------------------------------------------------------------------------------- VOLUNTARY SURRENDER City_____________________ State____________________ Date_____________, 200__ The undersigned customer hereby acknowledges that it is voluntarily surrendering to IBM Credit LLC (“IBM Credit") the goods listed on Schedule A attached hereto and that such Schedule is a complete and detailed list of all goods surrendered. Undersigned further acknowledges that IBM Credit has made no promise or representation of any kind, oral or written, for the surrender of the goods and that such surrender is made without relieving the undersigned of any obligations pursuant to any written agreements between it and IBM Credit. The undersigned hereby waives any right that it may have to notice of the sale of the repossessed goods. WITNESS: ______________________       (Name of Customer)         Name        By:________________________               Print Name:____________________               Title:________________________ PC Universe draft Forbearance Page  10  of  10 08.28.08
222 Cal. App. 3d 1450 (1990) 266 Cal. Rptr. 96 IRENE SIGALA et al., Plaintiffs and Appellants, v. STUART GOLDFARB, Defendant and Respondent. Docket No. B032085. Court of Appeals of California, Second District, Division Three. January 29, 1990. *1452 COUNSEL Countryman & McDaniel and David Junttila for Plaintiffs and Appellants. Hillsinger & Costanzo, Thomas E. Tootell and Bruce S. Bolger for Defendant and Respondent. OPINION KLEIN, P.J. Plaintiffs and appellants Irene Sigala, individually and as guardian ad litem for Ruben Joseph Sigala, Jr., Joe Kasper Sigala, Gilbert Mike Sigala, Louie Alfred Sigala and Virginia Irene Sigala (collectively, Sigala), appeal a judgment entered following a jury verdict in favor of defendant and respondent Stuart Goldfarb, M.D. (Goldfarb). The sole issue presented is whether the trial court properly granted Goldfarb's pretrial motion to preclude any testimony by one of Sigala's proffered expert witnesses, John G. West, M.D. (West), on the ground West lacked the necessary qualifications. The trial court's ruling was correct because West was not qualified within the meaning of Health and Safety Code section 1799.110 (section 1799.110), which allows expert medical testimony only from physicians who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. The judgment therefore is affirmed.[1] FACTUAL AND PROCEDURAL BACKGROUND On November 14, 1981, Ruben Joseph Sigala (hereafter, the decedent) was struck by an automobile while crossing Figueroa Street. Paramedics transported the decedent to Glendale Adventist Medical Center, where he was examined by Goldfarb. Following the examination, the decedent was *1453 determined to be "stable for transfer" and was taken to County-USC Medical Center for treatment. He died on November 16, 1981. On October 22, 1982, Sigala filed a first amended complaint against Goldfarb and others not parties to this appeal alleging professional negligence in their diagnosis and treatment of the decedent. On November 24, 1987, shortly before trial, Goldfarb filed a motion in limine to preclude testimony by West, Sigala's designated expert witness. Goldfarb contended West lacked the requisite qualifications under section 1799.110, subdivision (c).[2] In support, Goldfarb invoked West's deposition testimony, wherein West testified: He had not been assigned to provide emergency medical coverage in a general acute care hospital emergency department since 1973, at which time West was serving his residency. During his residency, he considered himself a surgeon who ran the emergency room, rotating two or three months out of the year for a period of six years. West had never worked as an emergency room physician. At the hearing on the motion, Sigala's counsel conceded "it is true that he [West] has not served in the emergency room, as the ER doctor, as he explained in his deposition, ..." Nonetheless, Sigala's counsel argued West was a nationally recognized expert in the field of trauma care, and was "intimately familiar with the work of the emergency room physician, even though he isn't one himself." Counsel urged "[u]nder any other construction, any other approach to qualifying this man as an expert other than this particular statute, which is designed to protect the, the [sic] emergency room physician from being second-guessed by someone who doesn't know anything about his particular craft, but Dr. West is, his expertise would have to be accepted on its face,..." *1454 The trial court granted Goldfarb's motion, observing "even if Dr. West is the most qualified expert in the world, the statute is very explicit and limits the Court, and his testimony shall not be admitted unless he has substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general, acute care emergency department." The case was tried on November 30, 1987. The jury returned a verdict in favor of Goldfarb. Sigala appealed. CONTENTIONS Sigala contends: West undeniably was qualified to testify as to the standard of emergency care, and the trial court erred in rigidly following the letter of section 1799.110 instead of its spirit, because the statute is based on the public policy of encouraging the provision of emergency medical services by insulating the providers of such services from assertions of negligence by expert witnesses who lack expertise in hospital emergency room care. DISCUSSION 1. Standard of appellate review. (1) The issue as to whether the trial court was bound by the plain meaning of section 1799.110 requires interpretation of the statute, which is a question of law for this court's independent determination. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 699 [170 Cal. Rptr. 817, 621 P.2d 856]; Shoban v. Board of Trustees (1969) 276 Cal. App. 2d 534, 541 [81 Cal. Rptr. 112].) (2) The propriety of the trial court's ruling on the exclusion of West's testimony is governed by the qualifications of West to testify as an expert within the contemplation of the statute. Whether a physician has had substantial recent professional emergency care experience is a factual question to be determined by the trial court in the first instance. (§ 1799.110, subd. (c); see Jutzi v. County of Los Angeles (1987) 196 Cal. App. 3d 637, 648 [242 Cal. Rptr. 74].) The trial court excluded West's expertise based on counsel for Sigala's concession and West's deposition. 2. Trial court properly excluded West's testimony. To reiterate, section 1799.110, subdivision (c), states in relevant part: "(c) In any action for damages involving a claim of negligence against a *1455 physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department." (Italics added.) (3a) The purpose of section 1799.110 is to encourage the provision of emergency medical care by preventing malpractice claims based on the assertion that an emergency room physician fell below the standard of care which could have been provided by a specialist in the particular field acting under nonemergency conditions. (Jutzi v. County of Los Angeles, supra, 196 Cal. App.3d at p. 651.) As indicated, Sigala conceded West lacked substantial recent professional emergency care experience under the plain meaning of section 1799.110. West's lacking qualification to testify under section 1799.110 therefore is uncontroverted. West's deposition testimony relating to his qualifications further left no room for doubt. Nonetheless, Sigala urges that in view of West's expertise, he was well qualified to testify as to the standards of emergency room care. Accordingly, admitting West's testimony would have provided the jury with the type of expert testimony which section 1799.110 seeks to ensure. The argument is without merit. (4) "It is a settled principle in California law that `When statutory language is ... clear and unambiguous there is no need for construction, and courts should not indulge in it.' [Citation.]" (In re Waters of Long Valley Creek Stream System (1979) 25 Cal. 3d 339, 348 [158 Cal. Rptr. 350, 599 P.2d 656].) Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. (Estate of Tkachuk (1977) 73 Cal. App. 3d 14, 18 [139 Cal. Rptr. 55].) The literal meaning of the words of a statute may be disregarded, however, to avoid absurd results or to give effect to manifest purposes that, in light of the statute's legislative history, appear from its provisions considered as a whole. (County of Sacramento v. Hickman (1967) 66 Cal. 2d 841, 849, fn. 6 [59 Cal. Rptr. 609, 428 P.2d 593].) (3b) In effect, Sigala's argument seeks a judicial exception to section 1799.110 for nonemergency experts that would alter materially the clear language of subdivision (c), allegedly to better effectuate the Legislature's apparent intent. (5) However, in construing a statute, the function of the court is simply to ascertain its meaning from the inherent terms or *1456 substance and not to insert what has been omitted or omit what has been inserted. (Estate of Tkachuk, supra, 73 Cal. App.3d at p. 18.) (3c) Because it was undisputed that West did not qualify under the plain meaning of section 1799.110, subdivision (c), and the literal meaning of the statute neither results in an absurdity nor contravenes the statute's purpose, the trial court properly granted Goldfarb's motion in limine precluding West's testimony, and lacked discretion to rule otherwise. DISPOSITION The judgment is affirmed. Goldfarb to recover costs on appeal. Arabian, J., and Croskey, J., concurred. NOTES [1] Goldfarb also sought to preclude any testimony by another of Sigala's expert witnesses, Peter D. Sliskovich, M.D., pursuant to the same code section, which motion was denied. [2] Section 1799.110 states: "(a) In any action for damages involving a claim of negligence against a physician and surgeon arising out of emergency medical services provided in a general acute care hospital emergency department, the trier of fact shall consider, together with all other relevant matters, the circumstances constituting the emergency, as defined herein, and the degree of care and skill ordinarily exercised by reputable members of the physician and surgeon's profession in the same or similar locality, in like cases, and under similar emergency circumstances. [¶] (b) For the purposes of this section, `emergency medical services' and `emergency medical care' means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death. [¶] (c) In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, `substantial professional experience' shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred." (Added by Stats. 1983, ch. 1246, § 41, italics added.)
Citation Nr: 1203381 Decision Date: 01/30/12 Archive Date: 02/07/12 DOCKET NO. 09-27 759A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from December 1961 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2011. A copy of the transcript of that hearing is of record. In an August 2007 decision, the Board remanded this case for additional development. The purposes of this remand have been met and the case is ready for appellate consideration. FINDINGS OF FACT 1. The Veteran did not have a pre-existing hearing loss disability in either ear prior to his induction and is presumed sound at service entrance. 2. Bilateral hearing loss did not manifest during service or within one year thereafter; there is a preponderance of evidence against a nexus between a current diagnosis of bilateral hearing loss and any incident of service, to include in-service exposure to acoustic trauma. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the October 2007, October 2008, and June 2011 letters sent to the Veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in October 2007, October 2008, and June 2011 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the October 2008 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in October 2007, prior to the appealed from rating decision, along with the subsequent notice provided in October 2008 and June 2011, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in a November 2011 supplemental statement of the case, and as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, due to the Veteran's contention that he was given a free hearing test at his employer, General Motors, in October 1973 (see VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, dated in August 2011), the RO sent a letter to General Motors and requested such hearing test. In the return response, dated in August 2011, the Coordinator of Health Services at General Motors replied that they had searched their records but were unable to find an October 1973 hearing test with the Veteran's name. The Board also notes that the Veteran had reported that he had received hearing tests and hearing aids from Paul Gale's Hearing Aid Center in August 2003. See VA Form 21-4142, dated in July 2011. However, in a VA Form 21-0820, Report of General Information, dated in September 2011, the RO stated that they had tried to call Paul Gale's Hearing Aid Center but that the phone numbers were no longer in service. The RO further noted that they called the Veteran to notify him that they were unable to obtain the requested records. The Veteran indicated that Paul Gale's Hearing Aid Center had gone out of business and that their records were unavailable. The RO also reported that they told the Veteran that the search for the requested records from General Motors was negative. The Veteran responded that he had forgotten the dates and that 1973 was not the correct date; it was 1989. With respect to an examination, the Veteran in fact did receive VA audiological examinations in May 2008 and July 2011. The July 2011 VA examination was thorough in nature and provided a competent opinion addressing the pertinent question of whether the Veteran's currently diagnosed bilateral hearing loss was related to his period of service, to include acoustic trauma in service. The Board finds that the medical evidence of record is sufficient to resolve this appeal; the VA has no further duty to provide an examination or medical opinion. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 384. II. Pertinent Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic diseases, including such organic neurological diseases as sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For purposes of applying the laws administered by the VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. It is also pertinent to note that the Court has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 60. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted'). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As to credibility, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). III. Factual Background The Veteran's service records show that he had active service from December 1961 to December 1963. The Veteran's Military Occupational Specialty (MOS) was as an artillery surveyor. The Veteran's service treatment records reflect that in September 1961, the Veteran underwent a pre-induction examination. At that time, in response to the question of whether he had ever had or if he currently had any ear trouble or running ears, he responded "no." The Veteran's ears were clinically evaluated as "normal." The Veteran's hearing was 15/15 bilaterally in whispered voice. Audiometric testing showed puretone thresholds (converted from American Standards Association (ASA) to International Standards Organization (ISO)) of 30, 5, 10 20, and 20 decibels in the right ear, and 30, 10, 25, 50, and 75 decibels in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively. (ASA values have been converted to ISO standards to facilitate data comparison.) The examiner stated the following: Man has no history of ear trouble. Mostly complains of left ear. Has complete range of tone in normal voice range. Possibly a malingerer in 4,000 to 6,000 Hz range. He has a slight loss. Acceptable. The remaining treatment records are negative for any medical findings of hearing loss, including hearing loss for VA purposes. See 38 C.F.R. § 3.385 (2011). The records show that in October 1963, the Veteran underwent a separation examination. At that time, the Veteran's ears were clinically evaluated as "normal." Audiometric testing showed puretone thresholds (converted from ASA to ISO) of 15, 10, 10, 15, and 15 decibels in the right ear, and 15, 10, 10, 15, and 15 decibels in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively. (ASA values have been converted to ISO standards to facilitate data comparison.) In October 2007, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss. VA Medical Center (VAMC) outpatient treatment records show that in October 2007, the Veteran sought treatment for bilateral hearing loss. At that time, he stated that he had experienced bilateral hearing loss since the Army. He indicated that he did not have any hearing protection while he was in the military. The audiological examination revealed that the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows: 20, 50, 70, 65, and 60 decibels, respectively, with a puretone average of 61.25 decibels. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 30, 55, 95, 115, and 115+ decibels, with a puretone average of 95 decibels. The diagnosis for the bilateral sensorineural hearing loss. Based on the examination, hearing aids were ordered for the Veteran. In May 2008, the Veteran underwent a VA audiological evaluation. At that time, the examiner stated that he had reviewed the Veteran's claims file. According to the examiner, the Veteran's entrance physical examination revealed normal hearing for the right ear, and normal sloping to moderately severe hearing loss for the left ear. The Veteran's separation examination showed normal hearing, bilaterally. The examiner noted that in October 2007, the Veteran was given hearing aids based on audiometric testing showing bilateral sensorineural hearing loss. In regard to the onset of the Veteran's hearing loss, the examiner stated that the onset of the left ear was prior to the Veteran's enlistment in the Army, and the onset of the right ear was approximately 10 years ago. The Veteran reported that while he was in the military, he was exposed to noise from artillery. He noted that he did not have any ear protection. The Veteran denied occupational noise exposure prior to and after the service. According to the Veteran, he worked with computers. He denied recreational noise exposure. The audiological examination revealed that the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows: 20, 50, 65, 60, and 60 decibels, respectively, with a puretone average of 59 decibels. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 20, 50, 90, 105, and 105 decibels, with a puretone average of 88 decibels. Speech discrimination percentages were 86 percent in the right ear and 76 percent in the left ear. The diagnosis was normal sloping to moderately severe at 2,000 Hz rising to moderate sensorineural hearing loss for the right ear, and normal sloping to profound sensorineural hearing loss for the left ear. The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss was caused by or the result of noise exposure in the service. According to the examiner, normal hearing sensitivity was documented at the time of the Veteran's discharge from the military. The examiner also stated that the Veteran's service treatment records were negative for any complaints of hearing loss. In the Veteran's notice of disagreement (NOD), received in August 2008, he stated that while he was in the military, he was exposed to loud noises from guns being fired in his artillery unit. In the Veteran's substantive appeal (VA Form 9), he indicated that he had been employed by General Motors for over 20 years and had received exceptional health care. According to the Veteran, while he was working at General Motors, he received hearing aids in 1978 and 1982. In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Veteran stated that while he was in the military, his MOS was as an artillery surveyor. According to the Veteran, due to his MOS, he was exposed to loud noises from guns being fired on the firing ranges. The Veteran also indicated that he initially noticed problems with his hearing when he was approximately 13 or 14 years old. He reported that he continued to experience problems with hearing during service and thereafter. The Veteran stated that over time, his hearing got progressively worse. He indicated that he got his first hearing aid in the late 1970's. A VA audiological evaluation was conducted in July 2011. At that time, the examiner stated that he had reviewed the Veteran's claims file. The examiner indicated that upon a review of the Veteran's September 1961 pre-induction examination report, it was noted that the reliability of thresholds at 4,000 and 6,000 Hz in the left ear were questionable. Upon current audiological examination, the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows: 25, 50, 65, 65, and 60 decibels, respectively, with a puretone average of 60 decibels. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 25, 55, 95, 105+, and 105+, with a puretone average of 90 decibels. Speech discrimination percentages were 72 percent in the right ear and 64 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The examiner stated that the Veteran's hearing was normal through 6,000 Hz for each ear at the time of military separation. In addition, the left ear hearing loss that was noted in the enlistment examination was reported to have questionable reliability. As explained in the VCAA section of this decision, due to the Veteran's contention that he was given a free hearing test at his employer, General Motors, in October 1973, the RO sent a letter to General Motors and requested such hearing test. In the return response, dated in August 2011, the Coordinator of Health Services at General Motors replied that they had searched their records but were unable to find an October 1973 hearing test with the Veteran's name. The General Motors Coordinator did, however, send the Veteran's Employee Hearing Summary Report, dated in July 2011. According to the report, audiological testing performed in July 2011 showed that the Veteran had bilateral sensorineural hearing loss. In a VA Form 21-0820, Report of General Information, dated in September 2011, the RO stated that they told the Veteran that the search for the requested records from General Motors was negative. The Veteran responded that he had forgotten the dates and that 1973 was not the correct date; it was 1989. IV. Analysis Based on a thorough review of the record, the Board finds that there is a preponderance of evidence against the Veteran's claim for service connection for bilateral hearing loss. In this case, the Veteran contends that due to his MOS as an artillery surveyor, he was exposed to loud noises while he was in the military. He maintains that he currently has bilateral hearing loss that is related to his period of service, specifically to his in-service acoustic trauma. At the outset, the Board recognizes that in the Veteran's March 2011 Travel Board hearing, he testified that he had hearing problems as a teenager, prior to his entrance into the military. In addition, in the Veteran's pre-induction examination, dated in September 1961, although the Veteran's hearing in his right ear was within normal limits, his hearing in the left ear at 4,000 and 6,000 Hz showed a hearing loss for VA purposes. However, at that time, it was noted that the reliability of thresholds at 4,000 and 6,000 Hz in the left ear was questionable. Specifically, the examiner reported that the Veteran was possibly a malingerer in the 4,000 to 6,000 Hz range. Thus, the Board finds that the test results from the September 1961 pre-induction examination are not valid. There is also no other medical evidence of record which shows that the Veteran had any hearing loss, including hearing loss for VA purposes (see 38 C.F.R. § 3.385), prior to his induction. Accordingly, given that there is no clear and unmistakable medical evidence of record showing that the Veteran had any hearing loss, including hearing loss for VA purposes, prior to his entrance into the military, the presumption of soundness is not rebutted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir 2004). The Veteran's service records confirm that his MOS was as an artillery surveyor. Thus, exposure to acoustic trauma is consistent with the Veteran's MOS. Accordingly, the Board finds that the Veteran's statements in regard to his noise exposure credible and consistent with military service. See 38 U.S.C.A. § 1154(b) (West 2002). The Veteran's service treatment records, including the October 1963 separation examination report, are negative for any complaints or valid findings of hearing loss, including hearing loss for VA purposes. The first medical evidence of record that shows that the Veteran has bilateral hearing loss as defined by the applicable VA regulation, 38 C.F.R. § 3.385, is in October 2007, over 44 years after the Veteran's separation from the military. The audiometric findings obtained from the October 2007 VAMC audiological examination reflect the required thresholds for a finding of hearing impairment in both ears under 38 C.F.R. § 3.385. With respect to negative evidence, the Court held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years could be decisive. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. In this case, the Board acknowledges that the existence of the Veteran's currently diagnosed bilateral hearing loss is not in dispute. The audiometric findings obtained from the October 2007 VAMC audiological examination, as well as the May 2008 and July 2011 VA audiological examinations, reflect the required thresholds for a finding of hearing impairment in both ears under 38 C.F.R. § 3.385. However, what is missing in this case is medical evidence or a competent opinion reflecting a medical nexus between the Veteran's currently diagnosed bilateral hearing loss and active service or any incident of such service, to include exposure to acoustic trauma. In the July 2011 VA audiological examination report, the examiner specifically opined that the Veteran's bilateral hearing loss was less likely as not (less than 50/50 probability) caused by or the result of military noise exposure. This opinion was based upon a claims file review, questioning of the Veteran, and examination results. In addition, the opinion is supported by a rationale, notably that the pre-induction audiometric testing results showing left ear hearing loss were of questionable reliability and that the Veteran's hearing was normal through 6,000 Hz for each ear at the time of military separation. The Board finds that this opinion is very probative evidence against the Veteran's claim. With respect to the May 2008 VA audiological examination report, the Board recognizes that the examiner incorrectly stated that the Veteran had left ear hearing loss prior to his entrance into the military. Nevertheless, the examiner still opined that it was less likely as not that the Veteran's bilateral hearing loss was caused by or the result of in-service noise exposure. In support of his opinion, the examiner correctly stated that normal hearing sensitivity was documented at the time of the Veteran's discharge from the military. He also noted that the Veteran's service treatment records were negative for any complaints of hearing loss. This opinion opposes rather than supports the Veteran's claim. In this case, the Veteran has not provided any medical or audiological opinions supporting his claim. Rather, the only evidence supporting the Veteran's claim is his own lay evidence. The Veteran has maintained that he developed bilateral hearing loss during service due to acoustic trauma and that after his discharge, he continued to experience bilateral hearing loss until the present day. The Veteran is certainly competent to state whether he noticed a decrease in hearing. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the Board does not find the Veteran's contentions of continuity of symptomatology to be credible. First, emphasis is placed on the multi-year gap between discharge from active duty service (December 1963) and the first evidence of record of bilateral hearing loss for VA purposes (October 2007), over 44 years after the Veteran's separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered in service connection claims). Second, the Board notes that the Veteran has been inconsistent in his history of experiencing bilateral hearing loss. He has stated that while at his employer, General Motors, he received a hearing test in 1973. He has also reported that due to his hearing loss, he received hearing aids from General Motors, first in 1978 and then in 1982. However, he later indicated that the correct date for his hearing test was in 1989. This suggests that he did not have hearing problems until 1989. As such, the Veteran's own reported history of his hearing loss disability continuity is inconsistent. Such undermines the veracity of his statements. Third, the Board also notes that the Veteran did not claim that his bilateral hearing loss started during service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of little probative value. See Pond v. West, 12 Vet. App. 341 (1999)(although the Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). In light of the above, the Board finds that the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See e.g., Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond, supra. The Board further observes that, while a veteran is certainly competent to note a decrease in hearing, he is not able to ascertain that the thresholds of 38 C.F.R. § 3.385 are met in the absence of training or credentials in medicine or audiology. Also, absent such credentials, a veteran is unable to provide a competent opinion as to medical causation (as opposed to continuity of symptomatology). See 38 C.F.R. § 3.159(a)(2). Here, the Veteran has no such training or credentials. As a consequence, his lay opinion would be of no more than minimal probative value even if found credible. In summary, the Veteran did not claim current bilateral hearing loss for more than four decades subsequent to service, and there was no medical or audiological evidence confirming such diagnosis until October 2007. In addition, he has not provided lay or medical evidence that is both competent and credible in support of the claim. The lay evidence provided by the Veteran - the only evidence supporting his claim - is of little to no probative value and is very substantially outweighed by the July 2011 and May 2008 opinions from VA examiners, particularly in light of the more than four decade gap between separation from service and the initial diagnosis of the disability in question. For all of these reasons, the Board finds that the Veteran's bilateral hearing loss was not incurred during service or within one year after separation from service. Accordingly, the Board finds that there is a preponderance of evidence against the claim for service connection for bilateral hearing loss. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since there is a preponderance of evidence against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT SEPTEMBER 10, 2009 No. 08-16230 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 07-00045-CV-6 DANNY WILLIAMS, Plaintiff-Appellant, versus BILLY BROWN, Jointly and Severally; Individual and Official Capacities, WAYNE JOHNSON, Jointly and Severally; Individual and Official Capacities, BILLY TOMPKINS, Jointly and Serverally; Individual and Official Capacities, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Georgia _________________________ (September 10, 2009) Before BIRCH, WILSON and PRYOR, Circuit Judges. PER CURIAM: Danny Williams, proceeding pro se, appeals the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 inmate civil rights case. After a magistrate judge screened the complaint, the district court dismissed all of Williams’s claims on the merits save his claim for retaliatory transfer. Thereafter, the district court dismissed the remaining claim as a sanction pursuant to 28 U.S.C. § 1915(e). Based upon a review of the record, we conclude that the district court’s dismissal of Williams’s retaliatory transfer claim with prejudice as “malicious” pursuant to § 1915(e) was too harsh a sanction. We affirm the dismissal of all other claims except retaliatory transfer against Appellee Billy Brown only. While we agree with the district court’s dismissal of Williams’s compensatory and punitive damages claims because he failed to allege the requisite physical injury under 28 U.S.C. § 1997e(e), the district court did not fully consider whether Williams’s pro se complaint should be liberally construed to request nominal damages. Accordingly, except as affirmed herein, we vacate the district court’s judgment and remand solely as to Appellee Brown. I. A detailed recitation of the factual and procedural background is necessary 2 here. On July 17, 2007, Williams, an inmate in a Georgia state prison, filed an action pursuant to 42 U.S.C. § 1983 against Deputy Warden Billy Brown, Deputy Warden Wayne Johnson, and Warden Billy Tompkins, alleging violations of his constitutional rights as well as various state law claims. In particular, Williams alleged (1) retaliatory transfer, (2) denial of access to the courts, (3) deliberate indifference to medical needs, (4) denial of due process, (5) libel under Georgia state law, and (6) slander under Georgia state law. In support of his retaliatory transfer claim, Williams alleged that in 1999, Brown opened his legal mail, and, after Williams filed a grievance against Brown, he was transferred to another prison. Williams was transferred back to Smith State Prison in 2004. On September 7, 2005, while an inmate at Smith State Prison, Williams submitted a grievance against the staff, primarily Brown, who Williams claimed forced him to “get rid of” his legal materials. On September 15, 2005, Counselor Angie Henry notified Brown of Williams’s grievance. On September 19, 2005, Brown completed a witness statement. On September 22, 2005, Williams was transferred to Ware State Prison. Although Williams had previously requested and received approval for a positive transfer closer to his home, Williams’s complaint alleged that “Brown, Johnson, and Tompkins subjected [Williams] to a retaliatory negative 3 transfer to a facility twice as far from [Williams’s] family. . . .” Before service upon the defendants, a magistrate judge screened the complaint. On October 24, 2007, the district court adopted the magistrate judge’s Report and Recommendation, advising that Williams’s claims for denial of access to the courts, deliberate indifference to medical needs, denial of due process, libel, and slander should be dismissed for failure to state a claim. Williams v. Brown, No. CV607-045, 2007 WL 3143714, at *1 (S.D. Ga. Oct. 24, 2007). That left only Williams’s retaliatory transfer claim. On December 7, 2007, the defendants filed a motion to dismiss, in which they argued, inter alia, that the district court should dismiss Williams’s complaint as “malicious” because he abused the judicial process by not disclosing all his previously filed lawsuits.1 Specifically, the defendants maintained that Williams failed to disclose the following: (1) Williams v. Wetherington, CA 1:02-cv-0126- WLS (M.D. Ga), a civil lawsuit that the district court dismissed for Williams’s failure to exhaust administrative remedies and that we dismissed as frivolous on appeal; (2) Williams v. Upton, CA 1:202-cv-00177 (S.D. Ga.), a habeas petition 1 Upon the filing of a civil rights complaint in the United States District Court for the Southern District of Georgia, a prisoner must complete a form entitled, “Form To Be Used By Prisoners In Filing A Complaint Under The Civil Rights Act, 42 U.S.C. § 1983, in the United States District Court for the Southern District of Georgia.” The question at issue asks the following: “As to any lawsuit filed in federal court where you were allowed to proceed in forma pauperis, was any suit dismissed on the ground that it was frivolous, malicious or failed to state a claim?” Under penalty of perjury, Williams answered no. 4 dismissed as untimely; (3) Williams v. Battle, CA 5:04-cv-00194 (M.D. Ga.), a habeas petition voluntarily dismissed by Williams; (4) Williams v. Donald (originally filed as Williams v. Chatman), CA 5:01-cv-00292-HL (M.D. Ga), a civil lawsuit dismissed, in part, by the district court as frivolous on March 7, 2002.2 The defendants conceded, however, that neither Battle, Upton, nor Donald constitute a strike pursuant to 28 U.S.C. § 1915(g).3 On February 1, 2008, the magistrate judge ordered Williams to show cause why his complaint should not be dismissed as a sanction for failure to disclose all prior cases and frivolity dismissals on the prisoner civil complaint form. Specifically, the magistrate judge referenced only two cases, Donald (originally Chatman) and Wetherington.4 In response, Williams asserted that he truthfully responded to the questions on the civil complaint form to the best of his ability. He argued that, at the time he filed 2 Williams alleged 8 claims against 15 named defendants. On appeal, we affirmed the district court’s ruling as to six of the eight claims, but reversed and remanded the case as to parts of two claims. See Williams v. Chatman, No. 02-11850, 104 F. App’x 150 (11th Cir. Apr. 30, 2004) (per curiam). One claim, that plaintiff had been transferred in retaliation for filing grievances and federal complaints, was subsequently dismissed with prejudice by Williams. On remand, the district court granted the remaining defendants’ motion for summary judgment. 3 Section 1915(g) provides that no incarcerated prisoner shall bring a civil action or appeal a judgment in a civil action “if the prisoner has, on 3 or more prior occasions . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . .” 28 U.S.C. § 1915(g). 4 While the magistrate judge referenced literally Chatman and Donald in the order, which appear to be the same case, the appellate number listed by the magistrate judge (No. 05-15803) refers actually to Wetherington. 5 his complaint, Donald was still pending and, although Wetherington was dismissed as frivolous on appeal, Williams stated that the complaint asked only about any “lawsuits” dismissed as frivolous, not appeals. Likewise, with respect to Upton and Battle, Williams again explained that he did not believe the habeas petitions constituted “lawsuits” for the purposes of the civil complaint form. On September 12, 2008, the magistrate judge issued a second Report & Recommendation. First, the magistrate judge advised that Williams’s complaint should not be dismissed as a sanction pursuant to § 1915(e): “[b]ecause the Court believes that Williams did not intend to mislead the Court in his responses on the civil complaint form, the Court is of the opinion that dismissing the case based on his omissions would be too harsh a sanction.” Williams v. Brown, No. CV607-045, slip op. at 5 (S.D. Ga. Sept, 12, 2008). Next, the magistrate judge determined that the defendants’ motion to dismiss should be granted in part and denied in part. As to retaliatory transfer, the magistrate judge concluded that Williams stated a claim for retaliatory transfer against all defendants and that any qualified immunity defense was meritless because “transferring an inmate in retaliation for filing grievances violates his clearly established First Amendment rights.” Id. at 10 (citations omitted). As to damages, the magistrate judge concluded that Eleventh Amendment immunized the defendants from damages in their official capacities and that “Williams is not 6 entitled to compensatory or punitive damages against them in their individual capacities since he has not shown an actual physical injury caused by the transfer.” Id. at 11. In a footnote, the magistrate judge noted the possibility of nominal damages, even in the absence of a physical injury. See id. at 13 n.5. Lastly, the magistrate judge determined that injunctive relief remained a viable form of relief for Williams. Both parties filed objections to the second Report & Recommendation. On October 1, 2008, the district court rejected the magistrate judge’s second Report & Recommendation, sustained the defendants’ objections, and granted the defendants’ motion to dismiss. In an one-page “Order,” the district court explained its reasoning: Danny Williams has engaged in a clear and persistent pattern of deceit in his court filings. The Court also agrees that plaintiff’s failure to allege any physical injury bars relief. Finally, Williams alleges insufficient facts (but instead only vague, conclusory assertions which otherwise lack a causation component) to support his retaliatory transfer claim. Williams v. Brown, 607CV045, slip op. at 1 (S.D. Ga. Oct. 1, 2008) (footnote omitted). In a footnote, the district court stated that Williams’s failure to request nominal damages waived the recovery of nominal damages. Id. at n.1. The district court dismissed Williams’s complaint with prejudice. This appeal followed. 7 II. As a threshold matter, before turning to the substance of Williams’s claims and the accompanying arguments on appeal, we must first address the district court’s dismissal of Williams’s complaint as a sanction. In particular, contrary to the recommendation of the magistrate judge, the district court concluded that Williams “engaged in a clear and persistent pattern of deceit in his court filings.” On appeal, Williams argues that there was no evidence of a clear and persistent pattern of deceit in his court filings to justify a dismissal with prejudice. Williams stated that he had not intended to deceive the court and had honestly responded that he did not believe that his two habeas corpus petitions and one appeal dismissed as frivolous constituted a “lawsuit” for purposes of the civil complaint form. We review sanctions imposed pursuant to 28 U.S.C. § 1915 “for an abuse of discretion.” Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997) (citation omitted). Section 1915(e) of the PLRA provides that any in forma pauperis action or appeal shall be dismissed at any time if it is frivolous or malicious, fails to state a claim, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). However, “[d]ismissal with prejudice in the context of section 1915 [is] an extreme sanction to be exercised only in appropriate cases.” Camp v. Oliver, 798 F.2d 434, 438 (11th Cir. 1986). “In the absence of a finding 8 of bad faith misstatement of assets, litigiousness or manipulative tactics, however, dismissal with prejudice is not warranted.” Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990) (per curiam). Because dismissal with prejudice is a drastic sanction, it should “be applied only after lesser sanctions are considered and found inadequate.” Camp, 798 F.2d at 438-39 (noting that many “petitions for in forma pauperis . . . are brought by pro se persons with little legal acumen”) (citation omitted). Here, the district court abused its discretion in dismissing Williams’s complaint with prejudice as a sanction pursuant to § 1915(e). In contravention to the magistrate judge’s second Report and Recommendation, the district court simply concluded that Williams had “engaged in a clear and persistent pattern of deceit in his court filings.” However, a review of the record reveals that at the time when he filed his complaint only one of Williams’s matters had been dismissed as frivolous – the Wetherington appeal. His failure to disclose one appeal does not qualify as “malicious” or evidence bad faith by Williams, much less “a clear and persistent pattern of deceit in his court filings.” Moreover, Williams explained that he did not include the Wetherington appeal as being dismissed as frivolous because he did not believe an appeal constituted a “lawsuit.” Considering his pro se status and taking the language of the form into account, which only requests “lawsuits” 9 and does not define that term, Williams’s explanation was plausible on its face. Accordingly, we vacate the district court’s judgment dismissing Williams’s § 1983 complaint as a sanction for abuse of process and remand for proceedings consistent with the remainder of this Opinion. We now turn to the substance of Williams’s other arguments raised on appeal specific to retaliatory transfer, damages, and his remaining claims. III. Williams raised three additional arguments on appeal, asserting that the district court erred by: (1) concluding that he failed to plead sufficient facts to state a claim for retaliatory discharge; (2) finding that his failure to allege physical injury barred compensatory and punitive damages; and (3) dismissing his remaining claims, i.e., denial of access to courts, deliberate indifference to medical needs, denial of due process, and state law libel and slander. We shall consider each in turn. A. Retaliatory transfer “We review a dismissal under the Prison Litigation Reform Act [(“PLRA”)] for failure to state a claim de novo and view the allegations in the complaint as true.” Douglas v. Yates, 535 F.3d 1316, 1319-20 (11th Cir. 2008) (internal citation omitted). “The standards that govern a dismissal under Federal Rule of Civil 10 Procedure 12(b)(6) apply. . . .” Id. Further, “[i]n the case of a pro se action . . . the court should construe the complaint more liberally than it would formal pleadings drafted by lawyers.” Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990) (citation omitted); see Douglas, 535 F.3d at 1321 (construing liberally a prisoner’s pro se complaint). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555, 127 S. Ct. at 1965 (citation omitted). At the pleading stage, Federal Rule of Civil Procedure 8(a)(2) requires that “the plain statement possess enough heft to show that the pleader is entitled to relief.” Id. at 557, 127 S. Ct. at 1966 (internal quotations omitted). Prison officials may not retaliate against inmates for filing lawsuits or administrative grievances. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986) (per curiam). While an inmate does not have a constitutionally protected liberty interest against being transferred to a less agreeable prison, Moody v. Daggett, 429 11 U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9 (1976), prison officials may not transfer an inmate in retaliation for exercising his right to file grievances against prison officials. See Bridges v. Russell, 757 F.2d 1155, 1157 (11th Cir. 1985). Such retaliatory transfers violate an inmate’s First Amendment rights. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (per curiam). Although Williams’s complaint alleges that a constitutional violation occurred, the complaint fails to allege facts that associate Johnson or Tompkins with that violation. Williams simply asserts that “Brown, Johnson, and Tompkins subjected [him] to a retaliatory negative transfer twice as far from [his] family . . . .” This assertion does not raise his right to relief against Johnson and Tompkins above the speculative level. Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Accordingly, the district court correctly dismissed Williams’s complaint against Johnson and Tompkins. As to Appellee Brown, however, taking the well-pleaded allegations in his complaint as true, Williams stated a chronology of events and alleged sufficient facts to state a retaliatory transfer claim against Brown in his individual capacity. The relevant facts are these. In 1999, Brown opened Williams’s mail, Williams filed a grievance, and he was transferred. After being transferred back in 2004, Williams filed another grievance against Brown in September 2005; a prison staff 12 member notified Brown of the grievance; and Williams was again transferred to another prison. The facts provide circumstantial evidence that Brown transferred Williams in retaliation for his filing a grievance against him. Furthermore, we agree with the magistrate judge in the second Report & Recommendation that qualified immunity does not shield Appellee Brown from liability. “[Q]ualified immunity provides that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (quotation marks and citation omitted). When assessing qualified immunity cases, we consider whether a constitutional right has been violated and whether the right was clearly established by the law at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2155 (2001). Although Appellee Brown acted within his discretionary authority in transferring Williams, the law is clearly established that a prison official may not transfer an inmate in retaliation for exercising his right to file grievances against prison officials. See Bridges, 757 [email protected]. Thus, Brown cannot claim qualified immunity as a bar to Williams’s complaint. B. Damages 13 “[C]ompensatory damages under § 1983 may be awarded only based on actual injuries caused by the defendant and cannot be presumed or based on the abstract value of the constitutional rights that the defendant violated.” Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir. 2000). Pursuant to 42 U.S.C. § 1997e(e), in order to recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983 action must demonstrate more than a de minimus physical injury. Harris v. Garner, 190 F.3d 1279, 1286-87 (11th Cir.), opinion reinstated in part on reh’g, 216 F.3d 970 (11th Cir. 2000) (en banc). The district court did not err in determining that Williams could not recover compensatory or punitive damages with respect to his First Amendment retaliation claim. In his complaint, Williams alleged that in August 2005, before his transfer, he was approved for surgery to correct a herniated cervical disc. Williams alleged the Appellees were aware of the approved surgery; however, beyond his conclusory statement, he fails to allege how they were so aware. Further, Williams did not substantially allege (1) that the Appellees knew of his condition or (2) that the delay in surgery exacerbated his condition. Accordingly, because he has not alleged the requisite physical injury, the district court properly dismissed Williams’s compensatory and punitive damages claims. However, “[n]ominal damages are appropriate if a plaintiff establishes a 14 violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages.” Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (citation omitted). Thus, a prayer for nominal damages is not precluded by § 1997e(e). Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007). While the district court determined that Williams waived any entitlement to nominal damages,5 the district court did not consider whether Williams’s pro se complaint should be liberally construed to request nominal damages, especially considering that Williams requested both monetary and injunctive relief and in light of Federal Rule of Civil Procedure 54. See F ED. R. C IV. P. 54(c) (“Every other final judgment [besides default judgment] should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”). For this reason, we remand for the district court to consider, in the first instance, Williams’s potential nominal damages claim against 5 In support of its finding of waiver, the district court cited Oliver v. Falla, in which we addressed “the propriety of nominal damages in an Eighth Amendment excessive force case where the plaintiff waived a request for nominal damages.” 258 F.3d 1277, 1281 (11th Cir. 2001). There, we concluded that the plaintiff “unequivocally waived his right to nominal damages” in light of the fact that (1) the plaintiff did not request a nominal damages jury instruction, (2) defense counsel stated during oral argument that plaintiff’s counsel “vehemently opposed a nominal damages instruction,” and (3) the plaintiff “did not object when the district court failed to give a nominal damages instruction to the jury.” Id. at 1282. Oliver is inapposite to the instant case for at least two reasons. One, the procedural posture of the two cases is quite different. We found that the plaintiff in Oliver waived his right to nominal damages at trial after he, among other things, failed to request them and failed to ask for a jury instruction. On the contrary, the instant case is in its infancy. And two, the plaintiff in Oliver was represented by counsel whereas Williams is pro se. 15 Brown in his individual capacity for the alleged retaliation. See Hughes, 350 F.3d at 1162-63 (noting that “the district court did not consider whether Hughes’s complaint could be liberally construed to request nominal damages” and remanding to allow the district court to consider that claim in the first instance). C. Remaining claims As to Williams’s remaining claims, upon review of the record as well as the parties’ briefs, the district court did not err in dismissing his claims for denial of access to court, deliberate indifference, denial of due process, and Georgia state law libel and slander. IV. Accordingly, we vacate the judgment of the district court dismissing Williams’s § 1983 complaint with prejudice based on abuse of process and remand to the district court for proceedings not inconsistent with this Opinion. AFFIRMED IN PART, VACATED AND REMANDED IN PART. 16
Citation Nr: 1757591 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-19 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Timothy E. Hiller, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1999 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran's description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for PTSD pursuant to Clemons and re-characterized it as shown on the cover page of this decision. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for PTSD and any other acquired psychiatric disorder. In March 2014, the Veteran's mental health provider stated he had diagnoses of PTSD and major depressive disorder. In July 2013, the Veteran sought treatment for PTSD, depression, and anxiety and there is evidence that the Veteran was diagnosed with PTSD as far back as December 2013. The Veteran continues to seek treatment for his PTSD and other mental health conditions. The Veteran stated in his August 2017 hearing that he had anxiety attacks. The Veteran also reported that he is particularly sensitive to loud noises or sounds that sound like explosions, like fireworks, and that he does not like crowds. The Veteran said he is taking medication to stop the nightmares and to help him sleep. Treatment records from 2015 through 2017 also indicate the Veteran may have diagnoses of anxiety and depression. In his August 2017 hearing, the Veteran provided clarification regarding his PTSD stressors. The Veteran reported that while he was on board his ship and eating, he heard a loud noise. Shortly after, he saw medics run by pushing a cart of a decapitated body with no arms or legs. The Veteran stated he now has nightmares of that image, which he associates with food. The Veteran reported that if he goes to a restaurant, he doesn't like it if they push carts and that he has weird dreams. The Veteran also stated he had friends on the USS Cole and the Veteran was saddened when learning what happened to the USS Cole. The Veteran also stated that his mentor died in 2001 at the Pentagon. The Veteran also stated that he was sent to serve at Guantanamo Bay, Cuba and he was involved in many interrogations and had human refuse [email protected]. During this time, the Veteran reported he was involved in techniques that involved playing music over and over again for the detainees, which was dehumanizing. Lastly, the Veteran stated that while he participated in Costal Warfare, he saw a dead Iraq soldier. After considering the Veteran's medical records showing a diagnosis of PTSD and the Veteran's assertion of his in-service stressors, the Board finds that additional efforts should be made to verify the Veteran's in-service stressors and to afford him a VA examination that addresses the nature and etiology of the Veteran's acquired psychiatric disorder, to include PTSD, and whether the Veteran's currently diagnosed PTSD is related to his in-service stressors. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. 2. The RO should take appropriate action to verify the Veteran's claimed stressors. 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder, to include PTSD. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of his military service, to include the fear of hostile military activity or combat during his time in service. If the examiner does not find that the Veteran has PTSD, s/he should reconcile such determination with his treatment records reflecting a diagnosis of PTSD. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include his time in Vietnam. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his claimed acquired psychiatric disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. The examiner should specifically address the question as to which symptoms, if any, are attributable to the Veteran's PTSD and which are attributable to any other psychiatric disorder. If the examiner is unable to make this distinction, the examiner should note this in the report. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for the purposes of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).
1 Reported in 232 N.W. 517. Defendant's demurrer to an information charging him with a violation of L. 1927, p. 228, c. 149, 1 Mason, 1927, §§ 5705-1 to 5705-23, inclusive, the basic science act, was overruled with a certificate that the question raised, the constitutionality of the law, was important and doubtful. No other parts of the constitution are invoked against the statute than §§ 33 and 34 of art. 4. It is difficult to see in these constitutional prohibitions anything intended to touch said c. 149. The law deals with a subject which concededly is within legislative regulation and control by virtue of the police power of the state. The statute is not special legislation but general, for it embraces the whole state and operates upon all persons residing therein who undertake to alleviate or cure bodily ills or injuries. Therefore it does not fall within the prohibition contained in the first sentence of § 33, art. 4; and the only clause in the specific subjects withdrawn by the rest of the section from special legislation which might be claimed applicable is: "granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever." C. 149 does not grant or give anything; it restricts or regulates a vocation. In State ex rel. Bd. of C. C. H. Commrs. v. Cooley,56 Minn. 540, 58 N.W. 150, it was held that the specific subjects upon which § 33, art. 4, prohibited special legislation were but an enlargement of those covered by the first sentence thereof. Michigan has essentially the same constitutional prohibition as contained in the first sentence of said § 33, and it was there held, as against the same argument here advanced touching a statute similar to L. 1927, p. 228, c. 149, that there was nothing in the constitution of that state upon which to question the law; but the court considered whether or not the fourteenth amendment to the federal constitution was contravened *Page 343 and decided that it was not. People v. Lewis, 233 Mich. 240,206 N.W. 553, 42 A.L.R. 1337. However, inasmuch as the ground of attack upon the constitutionality of said c. 149 is predicated upon the exceptions contained therein, the claim being made that they are arbitrary, unreasonable, and not uniform in application to the groups classified, can be and have been made because of the alleged contravention of the fourteenth amendment in the federal constitution, which in substance is the same as the protection assured by §§ 2 and 7 of art. 1 of the state constitution, we have considered whether the arguments of appellant have shown any reason for holding that this law contravenes any constitutional provision. It may be conceded that any law, general or special, which classifies groups or individuals either brought within, or excepted from its operation, cannot stand where the classification is arbitrary, unreasonable, or does not operate uniformly, or is in fact what is termed class legislation. The first objection raised, and perhaps the one most relied on, is that those who were duly licensed to practice as healers of human ills on May 1, 1927, the time this law went into effect, are excepted from examination in the basic sciences enumerated in the law. It is said, if knowledge of such sciences is essential to those who were to begin practice on May 1, 1927, it was just as essential to those who on or before that date were duly licensed to practice. The law makes no distinction between those who have held the license for a day or so and those who have practiced under a license for years. There can be no doubt of the right of the legislature to raise the standard of knowledge required of those who undertake to cure injuries or ailments of the human body. In so doing it is but reasonable that a line be drawn, so that those already engaged in the practice be not arbitrarily excluded or required to enter upon the study of new subjects of learning or take examinations therein. Those who held license as physicians on May 1, 1927, under whatever school, had passed examination and had been found worthy to practice under the standards required before that date, and there is not much weight to the contention that the public health will be seriously jeopardized if they *Page 344 continue to practice without taking an examination in the basic sciences; but at the same time the right of the legislature to raise the standard of knowledge for those who aim to practice the art of healing in the future must be fully recognized. Some legislative bodies have made the line of demarcation between the old and new standard a certain number of years of practice. And this has been held valid, although where a fixed number of years is made the dividing line there is room for the argument that there is an arbitrary classification in excluding the one who has practiced a day or week short of the fixed period. It would seem the fact of having taken the examination required by the law at the time the license to practice was issued is less subject to the charge of arbitrariness or unreasonableness than fixing the line of demarcation upon a certain period of practice. No one can legitimately object to laws raising the standard of knowledge which might aid in the treatment of human ills by those engaged in that calling; but everyone should recognize that the method pursued to attain this end should not unnecessarily or harshly disturb those already lawfully engaged therein. The following decisions indicate, rather satisfactorily, that L. 1927, p. 228, c. 149, is neither arbitrary nor unreasonable in the respect of treating those already licensed as compared with those to be licensed after May 1, 1927. Minnesota State Pharmaceutical Assn. v. State Board of Pharmacy, 103 Minn. 21,114 N.W. 245; Dent v. West Virginia, 129 U.S. 114,9 S. Ct. 231, 32 L. ed. 623; Watson v. Maryland, 218 U.S. 173,30 S. Ct. 644, 54 L. ed. 987; People v. Witte, 315 Ill. 282,146 N.E. 178, 37 A.L.R. 672; Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed in 274 U.S. 720, 47 S. Ct. 590, 71 L. ed. 1324. As decisive in his favor appellant cites State v. Luscher,157 Minn. 192, 195 N.W. 914. The law there involved [L. 1919, p. 411, c. 386] related to the practice of dentistry and contained various provisions defining misconduct for which a license could be revoked, and then § 8 thereof read: *Page 345 "Provided that the provisions of this act not apply to persons lawfully engaged in the business or practices of dentistry at the present time." To save the law from constitutional objections it was contended that § 8 should be construed so as to mean merely that those already in practice should not be required to obtain license, and that it did not mean that they were exempted from the provisions defining misconduct or the consequences thereof; but this court held the section not susceptible of such construction and declared the whole act void as contravening the equality clauses of the state and federal constitutions. It was not held that those already licensed could not properly be excepted from examination in additional subjects of scientific knowledge deemed essential for those subsequently licensed. In re Humphrey, 178 Minn. 331, 227 N.W. 179, is also relied on; but the law there relating to the admission to practice law was clearly one denominated special legislation intended to grant a small class the special privilege to be admitted to practice without examination, and where the classification was held arbitrary. The contention is also that the law runs counter to the constitutional provisions referred to by the arbitrary and unreasonable classification of the groups excepted from an examination in the basic sciences by § 16 thereof, viz. nurses, midwives, dentists, optometrists, chiropodists, barbers, cosmeticians, etc. The ones just named, under other pertinent statutes, have to be examined in their respective vocations and found competent before engaging therein. Each occupation comes in contact with the human body and may affect its well-being. But none of them relates to what is generally understood as taking charge of persons afflicted with disease or bodily injury to effect a cure, if we except dentists. But it is to be assumed that the legislature when making the exception had in mind that the dentists as well as the other excepted classes had acquired before they could pass the examination as much knowledge of the basic sciences as was necessary in their particular line of work. *Page 346 With the wisdom of legislative classification courts are not concerned. It is enough if there be a reasonable basis for the classification, whether the classification is as to those covered by the statute or to those excepted from its provisions. In laws of this sort all evils cannot be reached at once, nor every desirable object gained in one legislative session. A regulatory law intended to benefit the health of working women by fixing the hours of labor was assailed because of its exceptions as arbitrary and discriminatory and therefore violative of the constitutional provisions in Miller v. Wilson,236 U.S. 373, 35 S. Ct. 342, 344, 59 L. ed. 628, L.R.A. 1915F, 829, but the court sustained it. In the opinion written by the present chief justice, it was said [236 U.S. 383]: "The contention as to the various omissions which are noted in the objections here urged ignores the well-established principle that the legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might reach. Dealing with practical exigencies, the legislature may be guided by experience. Patsone v. Pennsylvania, 232 U.S. 138, 144,34 S. Ct. 281, 58 L. ed. 539, 543. It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed clearest. As has been said, it may 'proceed cautiously, step by step' and 'if an evil is specially experienced in a particular branch of business' it is not necessary that the prohibition 'should be couched in all-embracing terms.' Carroll v. Greenwich Ins. Co.199 U.S. 401, 411, 26 S. Ct. 66, 50 L. ed. 246, 250. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied." The reason is obvious for excepting from the examination Christian Scientists and those attempting to cure exclusively by spiritual or mental means. One other class excepted should be noted, viz. [§ 16]: "Nor shall this Act apply to scientific, sanitary, or teaching personnel employed by the State University, the State Department of *Page 347 Education, or by any public or private school, college or other bona fide educational institution, or the State Department of Health, whose duties are entirely of a public health or educational character while engaged in such duties." It seems to us the last five words quoted adequately demonstrate the exception to be reasonable and appropriate and refute the arguments to the contrary made by appellant. In our opinion L. 1927, p. 228, c. 149, does not violate either state or federal constitution. The question certified is answered in the negative.
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN 444444444444444 NO. 03-06-00052-CV NO. 03-06-00053-CV 444444444444444 In re Gillespie County & In re Texas Department of Transportation 44444444444444444444444444444444444444444444444444444444444444444 ORIGINAL PROCEEDINGS FROM TRAVIS COUNTY 44444444444444444444444444444444444444444444444444444444444444444 MEMORANDUM OPINION Relators contend the trial court abused its discretion in declining to transfer venue in this cause from Travis County to Gillespie County. Based on the record before us, we conclude relators have not shown they are entitled to the relief requested. See Tex. R. Civ. P. 86, 87; Tex. R. App. P. 52.8. Accordingly, we deny relators’ petitions for writ of mandamus. __________________________________________ Jan P. Patterson, Justice Before Chief Justice Law, Justices Patterson and Pemberton Filed: March 14, 2006 Do Not Publish
Citation Nr: 1823929 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-26 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 40 percent for costochondritis and fibromyalgia, to include on an extraschedular basis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which continued a 10 percent rating for costochondritis. The Veteran filed a timely notice of disagreement (NOD) in November 2009. In a June 2011 rating decision, the RO granted service connection for fibromyalgia, evaluated at 40 percent disabling, effective November 17, 2009. Then, in a May 2014 rating decision, the RO granted an earlier effective date of February 29, 2008 for the grant of service connection for fibromyalgia, and characterized the issue as "fibromyalgia (previously rated as costochondritis)." The rating decision explained that "symptoms related to costochondritis . . . have been determined to be symptoms of fibromyalgia. . . . [The 40 percent] evaluation of fibromyalgia now includes symptoms that were previously rated as costochondritis." In September 2016, the Board remanded the case so that the RO could provide the Veteran with a copy of the May 2014 statement of the case (SOC). This was accomplished by letter in November 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that a rating in excess of 40 percent is warranted for her fibromyalgia with costochondritis. As the Veteran is in receipt of the maximum schedular rating for fibromyalgia, the Board has considered whether referral for an "extraschedular" evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. If so, then the Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of Compensation Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The rating schedule under 38 C.F.R. § 4.71a, Diagnostic Code 5025 evaluates fibromyalgia "[w]ith widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms." A 40 percent rating is warranted when these symptoms "are constant, or nearly so, and refractory to therapy." Lower ratings are available when the symptoms "are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time" or when the symptoms "require continuous medication for control." A Note further explains: "Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities." The Veteran contends that her costochondritis prevented her from working full time 1990s. See November 2008 VA examination report. She has further reported that her costochondritis and fibromyalgia led to her being placed on state disability and Social Security Disability in 1991. See August 2015 VA PTSD examination. The Veteran has reported a history of flare-ups about once a month, lasting up to several weeks, in which she feels so weak that she spends most of her time in bed and is unable to go outside. The Veteran also reports frequent nausea without vomiting, for which she takes medication. The Board finds that the evidence of record reflects that the Veteran may be experiencing symptomology not considered by the ratings schedule that could result in marked interference with her employment. Therefore, the Board finds that it is appropriate to refer the claim to the Director of Compensation Service to determine whether the assignment of an extraschedular rating is warranted. The Veteran was last afforded a VA examination in April 2011. However, there are numerous problems, symptoms, and diagnoses listed under the Veteran's previous medical history and it is unclear which of these, if any, are associated with her fibromyalgia, to include her reports of "mind fog," which she attributes to fibromyalgia. See September 2009 VA treatment records; see also December 2016 VA previous medical history. In light of the nearly 7 years since the Veteran's last VA examination, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran's fibromyalgia. Furthermore, an opinion as to whether the Veteran's fibromyalgia is manifested by symptoms not considered under the ratings criteria, such as cognitive disabilities, would be beneficial in determining whether an extraschedular rating is warranted. VA treatment records up through February 2011 and from March 2014 to March 2017 have been associated with the Veteran's claims file. No treatment records from February 2011 to March 2014 have been associated with the Veteran's claims file. However, it appears the Veteran continued to seek treatment with the VA during this time. See September 2015 rating decision. As these treatment records may be pertinent to the Veteran's claim for an increased rating on an extraschedular basis, the Board finds that a remand is warranted to obtain and associate with the electronic claims file any outstanding VA treatment records. To the extent that the records may be pertinent to the Veteran's claim for an extraschedular rating, the Veteran's Social Security Administration records and state disability records should also be obtained and associated with the Veteran's electronic claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records from February 2011 to March 2014, and since March 2017, and any private treatment records identified by the Veteran. 2. Ask the Veteran if her Social Security Administration and/or state disability benefits are relevant to her fibromyalgia. If her answer is yes, obtain and associate these records with the claims file. 3. Then, schedule the Veteran for a VA examination to assess the current severity of her service-connected fibromyalgia and any other symptoms secondary to her fibromyalgia, to include whether her fibromyalgia is manifested by symptoms such as cognitive disabilities. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. Then, refer the Veteran's claim for an increased rating for fibromyalgia to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2017). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ LAURA E. COLLINS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).
Case: 4:19-cr-00966-SRC Doc. #: 79 Filed: 06/08/20 Page: 1 of 3 PageID #: 138 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA ) ) Case No.: 4:19-cr-00966-SRC-SPM-2 Plaintiffs, ) ) v. ) ) ERRICK ROACH, ) ) Defendant. ) RENEWED MOTION FOR RECONSIDERATION OF PRE-TRIAL RELEASE COMES NOW, Defendant, Errick Roach, by and through his counsel, Ryan M. Smith, and hereby moves this Honorable Court to reconsider the pre-trial release of Defendant Roach (hereinafter “Defendant”). As grounds for this motion counsel for defendant states the following. 1. This Honorable Court has ordered that Defendant be detained pending trial pursuant to 18 U.S.C. § 3142(f)(2). 2. Defendant is charged with three offenses under 18 U.S.C. §§ 2119, and three offenses under 18 U.S.C. §§ 924(c) (Counts 1, 2, 3, 4, 7, and 8 of Indictment). 3. This cause is not yet set for trial. 4. Counsel for Defendant has provided alibi defense information to the Government regarding each of the carjackings for which Defendant has been charged. 5. Given the alibi evidence, Defendant believes a bond with house arrest would be the least restrictive detention for Defendant under the circumstances, while recognizing the need to protect the public given the seriousness of the crimes alleged. 6. The Government does not oppose Defendant’s motion for reconsideration of bond. 7. Defendant has been held in custody without bond for over six months. 8. Defendant has no record of prior criminal convictions. 1 Case: 4:19-cr-00966-SRC Doc. #: 79 Filed: 06/08/20 Page: 2 of 3 PageID #: 139 9. Defendant, a full-time college student at Harris Stowe State University, has no financial assets of his own. 10. Defendant has significant ties to the Eastern District of Missouri as all his close and personal family members reside in the St. Louis, Missouri area (including but not limited to: mother, siblings, aunts, uncles, cousins, and grandparents). 11. Defendant has never possessed a U.S. passport, and has never traveled outside of the United States. 12. If released pending trial Defendant would reside with his family who reside within the St. Louis, Missouri Area. Further, Defendant is willing and capable of subjecting to house arrest with permitted travel to/from his residence, HSSU Campus, court, undersigned counsel’s office, and medical appointments (as/if necessary). 13. The aforementioned conditions would reasonably assure the safety of the public. 14. This request is made for good cause shown. WHEREFORE, counsel requests Defendant Errick Roach be granted bond with house arrest, pending trial, and for any such further as this Honorable Court deems just and proper under the circumstances. Respectfully Submitted, /s/ Ryan M. Smith_____________ Ryan M. Smith #59928MO SMITH BROWN, L.L.C. 11520 St. Charles Rock Rd., Ste 215 St. Louis, MO 63044 5018718727 (telephone) 5018718727 (facsimile) [email protected] 2 Case: 4:19-cr-00966-SRC Doc. #: 79 Filed: 06/08/20 Page: 3 of 3 PageID #: 140 CERTIFICATE OF SERVICE The undersigned hereby certifies a copy of the foregoing was electronically filed with the Court for service by means of Notice of Electronic filing on this _8th_ day of __June______, 2020, upon: U.S. Attorney’s Office Eastern District of Missouri Assistant U.S. Attorney Allison H. Behrens 111 S. Tenth Street, 20th Floor St. Louis, MO 63102 [email protected] /s/ Ryan M. Smith_____________ 3
This is an action against the city of New Haven to recover damages for an injury to the plaintiff's premises, from a flow of surface-water, through the alleged negligence of the defendant. The material facts set forth in the complaint are as follows: On October 27th, 1907, and for a long time prior thereto, the plaintiff owned certain premises on Commerce Street in the city of New Haven. On that day the city of New Haven, acting by its duly authorized agents and servants, was engaged in excavating the public highway or road in front of the plaintiff's premises, which it was the duty of the defendant to keep in good repair and safe condition. As a result of the carelessness and negligence on the part of the defendant's agents and servants, the highway in front of the plaintiff's premises was carelessly and negligently left open or insufficiently packed or filled. During the following night it rained heavily and the water collected in the highway and passed thence under the sidewalk through the foundation walls of the plaintiff's building and into his cellar, where it damaged the contents and otherwise injured the building. To the complaint the defendant demurred, for the following reasons: "Because it appears from the complaint that the alleged negligent acts of the defendant were done by it within the limits of its public highway and within the limits of its jurisdiction, and that the alleged injury to the plaintiff resulting therefrom is wholly incidental to and consequential upon the exercise by the defendant of its lawful powers. "Because the liability imposed by statute on the defendant in the building and maintenance of its public highways extends to and includes only such injuries as result directly from the neglect and failure of the defendant to keep said public highways in good repair and safe condition, *Page 391 and the only allegation of negligence in the complaint from which the alleged injury to the plaintiff resulted is its failure to keep its public highway or road in good repair and safe condition, and said alleged injury did not, as appears from the complaint, result directly, but incidentally and consequentially from said failure of the defendant to keep its said public highway or road in good repair and safe condition. "Because it does not appear from the complaint that the defendant's acts from which the alleged injury resulted were done wantonly or unnecessarily, or that any wanton or unnecessary damage was done to the plaintiff by reason of any of the defendant's acts." This demurrer was sustained. It appears from the complaint that the negligent acts complained of were performed within the limits of a public highway while the defendant was engaged in the performance of a governmental duty, and for the public use and benefit. It is not averred that these acts were performed wantonly or maliciously, or that any wanton or unnecessary damage was done. It is alleged that the defendant is liable for leaving the excavations in the highway open and insufficiently packed, so that surface-water from a heavy rain-storm in the night season passed through the excavation into and upon the plaintiff's property, causing him damage. The law wisely provides that an action will not lie to recover damages for an injury which did not result from any direct action of the municipality, but occurred as a consequential injury incident to the discharge of its duty and lawful powers. "When authority is vested in the municipal corporation, by charter or statute, to improve streets and establish street grades, and, in the exercise of that power, changes are made in the surface of the city's highways, by which surface-water is caused to collect on or flow over the adjacent land of private owners, there is no implied liability *Page 392 on the part of the municipal corporation for such indirect and consequential injuries, provided the city does not exceed its lawful power." Tiedeman on Mun. Corp., § 354a, p. 732. In the recent case ofRudnyai v. Harwinton, 79 Conn. 91, 63 A. 948, which was an action for discharging surface-water upon adjoining land, this court held that in building and repairing highways a town was engaged in the performance of a public governmental duty imposed upon it by the State (General Statutes, § 2013), and was not liable in damages for consequential injuries to land of an adjoining proprietor, incident to the discharge of that duty, unless made so by statute. In that case the special circumstances under which a municipality can be made liable for the discharge of surface-water are stated as follows: Whatever may be the constitutional limit of the powers of towns under General Statutes, § 2031, respecting the drainage of highways, they certainly have no right to collect in ditches alongside the highway the surface-water flowing from lands above it, and discharge such water, by means of sluices across the road, upon the lower premises of an adjoining owner, when by a moderate expenditure of money the water could have been carried off so as not to injure such premises. One principle enunciated by this decision is that a municipal corporation has no right to collect surface-water from adjoining lands and from its streets, into an artificial channel, and then discharge it upon the land of an adjoining proprietor. In the present case no such elements of liability appear from the allegations set forth in the plaintiff's complaint. The grievance of which the plaintiff complains is that by the negligent repair of a certain public highway by the defendant, surface-water from a heavy rain-storm in the night season passed into and upon his premises, causing him damage. That such a complaint does not allege a cause of action is too well settled in this State to be seriously questioned. Rudnyai v.Harwinton, 79 Conn. 91, 63 A. 948; *Page 393 Downs v. Ansonia, 73 Conn. 33, 46 A. 243; Sisson v. Stonington,73 Conn. 348, 47 A. 662; Byrne v. Farmington, 64 Conn. 367, 30 A. 138;Bronson v. Wallingford, 54 Conn. 513, 9 A. 393; Judge v. Meriden,38 Conn. 90. But the plaintiff contends that the sufficiency of his complaint can be safely tested by the provisions of § 2020 of the General Statutes, which in part provides that "any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." This is a statute creating a liability for an injury to the person or property by means of any defect or want of repair in the highway. This liability is a limited one and not to be extended beyond the special purposes of protecting persons from injury while traveling on such highway. Seidel v. Woodbury, 81 Conn. 65, 70 A. 58;Bartram v. Sharon, 71 Conn. 686, 694, 43 A. 143; Makepeace v. Waterbury,74 Conn. 360, 362, 50 A. 876; Upton v. Windham, 75 Conn. 288, 291,53 A. 660. Public highways are to be built and kept in repair by the towns within which they are situated, so that they shall be safe and convenient for any person traveling thereon. This requisition, imposing upon all municipal corporations a serious and weighty obligation, by necessary implication authorizes them to do all acts necessary to the complete and faithful discharge of their duty in this particular. They may therefore bestow labor upon all parts of the located way, and make such changes in the natural surface of the soil as will add to the convenience or safety of the traveler. If, in consequence of such changes, the water accumulating upon the surface of the way, by the fall of rain or the melting of snow, passes on to adjoining lands in different places, or in somewhat greater quantities in particular places than it otherwise would have done, that is to be considered as one of the natural, probable, or necessary consequences resulting from the establishment and maintenance of the way; and therefore no action will lie for such injury, as for tort, but *Page 394 the damage must be regarded as a matter contemplated in the location of the road. Flagg v. Worcester, 13 Gray 603. In Bronson v.Wallingford, 54 Conn. 513, 9 A. 393, which was an action for an injury to the plaintiff's land by the turning on of water and sewage, it was held that municipal corporations, so long as their acts are kept within the authority of the statute, are not liable for the damage done to such adjoining land by the water turned upon it; and therefore are not liable to the owner of land abutting the highway, in an action for negligence in permitting a sluiceway or culvert to become obstructed, in consequence of which water was set back upon his premises. Byrne v. Farmington,64 Conn. 367, 30 A. 138. It was also held in Bronson v. Wallingford,supra, p. 521, that the statute (General Statutes, § 2031) as to draining highways had no application, and that this statute went so far as to exempt municipal corporations from damages from draining water from highways onto private lands, "unless it appears that the work was done in such a way as to do unnecessary damage, or that the water was drained into some place prohibited by the statute." Nothing of this character is alleged in the complaint now before us. The plaintiff places special emphasis upon the cases of Danbury N.R. Co. v. Norwalk, 37 Conn. 109, and Mootry v. Danbury, 45 id. 550. The present case is unlike Danbury N. R. Co. v. Norwalk, in which a railroad was carried through a densely populated village by a deep cut running under the principal street, which crossed it by a bridge, the station being located on the side of the street and supported by the walls of the excavation. The town undertook to construct a drain, which was to discharge the water of the street into the cut under the bridge, to the injury of the wall and the railroad. The railroad in its location and construction intercepted the natural course of the drainage of the locality, and it was indispensable that a drain be constructed for the street, but it appeared that, at a greater *Page 395 but not unreasonable expense, one could be constructed that would not injure the railroad company. In Mootry v. Danbury the authorities of the town of Danbury built a bridge in such a manner as to set back the water of a stream upon the plaintiff. The present case presents no such conditions. It appears from the plaintiff's complaint that the surface-water from a heavy rain-storm, by reason of the action of the defendant, the natural features of the ground, and the force of gravity, passed on and over the plaintiff's lot. The discharge of water was unusual, of a temporary and unexpected character. There is a wide distinction between a liability to deal with surface-water falling on land from a heavy rain-storm, and the right to set back the water of a stream by a permanent structure. There is no error. In this opinion the other judges concurred.
261 S.E.2d 908 (1980) The STATE of North Carolina, the Child Day-Care Licensing Commission of the Department of Administration and Joseph W. Grimsley, Secretary of the Department of Administration, ex rel. Rufus L. EDMISTEN, Attorney General of North Carolina v. FAYETTEVILLE STREET CHRISTIAN SCHOOL and its Operator Mr. Bruce D. Phipps; Gospel Light Christian School and its Operator Mrs. Delores B. Yokely; Grace Christian School and its Operator Mr. Earl R. Eaton; Immanuel Day Care Center and its Operator Mrs. Elizabeth Harrell; Baptist Temple School and its Operator Mr. Donald R. Carter; Grace Christian School and its Operator Mr. Robert Durham; Bethany Church School and its Operator Reverend Gene Woodall; Tabernacle Christian School Day Care and its Operator Mr. Randall Shook; South Park Baptist School and its Operator Mr. Daniel D. Carr; Gospel Light Baptist Church and its Operator Reverend Gary Blackburn; Friendship Christian Schools and its Operator Mr. Charles Stanley; and all others similarly situated. No. 125. Supreme Court of North Carolina. February 1, 1980. *910 Rufus L. Edmisten, Atty. Gen. by Andrew A. Vanore, Jr., Senior Deputy Atty. Gen. and Ann Reed, Sp. Deputy Atty. Gen., Raleigh, for the state. Strickland & Fuller by Thomas E. Strickland, Goldsboro and Lake & Nelson, P. A. by I. Beverly Lake, Jr., and I. Beverly Lake, Raleigh, for defendants-appellants. EXUM, Justice. This is a suit brought by the state for declaratory and injunctive relief against the class represented by the individually named defendants and "all others similarly situated." The state seeks a declaration that the defendants, church-operated day-care centers and their administrators, are subject to the provisions of the Day-Care Facilities Act of 1977 (Act), G.S. 110-85 et seq., and prays for an injunction restraining defendants from operating any day-care facilities until such time as they shall, pursuant to the Act, obtain day-care licenses from the North Carolina Child Day-Care Licensing Commission. Defendants appeal from (1) the superior Court's denial of their motion to dismiss, and (2) the superior Court's granting of the state's motion for a preliminary injunction. Upon a careful review of the record and oral arguments, we conclude that both the denial of defendants' motion to dismiss and the granting of the preliminary injunction constitute nonappealable interlocutory orders. Defendants' purported appeal therefrom should be dismissed and the Court of Appeals' opinion vacated. Accordingly, we dissolve our writ of supersedeas and remand the case to the superior court for further proceedings. At the center of this controversy is the scope of the state's constitutional power to regulate certain aspects of the operation of child day-care centers by churches and religious organizations. The Act in question establishes under the Department of Administration the Child Day-Care Licensing Commission and provides for mandatory annual licensing by the Commission of any day-care center which provides care on a regular basis for more than four hours per day for more than five children, "wherever operated and whether or not operated for profit." G.S. 110-86(3). Licenses are to be issued by the Secretary of Administration to operators of day-care facilities covered by the Act upon a showing of the facility's compliance with minimal standards relating to such matters as health and sanitation, capacity for emergency medical care, physical safety, staff-child ratio, and qualifications *911 of facility staff. G.S. 110-91, 93. The purpose of these requirements is to ensure a "comprehensive approach" to the state's protection of "the growing number of children who are placed in day-care facilities" under the supervision and care of persons other than their parents or legal guardians. G.S. 110-85. The record discloses that all of the individually named defendants were licensed in compliance with the Act sometime prior to the initiation of this suit. By verified complaint filed 20 October 1978, the state alleges that these defendants have now "asserted their refusal to be licensed or to apply for renewal of their licenses to operate day-care facilities" in accordance with the Act. The complaint prays both for a declaration that the Act may be applied to defendants without unconstitutionally interfering with their religious freedoms and for a preliminary and a permanent injunction restraining defendants from further noncompliance with the Act's provisions. Without filing answer, defendants moved on 7 December 1978 to dismiss the complaint on several grounds. On 11 December 1978 Judge Smith denied the motion to dismiss and allowed the state's motion for a preliminary injunction. Defendants appeal from these two orders. I. THE MOTION TO DISMISS Defendants assert on appeal that Judge Smith should have granted their motion to dismiss on the following grounds: (1) the Act cannot be constitutionally applied to church-operated day-care centers; (2) defendant institutions are not "day-care facilities" as defined in the Act and hence are not subject to its provisions; (3) the state has failed to obtain proper venue and the superior court lacks subject matter jurisdiction; and (4) the case has not been and cannot be properly certified as a class action. Although Judge Smith's order of 11 December 1978 rejected each of these arguments, his denial of defendants' motion with regard to ground (3), improper venue and lack of jurisdiction, and ground (4), failure to certify class action status, was specifically "without prejudice to defendants to file such additional motions as they think necessary should this action not be certified as a class action." The Court of Appeals affirmed Judge Smith's denial of the motion to dismiss and went on to hold, inter alia, that the challenged Act is constitutional on its face and as applied to defendants. We note that the first two grounds asserted by defendants in support of their motion to dismiss clearly serve to attack the legal sufficiency of the state's complaint to set forth a claim upon which relief may be granted. As to these grounds, defendants' motion is properly characterized as one under G.S. 1A-1, Rule 12(b)(6). See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Hodges v. Wellons, 9 N.C.App. 152, 175 S.E.2d 690 (1970). Ordinarily, a denial of a motion to dismiss under Rule 12(b)(6) merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court's ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal may be taken. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Godley Auction Co. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). In the case before us, we find that Judge Smith's refusal to allow defendants' motion to dismiss based upon grounds (1) and (2) above did not finally determine any issue in the case or threaten to impair any right of defendants that could not be later protected. As to those grounds, then, the denial of the motion to dismiss was clearly an interlocutory *912 order from which any purported appeal is premature. G.S. 1-277; G.S. 7A-27.[1] Nor did Judge Smith's denial of that part of defendants' motion "to dismiss" based upon ground (3), improper venue and lack of jurisdiction, and ground (4), lack of class action certification, constitute final judgments for purposes of appellate review. With regard to ground (3), defendants argue that the state must proceed under G.S. 110-104, which provides that injunctive relief against the continuing operation of a day-care center not in compliance with the Act may be sought in the superior court of the county in which the day-care center is located.[2] Defendants point out that while the present action was instituted in the Superior Court of Wake County, ten of the eleven day-care centers named in the complaint are situated in counties other than Wake. Thus, defendants contend, the state has not obtained proper venue under section 104 of the Act; the state has no "standing" to maintain an action for injunctive relief apart from the express provisions of the statutory plan; and the Wake County Superior Court therefore lacks jurisdiction over the subject matter of the suit. We cannot agree that defendants' quarrel with venue raises an issue of jurisdiction. Matters of venue do not per se trigger questions of jurisdictional power. And neither the spirit and intent of the Act nor section 104 permit, much less compel, a conclusion that the Act is intended to restrict the general statewide jurisdiction of the superior court or to limit the scope of relief normally available in declaratory judgment actions.[3] Defendants' motion "to dismiss" for lack of proper venue thus presents no challenge to the trial court's power to entertain the subject matter of the suit. At best, the motion serves only to question the propriety of the state's choice of Wake County as venue for the action. The motion should accordingly be treated as one to remove the action, not dismiss it. Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965); State ex rel. Cloman v. Staton, 78 N.C. 235 (1878). *913 It is true that an appeal from a final denial of a motion for change of venue is not premature. Coats v. Hospital, supra; Klass v. Hayes, 29 N.C.App. 658, 225 S.E.2d 612 (1976). In the instant case, however, the trial court's rejection of defendants' contentions both as to improper venue and failure to certify class action status was specifically without prejudice to defendants' right to file additional motions should class action certification ultimately be denied. Judge Smith's order in this regard was clearly tentative. He, in effect, postponed his ultimate response to the merits of both the venue and class action arguments raised by defendants. There is not the slightest suggestion in the record that defendants suffered any impairment of a substantial right by Judge Smith's interlocutory deferral of action. The order denying defendants' motion to dismiss on grounds (3) and (4) was thus not immediately appealable. II. THE PRELIMINARY INJUNCTION A similar analysis applies to defendants' appeal from Judge Smith's order granting the state's motion for a preliminary injunction. The purpose of a preliminary injunction is ordinarily to preserve the status quo pending trial on the merits. Its issuance is a matter of discretion to be exercised by the hearing judge after a careful balancing of the equities. Its impact is temporary and lasts no longer than the pendency of the action. Its decree bears no precedent to guide the final determination of the rights of the parties. In form, purpose, and effect, it is purely interlocutory. Thus, the threshold question presented by a purported appeal from an order granting a preliminary injunction is whether the appellant has been deprived of any substantial right which might be lost should the order escape appellate review before final judgment. If no such right is endangered, the appeal cannot be maintained. G.S. 1-277; Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975). In the instant case, the order appealed from restrains defendants from operating day-care centers without complying with the licensing requirements of the Act. Since defendants have all held valid licenses in the past, the order serves only to ensure that they continue their previous compliance pending disposition of the case on its merits. Defendants offer no evidence of any substantial right which will be irrevocably lost if the state's entitlement to the preliminary injunction is not now reviewed. Their contention that further compliance with the Act's requirements violates their constitutionally guaranteed religious freedoms goes to the heart of their legal challenge to the application of the Act itself and must await resolution at the final hearing when all the facts upon which such resolution must rest can be fully developed. Milk Commission v. Dagenhardt, 261 N.C. 281, 134 S.E.2d 361 (1964); Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792 (1960). Under the facts of this case, defendants have no right to appeal from the order granting the preliminary injunction. Our refusal to allow defendants' appeal is not a surrender to technical requirements of finality. The statutes and rules governing appellate review are more than procedural niceties. They are designed to streamline the judicial process, to forestall delay rather than engender it. "There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Veasey v. Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950). Where, as here, a party seeks on no more than pleadings and affidavits to challenge the constitutionality of a statute, not on its face but as applied to that party, and pursues that challenge by attempting to appeal from an interlocutory order, an appellate court should be especially mindful of the dangers inherent in the premature exercise of its jurisdiction. These considerations are particularly relevant in the context of the case before *914 us. Defendants do not challenge the Act on its face. They strenuously argue, however, that the Act cannot apply to them without exceeding the bounds of certain constitutional limitations. More specifically, they contend that the operation of each day-care center is an integral part of the ministry of its supporting church and that the mandatory state licensing of the facilities violates the free exercise of their religion. With the exception of defendants' own affidavits, however, there is nothing in the record to guide the inquiry of this Court or of any other judicial tribunal into the degree to which defendants' day-care services are in fact religious activities warranting special constitutional protection. Nor does the record reveal any factual basis, save that suggested by general statements in the pleadings, upon which to determine the extent to which the Act's regulations do in fact interfere with defendants' allegedly religious conduct. In short, defendants' assertions in their affidavits have not been tested by cross-examination; their allegations have not been buttressed by the introduction of evidence; and there has been no resolution of the factual issues upon which defendants' constitutional claims are grounded.[4] Yet the validity of their constitutional argument can be measured on appeal only against a fully developed factual record which clearly delineates the nature and scope of the unconstitutional intrusion which defendants assert arises from the burden imposed by the Act. Such a record is essential to the proper determination of the constitutional infirmities, if any, of a statute's application to a particular situation. Absent such a record, our intervention is necessarily premature. This Court will pass upon the constitutionality of a statute only when the issue is squarely presented upon an adequate factual record and only when resolution of the issue is necessary to determine the rights of the parties before it. Nicholson v. Education Assistance Authority, 275 N.C. 439, 447, 168 S.E.2d 401, 406 (1969); Carbide Corp. v. Davis, supra, 253 N.C. at 327, 116 [email protected]. Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). We decline in this case to exercise our general supervisory power to consider the matters raised by the attempted appeals, see, e. g., Consumers Power v. Power Co., supra, 285 N.C. 434, 206 S.E.2d 178, and accordingly dismiss the appeals ex mero motu. The decision of the Court of Appeals is vacated and the writ of supersedeas issued by this Court is hereby dissolved. Nothing expressed herein should be construed as an expression of our own opinion on the constitutional issues attempted to be raised by defendants. The case is remanded to the Court of Appeals to be further remanded to the superior court for further proceedings. VACATED AND REMANDED. NOTES [1] These statutes provide in pertinent part: "§ 1-277. Appeal from superior or district court judge.—(a) An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial." "§ 7A-27. Appeals of right from the courts of the trial division: . . . . . . (b) From any final judgment of a superior court . . . appeal lies of right to the Court of Appeals. . . . . . . (d) From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which (1) Affects a substantial right, or (2) In effect determines the action and prevents a judgment from which appeal might be taken, or (3) Discontinues the action, or (4) Grants or refuses a new trial, appeal lies of right directly to the Court of Appeals." [2] G.S. 110-104 reads in its entirety: "Injunctive relief.—The Secretary or his designee is empowered to seek injunctive relief in the superior court of the county in which a day-care center is located against the continuing operation of that day-care facility at any time, whether or not any administrative proceedings are pending. The superior court may grant injunctive relief, temporary, preliminary or permanent when there is any violation of this Article, or of the rules and regulations promulgated by the Commission, which threatens serious harm to children in the day-care facility or when a final order to deny or revoke a license has been violated or when a day-care facility is operating without a license." [3] The mere existence of an alternate adequate remedy will not be held to bar an appropriate action for declaratory judgment. See G.S. 1A-1, Rule 57. And in many cases a preliminary injunction to maintain the status quo of the parties may be an appropriate form of interim relief ancillary to a pending suit for declaratory judgment. See 26 C.J.S. Declaratory Judgments § 111 b, and cases cited therein; see, e. g., Campbell v. Church, 19 N.C.App. 343, 199 S.E.2d 34, cert. denied, 284 N.C. 252, 200 S.E.2d 652 (1973). [4] The trial court made no findings, nor would it have been appropriate for it to have done so, on those points which are central to defendants' claims on the merits. Such findings must await the final hearing and be based on evidence appropriately adduced at that time.
IN THE TENTH COURT OF APPEALS No. 10-16-00269-CR RAYMOND WEBER, Appellant v. THE STATE OF TEXAS, Appellee From the County Court at Law Walker County, Texas Trial Court No. 15-0773 ORDER Appellant’s counsel presented an Anders brief to the Court which was filed on February 21, 2017. A motion to extend the time for appellant to file his pro se response to counsel’s Anders brief was also filed on the same date. The Court has already notified appellant by letter dated February 21, 2017 that appellant has 30 days to file a response to counsel’s Anders brief if appellant so chooses. Accordingly, appellant’s motion for extension of time is dismissed as moot. PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motion dismissed as moot Order issued and filed March 8, 2017 Weber v. State Page 2
489 So. 2d 1378 (1986) DELTA DRILLING COMPANY and Aetna Casualty and Surety Company v. Thomas L. CANNETTE. No. 55621. Supreme Court of Mississippi. May 21, 1986. Rehearing Denied July 9, 1986. William D. Blakeslee, Robert H. Walker, Bryant, Stennis & Colingo, Gulfport, for appellants. Robert W. Smith, Biloxi, for appellee. Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ. ROBERTSON, Justice, for the Court: I. This workers' compensation appeal presents questions regarding the adequacy of proof to establish a work connected injury and disability, the authority of the Mississippi Workers' Compensation Commission to reopen the evidentiary record to direct the taking of additional testimony, and finally whether the evidence here suggests an apportioned award. Not formally raised but of greater concern is the inordinate delay which has been encountered in bringing this matter to a conclusion — the injury having occurred on October 3, 1980, and the motion to controvert having been filed on April 3, 1981. For the reasons explained below, we hold that the evidence adequately established that Claimant sustained a work connected *1379 injury and that the procedural indulgences granted Claimant by the Commission en route were well within the Commission's authority and discretion. Because we are of the opinion that the evidence overwhelmingly establishes that a part of Claimant's disability is the proximate result of a preexisting handicap, disease or lesion, we vacate the judgment below and remand for the entry of an apportioned award. II. Thomas L. Cannette, Claimant below and Appellee here, was born on February 10, 1944, and is now some 42 years of age. Cannette has not worked since October 3, 1980. He has a third grade education, can neither read nor write and has spent most of his adult life as a roughneck on oil rigs. Many of these years have been spent in the service of Delta Drilling Company, Employer herein and one of the Appellants herein. The parties have stipulated that Cannette is permanently, totally and occupationally disabled. On October 3, 1980, Cannette was working for Delta Drilling on Rig No. 56 outside of Columbia, Mississippi. His description of his injury appears in the record as follows: We were tripping pipe... . The driller was brand new on the rig. He didn't know nothing about it.... I've got a belt on, and I reach out and put rope around the drill pipe and pull it in... . You've got five or six inches before the pipe sits on the board, the driller slaps on the handle, the brake handle. You've got a twenty to twenty-five ton block holding that and if you have got a wrap around it and already pulling ... when he slams down on the brake the drill pipe and block will sling on you... . . When he did that he just pulled me half in two... . It felt like all my bottom slapped to my head ... it wasn't two or three stands and he pushed down on the handle again... . He was getting nervous... . Last time he pulled, I felt like everything tore loose. I felt like my whole guts were tore loose. I felt like my whole guts were coming out of my stomach... As I was getting in my car, I got halfway and I had to stop and I started throwing up ... The only other witness who testified was Dr. Jerry R. Adkins. After several false starts, Dr. Adkins supplied medical expert testimony regarding the work connectedness of Cannette's injury and disability. On May 19, 1982, the Administrative Judge entered an order dismissing Cannette's claim on grounds that the evidence failed to establish a compensable injury which arose out of and in the course and scope of Cannette's employment. After considerable procedural maneuverings to be noted later, the Mississippi Workers' Compensation Commission on May 27, 1983, entered its order in lieu of the order of the Administrative Judge finding that Cannette had indeed sustained a compensable work connected injury and ordering Delta Drilling Company, Employer, and Aetna Life and Casualty Company, Carrier, to pay to Cannette permanent and total disability benefits at the rate of $98.00 per week beginning October 3, 1980, and continuing for a period not to exceed 450 weeks for a total sum of $44,100.00. Employer and Carrier were also ordered to provide reasonable and necessary medical services and supplies. Miss. Code Ann. § 71-3-15 (1972). On January 25, 1984, the Circuit Court of Stone County, Mississippi, affirmed. This appeal has followed. III. The bottom line position of Employer and Carrier is that Cannette has simply not suffered a compensable, work connected injury. In their brief they even deny that Cannette was at work on the day he claims he was injured. The Commission, however, found to the contrary and the Circuit Court has affirmed. The finding under attack here, viz. that Cannette suffered a work connected injury on October 3, 1980, and is occupationally disabled as a result thereof, is a finding of fact made by an administrative agency charged in law with the responsibility for making such findings. Miss. Code Ann. § 71-3-47 (1972); Dunn, Mississippi Workmens *1380 Compensation, §§ 284, 361-63 (3d ed. 1982). Under our statutory scheme, the Mississippi Workers' Compensation Commission is the factfinder. Our scope of review on appeal is limited, as is the authority of the circuit court. Our function is to determine whether there is substantial credible evidence which would support the factual determination made by the Commission. Georgia-Pacific Corporation v. Veal, 484 So. 2d 1025, 1027 (Miss. 1986). If there should be such substantial credible evidence, we are without authority to disturb that which the Commission has found, even though that evidence would not be sufficient to convince us were we the factfinders. Olen Burrage Trucking Co. v. Chandler, 475 So. 2d 437, 439 (Miss. 1985); South Central Bell Telephone Company v. Aden, 474 So. 2d 584, 589-90 (Miss. 1985); Staple Cotton Services Association v. Russell, 399 So. 2d 224, 228-29 (Miss. 1981); King & Heath Construction Co. v. Hester, 360 So. 2d 692, 694 (Miss. 1978). It matters little that this might be a doubtful case of compensability. This Court has repeatedly directed both the administrative and judicial agencies considering such cases that doubts should be resolved in favor of finding compensability to the end that the beneficent purposes of the act may be implemented. South Central Bell Telephone Company v. Aden, 474 So. 2d 584, 590 (Miss. 1985); Barham v. Klumb Forest Products Center, Inc., 453 So. 2d 1300, 1303-04 (Miss. 1984). In this context we recall that the only fact witness was the Claimant, Thomas Cannette. His narrative description of the injury, set forth in Section II above, is sufficient unto the day. To be sure, our law requires that a disability determination be supported by medical findings. Miss. Code Ann. § 71-3-3(i) (Supp. 1954); Cole v. Superior Coach Corp., 234 Miss. 287, 106 So. 2d 71, 72 (1958). Dr. Adkins supplied this requisite by this testimony that "his [Cannette's] job related injury was related to his subsequent findings and his physical disability ... I am certain that his job was related to his physical findings, yes." The fact that Dr. Adkins was uncertain regarding the extent to which Cannette disability was attributable to the October 3, 1980 accident and the further fact that Dr. Adkins refused to employ the word "substantially" to his opinion are in no way fatal. Our law does not require a precise, complete and unequivocal medical explanation of the extent to which an industrial accident has caused a claimant's injury and attendant disability. South Central Bell Telephone Company v. Aden, 474 So. 2d 584, 591 (Miss. 1985); Myles v. Rockwell International, 445 So. 2d 528, 536 (Miss. 1983). In short, we reject and deny employer and carrier's assignment of error that Claimant's evidence, both lay and medical, was insufficient to sustain an award. IV. Employer and carrier further argue that the full Commission order should be reversed because of certain procedural indulgences allegedly afforded Claimant without authority. These have principally to do with the Commission's allowing Claimant to reopen its case to produce a second deposition by Dr. Adkins. We think it apparent that Claimant properly supported its application to reopen with a report from Dr. Adkins. The fact that this report was not in question and answer, sworn, evidentiary form in no way precluded the Commission's considering it as supporting the proposition that a mistake of fact had been made on the question of the work connectedness of Cannette's disability. We emphasize that the Commission is an administrative agency, not a court. It has broad discretionary authority to establish procedures for the administration of compensation claims. It has like authority to relax and import flexibility to those procedures where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers' Compensation Act. It is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of *1381 its own procedural rules. Today is not such a day. V. Employer and Carrier complain, in the alternative, that the evidence overwhelmingly establishes that Claimant's disability is at least in part attributable to a preexisting condition. In this regard Employer and Carrier urge that the Commission erred in its refusal to apportion the compensation award. Cited in support is Miss. Code Ann. § 71-3-7 (1972) which states, inter alia: Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph would be payable shall be reduced by that proportion which such preexisting handicap, disease, or lesion contributed to the production of the results following the injury. The ground rules for apportionment of benefits are illustrated in Riverside of Marks v. Russell, 324 So. 2d 759 (Miss. 1976), in which the Court stated as follows: To be entitled to apportionment, however, the employer must establish the four factors set out in Cuevas v. Sutter Well Works, 245 Miss. 478, 485, 150 So. 2d 524 (1963): (1) that there must be a pre-existing physical handicap, disease or lesion, (2) this pre-existing condition must be shown by medical findings, (3) to be a material contributing factor in the results following injury, and (4) the compensation otherwise payable is reduced by that proportion which the pre-existing condition contributed to the production of the results following the injury. (Citations omitted) Id. at 762. The record reflects without contradiction that, prior to October 3, 1980, Cannette had experienced four prior hernias and pain associated with the scar tissue resulting from these hernias. The only medical testimony before the Commission was that of Dr. Adkins. As indicated above, Dr. Adkins was of the opinion that Claimant's present disability was related to the October 3, 1980, injury. It is important to realize that Dr. Adkins had treated Cannette through each of his four prior surgeries. Therefore, when Dr. Adkins refused to state that Claimant's present disability was solely caused by the October 3, 1980, accident, the only logical inference was that the prior handicaps, diseases, or conditions experienced by Claimant (and of which Dr. Adkins had extensive knowledge), also contributed to his present disability. We recognize that the Commission's finding on the apportionment issue is essentially a factual finding entitled to deference under the substantial evidence rule. Findings may be determined clearly erroneous, however, if, on the entire record, the reviewing court is left with a firm and definite conviction that a mistake has been made by the Commission in its findings of fact. Central Electric Power Association v. Hicks, 236 Miss. 378, 390, 110 So. 2d 351 (1959). This is so even though there may be slight evidence before the Commission to support the finding made. South Central Bell Telephone Company v. Aden, 474 So. 2d 584, 595 (Miss. 1985). Here the totality of the evidence in the record leaves us with the firm and definite conviction that the Commission was mistaken in its failure to sustain employer and carrier's defense of apportionment. In Southeastern Construction Company v. Dodson, 247 Miss. 1, 153 So. 2d 276 (1963), we stated: That percentage [of the degree of contribution] is a matter largely to the sound discretion of the Commission, to be exercised in view of all the circumstances, and upon a fair view of all the facts. 247 Miss. at 15, 153 [email protected]. This premise in mind, we vacate so much of the judgment of the Circuit Court as affirms the Commission's refusal to apportion the award given Cannette and direct that the matter be remanded by the Circuit Court to the Commission with instructions to undertake such proceedings and consider *1382 such evidence as may be proper and in the end, to exercise its sound discretion, to determine the extent to which Cannette's permanent, total occupational disability is the result of a preexisting handicap, disease or lesion within the meaning of Miss. Code Ann. § 71-3-7 (1972). We have considered the other points assigned and pressed upon us by counsel and find that they merit neither comment nor reversal. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., HAWKINS, DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.
Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-22-2003 USA v. Nunez Precedential or Non-Precedential: Non-Precedential Docket No. 03-1380 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Nunez" (2003). 2003 Decisions. Paper 35. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/35 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 03-1380 UNITED STATES OF AMERICA v. FRANCISCO NUNEZ Appellant On Appeal From the District Court of the Virgin Islands (D.C. Crim. Action No. 02-cr-00097) District Judge: Honorable Thomas K. Moore Argued December 10, 2003 BEFORE: NYGAARD, BECKER and STAPLETON, Circuit Judges (Opinion Filed December 22, 2003) Douglas J. Beevers (Argued) Office of Federal Public Defender P.O. Box 1327, 51B Kongens Gade Charlotte Amalie, St. Thomas, USVI 00804 Attorney for Appellant Anthony J. Jenkins Office of the United States Attorney 5500 Veterans Building, Suite 260 Charlotte Amalie, St. Thomas, USVI 00802-6924 and David M. Nissan United States Attorney Bruce Z. Marshack (Argued) Office of the United States Attorney 1108 King Street, Suite 201 Christiansted, USVI 00820 Attorneys for Appellee OPINION OF THE COURT STAPLETON, Circuit Judge: Appellant Francisco Nunez pled guilty to unlawful entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). The presentence report recommended a sixteen-level enhancement because Nunez had previously been convicted of a “drug trafficking offense” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(i). The District Court accepted this recommendation and sentenced Nunez to forty-six months of incarceration followed by three years of supervised release. He appeals, asserting that this was reversible error. Guideline § 2L1.2(b)(1)(A)(i) requires a sentencing court to increase a defendant’s offense level by 16 where that defendant has been previously deported after 2 “a conviction for a felony that is . . . a drug trafficking offense for which the sentence exceeded 13 months.” A “drug trafficking offense” is defined in the Guidelines commentary as: an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 2L1.2, comment., n.1(B)(iii). The Guidelines commentary further provides that conspiracies and attempts to commit such offenses are included in “drug trafficking offenses.” U.S.S.G. § 2L1.2, comment., n.4. Nunez concedes that he was deported following his conviction in a New York state court of violating N.Y. Penal Law § 220.39, which provides as follows: Criminal sale of a controlled substance in the third degree: A person is guilty of criminal sale of a controlled substance in the third degree where he knowingly and unlawfully sells: 1. A narcotic. N.Y. Penal Law § 220.39 (1999). New York’s controlled substance statute defines “sell” as follows: Controlled substances: definitions: (1) “Sell” means to sell, exchange, give or dispose of to another, or to offer or agree to do the same. N.Y. Penal Law § 220.00 (1999). The New York indictment charged Nunez with having “knowingly and unlawfully sold to a police officer known to the Grand Jury, a narcotic drug, to wit, cocaine” on May 14, 1997, in the County of New York. 3 When Nunez pled guilty to this charge, the judge questioned him to establish the factual basis for his plea. The following exchange occurred: THE COURT: Is it true that in New York County on June 5, 1997, you knowingly unlawfully sold to another individual a substance containing a narcotic drug weighing one half ounce or more. Is that true? DEFENDANT NUNEZ: Yes. THE COURT: What was the drug? DEFENDANT NUNEZ: Cocaine. THE COURT: Where did this sale occur? DEFENDANT NUNEZ: Amsterdam Avenue THE COURT: What street? DEFENDANT NUNEZ: 141st Street. THE COURT: Was that about six in the evening? DEFENDANT NUNEZ: I don’t remember exactly. THE COURT: But, it was later in the day? It wasn’t in the morning, was it? Was it more later in the day. DEFENDANT NUNEZ: In the afternoon.. Appellee’s App. at 17-18. Nunez insists that one can violate N.Y. Penal Law § 220.39 “without proof of either possession or distribution.” Accordingly, he concludes that his “conviction does not fit the guideline definition.” 4 We are satisfied that Nunez’s New York conviction was for a “drug trafficking offense” and that a sixteen-level enhancement was required. We may assume arguendo that there may be peripheral cases within the scope of § 220.39 that involve neither possession nor distribution. This does not aid Nunez, however. The offense Nunez committed, as described by him at the time of his plea, is at the heart of a statute prohibiting the trafficking in controlled substances. Even when a court applies a categorical approach to determining the character of a prior conviction, as Nunez urges us to do here, there is an established exception to the rule that the statutory elements and not the underlying facts control. “When the ‘statutory definition of the prior offense’ is broad enough to permit conviction based on conduct that falls outside the scope of [the enhancement provision], it becomes necessary to look beyond the statute of conviction. Only in such cases may the sentencing court look to the facts of the particular case in order to determine whether the trier of fact necessarily found elements that would qualify the offense” under the enhancement provision. United States v. Watkins, 54 F.3d 163 (3d Cir. 1995). Here, the fact finder – the New York judge – clearly found all of the elements of a “drug trafficking offense” within the meaning of U.S.S.G. § 2L1.2. The judgment of the District Court will be affirmed. /s/ Walter K. Stapleton Circuit Judge 5
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT TRACY SUE GURDIAN, ) ) Appellant, ) ) v. ) Case No. 2D14-4077 ) ROBERT J. GURDIAN, ) ) Appellee. ) ) Opinion filed November 13, 2015. Appeal from the Circuit Court for Collier County; Ramiro Man͂alich, Judge. Tracy Sue Gurdian, pro se. Robert J. Gurdian, pro se. WALLACE, Judge. Tracy Sue Gurdian (the Former Wife) appeals a Supplemental Final Judgment to Modify Child Support and Alimony, which granted a Supplemental Petition to Modify Child Support and Alimony filed by Robert J. Gurdian (the Former Husband) and denied the Former Wife's request to hold the Former Husband in contempt for failing to pay his support obligations. The Former Wife argues, in part, that the trial court erred in modifying the Former Husband's child support and alimony obligations retroactively to the date he filed the petition for modification and in awarding the Former Husband a judgment against the Former Wife in the amount of $58,468.70 based upon his overpayment of past support. Based on the unusual circumstances present in this case, we agree. Accordingly, we reverse the supplemental final judgment to the extent that it modifies the Former Husband's child support and alimony obligations retroactively and awards the Former Husband a judgment against the Former Wife in the amount of $58,468.70. We reject the Former Wife's additional arguments without further discussion, and we affirm the supplemental final judgment in all other respects. I. THE FACTUAL AND PROCEDURAL BACKGROUND On April 8, 2009, the trial court entered a final judgment of dissolution of marriage, dissolving the parties' five-year marriage in accordance with the terms of a marital settlement agreement (the MSA) executed by the parties. Under the MSA, the Former Husband was to pay $1353 in child support and $3750 in permanent alimony each month. In pertinent part, the Former Husband's obligation to pay the Former Wife alimony was only modifiable under the following conditions: (1) the Husband's gross income . . . reduces to an amount in which Three Thousand Seven Hundred Fifty Dollars ($3,750.00) is equal to or greater than Seventy Percent (70%) of the his [sic] income . . .or (2) the Wife earns income . . . equal to or greater than Fifty Thousand Dollars ($50,000.00) per year. According to the MSA, the foregoing support amounts were based upon the Former Husband's gross income of $10,683.33 a month. On August 5, 2011, the Former Husband filed his supplemental petition to modify child support and alimony under the terms of the MSA. He argued that he had -2- become unemployed on July 7, 2011, which warranted a reduction or termination of alimony and a modification of his child support obligation. Following an evidentiary hearing held December 12, 2012, the trial court found that the Former Husband had been terminated from his employment of twenty- seven years with a construction company when he became a whistleblower. Thereafter, the Former Husband became involuntarily unemployed for several months, during which time he used his severance settlement from the construction company to pay his reasonable living expenses, debts, and most of his support obligations to the Former Wife through November 2012. The trial court found that "[t]he Former Husband exhausted all or most of his severance pay in meeting his obligations, including his spousal and child support obligations to the Former Wife."1 Although not addressed in the supplemental final judgment, the Former Husband testified, and the Former Wife does not dispute, that part of the Former Husband's severance package from the construction company included $250,000 in future lost wages.2 According to an excerpt of the Former Husband's testimony at the 1 Although the record includes an excerpt of the Former Husband's testimony at the December 12, 2012, final hearing, it does not include the transcript of the final hearing on the Former Husband's petition to modify alimony and child support. Thus the Former Wife cannot establish that any of the trial court's factual findings in its supplemental final judgment are not supported by competent substantial evidence. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court [cannot] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory."). 2 The Former Husband testified that his total severance settlement with the construction company was $333,015 after paying his attorney's fees. The amount in excess of the $250,000 in future lost wages included reimbursement to the Former Husband for his "share in the real estate partnership and [payments on] a company . . . loan [that he] had made to the company," which had been distributed to the Former -3- final hearing, this amount was to compensate him for future lost wages subsequent to July 2011. The trial court found that the Former Husband has obtained new employment, earning $64,000 per year with a gross income of $5333 per month. Based upon this finding, the trial court calculated the Former Husband's child support obligation to be $698.65 per month under the child support guidelines. Thus the trial court reduced the Former Husband's child support obligation to $698.65 per month retroactive to August 5, 2011, the date that he filed the supplemental petition. The trial court further found that the Former Husband had continued to make child support payments of $1353 per month, the established rate under the MSA, from September 2011 through September 2012 (thirteen months), for a total of $17,589.00 in child support. Under the new child support obligation in the amount of $698.65 per month, the trial court found that the Former Husband should have paid $15,370.30 during the period between September 2011 and June 2013 (twenty-two months), resulting in an overpayment in the amount of $2218.70.3 After concluding that a reduction in the Former Husband's alimony obligation was appropriate under the MSA, the trial court considered the Former Husband's net monthly income in determining an appropriate amount. The trial court found that after subtracting the Former Husband's child support obligation and his Husband "in [his] equitable distribution at the time of [the parties'] divorce." In addition, the Former Husband stated that he paid a $75,000 tax debt from the $333,015 settlement amount that he received. 3 The trial court apparently calculated the Former Husband's new child support obligation to a date nearer to the date of its entry of the supplemental final judgment, which was September 8, 2013. -4- monthly living expenses, the Former Husband was left with a monthly deficit of $858.65. Accordingly, it concluded that the Former Husband's alimony obligation should be reduced to $1.00 per year, retroactive to August 5, 2011, the date that the Former Husband had filed his supplemental petition.4 The trial court further found that the Former Husband had continued to pay the Former Wife alimony in the amount of $3750 per month under the MSA from September 2011 through November 2012 (fifteen months), for a total of $56,250 in alimony during that period. Because the trial court had awarded the Former Wife alimony in the amount of $1.00 per year retroactive to August 5, 2011, the trial court concluded that the Former Husband had overpaid the Former Wife $56,250 in alimony.5 Based upon the above-calculated overpayments for child support and alimony, the trial court awarded the Former Husband a judgment against the Former Wife in the amount of $58,468.70. In the supplemental final judgment, the trial court permitted the Former Husband to use the judgment amount "as a credit against all future alimony and child support and other monies the Former Husband may owe the Former Wife until such time as the judgment is satisfied or the credit is exhausted." The result is that the Former Husband is not presently paying any child support or alimony to the Former Wife. 4 Although the Former Wife's attorney did not agree with the trial court's findings concerning the Former Husband's income, both attorneys agreed that the trial court should award a nominal amount of alimony to the Former Wife rather than eliminating alimony altogether, so as to preserve the Former Wife's ability to seek an increase in alimony should the Former Husband's financial circumstances change. 5 Apparently, the trial court did not deduct the Former Wife's entitlement to $1 in 2012 and 2013 in determining the overpayment amount. -5- II. DISCUSSION We review the trial court's decision to apply the modification to child support and alimony retroactively for abuse of discretion. "A trial court has the discretion to modify alimony effective as of the date of the petition for modification or subsequent thereto." Ray v. Ray, 707 So. 2d 358, 360 (Fla. 2d DCA 1998); see also Thyrre v. Thyrre, 963 So. 2d 859, 861-62 (Fla. 2d DCA 2007) (quoting Ray in support of same). "Retroactivity is the rule rather than the exception which guides the trial court's application of discretion when modification of alimony or child support is granted." DeSantis v. Smith, 634 So. 2d 796, 797 (Fla. 4th DCA 1994); see also Thyrre, 963 So. at 862 (quoting DeSantis in support of same). "Accordingly, there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive." Thyrre, 963 So. [email protected]. "However, the circumstances of the case may dictate otherwise. . . . [T]he proof may demonstrate a substantially different condition at the hearing on the petition than that which existed on the date of the filing thereof. These are the things that involve a trial judge's discretion." Bloom v. Bloom, 503 So. 2d 932, 934 (Fla. 4th DCA 1987); see also Thyrre, 963 So. 2d at 862 (quoting Bloom in support of same). We conclude that the trial court abused its discretion in modifying the Former Husband's child support and alimony obligations retroactive to the date of the petition. When the Husband filed his supplemental petition to modify child support and alimony, he was unemployed and the amount of any settlement with his former employer for his severance from the company was an unknown quantity. But the Former Husband entered into a settlement with his former employer just a few days -6- after filing the petition, which included $250,000 in future lost wages. The trial court found that "[t]he Former Husband exhausted all or most of his severance pay in meeting his obligations, including his spousal and child support obligations to the Former Wife." In fact, he was able to pay his child support obligation under the MSA through September 2012 and his alimony obligation under the MSA through November 2012. Accordingly, during the sixteen-month period between the filing of the supplemental petition and the final hearing, the Former Husband was able to meet almost all of his support obligations under the MSA by using the settlement funds from his former employer, which included a wage component. The Former Husband properly used the $250,000 in future lost wages to pay his expenses and support obligations under the MSA. Wages and salary are specifically included in the definition of "income" under section 61.046(8), Florida Statutes (2011), and should be considered in determining child support and alimony obligations. Fitzgerald v. Fitzgerald, 912 So. 2d 363, 366-67 (Fla. 2d DCA 2005). Moreover, in the context of a dissolution proceeding, the Florida Supreme Court has held that damages awarded "for future loss of wages [on a worker's compensation claim] may be taken into account in determining alimony and support awards." Weisfeld v. Weisfeld, 545 So. 2d 1341, 1346 (Fla. 1989); see also White v. White, 820 So. 2d 432, 434 (Fla. 4th DCA 2002) (citing Weisfeld in support of same). The Former Husband's severance settlement was sufficient to cover his expenses and support obligations under the MSA during the period that the supplemental petition was pending, and the wage component of that settlement greatly exceeded his income at the time of the final hearing. Thus the trial court's retroactive -7- application of the modification of child support and alimony based upon his income at the time of the final hearing resulted in the Former Husband receiving a credit for overpayment of child support and alimony during a period in which his income was sufficient to support those payments. The retroactive application of the modification also leads to the imposition of a great hardship on the Former Wife and the parties' children, who are not presently receiving any support because of the trial court's entry of a judgment in the amount of $58,468.70 for the overpayment credit against the Former Wife. Thus retroactive application of the modification of the child support and alimony awards amounted to an abuse of discretion under the circumstances of this case. III. CONCLUSION For the foregoing reasons, we reverse the supplemental final judgment to the extent that it applies the modification of child support and alimony retroactively to the date of the petition and awards a judgment in the amount of $58,468.70 in favor of the Former Husband and against the Former Wife. On remand, the trial court is authorized to establish a schedule for the Former Husband to bring current his child support and alimony obligations to the Former Wife. If necessary, the trial court may take such additional evidence as may be necessary to establish such a schedule. Affirmed in part, reversed in part, and remanded. CASANUEVA and KHOUZAM, JJ., Concur. -8-
504 F.3d 745 (2007) UNITED STATES of America, Plaintiff-Appellant, v. W.R. GRACE; Alan R. Stringer; Henry A. Eschenbach; Jack W. Wolter; J. McCaig; Robert J. Bettacchi; O. Mario Favorito; Robert C. Walsh, Defendants-Appellees. United States of America, Plaintiff-Appellant, v. W.R. Grace; Alan R. Stringer; Henry A. Eschenbach; Jack W. Wolter; William McCaig; Robert J. Bettacchi; O. Mario Favorito; Robert C. Walsh, Defendants-Appellees. Nos. 06-30472, 06-30524. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 4, 2007. Filed September 20, 2007. *746 *747 *748 Todd S. Aagaard, Dept. of Justice Environment and Natural Resources Division, Washington, DC, and Kris A. McLean, Assistant United States Attorney, Missoula, MT, argued for the government. With them on the briefs were Sue Ellen Wooldridge, Assistant Attorney General; William W. Mercer, United States Attorney; Eric E. Nelson, Linda Kato, Special Assistant United States Attorneys; Kevin M. Cassidy, and Allen M. Brabender, Attorneys, United States Dept. of Justice Environment and Natural Resources Division. Christopher Landau, Washington, DC, argued for defendant-appellee W.R. Grace & Co. With him on the brief were Laurence A. Urgenson, Tyler D. Mace, Michael D. Shumsky, Washington, DC; Stephen R. Brown, Charles E. McNeil, Kathleen L. DeSoto, Missoula, MT, for defendant-appellee W.R. Grace & Co.; Angelo J. Calfo, Seattle, Washington; Michael F. Bailey, Missoula, MT, for defendant-appellee Alan R. Stringer; Ronald F. Waterman, Helena, MT; David S. *749 Krakoff, Gary A. Winters, Washington, DC, for defendant-appellee Henry A. Eschenbach; Mike Milodragovich, W. Adam Duerk, Missoula, MT; Mark Holscher, Jeremy Maltby, Los Angeles, CA, for defendant-appellee Jack W. Wolter; Palmer Hoovestal, Helena, MT, Elizabeth Van Doren Gray, Columbia, SC, William A. Coates, Greenville, SC, for defendant-appellee William J. McCaig; Brian Gallik, Bozeman, MT, Thomas C. Frongillo, Boston, MA, Vernon S. Broderick, New York, NY, for defendant-appellee Robert J. Bettacchi; C.J. Johnson, Missoula, MT, Stephen A. Jonas, Robert Keefe, Boston, MA, for defendant-appellee O. Mario Favorito; Catherine A. Laughner, Aimee M. Grmoljez, Helena, MT, Stephen R. Spivack, Washington, DC, David E. Roth, Birmingham, AL, for defendant-appellee Robert C. Walsh. Before: B. FLETCHER, HARRY PREGERSON, and WARREN J. FERGUSON, Circuit Judges. BETTY B. FLETCHER, Circuit Judge: From 1963 until the early 1990s, W.R. Grace ("W.R. Grace" or "Grace") mined and processed a rich supply of vermiculite ore outside of Libby, Montana. In response to ongoing serious health problems suffered by Libby residents, the government obtained an indictment charging W.R. Grace and seven of its executives (together "Grace") with criminal conduct arising from Grace's vermiculite operation in Libby. The superseding indictment charges defendants-appellees with (1) conspiring knowingly to release asbestos, a hazardous air pollutant, into the ambient air, thereby knowingly placing persons in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 7413(c)(5)(A) and (2) conspiring to defraud the United States in violation of 18 U.S.C. § 371. In addition to the dual-object conspiracy alleged in Count I, the indictment charged defendants-appellees with three counts of knowing endangerment under the Clean Air Act, 42 U.S.C. § 7413(c)(5)(A), and four counts of obstruction of justice in violation of 18 U.S.C. §§ 1505 and 1515(b). This interlocutory appeal brought by the government concerns six orders grouped into four sections: the first order dismissed the knowing endangerment object of Count I's conspiracy charge; the second adopted a particular definition of asbestos and excluded evidence inconsistent with that definition; the third denied a motion to exclude evidence related to an affirmative defense and relied on an emission standard for asbestos contained in certain Environmental Protection Agency ("EPA") regulations, see, e.g., 40 C.F.R. §§ 61.142-61.149; and the fourth through sixth orders excluded certain evidence and expert testimony. In addition, we rule on defendants-appellees' motion to strike documents attached to the government's reply brief. We have jurisdiction to hear this appeal pursuant to 18 U.S.C. § 3231, and we reverse in part, affirm in part, and remand. I. Dismissal of the Knowing Endangerment Object 1. Background In the original indictment, filed February 7, 2005, the government charged defendants with participating in a dual-object conspiracy. According to Count I of the indictment, which details the scope of the conspiracy, defendants conspired (1) to knowingly release asbestos, a hazardous air pollutant, and thus knowingly to endanger *750 both EPA employees and members of the Libby community in violation of 42 U.S.C. § 7413(c)(5)(A) ("knowing endangerment object"); and (2) to defraud the United States by impairing, impeding, and frustrating government agency investigations and clean-up operations in violation of 18 U.S.C. § 371 ("defrauding object"). On March 20, 2006, defendants moved to dismiss the knowing endangerment object of the conspiracy, arguing that the government had failed to allege an overt act in furtherance of the alleged conspiracy within the statute of limitations period. United States v. W.R. Grace, 434 F. Supp. 2d 879, 883 (D.Mont.2006). Defendants' argument relied primarily on Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957) (holding that the statute of limitations must be satisfied as to each object of the conspiracy when the government charges a multi-object conspiracy), overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Because the government supposedly had failed to allege a requisite overt act before the statute of limitations ran on November 3, 2004, defendants asserted that the knowing endangerment object was time-barred. The government disputed defendants' characterization of the indictment, claiming that certain overt acts alleged in the indictment could support both the fraud object and the knowing endangerment object of Count I's conspiracy charge. Towards this end, the government directed the district court's attention to paragraphs 143, 149, and 173-184 of the indictment. W.R. Grace, 434 [email protected]. The paragraphs cited by the government alleged that defendants had failed to remove asbestos-contaminated material from sites in the Libby community, had misled various individuals regarding current asbestos contamination, and had failed to disclose the existence of numerous asbestos-contaminated sites. What the paragraphs purportedly failed to allege was that defendants released, or conspired to release, asbestos during the relevant time period. Analyzing both the text of the specified paragraphs and the structure of the indictment, in which the cited paragraphs were listed under the sub-heading "Obstruction of EPA's Superfund Clean-Up," the district court concluded that the indictment "more plausibly suggests a completed operation than a conspiracy [email protected]." Id. at 887. To the extent that overt acts were alleged, the district court found that they were acts of obstruction, not acts of wrongful endangerment. Id. Thus, the district court dismissed as time-barred the knowing endangerment object of the Count I conspiracy. Id. at 888. Two weeks after the district court's first order, dismissing a portion of the indictment, the government obtained a superseding indictment. The new indictment was substantially similar to the original indictment, amending only paragraphs 173-183, which had been the focus of the district court's previous order. In the superseding indictment, the government changed the section heading under which the disputed paragraphs had been listed from "Obstruction of Superfund Clean-Up" to "Knowing Endangerment of EPA Employees and the Libby Community and Obstruction of the EPA's Superfund Clean-Up." It also changed paragraphs 173, 174, 176-80, 182 and 183, by adding at the end of each original paragraph the phrase, "thereby concealing the true hazardous nature of the asbestos contamination, delaying EPA's investigation and causing releases of asbestos into the air in the Libby Community."[1] *751 Defendants then moved to dismiss the "knowing endangerment" object of the superseding indictment, arguing that the government had failed to fix the original indictment because the new indictment alleged no new overt acts, was barred by the previous dismissal "with prejudice," and was time-barred because the statute of limitations had run. The district court rejected the first two arguments, but agreed with defendants that the new indictment was time-barred. Under the district court's reading, the superseding indictment was not protected by the savings clause of 18 U.S.C. § 3288. Order at 17, United States v. W.R. Grace, 434 F. Supp. 2d 879 ("Order Dismissing Indictment") (D.Mont.2006) (Docket # 690). The government now appeals that determination. 2. Standard of Review We review de novo a district court's decision to dismiss part of an indictment, United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991), as we review, also de novo, the district court's interpretation of 18 U.S.C. § 3288. United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir.2002). 3. Analysis If a district court dismisses an indictment (or portion thereof), the savings clause of 18 U.S.C. § 3288 permits the government to return a new indictment after the statute of limitations has expired, as long as it is done within six months of the dismissal. The statute reads as follows: Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information . . ., which new indictment shall not be barred by any statute of limitations. This section does not permit the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution. The dispute in the instant case stems from the parties' divergent interpretations of the final sentence of § 3288. This sentence explains that the savings clause does not extend to indictments initially filed outside of the statute of limitations. The government takes the position that this does not bar the return of the new indictment because the original indictment was obtained before the statute of limitations expired. Thus, the government argues, § 3288 permits amendment by a superseding indictment. Defendants disagree, arguing that the government failed to allege an overt act for the knowing endangerment object of the conspiracy before the statute of limitations expired. The district court agreed with defendants and dismissed the knowing endangerment object as time-barred. Defendants' argument is premised on a conflation of the terms "time-barred" and "not timely filed." The last sentence of § 3288 refers to indictments that were not timely filed, i.e., indictments that were not filed within the statute of limitations. Here, there is no dispute that the government filed its indictment within the statute of limitations period. The district court dismissed the knowing endangerment object in the original indictment as "time-barred" because it failed to allege an overt act within the statute of limitations, not because the indictment was untimely filed. *752 The district court erred. If the indictment is filed within six months of the dismissal order, § 3288 does not bar the government from filing a superseding indictment: the savings clause of § 3288 permits amendment when the original was structurally flawed but timely filed. United States v. Clawson, 104 F.3d 250 (9th Cir.1996). In Clawson, the defendant was indicted for mail fraud on June 10, 1993. Id. at 251. Defendant immediately moved to dismiss the indictment for failure to allege an overt act within the five-year statute of limitations. Id. The indictment alleged overt acts that occurred before the limitation period began on June 10, 1988, or after defendant's withdrawal from the conspiracy on July 5, 1988. Id. The district court granted defendant's motion to dismiss the indictment and the government responded by obtaining a First Superseding Indictment, which alleged overt acts occurring in the window between June 10, 1988, and July 5, 1988. Id. Defendant then moved to dismiss the new indictment, arguing that the statute had run before the government obtained the First Superseding Indictment and that § 3288 did not extend to indictments dismissed for failure to comply with the statute of limitations. Id. The district court denied his motion and we affirmed. Id. at 251-52. Clawson noted that when "[r]ead in its entirety, th[e] last sentence [of § 3288] cuts off the six-month grace period only where the defect — whether it's a limitations problem `or some other' problem — is not capable of being cured." Id. at 252. In the instant case, the district court held (and defendants now argue) that the defect in the original indictment obtained by the government is not capable of being cured because the original indictment did not allege an overt act for the knowing endangerment object before the statute of limitations expired. This position, however, is precluded by Clawson. In Clawson we distinguished between a timely filed, but flawed, indictment, to which the savings clause of § 3288 does apply, and an untimely filed indictment, to which it does not. "[I]f the original indictment was brought after the limitations period ran on all the alleged criminal conduct, allowing reindictment under section 3288 would obliterate the statute of limitations: A defendant could be indicted two years after the statute had run and, when the court dismissed, the prosecution could simply reindict within six months, free from the limitations bar." Id. For obvious reasons, reindictment is prohibited by § 3288 in such circumstances. Id. "The matter is much different where the original indictment is brought within the limitations period, but is dismissed for failure to allege the exact elements of the crime, or some other technical reason. In the latter circumstance, a valid indictment could have been brought in a timely fashion; the six-month grace period merely allows the government to do what it had a right to do in the first place." Id. The latter circumstance describes the facts of both Clawson and the instant case. In both cases, the government timely indicted defendants for a particular crime, but originally failed to allege a valid overt act. The government then obtained superseding indictments charging defendants with the exact same crimes, but adding the necessary overt act allegations. Thus, each defendant was charged "with the exact crime for which he could have been prosecuted had there not been a defect in the indictment. Section 3288 was designed to apply in this situation." Id.; see also United States v. Charnay, 537 F.2d *753 341, 354 (9th Cir.1976) ("[The] underlying concept of § 3288 is that if the defendant was indicted within time, then approximately the same facts may be used for the basis of any new indictment [obtained after the statute has run] . . ., if the earlier indictment runs into legal pitfalls."). When discussing "timeliness," both Clawson and Charnay refer to the time of the original filing of the indictment. They do not consider whether the original indictment included all of the relevant acts or elements necessary to charge defendants with the crime. As long as the original indictment is filed within the statute of limitations and charges the same crime, based upon approximately the same facts charged in the superseding indictment, § 3288 allows the government to file a superseding indictment within six months. See 18 U.S.C. § 3288; Clawson, 104 F.3d at 251-52; Charnay, 537 [email protected]. Here, the parties do not dispute that the original indictment was timely filed. The district court's holding that the indictment was time-barred referred only to its failure to allege the necessary overt acts in the original indictment—a flaw that can be cured through reindictment under § 3288. The district court attempted to distinguish Clawson, stating that in Clawson the government alleged overt acts in the original indictment, which was filed within the limitations period. This distinction is irrelevant. While the government did allege overt acts before the limitations period expired in Clawson, it failed to allege an overt act sufficient to support the conspiracy charge since the only overt acts alleged occurred outside the statute of limitations or subsequent to Clawson's withdrawal from the conspiracy. Thus, the government originally failed to allege any relevant overt acts in Clawson, just as in the instant case. Moreover, Clawson did not turn on the distinction advanced by the district court: as we have explained, § 3288 applies when an indictment (though defective) is brought within the limitations period, and the superseding indictment charges defendant with the same exact crime with which he was initially charged, based on approximately the same facts. The only addition in the new indictment considered in Clawson was the inclusion of new overt acts that the government could have used in the original indictment. The fact that the government had timely alleged inapplicable overt acts was wholly extraneous to the Clawson court's decision. The district court's misapprehension of both Clawson and § 3288 is also clear from its statement that "[t]o allow the government a six-month grace period in this case would extend the statute of limitations for the improper purpose of affording the prosecution a second opportunity to do what it failed to do in the beginning." Order Dismissing [email protected]. Yet this is exactly what § 3288 does. It extends the statute of limitations by six months to allow the prosecution a second opportunity to do what it failed to do in the beginning: namely, file an indictment free of legal defects. This reading of § 3288 does not, as the district court suggests, "require a defendant to remain subject to an indefinite threat of prosecution, held open beyond the statute of limitations period, while he and the court wait for the government to finish tinkering with the indictment." Id. What § 3288 does is twofold: First, it eliminates the incentive for criminal defendants to move for dismissal of an indictment at the end of the statute of limitations, thereby winning dismissal at a time when the government cannot re-indict. And second, it subjects defendants to the threat of prosecution for six months after *754 the dismissal of the original indictment— not an indefinite threat of prosecution as the district court suggests—and only if the government has timely filed an indictment charging the exact same crimes based on approximately the same facts. For the reasons articulated herein, we reverse the district court's dismissal of the knowing endangerment object of Count I in the superseding indictment and reinstate that portion of the count. II. Definition of Asbestos 1. Background We now turn to the question of whether Congress's use of the term "asbestos" to identify a hazardous air pollutant created ambiguity as to what substance was meant by that term. The parties filed cross motions in limine to exclude evidence that fell outside their respective interpretations of the term. Govt. Mot. in Limine # 2 Re: Definition of Asbestos (Docket # 462); Defs' Mot. in Limine Re: Definition of Asbestos (Docket # 474). The district court held that the term "asbestos" has no inherent meaning and therefore its use in the criminal provisions of the Clean Air Act violated the rule of lenity and the Due Process Clause of the Fourteenth Amendment. It interpreted asbestos for purposes of the Clean Air Act's knowing endangerment provision to mean the six minerals covered by EPA's civil regulatory scheme. Order at 2 & 20, United States v. W.R. Grace, 455 F. Supp. 2d 1122 ("Order Defining Asbestos") (D.Mont.2006) (Docket # 701). That regulation defines the civilly regulated species of asbestos as "the asbestiform varieties of serpentinite (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-tremolite." Definitions for National Emission Standards for Hazardous Air Pollutants ("NESHAPs"), 40 C.F.R. § 61.141 (2007). The district court imported the civil regulatory definition of "asbestos" into the criminal provisions of the Clean Air Act, and then ruled that evidence of asbestos releases offered at trial would be limited to those relevant to proving releases of the six minerals included in the regulatory definition; evidence of releases of other asbestiform minerals would be excluded. Order Defining [email protected]. This ruling eliminated from trial evidence of releases of 95% of the contaminants in the Libby vermiculite—which are asbestiform minerals but fall outside of the six minerals in the civil regulatory definition—as well as excluding government data that did not differentiate between the six regulated minerals and unregulated asbestiform minerals. The government appeals, asserting that the definition contained in the criminal portion of the statute is the applicable definition. 2. Standards of Review We review de novo the district court's construction of the Clean Air Act, as we do rulings on the admissibility of evidence in which issues of law predominate. See United States v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir.2000). 3. Analysis The Clean Air Act's knowing endangerment provision prohibits the knowing and dangerous release into the ambient air of "any hazardous air pollutant listed pursuant to § 7412." 42 U.S.C. § 7413(c)(5)(A).[2]*755 Section 7412(b) lists "asbestos," also identified by its Chemical Abstracts Service ("CAS")[3] Registry number XXXX-XX-X, as a hazardous air pollutant. 42 U.S.C. § 7412(b). Thus, § 7412(b) identifies asbestos by name and defines it through reference to CAS Registry # XXXX-XX-X. The government contends that a statute may have two definitions for one term, one definition civil and one criminal. Further, it argues that the definition of asbestos applicable to the Clean Air Act's criminal knowing endangerment provision covers the minerals involved in this case. We agree on both points. The district court found § 7412(b)'s "one-word definition"[4] to be "unsatisfactory" as a matter of law. However, Congress need not define every word in a criminal statute for the statute to pass Constitutional muster. When Congress does not define a term in a statute, we construe that term "according to [its] ordinary, contemporary, common meaning[]." United States v. Cabaccang, 332 F.3d 622, 626 (9th Cir.2003) (en banc) (internal quotation marks omitted). It is well known that asbestos has a common meaning; it is a fibrous, non-combustible compound that can be composed of several substances, typically including magnesium. Or, as defined by the CAS Registry, and incorporated by reference into § 7412(b), it is a "grayish non-combustible material" that "consists primarily of impure magnesium silicates." CAS Registry number XXXX-XX-X, available at http://iaspub.epa.gov/srs/ srs_proc_qry.navigate?P_SUB_ID=85282. This definition has been established for decades, as was elucidated in the motions in limine. See Defs' Mot. in Limine Re: Definition of Asbestos n. 4 (Expert Witness Disclosure of Gregory P. Meeker, Appendix A) (May 31, 2006) (noting that asbestos was first defined in 1920). In addition, defendants had actual notice in this case of the risks from the fibrous content of the asbestiform minerals in their products. Defendants are an industrial chemical company and seven of its top executives. They are all familiar with asbestos. Since at least 1976, defendants have known of the health risks posed by the asbestiform minerals in their products. It is clear that defendants knew or should have known that their mining, milling, and distribution activities risked the release of asbestos into the ambient air. In light of the clear statutory language, including § 7412(b)'s incorporation by reference of the CAS Registry asbestos definition, and *756 defendants' knowledge of the industrial chemicals field, the district court erred in misdefining "asbestos" as used in the criminal statute and in invoking the rule of lenity. See Muscarello v. United States, 524 U.S. 125, 138, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998) ("The rule of lenity applies only if, after seizing everything from which aid can be derived, . . . we can make no more than a guess as to what Congress intended.") (alteration in original) (internal quotation marks omitted); United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (The "rule of lenity[ ] ensures fair warning by so resolving ambiguity in a criminal statute as to apply [the statute] only to conduct clearly covered."). The district court's conclusion that ambiguity exists simply because of the existence of two oversight structures — a civil regulatory structure and a criminal enforcement provision — that use different definitions of the term "asbestos" is erroneous. As we determined in United States v. Hagberg, 207 F.3d 569, 573 (9th Cir. 2000), Congress validly may create multiple enforcement mechanisms that each draw on different definitions for the same term or phrase. In Hagberg, defendant was indicted for allegedly dumping sewage along a public road in violation of the Clean Water Act, 33 U.S.C. §§ 1319(c)(2), 1345(e). [email protected]. Moving to dismiss the indictment, Hagberg argued that his actions did not fit within the statutory definition of the crime because the material he dumped was not "sewage sludge" as defined by the regulations for permitting waste disposal. Id. at 571. Accepting Hagberg's argument, the district court dismissed the indictment. The government appealed. Id. We reversed because the district court improperly had conflated the regulatory and direct enforcement provisions of the Clean Water Act, and the relevant definition — supplied by the direct enforcement provision — covered the material dumped by defendant. Id. at 571-72, 575. We explained that "some terms found in the [direct enforcement provision] are defined differently when used in the context of [the civil permitting] regulations." Id. at 572. Like the Clean Water Act provisions at issue in Hagberg, the Clean Air Act creates multiple enforcement mechanisms: a civil regulatory structure and a direct enforcement mechanism. In the instant case, as in Hagberg, defendants are charged with violating the directly enforceable provision of the statute that pulls its definitions from a separate provision than does the regulatory provision. The civil regulatory system draws its definition of asbestos from 40 C.F.R. § 61.141, the knowing endangerment provision from 42 U.S.C. § 7412(b). See 42 U.S.C. §§ 7412(a)(6); 7413(c)(5)(A). The civil regulatory system regulates major sources of hazardous air pollutants, 42 U.S.C. § 7412(c)-(g), and therefore understandably focuses on a subset of asbestifom minerals deemed to have commercial potential; market forces preclude commercially non-viable species of asbestos from becoming major sources of pollution from asbestos mills and mines and other covered sources. The direct enforcement mechanism created in 42 U.S.C. § 7413 focuses on risks to health. Therefore it provides oversight of release of hazardous pollutants whether or not they come from major sources of pollution. We defer to Congress's decision to create two enforcement structures and hold the district court's conflation of the two to be error. In sum, the district court improperly limited the term "asbestos" to the six minerals covered by the civil regulations. Asbestos is adequately defined as a term and need not include mineral-by-mineral classifications *757 to provide notice of its hazardous nature, particularly to these knowledgeable defendants. Accordingly, we reverse the order limiting evidence to that fitting within the civil regulations. III. Mandamus 1. Background The knowing endangerment provision of the Clean Air Act establishes an affirmative defense for hazardous air pollutants released "in accordance with" an applicable National Emissions Standards for Hazardous Air Pollutants ("NESHAP"). See 42 U.S.C. § 7413(c)(5)(A). In the proceedings before the district court, the government argued that defendants could not avail themselves of this affirmative defense because no NESHAP applied to W.R. Grace's operations in Libby; thus, compliance with an "applicable" NESHAP was impossible. The district court rejected this argument, finding that the regulations created an emissions standard of "no visible emissions" for asbestos. Accordingly, the district court ruled that it would allow defendants to introduce evidence at trial to try to prove their affirmative defense. Because the district court did not exclude any of the government's emissions evidence as a result of this ruling, the government cannot appeal the district court's decision. Instead, it now seeks a writ of mandamus to overturn the decision. 2. Standard of Review The writ of mandamus is codified at 28 U.S.C. § 1651(a): "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." This court has developed a five-factor test for determining whether a writ may issue. We must consider whether: (1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression. Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1177-78 (9th Cir.2005) (quoting Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977)). Not every factor must be present to warrant mandamus relief, see id. at 1178, and in this case the only disputed issue is whether the district court made a clear error as a matter of law. 3. Analysis Where, as here, the district court's order involves issues of statutory interpretation, the order is clearly erroneous as a matter of law if the reviewing court is left with "a definite and firm conviction that the district court's interpretation of the statute was incorrect." DeGeorge v. United States Dist. Court, 219 F.3d 930, 936 (9th Cir.2000) (citing In re Cement Antitrust Litig., 688 F.2d 1297, 1306 (9th Cir. 1982)); see also United States v. Ye, 436 F.3d 1117, 1123 (9th Cir.2006). Here, the plain language of the statute makes clear that the affirmative defense is not applicable to defendants' actions. In relevant part, § 7413(c)(5)(A) states, "[f]or any air pollutant for which the Administrator has set an emissions standard . . ., a release of such pollutant in accordance with that standard . . . shall *758 not constitute a violation of this paragraph." The first clause of the affirmative defense makes it inapplicable to Grace's alleged asbestos releases. Quite simply, asbestos is not an "air pollutant for which the Administrator has set an emissions standard." § 7413(c)(5)(A) (emphasis added). Rather, the Administrator has set several emissions standards, each of which is source dependent. Some asbestos emissions standards make no reference at all to "visible emissions." See 40 C.F.R. §§ 61.143, 61.145, & 61.148. Others include additional procedural requirements, above and beyond the "no visible emissions" requirement. See 40 C.F.R. §§ 61.142, 61.144, 61.146, 61.149, & 61.150. In short, there is simply no trans-categorical emissions standard for asbestos; neither is there an emissions standard for asbestos releases from mining operations.[5] Therefore, it is inconceivable that the alleged Grace releases were "in accordance with that standard." § 7413(c)(5)(A). The plain language of the statute makes clear that the affirmative defense simply doesn't apply in this case. The district court's order to the contrary leaves us with a "a definite and firm conviction" that it got the law wrong. DeGeorge, 219 [email protected]. Consequently, we grant the government's petition for writ of mandamus, and hold that W.R. Grace can not avail itself at trial of the affirmative defense articulated in 42 U.S.C. § 7413(c)(5)(A). IV. Evidentiary Rulings 1. Introduction As stated above, Counts II-IV of the superseding indictment allege violations of 42 U.S.C. § 7413(c)(5)(A), the Clean Air Act's knowing endangerment provision, which creates criminal penalties for a person who "knowingly releases into the ambient air any hazardous air pollutant listed pursuant to section 7412 of this title . . . and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury." Defendants filed motions in limine seeking to exclude evidence related to, or testimony based on, certain studies — EPA indoor air studies ("Indoor Air studies"), Grace's historic testing of its vermiculite products ("Historic Testing"), a report of the Agency for Toxic Substances and Disease Registry based on a medical screening study of residents of Libby, Montana ("ATSDR Report"), and the results of the screening study published as an article in a peer-reviewed journal ("Peipins Publication"). Ruling that these studies were unreliable, irrelevant, or unduly prejudicial, the district court barred government experts from relying on them in forming opinions regarding the knowing endangerment charges, and, as to the indoor air studies, the ATSDR Report, and the Peipins Publication, excluding the studies, report, and publication themselves for most or all purposes. Order, United States v. W.R. Grace, 455 F. Supp. 2d 1148 (D.Mont.2006) ("Indoor Air Order"); Order, United States v. W.R. Grace, 455 F. Supp. 2d 1156 (D.Mont.2006) ("Historical Testing Order"); Order, United States v. W.R. Grace, 434 F. Supp. 2d 879 (D.Mont.2006) ("ATSDR and Peipins Order"). The government appeals. 2. Standard of Review This court reviews de novo the district court's interpretation of the Federal Rules of Evidence. United States v. *759 Sioux, 362 F.3d 1241, 1244 n. 5 (9th Cir. 2004). In general, this court reviews for abuse of discretion a district court's decision to admit or exclude scientific evidence and expert testimony. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002). "[A] trial court has `broad discretion' in assessing the relevance and reliability of expert testimony." Id. (quoting United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir.2001)). 3. Relevant Rules Federal Rule of Evidence 401 defines "relevant evidence" as that which has "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." Rule 402 provides that relevant evidence is admissible, except as limited by the Constitution, statutes, or other rules of evidence. Rule 403 provides a balancing test for the exclusion of relevant evidence on the grounds of prejudice: relevant evidence may be excluded if "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . . "[6] Several rules apply specifically to testimony by experts. Under Rule 702, an expert witness may provide opinion testimony if "the testimony is based upon sufficient facts or data" and "is the product of reliable principles and methods," which have been "applied . . . reliably to the facts of the case." The rule "affirms the court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Advisory Comm. Notes, Rule 702 (2000). Under Rule 703, the "facts or data . . . upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." However, if the expert relies on facts or data that are otherwise inadmissible, then those facts "shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."[7] 4. Analysis A. Indoor Air Releases i. Background On May 31, 2006, Defendants filed a motion in limine to exclude evidence of or derived from indoor asbestos releases. Defendants sought to exclude documents and studies, including EPA's Phase II air sampling charts, as well as expert testimony that relied upon these studies. See *760 Defs' Mot. in Limine Re: Indoor Air Releases at 4-6 (Docket # 473). On August 28, 2006, the district court granted defendants' motion "with respect to evidence of or derived from indoor releases offered for the purpose of proving an `ambient air' release in violation of 42 U.S.C. § 7413(c)(5)(A)." Indoor Air [email protected]. The district court held that "[i]ndoor sampling performed by EPA in the course of its CERCLA activities, and testimony based upon this sampling, is not relevant [under Fed.R.Evid. 402] to whether Defendants committed a release in violation of the Clean Air Act, and is not admissible for the purpose of proving such a release." Id. at 8. The court stated that, under Federal Rules of Evidence 403, "[e]vidence derived from EPA testing and sample collection performed as part of its CERCLA analysis has the potential to be highly confusing and prejudicial," id. at 10, and barred the evidence for most purposes related to the Clean Air Act counts. However, the court held that the evidence had probative value with respect to defendants' "knowledge of the dangerousness of the asbestos contaminated vermiculite," id. at 8, relevant to the government's argument that defendants knowingly "place[d] another person in imminent danger of death or serious bodily injury," 42 U.S.C. § 7413(c)(5)(A), by releasing vermiculite into the community. In addition, the district court held the evidence relevant to the defrauding object of Count I's conspiracy charge and to the four counts of obstruction of justice in the superseding indictment. The district court thus denied the motion with respect to establishing knowledge of risk for the Clean Air Act charges and with respect to proving the obstruction and conspiracy counts. The government appeals the exclusion of the Indoor Air studies and expert testimony based upon them with regard to the knowing endangerment counts. ii. Analysis The government argues that EPA's Phase II tests show the propensity of the Libby asbestos to release fibers whenever it was disturbed and regardless of the form the vermiculite took and therefore should be admitted to form the basis of expert testimony. The government also makes an argument that the Indoor Air studies should themselves be admitted as relevant. However, although the government makes a valid argument about the friability of Libby asbestos being the same whether indoors or outdoors, the probative value of the EPA studies is possibly outweighed by the danger of unfair prejudice. First, the studies' overall probative value is low because they largely concern the asbestos releases at various indoor locations in Grace's Libby mining and milling operation. There is some information in the studies regarding the friable character of Libby asbestos, but not much. There is a risk of unfair prejudice because the indoor releases may not reflect the level of releases into the ambient air, and there is some language in the studies regarding asbestos-related diseases in Libby that may mislead or confuse the jury into believing that releases into indoor air proves releases into ambient air. Finally, even if this court disagreed with the district court's Rule 403 balancing, "[a]n appellate court will not reengage in a balancing of the probative value and prejudicial effect." Rogers v. Raymark Industries, Inc., 922 F.2d 1426, 1430 (9th Cir.1991). The district court's decision to bar the use of documents and studies derived from indoor air releases for the purpose of proving a release into the ambient air was within its discretion. It is a separate question, however, whether the district court abused its discretion *761 in excluding expert testimony based on documents and studies derived from indoor air releases. The district court did not conduct an inquiry under Rule 702[8] or 703[9] in its August 28th order. Rule 703 provides, "If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted." (Emphasis added.) The government persuasively argues that the proper remedy for the problems associated with the indoor air studies is to prevent an expert from disclosing the prejudicial facts instead of preventing the expert from relying on them altogether. Allowing expert testimony based on the EPA studies "will assist the trier of fact to understand the evidence or to determine a fact in issue" under Rule 702 because the studies may show the propensity of the asbestos-contaminated vermiculite to release asbestos fibers into the ambient air. While the specific asbestos concentration levels discussed in the studies are not relevant because the studies largely measured indoor air releases and gathered data under conditions different from the ambient air releases relevant to the statute, the government's experts should be permitted to opine generally about the friability of Libby asbestos based in part on the data in the studies. The data from the indoor sampling is relevant to the propensity of Libby asbestos to release fibers upon disturbance. Based on these data, an expert could testify about friability and whether a release of asbestos would occur if asbestos-contaminated vermiculite were exposed or disturbed. Because the district court did not inquire into whether the data provided by the indoor air tests is of the type reasonably relied upon by experts in the field, see Fed.R.Evid. 703, or whether the data fits under Rule 702, we remand so that the district court can conduct these inquiries in the first instance. B.W.R. Grace's Historic Product Testing i. Background On May 31, 2006, defendants filed a motion in limine to exclude expert opinions regarding Grace's historical, non-ambient air product and commercial testing. Defendants sought to exclude the testimony of Dr. Richard Lemen,[10] Dr. Vernon Rose,[11] Paul Peronard,[12] Dr. Aubrey Miller,[13] Dr. Chris Weis,[14] and other government witnesses who might "attempt to *762 draw unsupportable correlations between Grace's historical product and commercial tests and expected ambient air exposures from disturbances of vermiculite materials found in the town of Libby." Defs' Mot. in Limine Re: Historic Testing at 4 (Docket # 496). On August 29, 2006, the district court granted defendants' motion to exclude expert testimony based on historic testing offered to prove a release in violation of 42 U.S.C. § 7413(c)(5)(A). Historic Testing Order at 7. The district court denied defendants' motion with respect to expert testimony based on historic testing offered for the purpose of showing defendants' knowledge of the dangerousness of the asbestos contaminated vermiculite. Id. ii. Analysis Rule 702 authorizes expert testimony that "will assist the trier of fact" when the testimony "is based upon sufficient facts or data," the testimony is produced through "reliable principles and methods," and the expert witness "has applied the principles and methods reliably to the facts of the case." Generally, an inquiry under Rule 702 examines the expert's testimony as a whole. The 702 inquiry typically does not examine the reliability or relevance of particular data sets that underlie the expert testimony, although this approach does no harm where the expert testifies on only one study or where no combination or addition of data could make the data in question a proper, reliable basis for making a given claim. In contrast to Rule 702's holistic focus on an expert's testimony, Rule 703 governs the inquiry into the reliability of particular data underlying expert testimony. Fed.R.Evid. 703; see also Claar v. Burlington Northern R. Co., 29 F.3d 499, 501 (9th Cir.1994). Here, the district court excluded the historic testing data under Rule 702. This document-based approach creates the problem that one cannot know fully whether or in what ways other information sources are meant to, in combination with the challenged data sources, form the premise for the expert testimony. Each document must be dispositive under the district court's approach, a requirement we do not impose under Rule 702. On remand, the district court shall conduct the Rule 702 analysis in light of the expert's reasoning and methodology as a whole. Faced with this new 702 analysis, defendants presumably will argue, as they do on appeal, that the historic testing evidence fails the "fit" test under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).[15] In response, the government argues that its experts do not plan to rely on the historic testing data to estimate the fiber concentrations from the charged releases, but only to opine generally on the hazardous characteristics[16] of Libby asbestos contaminated vermiculite. This limited use of the study to inform experts' opinions is permissible, because the propensity of Libby asbestos to release fibers fits the release element of the knowing endangerment provision. The district court did not consider this propensity-to-release inquiry, thus abusing its discretion by excluding this evidence under 702. Defendants make two additional, ultimately unsupportable arguments. First, they argue that the testimony's exclusion under Rule 702 was proper because the *763 government's experts "do not need" the evidence on historic air releases to testify about the friability of Libby asbestos. This argument misconceives Rule 702's inquiry, which focuses on fitness, relevance, and reliability, not on whether an expert potentially has other evidence on which to base an opinion. Second, defendants argue that the district court properly excluded the testimony under Rule 403 in addition to Rule 702. Contrary to defendants' assertion, however, the district court did not rely on Rule 403 in its historic testing order but discussed the admissibility of expert testimony only under Rule 702. Moreover, an expert reasonably may rely on inadmissible evidence in forming an opinion or delivering testimony. See Fed. R.Evid. 703. The question remains whether data concerning indoor air quality are of the type reasonably relied on by other experts in the field. See Fed.R.Evid. 703. Although it appears that the district court never conducted this 703 inquiry, the second step of the Rule 702 analysis — that the study was "the product of reliable principles and methods" — presumably answers this question in the affirmative. See Rule 702; see also Claar, 29 F.3d at 501 ("Rule 703 merely relaxes, for experts, the requirement that witnesses have personal knowledge of the matter to which they testify," not whether the requirements of 702 are properly met). Although not stated explicitly, the order implicitly found the historic testing reliable in finding it admissible under 702 to show knowledge. Historic Testing [email protected]. Thus, the historic testing is admissible for purposes of expert opinion formation and testimony regarding the propensity of Libby vermiculite to release asbestos as relevant to 42 U.S.C. § 7413(c)(5)(A). Accordingly, we reverse the district court order excluding such testimony. C. Medical Screening Study: ATSDR and Peipins Publication i. Background In 2000-2001, the Agency for Toxic Substances and Disease Registry ("ATSDR") conducted a medical screening study in Libby (the "ATSDR Report") to detect pleural abnormalities in Libby residents and to inform priority-setting in EPA's asbestos clean-up operation. The study entailed interviewing and medically testing individuals who had lived, worked, attended school, or participated in other activities in Libby for at least six months before 1990. Questions were asked to identify individuals who had accessed potential "exposure pathways" to asbestos and vermiculite prior to December 31, 1990. For example, "pathways" included [email protected]. Grace, living with W.R. Grace workers, using vermiculite for gardening, and engaging in recreational activities in certain locations known to contain vermiculite. Information about other basic demographic variables and risk factors was also gathered, e.g., age, sex, smoking status, history of pulmonary disease and various other self-reported health conditions. ATSDR published an initial report of the study's findings in February 2001. The complete results of the study (the "Peipins Publication") were published in November 2003 in Environmental Medicine, a peer-reviewed journal. The Peipins Publication analysis used regression modeling to estimate the risk of respiratory abnormalities for each of the exposure pathways while controlling for all other pathways and other established and suggested risk factors. The study showed that certain factors — including exposure to particular pathways — were associated with respiratory illness and abnormalities. The factors most strongly associated with abnormalities *764 were: being a former W.R. Grace employee, being older, having had household contact with a former W.R. Grace worker, and being male. (The study also demonstrated "a statistically significant increase in the prevalence of pleural abnormalities with an increasing number of exposure pathways.") While "participants reporting more pathways might be expected to have more cumulative exposure than would those reporting fewer pathways," this was not data gathered by the study; the study identified avenues for exposure but did not quantify the duration or intensity of individuals' exposures. Both the interim ATSDR Report and the final Peipins Publication noted that the study had no control group and "no directly comparable Montana or U.S. population studies [were] available." The researchers were able to compare the data gathered with studies of other groups with substantive work-related asbestos exposure. The levels of pleural abnormalities were higher in Libby than in studies of other groups, but the study did not engage in any direct quantitative comparison.[17] On May 31, 2006, defendants filed a motion in limine "to exclude expert evidence relating to the ATSDR Medical Testing Program." Defs' Mot. in Limine Re: ATSDR (Docket # 500, 502). The district court characterized the motion as one to exclude "any evidence or expert testimony relating to" the medical screening study conducted in Libby by the Agency for Toxic Substances and Disease Registry. ATSDR Order at 1. The government did not object to the court's characterization of defendants' motion. On August 31, 2006, the district court granted defendants' motion. The court ruled that the ATSDR Report and Peipins Publication, and any expert testimony based thereon, were excluded under Rules 403 and 702 for any purpose relating to the Clean Air Act knowing endangerment counts. Id. at 31. ii. Analysis The district court acted within its discretion in excluding the ATSDR Report and Peipins Publication themselves under Rule 403 for purposes of the knowing endangerment counts. There are limits to the probative value[18] of the particular correlations the ATSDR Report revealed and potentially prejudicial aspects to the data. Moreover, the government failed to contest the district court's undue prejudice conclusion. Because Rule 403 requires the district court to balance the probative value and the prejudicial effects of a piece of evidence, failure to raise and argue prejudice *765 generally waives the argument. See United States v. Wilson, 966 F.2d 243, 245-46 (7th Cir.1992). However, in excluding this evidence from informing expert opinion and testimony, the district court erred. The expert is, in the first instance, the judge of what resources would help him to form an opinion, and he can filter out as irrelevant prejudicial information. The trial judge is to assure the reliability of evidence by vetting under Rule 703 the bases underlying the expert's testimony and by examining under Rule 702 the expert's methodology. Here, however, the trial judge misapplied Rule 702 and replaced inappropriately the Rule 703 analysis with one under Rule 403. To begin, the district court concluded that the ATSDR medical screening program and resulting analyses did not establish a causal link between exposure to Libby's vermiculite and the development of asbestos-related disease. The ATSDR Report acknowledged repeatedly that the testing program was not designed as an epidemiological study to show causality. Notably, there was no internal control group and the participants were self-selected, rather than randomly selected. In light of this, the district court concluded that the data could not provide experts with a reliable basis for opining as to causality (i.e., the danger posed by the releases from Libby vermiculite). Nonetheless, one of the main objectives of the ATSDR Report was to examine the association between pleural and interstitial abnormalities and participants' exposure histories — measured in broad terms by the participants' overall contact with exposure pathways. As the district court acknowledged, the government's experts did not claim that they intended to use the study to show causation, but rather indicated that they would rely on the evidence to show that there were some associations or correlations between exposure to vermiculite in Libby and pleural abnormalities. The district court took the view that the jury would be unlikely to distinguish between evidence of an association and evidence of causation and therefore would likely be misled, and would place undue reliance on the evidence. In this respect, the court substantially underestimated the capacity of jury instructions to distinguish these relationships, and the potential efficacy of a limiting instruction. Further, the fact that a study is associational — rather than an epidemiological study intended to show causation — does not bar it from being used to inform an expert's opinion about the dangers of asbestos releases, assuming the study is "of the type typically relied upon" by experts in the field. Fed.R.Evid. 703. Of course, the expert's opinion testimony must satisfy the requirements of Rule 702—but that requires consideration of the overall sufficiency of the underlying facts and data, and the reliability of the methods, as well as the fit of the methods to the facts of the case. Fed.R.Evid. 702. Here, the district court failed to consider the Rule 702 requirements with regard to causation. Instead, as with the historical testing, the court conducted a document-by-document Rule 702 analysis that deconstructed the experts' testimony in a manner not contemplated by Rule 702. Moreover, the study, which was published in a peer-reviewed journal and relevant to association, is adequate under 702. The study's failure to establish causation goes to the weight it should be accorded, but does not mean that an expert could not rely on it in forming an opinion. Nor did the district court consider the possibility of expert reliance on the ATSDR Report without disclosure of the *766 study itself to the jury, as provided for by Rule 703 ("If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."). In fact, the district court generally failed to conduct a 703 analysis, such as considering whether this study was "of the type" relied upon by experts in the field, or whether the ATSDR Report's "probative value . . . substantially outweighs [its] prejudicial effect." Fed.R.Evid. 703. Instead, the district court excluded expert testimony regarding the ATSDR Report under Rule 403. This ruling improperly replaced 703 balancing with 403 balancing, cf. Fed.R.Evid. 703 (providing balancing test applicable to expert testimony), and the exclusion of the ATSDR Report and Peipins Publication as bases for expert testimony or opinion formation was error. While Rule 403 supplies a basis for holding the underlying ATSDR Report inadmissible, it does not contemplate barring an expert from relying on it. Cf. Fed.R.Evid. 403. The exclusion of the ATSDR Report and the Peipins Publication from expert consideration and testimony was error, and thus we reverse that part of the ATSDR Order. V. Motion to Strike In its reply brief to this court, the government submitted six documents not included in the record below—two excerpts of the federal register (addenda 1 and 3), a report of the National Research Council (addendum 2), published scientific articles (addenda 5 and 6), and search results presumably from the CAS Registry (addendum 4). Defendants moved to strike four of the documents (addenda 2, 4, 5, and 6) on the grounds that they were not part of the record below, were misleading, and, by virtue of their submission in the reply brief, were presented without giving defendants an opportunity to respond. In general, we consider only the record that was before the district court. We have made exceptions to this general rule in three situations: (1) to "correct inadvertent omissions from the record," (2) to "take judicial notice," and (3) to "exercise inherent authority . . . in extraordinary cases." Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir.2003). Considerations of institutional expertise and notice support our limitation of these exceptions to "unusual circumstances." Id. The search results in addendum item 4 fit none of these exceptions. Addendum items 2, 5, and 6 fit within the second exception—we have discretion to take judicial notice under Rule 201 of the existence and content of published articles. See Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1973 n. 13, 167 L. Ed. 2d 929 (2007); United States v. Rutgard, 116 F.3d 1270, 1278 (9th Cir.1997). However, as we have stated before, the appropriate manner to supplement the record on appeal is "by motion or formal request so that the court and opposing counsel are properly apprised of the status of the documents in question." Lowry, 329 [email protected]. The government failed to so move, and thus we grant defendants' motion to strike. However, due to the reversal and remand on certain issues, our ruling here does not preclude application to the district court for inclusion in the district court's record for whatever use is appropriate. CONCLUSION We reverse the order dismissing the knowing endangerment object of Count I of the superseding indictment. We reverse *767 the order adopting the regulatory definition of asbestos used for civil regulation and direct that the definition in the criminal statute, i.e., the definition provided in 42 U.S.C. § 7412(b), applies. We grant the government's request for a writ of mandate. We affirm the exclusion of the indoor air studies, the ATSDR Report, and the Peipins Publication themselves. However we reverse their exclusion — and the exclusion of the historic testing — as bases underlying an expert's opinion or testimony. Finally, we grant defendants' motion to strike the documents included with the government's reply brief to this court. AFFIRMED in part, REVERSED in part, and REMANDED. WRIT OF MANDAMUS GRANTED on one issue. NOTES [1] Paragraph 175 was changed significantly. [2] 42 U.S.C. § 7413(c)(5)(A) reads in relevant part: Any person who knowingly releases into the ambient air any hazardous air pollutant listed pursuant to section 7412 of this title . . ., and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under Title 18, or by imprisonment of not more than 15 years, or both. Any person committing such violation which is an organization shall, upon conviction under this paragraph, be subject to a fine of not more than $1,000,000 for each violation. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. For any air pollutant for which the Administrator has set an emissions standard or for any source for which a permit has been issued under subchapter V of this chapter, a release of such pollutant in accordance with that standard or permit shall not constitute a violation of this paragraph or paragraph (4). [3] The Chemical Abstracts Service Registry, maintained by the American Chemical Society, is an authoritative database of chemical information. The Registry assigns each chemical substance a unique numeric identifier. Searches in the Registry require subscription. However, EPA maintains on its website a free "Substance Registry System" containing CAS Registry information, including the CAS definition of asbestos. http://www.epa. gov/srs/ (search "asbestos"; follow link associated with XXXX-XX-X) (last visited Aug. 3, 2007). [4] I.e., "1332214 Asbestos" [5] A perusal of the table of contents for 40 C.F.R. § 61 shows that most hazardous pollutants do in fact have a single emissions standard, enumerated in a single code section. See, e.g., §§ 61.22, 61.32, 61.42, 61.52. Asbestos, however, does not. See §§ 61.142.151. [6] Advisory committee notes from 1972 discuss the meaning of unfair prejudice—the "undue tendency to suggest decision on an improper basis, commonly . . . an emotional one"—and observe that the "availability of other means of proof may also be an appropriate factor" of determining when there is unfair prejudice. [7] To the extent that inadmissible evidence is reasonably relied upon by an expert, a limiting instruction typically is needed—i.e., the evidence is admitted only to help the jury evaluate the expert's evidence. E.g., United States v. 0.59 Acres of Land, 109 F.3d 1493, 1496 (9th Cir.1997) (error to admit hearsay offered as the basis of an expert opinion without a limiting instruction). There is a presumption against disclosure to the jury of inadmissible information used as the basis for expert's opinion. See Advisory Comm. Notes, Rule 703 (2000). [8] Fed.R.Evid. 702 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." [9] Fed.R.Evid. 703 provides, "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." [10] Docket # 287. [11] Docket # 283. [12] Docket # 281. [13] Docket # 279. [14] Docket # 286. [15] This phrasing of the argument improperly focuses the 702 inquiry on a document-by-document approach that we disapproved supra. [16] I.e., the propensity of Libby asbestos to break down and release fibers into the ambient air. [17] The results of the ATSDR Report were also compared with "control groups or general populations found in other studies." That comparison showed that the levels of pleural abnormalities were also higher in Libby for those who claimed "no apparent exposure" to particular pathways than subjects in other studies. This supported the study's conclusion that it was unlikely that there were individuals in Libby who had not been exposed to some degree. [18] The study demonstrated an association between negative health outcomes and an individual's unquantified exposure to vermiculite via particular "pathways" prior to the statutory period. The existence of association — and not causation — goes to the probative value of the evidence. The reported findings did not indicate that all exposure pathways were significantly associated with lung abnormalities (for example, gardening with vermiculite is not one of the factors mentioned as one being associated with such abnormalities). Because the data were gathered before the statutory period, it is questionable how reliable a basis they provide for drawing conclusions about the extent of the dangers posed by ambient releases during the statutory period, i.e., concentration or duration of releases. However, this is more an issue for the expert than the court.
DEX MEDIA, INC. 2013-2015 CASH LONG-TERM INCENTIVE PLAN (As Adopted September 5, 2013) -------------------------------------------------------------------------------- DEX MEDIA, INC. 2013-2015 CASH LONG-TERM INCENTIVE PLAN ARTICLE I ESTABLISHMENT The Company hereby establishes the Dex Media, Inc. 2013-2015 Cash Long-Term Incentive Plan”, as set forth in this document. The Plan permits the grant of Cash-Based Awards. The Plan is effective as of September 5, 2013 (the “Effective Date”). ARTICLE II DEFINITIONS Each word and phrase defined in this Article shall have the meaning set out below throughout the Plan, unless the context in which any such word or phrase appears reasonably requires a broader, narrower or different meaning. 2.1    “Affiliate” means any corporation, partnership, limited liability company or association, trust or other entity or organization which, directly or indirectly, controls, is controlled by, or is under common control with, the Company. For purposes of the preceding sentence, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any entity or organization, shall mean the possession, directly or indirectly, of the power (a) to vote more than fifty percent (50%) of the securities having ordinary voting power for the election of directors or comparable individuals of the controlled entity or organization, or (b) to direct or cause the direction of the management and policies of the controlled entity or organization, whether through the ownership of voting securities or by contract or otherwise. 2.2    “Award” means a Cash-Based Award. 2.3    “Board” means the board of directors of the Company. 2.4    “Cash-Based Award” means an award granted pursuant to Article IV to an individual who is then an Employee. 2.5    “Cause” shall have the meaning ascribed to that term in the SuperMedia Inc. Executive Transition Plan. 2.6    “Change in Control of the Company” shall have the meaning ascribed to that term in the Dex Media, Inc. Amended and Restated Long-Term Incentive Plan. 2.7    “Code” means the United States Internal Revenue Code of 1986, as amended from time to time. 2.8    “Committee” means the Compensation and Benefits Committee of the Board of Directors of the Company. 2.9    “Company” means Dex Media, Inc., or any successor (by reincorporation, merger or otherwise). 2.10    “Disability” shall have the meaning ascribed to that term in the Dex Media, Inc. Amended and Restated Long-Term Incentive Plan. 2.11    “Effective Date” shall have the meaning ascribed to that term in Section 1.1. 1 -------------------------------------------------------------------------------- 2.12    “Employee” means a common law employee of the Company or any Affiliate. 2.13    “Fiscal Year” means the calendar year. 2.14    “Good Reason” shall have the meaning ascribed to that term in the SuperMedia Inc. Executive Transition Plan. 2.15    “Measurement Period” means a 12-month period, or such shorter period designated by the Committee, ending on each of December 31, 2013, December 31, 2014, and December 31, 2015. 2.16    “Participant” means a person who has been selected by the Committee to participate in the Plan. 2.17    “Plan” means the Dex Media, Inc. 2013-2015 Cash Long-Term Incentive Plan, as set forth in this document as it may be amended from time to time. 2.18    “Section 409A” means section 409A of the Code and the regulations and other guidance promulgated by the United States Department of Treasury or the United States Internal Revenue Service under section 409A of the Code, or any successor statute. 2.19    “Separation from Service” shall have the meaning ascribed to that term in Section 409A. 2.22    “Specified Employee” shall have the meaning ascribed to that term in Section 409A. ARTICLE III ELIGIBILITY Employees who are selected by the Committee are eligible to participate in the Plan. ARTICLE IVCASH-BASED AWARDS 4.1    Authority to Grant Cash-Based Awards. Subject to the terms and provisions of the Plan, the Committee, at any time, and from time to time, may grant Cash-Based Awards under the Plan to Employees in such amounts and upon such terms as the Committee shall determine. Such Awards shall be set forth in the manner determined by the Committee. 4.2    Value of Cash-Based Award. The Committee shall establish the amount of a Participant’s Cash-Based Award in its sole discretion. 4.3    Terms of the Cash-Based Award. Under a Cash-Based Award, a Participant has the opportunity to earn an incentive cash payment based upon the achievement of the performance goals established by the Committee for each of the Measurement Periods, as compared with the target performance goals established by the Committee for the applicable Measurement Period. Except as specified in Section 4.6, a Participant shall not be paid any amount for a Measurement Period unless the Participant is employed by the Company or an Affiliate on the payment date for the applicable Measurement Period set forth in Section 4.4. 4.4    Payment of Cash-Based Award. Except as specified in Section 4.6, amounts, if any, payable under a Cash-Based Award shall be paid as follows: 2 -------------------------------------------------------------------------------- a.    Amounts payable with respect to the Measurement Period ending on December 31, 2013 shall be paid on December 31, 2014. b.    Amounts payable with respect to the Measurement Period ending on December 31, 2014 shall be paid on December 31, 2015. c.    Amounts payable with respect to the Measurement Period ending on December 31, 2015 shall be paid on December 31, 2016. 4.5    Termination of Employment Not in Connection with a Change in Control of the Company. Except as specified in Section 4.6, if a Participant’s employment with the Company and its Affiliates terminates on or before the payment of all or any portion of the Cash-Based Award, all of the Participant’s rights under the Plan will lapse and be completely forfeited on the date of the Participant’s termination of employment with the Company. 4.6    Change in Control of the Company. a.    Upon the occurrence of a Change in Control of the Company, performance goals for the Measurement Period in effect on the date of the Change in Control of the Company would be deemed to be achieved at the target level established by the Committee for each Participant who is employed by the Company or its Affiliate on the date of the Change in Control of the Company. Amounts payable with respect to Measurement Periods that have not commenced on the date of the Change in Control of the Company would be forfeited. Except as specified in Section 4.6(b) and (c), amounts payable to a Participant pursuant to this Section 4.6(a) shall be paid to the Participants on (i) the applicable payment date set forth in Section 4.4 if the Participant is still an Employee on such payment date or (ii) the date of the Participant’s Separation from Service if the Participant is not a Specified Employee, or the date that is six months following the date of the Participant’s Separation from Service if the Participant is a Specified Employee, if the Participant’s employment with the Company and its Affiliates is terminated before such payment date. b.    If a Participant’s employment with the Company and its Affiliates is terminated without Cause or for Good Reason within six months prior to a Change in Control of the Company, the Participant shall be paid an amount equal to the amount the Participant would have received for the Measurement Period in effect on the date of the Change in Control of the Company had all of the performance goals for such Measurement Period been achieved at the target level established by the Committee. If the Participant is not a Specified Employee, such amount shall be paid to the Participant on the date of the Participant’s Separation from Service. If the Participant is a Specified Employee, such amount shall be paid to the Participant on the date that is six months following the date of the Participant’s Separation from Service. c.    If a Participant’s employment with the Company and its Affiliates is terminated without Cause or for Good Reason within two years following a Change in Control of the Company, all amounts payable to the Participant with respect to Measurement Periods that were completed prior to the year in which the Participant’s termination of employment occurs that have not been paid to the Participant shall be paid to the Participant on the date of the Participant’s Separation from Service if the Participant is not a Specified Employee, or on the date that is six months following the date of the Participant’s Separation from Service if the Participant is a Specified Employee. 3 -------------------------------------------------------------------------------- ARTICLE V ADMINISTRATION 5.1    Awards. The Plan shall be administered by the Committee. The members of the Committee shall serve at the discretion of the Board. The Committee shall have full and exclusive power and authority to administer the Plan and to take all actions that the Plan expressly contemplates or are necessary or appropriate in connection with the administration of the Plan with respect to Awards granted under the Plan. 5.2    Authority of the Committee. a.    The Committee shall have full and exclusive power to interpret and apply the terms and provisions of the Plan, and to adopt such rules, regulations and guidelines for implementing the Plan as the Committee may deem necessary or proper, all of which powers shall be exercised in the best interests of the Company and in keeping with the objectives of the Plan. A majority of the members of the Committee shall constitute a quorum for the transaction of business relating to the Plan or Awards made under the Plan, and the vote of a majority of those members present at any meeting shall decide any question brought before that meeting. Any decision or determination reduced to writing and signed by a majority of the members shall be as effective as if it had been made by a majority vote at a meeting properly called and held. All questions of interpretation and application of the Plan, or as to Awards granted under the Plan, shall be subject to the determination, which shall be final and binding, of a majority of the whole Committee. No member of the Committee shall be liable for any act or omission of any other member of the Committee or for any act or omission on his or her own part, including but not limited to the exercise of any power or discretion given to him or her under the Plan, except those resulting from his or her own willful misconduct. In carrying out its authority under the Plan, the Committee shall have full and final authority and discretion, including but not limited to the following rights, powers and authorities to: (i) determine the persons to whom and the time or times at which Awards will be made; (ii) determine the number and exercise price of shares of Stock covered in each Award subject to the terms and provisions of the Plan; (iii) determine the terms, provisions and conditions of each Award, which need not be identical and need not match the default terms set forth in the Plan; (iv) accelerate the time at which any outstanding Award will vest; (v) prescribe, amend and rescind rules and regulations relating to administration of the Plan; and (vi) make all other determinations and take all other actions deemed necessary, appropriate or advisable for the proper administration of the Plan. b.    The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award to a Holder in the manner and to the extent the Committee deems necessary or desirable to further the Plan’s objectives. Further, the Committee shall make all other determinations that may be necessary or advisable for the administration of the Plan. As permitted by law and the terms and provisions of the Plan, the Committee may delegate to one or more of its members or to one or more officers of the Company, or its Affiliates or to one or more agents or advisors such administrative duties or powers as it may deem advisable, and the Committee or any person to whom it has delegated duties or powers as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan. The Committee may, by resolution, authorize one or more officers of the Company to do one or more of the following on the same basis as can the Committee: (a) designate Employees to be recipients of Awards and (b) determine the size of any such Awards; provided, however, (i) the Committee shall not delegate such responsibilities to any such officer for Awards granted to an Employee who is, on the relevant date, an executive officer as determined by the Board in accordance with Section 16 of the Securities and Exchange Act of 1934, as amended; (ii) the resolution providing such authorization sets forth the total number of Awards such officer(s) may grant; and (iii) the officer(s) shall report periodically to the Committee regarding the nature and scope of the Awards granted pursuant to the 4 -------------------------------------------------------------------------------- authority delegated. The Committee may employ attorneys, consultants, accountants, agents, and other persons, any of whom may be an Employee, and the Committee, the Company, and its officers and Board shall be entitled to rely upon the advice, opinions, or valuations of any such person. 5.3    Decisions Binding. All determinations and decisions made by the Committee or the Board, as the case may be, pursuant to the provisions of the Plan and all related orders and resolutions of the Committee or the Board, as the case may be, shall be final, conclusive and binding on all persons, including the Company, its Affiliates, its stockholders, Participants and the estates and beneficiaries of Participants. 5.4    No Liability. Under no circumstances shall the Company, its Affiliates, the Board or the Committee incur liability for any indirect, incidental, consequential or special damages (including lost profits) of any form incurred by any person, whether or not foreseeable and regardless of the form of the act in which such a claim may be brought, with respect to the Plan or the Company’s, its Affiliates’, the Committee’s or the Board’s roles in connection with the Plan. ARTICLE VI AMENDMENT OR TERMINATION OF PLAN The Board may, at any time and from time to time, alter, amend, modify, suspend, or terminate the Plan and the Committee may, at any time and from time to time, alter, amend, modify, suspend, or terminate any Award in whole or in part. ARTICLE VII MISCELLANEOUS 7.1    Unfunded Plan/No Establishment of a Trust Fund. Participants shall have no right, title, or interest whatsoever in or to any investments that the Company or any of its Affiliates may make to aid in meeting obligations under the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative, or any other person. To the extent that any person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Company. All payments to be made hereunder shall be paid from the general funds of the Company and no special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts, except as expressly set forth in the Plan. No property shall be set aside nor shall a trust fund of any kind be established to secure the rights of any Holder under the Plan. The Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974, as amended. 7.2    No Employment Obligation. The granting of any Award shall not constitute an employment or service contract, express or implied, and shall not impose upon the Company or any Affiliate any obligation to employ or continue to employ, or to utilize or continue to utilize the services of, any Participant. The right of the Company or any Affiliate to terminate the employment of, or the provision of services by, any person shall not be diminished or affected by reason of the fact that an Award has been granted to him, and nothing in the Plan or an Award shall interfere with or limit in any way the right of the Company or its Affiliates to terminate Participant’s employment at any time or for any reason not prohibited by law. 7.3    Tax Withholding. To the extent that any payment pursuant to this Plan results in income, wages or other compensation to a Participant for any income, employment or other tax purposes with respect to which the Company or its Affiliates have a withholding obligation under federal, state or local law, the Company is authorized 5 -------------------------------------------------------------------------------- to withhold from any such payment under this Plan any tax required to be withheld by reason of such taxable income, wages or compensation sufficient to satisfy the withholding obligation. 7.4    Gender and Number. If the context requires, words of one gender when used in the Plan shall include the other and words used in the singular or plural shall include the other. 7.5    Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included. 7.6    Headings. Headings of Articles and Sections are included for convenience of reference only and do not constitute part of the Plan and shall not be used in construing the terms and provisions of the Plan. 7.7    Governing Law. The provisions of the Plan and the rights of all persons claiming thereunder shall be construed, administered and governed under the laws of the State of Texas, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan to the substantive law of another jurisdiction. Recipients of an Award under the Plan are deemed to submit to the sole and exclusive jurisdiction and venue of the federal or state courts of the State of Texas to resolve any and all issues that may arise out of or relate to the Plan or any related Award. 6
Title: [FL] Moving out of my apt in August, lease ends Sept 30. Landlord is telling me I have to keep utilities connected until 9/30. Also question on painting. Question:So my roommate and I are moving out before our lease ends and have given my landlord notice. My roommate and I have also paid rent through 9/30 already. My landlord is saying that even though we are moving out, we must keep the utilities connected through to the end of our lease on 9/30. I'm not really keen on doing that because I'm sure they will be in there painting and cleaning as soon as I move out and they'll crank up the AC, costing me money. I don't see anything in my lease that explicitly says I have to keep the utilities on after I have surrendered the keys and have had a move out inspection performed. Is that a standard practice or am I being screwed? Another question is on paint. My mother was telling me that by law, they must repaint the walls prior to a new tenant entering. I've got some marks on the wall that I will clean, but on my notice to move out, that both my roommate and I signed, they have paint 'touch up' fees. These fees amount can amount to $350 total, with a fee of $50 per 'touch up'. I'm thinking they'll use the slightest mark on a wall to try and charge me the $50 per 'touch up'. I'm not surrendering keys until I have a signed notice that either absolves me of fees or gives a final list of charges and I just have a feeling these guys will try and screw me. I've had bad experiences with past apartment complexes in the area. Any help or advice is greatly appreciated. Answer #1: You agreed to pay utilities in your lease. You continue paying the rent, and those utilities, until the lease is up or until the unit is re-rented. If you think they're going to run up the bill, then don't vacate the unit until the end of your lease. They can't re-rent it, but you don't have to worry about your utilities.
Exhibit 10.1 [njrdeferredstockreten_image1.jpg] NEW JERSEY RESOURCES CORPORATION Amendment of Deferred Stock Retention Award Agreement This Amendment of Deferred Stock Retention Award Agreement (this "Amendment") is made and entered into as of May ___, 2016 (the "Amendment Effective Date") by and between New Jersey Resources Corporation, a New Jersey corporation ("NJR"), and                 ("Employee"). Capitalized terms used in this Amendment but not defined herein shall have the same meanings as in the NJR 2007 Stock Award and Incentive Plan (the "Plan"). WHEREAS, NJR granted to Employee, on             , 20___, a deferred stock award and dividend equivalents of ____ deferred stock units of NJR common stock ("Deferred Stock") under the Plan, subject to the terms and conditions set forth in that certain NJR Deferred Stock Retention Award Agreement by and between NJR and Employee, dated as of     , 20___ (the "Agreement"); and WHEREAS, pursuant to the terms of the Agreement, dividend equivalents equal to the dividends and distributions paid on NJR common stock from the grant date until the Deferred Stock is distributed or forfeited will be accumulated on behalf of Employee and distributed in cash on the same terms as the Deferred Stock to which the dividends and distributions relate; and WHEREAS, NJR and Employee now desire to amend the terms of the Deferred Stock and the related Agreement to provide that dividend equivalents will be paid in shares of NJR common stock (instead of cash). NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, and intending to be legally bound, NJR and Employee agree as follows: 1.Notwithstanding any provision to the contrary in the Agreement, all dividends and distributions or other dividend equivalents that are accumulated on behalf of Employee and become distributable to Employee under the Agreement shall be distributed in shares of NJR common stock (instead of cash). The number of shares of NJR common stock to be distributed shall be that number of shares of unrestricted NJR common stock having a Fair Market Value (determined as of the date the Deferred Stock becomes payable) equal to the amount of accumulated dividends and distributions to be distributed to Employee. The Committee may determine how to treat or settle any fractional shares of NJR common stock otherwise distributable hereunder. 2.NJR and Employee agree and acknowledge that no cash will be available to satisfy applicable tax obligations given dividend equivalents will now be distributed in shares of NJR common stock. Accordingly, NJR may withhold from any shares of NJR common stock otherwise deliverable to pay any required tax obligations under the Agreement. 3.Except as otherwise set forth herein, the Agreement shall continue in accordance with its terms as in effect prior to this Amendment. [Signatures continued on next page] -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Amendment Effective Date set forth above.       NEW JERSEY RESOURCES CORPORATION               By:       LAURENCE M. DOWNES       Chairman & CEO               EMPLOYEE                 NAME       TITLE 2
741 N.W.2d 19 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Robert AYLWARD, Defendant-Appellant. Docket No. 134453. COA No. 269693. Supreme Court of Michigan. November 21, 2007. On order of the Court, the application for leave to appeal the May 22, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. *20 MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., would grant leave to appeal.
Name: Commission Implementing Decision (EU) 2015/1783 of 1 October 2015 amending the Annex to Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States, as regards the entries for Estonia (notified under document C(2015) 6643) (Text with EEA relevance) Type: Decision_IMPL Subject Matter: regions of EU Member States; international trade; means of agricultural production; agricultural activity; agricultural policy; health Date Published: 2015-10-06 6.10.2015 EN Official Journal of the European Union L 259/27 COMMISSION IMPLEMENTING DECISION (EU) 2015/1783 of 1 October 2015 amending the Annex to Implementing Decision 2014/709/EU concerning animal health control measures relating to African swine fever in certain Member States, as regards the entries for Estonia (notified under document C(2015) 6643) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (1), and in particular Article 9(4) thereof, Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (2), and in particular Article 10(4) thereof, Having regard to Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (3), and in particular Article 4(3) thereof, Whereas: (1) Commission Implementing Decision 2014/709/EU (4) lays down animal health control measures in relation to African swine fever in certain Member States. The Annex to that Decision demarcates and lists certain areas of those Members States differentiated by the level of risk based on the epidemiological situation. That list includes certain areas of Estonia, Italy, Latvia, Lithuania and Poland. (2) In September 2015, one case of African swine fever in wild boar and one outbreak in pigs were notified by Estonia within the areas listed in the Annex to Implementing Decision 2014/709/EU. The case in wild boar occurred in Part I of that Annex and the outbreak in pigs occurred in Part III in proximity of Part II of that Annex. (3) The evolution of the current epidemiological situation in the Union as regards African swine fever should be considered in the assessment of the risk represented by the animal health situation as regards that disease in Estonia. In order to focus animal health control measures and to prevent the further spread of African swine fever, as well as to prevent any unnecessary disturbance to trade within the Union and to avoid unjustified barriers to trade by third countries, the Union list of areas subject to the animal health control measures set out in the Annex to Implementing Decision 2014/709/EU should be amended to take into account the current animal health situation as regards that disease in those Member States. (4) Implementing Decision 2014/709/EU should therefore be amended accordingly. (5) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed, HAS ADOPTED THIS DECISION: Article 1 The Annex to Implementing Decision 2014/709/EU is replaced by the text in the Annex to this Decision. Article 2 This Decision is addressed to the Member States. Done at Brussels, 1 October 2015. For the Commission Vytenis ANDRIUKAITIS Member of the Commission (1) OJ L 395, 30.12.1989, p. 13. (2) OJ L 224, 18.8.1990, p. 29. (3) OJ L 18, 23.1.2003, p. 11. (4) Commission Implementing Decision 2014/709/EU of 9 October 2014 concerning animal health control measures relating to African swine fever in certain Member States and repealing Implementing Decision 2014/178/EU (OJ L 295, 11.10.2014, p. 63). ANNEX ANNEX PART I 1. Estonia The following areas in Estonia: ” the linn of Kunda, ” the linn of Mustvee, ” the linn of Pà ¤rnu, ” the maakond of Harjumaa, ” the maakond of Là ¤Ãƒ ¤nemaa, ” the vald of Are, ” the vald of Audru, ” the vald of Halinga, ” the vald of Haljala, ” the vald of Koonga, ” the vald of Laekvere, ” the vald of Lavassaare, ” the vald of Paikuse, ” the vald of Rà ¤gavere, ” the vald of Sauga, ” the vald of Sindi, ” the vald of Sà µmeru, ” the vald of Surju, ” the vald of Tahkuranna, ” the vald of Tootsi, ” the vald of Tori, ” the vald of Tà µstamaa, ” the vald of Varbla, ” the vald of Vihula, ” the vald of Vinni, ” the vald of Viru-Nigula. 2. Latvia The following areas in Latvia: ” in the novads of Krimuldas, the pagasts of Krimuldas, ” in the novads of Ogres, the pagasti of Lauberes, Suntaà ¾u, Ä ¶eipenes, Taurupes, Ogresgala and Mazozolu, ” in the novads of PriekuÄ ¼u, the pagasti of PriekuÄ ¼u and Veselavas, ” the novads of Amatas, ” the novads of CÄ “su, ” the novads of Ikà ¡Ã„ ·iles, ” the novads of InÄ ukalna, ” the novads of Jaunjelgavas, ” the novads of Ä ¶eguma, ” the novads of LielvÄ rdes, ” the novads of LÄ «gatnes, ” the novads of MÄ lpils, ” the novads of Neretas, ” the novads of Ropaà ¾u, ” the novads of Salas, ” the novads of SÄ “jas, ” the novads of Siguldas, ” the novads of Vecumnieku, ” the novads of ViesÄ «tes. 3. Lithuania The following areas in Lithuania: ” in the rajono savivaldybÄ — of Jurbarkas, the senià «nija of RaudonÄ —s, Veliuonos, Seredà ¾iaus and JuodaiÄ ià ³, ” in the rajono savivaldybÄ — of Pakruojis, the senià «nija of Klovainià ³, Rozalimo and Pakruojo, ” in the rajono savivaldybÄ — of Paneveà ¾ys, the senià «nija of Krekenavos, UpytÄ —s, NaujamiesÄ io and Smilgià ³, ” in the rajono savivaldybÄ — of Raseiniai, the senià «nija of Ariogalos, Ariogalos miestas, Betygalos, Pagojukà ³ and à iluvos, ” in the rajono savivaldybÄ — of à akiai, the senià «nija of Plokà ¡Ã„ ià ³, Krià «kà ³, LekÄ —Ä ià ³, Lukà ¡ià ³, Grià ¡kabà «dà ¾io, Barzdà ³, à ½virgà ¾daiÄ ià ³, Sintautà ³, Kudirkos NaumiesÄ io, Slavikà ³, à akià ³, ” the rajono savivaldybÄ — of Pasvalys, ” the rajono savivaldybÄ — of Vilkavià ¡kis, ” the rajono savivaldybÄ — of Radvilià ¡kis, ” the savivaldybÄ — of Kalvarija, ” the savivaldybÄ — of Kazlà ³ Rà «da, ” the savivaldybÄ — of MarijampolÄ —. 4. Poland The following areas in Poland: In the wojewà ³dztwo podlaskie: ” the gminy of Augustà ³w with the city of Augustà ³w, Nowinka, Sztabin and Bargà ‚Ãƒ ³w Koà ›cielny in the powiat augustowski, ” the gminy of Choroszcz, Juchnowiec Koà ›cielny, Suraà ¼, Turoà ›Ã „ Koà ›cielna, Tykocin, à apy, Poà ›wiÄtne, Zawady, Dobrzyniewo Duà ¼e and part of Zabà ‚udà ³w (the south-west part of the gmina delimitated by the line created by road number 19 and prolonged by road number 685) in the powiat biaà ‚ostocki, ” the gminy of Czyà ¼e, Hajnà ³wka with the city of Hajnà ³wka, Dubicze Cerkiewne, Kleszczele and Czeremcha in the powiat hajnowski, ” the gminy of Grodzisk, Dziadkowice and Milejczyce in the powiat siemiatycki, ” the gminy of Kobylin-Borzymy, Kulesze Koà ›cielne, Sokoà ‚y, Wysokie Mazowieckie with the city of Wysokie Mazowieckie, Nowe Piekuty, Szepietowo, Klukowo and Ciechanowiec in the powiat wysokomazowiecki, ” the gminy of Krasnopol and Puà „sk in the powiat sejneà „ski, ” the gminy of Rutka-Tartak, Szypliszki, Suwaà ‚ki, Raczki in the powiat suwalski, ” the gminy of Rutki in the powiat zambrowski, ” the gminy of Suchowola and Korycin in the powiat sokà ³lski, ” the powiat bielski, ” the powiat M. Biaà ‚ystok, ” the powiat M. Suwaà ‚ki, ” the powiat moniecki. PART II 1. Estonia The following areas in Estonia: ” the linn of Kallaste, ” the linn of Rakvere, ” the linn of Tartu, ” the linn of Và ¤ndra, ” the linn of Viljandi, ” the maakond of IDA-Virumaa, ” the maakond of Pà µlvamaa, ” the maakond of Raplamaa, ” the part of the vald of Palamuse located to the east of the Tallinn-Tartu railway, ” the part of the vald of Pà ¤rsti located to the west of road 24126, ” the part of the vald of Suure-Jaani located to the west of road 49, ” the part of the vald of Tabivere located to the east of the Tallinn-Tartu railway, ” the part of the vald of Tamsalu located to the north-east of the Tallinn-Tartu railway, ” the part of the vald of Tartu located to the east of the Tallinn-Tartu railway, ” the part of the vald of Viiratsi located to the west of the line defined by the western part of road 92 until the junction to road 155, then road 155 until the junction to road 24156, then road 24156 until it crosses Verilaske river, then the Verilaske river until it reaches the southern border of the vald, ” the vald of Abja, ” the vald of Alatskivi, ” the vald of Hà ¤Ãƒ ¤demeeste, ” the vald of Haaslava, ” the vald of Halliste, ” the vald of Kadrina, ” the vald of Kambja, ” the vald of Karksi, ” the vald of Kasepà ¤Ãƒ ¤, ” the vald of Kà µpu, ” the vald of Luunja, ” the vald of Mà ¤ksa, ” the vald of Meeksi, ” the vald of Pala, ” the vald of Peipsià ¤Ãƒ ¤re, ” the vald of Piirissaare, ” the vald of Rakvere, ” the vald of Saarde, ” the vald of Saare, ” the vald of Tapa, ” the vald of Và ¤ndra, ” the vald of Vara, ” the vald of Và µnnu. 2. Latvia The following areas in Latvia: ” in the novads of Krimuldas, the pagasts of LÄ “durgas, ” in the novads of Limbaà ¾u, the pagasti of Skultes, Vidridà ¾u, Limbaà ¾u and Umurgas, ” in the novads of Ogres, the pagasti of Krapes, Madlienas and MenÄ £eles, ” in the novads of PriekuÄ ¼u, the pagasti of Liepas and MÄ rsnÄ “nu, ” in the novads of SalacgrÄ «vas, the pagasts of Liepupes, ” the novads of Aizkraukles, ” the novads of AknÄ «stes, ” the novads of Alà «ksnes, ” the novads of Apes, ” the novads of Baltinavas, ” the novads of Balvi, ” the novads of Cesvaines, ” the novads of Ä ’rgÄ ¼u, ” the novads of Gulbenes, ” the novads of Ilà «kstes, ” the novads of Jaunpiebalgas, ” the novads of JÄ “kabpils, ” the novads of KocÄ “nu, ” the novads of Kokneses, ” the novads of Krustpils, ” the novads of LÄ «vÄ nu, ” the novads of LubÄ nas, ” the novads of Madonas, ” the novads of PÄ rgaujas, ” the novads of PÄ ¼avià †u, ” the novads of Raunas, ” the novads of RugÄ ju, ” the novads of SkrÄ «veru, ” the novads of Smiltenes, ” the novads of VarakÄ ¼Ã„ nu, ” the novads of Vecpiebalgas, ” the novads of ViÄ ¼akas, ” the republikas pilsÄ “ta of JÄ “kabpils, ” the republikas pilsÄ “ta of Valmiera. 3. Lithuania The following areas in Lithuania: ” in the rajono savivaldybÄ — of Anykà ¡Ã„ iai, the senià «nija of Andrionià ¡kis, Anykà ¡Ã„ iai, Debeikiai, Kavarskas, Kurkliai, Skiemonys, Traupis, Troà ¡kà «nai, and the part of SvÄ —dasai located south to road No 118, ” in the rajono savivaldybÄ — of Jonava the senià «nija of à ilà ³, Bukonià ³ and, in the à ½eimià ³ senià «nija, the kaimas of Biliuà ¡kiai, Drobià ¡kiai, Normainiai II, NormainÄ —liai, Juà ¡konys, Pauliukai, MitÄ —nià ¡kiai, Zofijauka, Naujokai, ” in the rajono savivaldybÄ — of Kaià ¡iadorys, the senià «nija of,Kaià ¡iadorià ³ apylinkÄ —s, Kruonio, Nemaitonià ³, PaparÄ ià ³, à ½Ã„ slià ³, à ½ieà ¾marià ³, à ½ieà ¾marià ³ apylinkÄ —s and the part of the senià «nija of Rumà ¡ià ¡kià ³ located south to the road N. A1, ” in the rajono savivaldybÄ — of Kaunas, the senià «nija of Akademijos, Alà ¡Ã„ —nà ³, Babtà ³, Batniavos, Ä Œekià ¡kÄ —s, Domeikavos, Eà ¾erÄ —lio, Garliavos, Garliavos apylinkià ³, KaÄ erginÄ —s, Kulautuvos, Linksmakalnio, Raudondvario, Ringaudà ³, Rokà ³, Samylà ³, Taurakiemio, Uà ¾liedà ¾ià ³, Vilkijos, Vilkijos apylinkià ³ and Zapyà ¡kio, ” in the rajono savivaldybÄ — of KÄ —dainiai, the senià «nija of Josvainià ³, Pernaravos, Krakià ³, Dotnuvos, Gudà ¾ià «nà ³, Survilià ¡kio, Vilainià ³, Truskavos, à Ä —tos, KÄ —dainià ³ miesto, ” in the rajono savivaldybÄ — of PanevÄ —à ¾ys the senià «nija of Karsakià ¡kio, Mieà ¾ià ¡kià ³, PaÄ ¯strio, PanevÄ —à ¾io, Ramygalos, Raguvos, Vadoklià ³ and Velà ¾io, ” in the rajono savivaldybÄ — of à alÄ ininkai, the senià «nija of Jaà ¡ià «nà ³, Turgelià ³, AkmenynÄ —s, à alÄ ininkà ³, Gervià ¡kià ³, Butrimonià ³, Eià ¡ià ¡kià ³, Poà ¡konià ³, Dievenià ¡kià ³, ” in the rajono savivaldybÄ — of VarÄ —na, the senià «nija of Kaniavos, Marcinkonià ³, MerkinÄ —s, ” the miesto savivaldybÄ — of Alytus, ” the miesto savivaldybÄ — of Kaià ¡iadorys, ” the miesto savivaldybÄ — of Kaunas, ” the miesto savivaldybÄ — of PanevÄ —à ¾ys, ” the miesto savivaldybÄ — of Vilnius, ” the rajono savivaldybÄ — of Alytus, ” the rajono savivaldybÄ — of Birà ¾ai, ” the rajono savivaldybÄ — of Druskininkai, ” the rajono savivaldybÄ — of Lazdijai, ” the rajono savivaldybÄ — of Prienai, ” the rajono savivaldybÄ — of à irvintos, ” the rajono savivaldybÄ — of UkmergÄ —, ” the rajono savivaldybÄ — of Vilnius, ” the savivaldybÄ — of Birà ¡tonas, ” the savivaldybÄ — of ElektrÄ —nai. 4. Poland The following areas in Poland: In podlaskie wojewà ³dztwo: ” the gminy of Czarna Biaà ‚ostocka, Supraà ›l, Wasilkà ³w and part of Zabà ‚udà ³w (the north-east part of the gmina delimitated by the line created by road number 19 and prolonged by road number 685) in the powiat biaà ‚ostocki, ” the gminy of DÄ browa Biaà ‚ostocka, Janà ³w, Nowy Dwà ³r and Sidra in the powiat sokà ³lski, ” the gminy of Giby and Sejny with the city of Sejny in the powiat sejneà „ski, ” the gminy of Lipsk and Pà ‚aska in the powiat augustowski, ” the gminy of Narew, Narewka and Biaà ‚owieà ¼a in the powiat hajnowski. PART III 1. Estonia The following areas in Estonia: ” the linn of Elva, ” the linn of Jà µgeva, ” the linn of Pà µltsamaa, ” the linn of Và µhma, ” the maakond of Jà ¤rvamaa, ” the maakond of Valgamaa, ” the maakond of Và µrumaa, ” the part of the vald of Palamuse located to the west of the Tallinn-Tartu railway, ” the part of the vald of Pà ¤rsti located to the east of road 24126, ” the part of the vald of Suure-Jaani located to the east of road 49, ” the part of the vald of Tabivere located to the west of the Tallinn-Tartu railway, ” the part of the vald of Tamsalu located to the south-west of the Tallinn-Tartu railway, ” the part of the vald of Tartu located to the west of the Tallinn-Tartu railway, ” the part of the vald of Viiratsi located to the east of the line defined by the western part of road 92 until the junction to road 155, then road 155 until the junction to road 24156, then road 24156 until it crosses Verilaske river, then the Verilaske river until it reaches the southern border of the vald, ” the vald of Jà µgeva, ” the vald of Kolga-Jaani, ” the vald of Konguta, ” the vald of Kà µo, ” the vald of Laeva, ” the vald of Nà µo, ” the vald of Paistu, ” the vald of Pajusi, ” the vald of Pà µltsamaa, ” the vald of Puhja, ” the vald of Puurmani, ” the vald of Rakke, ” the vald of Rannu, ” the vald of Rà µngu, ” the vald of Saarepeedi, ” the vald of Tà ¤htvere, ” the vald of Tarvastu, ” the vald of Torma, ” the vald of à œlenurme, ” the vald of Và ¤ike-Maarja. 2. Latvia The following areas in Latvia: ” in the novads of Limbaà ¾u, the pagasti of ViÄ ¼Ã„ ·enes, PÄ les and Katvaru, ” in the novads of SalacgrÄ «vas, the pagasti of Ainaà ¾u and SalacgrÄ «vas, ” the novads of Aglonas, ” the novads of Alojas, ” the novads of BeverÄ «inas, ” the novads of Burtnieku, ” the novads of Ciblas, ” the novads of Dagdas, ” the novads of Daugavpils, ” the novads of KÄ rsavas, ” the novads of KrÄ slavas, ” the novads of Ludzas, ” the novads of Mazsalacas, ” the novads of Naukà ¡Ã„ “nu, ” the novads of PreiÄ ¼u, ” the novads of RÄ “zeknes, ” the novads of Riebià †u, ” the novads of Rà «jienas, ” the novads of StrenÄ u, ” the novads of Valkas, ” the novads of VÄ rkavas, ” the novads of ViÄ ¼Ã„ nu, ” the novads of Zilupes, ” the republikas pilsÄ “ta of Daugavpils, ” the republikas pilsÄ “ta of RÄ “zekne. 3. Lithuania The following areas in Lithuania: ” in the rajono savivaldybÄ — of Anykà ¡Ã„ iai, the senià «nija of Vieà ¡intos and the part of the senià «nija of SvÄ —dasai located north to road No 118, ” in the rajono savivaldybÄ — of Jonava the senià «nija of Upninkà ³, Ruklos, Dumsià ³, Uà ¾usalià ³, Kulvos and, in the senià «nija of à ½eimiai, the kaimas Akliai, Akmeniai, BarsukinÄ —, Blauzdà ¾iai, Gireliai, JagÄ —lava, Juljanava, Kuigaliai, Liepkalniai, Martynià ¡kiai, Milaà ¡ià ¡kiai, Mimaliai, Naujasodis, Normainiai I, Paduobiai, Palankesiai, PamelnytÄ —lÄ —, PÄ —dà ¾iai, SkrynÄ —s, Svalkeniai, Terespolis, VarpÄ —nai, à ½eimià ³ gst., à ½ievelià ¡kiai and à ½eimià ³ miestelis, ” in the rajono savivaldybÄ — of Kaià ¡iadorys, the senià «nija of PalomenÄ —s, Pravienià ¡kià ³ and the part of the senià «nija of Rumà ¡ià ¡kià ³ located north of the road N. A1, ” in the rajono savivaldybÄ — of Kaunas, the senià «nija of Vandà ¾iogalos, Lapià ³, KarmÄ —lavos and Neveronià ³, ” in the rajono savivaldybÄ — of KÄ —dainiai, the senià «nija of PelÄ —dnagià ³, ” in the rajono savivaldybÄ — of à alÄ ininkai, the senià «nija of Baltosios VokÄ —s, PabarÄ —s, Dainavos, Kalesninkà ³, ” in the rajono savivaldybÄ — of VarÄ —na, the senià «nija of Valkininkà ³, JakÄ —nà ³,, Matuizà ³, VarÄ —nos, Vydenià ³, ” the miesto savivaldybÄ — of Jonava, ” the rajono savivaldybÄ — of Ignalina, ” the rajono savivaldybÄ — of Kupià ¡kis, ” the rajono savivaldybÄ — of Moletai, ” the rajono savivaldybÄ — of Rokià ¡kis, ” the rajono savivaldybÄ — of à vencionys, ” the rajono savivaldybÄ — of Trakai, ” the rajono savivaldybÄ — of Utena, ” the rajono savivaldybÄ — of Zarasai, ” the savivaldybe of Visaginas. 4. Poland The following areas in Poland: In podlaskie wojewà ³dztwo: ” the gminy of Grà ³dek and Michaà ‚owo in the powiat biaà ‚ostocki, ” the gminy of Krynki, Kuà ºnica, Sokà ³Ã ‚ka and Szudziaà ‚owo in the powiat sokà ³lski. PART IV Italy The following areas in Italy: all areas of Sardinia.
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 9 UNITED STATES OF AMERICA, Case No. 19-CR-41-RSL 10 Plaintiff, ORDER DENYING 11 v. DEFENDANT’S MOTION TO COMPEL DISCOVERY 12 MURUGANANANDAM ARUMUGAM, 13 Defendant. 14 15 This matter comes before the Court on defendant’s “Motion to Compel Production of 16 Discovery.” Dkt. #67. Defendant moves for production of certain discovery in relation to his 17 motion to suppress (Dkt. #43), which is scheduled for oral argument on March 3, 2020. 1 For the 18 reasons set forth below, defendant’s motion to compel is DENIED. 2 19 I. BACKGROUND 20 Defendant Murugananandam Arumugam is charged with one count of possession of child 21 pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and one count of receipt of child 22 pornography in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1). See Dkt. #84 (Second Superseding 23 Indictment). 24 25 26 1 Defendant also has a second, related motion to suppress pending for hearing before the Court. 27 See Dkt. #44. 2 28 The Court, having reviewed the memoranda, declarations, and exhibits submitted by the parties, finds that resolution of this matter without oral argument is appropriate. ORDER DENYING MOTION TO COMPEL - 1 1 On October 1, 2019, defendant filed a motion to suppress 3 all evidence and fruits of that 2 evidence seized as a result of the government’s use of the RoundUp eMule (“RoundUp”) 3 program to investigate defendant’s activity on a peer-to-peer (P2P) file sharing network. See 4 Dkt. #43; Dkt. #71-1 (Lynn Decl.) at ¶ 3. RoundUp is a modified version of the public eMule 5 P2P client used to conduct undercover child pornography investigations. Lynn Decl. at ¶ 21. 4 6 The government’s implementation of RoundUp led to Detective Daniel Conine downloading 7 from IP address (217)254-0927 files and partial files of minors engaging in sexually explicit 8 conduct. Accordingly, RoundUp was the means through which law enforcement identified 9 defendant as a suspect and established the bases for two search warrants: (1) to obtain IP address 10 subscriber information from Comcast, and (2) to search and seize computers and electronic 11 storage devices from defendant’s residence in Redmond, Washington. See Dkt. #[email protected]. 12 During the search of defendant’s home, agents seized several items, including a Dell computer 13 containing visual depictions of minors engaged in sexually explicit conduct. The charges 14 pertain to the items seized during the search of defendant’s home. 15 Defendant’s motion to suppress advances two legal theories to support his contention that 16 the government’s use of RoundUp constituted an unlawful “search” on defendant’s computer in 17 violation of the Fourth Amendment. Defendant argues that “[a] warrantless search occurred 18 because” (1) “the government identified IP address (217)254-0927, port 54494 after it engaged 19 in generalized surveillance using technology unavailable to the public”; and (2) “the government 20 digitally trespassed into the device connected to IP address (217)254-0927, port 54494 after it 21 engaged in generalized surveillance using technology unavailable to the public.” See Dkt. #67 22 at 2. 23 24 3 The motions to suppress were re-noted for the Court’s consideration on February 14, 2020. See 25 Dkt. #69. 26 4 The government’s expert, Bryan Lynn, identifies four modifications that differentiate RoundUp from eMule: (1) preventing of file sharing on the eMule network, (2) downloading of files from a single 27 source rather than from multiple eMule clients, (3) documenting the single source download activity, 28 and (4) the ability to search the network specifically for files suspected of being associated with child pornography. Lynn Decl. at ¶ 22. ORDER DENYING MOTION TO COMPEL - 2 1 The government filed its response to defendant’s motion to suppress on November 15, 2 2019. See Dkt. #60. On November 25, 2019, defendant served the government with a Federal 3 Rule of Criminal Procedure (“Rule”) 16(a)(1)(E) discovery request related to the government’s 4 arguments in response to his motion to suppress. See Dkt. #67-1, 67-2 (Ex. A). Defendant 5 raised 13 categories of evidence, asserting their materiality to his preparation for the pre-trial 6 motion to suppress litigation. Dkt. #67 at 2; Dkt. #67. Defendant’s letter specifically requested: 7 1) A copy of the RoundUp eMule User Manual for version 1.57 8 2) A copy of the RoundUp eMule source code for version 1.57 9 3) A copy of all test specifications, procedures, protocols, and test results used to test RoundUp eMule 10 4) How many hash values are stored in the list of previously 11 identified hash values? 12 5) How many of the hash values stored in the previously identified 13 hash values are known child pornography? 6) How many of the hash values stored in previously identified hash 14 values are alleged child pornography? 15 7) How many of the hash values stored in the previously identified 16 hash values are related to child pornography but not known or alleged? 17 8) All records and fields from the download candidate database for 18 the IP address involved in this case, IP address: (217)254-0927. 19 Production in an Excel spreadsheet format is preferred. 20 9) Identify all records in the download candidate database for IP address: (217)254-0927 that were logged by RoundUp eMule 21 computers operating outside the U.S. 22 10) The total number of computers running RoundUp eMule and 23 logging search results in the download candidate database during the entire period of time that IP address (217)254-0927 was being 24 surveyed. This would be the period of time from the logging of 25 the first search result for IP address (217)254-0927 until the last search result stored for that IP address. The total number is for 26 all computers logging search results for all IP addresses. 27 11) Total number of RoundUp eMule computers from request 10) that were operating outside the U.S. Courts 28 ORDER DENYING MOTION TO COMPEL - 3 1 12) The name of a currently available software program that executes automated Google searches and aggregates the results 2 13) All RoundUp and eMule log files from Det. Conine’s computer. 3 The log files originally produced only extend through 4/17/2017. 4 According to the clients.met file on Mr. Arumugam’s computer Det. Conine’s computer had downloaded data on 10/2/2017. 5 Provide the missing RoundUp eMule log files from 4/17/2017. 6 Dkt. #67-2 (Ex. A). According to defendant, defense attorneys met with the government to 7 discuss the discovery demand on December 4, 2019, when the government indicated it would 8 not agree to the request. Dkt. #67 at 3. On December 18, 2019, the government served the 9 defense with a letter opposing defendant’s 13 discovery requests. See Dkt. #67-3 (Ex. B). On 10 December 31, 2019, defendant filed the instant motion to compel the government’s production 11 of the 13 discovery items identified in his November 25, 2019 discovery demand. See Dkt. #67. 12 II. DISCUSSION 13 In relevant part, Rule 16(a)(1)(E) provides, 14 Upon a defendant’s request, the government must permit the 15 defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, 16 or copies or portions of any of these items, if the item is within the 17 government’s possession, custody, or control and . . . the item is material to preparing the defense. 18 19 Fed. R. Crim. P. 16(a)(1)(E). The disclosure requirement is not necessarily limited to 20 preparation for trial defense. See United States v. Soto-Zuniga, 837 F.3d 992 (9th Cir. 2016) 21 (concluding that “Rule 16(a)(1)(E) permits discovery to determine whether evidence in a 22 particular case was obtained in violation of the Constitution and was thus admissible”). In 23 support of his motion, defendant argues that (1) the requested items are in the government’s 24 possession, custody, or control; (2) the requested items are material to the pre-trial litigation; and 25 (3) any concerns underlying the government’s claim of qualified law enforcement privilege can 26 be resolved with a protective order. See Dkt. #67. 27 28 ORDER DENYING MOTION TO COMPEL - 4 1 a. Government’s Possession, Custody, or Control 2 The first issue is whether the items defendant requests are in the government’s 3 possession, custody, or control. See Fed. R. Crim. P. 16(a)(1)(E). Defendant argues that the 4 RoundUp source code, user manual, and all related items identified in Exhibit A are in the 5 government’s possession, custody, or control because the government’s expert has access to the 6 information and receives funding from the U.S. Department of Justice to develop and manage 7 RoundUp. See Dkt. #[email protected]. 5 The Court declines to reach the question of government 8 possession, because even assuming defendant’s requested items are in the possession, custody, 9 or control of the government, defendant fails to establish the materiality of the requested 10 evidence for the reasons set forth below. 11 b. Materiality 12 “A defendant must make a ‘threshold showing of materiality’ in order to compel 13 discovery pursuant to Rule 16(a)(1)(E).” United States v. Budziak, 697 F.3d 1105, 1111 (9th 14 Cir. 2012) (citation omitted). “Neither a general description of the information sought nor 15 conclusory allegations of materiality will suffice; a defendant must present facts that would tend 16 to show that the [g]overnment is in possession of information helpful to the defense.” Id. at 17 1111-12 (citation omitted). 18 Defendant argues that the requested discovery is material to the two Fourth Amendment 19 theories in his motion to suppress, as outlined above. See Dkt. #[email protected]. He argues that the 20 requested items, including the RoundUp source code and user manual, are necessary to show 21 that RoundUp used “tagging” or “tracing” methods that resulted in an unlawful search. He also 22 argues that he will not be able to effectively cross-examine the government’s expert on the 23 search issue, or develop an adequate factual record with all of the information the government 24 possesses. Defendant asserts that his requests are necessary because “the government’s expert is 25 in disagreement with the defense expert on the question of whether there was a search of 26 5 The government’s expert, Bryan Lynn, is the developer of RoundUp. See Dkt. #71-1 (Lynn 27 Decl.). The government also relies on expert Detective Robert Erdely with the Indiana County 28 Pennsylvania Computer Crime Unit, who assisted in developing RoundUp and is a subject matter expert on P2P networks. See Dkt. #71-2 (Erdely Decl.). ORDER DENYING MOTION TO COMPEL - 5 1 [defendant’s computer].” Dkt. #[email protected]. Defendant seeks the RoundUp source code, user 2 manual, test results, and related evidence so that his own expert, Terry Lahman, may perform 3 his own tests on the program, which defendant believes will prove the existence of a government 4 search. 6 See Dkt. #67 at 6-7; Dkt. 75 5 In support of his argument for an order compelling production of the RoundUp source 6 code, user manual, and technical specifications, defendant relies on United States v. Budziak, 7 697 F.3d 1105 (9th Cir. 2012). Although binding upon this Court, Budziak is distinguishable. 7 8 Budziak involved a defendant’s motion to compel disclosure of the source code and technical 9 specifications of EP2P, another P2P program similar to an enhanced version of LimeWire. Id. at 10 1112-13. The defendant in Budziak argued that the FBI, using EP2P, only downloaded certain 11 fragments of child pornography files from his computer, which he alleged raised doubts about 12 whether he knowingly distributed complete child pornography files and whether the law 13 enforcement officials might have used the program to override defendant’s sharing settings on 14 LimeWire. Id. at 1112. If true, the defendant argued, the requested discovery would tend to 15 negate the mens rea element of the charged crime, a central element to his defense. Id. 16 17 6 18 Of note, the government offered to provide a demonstration of RoundUp to defendant’s counsel and expert, in which Detective Erdely or Detective Conine could “(1) [describe] how investigators use 19 RoundUp eMule to identify and download child pornography from P2P network users; (2) describe its manual and automated search and download capabilities; and (3) demonstrate several single source 20 downloads, explaining how those downloads are logged and how to interpret the log files produced by 21 RoundUp eMule.” See Dkt. #71 at 8; Dkt. #67-3 (Ex. B) at 2. The government indicates that defendant declined this offer and instead filed the instant motion to compel. Dkt. #71 at 8. 22 7 Neither is defendant’s reliance on United States v. Soto-Zuniga, 837 F.3d 992 (9th Cir 2016) 23 persuasive. See Dkt. #75 at 5. The defendant in Soto-Zuniga challenged the district court’s denial of his motion to compel discovery of a Border Patrol checkpoint’s arrest and search statistics. Id. at 995. The 24 Ninth Circuit found the district court abused its discretion in denying the motion to compel, concluding 25 that defendant had made a specific showing as to how those arrest and search statistics were “material” to his defense that the border checkpoint violated his Fourth Amendment rights. Id. at 999-1002. As the 26 Court in Blouin emphasized, “[s]earch and arrest statistics are substantially different from source code.” Blouin, 2017 WL 2573993, at *3 n.3 (citing Soto-Zuniga, 837 F.3d at 999-1002). Further, defendant’s 27 conclusory assertions as to the possibility that the RoundUp source code and technological 28 specifications would assist him in supporting his Fourth Amendment challenge fall short of the requisite showing under Rule 16(a)(1)(E). ORDER DENYING MOTION TO COMPEL - 6 1 Defendant has not made any similar showing here. 8 While defendant argues that he needs 2 access to the RoundUp source code and technical specifications in order to “assess the program 3 and testimony of FBI agents who used it to build the case against him,” Dkt. #67 at 5-6 (quoting 4 Budziak, 697 F.3d at 1112), and to allow his expert to prove the existence of a government 5 search, he offers only a declaration from his expert and his expert’s letter listing discovery 6 requests to support his conclusory speculations. See Dkt. #43 (Ex. B); Dkt. #67-2 (Ex. A). 7 Defendant has failed to demonstrate with specificity how the information he seeks is material to 8 any defense, especially considering that he, unlike the defendant in Budziak, has not been 9 charged with any of the conduct Detective Conine observed on RoundUp. See Dkt. #71 at 21; 10 Dkt. #84. 11 The Court also agrees with the government that defendant has failed to show how the 12 additional hash values and information regarding the government’s download candidate 13 database are relevant to his case. See Dkt. #[email protected]. Defendant does not dispute the 14 government’s assertion that he has access to the nearly 3,000 hash values associated with the 15 child pornography files actually involved with this case. Id. at 9, Ex. B (Erdely Decl) at ¶ 5, 18; 16 Ex. A (Lynn Decl.) at ¶ 20; see also Dkt. #67, 75. Defendant fails to support his request for 17 broader discovery related to hash values or the download candidate database, which largely 18 concern other individuals suspected of sharing child pornography. Dkt. #71-2 (Erdely Decl.) at 19 ¶¶ 6-7, 18. Accordingly, defendant has not established materiality with regard to his requests 20 for additional hash values or law enforcement’s download candidate database. 21 c. Qualified Law Enforcement Privilege 22 Finally, the Court shares the government’s concerns regarding the sensitivity of 23 RoundUp, its source code, hash value and download candidate databases, and related evidence. 24 Dkt. #71 at 23-27; see also Blouin, 2017 WL 2573993, at *3 (quoting United States v. Pirosko, 25 787 F.3d 358, 365 (6th Cir. 2015)) (agreeing that “granting the defendant’s request for the 26 8 The Court also notes that numerous decisions, including one within this District, have since 27 distinguished Budziak on similar grounds. See, e.g., United States v. Blouin, No. CR16-307 TSZ, 2017 28 WL 2573993, at *3 (W.D. Wash. June 14, 2017); United States v. Feldman, 2014 WL 7653617, at *5-6 (E.D. Wis. July 7, 2014). ORDER DENYING MOTION TO COMPEL - 7 1 [RoundUp] source code would ‘compromise the integrity of [the government’s] surveillance 2 system and would frustrate future surveillance efforts”). However, because defendant has not 3 met his burden to establish the materiality of the requested evidence, the Court declines to reach 4 the merits of the government’s law enforcement privilege argument. 9 5 III. CONCLUSION 6 For all the foregoing reasons, defendant’s Motion to Compel Production of Discovery 7 (Dkt. #67) is DENIED. 8 9 DATED this 27th day of February, 2020. 10 11 12 13 A Robert S. Lasnik United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 9 Similarly, the Court need not reach defendant’s arguments on reply regarding his due process 27 and Confrontation Clause rights. See Dkt. #[email protected]. Because defendant has not established that the 28 requested information is material to his defense, he fails to show that his constitutional rights will be violated by the Court’s denial of his motion to compel. ORDER DENYING MOTION TO COMPEL - 8
Citation Nr: 0738711 Decision Date: 12/10/07 Archive Date: 12/19/07 DOCKET NO. 04-13 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a compensable rating for left lower extremity shell fragment wound residuals. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from May 1971 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in August 2003 (increased rating claim) and July 2004 (service connection claim) by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. For the reasons outlined below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. REMAND Concerning the issue of entitlement to service connection for tinnitus, the Board notes that a VA audio examination dated in May 2003 shows that the veteran, while reporting that tinnitus was not presently a problem, gave a history of prior intermittent tinnitus complaints. He added that while serving in Vietnam he was exposed to bombs, artillery, and shells. The claims file was available to the examiner. A June 2004 VA audio examination report notes that the claims folder was not available to the examiner. The veteran reported problems associated with tinnitus. The examiner noted that the veteran's explanation as to the frequency of his tinnitus symptoms was inconsistent. The examiner commented that she was unable to render an opinion, without resorting to mere speculation, as to whether the veteran's claimed tinnitus was related to his military service. Private medical records, including those dated in September 2004, reflect a diagnosis of tinnitus. Based on the circumstances of military service, the Board finds that the evidence establishes that the veteran suffered acoustic trauma (exposure to weapons noise) during military service. Accordingly, the Board finds that affording the veteran an examination (with review of the claims file) for the purpose of obtaining an opinion concerning a possible relationship between the veteran's tinnitus and his acoustic trauma in military service is appropriate in this case. 38 C.F.R. § 3.159(c)(4). The Board also points out that the Veterans Claims Assistance Act of 2000 (VCAA) requires that VA provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. 38 C.F.R. § 3.326 (2007); Green v. Derwinski, 1 Vet. App. 121 (1991). In this case, the examiner is shown not to have had access to the veteran's claims folder at the time she conducted the June 2004 VA audio examination. As part of an October 2007 Informal Hearing Presentation the veteran's representative argued essentially that the veteran's service-connected left lower extremity shell fragment wound residuals (presently evaluated under Diagnostic Code 7805, pertaining to scars) had essentially worsened since he was last afforded a VA orthopedic examination in April 2001. The April 2001 examination report includes diagnoses of two shrapnel injuries to the left lower extremity and mild chondromalacia patella. A May 2003 VA orthopedic examination report shows that the examiner opined that the veteran's diagnosed left knee degenerative joint disease was not related to his service-connected superficial shell fragment wound residuals. A September 2003 private medical record shows that the veteran was reported to have a nerve injury to his left leg that causes numbness, tingling, and pain on a daily basis. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran-claimant alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the veteran was entitled to a new examination after a two year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). Hence, the veteran should be scheduled for a new examination. Accordingly, the case is REMANDED for the following action: 1. The RO must send the appellant a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a) disability ratings and effective dates for the service connection claim on appeal, and b) an effective date for the increased rating claim on appeal, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be scheduled for the appropriate VA examination to determine the etiology of his tinnitus. The examiner should be provided the veteran's claims file for review, and any indicated studies must be completed. Following examination of the veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran has current tinnitus that is related to acoustic trauma in his military service. The examiner must explain the rationale for any opinion given. 3. The RO is to also schedule the appellant for an appropriate VA examination to address the severity of disability caused by his service- connected residuals of shell fragment wound to the left lower extremity. The claims folder must be made available for the examiner to review. The examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of any associated disability. The examiner should also comment on the presence of, if any, limitation of function of the veteran's left lower extremity which is proximately due to his service-connected shell fragment wound residuals. A complete rationale for any opinions expressed must be provided. 4. The veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for either or both of the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examination(s) was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, and following any other indicated development, the RO should prepare a new rating decision and readjudicate the appealed issues. If the appeal is denied in any respect, the veteran and his representative should be provided a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 2002) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board have remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DENNIS F. CHIAPPETTA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).
SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1 CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an application to determine eligibility of a Trustee pursuant to Section 305 (b)(2) CITIBANK, N.A. A National Banking Association 13-5266470 (I.R.S. employer identification no.) 399 Park Avenue, New York, New York (Address of principal executive office) (Zip Code) BMW FS SECURITIES LLC (Exact name of Obligor specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 22-2013053 (I.R.S. employer identification no.) 300 Chestnut Ridge Road Woodcliff Lake, New Jersey VARIOUS BMW VEHICLE OWNER TRUSTS (Exact name of Obligor specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) Applied for (I.R.S. employer identification no.) c/o Wilmington Trust Company, as Owner Trustee Attn: Corporate Trust Administration Rodney Square North 1100 North Market Street Wilmington, Delaware Or such other address specified in the applicable Prosepctus Supplement (Address of principal executive offices) 19890-1600 (Zip Code) Asset Backed Securities Title of Indenture Securities Item 1.General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Name Address Comptroller of the CurrencyWashington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance CorporationWashington, D.C. (b)Whether it is authorized to exercise corporate trust powers. Yes. Item 2.Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16.List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect.(Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business.(Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers.(Exhibit 3 to T-1 to Registration Statement No. 2-55519) Exhibit 4 - Copy of existing By-Laws of the Trustee.(Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939.(Exhibit 6 to T-1 to Registration Statement No.33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as ofDecember31, 2010 - attached) Exhibit 8 -Not applicable. Exhibit 9 -Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 9th day ofSeptember, 2011. CITIBANK, N.A. By /s/ Louis Piscitelli Louis Piscitelli Vice President
Citation Nr: 1206522 Decision Date: 02/22/12 Archive Date: 03/01/12 DOCKET NO. 05-40 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected post traumatic stress disorder (PTSD). 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted entitlement to service connection for PTSD and denied claims for bilateral hearing loss and tinnitus. In January 2009, the Board remanded the claims for further development. In November 2010, the RO granted the claim for entitlement to service connection for left ear hearing loss. Thus, that issue is no longer in appellate status. Additionally, the Board notes that the Veteran filed a claim for alcohol and substance abuse secondary to PTSD in November 2003. Although service connection for PTSD was granted in March 2004, the claim for alcohol and substance abuse has not been adjudicated. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C.A. § 105(a), 1110, 1131 either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Service connection may be granted for an alcohol or drug abuse disability acquired secondary to or as a symptom of service-connected disability. However, the Federal Circuit further stated that such compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen, 237 F. 3d at 1381 (emphasis added). Nevertheless, as will be discussed below, because it is not possible based on the current medical evidence to adequately differentiate the symptomatology between the Veteran's service-connected PTSD and his non-service connected psychiatric and alcohol related disabilities, they will be considered together for purposes of his PTSD rating. Because the Veteran is receiving the benefit of the symptomatology related to his alcohol abuse in his PTSD rating, it is not necessary to remand this matter for adjudication as he would not be entitled to a higher rating with a separate formal grant of service connection for alcohol abuse. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The issues of right ear hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT After resolving reasonable doubt, the Veteran's PTSD has been shown to result in symptoms more closely approximating total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 100 percent disability rating for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130 Diagnostic Codes 9411 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Because a 100 percent rating for PTSD is being granted, which represents a full grant of the benefit sought on appeal, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). LAW AND ANALYSIS 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The pertinent provisions of 38 C.F.R. § 4.130 relating to rating mental disorders, including PTSD, read as follows: 100 percent Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Under the criteria when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. Ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional provision that the Secretary of Veterans Affairs shall from time to time readjust the Schedule of Ratings in accordance with experience. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 100 percent rating. The Board observes that since the Veteran filed his claim in 2003, he has been hospitalized on numerous occasions for suicidal thoughts and alcohol intoxication. He has been diagnosed with PTSD, major depressive disorder, alcohol dependence, and substance induced mood disorder with psychotic features. The record reflects that the Veteran had a long period of sobriety from alcohol until relapsing in approximately 1998. An August 2004 VA record indicates that the Veteran had been a manager at a half way house for eleven years until relapsing on alcohol and losing his job. The Veteran also reported that he separated from his wife due to alcohol at approximately the same time. He has also been chronically homeless, hospitalized for inpatient treatment, or living in shelters throughout the appeal period. During his January 2004 VA examination, the Veteran's PTSD was characterized as severe. On his September 2004 application for a total rating based on individual unemployability (TDIU), the Veteran asserted that he could not work due to his PTSD and last worked in March 2003. The Veteran was also noted to have audio and visual hallucinations throughout his appeal period. During his October 2005 VA examination, the Veteran reported over dosing on prescription medications seven months earlier. He reported transient suicidal thoughts. The diagnosis was mild to moderate PTSD with substance abuse in remission. However, that finding is contradicted by several hospitalizations for alcohol abuse during the appeal period. For example, he was admitted to a VAMC in April 2005 for substance abuse; in August 2005 for suicidal ideation; and in September 2007, April 2009, and March 2010 for alcohol. Thus, it does not appear that the Veteran's substance abuse has been in remission. The Veteran had another PTSD examination in December 2009. The examiner observed that the Veteran had been hospitalized on a number of occasions for alcohol related problems and depression with accompanying suicidality. He was living in low income housing for senior citizens and individuals with disabilities. He had made a few friends and had weekly phone contact and occasional visits from his daughters and occasional contact with his son. The examiner diagnosed PTSD, severe recurrent major depressive disorder, and alcohol dependence. A GAF score of 55 was assigned with a notation that he had many moderate to severe symptoms and moderate difficulties in social situations. The examiner stated that it would be speculation to determine how much of his difficulties are caused by PTSD compared to depression and alcohol abuse. It is also possible that some of the depressive symptoms and the alcohol abuse are caused by his PTSD. The examiner added that the Veteran had many serious symptoms of PTSD which have made it difficult for him to be gainfully employed and to establish and develop relationships. Based on his treatment history, self-report, and test results the examiner found evidence that the Veteran experienced an increase in overall psychological symptoms in the last few years. However, while some of this is likely related to his PTSD, it is equally possible that this is a result of an increase in depression and alcohol consumption. The examiner stated that it would be difficult to confirm whether his major depressive disorder and alcohol dependence were caused by his PTSD. Although he was assigned a GAF score of 55, it is likely that his GAF score has been even lower at times during the last year considering his multiple inpatient hospitalizations. The examiner continued that it would be pure speculation to determine how much of his problems are caused by his PTSD alone as all of his co-morbid disorders influence each other and his overall functioning. His symptoms appear to cause significant distress and impairment to social functioning. In September 2010, an addendum was added to the December 2009 VA examination. A clinical psychologist noted that a psychology intern had conducted the examination under his supervision. The psychologist stated that there was no evidence that the Veteran's PTSD taken in isolation had increased and there was no evidence which shows that it is more likely than not that his symptoms are due to PTSD. Given his history of substance abuse, it is more likely that the increased problems are due to his alcoholism than to his PTSD and it is not unlikely that there would be a significant reduction in his overall adjustment problems if he were to maintain sobriety. Depression and anxiety as well as substance abuse are frequently found in people with PTSD but there is no evidence that his PTSD is causing his slight increase in his overall symptoms. It is more likely than not that his increased alcohol abuse is causing increased depression and emotional problems; it appears to be less likely that the PTSD is causing the slight increase in depression. In summary, the clinical psychologist contradicts the psychology intern's findings that it would be speculation to confirm which symptoms were attributed to PTSD alone. However, the psychologist did not explain his conclusions that it was more likely that the Veteran's increased problems were due solely to his alcoholism. The examiner reasoned that the Veteran's history of substance abuse made it more likely that his increase in problems was due to his alcoholism. However, although he acknowledged that depression, anxiety, and substance abuse are frequently found in people with PTSD, he did not explain whether the Veteran's co-morbid disorders were aggravating his PTSD or vice versa. Thus, it is not clear which signs and symptoms can be attributed solely to PTSD. Therefore, the psychological symptomatology must be considered as a whole. See Mittleider v. West, 11 Vet. App. 181 (1998); see also 61 Fed. Reg. 52695 (Oct. 8, 1996) (VA responding to commenters by noting that, when it is not possible to separate the effects of conditions, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the claimant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition). The Board concludes that based on the medical evidence indicating that the Veteran had frequent suicidal thoughts, several hospitalizations for alcohol abuse/suicidal ideations, no employment, been homeless or living in shelters, and limited social contacts that after resolving reasonable doubt, the evidence more nearly approximates the criteria for a 100 percent rating. Accordingly, a 100 percent rating for PTSD is granted. 38 C.F.R. §§ 4.7, 4.130 Diagnostic Code 9411. ORDER Entitlement to a 100 percent initial disability rating for service-connected PTSD is granted. REMAND 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. In January 2009, the Board remanded the matters to provide the Veteran with proper notice, obtain VA records, and afford a VA examination. The Veteran underwent a VA examination in connection with these claims in December 2009. In February 2010, the examiner opined that hearing loss and tinnitus were not caused by or a result of military service. The rationale was that the November 1971 hearing evaluation revealed hearing sensitivity within normal limits bilaterally, with no threshold greater than 0 dB. Further, tinnitus was not documented in the service treatment records and hearing sensitivity was within normal limits at the time of discharge. The Veteran had another VA examination in June 2010 conducted by the same audiologist. The examiner opined that right ear hearing loss was not caused by or a result of military service and cited the normal hearing sensitivity at the time of discharge and no indication that hearing loss was ever present during his military service. The examiner also determined that tinnitus was not caused by military service because tinnitus was not documented in the service treatment records. Additionally, the examiner noted complaints of tinnitus found during the evaluation in 2005 with report of ear disease, dizziness, and ear surgery, all of which can cause tinnitus. In addition, the increased severity of hearing loss bilaterally since his discharge caused the examiner to believe that tinnitus began after military service and after his severe high frequency hearing loss was acquired. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes that the examiner appears to be basing the conclusion that the Veteran's right ear hearing loss and tinnitus are not related to service based largely on the normal auditory thresholds at the time of his separation and the lack of documentation of tinnitus during service. However, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. The letter further stated that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." The Director of the VA Compensation and Pension Service also observed in Training Letter 10-02 that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. It was noted that delayed-onset tinnitus must also be considered. However, although the examiner commented that the Veteran had notations in February 2005 of ear disease and ear surgery, in a December 2010 statement, the Veteran denied ever having such. In this case, the Veteran is competent to report a history of noise exposure (from military weapons, generators, helicopters) during service. He is also competent to report that he did not recall having ear surgery or ear disease. See 38 C.F.R. § 3.159(a)(2). It would have been helpful had the examiner brought his expertise to bare in this manner regarding medically known or theoretical causes of sensorineural hearing loss and tinnitus or described how hearing loss and tinnitus which results from noise exposure or acoustic trauma generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure or acoustic trauma in service as opposed to some other cause. Based on the foregoing, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any right ear hearing loss and tinnitus that may be present. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should refer the Veteran's claims folder to the June 2010 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any right ear hearing loss and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has contended that he had noise exposure in service from artillery, helicopters, and generators. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current right ear hearing loss and tinnitus are causally or etiologically related to his military service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. The examiner should also note that the Veteran disputes the February 2005 VA notation that he had ear surgery and ear disease. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
217 Md. 323 (1958) 142 A.2d 824 HAVENS v. SCHAFFER [No. 263, September Term, 1957.] Court of Appeals of Maryland. Decided June 17, 1958. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ. Ralph W. Powers, with whom was Thomas B. Yewell on the brief, for appellant. The Court declined to hear argument for the appellee. James F. Couch, Jr., Couch and Blackwell, Vance V. Vaughan, and Vaughan and Mitchell on the brief, for appellee. BRUNE, C.J., delivered the opinion of the Court. The appellant, William Edward Havens, who was an infant at the time of the automobile accident here involved, and his father, Vernon Leonard Havens, were plaintiffs in a suit against the appellee, John Albert Schaffer, for damages for personal injuries sustained by the appellant and for medical and hospital expenses incurred by his father as a result of an automobile collision. The trial resulted in the jury returning a verdict for "the plaintiff" and finding the damages in favor of the father in the amount of $3,112.30 and finding no damages in favor of the son. Judgments were entered in accordance with these findings, and the son (only) appeals. We may assume that if the jury found a verdict in favor *325 of the son, but did not make a finding of any substantial damages in his favor, the verdict as to the son should have been for nominal damages of one cent. Coca-Cola Bottling Works v. Catron, 186 Md. 156, 46 A.2d 303; Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A.2d 440; Mason v. Wrightson, 205 Md. 481, 109 A.2d 128; Restatement, Torts, § 907. Doubtless because of the triviality in amount, reversal is not asked in this court on that account, and the matter is accordingly not before us for decision. The appeal is founded upon the contention that the trial court improperly instructed the jury on contributory negligence on the part of the appellant, that there was no evidence to support an instruction on that subject and that the effect of the granting of such an instruction was to prejudice the jury against the appellant on the question of damages. The medical testimony is not included in the printed record. The court's instructions indicate that the medical and hospital expenses incurred by the appellant's father were in the exact amount for which the jury returned a verdict in his favor, and that the appellant, who had reached the age of twenty-one years by the time of trial, would have to expend $850 for some further treatment, if he should desire to take it. If the verdict was inadequate, that could have served as the basis of a motion for a new trial (II Poe, Pleading and Practice (5th Ed.), §§ 335, 345, 346, 39 Am. Jur., New Trial, §§ 145, 147). Likewise, a defect in the form of the verdict could have been attacked by a motion in arrest of judgment, which would be appealable (I Poe, op. cit. § 761, Davis v. Bd. of Education of Anne Arundel County, 168 Md. 74, 176 A. 878); or it could have been attacked by a motion for a new trial (Davis v. Bd. of Education of Anne Arundel County, supra). No motion in arrest or motion for a new trial was made. Since the verdict was for the plaintiff, it seems that the instruction with regard to contributory negligence was harmless and, hence, even if it was erroneous, it would not warrant a reversal. McKay v. Paulson, 211 Md. 90, 126 A.2d 296. Beyond this, on the evidence in this case, we think that it *326 was not erroneous for the trial court to give an instruction with regard to contributory negligence on the part of the appellant. He was one of five young men or boys in a car which belonged to one of the others and which was being driven by the appellee, Schaffer. The appellant was sitting in the front seat beside the driver. Before they had driven out of the private driveway of the home of a girl whom they (or some of them) had visited, some horseplay began with the breaking of a raw egg over the head of the driver. This was followed by the addition of beer and the rubbing of this shampoo over Schaffer's scalp. These attentions were administered by two of the boys in the rear seat. Following the shampoo, one of them put his hands over Schaffer's eyes momentarily. The owner of the car finally protested and the horseplay quieted down a good deal, if not entirely. By this time the car had proceeded some distance — probably about three-quarters of a mile on a public highway. At about this time, the beer and egg mixture had run down the driver's back to the seat of his pants and he feared that it might get on a picture of the girl whom they had just visited, which she had given to Schaffer and which he was sitting on, apparently to protect it. Schaffer then took the picture out to examine it, paid no attention to the road while doing so, but kept the car moving, apparently without even slowing down. The appellant, who was turned so as to talk to the boys in the rear seat undoubtedly could have seen Schaffer's actions, but evidently paid no attention to them. The car approached a curve in the road, Schaffer was not looking at the road, made no attempt to follow the curve and permitted the car to head over into the lane for traffic moving in the opposite direction. A car properly travelling in the opposite direction in that lane was approaching the turn. The owner of the boys' car shouted a warning, which came too late, a collision followed and the appellant was seriously injured. It is settled that it is the duty of a guest in an automobile to exercise reasonable care to discover danger, and if he does or should discover it and is aware that it is due in whole or in part to the manner in which the car is being operated, or *327 to the conduct of the driver, it is negligence for him to sit supine and indifferent without warning or protest. What will amount to reasonable care is ordinarily a question for the jury. Dashiell v. Moore, 177 Md. 657, 672, 11 A.2d 640, 647; Mitchell v. Dowdy, 184 Md. 634, 640-642, 42 A.2d 717; United Rys. & Elec. Co. v. Crain, 123 Md. 332, 91 A. 405. That rule is applicable here. Even if there was any error with regard to the particular kind of protective action suggested in the court's instruction, we think that it was harmless in view of the jury's finding for the plaintiff. Judgment affirmed, with costs.
770 So. 2d 1097 (1999) Lauren Hope SKIDMORE-SHAFER v. Steven Leslie SHAFER. 2980716. Court of Civil Appeals of Alabama. October 8, 1999. Rehearing Denied December 10, 1999. Certiorari Denied April 14, 2000. *1098 Raymond C. Bryan, Anniston, for appellant. George A. Monk of Dillon, Field, Monk & Stedham, P.A., Anniston, for appellee. Alabama Supreme Court 1990572. YATES, Judge. The trial court divorced the parties on December 4, 1996. Pursuant to an agreement of the parties incorporated into the final judgment of divorce, the court, among other things, awarded the parties joint custody of their minor son, with the mother having primary physical custody; established visitation for the father; ordered the father to pay $360 per month in child support; and ordered the father to maintain insurance on his life, naming the child as the beneficiary. On November 10, 1997, the court, pursuant to a modification agreement reached between the parties, amended the original divorce judgment to increase the father's monthly support obligation to $600 per month, expanded his visitation rights, and clarified his obligation to maintain life insurance. On July 28, 1998, the father petitioned the court for custody of the child, alleging that there had been a material change in circumstances that would warrant a custody modification. The father also petitioned the court for temporary custody of the child, or, in the alternative, for an ex parte temporary restraining order. The father alleged that the mother had married C.P.H.; that C.P.H.'s visitation rights with a son from a previous marriage had been suspended by the court; that the mother and C.P.H. would be moving to Chattanooga, Tennessee, because of C.P.H.'s employment; and that the child who is the subject of this custody dispute had been subjected to an emotionally unhealthy home environment that was causing the child harm. On that same day, the court entered an order awarding temporary custody of the child to the father and enjoining the mother from removing the child from Calhoun County. On July 31, 1998, the mother answered the father's petition for a modification and counterclaimed, seeking to have the father found in contempt for his failure to pay the court-ordered child support and his failure to maintain a life insurance policy on his life naming the child as beneficiary. The mother also moved the court to vacate its ex parte order of July 28, 1998. Following an ore tenus proceeding, the court, on August 28, 1998, entered an order setting aside its ex parte order and returned custody of the child to the mother pending a final hearing on the father's petition for a modification of custody. *1099 Thereafter, following a final hearing on the father's petition, the court, on December 16, 1998, awarded the parties joint custody of the child, with the father having primary physical custody; ordered the mother to pay child support; and established visitation for the mother. The court also denied the mother's counterclaim, declining to find the father in contempt. The mother appeals. The mother argues that the court erred in awarding custody of the child to the father, because, she says, the evidence was insufficient to warrant a change of custody pursuant to Ex parte McLendon, 455 So. 2d 863 (Ala.1984). This court has stated: "When a noncustodial parent seeks a modification of a prior custody determination, the evidentiary standards set forth in Ex parte McLendon, 455 So.[2d] 863 (Ala.1984), must be applied. The McLendon standard applies when the parents share joint legal custody and a previous judicial determination places primary physical custody of the child with one parent. Scacca v. Scacca, 694 So. 2d 1 (Ala.Civ.App.1997); see also Ex parte Bryowsky, 676 So. 2d 1322 (Ala. 1996) (holding that McLendon standard applied where agreement between the parties granted the parties joint legal custody of the child, with physical custody to the mother, and agreement was adopted by the trial court). The petitioning parent must show by substantial evidence that a change in custody will materially promote the child's best interests and welfare. Ex parte McLendon, supra, Etheridge v. Etheridge, 712 So. 2d 1089 (Ala.Civ.App.1997). The petitioning parent must also show that the good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra. The ore tenus rule is applicable to childcustody-modification proceedings, and the court's judgment based on findings of fact will not be reversed absent a showing that the findings are plainly and palpably wrong. Scholl v. Parsons, 655 So. 2d 1060 (Ala.Civ.App.1995). P.A.T. v. K.T.G., 749 So. 2d 454, 456 (Ala. Civ.App.1999). The court's order provides, in part: "During the child's entire life, he has suffered upper respiratory infections and was diagnosed with asthma in February 1997, at which time he was also hospitalized with pneumonia. Since that time he has been hospitalized three (3) more times for the same problem and has required doctor's office visits in excess of twenty (20) times. "The [mother] is/was a moderate to heavy smoker, 1-2 packs per day, and at the time of the child's diagnosis the [father] was living [in the house of his parents, and his mother is a smoker]. The [mother] was provided a list of warnings by the doctor, which she also provided to the [father], and which included that the child not be exposed to cigarette smoke. The [mother] testified that she never smoked in the house and never in the car when the child was in the car, nor around the child. The [father] testified that when he would pick up the child from the [mother], his clothes would reek of cigarette smoke. A private investigator hired by the [father] videotaped [the mother] and testified about the [mother's] doing exactly what she had said she did not do. Although both parties and their spouses have used colognes, hair spray, etc., which are on the asthma warning list, it appears that the biggest and most blatant disregard for the health of the child is attributable to the [mother]. "This Court cannot comprehend [that] a parent, knowing that their child suffers from asthma and severe upper respiratory infection problems, with four (4) hospitalizations and twenty (20) plus doctor visits in almost two (2) years, and being warned of the danger of cigarette smoking as it affects the child's asthma as well as the other well-publicized ... *1100 effects of secondhand cigarette smoke, would continue to [smoke], thereby directly contributing to the misery and suffering this child has had to endure. To do this to a child is no less child abuse than if you had deprived him of food or medical treatment. "[The mother] did testify in the last day of trial that she had quit smoking in the interim ...; however, considering her lack of truthfulness in her prior testimony, the Court is unable to believe her assertions. ". . . . "Therefore, based on these specific findings and other evidence the Court considered, the Court finds that there has been a material change in circumstances which warrants a change in custody/placement and that the change in placement materially promotes the child's best interests and more than offsets any disruptive effects the change in custody may cause." At the time of the final hearing, the child was three years old and had a long history of upper-respiratory complications. The child had suffered from bronchitis; a green, runny discharge from his nose; a clogged nose; earaches and ear infections; and a deep cough that would wake [email protected]. The child was first treated by Dr. Muhamad M. Festok, a pediatrician, in February 1997. At that time, the child was suffering from a green discharge from his nose, a fever "off and on for a month," and a cough. Dr. Festok diagnosed the child with chronic asthma and pneumonia and admitted him to the hospital. Dr. Festok testified that he advises parents of asthmatic children to keep them away from cigarette smoke, animals, fumes, and fragrances, because agents increase the risks of asthma attacks. Dr. Festok's medical records indicate that he treated the child on 23 occasions from February 1997 to June 1998 for asthma and other upper-respiratory-related problems. The child was hospitalized on four occasions during that time. At the hearing on the mother's motion to set aside the court's ex parte order, she testified that she had been warned that cigarette smoking around the child could aggravate his asthma. She stated that she did not smoke around the child and that no one was allowed to smoke in her home. At the final hearing on the father's petition, the mother again testified that she had been warned not to smoke in the child's presence. Dr. Festok had provided the mother with the following letter in February 1997: "To Whom It May Concern: "[The child] is a child with asthma that has also had a case of pneumonia that resulted from this problem. The use of cigarette smoking in the house, whether the smoke be in the same room or another room, still affects the asthma and causes extra problems for [the child]. It is recommended that the use of cigarettes around this child be stopped." The mother provided this letter to the father, based on her knowledge that at that time the father was living with his mother and that his mother and brother smoked. The mother testified that as of the date of this letter she was aware that it was critical that the child be shielded from cigarette smoke. She stated that she did not smoke at all in her home and that she did not smoke in her automobile or otherwise in the child's presence. The father testified that although his mother and brother smoked in their home while he was living there, they never smoked in the child's presence. He stated that after he had received the letter from Dr. Festok, the mother and brother stopped smoking in the home altogether. The father testified that neither he nor his current wife smokes and that they do not permit smoking in their home. The father testified that while he was married to the mother she would smoke in the child's presence. He stated that he asked her to stop smoking in the child's presence, but *1101 that she did not. After the parties divorced, the father could no longer monitor whether the mother smoked in the child's presence; however, he stated that when he picked the child up for visitation the child's clothing and belongings smelled of cigarette smoke. The father stated that although the mother had testified under oath in the initial hearing and had denied that she smoked in the child's presence, he was convinced that she still, in fact, continued to smoke in the child's presence and that he had hired a private investigator to prove it. The investigator watched and videotaped the her on several occasions in September 1998 and October 1998. The videotape evidence demonstrates that the mother continued to smoke in her house, in her automobile, and in the presence of the child. After being confronted with the video evidence, the mother stated that she had smoked because of her "ignorance," that she was sorry and that she was not going to let cigarettes cost her her child. The mother stated that she had stopped smoking and had not smoked in two weeks. The child has suffered from upper-respiratory problems most of his life and was diagnosed with asthma. The mother was specifically warned of the danger of cigarette smoking in the child's presence. She stated that she appreciated the risks associated with her smoking cigarettes in the child's presence, yet she continued to do so and then attempted to mislead the court as to that fact. After carefully reviewing the entire record, we cannot say that the court erred in awarding primary physical custody of the child to the father. The evidence presented indicates that the change of custody would materially promote the child's best interests and welfare and that the good brought about by the change would offset any disruptive effect caused by uprooting the child. P.A.T., supra. The court's judgment as to this issue is affirmed. The mother next argues that the court erred in failing to find the father in contempt for his failure to pay child support. The court's November 10, 1997, order increasing the father's support obligation to $600 per month, effective January 1, 1998, specifically stated that the father was credited with payments through December 1997. The mother contended that the father had failed to pay child support for January 1998. The father contended that he had made a support payment in December 1997 and that, because the court's order had credited him with payment through December 1997, the December payment should be credited to his January 1998 obligation. The father also testified that the circuit clerk's office was deducting approximately $137 per week from his paycheck in January 1998 to satisfy his monthly support obligation and that his support obligation for January 1998 was satisfied at the end of the month rather than the beginning of the month. The court stated in its order that it refused to rule on the issue because neither party had submitted documentary proof of either payment or nonpayment, as the court had directed at the conclusion of the hearing. The mother, however, did submit a document detailing the father's payment history. This document indicates that the father had made his monthly support payments from February 1998 through November 1998. It does not indicate that a payment was made in January 1998. Accordingly, the judgment as to this issue is reversed and the case is remanded for the trial court to consider this evidence and to make a determination whether an arrearage exists. The mother next argues that the court erred in failing to require the father to maintain a life insurance policy on his life. The original divorce agreement of the parties provided, in part: "LIFE INSURANCE: The [father] shall provide for the use and benefit of the minor child of the parties, life insurance coverage on [the father's] life. The *1102 [father] shall name the minor child of the parties as full beneficiary on any and all policies of such life insurance, including, but not limited to, insurance benefits through the United States Army and [Bama] Budweiser [Company]. The [father's] obligation herein shall remain in full force and effect until such time as the minor child of the parties reaches the age of twenty-five (25) years or graduates from college, whichever first occurs." The parties' November 1997 modification agreement provides, in part: "LIFE INSURANCE: It is acknowledged that the intent of the parties in paragraph 8 of the original agreement is clarified to reflect that [the father] will maintain the minor child of the parties as beneficiary on any and all policies of life insurance which existed upon the date of divorce, however, [the father] shall be free to secure such additional life insurance as he may elect without restriction as to his designation of beneficiary." At the time the parties divorced, the father was employed by Bama Budweiser and the United States Army Reserve. He maintained a life insurance policy through each employer. Subsequently, the father resigned from the Army Reserve because of a back injury and a work conflict with Bama Budweiser. The father testified that when he resigned his service with the Army Reserve his life insurance policy terminated and he could do nothing to maintain that policy. The father stated that he had not replaced the policy terminated through the Army Reserve. He testified that the policy with Bama Budweiser remained in effect. The court concluded that the divorce agreement required the father to maintain the child as a beneficiary only on the Army Reserve policy and the Bama Budweiser policy, and did not require him to obtain other coverage should his employment with either entity cease. This court has stated: "When a trial court adopts a separation agreement, it is merged into the final judgment of divorce. A judgment of divorce is to be interpreted or construed like other written instruments. Whether an agreement is ambiguous is a question of law to be determined by the trial court. If the agreement is susceptible to more than one meaning, then an ambiguity exists. If only one reasonable meaning clearly emerges, then the agreement is unambiguous. If a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning. The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them. The interpretation made by the trial court is accorded a heavy presumption of correctness and will not be disturbed unless it is palpably erroneous." Wimpee v. Wimpee, 641 So. 2d 287, 288 (Ala.Civ.App.1994). After reviewing the agreements, we conclude that the court's interpretation is inconsistent with the intention of the parties. Under the trial court's interpretation, the father, should his employment with Bama Budweiser cease, would not be required to maintain any insurance policy on his life that named the child as a beneficiary. This result is certainly not what the parties intended. We conclude that the proper interpretation of the agreement requires the father to maintain on his life an insurance policy, or insurance policies, providing coverage equivalent to that provided by the policies he had through his employers at the time of the divorce. Therefore, the judgment as to this issue is reversed and the case is remanded for the court to enter an order consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS. *1103 ROBERTSON, P.J., and MONROE and THOMPSON, JJ., concur. CRAWLEY, J., concurs in part and dissents in part. CRAWLEY, Judge, concurring in part and dissenting in part. I concur in the affirmance of the judgment modifying custody and in the reversal of the trial court's refusal to rule on the matter of a child-support arrearage. I dissent, however, from the reversal of that portion of the trial court's judgment concluding that the father was not required to obtain other life insurance coverage and to name the child as the beneficiary. I would affirm the trial court's judgment as to the life-insurance issue. See Rau v. Rau, 429 So. 2d 593 (Ala.Civ.App.1982). See also Frawley v. U.S. Steel Mining Co., 496 So. 2d 731 (Ala.1986); Brown v. Brown, 680 So. 2d 321 (Ala.Civ.App.1996).
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0257n.06 No. 12-2203 FILED Apr 04, 2014 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT BARBARA SAULTER, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN DETROIT AREA AGENCY ON AGING, ) ) Defendant-Appellee. ) ) BEFORE: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.* GRIFFIN, J., delivered the opinion of the court in which MOORE and SARGUS, JJ., concurred, except as to the issue discussed in Part V. MOORE, J., delivered a separate opinion on that issue, in which SARGUS, J., joined. Part V of GRIFFIN, J., opinion represents a dissent. GRIFFIN, Circuit Judge. Plaintiff Barbara Saulter appeals the district court’s order granting defendant Detroit Area Agency on Aging’s (“DAAA’s”) motion for summary judgment and dismissing in its entirety her employment discrimination action alleging violations of state and federal law. For the reasons that follow, we affirm in part and reverse in part. * The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting by designation. No. 12-2203, Saulter v. Detroit Area Agency I. The DAAA is a Michigan non-profit corporation that provides a wide array of services to senior citizens in the Detroit area. The services include home care, employment workshops and training, health-insurance counseling, and management of the Detroit Meals on Wheels program, which provides annually over 600,000 home-delivered meals to seniors at nearly forty different congregate sites. In order to provide these services, DAAA is completely dependent on federal and state funding, as well as some private fundraising. Consequently, DAAA’s budget fluctuates based upon the amount of available funds designated for its programs. In September 2006, DAAA hired Barbara Saulter, a registered dietician (“RD”), as its nutrition service manager. In this capacity, she oversaw the Meals on Wheels and Medicaid Waiver programs. Saulter was in regular contact with the two vendors that prepared the meals. Saulter’s duties included reviewing menus and ensuring that the vendors were in compliance with their contractual obligations and the regulatory standards of both the state and federal governments. During her employment, Saulter dealt with numerous instances of noncompliance by these vendors, including the use of inappropriate and unsanitary utensils, health-code violations, substandard food and meal preparation, and failed deliveries. Even though, by Saulter’s own admission, DAAA supervisors followed up on her incident reports and most violations were corrected, she nonetheless claimed that “expressing [her] concerns [to DAAA administrators] seemed to, at times, fall on deaf ears.” And although Saulter did not report these violations to anyone outside of the agency, she felt that “something needed to be done. Some additional outside help or something needed.” Saulter testified that her reports were sometimes changed by her -2- No. 12-2203, Saulter v. Detroit Area Agency supervisors and violations were omitted from the final report; on other occasions, she was asked to edit her reports and eliminate certain portions, although she could not recall or give specific examples of such alterations or omissions. In 2008, the Office of Services to the Aging (“OSA”), which partially funded the Meals on Wheels program, directed that the congregate meal sites should become self-managed, meaning that DAAA no longer would have its employees on site serving the meals and managing the daily operations. In addition, issues involving contract compliance between DAAA and the sites were eventually turned over to DAAA’s contract management department. Thus, Saulter’s supervision of the sites effectively ended in October 2009. In the fall of 2009, DAAA implemented “Zero-Based Budgeting,” an administrative review of each department and all individual positions, in an effort to increase efficiency and lower costs due to budgetary constraints. As part of this initiative, each employee was required to document their individual job responsibilities and assign time factors to each duty. In November, DAAA President and CEO Paul Bridgewater announced to the staff that changes would be made to more closely align future funding with services. The formal review of Saulter’s position indicated that she was burdened with too many administrative tasks. In December 2009, with Saulter’s support, DAAA hired a senior nutrition assessor to supervise the other nutrition assessors and perform the administrative duties that consumed much of Saulter’s time. In addition, responsibility for coordinating the holiday Meals on Wheels program was now shared by several departments. Consequently, by the end of 2009, Saulter had very few administrative responsibilities left. -3- No. 12-2203, Saulter v. Detroit Area Agency On December 29, 2009, Saulter requested and began a medical leave of absence, citing the stress of taking care of her aging father, severe intestinal pain, and sinus problems in her requisite documentation for approval of the leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. In January 2010, she notified DAAA by telephone of her intention to file for short-term disability in order to extend her leave and of her belief that her condition was work- related. Grace Grabreck, DAAA’s human resources manager, sent Saulter the necessary application forms in early February 2010. During Saulter’s absence, DAAA began to implement departmental and positional realignment pursuant to its Zero-Based Budgeting review. The reorganization was agency-wide, impacting department directors as well as lower-level employees. Substantial restructuring occurred in the community access, care management, and common services departments. Gale Simmons, vice president of community services, concluded that all of Saulter’s remaining duties were being adequately covered while she was on leave, but in light of OSA guidelines that required an RD (but not necessarily a DAAA employee) to approve the menus at the congregate meal sites, DAAA sought a temporary independent contractor to fill this role during Saulter’s extended leave. In the meantime, DAAA relied upon the two vendors’ RDs to perform—free of charge—the meal planning and to prepare the educational materials for the congregate sites. By March 2010, Simmons determined that as a result of DAAA’s reorganization efforts, DAAA no longer needed a full-time nutrition service manager because “the pieces of responsibility . . . had been assigned elsewhere.” In memoranda dated March 24, 2010, both Simmons and Gloria Hicks Long, DAAA’s senior vice president and chief operating officer, made recommendations to -4- No. 12-2203, Saulter v. Detroit Area Agency Bridgewater concerning the agency-wide restructuring. Their recommendations included, inter alia, the elimination of Saulter’s position in favor of a part-time independent-contractor RD in light of changes in the community services department, the transfer of congregate-site management monitoring functions to the contract management department, the addition of a senior nutrition assessor position, and the addition of a director of healthy aging position. On March 29, 2010, Simmons, Long, and Grabreck jointly sent a memorandum to Bridgewater in which they reaffirmed these reasons to eliminate Saulter’s position. They suggested that, pending a release from her doctor, “Saulter will be invited to apply for the [i]ndependent [c]ontractor arrangement.” One day later, on March 30, 2010, Bridgewater notified Saulter by letter of the decision to eliminate her position as of April 9, 2010, and replace it with an independent contractor RD. Bridgewater requested that Saulter immediately contact Grabreck and Simmons to discuss these changes. On the same date, Saulter filed an application for mediation or a hearing with the Michigan Workers’ Compensation Agency to initiate a workers’ disability compensation claim, citing “[e]xcessive hours and assignments; along with job stress caused nervous system injury with functional overlay.” She returned to work from her medical leave on April 5, 2010. Upon her return, Saulter met with Long, Grabreck, and Simmons. They informed plaintiff about the part-time independent contractor RD position that was being created and encouraged her to apply. DAAA also anticipated the creation of a new position entitled “Director of Wellness” to handle nutrition and healthy aging issues. Saulter discussed the possibility of interviewing for this position once it was formalized, and she submitted her resume indicating her interest in both positions. By e-mail, she requested updates on the hiring process for these positions. -5- No. 12-2203, Saulter v. Detroit Area Agency The restructuring and reduction-in-force decisions were made known to the entire DAAA staff in a memorandum from Long, on behalf of Bridgewater, issued on April 9, 2010. In addition to Saulter’s position, DAAA also eliminated the following positions: Vice President of Community Access, Wait List Management in Community Access, Support Staff in Community Access, Director of Planning and Provider Development, and Director of Community Access, and shifted other employees to different departments. The memo noted that “Ms. Saulter is considering the Independent Contractor position.” Bridgewater made the recommendation to the DAAA Board of Directors that they should enter into an independent contractor agreement with an RD in an amount not to exceed $8,500 for the period of May 1, 2010 to September 30, 2010. The RD would provide menu approval, nutrition education, and additional food service consultations. Saulter and other applicants interviewed for the independent-contractor RD position. Ultimately, however, DAAA opted to continue using the vendors’ RDs to perform the required services and did not hire anyone for this position. In early May 2010, Grabreck scheduled an interview with Saulter for the director of wellness position, but she subsequently cancelled it because DAAA’s executive team had reassessed its needs and determined that it did not need a wellness director. Instead, DAAA used its funding to create an entirely different position that focused on business development. Although Grabreck never personally notified Saulter about this position because of its very different requirements, the position was openly advertised and five or six candidates were interviewed. Saulter never applied. The position was filled in July 2010 by a candidate who had prior extensive experience working in this field. -6- No. 12-2203, Saulter v. Detroit Area Agency On July 8, 2010, Saulter filed a state-court complaint in Wayne County Circuit Court alleging violations of Michigan’s Whistleblowers’ Protection Act (“WPA”) and Worker’s Disability Compensation Act (“WDCA”). She then amended her complaint to bring additional claims for violations of state and federal discrimination laws, including the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”), the Americans with Disabilities Act (“ADA”), and the FMLA. Defendant removed the case to federal court and moved for summary judgment on all counts. On August 31, 2012, the district court issued a written opinion and order granting summary judgment in favor of DAAA and dismissing the case in its entirety. Saulter now appeals the district court’s judgment with respect to her WPA, WDCA, and FMLA claims; she does not challenge the dismissal of her ADA and ELCRA claims. II. We review the district court’s grant of summary judgment de novo and its findings of fact for clear error. U.S. ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345, 350 (6th Cir. 2012). Summary judgment is appropriate when, viewing the facts and drawing all inferences in the light most favorable to the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at 351 (internal citation and quotation marks omitted). “A genuine issue of material fact exists when there is sufficient evidence for a trier of fact to find for the non-moving party[;]” however, “[a] ‘mere scintilla’ of evidence . . . is not enough for the non-moving party to withstand summary judgment.” Id. (citations and internal quotation marks omitted). -7- No. 12-2203, Saulter v. Detroit Area Agency III. A. Saulter alleges in Counts I and II of her first amended complaint that DAAA violated Michigan’s WPA by (1) terminating her employment after she reported violations of governmental regulations and standards by vendors who delivered food to the agency’s senior clientele; and (2) failing to interview and/or employ her for certain positions after her termination, thus committing a “continuing violation” of the WPA. The WPA provides in relevant part: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. M.C.L. § 15.632. The WPA “establish[es] a cause of action for an employee who has suffered an adverse employment action for reporting or being about to report a violation or suspected violation of the law” by either their employer or fellow employees. Whitman v. City of Burton, 831 N.W.2d 223, 229 (Mich. 2013). Its underlying purpose is the protection of the public, by in turn “protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Dolan v. Continental Airlines/Continental Express, 563 N.W.2d 23, 26 (Mich. 1997) (footnote omitted). -8- No. 12-2203, Saulter v. Detroit Area Agency In order to establish a prima facie case under the WPA, “a plaintiff need only show that (1) he or she was engaged in protected activity as defined by the act, (2) he or she suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action.” Whitman, 831 N.W.2d at 229 (footnote omitted). The causation element is at the core of the dispute in the instant case. “[T]he evidence presented will be sufficient to create a triable issue of fact if the jury could reasonably infer from the evidence that the employer’s actions were motivated by retaliation.” Shaw v. Ecorse, 770 N.W.2d 31, 40–41 (Mich. Ct. App. 2009) (per curiam) (citation and internal quotation marks omitted). However, “‘circumstantial proof must facilitate reasonable inferences of causation, not mere speculation.’” Id. at 40 (quoting Skinner v. Square D Co., 516 N.W.2d 475, 480 (Mich. 1994)). “To prevail, [a] plaintiff ha[s] to show that his employer took adverse employment action because of plaintiff’s protected activity, [not] . . . merely . . . that his employer disciplined him after the protected activity occurred.” West v. Gen. Motors Corp., 665 N.W.2d 468, 472 (Mich. 2003). Thus, a plaintiff must show more than simply a coincidence in time between the adverse employment action and the protected activity—temporal proximity, standing alone, does not suffice to establish causation. Debano-Griffin v. Lake Cnty., 828 N.W.2d 634, 639 (Mich. 2013); West, 665 N.W.2d at 472–73. However, “temporal proximity, coupled with some other indication of termination on the basis of a protected activity, can satisfy the causation element.” Kuhn v. Washtenaw Cnty., 709 F.3d 612, 629–30 (6th Cir. 2013) (citing Henry v. City of Detroit, 594 N.W.2d 107, 112–13 (1999)). -9- No. 12-2203, Saulter v. Detroit Area Agency Under the McDonnell Douglas1 burden-shifting framework applied by the Michigan courts to WPA claims based on circumstantial evidence, like the case before us, “[o]nce a plaintiff establishes a prima facie case, a presumption of [retaliation] arises because an employer’s adverse action is more likely than not based on the consideration of impermissible factors . . . if the employer cannot otherwise justify the adverse employment action.” Debano-Griffin, 828 N.W.2d at 638–39 (citations and internal quotation marks omitted). “The employer, however, may be entitled to summary disposition if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that the plaintiff’s protected activity was a ‘motivating factor’ for the employer’s adverse action.” Id. at 639. “A plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but that it was a pretext for unlawful retaliation.” Id. (citation, internal quotation marks, and brackets removed). In recent years, the Michigan Supreme Court has clarified several important aspects of the WPA. In Brown v. Mayor of Detroit, 734 N.W.2d 514 (Mich. 2007), the court held that “[t]he WPA does not require that an employee of a public body report violations or suspected violations to an outside agency or higher authority to receive the protections of the WPA [and] [f]urther, the WPA does not provide that an employee who reports violations or suspected violations receives the protections of the WPA only if the reporting is outside the employee’s job duties.” Id. at 518. And in Whitman, the Michigan Supreme Court “clarif[ied] that a plaintiff’s motivation is not relevant to the issue whether a plaintiff has engaged in protected activity and proof of any specific motivation is not a prerequisite to bringing a claim under the WPA.” Whitman, 831 [email protected]. “[A]s long 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). - 10 - No. 12-2203, Saulter v. Detroit Area Agency as a plaintiff demonstrates a causal connection between the protected activity and the adverse employment action, the plaintiff’s subjective motivation for engaging in the protected activity in the first instance is not relevant to whether the plaintiff may recover under the act.” Id. at 233.2 B. Citing Jennings v. Cnty. of Washtenaw, 475 F. Supp. 2d 692, 710 (E.D. Mich. 2007), and Bush v. Detroit Sch. Dist., No. 268362, 2006 WL 2685088, at *4–5 (Mich. Ct. App. Sept. 19, 2006) (unpublished), the district court held that the WPA does not apply where an employee reports suspected violations as part of his or her required duties. Following these cases, the court held that Saulter was not engaged in a protected activity when she reported the multiple vendor violations to the DAAA during the course of her employment because her goal was not to alert the public of the vendors’ wrongdoings; rather, it was simply part of her compliance with her job duties. The basic issue of protected activity aside, the district court further opined that Saulter failed to present sufficient evidence of causation to establish a prima facie case. Although Saulter argued that she was terminated shortly after she reported the vendors’ irregularities, the court held that the temporal connection alone was insufficient to establish causation where Saulter did not present any additional evidence linking her reporting of the vendors’ violations to her termination. The district court noted that “DAAA management readily followed up on Saulter’s concerns throughout the years, indicating no hostility against these types of reports.” Alternatively, even assuming arguendo 2 In so holding, the Michigan Supreme Court expressly repudiated oft-cited dicta from its prior decision in Shallal v. Catholic Soc. Serv. of Wayne Cnty., 566 N.W.2d 571, 579 (Mich. 1997), in which the court held that “[t]he primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, and not personal vindictiveness,” and suggested that the employee must act “out of an altruistic motive of protecting the public.” Whitman, 831 N.W.2d at 233 (footnote, citation and internal quotation marks omitted). - 11 - No. 12-2203, Saulter v. Detroit Area Agency that Saulter established a prima facie case, the court held that DAAA presented a legitimate, non- retaliatory reason for her discharge—implementation of the Zero-Based Budgeting plan and the resultant extensive reorganization of the agency, which impacted not only Saulter but many other employees as well. The district court cited Saulter’s dearth of evidence that this reason was offered as a mere pretext for discriminatory conduct and held, therefore, that DAAA was entitled to summary judgment on Saulter’s WPA claim. As a preliminary matter, we agree with Saulter that the district court erred as a matter of law when it concluded that an employee does not engage in a protected activity under the WPA by reporting unlawful conduct to her employer in the course of her normal job duties. This premise is no longer valid following the Michigan Supreme Court’s explicit statement in Brown that “[t]he statutory language renders irrelevant whether the reporting is part of the employee’s assigned or regular job duties.” Brown, 734 N.W.2d at 518; see also Podzikowski v. Twp. of Albert, No. 296083, 2011 WL 3132893, at *5 (Mich. Ct. App. July 26, 2011) (unpublished), and Vandyke v. Leelanau Cnty., No. 286775, 2010 WL 624382, at *6 (Mich. Ct. App. Feb. 23, 2010) (unpublished) (both recognizing that under Brown’s interpretation of the WPA, there is no requirement that the reporting employee must be acting outside the regular scope of his or her employment). Thus, the district court’s reliance on Jennings and Bush to conclude that plaintiff was not engaged in protected activity is misplaced. Moreover, the fact that Saulter’s “main goal was not to alert the public of the vendors’ wrongdoings[,]” as determined by the district court, is no longer a valid component of the “protected activity” equation under Whitman, 831 N.W.2d at 233 (“[H]aving a specific primary motivation is - 12 - No. 12-2203, Saulter v. Detroit Area Agency neither a prerequisite for bringing a WPA claim nor a factor to be considered in determining whether a plaintiff had engaged in protected conduct.”). Nonetheless, we agree with the district court that Saulter has failed to establish the causation requirement of a prima facie case, despite Saulter’s protestations to the contrary. Saulter argues that the evidence establishes that her years of attempting to enforce vendor compliance with health code regulations was met with resistance by DAAA. She claims that after citing health code violations by the vendors, she was told by her supervisors that upper management wanted her to rewrite and eliminate portions of her reports, and when she refused to do so, her evaluations were changed by someone else in the agency. Saulter maintains that she “openly indicated” to DAAA that OSA should become involved, because it would find the long record of violations unacceptable. Saulter conjectures that as a result of her actions, “maybe the company [DAAA] viewed me as a troublemaker[.]” However, Saulter’s generalized allegations are speculative, lacking in detail, and fail to adequately substantiate her claim that she was viewed negatively as a whistleblower by DAAA and terminated as a result. During her deposition, Saulter, when asked to review her reports and identify what specific content had been changed or omitted, was unable to do so. Simmons’ uncontradicted testimony, on the other hand, indicates that the editing process was benign and simply a matter of prioritization: When [Saulter] would go out and do the annual assessment and she would write up her report with the items that she had observed and she cited, I would then sit down with contract management, and we would make a determination as to what would be the best course of action to address each of the concerns that she raised. If it was something that had been an ongoing issue, then it would be put in the assessment - 13 - No. 12-2203, Saulter v. Detroit Area Agency letter that would go to the head of [the vendor]. If it was something that hadn’t been an ongoing issue, but was a concern that was noted and needed some type of action, we might say bring this up in the weekly meeting with Valley and have them correct it through that process. If bringing it up in the weekly meetings that didn’t get addressed, then we would send a letter indicating whatever the concerns were and they would need to be addressed that way. So not every item that was ever noted was immediately flagged as this is an assessment that had to go in the assessment letter. There were different ways of addressing the issues. . . . If there were other issues that came up during the course of the year, then we would communicate that to them in writing. Although Saulter asserts that she conveyed to DAAA her intent to contact OSA about the vendor violations, her nebulous testimony in this regard—that she felt “additional outside help” was needed to correct vendor violations and that “something needed to be done”—falls far short of establishing that she reported, or was about to report, these issues to OSA, or that DAAA was objectively aware of her intent to do so. Kuhn, 709 [email protected]. Critically, there is no concrete evidence that DAAA supervisors ever reacted negatively to Saulter’s reports or that DAAA believed she would report the vendor violations to another public body in a manner objectionable to DAAA so as to generate hostility or retaliation. Saulter provides no explanation as to why DAAA would frown upon or dissuade her from performing her job, allow vendor violations to persist, or allow its vendors to escape accountability for issues of noncompliance rather than rectifying these problems. To the contrary, as the district court found, the evidence shows that DAAA took her concerns seriously. The record is replete with examples of vendor issues flagged by Saulter that were in turn addressed promptly by DAAA through direct contact with the vendors. Saulter readily admitted that in those situations where she identified issues with the vendors, DAAA management followed up on her concerns. Alexander and Simmons both testified that during Saulter’s tenure with DAAA, - 14 - No. 12-2203, Saulter v. Detroit Area Agency she performed her job well and whenever she raised issues about the vendors, they pursued these matters and never asked Saulter to refrain from reporting any problems in her evaluations. Likewise, Paul Bridgewater characterized Saulter as an effective employee. He testified: Q. Over the years, Ms. Saulter authored a number of memos in which she was critical of several areas of performance of vendors such as Valley and Unique. Did you see any of those memos? A. I saw some of those memos. Q. Do you recall any of them? A. Yes, I recall some of those memos. Q. Do you recall how you—what was your reaction when you saw those memos? A. I thought that’s what we had her to do is to monitor those contracts and cite [the vendors] for anything that they were not doing based on the contract agreement. Q. Did you ever believe that [Saulter] was overreaching in the performance of her duties? A. No. I think . . . we wanted to make sure that she got the best out of those contractors, and again, living up to the contract. And I thought that as long as she kept folks’ feet to the fire, that we [were] going to get a good product, so. Q. You know anybody at DAAA that share[d] that view? A. I would hope everybody else in the whole organization shared that view. Because, again, I think the key is that that’s what we hired our contractor compliance officers to do across the board in the sense of—and certainly there is no expectation that our providers are on target all the time. But I think that there were instances that there are problems and that’s what we want, do corrective action. So, no, I did not have any problem with Barbara managing those contracts. Q. Did it ever come to your attention that Barbara was considering notifying OSA of the continuing violations of those contracts? - 15 - No. 12-2203, Saulter v. Detroit Area Agency A. Nope. I was never aware of that. Q. Would you have considered her notification to OSA a part of her—a reasonable part of her job activities? A. We would hope that all of the corrective actions would [take] place internally. I respected Barbara as a professional and I would hope that—and I understand her professionalism, and I was under the impression that those issues and problems were being handled and resolved. . . . I did not nor did Barbara ever communicate to me verbally or written that she was having difficulties getting issues resolved within her responsibilities. In sum, there is no evidence in the form of conduct or statements to suggest that DAAA management considered Saulter to be a troublesome whistleblower or that the decision to eliminate her position and discharge her was motivated by resentment over her reporting or being about to report the vendors’ violations of regulations and health standards. Because Saulter has merely shown that she was terminated after the protected activity occurred, not because of it, she has failed to satisfy the causation element of a prima facie case under the WPA. West, 665 N.W.2d at 472–73; see also Buell v. Grand Blanc Twp., No. 303696, 2012 WL 3020795, at *4 (Mich. Ct. App. July 24, 2012) (unpublished) (affirming the grant of summary judgment in favor of the defendant township where there was no evidence that the township was reacting to or relying on the plaintiff’s reporting activity when it disciplined and eventually discharged the plaintiff for financial reasons). For this reason, the district court did not err in granting summary judgment in favor of DAAA on Count I of her first amended complaint. Moreover, even if we assume for the sake of argument that Saulter has surpassed the prima facie hurdle, her WPA claim nonetheless fails for want of evidence of pretext. Significantly, “[t]he - 16 - No. 12-2203, Saulter v. Detroit Area Agency fact that a plaintiff engages in a ‘protected activity’ under the [WPA] does not immunize [her] from an otherwise legitimate, or unrelated, adverse job action.” West, 665 [email protected]. Here, DAAA articulated a facially legitimate business reason for Saulter’s discharge—its Zero-Budgeting agency reorganization. See Shah v. NXP Semiconductors USA, Inc., 507 F. App’x 483, 492 (6th Cir. 2012) (“Evidence of an employer’s business restructuring, which may include the elimination of jobs or termination of otherwise competent employees . . . satisfies the employer’s burden of producing a legitimate, non-discriminatory reason for a plaintiff’s termination.”); Coleman v. Sun Finan. Grp., 85 F.3d 628, 1996 WL 253880, at *3 (6th Cir. 1996) (table decision) (“[W]hen ruling on similar [discrimination] claims under Michigan law, we have held that one legitimate business reason for an employer to discharge an employee is corporate reorganization or reduction in force.”) (citing La Grant v. Gulf & Western Mfg. Co., Inc., 748 F.2d 1087, 1090 (6th Cir. 1984)). Saulter, then, bears the burden of showing that DAAA’s proffered reason “was not the true reason, but was only a pretext for the discharge.” Roulston v. Tendercare (Michigan), Inc., 608 N.W.2d 525, 530 (Mich. Ct. App. 2000) (per curiam). Pretext may be established in three separate ways, by showing that the proffered reason (1) had no basis in fact, (2) was not the actual reason, or (3) was insufficient to justify the decision. Debano-Griffin, 828 N.W.2d at 640–41. “The soundness of an employer’s business judgment, however, may not be questioned as a means of showing pretext.” Id. at 641 (citation and internal quotation marks omitted). Saulter has not expressly advanced any of these avenues of rebuttal in her argument before either the district court or this court, but she maintains that there was no economic necessity justifying the reorganization. As evidence that the reorganization was merely a pretext for an illicit - 17 - No. 12-2203, Saulter v. Detroit Area Agency motive, Saulter directs our attention to the fact that in 2010, DAAA had more funding (approximately $600,000) than in previous years; DAAA increased the number of enrollees in some of its programs; several managers received pay increases; and new staff was hired throughout the agency. However, these facts, considered separately or in combination, do not create a genuine issue of material fact on the question of pretext. The uncontroverted evidence before the district court showed that the Zero-Based Budgeting plan, at least a year in the making, was a comprehensive reorganization of all DAAA departments to address not only long-term budgetary restrictions, but to improve efficiency as well. Saulter’s cited facts neither speak to the cost savings realized from the reallocation of resources nor to the goal of improving performance by shifting tasks and, albeit at Saulter’s and other employees’ expense, eliminating several positions and transferring departmental duties. Moreover, as previously noted, the part-time independent contractor RD and director of wellness positions that Saulter applied for never materialized because DAAA determined that the former was best filled by the vendors’ own RDs, and the latter position was not needed. Although Saulter contends that she was not considered for the newly-created business development post, she never applied for this publicized position. “[A] plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Debano-Griffin, 828 N.W.2d at 640 (citation and internal quotation marks omitted). Saulter has submitted nothing to show that DAAA’s given reason for her discharge was not real, unworthy of credence, or otherwise pretextual. Consequently, - 18 - No. 12-2203, Saulter v. Detroit Area Agency there is insufficient evidence from which a reasonable jury could conclude that retaliation because of her protected activities under the WPA was DAAA’s true reason for the adverse employment decision. Cf. Hamilton v. Starcom Mediavest Group, Inc., 522 F.3d 623, 630 (6th Cir. 2008) (affirming the grant of summary judgment in favor of the employer in an ERISA retaliatory discharge suit where there was no evidence that the stated reason for the employee’s discharge, a massive reorganization and the hiring of more experienced candidates, was pretextual); Campbell v. Washington Cnty. Pub. Library, 241 F. App’x 271, 277 (6th Cir. 2007) (holding in context of FMLA retaliation claim that “[the] evidence cannot show that the Library juggled around positions merely to camouflage [the plaintiff’s] adverse employment action as a reorganization. Indeed, the reorganization had an impact on almost every part of the Library system, took careful planning, and led to the demotion of another employee and a reduction of the Library’s hours.”); Upshaw v. Metro. Nashville Airport Auth., 207 F. App’x 516, 520–21 (6th Cir. 2006) (holding that a former metropolitan airport employee whose position was eliminated as part of an airport reorganization failed to show that the reorganization, which increased employees but had begun years earlier to streamline operations and increase cost-effectiveness, was merely a pretext to strip him of his civil- service protections); Schuch v. Savair, Inc., 118 F. App’x 16, 23 (6th Cir. 2004) (affirming summary judgment in favor of employer in ADEA discrimination suit because the elimination of the plaintiff’s position as part of a cost-saving reorganization effort was a legitimate, nondiscriminatory reason for his termination and the fact that the employer “might have chosen to reduce costs in a number of different ways [rather than terminate the plaintiff’s employment] . . . does not establish that a cost- - 19 - No. 12-2203, Saulter v. Detroit Area Agency reduction effort was not the actual reason for [his] termination”). Accordingly, Saulter has failed to create a genuine issue of material fact on her retaliation claim under the WPA. C. In Count II of her amended complaint, Saulter alleges that DAAA’s failure to interview and/or employ her in certain positions after her termination constitutes a “continuing violation” of the WPA. The continuing violations doctrine allows discriminatory acts that occur outside of the statute of limitations to be actionable in certain instances where the act is not a discrete discriminatory act, and tolls the applicable limitations period until a reasonable person would have become aware of the facts supporting the claim of discrimination. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Sumner v. Goodyear Tire & Rubber Co., 398 N.W.2d 368, 376–80 (Mich. 1986). Pursuant to this theory, plaintiff contends that DAAA’s allegedly retaliatory actions were part of a continuing course of conduct—“[t]he string of denials of opportunities to [her], including the contractual dietician position, [w]ellness director, and [p]rogram [d]evelopment director” are each actionable because they are “acts involving the same type of discrimination; recurring, and pervasive to the point of indicating [she] should no longer attempt to assert her right to do business or work for DAAA”—thereby expanding the WPA’s ninety-day limitations period set forth in M.C.L. 15.363(1). As accurately pointed out by the district court, Saulter’s “continuing violations” claim suffers from several infirmities, not the least of which are the Michigan Supreme Court’s repudiation of the - 20 - No. 12-2203, Saulter v. Detroit Area Agency doctrine in employment discrimination cases,3 and again, the same lack of causation evidence that defeats her WPA retaliatory discharge claim in Count I of her amended complaint. We therefore affirm the district court’s grant of summary judgment on Count II. IV. In Count III, Saulter alleges that DAAA violated Michigan’s WDCA by retaliating against her for filing a workers’ disability compensation claim. The WDCA prohibits an employer from “discharg[ing] an employee or in any manner discriminat[ing] against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.” M.C.L. § 418.301(13) (formerly M.C.L. § 418.301(11)). Saulter claims that “[t]he adverse personnel actions taken against [her] . . . were occasioned by considerations of [her] filing of a workers compensation claim.” While on FMLA leave in January 2010, Saulter indicated in a voicemail to DAAA that she believed her medical condition was work related. In response, on February 12, 2010, Grabreck sent Saulter a form to initiate a workers’ compensation claim. The decision to eliminate Saulter’s position was made on March 24, 2010, 3 Although the Michigan courts have applied the continuing violations doctrine to WPA claims, see Phinney v. Perlmutter, 564 N.W.2d 532, 551–52 (Mich. Ct. App. 1997), its application is now doubtful in light of the Michigan Supreme Court’s decision in Garg v. Macomb Cnty. Cmty. Mental Health Servs., 696 N.W.2d 646, 662 (Mich. 2005), in which the court broadly declared that “the ‘continuing violations’ doctrine is contrary to the language of [the Michigan Civil Rights Act, M.C.L. 600.5805] and . . . therefore, . . . the doctrine has no continued place in the jurisprudence of this state.” The Garg court did not explicitly overrule Phinney, but in subsequent decisions, the Michigan Court of Appeals has extended that prohibition to WPA claims. See Wajer v. Outdoor Adventures, Inc., No. 294985, 2011 WL 240697, at *1 (Mich. Ct. App. Jan. 25, 2011) (unpublished), and Moyer v. Comprehensive Rehabilitation Center, Inc., No. 292061, 2010 WL 3604680, at *3 (Mich. Ct. App. Sept. 16, 2010) (unpublished); see also Jones v. City of Allen Park, 167 F. App’x 398, 404–05 (6th Cir. 2006) (observing in the context of a WPA claim that the viability of the continuing violations doctrine in Michigan has been called into doubt since the Garg decision). - 21 - No. 12-2203, Saulter v. Detroit Area Agency almost one week before Saulter actually filed her workers’ compensation claim on or about March 30, 2010. As is the case with other discrimination statutes such as the WPA, the Michigan courts apply the same prima facie requirements and utilize the McDonnell Douglas burden-shifting framework in cases alleging unlawful retaliation under the WDCA. Cuddington v. United Health Servs., Inc., 826 N.W.2d 519, 525 (Mich. Ct. App. 2012) (per curiam). Here, the district court granted summary judgment in favor of DAAA on Saulter’s WDCA count for three reasons: first, the decision to eliminate her position was made before she filed her claim for workers’ compensation; second, she provided no evidence of a causal connection in any event; and third, the WDCA retaliation provisions did not apply to job rejections that occurred after Saulter’s termination as an “employee.” On appeal, the parties continue to dispute the district court’s multiple bases for its ruling—particularly whether Saulter’s WDCA claim is foreclosed under Michigan law because it is based on the employer’s anticipation of the filing of a workers’ compensation claim, i.e., Saulter’s position was terminated before she formally filed the claim with the State.4 However, even if we generously give Saulter the benefit of the doubt on this issue, she has not fulfilled her prima facie burden of demonstrating that the filing of her comp claim was a “significant factor” in her 4 See Cuddington, 826 N.W.2d at 527 (“[A] cause of action for retaliatory discharge cannot be based on the anticipated exercise of a right afforded under the Act.”); Griffey v. Prestige Stamping, Inc., 473 N.W.2d 790, 792 (Mich. Ct. App. 1991) (MCL 418.301(13) “prohibit[s] discharge in retaliation for having filed a workers’ compensation claim, not for the anticipated filing of such a claim”); Wilson v. Acacia Park Cemetery Ass’n, 413 N.W.2d 79, 83 (Mich. Ct. App. 1987) (“[R]etaliatory discharge premised upon the employer’s anticipation of a future claim does not state a legally cognizable cause of action [under the WDCA].”). - 22 - No. 12-2203, Saulter v. Detroit Area Agency termination. MacDonald-Bass v. J.E. Johnson Contracting, Inc., 493 F. App’x 718, 727 (6th Cir. 2012) (per curiam) (citing Truthan v. Butterworth Health Corp., Nos. 211803, 212507, 1999 WL 33327165, at *3 (Mich. Ct. App. Dec. 17, 1999)). Saulter concedes that “the record lacks an admission from [DAAA] as to the relationship of the workers’ compensation filing and the adverse employment action[],” but she nonetheless argues that “[t]he timing coupled with the elimination of all opportunities for [her] to have a business relationship with DAAA is sufficient to permit the trier of fact to reject the proffered reasons of [DAAA] and infer discrimination.” We respectfully disagree. The present circumstances parallel MacDonald-Bass and Truthan, in which the courts held that a temporal connection coupled with merely the plaintiffs’ subjective belief regarding retaliation does not constitute sufficient evidence of causation. MacDonald-Bass, 493 F. App’x at 728–29; Truthan, 1999 WL 33327165 at *3. Likewise, here, Saulter has not lived up to her obligation under Fed. R. Civ. P. 56(c)(1)(A) to “cit[e] to particular parts of materials in the record, including depositions, documents, . . . affidavits or declarations . . . showing that the materials cited do not establish the absence . . . of a genuine dispute[,]” and hence she has not established a prima facie case. Even if we presume that she has, her failure to come forth with actual examples of DAAA’s retaliatory animus to counter its legitimate business justification for terminating her position dooms her claim. We conclude that the district court’s grant of summary judgment in favor of DAAA on Count III was not erroneous. - 23 - No. 12-2203, Saulter v. Detroit Area Agency V. I respectfully dissent, however, from my colleagues’ conclusion that the district court erred in granting summary judgment with respect to Saulter’s FMLA claim. In Count VI of her first amended complaint, she alleges that DAAA violated the FMLA by “including, but not limited to, eliminating the position of Plaintiff while she was on Family Medical Leave, and refusing continuation of employment of Plaintiff in any capacity.” Under the FMLA, an eligible employee who takes FMLA leave “shall be entitled, on return from such leave—(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). “If an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred.” Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003). “The right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the linchpin of the entitlement theory because the FMLA does not provide leave for leave’s sake, but instead provides leave with an expectation [that] an employee will return to work after the leave ends.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (internal quotation marks omitted). Saulter’s claim that DAAA failed to reinstate her following her medical leave is an interference claim under the FMLA (also referred to as an entitlement claim). See 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”). - 24 - No. 12-2203, Saulter v. Detroit Area Agency “To prevail under the interference theory [of the FMLA], the employee must establish the following: (1) he was an eligible employee; (2) the defendant is an employer; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007) (internal quotation marks, citations, and alterations omitted). We repeatedly have held that “[a]n employer’s intent is not directly relevant to the entitlement inquiry.” Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008). Nonetheless, the right to reinstatement is not absolute, and “employers are permitted to ‘deny restoration to employment’ if they can ‘show that an employee would not otherwise have been employed at the time reinstatement is requested.’” Edgar, 443 F.3d at 507 (quoting 29 C.F.R. § 825.216(a)). Accordingly, “an employer need not restore an employee who would have lost his job or been laid off even if he had not taken FMLA leave.” Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 245 (6th Cir. 2004). This is because the FMLA provides that the right to restoration “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. § 2614(a)(3)(B). We recently held that it is appropriate to apply the McDonnell Douglas burden-shifting analysis when an employer seeks to prove that it would have terminated the employee’s position regardless of whether she took FMLA leave. See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Thus, “an employer may prove it had a legitimate reason unrelated to the exercise of FMLA rights for terminating the employee” and “the plaintiff [can] rebut the employer's reason by showing - 25 - No. 12-2203, Saulter v. Detroit Area Agency that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination.” Id. (citing Grace, 521 F.3d at 670). “[T]he law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext.” Id. at 763. The district court granted summary judgment to DAAA on Saulter’s FMLA claim because “[e]ven if Saulter is able to establish a prima facie case, the DAAA contends that the termination of her position was part of a legitimate economic decision that would have occurred even if she had not been on leave [and] Saulter has not presented any evidence with which to rebut this proffered explanation[.]” (R. 18, ID 400-01). I agree with the district court’s finding. DAAA has advanced its agency-wide reorganization as a legitimate reason for its decision not to restore Saulter to her position upon her return from FMLA leave. See Madry v. Gibraltar Nat’l Corp., 526 F. App’x 593, 597 (6th Cir. 2013) (“We have previously found that the restructuring of a business was a legitimate, nondiscriminatory reason for terminating an employee who had incidentally taken FMLA leave.”) (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001)); see also Roll v. Bowling Green Metalforming, LLC, 457 F. App’x 458, 461–62 (6th Cir. 2012) (holding in FMLA that decision to terminate employee as part of a company- wide reduction-in-force was not pretextual under the FMLA). Saulter has not produced evidence sufficient to convince a trier of fact that the restructuring would not have occurred and her position would not have been eliminated if she had not taken leave. Although she again cites DAAA’s increased funding, its hiring of employees, and pay increases to management during the course of the reorganization as evidence undermining DAAA’s budgetary justification for her discharge, broader goals were involved in the comprehensive agency-wide - 26 - No. 12-2203, Saulter v. Detroit Area Agency reorganization, and it is inappropriate to second guess an employer’s business judgment as a means of establishing pretext. See Madry, 526 F. App’x at 597 (“Reducing labor costs and improving efficiency are valid business reasons for conducting layoffs, even when the degree to which such actions are motivated by economic hardship is debatable.”) (citing Aldridge v. City of Memphis, 404 F. App’x 29, 37–39 (6th Cir. 2010); Gatch v. Milacron, Inc., 111 F. App’x 785, 791 (6th Cir. 2004)). Grace Grabreck testified in her deposition that the decision to eliminate Saulter’s position was “a business decision, not specifically addressed to Ms. Saulter . . . due to the budget cuts.” Although Gail Simmons testified that the decision to eliminate Saulter’s position crystalized in March 2010 while Saulter was on FMLA leave, the redistribution of Saulter’s job functions began long before she started her FMLA leave as part of the reorganization rollout. By the time she requested medical leave, Saulter’s responsibilities had been reduced considerably. As indicated in the many directives and memoranda that were admitted into evidence, the drastic changes that were made to the agency were ongoing during 2009 and 2010 and transpired before, during, and after Saulter’s FMLA leave. The impact of these changes was not isolated to only Saulter, and there is no specific evidence, other than temporal proximity, to suggest that Saulter’s FMLA leave precipitated her termination. Because Saulter has not provided sufficient evidence to survive summary judgment on her FMLA interference claim, I would affirm the district court’s dismissal of Count VI. - 27 - No. 12-2203, Saulter v. Detroit Area Agency VI. The judgment of the district court is affirmed as to Saulter’s WPA and WDCA claims. However, for the reasons set forth below in the separate opinion by Judge Moore, joined by Judge Sargus, the district court’s grant of summary judgment on Saulter’s FMLA interference claim is reversed and remanded for further proceedings. - 28 - No. 12-2203, Saulter v. Detroit Area Agency KAREN NELSON MOORE, Circuit Judge, joined by Judge Sargus, concurring in part and delivering the opinion of the court with respect to Part V. We concur in Judge Griffin’s opinion except as to Part V. We believe that Saulter has presented sufficient evidence to establish a genuine dispute whether she would have been terminated had she not taken FMLA leave. Accordingly, we reverse the district court’s grant of summary judgment as to Saulter’s FMLA interference claim and remand for further proceedings. The FMLA entitles eligible employees to a leave period of up to twelve weeks in a twelve- month period when “a serious health condition . . . makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). An employee who takes leave under the FMLA is entitled to return to his previous position or an equivalent position in terms of compensation and benefits. 29 U.S.C. § 2614(a). An employer violates the FMLA when it interferes with the employee’s right either to take FMLA leave or to return to work when leave expires or is no longer necessary. See Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003). However, “employers are permitted to ‘deny restoration to employment’ if they can ‘show that an employee would not otherwise have been employed at the time reinstatement is requested.’” Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (quoting 29 C.F.R. § 825.216(a)); see also 29 U.S.C. § 2614(a)(3)(B). Thus, if an employee “would have lost his job or been laid off even if he had not taken FMLA leave,” an employer does not violate the FMLA by terminating that employee while he is on leave. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 245 (6th Cir. 2004). - 29 - No. 12-2203, Saulter v. Detroit Area Agency To prove a claim of FMLA interference, a plaintiff may use the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (applying the McDonnell Douglas analysis when an employer sought to prove that it would have eliminated the employee’s position regardless of whether she took FMLA leave).1 First, the employee must prove a prima facie case of FMLA interference by establishing the following: “(1) he is an eligible employee; (2) the defendant is an employer; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007) (internal citations and quotation marks omitted). The employer then has the opportunity to justify its actions by 1 Notwithstanding the fact that Donald is binding on this panel, Donald wrongly concluded, in our view, that the Sixth Circuit applies the McDonnell Douglas burden-shifting framework to interference claims under the FMLA. The regulations implementing the FMLA, which “must be given considerable weight,” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002), place the burden on the employer to demonstrate that it would have terminated the plaintiff regardless of whether she took FMLA leave. See 29 C.F.R. § 825.216(a) (“An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. . . . An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period, and, therefore, would not be entitled to restoration.” (emphasis added)). Accordingly, if we were to decide the issue de novo, we would be inclined to conclude, as have the Third, Eighth, Ninth, Tenth, and Eleventh Circuits, that the burden-shifting framework does not apply to FMLA interference claims. See Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006) (“Because the FMLA is not about discrimination, a McDonnell-Douglas burden-shifting analysis is not required.”); Sanders v. City of Newport, 657 F.3d 772, 780 (9th Cir. 2011); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 963 (10th Cir. 2002); Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979–80 (8th Cir. 2005); Parris v. Miami Herald Publ’g Co., 216 F.3d 1298, 1301 n.1 (11th Cir. 2000). However, because “[a] panel of this Court cannot overrule the decision of another panel” in a published opinion, we are bound to follow the holding in Donald. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). - 30 - No. 12-2203, Saulter v. Detroit Area Agency articulating a legitimate, non-discriminatory reason for denying FMLA benefits. If the employer can do so, the employee has the burden of demonstrating that the justification proffered by the employer is pretextual. Saulter alleges that the Detroit Area Agency on Aging (“DAAA”) interfered with her exercise of her FMLA rights by eliminating her position while she was on FMLA leave and refusing to reinstate her or to place her in a comparable position upon her return. R. 1-4 (Am. Compl. ¶ 47) (Page ID #31). The district court concluded that DAAA was entitled to summary judgment on Saulter’s FMLA claim because she failed to “present[] any evidence with which to rebut [DAAA’s] proffered explanation” for eliminating her position, namely the reorganization of many positions within the agency to achieve greater efficiency and economy. R. 18 (D. Ct. Order at 15–16) (Page ID #400–01). Upon reviewing the evidence in the record at summary judgment, we cannot agree with the district court’s conclusion. There is a genuine dispute of material fact regarding whether DAAA’s termination of Saulter “would have occurred regardless of the employee’s request for or taking of FMLA leave,” Arban, 345 F.3d at 401, and whether DAAA’s proffered reason for terminating her is pretextual.2 DAAA supervisors gave testimony that supports the conclusion that Saulter’s position would not have been eliminated had she not taken FMLA leave. Saulter’s FMLA leave began on December 29, 2009, but Gale Simmons, a director at DAAA, testified that she did not contemplate eliminating Saulter’s position until after Saulter was on leave: 2 DAAA does not argue that Saulter cannot prove the elements of her prima facie case of FMLA interference. - 31 - No. 12-2203, Saulter v. Detroit Area Agency Q. Now, did I understand you earlier to say that there came a point in time when you were convinced or persuaded that a position by Barbara Sa[ul]ter could be eliminated? A. Yes. Q. I want you to tell me, first of all, when was the first time you had any discussion about that position, and with whom. ... A. . . . [W]hat started that line of thinking about that process was it was probably in late January or early February when Mr. Bridgewater stopped by my office and asked how things were going in the nutrition area since we were without a manager. And I replied that it was going along; we were doing okay. And he seemed a little bit surprised by my answer and asked, so if it’s going okay, then what’s Barbara going to do when she gets back. Q. So this would have been January of 2010? A. Yes, January, February. Q. Had you had any discussions with anybody at DAAA or anywhere else about eliminating that position before January of ’10? A. No. Q. Did you have any belief prior to that time, that there was any reason to eliminate the position before that? A. No. Q. Had you ever contemplated eliminating the position before that? A. No. R. 13-20 (Simmons Dep. at 18–20) (Page ID #201) (emphasis added). Simmons also stated that she reached the conclusion that DAAA would not need a registered dietitian on staff only in March 2010, “when we were working with the RD at our vendors, and they were providing the services of an RD. . . . [This was] when it became apparent that maybe we didn’t need one on staff because this arrangement was working.” Id. at 26 (Page ID #203). Further indicating that Saulter’s position may not have been eliminated had she not taken leave is the fact that, as part of DAAA’s efforts to restructure (“Zero-Based Budgeting”), the agency hired an additional assessor to help Saulter because she had more responsibilities than a single employee could reasonably handle. R. 13-19 (Alexander Dep. at 22–23) (Page ID #188). - 32 - No. 12-2203, Saulter v. Detroit Area Agency Additionally, although Grabreck stated in her deposition that she believed the decision to eliminate Saulter’s position was “a business decision . . . due to the budget cuts,” R. 15-15 (Grabreck Dep. at 26) (Page ID #329), Saulter points to the fact that DAAA’s revenues increased by over $600,000 in 2009. R. 15-14 (Revenue/Expense Forecast) (Page ID #317). On one view of the facts, DAAA redistributed Saulter’s responsibilities after she began her FMLA leave as part of its ongoing restructuring effort, an action it would have undertaken whether she had taken leave or not. Indeed, “the restructuring of a business [may be] a legitimate, nondiscriminatory reason for terminating an employee who had incidentally taken FMLA leave.” Madry v. Gibraltar Nat’l Corp., 526 F. App’x 593, 597 (6th Cir. 2013) (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001)). However, drawing all inferences in Saulter’s favor, the facts could also demonstrate that her responsibilities were redistributed after she took FMLA leave in an effort to cover necessary functions during her absence. On this view of the facts, Saulter had a right to return to her former position or a comparable position: “On return from FMLA leave, . . . [a]n employee is entitled to . . . reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.” 29 C.F.R. § 825.214 (emphasis added). Simmons’s deposition testimony that she did not consider eliminating Saulter’s position until after she had redistributed Saulter’s job functions to accommodate for her absence is the kind of specific evidence necessary to support the inference that Saulter’s termination was precipitated by her leave. It is not simply evidence of temporal proximity between the time of leave and the time when Saulter was terminated; rather, it is evidence showing that the person who eliminated Saulter’s position was prompted to do so by the redistribution of - 33 - No. 12-2203, Saulter v. Detroit Area Agency responsibilities that occurred because of Saulter’s leave. Accordingly, viewing the evidence in the light most favorable to Saulter, we conclude that there is a genuine dispute of material fact regarding whether, had Saulter not taken FMLA leave, DAAA would have redistributed her responsibilities and concluded it was more efficient to eliminate her position. See Breneisen v. Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008) (holding that plaintiff’s denial-of-reinstatement claim survived summary judgment when the evidence suggested that the employer “simply replaced [plaintiff] or restructured his position to accommodate his absence”). Summary judgment on the FMLA claim was not warranted. Therefore, we REVERSE the district court’s grant of summary judgment in favor of DAAA as to Saulter’s FMLA interference claim and REMAND for further proceedings consistent with this opinion. - 34 -
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs January 5, 2011 ERIC D. WALLACE v. STEPHEN DOTSON, WARDEN Direct Appeal from the Circuit Court for Hardeman County No. 10-CR-114 Joseph H. Walker, III, Judge No. W2010-01784-CCA-R3-HC - Filed May 17, 2011 The Petitioner, Eric D. Wallace, was convicted by a Shelby County Criminal Court jury of felony murder and attempted first degree murder. He was sentenced to life imprisonment for the felony murder conviction and to a consecutive fifteen-year sentence as a Range I, standard offender for the attempted first degree murder conviction, for an effective sentence of life plus fifteen years. He subsequently filed a pro se petition for writ of habeas corpus in the Hardeman County Circuit Court, which was summarily dismissed. On appeal, the Petitioner argues that he is entitled to habeas corpus relief because (1) he asserts that he is “actually innocent” of the charges, (2) his indictments are defective, and (3) the trial court improperly instructed the jury on flight. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and J. C. M CL IN, JJ., joined. Eric D. Wallace, Whiteville, Tennessee, Pro Se. Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION Procedural History. The Petitioner was convicted by a Shelby County Criminal Court jury of felony murder and attempted first degree murder. On June 2, 1995, the trial court imposed consecutive sentences of life imprisonment and fifteen years as a Range I, standard offender respectively, for an effective sentence of life plus fifteen years. The Petitioner filed a direct appeal, and this court affirmed the judgments of the trial court. State v. Eric D. Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011 (Tenn. Crim. App., at Jackson, July 28, 1997), perm. to appeal denied (Tenn. Apr. 6, 1998). The Petitioner then filed a petition for post-conviction relief, which was denied. On appeal, this court affirmed the judgment of the post-conviction court. Eric Wallace v. State, No. W2000-02854-CCA-R3-CD, 2002 WL 1483204 (Tenn. Crim. App., at Jackson, Feb. 19, 2002), perm. to appeal denied (Tenn. Sept. 9, 2002). The Petitioner subsequently filed a petition for writ of habeas corpus, which was summarily dismissed by the Lauderdale County Circuit Court. The Petitioner appealed, and this court affirmed the judgment of the habeas corpus court. Eric D. Wallace v. James M. Dukes, Warden, No. W2002-00882-CCA-R3-CO, 2002 WL 31895727 (Tenn. Crim. App., at Jackson, Dec. 31, 2002), perm. to appeal denied (Tenn. Mar. 10, 2003). The Petitioner filed a second petition for writ of habeas corpus in the Hardeman County Circuit Court, which was also summarily dismissed. On appeal, this court affirmed the judgment of the habeas corpus court. Eric D. Wallace v. Stephen Dotson, Warden, No. W2006-00908-CCA-R3-HC, 2007 WL 852173 (Tenn. Crim. App., at Jackson, Mar. 22, 2007), perm. to appeal denied (Tenn. Aug. 13, 2007). The Petitioner then filed a motion to reopen his petition for post-conviction relief, which was denied by the Shelby County Criminal Court. The Petitioner appealed, and this court affirmed the judgment of the post-conviction court. Eric Dewayne Wallace v. State, No. W2008-00867-CCA-R3-PC, 2009 WL 321294 (Tenn. Crim. App., at Jackson, Feb. 6, 2009). The Petitioner subsequently filed his third petition for writ of habeas corpus in this case in the Hardeman County Circuit Court on July 27, 2010. On August 3, 2010, the habeas corpus court summarily dismissed the Petitioner’s writ for habeas corpus. In the order, the court held that the Petitioner failed to state a cognizable claim in his petition that would entitle him to habeas corpus relief. The Petitioner then filed a timely notice of appeal. Facts. This court summarized the facts for the underlying offenses on direct appeal: On the evening of July 10, 1992, the defendant and his brother, Percy Wallace, were walking along Woodlawn Street in Memphis. When they were passing the Weddle residence, they saw Jimmy Weddle, known in the neighborhood as “Jim Bodey,” sitting on his front porch with several people visiting the Weddle residence. The Wallace brothers asked Weddle to meet them on the sidewalk. They asked Weddle if he knew of anyone who wanted to purchase illicit narcotics. Weddle told the Wallaces there was a woman and -2- a man who desired to make a purchase. The Wallaces told Weddle to send the individuals to them. They then walked down the street until they came to the next intersection, Woodlawn and Looney. Boo Boo Fox, who was driving through the neighborhood, stopped to purchase drugs from the Wallaces. Weddle walked to the intersection after Fox stopped his vehicle. Fox asked for a $20 rock of crack cocaine. He gave the Wallaces $15. He was told he did not have enough money to purchase the rock. Fox told the Wallaces he would go to the vehicle and get more money. Fox reached inside the vehicle, obtained a pistol, and told the Wallaces to give him all of the illicit narcotics and money they had on them. He also made them lay on the ground. Weddle began walking backwards toward his residence. Fox obtained the money and drugs, and he fired at the Wallaces. It appears he grazed Percy Wallace. Fox then drove away. When Fox left, the Wallaces ran toward their residence. Percy Wallace and the defendant each obtained a shotgun. They then went to the Weddle residence as they believed Weddle had assisted Fox in the robbery. Approximately ten to fifteen minutes expired between the robbery and the appearance of the Wallaces at the Weddle residence. When the Wallaces arrived, Weddle and his guests were still sitting on the front porch. Percy Wallace asked, “Where is Jim Bodey?” He then exclaimed, “Jim Bodey you a dead man [sic].” When the people saw the Wallaces were armed, they began running into the Weddle residence. Percy Wallace [email protected]. The shot struck the exterior of the Weddle residence. Percy Wallace then forced his way into the Weddle residence and fired the shotgun two more times in an effort to shoot Weddle. While Percy Wallace was attempting to reload his shotgun, he told the defendant to shoot anyone who exited the residence. Shortly thereafter, the victim, Venita Swift, who was celebrating her birthday at the Weddle residence, decided to exit the residence and go home. She lived across the street from the Weddles. As she ran from the residence with her arms raised above her head, the defendant stated: “Hold, bitch.” Swift looked at the defendant, but she kept running. The defendant raised his shotgun and [email protected]. She subsequently fell in the street. A few minutes later she died. The buckshot from the shotgun struck Swift in the back below her left shoulder. The pellets continued through her body. Wadding from the shotgun blast was found under Swift’s skin. Numerous pellets entered her body. The -3- pellets went through the victim’s left lung and struck her heart. The pellets also struck the victim’s aorta, stomach, spleen, and liver. Two wadding wounds were found. The pathologist estimated that over 100 pellets entered the victim’s body. He also estimated the shotgun was approximately ten to fifteen feet from the victim when it was fired. The pathologist testified the cause of death was the shotgun wound inflicted by the defendant. The defendant was arrested by the police at his place of employment. He was given the Miranda warnings. He readily admitted he shot the victim. He cooperated with the police in an effort to obtain evidence of the murder. However, during the trial, the defendant testified the police did not advise him of the Miranda warnings, and he did not read the statement before signing it. He emphatically denied shooting the victim. He testified he told the victim to “get down.” Eric D. Wallace, 1997 WL 421011, at *1-2. ANALYSIS On appeal, the Petitioner argues that he is entitled to habeas corpus relief because he asserts that he is “actually innocent” of the charges, his indictments are defective, and the trial court improperly instructed the jury on flight. In response, the State argues that the habeas corpus court properly denied relief because the Petitioner has failed to establish that his challenged judgments are void or that his sentences have expired. We agree with the State. A prisoner is guaranteed the right to habeas corpus relief under article I, section 15 of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to -130. The grounds upon which a writ of habeas corpus may be issued, however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “The determination of whether habeas corpus relief should be granted is a question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). In determining whether to grant habeas corpus relief, our review is de novo without a presumption of correctness given to the lower court’s findings and conclusions. Summers, 212 S.W.3d at 255 (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)). -4- “[T]he purpose of a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 [email protected]. However, “a voidable judgment is facially valid and requires the introduction of proof beyond the face of the record or judgment to establish its invalidity.” Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000)); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). Thus, “[i]n all cases where a petitioner must introduce proof beyond the record to establish the invalidity of his conviction, then that conviction by definition is merely voidable, and a Tennessee court cannot issue the writ of habeas corpus under such circumstances.” Ritchie, 20 [email protected]. Additionally, “[i]f the court rendering a judgment has jurisdiction of the person, the subject-matter, and has the authority to make the challenged judgment, the judgment is voidable, not void; and the judgment may not be collaterally attacked in a suit for habeas corpus relief.” Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). It is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)). However, if the habeas corpus court determines from the petitioner’s filings that no cognizable claim has been stated and that the petitioner is not entitled to relief, the petition for writ of habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20; see also T.C.A. § 29-21-109 (2006). The habeas corpus court may summarily dismiss the petition without the appointment of a lawyer and without an evidentiary hearing if there is nothing on the face of the judgment to indicate that the convictions are void. Passarella, 891 [email protected]. “The petitioner bears the burden of providing an adequate record for summary review of the habeas corpus petition, including consideration of whether counsel should be appointed.” Summers, 212 [email protected]. A trial court’s facially valid judgment cannot be collaterally attacked in a petition for habeas corpus relief. Archer, 851 [email protected]. Instead, a Petitioner must challenge a facially valid judgment on constitutional grounds in a petition for post-conviction relief. Lewis v. Metro. Gen. Sessions Court for Nashville, 949 S.W.2d 696, 699 (Tenn. Crim. App. -5- 1996) (citing Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982)); see also Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993). I. Sufficiency of the Evidence. First, the Petitioner argues that he is entitled to habeas corpus relief because he is “actually innocent” of the charges in this case. The State responds that the Petitioner’s first issue is essentially a sufficiency of the evidence claim, which is not cognizable in a habeas corpus proceeding. We agree. See Myers v. State, 462 S.W.2d 265, 267 (Tenn. Crim. App. 1970) (“Habeas corpus and post-conviction proceedings may not be employed to question or review or test the sufficiency of the evidence at the original trial.”); William C. Brothers v. State, No. W2008-00748-CCA-R3-HC, 2009 WL 1643434, at *3 (Tenn. Crim. App., at Jackson, June 12, 2009), perm. to appeal denied (Tenn. Oct. 26, 2009) (“To the extent that the petitioner challenges the sufficiency of the evidence, . . . those claims do not present cognizable grounds for habeas corpus relief.”); Jackie F. Curry v. State, No. E2007-02526- CCA-R3-HC, 2008 WL 3066823, at *2 (Tenn. Crim. App., at Knoxville, Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“[A]n attack on the sufficiency of the evidence is not a proper basis for habeas corpus relief.”). Moreover, this court previously concluded that the evidence was sufficient to support the Petitioner’s convictions for felony murder and attempted first degree murder on direct appeal: Before an accused can be convicted of murder in the perpetration of a felony, the State of Tennessee is required to prove beyond a reasonable doubt (a) the accused recklessly killed the victim and (b) the killing occurred during the perpetration, or attempt to perpetrate, one of the enumerated felonies set forth in the statute. Tenn. Code Ann. § 39-13-202(a)(2). In this case, the State of Tennessee’s theory was the defendant recklessly killed the victim while the defendant and his brother were attempting to commit murder in the first degree. The intended victim was Jimmy Weddle. The defendant does not challenge the fact he recklessly killed the victim. The evidence of this fact is overwhelming. The defendant gave the police officers a statement admitting he shot and killed the victim. In addition, several eyewitnesses testified the defendant was the person who shot and killed the victim. However, the defendant contends he did not commit the offense of attempt to commit murder first degree. He argues the State of Tennessee failed to establish the offense was committed with deliberation, which is to say “committed with coolness and reflection and without passion or provocation.” The question this Court must resolve is whether the element of deliberation was established by the evidence. -6- When this offense was committed, the term deliberation was defined by statute as an act “performed with a cool purpose.” Tenn. Code Ann. § 39-13-201(b)(1). The defendant contends his status of being a victim of the robbery, the shooting, and his belief Weddle was acting in concert with Fox created excitement and passion. He argues this excitement and passion had not subsided prior to the criminal conduct in question. In this case, the defendant and his brother, Percy, left the situs of the armed robbery-shooting, went to their residence, armed themselves with shotguns, and went to the Weddle residence. A rational jury could have found fifteen minutes elapsed from the time of the robbery-shooting and the defendant’s appearance at the Weddle residence. A reasonable and prudent person would have called the police and reported the crime. If the Wallaces reported the robbery-shooting to the police, they would have had to admit they were selling illicit narcotics, and Fox took their money and illicit narcotics. Thus, they did not report the crime to the police. However, the Wallaces felt compelled to establish there was a price to pay when someone committed a criminal act against them. In other words, the Wallaces wanted to deter such conduct in the future. They became the police, judge, jury, and executioner. There was a concerted effort to kill Weddle. Percy Wallace fired at Weddle as he ran into the dwelling. He then forced his way into the dwelling where he fired twice. While Percy Wallace was attempting to reload the shotgun, he told the defendant to shoot anyone who left the dwelling. When the innocent victim left the residence with her hands held above her head, the defendant shot her in the back from a distance of ten to fifteen feet. This Court concludes the evidence contained in the record supports a finding by a rational trier of fact [that] the defendant recklessly shot the victim during an attempt to commit first degree murder beyond a reasonable doubt. Tenn. R. App. P. 13(e). See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Based upon the facts contained in the record, the jury could reasonably conclude sufficient time had elapsed for any excitement or passion to dissipate. Eric D. Wallace, 1997 WL 421011, at *2-4. Accordingly, the Petitioner is not entitled to relief on this issue. -7- Within this first issue, the Petitioner also claims that the felony murder and attempted first degree murder indictments are void because “the killing [of Swift] must have been done in pursuance of, rather than collateral to, the attempt[ed first degree] murder, in relation to the natural and probable consequence rule, thereby rendering the convictions and sentence void and unconstitutional.” In addition, the Petitioner asserts that although “the jury was instructed on the theory of criminal responsibility for the conduct of another . . . [it] was not instructed on the natur[al] and probable consequence rule of the target crime, which is an essential element that the State must prove beyond a reasonable doubt before the petitioner can be convicted of felony murder and attempted first degree murder based on equal criminal liability for principals, accessories before the fact, and aiders and abettors[.]” Moreover, the Petitioner contends that “the State offered no evidence of the elements for the natur[al] and probable consequence rule of the target crime.” In State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the Tennessee Supreme Court held that the natural and probable consequences rule “underlies the doctrine of criminal responsibility and is based on the recognition that aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put into motion.” Id. at 276 (Tenn. 2000) (citing State v. Carson, 950 S.W.2d 951, 954-55 (Tenn. 1997); Key v. State, 563 S.W.2d 184, 186 (Tenn. 1978); State v. Grooms, 653 S.W.2d 271, 275 (Tenn. Crim. App. 1983)). The court also established a three-part test for the natural and probable consequences rule: [T]o impose criminal liability based on the natural and probable consequences rule, the State must prove beyond a reasonable doubt and the jury must find the following: (1) the elements of the crime or crimes that accompanied the target crime; (2) that the defendant was criminally responsible pursuant to Tennessee Code Annotated section 39-11-402; and (3) that the other crimes that were committed were natural and probable consequences of the target crime. Id. The Tennessee Supreme Court again considered the natural and probable consequences rule in State v. Richmond, 90 S.W.3d 648 (Tenn. 2002), wherein it stated: The natural and probable consequences rule arose as a common law component of criminal responsibility and extends criminal liability to the crime intended by a defendant, and collateral crimes committed by a co-defendant, that were the natural and probable consequences of the target crime. Id. at 654 (citing Carson, 950 S.W.2d at 954). Here, the Petitioner argues that Swift’s homicide was not foreseeable at the time he committed the attempted first degree murder offense. However, in State v. Winters, 137 -8- S.W.3d 641, 659 (Tenn. Crim. App. 2003), this court specifically held that the offense of felony murder does not require that the homicide committed during the underlying felony be foreseeable: [T]he felony murder statute, both as it existed at the time of the crime and today, does not require that a homicide committed during the course of one of the enumerated felonies be foreseeable. See Tenn. Code Ann. § 39-13- 202(a)(2) (1997 & 2003); State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000), perm. app. denied (Tenn. 2001). “When one enters into a scheme with another to commit one of the felonies enumerated in the felony murder statutes, and death ensues, both defendants are responsible for the death regardless of who actually committed the murder and whether the killing was specifically contemplated by the other.” Id. (citing State v. Brown, 756 S.W.2d 700, 704 (Tenn. Crim. App. 1988)). Regarding this issue, the State asserts that while the prosecution in this case sought to convict the Petitioner of attempted murder of Weddle based on the theory of criminal responsibility, the prosecution charged the Petitioner as the principal in the felony murder of Swift. Accordingly, the State argues that an instruction on the natural and probable consequences rule was not necessary for the offense of felony murder because the Petitioner was not charged with or found guilty of Swift’s death under the theory of criminal responsibility. See State v. Marlon Orlando Walls, No. M2003-01854-CCA-R3-CD, 2006 WL 151923, at (Tenn. Crim. App., at Nashville, Jan. 19, 2006) perm. to appeal denied (Tenn. May 30, 2006) (“Because Defendant was not charged with and held liable for the victim’s death under a criminal responsibility theory, an instruction on the natural and probable consequences rule as to the offense of especially aggravated kidnapping was not required.”); State v. Jason D. Pillow, No. M2002-01864- CCA-R3-CD, 2004 WL 367747, at *11 (Tenn. Crim. App., at Nashville, Feb. 27, 2004), perm. to appeal denied (Tenn. June 21, 2004) (“Because the defendant was not charged with or held liable for [the victim’s] death under a theory of criminal responsibility, an instruction on the natural and probable consequences rule was not required as to that offense.”). This court’s opinion on direct appeal indicates that there was “overwhelming” evidence that the Petitioner recklessly killed Swift. The court specifically noted that the Petitioner provided a written statement to the police admitting that he killed Swift and that several eyewitnesses testified at trial that the Petitioner was the individual who shot Swift. Accordingly, we agree with the State that the record supports the view that Petitioner was charged and held liable for Swift’s death as a principal. However, we also note that, even if the Petitioner was not charged with or found guilty of Swift’s death as a principal, an instruction on the natural and probable consequences rule was not required in light of Winters. -9- Finally, the Petitioner asserts that, because his brother, Percy Wallace, was allowed to enter a plea of guilty in this case to second degree murder, the Petitioner and his brother no longer shared the same criminal intent regarding the felony murder indictment, which he claims is required before concluding that Swift’s death was the “natural and probable foreseeable consequence.” He asserts that Percy Wallace’s guilty plea to second degree murder deprived him of due process and equal treatment under the law and prevented the jury from determining whether the attempted murder of Weddle had ended before imposing criminal liability for the death of Swift. The Petitioner cites no authority to support these arguments. Accordingly, this issue is waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.”); Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the contentions of the appellant with respect to the issues presented, and the reasons therefore, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record . . . relied on.”). Accordingly, the Petitioner is not entitled to relief on this issue. II. Defective Indictment. The Petitioner also argues that his felony murder and attempted first degree murder indictments were defective. First, he contends that the State at trial only proved that he acted knowingly and intentionally, rather than recklessly as charged in the indictment for felony murder. Second, the Petitioner argues that Percy Wallace’s guilty plea to second degree murder shows that the Petitioner was not “an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit the . . . murder of Jimmy Weddle” and if the Petitioner’s actions were not reckless but knowing regarding the murder of Swift, then the reckless element of felony murder was not established by the prosecution. The State responds that the trial court properly determined that the indictment sufficiently informed the Petitioner of the charges against him. The State also argues that this issue “appears to be a veiled attempt to again attack the sufficiency of the convicting evidence, which is not a valid claim in habeas corpus.” We agree with the State. The United States Constitution and the Tennessee Constitution state that a defendant is entitled to knowledge of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tennessee Const. art. I, § 9. Pursuant to State v. Hill, an indictment is valid if it contains sufficient information (1) to enable the accused to know the accusation to which answer is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused from double jeopardy. -10- 954 S.W.2d at 727 (citing State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). In addition, pursuant to Tennessee Code Annotated section 40- 13-202, the indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner so as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. . . . T.C.A. § 40-13-202 (2006). We note that typically a defendant must raise an objection to a defect in the indictment prior to trial. Tennessee Rule of Criminal Procedure 12(b)(2) states that a failure to raise an objection prior to trial based on a defect in the indictment generally results in waiver. Tenn. R. Crim. P. 12(b)(2)(B); see also Wyatt, 24 [email protected]. However, “an indictment that is so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of the proceedings, including in a habeas corpus petition.” Wyatt, 24 S.W.3d at 323 (citing Tenn. R. Crim. P. 12(b)(2); Dykes, 978 S.W.2d at 529). Here, the indictment charging the Petitioner with felony murder of Swift provided: THE GRAND JURORS of the State of Tennessee, duly selected, empaneled, sworn and charged to inquire for the body of the county of Shelby, Tennessee, upon their oath, present that: ERIC D. WALLACE and PERCY WALLACE on July 10, 1992, in Shelby County, Tennessee, and before the finding of this indictment, did unlawfully and recklessly kill VENITA SWIFT during and [sic] attempt to perpetrate First Degree Murder, in violation of T.C.A. 39-13- 202, against the peace and dignity of the State of Tennessee. In addition, the indictment charging the Petitioner with attempted first degree murder of Weddle provided: -11- THE GRAND JURORS of the State of Tennessee, duly selected, impaneled, sworn and charged to inquire for the body of the county of Shelby, Tennessee, upon their oath, present that: ERIC D. WALLACE and PERCY WALLACE on July 10, 1992, in Shelby County, Tennessee, and before the finding of this indictment, did unlawfully attempt to commit the offense of First Degree Murder as defined in T.C.A. 39-13-202, in that they, the said Eric D. Wallace and the said Percy Wallace did unlawfully, intentionally, deliberately, and with premeditation attempt to kill JIMMY WEDDLE by use of a deadly weapon, to wit: a firearm and did cause the said JIMMY WEDDLE to reasonably fear imminent bodily injury, in violation of T.C.A. 39-12-101, against the peace and dignity of the State of Tennessee. The Petitioner has failed to establish that these indictments are defective. In fact, this court, in the Petitioner’s appeal from the summary dismissal of his first petition for writ of habeas corpus on the instant charges, specifically concluded, “The indictments meet the criteria as set out in Tennessee Code Annotated section 40-13-202, as they are sufficient to apprize petitioner of the charges for which he needed to prepare.” Eric D. Wallace, 2002 WL 31895727, at *2. Moreover, the State asserts that the Petitioner’s defective indictment issue “appears to be a veiled attempt to again attack the sufficiency of the convicting evidence, which is not a valid claim in habeas corpus.” We agree. The State further asserts that “[t]o the extent that the petitioner might be arguing that there is a fatal variance between the charges alleged in the indictment and the proof presented at trial, that issue has also been addressed by this Court in a previous habeas [corpus] proceeding.” We also agree with the State on this point. In the Petitioner’s appeal from the summary dismissal of his second petition for writ of habeas corpus on these charges, the court concluded, “[T]he [Petitioner’s] allegation of a fatal variance between the indictment and proof at trial is not a cognizable ground for habeas corpus relief.” Eric D. Wallace, 2007 WL 852173, at *2 (citing William T. Yelton v. Robert Waller, Warden, No. M2004-02529-CCA-R3-HC, 2006 WL 119628, at *1 (Tenn. Crim. App., at Nashville, Jan. 17, 2006); Stephen Lajuan Beasley v. State, No. E2005-00367-CCA-MR3-HC, 2005 WL 3533265, at *4 (Tenn. Crim. App., at Knoxville, Dec. 27, 2005), perm. to appeal denied (Tenn. May 30, 2006); Byron Edwards v. State, No. E2004-00918-CCA-R3-HC, 2004 WL 2951975, at *1-2 (Tenn. Crim. App., at Knoxville, Dec. 20, 2004), perm. to appeal denied (Tenn. Mar. 21, 2005)). Accordingly, the Petitioner is not entitled to relief on this issue. -12- III. Trial Court’s Instruction on Flight. The Petitioner lastly argues that he is entitled to habeas corpus relief because the trial court provided the jury with a “flawed” instruction on flight. He contends that flight was not enough to convict him of felony murder because, while the evidence showed him leaving the scene, it did not show “a subsequent hiding out, evasion, or concealment in the community, or a leaving of the community for parts unknown, to constitute flight” pursuant to Rogers v. State, 455 S.W.2d 182, 187 (Tenn. 1970). In response, the State contends that “even if the instruction was erroneous, it would not render the judgment void.” We agree with the State. See Rain Thomas Chesher v. Stephen Dotson, Warden, No. W2008-00739-CCA-R3-HC, 2008 WL 3892017, at *2 (Tenn. Crim. App., at Jackson, Aug. 22, 2008), perm. to appeal denied (Tenn. Jan. 20, 2009) (“[T]he petitioner’s challenges to the jury instructions, even if proven, would render his conviction voidable, not void.”); Rodney L. Tipton v. Howard Carlton, Warden, No. E2007-02625-CCA-R3-HC, 2008 WL 3539727, at *2 (Tenn. Crim. App., at Knoxville, Aug. 14, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“A claim of erroneous jury instructions is not a cognizable basis for habeas corpus relief.”); Jackie F. Curry v. State, No. E2007-025320-CCA-R3-HC, 2008 WL 3066823, at *4 (Tenn. Crim. App., at Knoxville, Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“This Court has repeatedly found that erroneous jury instructions cannot form the basis for habeas corpus relief.”). The Petitioner is not entitled to relief on this issue. The Petitioner has not established that his judgments are void and has not argued or established that his sentences have expired. Accordingly, the court’s dismissal of the petition for writ of habeas corpus was proper. CONCLUSION The habeas corpus court’s summary dismissal of the petition for writ of habeas corpus is affirmed. ______________________________ CAMILLE R. McMULLEN, JUDGE -13-
In the United States Court of Federal Claims No. 04-1365 C Filed under seal: May 16, 2014 * Reissued for publication: May 16, 2014 **************************************** * * CHEVRON U.S.A., INC., * * Plaintiff, * Reliance Damages; * Sanctions for “Bad Faith” Conduct v. * Relating to Privilege Assertions * During Discovery. THE UNITED STATES, * * Defendant. * * * **************************************** Donald B. Ayer, Lawrence D. Rosenberg, Michael S. Fried, Louis K. Fisher, Jones Day, Washington, D.C., Counsel for the Plaintiff. Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director of National Courts, Donald E. Kinner, Assistant Director, Michael Damien Snyder, Carrie Dunsmore, Benjamin Mark Moss, Trial Attorneys, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., Counsel for the Government. MEMORANDUM OPINION AND FINAL JUDGMENT REGARDING PLAINTIFF’S ENTITLEMENT TO RELIANCE DAMAGES AND SANCTIONS FOR THE GOVERNMENT’S “BAD FAITH” CONDUCT RELATING TO PRIVILEGE ASSERTIONS DURING DISCOVERY BRADEN, Judge. This case arises from a commercial dispute between the Department of Energy (“DOE”) and Chevron U.S.A., Inc. (“Chevron”) about the finalization of their respective equity interests in * On April 30, 2014, the court forwarded a sealed copy of this Memorandum Opinion and Order to the parties, requesting suggested deletions from the public version of any confidential and/or privileged information, and to note any citation or editorial errors requiring correction. See Docket No. 412. The court has incorporated some of these comments and corrected or clarified certain portions herein. The court has separately filed a new sealed Memorandum Opinion and Final Judgment, which replaces the April 30, 2014 version. oil and gas deposits, located in the Elk Hills Reserve of California. For the reasons discussed herein, the court has determined that Chevron is entitled to $17,908,857 in reliance damages for costs incurred, as a result of DOE’s repeated breach of contract and violation of the covenant of good faith and fair dealing. In addition, the court has determined that Chevron is entitled to $904,483, as a sanction for the Government’s “bad faith” conduct relating to privilege assertions during discovery. The following outline is provided to facilitate a review of the court’s final rulings regarding Chevron’s entitlement to reliance damages and sanctions, together with a list of Court Exhibits. I. SUMMARY OF RELEVANT FACTS AND PROCEDURAL BACKGROUND. ........... 4 II. DISCUSSION. .................................................................................................................... 8 A. The Relevant Burdens Of Proof Regarding Reliance Damages. ............................ 8 B. The Plaintiff’s Claim For Reliance Damages. ........................................................ 9 C. The Government’s Objections To Plaintiff’s Claim For Reliance Damages. ...... 14 1. As To The Allocation Of Costs Claimed. ................................................. 14 a. Summary Of The Government’s Argument. ................................ 14 b. Summary Of The Plaintiff’s Response. ........................................ 16 c. The Court’s Analysis And Resolution As To The Allocation Of Specific Costs................................................................................ 18 i. Company Payroll & Benefits. ........................................... 19 ii. Other Labor Related Costs. ............................................... 26 iii. External Non-Legal Professional And Labor. .................. 27 iv. In-House Technical Consultants. ...................................... 28 v. Miscellaneous Expenses. .................................................. 29 vi. Legal Costs........................................................................ 29 2. As To Other Costs Claimed. ..................................................................... 30 a. Summary Of The Government’s Argument. ................................ 30 b. Summary Of The Plaintiff’s Response. ........................................ 32 c. The Court’s Analysis And Resolution Of Other Specific Costs. .. 32 2 i. Unsupported Transactions. ............................................... 32 ii. Improper Fixed Costs Not Related To Equity Finalization. ........................................................................................... 33 iii. Accrued Benefit Costs Not Related To Equity Finalization. ........................................................................................... 34 iv. Other Costs Not Related To Equity Finalization. ............. 35 III. SUMMARY OF COSTS AWARDED AS RELIANCE DAMAGES. ............................ 36 A. The Stevens Zone Equity Finalization. ................................................................. 36 B. The Carneros Zone Equity Finalization. ............................................................... 37 C. The Freedom Of Information Act Request And Related Proceedings. ................ 38 IV. SANCTIONS FOR THE GOVERNMENT’S “BAD FAITH” CONDUCT RELATING TO PRIVILEGE ASSERTIONS DURING DISCOVERY. ............................................. 38 V. CONCLUSION. ................................................................................................................ 40 * * * Court Exhibit 1: The Plaintiff’s Initial Claim As Of October 2010, Presented By Cost Category. ................................................................................................... 10 Court Exhibit 2: Estimated Value Of Zones And Plaintiff’s Revised Claim, Presented By Zone. ......................................................................................................... 11 Court Exhibit 3: Summary Of The Plaintiff’s Final Claim For Reliance Damages And Sanctions, Based On The Court’s Prior Rulings....................................... 12 Court Exhibit 4: Summary Of The Plaintiff’s Claim For Costs Previously Rejected By The Court. ................................................................................................. 13 Court Exhibit 5: The Government’s Estimate Of Time That DOE Spent To Prepare And Present Equity Reports For The Independent Petroleum Engineer, By Zone. .................................................................................................... 16 Court Exhibit 6: The Government’s Estimate Of Time Spent By The Independent Petroleum Engineer To Prepare Final Recommendations, By Zone. ....... 16 Court Exhibit 7: Summary Of The Government’s Proposed Allocation Adjustments, By Zone. ......................................................................................................... 19 Court Exhibit 8: The Plaintiff’s Proposed Allocation Of Employee Payroll And Benefits, By Zone. .................................................................................................... 20 Court Exhibit 9: The Government’s Proposed Allocation Of Employee Payroll And Benefits, By Zone. .................................................................................... 22 3 Court Exhibit 10: The Court’s Resolution Of Allocation Of Employee Payroll And Benefits, By Zone. .................................................................................... 26 Court Exhibit 11: Summary Of The Government’s Proposed Adjustments For Other Specific Costs Claimed By Plaintiff. ........................................................ 31 Court Exhibit 12: The Government’s Proposed Adjustments For Unsupported Transactions. ............................................................................................. 32 Court Exhibit 13: The Government’s Proposed Adjustment For Internal Technical Consultants................................................................................................ 34 Court Exhibit 14: Summary Of The Court’s Resolution Of Allocation And Other Specific Costs—The Stevens Zone. .......................................................... 36 Court Exhibit 15: Summary of The Court’s Resolution Of Allocation And Other Specific Costs—The Carneros Zone. ...................................................................... 37 I. SUMMARY OF RELEVANT FACTS AND PROCEDURAL BACKGROUND. 1 On June 19, 1944, the Standard Oil Company, Chevron’s predecessor, and the United States Navy (“Navy”) entered into a Unit Plan Contract (“the UPC”) to govern the joint operation and production of the oil and gas deposits located in three initial “commercially productive zones” of the Elk Hills Reserve. 2 In 1977, Congress decided that the Elk Hills Reserve was no longer needed for defense and other strategic purposes and transferred the Navy’s interests and management obligations to DOE. On February 10, 1996, Congress enacted a law that required DOE to retain a “mutually acceptable” independent petroleum engineer (“IPE”) to finalize the owners’ equity interests in the Elk Hills Reserve. On June 17, 1996, the Secretary of DOE delegated this task to the Assistant Secretary for Fossil Energy (“ASFE”). On July 8, 1996, the ASFE issued Administrative Order No. 96-01, “Protocol on Naval Petroleum Reserve Numbered 1 Equity Finalization Implementation Process” (the “Equity IPE Protocol”), to establish a procedure by which Chevron and DOE would present their respective positions to a “mutually acceptable 1 The relevant facts and procedural history in this case have been discussed in detail in the following substantive decisions: Chevron U.S.A., Inc. v. United States, 71 Fed. Cl. 236, 239−55 (2006) (“Chevron I”) (jurisdiction); Chevron U.S.A., Inc. v. United States, 80 Fed. Cl. 342−54 (2008), reconsidered in part, 83 Fed. Cl. 195, 195−96 (privilege assertions) (“Chevron II”); In Re United States, 421 F. App'x 953 (Fed. Cir. 2009) (per curiam); and Chevron U.S.A. v. United States, 110 Fed. Cl. 747, 750, 753–75 (2013) (“Chevron III”) (finding the Government in breach of contract and of the duty of good faith and fair dealing). 2 The UPC defined the term “commercially productive zones” as “[g]eologic strata beneath the surface of the earth which . . . are capable of producing oil or gas in paying quantities.” Chevron III, 110 Fed. Cl. at 753 n.2. In 1976, the Elk Hills Reserve included the Dry Gas Zone, the Stevens Zone, and the Shallow Oil Zone. Id. at 753. In 1994, the Carneros Zone was discovered and included in the Elk Hills Reserve. Id. at 754 n.5. 4 [IPE]” to finalize equity. Although the Equity IPE Protocol clearly prohibited Chevron and DOE from having ex parte communications with the IPE, nevertheless, DOE’s Deputy General Counsel for Technology Transfer and Procurement decided that she was authorized to provide the IPE with ex parte advice about equity finalization, and did so without Chevron’s knowledge. When this prohibited conduct was discovered by Chevron, the equity finalization process came to an abrupt impasse, but subsequently was renewed when the ASFE agreed to supplement the Equity IPE Protocol, authorizing DOE to hire an Independent Legal Advisor acceptable to Chevron and DOE to provide any legal advice requested by the IPE. In addition, DOE and Chevron executed two additional documents that enabled the equity finalization process to resume. The first was a May 19, 1997 Agreement Regarding Fixing of Equity Interest at Naval Petroleum Reserve No. 1 for Purposes of Sale (the “Decoupling Agreement”). The Decoupling Agreement estimated the parties’ interest in the four unitized zones in Elk Hills Reserve and provided that when equity was finalized, one party would compensate the other for any difference between the pre-sale equity estimate and the final equity determination. The second agreement, also executed on May 19, 1997, regarding the equity redetermination was the “Equity Process Agreement.” The purpose of the Equity Process Agreement was to establish an impartial, unbiased, and transparent process governing the ASFE’s independent final equity decision to avoid the ex parte communications that arose regarding the Equity IPE Protocol. 3 After an eleven day trial in Washington, D.C. and Dallas, Texas, the court determined that DOE not only violated the July 8, 1996 Equity IPE Protocol, as supplemented, to which Chevron was a third-party beneficiary, but DOE also “repeatedly and materially” violated the May 19, 1997 Equity Process Agreement. See Chevron III, 110 Fed. Cl. at 750, 803. The court also determined that written assurances made on May 19, 1998 by DOE to Chevron that DOE was no longer engaged in prohibited ex parte communications “were misleading at that time and . . . not honored by the DOE thereafter—a classic breach of the implied covenant of good faith and fair dealing.” Id. at 804. The court’s liability determination in this case, however, pre-dated the United States Court of Appeals for the Federal Circuit’s decision in Metcalf Constr. Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014). Therein, our appellate court held that the “duty of good faith and fair dealing [is inherent in the contract] performance and enforcement,” and “[f]ailure to fulfill that duty constitutes a breach of contract, as does failure to fulfill a duty ‘imposed by a promise stated in the agreement.’” Id. at 990 (quoting RESTATEMENT (SECOND) OF CONTRACTS §§ 205, 235 (1981)). Therefore, breach of the duty of good faith and fair dealing is thus an independent cause of action for which damages may be awarded. As such, even if the court’s breach of contract rulings are erroneous, Chevron has established an independent cause of action for which it is entitled to recover damages. The court has determined that Chevron is entitled to recover costs incurred to participate in the equity finalization of: (1) the Stevens Zone, excluding all financing costs, from July 8, 3 The May 19, 1997 Equity Process Agreement also provided that if the ASFE overruled a final recommendation of the IPE, that decision could be appealed by Chevron to DOE’s Office of Hearings and Appeals. 5 1996 until June 17, 2010; (2) the Carneros Zone, excluding all financing costs, from May 19, 1997 until July 6, 2000; and (3) costs incurred to file a Freedom of Information Act request and related proceedings. See Chevron III, 110 Fed. Cl. at 803−04; see also Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999) (holding that an agreement must be construed, pursuant to the “meaning that would be derived from the contract by a reasonably intelligent person acquainted with the contemporaneous circumstances” (quoting Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965))). In addition, because of the Government’s “bad faith” conduct relating to privilege assertions during discovery, the court also determined that, the Government was required to pay Chevron 42% of the legal fees that Chevron incurred from February 16, 2007 to March 5, 2009 as a sanction. See Chevron III, 110 Fed. Cl. at 807. At the liability trial, Chevron presented several alternative damage scenarios, but none conformed to the zones, precise periods, and specified costs that the court subsequently determined was appropriate. Id. at 805. Therefore, Chevron was instructed to provide the court with an itemized financial statement of the costs authorized by the court as reliance damages and sanctions, verified by a certified public accountant. Id. In response, Chevron filed a July 2, 2013 Supplemental Brief, together with: a June 26, 2013 Declaration of Norman D. Stone 4 (Ex. A); a June 28, 2013 Declaration of Kimberly Anne Melton 5 (Ex. B); a July 2, 2013 Declaration of Kenneth Metcalfe, CPA 6 (Ex. C); and Mr. Metcalfe’s work papers (Ex. D). In response, the Government filed the December 6, 2013 Supplemental Response, together with the Declarations of Alan A. Burzlaff, P.E. 7 (Burzlaff Ex. 4 Mr. Stone was the Equity Team Manager for Chevron, responsible for overseeing activities related to the Elk Hills Field equity finalization until mid-2012. 6/26/13 Stone Decl. ¶¶ 1–2. Mr. Stone previously executed a declaration on October 29, 2010 (JE 1718) and testified at the liability trial (10/13/09 TR 142–671), and at the 2011 evidentiary hearing on damages. 6/1/11 TR 492–700. 5 Ms. Melton was the Finance Team Leader for a unit of Chevron in Bakersfield, California. 6/28/13 Melton Decl. ¶ 1. Previously, Ms. Melton executed a declaration on October 14, 2010, JE 1717, and testified at the 2011 evidentiary hearing on damages. 6/1/11 TR 344– 464. 6 Mr. Metcalfe is a Certified Public Accountant, a Certified Valuation Analyst, and President of The Kenrich Group LLC, a national consulting firm that specializes in the evaluation of economic damages claims. 7/2/13 Metcalfe Decl. ¶ 1. Mr. Metcalfe submitted Written Direct Testimony, JE 1877, and testified on cross examination at the evidentiary hearing on damages. 6/2/11 TR 765–862; 6/3/11 TR 1215–48. 7 Mr. Burzlaff “was responsible for overseeing and leading the DOE’s technical team activities for the finalization of equity at the Elk Hills field.” 12/6/13 Burzlaff Decl. ¶ 2. He is a registered Professional Petroleum Engineer in the State of California, a member of the Society of Petroleum Engineers, and a Managing Partner of a petroleum reservoir and geological engineering consulting company. 12/6/13 Burzlaff Decl. ¶¶ 3–4. Mr. Burzlaff also testified at the evidentiary hearing on damages. 12/6/13 Burzlaff Decl. ¶¶ 3–5. 6 A) and Michele M. Riley, CPA 8 (Riley Ex. B). On January 27, 2014, Chevron filed a Supplemental Reply, together with Supplemental Declarations from Norman D. Stone (Stone Ex. A) and Kenneth P. Metcalfe (Metcalfe Ex. B), and an “Appendix.” 9 Between February 24, 2014 and March 5, 2014, the court and parties also exchanged a series of email communications regarding clarifications to the parties’ supplemental briefing. On March 10, 2014, the court placed these emails on the record (“3/10/14 Notice”). 10 On March 12, 2014, the Government filed a Response to the March 10, 2014 Notice. 8 Ms. Riley is a forensic accountant and Managing Director of Invotex. 12/6/13 Riley Decl. ¶ 1. Mr. Musika, the founder of Invotex, testified at the evidentiary hearing on damages, but died in December 2012. 12/6/13 Riley Decl. ¶¶ 3–5; see also JE 1776 (Musika Expert Report); JE 1911 (6/1/11 Musika Decl.); 6/3/11 TR 1096–1215 (Musika cross examination). 9 This “Appendix” included fifty-two pages of excerpts from: the January 10, 2014 Deposition of Alan A. Burzlaff (Burzlaff Ex. 1); the January 22 Deposition of Michele M. Riley (Riley Ex. 2); and an October 30, 2013 Deposition of Norman Stone (Stone Ex. 3). 10 On February 24, 2014, the court sent the Government an email, requesting clarification of paragraph 23 of the December 6, 2013 Riley Declaration, i.e., for “[t]he summary of costs originally allocated to each zone by Chevron that Ms. Riley relied upon” and citations or other documentation to explain how Ms. Riley determined the amounts listed, therein, which the court granted. 3/10/14 Notice Ex. 1, 4, 6. On March 3, 2014, the Government filed a Response that included a March 3, 2014 Supplemental Declaration from Ms. Riley and an explanation regarding paragraph 23 of the 12/6/13 Riley Declaration. Ms. Riley also “provide[d] updated figures” to account for a series of corrections and adjustments that took place after the Government’s December 6, 2013 Supplemental Response. 3/3/14 Riley Suppl. Decl. ¶ 1 (listing five areas of updates or adjustments); see also id. ¶¶ 3, 11, 14, 17, 19, 21 (describing updates to the Government’s estimates in various cost categories). In the end, the proposed adjustments were, in the Government’s words, “minor.” 3/3/14 Gov’t Resp. 2. Nevertheless, in a March 5, 2014 email, Chevron objected to the Government’s March 3, 2014 Response as unresponsive, untimely, and providing new information and corrections after the supplemental briefing schedule. 3/10/14 Notice Ex. 7. In turn, the Government objected to Chevron’s March 5, 2014 email, “as an improper sur-reply.” 3/10/14 Notice Ex. 8. Of course, the Government’s March 3, 2014 Response well-exceeded the court’s inquiry, but it did not escape the court’s attention that Chevron’s January 27, 2014 “Appendix” also did not comply with the court’s instruction at a December 23, 2013 teleconference that Chevron limit its Supplemental Reply to 30 pages. On March 10, 2014, the court placed these emails in the record as a Notice. On April 30, 2014, the court filed a sealed version of this Memorandum Opinion and Final Order, requesting proposed redactions and edits from the parties. In response, the parties submitted a series of emails. The court has placed sealed copies of those emails in the record, at 7 On April 8, 2014, the court also issued an Order requesting that the parties calculate costs for one category of Chevron’s estimated costs, based on certain assumptions. On April 14, 2014, the parties filed a Joint Notice in response. II. DISCUSSION. A. The Relevant Burdens Of Proof Regarding Reliance Damages. To demonstrate entitlement to reliance damages, a plaintiff must proffer evidence that: “(1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.” Sys. Fuels, Inc. v. United States, 666 F.3d 1306, 1311 (Fed. Cir. 2012) (quoting Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005)). Although a plaintiff need not demonstrate the quantum of damages “with absolute exactness or mathematical precision,” a plaintiff may not recover speculative damages. See Ind. Mich. Power, 422 F.3d at 1373 (quoting San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1563 (Fed. Cir. 1997) (recognizing that “absolute exactness or mathematical precision” need not be obtained in determining damages (internal quotations omitted))). Once a plaintiff has established entitlement to reliance damages, the defendant may seek a reduction by “any loss the defendant can prove with reasonable certainty the plaintiff would have suffered had the contract been performed.” RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 38(2)(a) (2011); see also RESTATEMENT (SECOND) OF CONTRACTS § 349 (1981); Westfed Holdings, Inc. v. United States, 407 F.3d 1352, 1370 (Fed. Cir. 2005) (affirming a trial court’s finding that the Government did not meet its “burden to prove with reasonable certainty the amount of offsetting benefit retained by [plaintiff]”). Where the Government has elected to breach a contract, it bears the burden to prove that a plaintiff’s expenditures would not have been lost despite the breach. See Am. Capital Corp. v. FDIC, 472 F.3d 859, 869 (Fed. Cir. 2006); see also id. (“Doubts are generally resolved against the party in breach.” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 352 cmt. a (1981))). Docket No. 413. In those emails, the parties jointly proposed certain technical changes to the court’s damage calculations, as set forth in the March 3, 2014 Riley Supplemental Declaration. The court accepts these proposed changes; the updated calculations are reflected in Court Exhibit 14 and related references. The parties also jointly requested that the court modify the allocation for the External Non-Legal Professional and Labor category (Techbase invoices), to reflect the court’s allocation for the Company Payroll and Benefits category (Court Exhibit 10). The Government separately requested, without Chevron’s consent, that the court modify the court’s adjustment to avoid overlap in the Other Labor category, to also reflect the court’s allocation in the Company Payroll and Benefits category. Because the calculations for both of these categories are based on ratios in the Company Payroll and Benefits category, the court accepts both requested modifications. Therefore, these updated modifications are reflected in Court Exhibit 14 and related references. 8 Discretion lies with the trial court to determine proof of reliance damages. See Glendale Fed. Bank, FSB v. United States, 378 F.3d 1308, 1313 (Fed. Cir. 2004) (“Given the complexities of reconstructing the transactions and their consequences, absent a compelling showing of clear error, [the trial court’s findings] should be the end of the matter.”); see also Dairyland Power Coop. v. United States, 645 F.3d 1363, 1373 (Fed. Cir. 2011) (“As the primary finder of fact, part of the trial court’s role is to fashion a fair assignment of responsibility—even where . . . the solution departs from the specific relief requested by either party.”); Carolina Power & Light Co. v. United States, 573 F.3d 1271, 1276 (Fed. Cir. 2009) (“[The United States Court of Appeals for the Federal Circuit] affords the [United States] Court of Federal Claims wide discretion in assessing an appropriate quantum of damages.”). B. The Plaintiff’s Claim For Reliance Damages. In response to the court’s Order in Chevron III requiring that Chevron provide an itemized financial statement of court-identified costs, Chevron stated that it “generally did not record or track its equity finalization costs by zone. Equity finalization for all zones was viewed and treated as a single project.” 6/26/13 Stone Decl. ¶ 7; see also 7/2/13 Metcalfe Decl. ¶ 12 (“There are no specific cost centers or designations in the Chevron accounting system corresponding to the four categories of damages identified by the court.”); TR 1116 (6/3/11 Musika Testimony) (“[T]he [accounting] system is not maintained to provide us any guidance or assurance that an expense was incurred in connection with Elk Hills finalization process.”). Instead, Chevron proposed an alternative methodology, by estimating all of its equity finalization costs 11 and then allocating them to one of six major categories, as reflected in Court Exhibit 1. 12 11 “Th[e]se costs are based on accounting entries in Chevron’s (current and previous) computerized financial systems. . . . in accordance with Generally Accepted Accounting Principles (GAAP).” 6/28/13 Melton Decl. ¶ 3. 12 “A relatively small portion of the invoices . . . , totaling approximately $1.4 million, appear to be related, at least in part, to sale issues other than equity finalization.” 10/29/10 Stone Decl. ¶ 18. 9 Court Exhibit 1: The Plaintiff’s Initial Claim As Of October 2010, Presented By Cost Category. Category Cost Source: 10/29/10 Stone Decl. ¶ 7; 1. Company Payroll and Benefits $9,353,646 10/14/10 Melton Decl. ¶ 27 10/29/10 Stone Decl. ¶¶ 8–9; 2. Internal Technical Consultants $4,396,098 10/14/10 Melton Decl. ¶ 27 3. External Non-Legal 10/29/10 Stone Decl. ¶¶ 10–11; $7,979,411 Professional and Labor 10/14/10 Melton Decl. ¶ 27 10/29/10 Stone Decl. ¶¶ 12–13; 4. Legal Costs $14,397,767 10/14/10 Melton Decl. ¶ 27 $6,841,968 5. Miscellaneous Expenses and (includes 10/29/10 Stone Decl. ¶¶ 10−11, Letter of Credit $241,612.64 for 1998 15; 10/14/10 Melton Decl. ¶ 27 letter of credit) 6. Other: Office Space $800,000 10/29/10 Stone Decl. ¶ 14 Employee Business $775,000 10/29/10 Stone Decl. ¶ 14 Expenses Computer Services and $475,000 10/29/10 Stone Decl. ¶ 14 Equipment Office Services and $400,000 10/29/10 Stone Decl. ¶ 14 Equipment Other Equipment, Services, $250,000 10/29/10 Stone Decl. ¶ 14 and Rentals Communications $200,000 10/29/10 Stone Decl. ¶ 14 TOTAL $45,868,890 Next, Chevron allocated each of these cost categories to one or more of the Elk Hills Reserve zones or to an “Other” category. 6/26/13 Stone Decl. ¶¶ 8, 16; 10/29/10 Stone Decl. ¶¶ 9–19; 10/14/10 Melton Decl. ¶ 27. In other words, Chevron “estimated whether a portion of a cost item to be allocated to one of these zones was approximately 10, 25, 50, 75, 90 or 100 percent.” 6/26/13 Stone Decl. ¶ 14. As a result, Chevron’s claim presented by zone, as of July 2, 2013, roughly approximated the estimated percentage value of the zone, as reflected in Court Exhibit 2. 10 Court Exhibit 2: Estimated Value Of Zones And Plaintiff’s Revised Claim, Presented By Zone. Elk Hills Estimated Estimated Percentage of Chevron’s Revised Zone Value of Percentage Claimed Costs Claim Zone Value of Zone Allocated By Zone Stevens $18.4 bil. 73.15% 74.092% $21,365,377 Shallow Oil $8.5 bil. 24.95% 22.612% $6,520,418 Carneros $200 mil. 0.50% 2.734% $788,277 Dry Gas $200 mil. 1.30% 0.562% $162,102 TOTAL $27.3 bil. 99.90% 100.000% $28,836,174 Source: 7/2/13 Metcalfe Decl. ¶ 25; Chevron III, 110 Fed. Cl. at 760, 762, 763, 772. Chevron then further narrowed its claim based on the court’s rulings in Chevron III, 110 Fed. Cl. at 803−07. 13 As reflected in Court Exhibit 3, as of January 27, 2014, Chevron claimed that it is entitled to recover $22,581,920 for costs incurred for reliance damages and discovery sanctions. 14 13 Chevron reviewed the time period, personnel files, contractor and vendor documentation and invoices, including all trial exhibits, to estimate its costs by zone and categories per the court’s rulings in Chevron III. 7/2/13 Metcalfe Decl. ¶ 13. “External Non- Legal Professionals, Letter Of Credit & Miscellaneous Expenses, and Legal Costs . . . were generally supported by contractor and vendor invoices; Chevron Company Payroll And Benefits . . . were generally supported by personnel names and financial accounting records; Chevron Internal Technical Consultants . . . were supported by personnel names and work scope authorizations; and Employee Business Expenses, Office Space, Computer Services & Equipment, Other Equipment, Services, And Rentals, and Communications . . . were generally supported by various financial accounting records.” 7/2/13 Metcalfe Decl. ¶ 14. 14 As of the July 2, 2013 Supplemental Brief, Chevron claimed $22,621,484 in damages. 7/2/13 Metcalfe Decl. ¶ 22; 12/6/13 Riley Decl. ¶ 7; 1/27/14 Metcalfe Suppl. Decl. Ex. A. During the October 30, 2013 deposition of Mr. Stone, Chevron corrected its claim to $22,588,566. 12/6/13 Riley Decl. ¶ 7 (noting the amount as $22,588,567); 1/27/14 Metcalfe Suppl. Decl. Ex. A (identifying the 10/30/13 corrected amount as $22,588,566). Later, Chevron also made other corrections, “result[ing] in a net increase of $941.29 to Chevron’s claim.” Gov’t Suppl. Resp. 2; see also 12/6/13 Riley Decl. ¶ 7 n.2; 1/27/14 Metcalfe Suppl. Decl. Ex. A. (These corrections were not incorporated into the Government’s analysis of Chevron’s damages claim. 12/6/2013 Riley Decl. ¶ 7). In the January 27, 2014 Supplemental Reply, Chevron also made “a relatively small number of minor changes . . . to the precise amounts in some damages 11 Court Exhibit 3: Summary Of The Plaintiff’s Final Claim For Reliance Damages And Sanctions, Based On The Court’s Prior Rulings. Description Amount (1) Stevens Zone costs from 7/8/1996 to 6/17/2010 $21,120,708 (2) Carneros Zone costs from 5/19/1997 to 7/6/2000 $472,292 (3) FOIA request and related costs incurred for preparation of 1/7/2003 $84,437 FOIA request to 1/28/2004 (4) Sanctions for 42% of the costs incurred by Chevron for the $904,483 Government’s “Bad Faith” conduct during discovery from 2/16/2007 to 3/5/2009 TOTAL $22,581,920 Source: 1/27/14 Metcalfe Suppl. Decl. Ex. 1; Pl. Suppl. Br. 2. At the evidentiary damages hearing and in subsequent briefing, however, Chevron claimed entitlement, not only to the reliance damages and discovery sanctions identified in Chevron III, but also eight other cost categories that the court previously rejected, as explained in Court Exhibit 4. categories,” reducing the total claim by $39,564. 1/27/14 Metcalfe Suppl. Decl. ¶ 5, Ex. 1. Chevron asserts that the Government “was advised of all changes identified prior to the submission of [the Government’s December 6, 2013 R]esponse.” 1/27/14 Metcalfe Suppl. Decl. ¶ 5 n.1; see also id. Ex. 1 (listing corrections related to letters sent to the Government on October 13, 2013, November 7, 2013, and November 25, 2013). As a result, the costs claimed, $22,581,920, includes all of the corrections made by Chevron as of January 27, 2014. Pl. Suppl. Br. 2 (footnotes omitted) and Pl. Supp. Br. Ex. D at INTERIM-2; 1/27/2014 Metcalfe Suppl. Decl. Ex. 1. 12 Court Exhibit 4: Summary Of The Plaintiff’s Claim For Costs Previously Rejected By The Court. Cost Categories Amount (1) Letter of credit costs $7,907,204 15 (2) Costs before 7/8/1996 and after 6/17/2010 $3,075,646 16 (all categories of costs and related legal costs incurred, except letter of credit) 3) Other FOIA, pre-litigation, and United States Court of Federal $7,197,343 17 Claims costs from 1/29/2004 to 6/17/2010 (excluding 42% of CFC costs from 2/16/2007 to 3/5/2009) (4) Carneros Zone costs from 7/8/1996 to 5/18/1997 and after 7/6/2000 $313,040 18 15 The court excluded letter of credit costs, as a subset of financing costs for the Carneros and Stevens Zones. See Chevron III, 110 Fed. Cl. at 803 & n.43; id. at 804; see also England v. Contel Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004) (“The [no-interest] rule has been held not only to bar the recovery of interest on substantive claims against the government, but also interest costs incurred on money borrowed as a result of the government’s breach or delay in payment.” (citations omitted)). 16 This amount apparently includes: $2,852,363 and $223,283 in other costs for the Stevens Zone outside the court-permitted date range. 7/2/13 Metcalfe Decl. ¶ 24 n.15 (“These costs include (1) all categories of costs, except letter of credit, before 7/8/1996 and after 6/17/2010); (2) Carneros Zone costs from 7/8/1996 to 5/18/97 and after 7/6/2000; and (3) FOIA costs after 1/28/2004.”); see also 3/10/14 Notice Ex. 5 (2/28/14 email from Chevron’s counsel, clarifying the calculation of costs for this category); 1/27/14 Metcalfe Suppl. Decl. Ex. 1 (correcting the previous estimate of $211,894 for the Stevens Zone); Pl. Suppl. Br. Ex. D at INTERIM-2 (“Transactions Outside Date Ranges”); Pl. Suppl. Br. 2 n.3 (itemizing additional costs related to Chevron’s FOIA requests). 17 This category includes 58% of Chevron’s United States Court of Federal Claims costs incurred from February 16, 2007 to March 5, 2009. See Chevron III, 110 Fed. Cl. at 806–07; see also Pl. Suppl. Br. 2. In addition, Chevron incurred $21,480 in FOIA-related costs after the court’s January 28, 2004 cutoff date. See Chevron III, 110 Fed. Cl. at 804; see also Pl. Suppl. Br. 2 n.1; 1/27/14 Metcalfe Suppl. Decl. Ex. 1. 18 The court awarded Chevron’s costs to participate in the Carneros Zone equity finalization between May 18, 1997 and July 6, 2000. See Chevron III, 110 Fed. Cl. at 803. After the OHA issued a final decision regarding the Carneros Zone, Chevron claims that it incurred an additional $9,495 “in costs.” Pl. Suppl. Br. 2 n.4. Chevron also claims other costs were incurred to participate in the Carneros Zone, prior to May 19, 1997. Pl. Suppl. Br. 2. 13 (5) Dry Gas Zone costs from 7/8/1996 $170,744 19 (6) Shallow Oil Zone costs from 7/8/1996 $6,545,823 19 (7) Post-trial mediation and settlement costs until 6/17/2010 $235,363 20 (8) Other costs from 7/8/1996 to 6/17/2010 $2,420,986 (including sale-related costs) TOTAL $27,866,149 Source: 1/27/14 Metcalfe Suppl. Decl. Ex. 1; Pl. Suppl. Br. 2 & Ex. [email protected]. C. The Government’s Objections To Plaintiff’s Claim For Reliance Damages. 1. As To The Allocation Of Costs Claimed. a. Summary Of The Government’s Argument. The Government objected to Chevron’s allocation of costs, as described in Mr. Stone’s June 26, 2013 Declaration, as “unsupported,” because Mr. Stone relied on a “speculative assignment of costs to the Elk Hills zones.” Gov’t Suppl. Resp. 1–2; see also JE 1911 ¶ 12 (6/1/11 Musika Decl.) (“The key issue involving Chevron’s damage claim is whether the Chevron expense was incurred in connection with the Elk Hills Equity Finalization Process. . . . Chevron’s ordinary course accounting systems and controls do not provide stand- alone support that the Chevron claim costs were incurred in connection with the Elk Hills Equity Finalization Process.”). Moreover, the Government contended that Chevron’s allocation was biased towards the Stevens Zone. 12/6/13 Burzlaff Decl. ¶¶ 2–4, 64–65. During the equity 19 The court previously determined that “DOE repeatedly and materially breached the May 19, 1997 Equity Process Agreement as to the Carneros Zone and the Stevens Zone. . . . [and] the July 8, 1996 contract with the Equity IPE, [as supplemented] . . . as to the Stevens Zone.” See Chevron III, 110 Fed. Cl. at 803. The court, however, made no such finding as to the Dry Gas or Shallow Oil Zones. Moreover, Chevron is not entitled to recover costs prior to DOE’s breach of the July 8, 1996 Equity IPE Protocol, as supplemented. See Chevron III, 110 Fed. Cl. at 804. Similarly, the court did not award costs incurred after Chevron filed the final OHA appeal brief, as to the Stevens Zone, on June 17, 2010. Id. at 803–04. 20 As previously explained, the court awarded Chevron only specific litigation costs, related to Chevron’s FOIA request for DOE’s breach of the convenient of good faith and fair dealing by continuing to breach the May 19, 1997 Equity Process Agreement, after providing Chevron assurances that DOE ceased its prior ex parte communications. In addition, the court awarded Chevron 42% of its litigation costs that were incurred as a result of the Government’s “bad faith” conduct in connection with unwarranted privilege assertions during discovery. See Chevron III, 110 Fed. Cl. at 804, 806–07. As such, Chevron is not entitled to other litigation, mediation, settlement or “other” costs. 14 finalization, the DOE (unlike Chevron) contemporaneously tracked its costs by zone. 12/6/13 Burzlaff Decl. ¶ 12. Through 2010, DOE spent 29.0% of DOE’s aggregate equity finalization costs on the Stevens Zone. 12/6/13 Burzlaff Decl. ¶ 13. The IPE spent 34.0% of its aggregate equity finalization costs on the Stevens Zone. 12/6/13 Burzlaff Decl. ¶ 14. On the other hand, Chevron claims that 72.1% of its total equity finalization costs were incurred for the Stevens Zone. 21 12/6/13 Burzlaff Decl. ¶ 16 (citing Suppl. Br. Ex. D at INTERIM-2); see also id. ¶ 17 (“A difference of this significance [in the percentage allocations] . . . is unexpected, because Chevron and DOE were engaged in essentially the same phases of work throughout the equity finalization process, and the IPE followed essentially the same pattern of work.”). The Government explained that the disparity between DOE’s and Chevron’s costs by zone, is in part the result of Chevron’s reliance on its declarants’ “memories of the equity finalization process” and allocations of costs by zone “many years after-the-fact.” 12/6/13 Burzlaff Decl. ¶¶ 18–19; see also 12/6/13 Riley Decl. ¶ 12 (“Mr. Stone necessarily relied, in large part, upon his memory and recollections to do much of the work of allocating the expenses to different zones. . . . [but] was often unable to recall the specifics of the allocations he had done in June of 2013[.]”). Chevron’s comparison to the relative equity value of each zone also “is misplaced[,] because the equity value of each zone is not a reliable metric regarding the amount a party spent in the effort to finalize equity for each zone.” 12/6/13 Burzlaff Decl. ¶ 57 (citing 7/2/13 Metcalfe Decl. ¶ 26 n.17 (“Although the Carneros Zone had less total value than the Dry Gas Zone, a legal issue in the Carneros Zone was worth several equity points and more than $10 million[.]”); 10/30/13 Stone Dep. at 157, 266 (testifying that the parties spent more on the Shallow Oil Zone than the Stevens Zone, because equity finalization for the Shallow Oil Zone was complex, although it was not finished, until after the liability trial)). Other metrics also evidence Chevron’s “bias towards allocating costs to the Stevens Zone.” 12/6/13 Burzlaff Decl. ¶ 64. For example, as Court Exhibit 5 shows, the Government estimated the time spent by DOE to prepare and present equity reports for the IPE indicate that the Stevens Zone took only 26% of total time expended. 21 The Government’s comparison of Chevron’s allocation by zone to that of the DOE and the IPE omits Chevron’s legal costs “for the sake of consistency,” because DOE’s estimate of costs and those of the IPE do not include legal costs. 12/6/13 Burzlaff Decl. ¶ 16 n.4. If Chevron’s legal costs were included, however, the percentage allocated to the Stevens Zone equity would increase from 72.1% to 74.1%. 12/6/13 Burzlaff Decl. ¶ 16 n.4. 15 Court Exhibit 5: The Government’s Estimate Of Time That DOE Spent To Prepare And Present Equity Reports For The Independent Petroleum Engineer, By Zone. Zone Time Spent Percentage Of Time Period Total Time Spent Stevens Zone 12 months 26% July 1996 to June 1997 Shallow Oil Zone 30 months 65% November 1997 to April 2000 Dry Gas and 4 months 9% July 1996 to October 1996 Carneros Zones TOTAL 46 months 100% Source: 12/6/13 Burzlaff Decl. ¶ 61. Similarly, the time that the IPE spent to prepare the Final Recommendation for each zone suggests that the costs that Chevron allocated to the Stevens Zone should be less than 50% of the total, as Court Exhibit 6 indicates. Court Exhibit 6: The Government’s Estimate Of Time Spent By The Independent Petroleum Engineer To Prepare Final Recommendations, By Zone. Zone Time Spent Percentage of Time Span Total Time Spent Stevens Zone 34 months 31% June 1997 to March 2000 Shallow Oil Zone 69 months 63% April 2000 to December 2005 (not completed) Dry Gas and 6 months 6% October 1996 to March 1997 Carneros Zones TOTAL 109 months 100% Source: 12/6/13 Burzlaff Decl. ¶ 62. b. Summary Of The Plaintiff’s Response. Chevron responded that the Government’s proposed adjustments “contravene[] this [c]ourt’s opinion” ordering Chevron “to provide the court with an itemized financial statement of the aforementioned costs, verified by a certified public accountant.” Pl. Suppl. Reply 1 (quoting Chevron III, 110 Fed. Cl. at 805). Instead, the Government now seeks to “unilaterally reopen the record, reargue issues that were fully litigated in the damages trial, and introduce new evidence 16 and arguments.” Pl. Suppl. Reply 2. By reviewing “thousands of specific Chevron costs,” Mr. Stone estimated allocations by zone using supporting evidence and personal knowledge. Pl. Suppl. Reply 1–2. Mr. Stone’s process followed “standard practices” and was a “reasonable” and “thorough” means to quantify categories of costs that were “inherently less than absolutely certain given the nature of the task.” Pl. Suppl. Reply 2. In any event, the Government “does not challenge the overall reasonableness of the process. . . . [n]or . . . Mr. Metcalfe’s certification of the amounts[.]” Pl. Suppl. Reply 2; see also id. 5 (pointing out that Ms. Riley does not dispute the soundness of Mr. Metcalfe’s methodology). Chevron further complains that the Government deductions previously were rejected by the court. Pl. Suppl. Reply 3 (“By not ordering Chevron to make the deductions, the [c]ourt implicitly rejected the Government’s position, and the Government should not be permitted to relitigate those issues now.”) (citing Smith Int’l, Inc. v. Hughes Tool Co., 759 F.2d 1572, 1578 (Fed. Cir. 1985) (holding that law of the case applied to the implied rejection of challenger’s arguments to patent validity); see also Aydin Corp. (W.) v. Widnall, No. 96-1267, 121 F.3d 726, 1997 WL 413329, at *3 (Fed. Cir. July 24, 1997) (applying the law of the case to issues “explicitly or implicitly decided”)). As for the Government’s comparisons of Chevron and DOE’s cost allocations to the Stevens and Shallow Oil Zones, these comparisons are irrelevant “since nothing required the parties to devote the same resources to the same parts of the process, and they did not do so. . . The IPE’s costs are also an inappropriate benchmark[,] because the IPE also did not need to devote the same resources as Chevron[.]” Pl. Suppl. Reply 6; see also 1/27/14 Metcalfe Suppl. Decl. ¶ 14 (“The DOE and IPE costs relied upon by the Government correspond to only a portion of Chevron’s equity finalization costs.”). 22 Nor can the Government’s experts’ speculation, according to Chevron, be considered to be superior to Mr. Stone’s estimates, as Mr. Stone’s estimates were based on his personal knowledge and Chevron’s business records. Pl. Suppl. Reply 5–6 (citing 1/10/14 Burzlaff Dep. 43, 45–46, 47, 51–52 (discussing Mr. Burzlaff’s lack of contemporary personal experience with Chevron’s equity finalization); 1/22/14 Riley Dep. 93, 98–99, 100, 160–61 (same)); see also 1/27/14 Metcalfe Suppl. Decl. ¶ 11 (“[G]iven his project management position and his contemporaneous knowledge of Chevron’s equity finalization process, only Mr. Stone, not the Government or its representatives, is in a position to know how these employees and consultants participated in the internal work of Chevron’s equity finalization team.”). 22 Chevron noted, for example, that “the amount that DOE paid to Mr. Burzlaff for [Shallow Oil Zone] work was more than Chevron’s total non-legal costs . . . for all four zones.” Pl. Suppl. Reply 6 (citing 12/6/13 Burzlaff Decl. Ex. G). 17 c. The Court’s Analysis And Resolution As To The Allocation Of Specific Costs. As a threshold matter, although the court rejected the Government’s damage theory, it did not preclude the Government from proffering evidence to rebut Chevron’s claim. See Chevron III, 110 Fed. Cl. at 805 (“The relevant legal inquiry . . . is not what Chevron would have spent in a non-breach world, but what Chevron would have lost [because of the Government’s conduct].” (emphasis in original)). This is so, because the purpose of reliance damages is to compensate an aggrieved party for “uncompensated expenditures made in reasonable reliance on the contract, including expenditures made in preparation for performance or in performance.” RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 38(2)(a) (2011); see also RESTATEMENT (SECOND) OF CONTRACTS § 349 (1981). As such, Chevron’s contention that the Government’s proposed adjustments “contravene[] this [c]ourt’s opinion,” (Pl. Suppl. Reply 1), is misplaced, particularly since none of Chevron’s initial damage scenarios “conform[ed] to the zones, precise periods, and specified costs for which the court has determined that Chevron is entitled to damages.” Chevron III, 110 Fed. Cl. at 805. Of more import, is the fact that Chevron’s post- liability allocation clearly appears to have been influenced by the court’s decision to award costs for only two of the four Elk Hills zones. Therefore, to determine the reliance damages to which Chevron is entitled, the court first examined Chevron’s claim in each of the six cost categories where the Government proposed adjustments, as Court Exhibit 7 shows. 18 Court Exhibit 7: Summary Of The Government’s Proposed Allocation Adjustments, By Zone. Stevens Zone Carneros Zone Gov’t Gov’t Chevron’s Proposed Chevron’s Proposed Cost 10/30/13 Adjustments 10/30/13 Adjustments Category Claim per Burzlaff Subtotal Claim per Burzlaff Subtotal Company $7,986,729 ($3,582,909) $4,403,820 $0 $23,838 $23,838 Payroll & Benefits Other Labor $2,272,599 ($893,144) $1,379,455 $0 $6,350 $6,350 Related External Non- $2,935,430 ($353,733) $2,581,697 $28,522 $6,830 $35,352 Legal Professional and Labor In-House $3,747,712 ($789,451) $2,958,261 $0 $0 $0 Technical Consultants Miscellaneous $57,674 ($2,827) $54,847 $185 $1 $186 Legal Costs $4,121,021 ($126,420) $3,994,601 $443,585 $0 $443,585 TOTAL $21,121,165 ($5,748,484) $15,372,681 $472,292 $37,019 $509,311 Source: 12/6/13 Riley Decl. Exs. 3.1, 3.3; 12/6/13 Burzlaff Decl. ¶¶ 20, 33–34, 42, 49, 54–55 (summarizing the Government’s proposed adjustments by cost category). i. Company Payroll & Benefits. Chevron allocated almost all of its costs for the Company Payroll and Benefits category to the Stevens Zone, as Court Exhibit 8 shows: 19 Court Exhibit 8: The Plaintiff’s Proposed Allocation Of Employee Payroll And Benefits, By Zone. Employee Stevens Carneros Dry Gas Shallow Oil Other 23 [...] $[...] - - - - [...] $[...] - - - - [...] $[...] - - - - [...] $[...] - - - - [...] $[...] - - - - Other Indirect Labor $1,580,949 - - $147,138 $140,890 Unchallenged Allocation 24 $1,473,491 - - - - Total $3,054,440 - - $147,138 $140,890 Source: 12/6/13 Riley Decl. ¶ 17, Exs. 3.3, 3.3.1–3.3.6, 4.3, 4.4; INTERIM 75–82, 95–98, 103–106. To recap, Chevron first allocated 100% of Mark Wilson’s 25 payroll and benefits between January 1998 and February 1999 to the Stevens Zone, despite previously indicating that only 50% of Mr. Wilson’s time was spent on equity finalization for the Elk Hills field. 10/30/13 Stone Dep. 249; see also 12/6/13 Riley Decl. Ex. 3.3.3 (listing payroll and benefits allocations by month). Therefore, the Government proposed that Mr. Wilson’s 1998 payroll and benefits should be allocated 50% to the Stevens Zone and 50% to non-equity finalization activities. 12/6/13 Burzlaff Decl. ¶ 23 (citing JE 1764). Second, Chevron allocated 100% of Fernando Cardenosa’s 26 payroll and benefits between July 1996 and December 1997 to the Stevens Zone, but proffered virtually no evidence of his role in equity finalization. 12/6/13 Burzlaff Decl. ¶ 24; see also 12/6/13 Riley Decl. Ex. 3.3.4 (listing payroll and benefits allocations by month). Even Mr. Stone was unable to recall 23 “Other” represents work not related to equity finalization for a particular zone. 24 The Government recommended adjustments for five employees and “Other Indirect Labor,” totaling $6,513,238. 12/6/13 Riley Ex. 3.3. Chevron’s total claim for Payroll & Benefits is $7,986,729. Pl. Suppl. Resp. Ex. [email protected]. The “Unchallenged Allocation” represents the difference. 25 Mark Wilson was the Senior [email protected]. JE 1755-006. 26 Fernando Cardenosa was not listed in the table identifying relevant Chevron employees. JE 1755-006. 20 Mr. Cardenosa’s role. The evidence is that Mr. Cardenosa attended one presentation of the IPE about the Dry Gas Zone. 12/6/13 Burzlaff Decl. ¶ 24 (citing 10/30/13 Stone Dep. 255 (“All I can tell you is [Mr. Cardenosa] wasn’t there very long.”)); 12/6/13 Burzlaff Decl. Ex. J (Attendees [email protected]. 21, 1996 Dry Gas Zone Presentation). Therefore, the Government recommended that Mr. Cardenosa’s payroll and benefits for 1996 and 1997 be “comparable to Mark Wilson’s time,” i.e. allocated 50% to the Stevens Zone and 50% to non-equity finalization activities. 12/6/13 Burzlaff Decl. ¶ 24. Third, Chevron allocated 100% of Kevin Maneffa’s 27 payroll and benefits between June 1998 and February 1999 to the Stevens Zone, although he was “a primary point of contact for the [Shallow Oil Zone].” 12/6/13 Burzlaff Decl. ¶ 25 (citing JE 1660 (7/15/97 Project Work Order); JE 1661 (8/1/97 Project Work Order)); 12/6/13 Burzlaff Decl. Ex. L at 1 (11/6/97 Attendees List at Shallow Oil Zone Meeting); see also 12/6/13 Riley Decl. Ex. 3.3.5 (listing monthly payroll and benefits allocations). Therefore, the Government recommended that Mr. Manefffa’s allocation be the same as Pat Alexander, another Chevron employee who was a primary contact for the Shallow Oil Zone. 12/6/13 Burzlaff Decl. ¶ 25 n.7 (citing JE 1660 (7/15/97 Project Work Order GO-113-4) (listing Kevin Maneffa and Pat Alexander as primary Shallow Oil Zone contacts); JE 1661 (8/1/1997 Project Work Order GO-113-4) (same)). Fourth, Chevron allocated 100% of Norman Stone’s 28 payroll and benefits between July 1996 and June 2010 to the Stevens Zone, even though he worked on all four zones over the entire period. 12/6/13 Burzlaff Decl. ¶¶ 27–28, 31 (citing 10/30/13 Stone Dep. 246); see also 12/6/13 Riley Decl. Ex. 3.3.1 (listing monthly payroll and benefits); 12/6/13 Burzlaff Decl. ¶ 28 (“Mr. Stone . . . spent significant time on the equity finalization for the other three zones, especially the [Shallow Oil Zone].”); 12/6/13 Burzlaff Decl. Ex. J (minutes of Dry Gas and Carneros Zone equity presentations); 12/6/13 Burzlaff Decl. Ex. L (minutes of Shallow Oil Zone equity meetings); 12/6/13 Burzlaff Decl. Ex. M (conference call log of participants to the Shallow Oil Zone); 12/6/13 Burzlaff Decl. Ex. N (showing Mr. Holtzclaw’s approval on maps for the Shallow Oil Zone). Mr. Stone, however, received “sizeable bonuses” for the total project, but allocated 100% to the Stevens Zone. 12/6/13 Burzlaff Decl. ¶ 29 (citing 10/30/13 Stone Dep. 289). In addition, the Shallow Oil Zone was more important than the Stevens Zone, because of the large difference in the respective equity positions of DOE and Chevron. See 12/6/13 Burzlaff Decl. ¶ 31 (“That difference was 12.7 equity percentage points or $760 billion given that each equity point in the [Shallow Oil Zone] was worth about $60 million (not including interest). JE 1316 and JE 1084.”). Since Mr. Burzlaff “was the DOE counterpart to Mr. Stone,” the Government contends that Mr. Burzlaff’s well-documented allocation of labor by zone “should be used to more accurately allocate the time of Mr. Stone and Mr. Holtzclaw.” 12/6/13 Burzlaff Decl. ¶ 32. Fifth, Chevron allocated 100% of Mark Holtzclaw’s 29 payroll and benefits between July 1996 and June 2010 to the Stevens Zone, although he worked on all four zones. 12/6/13 Burzlaff 27 Kevin Maneffa was a Chevron Senior Petroleum Engineer. JE 1755-006. 28 Norman Stone was the Equity Team [email protected]. JE 1755-006. 29 Mark Holtzclaw was a Chevron Senior Staff Geologist. JE 1755-006. 21 Decl. ¶ 27; see also 12/6/13 Riley Decl. Ex. 3.3.2 (listing monthly payroll and benefits allocations). Mr. Holtzclaw attended almost all the meetings that Mr. Stone attended for all four zones. 12/6/13 Burzlaff Decl. ¶ 28 (citing 10/30/13 Stone Dep. at 262 (“I will speak for Mark Holtzclaw. He went nearly to all these things [meetings for the equity zones] with me.”)). Mr. Stone also testified that he allocated all of his and Mr. Holtzclaw’s payroll and benefits to the Stevens Zone, because they both worked more than 40 hours a week on the Stevens Zone, out of a typical 80 to 100 hour workweek. 12/6/13 Burzlaff Decl. ¶ 29 (citing 10/30/13 Stone Dep. at 259–64). In sum, the Government proposed the following allocation of payroll and benefits, by zone, as shown in Court Exhibit 9. Court Exhibit 9: The Government’s Proposed Allocation Of Employee Payroll And Benefits, By Zone. Employee Stevens Carneros Dry Gas Shallow Oil Other [...] [...] [...] [...] [...] Other Indirect $ 793,139 $ 3,331 $ 529 $ 911,260 $ 160,719 Labor Unchallenged $ 1,473,491 $ 0 $ 0 $ 0 $ 0 Allocation Total $2,266,630 $3,331 $ 529 $911,260 $160,719 Source: 12/6/13 Riley Decl. ¶ 17, Exs. 3.3, 3.3.1–3.3.6, 4.3, 4.4. In sum, the Government argued that Chevron’s claim should be reduced by $3,559,071 from its October 30, 2013 claim of $7,986,729 for the Payroll & Benefits Category. 30 12/6/13 Burzlaff Decl. ¶ 33; 12/6/13 Riley Decl. ¶ 17 and Ex. 3. The Government’s proposed adjustment represents a $3,582,909 reduction from Chevron’s allocation of $7,986,729 to the Stevens Zone and a $23,838 addition to Chevron’s allocation of $0 to the Carneros Zone in the Payroll & 30 Chevron’s 10/30/13 claim ($7,986,729) minus the Government’s allocation to the Steven’s Zone ($4,403,820), minus the Government’s allocation to the Carneros Zone ($23,838), equals a total reduction of $3,559,071. 22 Benefits Category. Compare Court Exhibit 8 (The Plaintiff’s Proposed Allocation Of Employee Payroll And Benefits, By Zone.), with Court Exhibit 9 (The Government’s Proposed Allocation Of Employee Payroll And Benefits, By Zone.). Chevron replied that, although Mr. Stone and Mr. Holtzclaw worked on other zones, “they averaged more than 40 hours per week on the Stevens Zone alone, and they would have been assigned full-time to the equity finalization effort even if [the Stevens Zone] had been the only zone to undergo equity finalization.” Pl. Suppl. Reply 7 (citing 1/27/14 Stone Suppl. Decl. ¶¶ 8–9). “[T]he [court’s May, 2013 Memorandum Opinion] does not authorize a deduction based on the fact that these employees did some work—at no incremental cost to Chevron—on other zones.” Pl. Suppl. Reply 8. 31 Moreover, any benefit to Chevron for work performed by the Government on other zones was “nullified by the Government’s misconduct.” Pl. Suppl. Reply 7 n.5; see also 1/27/14 Stone Suppl. Decl. ¶ 11 (“[T]he work that Mr. Holtzclaw and I performed on the Dry Gas Zone, Carneros Zone, and Shallow Oil Zone ultimately did not benefit Chevron due to the Government’s misconduct. Because of that misconduct, the work on equity finalization was nullified, and the process never was completed.”). In addition, because of the delay in the Shallow Oil Zone equity finalization, Mr. Maneffa worked only on the Stevens Zone before leaving the equity finalization team. 1/27/14 Stone Suppl. Decl. ¶ 19. Next, Chevron argued that, because “the Stevens Zone’s value was nearly triple the value of the other three zones combined,” it was logical to allocate most of the resources to that zone’s equity finalization. 1/27/14 Stone Suppl. Decl. ¶ 8. In addition, the work of Mr. Stone and Mr. Holtzclaw on other zones “was over and above [their] full-time work on the Stevens Zone” and these two employees “would have been assigned to equity finalization for the Stevens Zone alone on a full-time basis, even if [they] had spent no time on the other zones.” 1/27/14 Stone Suppl. Decl. ¶ 9 (emphasis added); see also 1/27/14 Metcalfe Suppl. Decl. ¶ 8 (“Chevron’s costs would have been the same[,] even if equity finalization had been undertaken only for the Stevens Zone.”). As Mr. Metcalf advised: In calculating a project’s costs, it is standard practice to include all of the costs needed to undertake the project. Where the same costs also contribute to a separate project, only the incremental costs (if any) attributable to the separate project should be excluded, while including all costs that would have been incurred if the separate project had not been undertaken. 1/27/14 Metcalfe Suppl. Decl. ¶ 9. Therefore, Chevron contends that, even if some employee time should be allocated by zone, Mr. Burzlaff’s proposed methodology was “entirely baseless.” 1/27/14 Stone Suppl. Decl. ¶ 14. Mr. Stone’s role “went far beyond” that of Mr. Burzlaff, who was an outside contractor supervised by DOE. 1/27/14 Stone Suppl. Decl. ¶ 15. In contrast, Mr. Stone “was required to supervise at all times the work in the Stevens and other zones.” 1/27/14 Stone Suppl. Decl. ¶ 15. In fact, at Mr. Stone’s October 30, 2013 deposition, the Government’s counsel undercut Mr. 31 Mr. Stone and Mr. Holtzclaw also worked on the Shallow Oil Zone and the issues that arose there also “overlapped” the Stevens Zone. 1/27/14 Stone Suppl. Decl. ¶ 13. 23 Burzlaff’s proposed allocation of 44% to the Stevens and Carneros Zones, by suggesting that a more accurate allocation must be based on percentages of costs estimated by Mr. Metcalfe, i.e., allocating 77% of Chevron’s costs to the Stevens and Carneros Zones. 1/27/14 Stone Suppl. Decl. ¶ 16 (citing 10/30/13 Stone Dep. 281–82; see also 7/2/13 Metcalfe Decl. ¶ 25 (attributing 74.1% of costs to the Stevens Zone and 2.7% to the Carneros Zone). Chevron admitted that “Mr. Wilson spent 50 percent of his time on equity finalization and 50 percent of his time on unrelated projects,” but insisted that 100% of the costs of his employment charged to equity finalization in Chevron’s accounting system should be allocated to the Stevens Zone. 1/27/14 Stone Suppl. Decl. ¶ 19. 32 Chevron also argued that even though Mr. Cardenosa attended the first presentation to the IPE concerning the Dry Gas Zone, that fact is not relevant to the allocation of his time. 1/27/14 Stone Suppl. Decl. ¶ 19. Furthermore, Chevron allocated no payroll costs to the Carneros Zone, because equity finalization for that zone “was handled by outside contractors and lawyers.” 1/27/14 Stone Suppl. Decl. ¶ 19 n.2. The United States Court of Appeals for the Federal Circuit has considered salaried employees, working on multiple projects, as an indirect overhead cost. See Charles G. Williams Constr., Inc. v. White, 326 F.3d 1376, 1379 (Fed. Cir. 2003) (“Indirect costs are usually those costs that are incurred despite . . . inactivity on a project, such as home office overhead including accounting and payroll services, general insurance, salaries of upper level management, heat, electricity, taxes, depreciation. A contractor recovers its indirect costs by allocating them on a proportionate basis among all of its contracts.” (quoting Charles G. Williams Constr., Inc. v. White, 271 F.3d 1055, 1057–58 (Fed. Cir. 2001)). But, that does not mean such employee costs must be allocated equally among those projects. For this reason, our appellate court has endorsed using an internal accounting system to establish “overhead costs with reasonable certainty,” to allocate costs to particular projects. See Kan. Gas & Elec. Co. v. United States, 685 F.3d 1361, 1369–71 (Fed. Cir. 2012) (“This court upholds an internal accounting system as showing overhead costs with reasonable certainty when it allocates a portion of the expenses to a particular project using codes[.]”) (citing Carolina Power & Light v. United States, 573 F.3d 1271, 1276–77 (Fed. Cir. 2009) (“[Plaintiff’s] internal accounting system uses specific codes to allocate . . . indirect overhead expenses to particular projects, including the breach-related projects.”))); see also Energy Nw. v. United States, 641 F.3d 1300, 1309 (Fed. Cir. 2011) (agreeing that “the award of damages for overhead costs is a factual question of the damages amount, not a legal question of causation” and affirming a damage award for overhead costs supported by “generally accepted accounting practices”); Sys. Fuels, 666 F.3d at 1312–13 (accepting use of generally accepted accounting procedures, mandated by the Federal Energy Regulatory Commission, to allocate overhead costs to specific projects). 32 During his deposition, Mr. Stone suggested “that 50 percent of [Mr. Wilson’s] time was not charged to Elk Hills equity[.]” 10/30/13 Stone Dep. at 249. In his supplemental declaration, Mr. Stone stated that “At my deposition, the Government’s counsel represented to me the amounts for Mr. Wilson that were included in Chevron’s damages claim. As I testified, those amounts seem consistent with inclusion of 50 percent of Mr. Wilson’s payroll and benefits.” 1/27/14 Stone Suppl. Decl. ¶ 19. 24 Since Chevron previously represented that Mr. Wilson spent only 50% of his time on equity finalization (JE 1764), the court has determined that 50% of Mr. Wilson’s payroll and benefits should be deducted from Chevron’s damages claim. 33 In addition, because the evidence presented by Chevron indicated that Mr. Cardenosa and Mr. Maneffa did de minimis work on the Stevens and Carneros Zones, the court has determined that all of those costs may not be claimed by Chevron. Of course, Mr. Stone and Mr. Holtzclaw devoted many hours to finalize equity on the Stevens Zone, but the fact remains that, Mr. Stone and Mr. Holtzclaw were salaried employees that worked on equity finalization for all zones, as reflected in Mr. Stone’s overall performance bonus. 10/30/13 Stone Dep. at 260 (“At the time we [Mr. Stone and Mr. Holtzclaw] were putting in 80 to 100 hours a week. And I guarantee that we both worked 40 hours a week plus on the Stevens, plus we did, in addition to that, other zones. And that’s the way equity always was.”). The court is aware that Mr. Stone and Mr. Holtzclaw’s responsibilities were different than those of Mr. Burzlaff, despite the Government’s statement that he was “the DOE counterpart to Mr. Stone.” 12/6/13 Burzlaff Decl. ¶ 32. In the court’s judgment, Mr. Metcalfe’s approach was an accurate and reasonable estimate of Chevron’s total costs by zone, because it considered different costs factors and is “generally similar to the relative percentage value of each zone.” 7/2/13 Metcalfe Decl. ¶¶ 25−26 (“The results of this comparison provide a level of independent confirmation that the relative costs . . . are reasonable, as it is reasonable that Chevron would have utilized its resources on the four zones generally consistent with the expected values of each of these zones.”). Therefore, the court has determined that 23.2% of the salary and benefits for Mr. Stone and Mr. Holtzclaw should be deducted from Chevron’s damages claim. The Government also proposed an “Other Indirect Labor” reduction of $784,479 from Chevron’s 10/30/13 claim. 12/6/13 Riley Decl. Ex. 3.3, 3.3.6. Although the Government indicated that these “[a]djusted allocations [are] based on the [12/6/13] Declaration of Alan A. Burzlaff” (12/6/13 Riley Decl. Ex. 3.3.6 n.2), Mr. Burzlaff never explained his methodology to justify this reduction. 12/6/13 Burzlaff Decl. ¶ 33 (describing proposed allocations for specific employees, but not Other Indirect Labor). 34 For this reason, the court has determined that $6,582,634 should be allocated to the Stevens Zone and $126,690 to the Carneros Zone for payroll and benefits costs, as reflected in Court Exhibit 10. 33 Mr. Stone appears to agree with the Government’s allocation of Mr. Wilson’s payroll and benefits. 1/27/14 Stone Suppl. Decl. ¶ 19 (stating that the amounts represented by the Government [email protected]. Stone’s 10/30/13 deposition “seem consistent with inclusion of 50 percent of Mr. Wilson’s payroll and benefits”). 34 The Government’s proposed reductions for the “Other” category are distinct from “Other Indirect Labor.” 12/6/13 Burzlaff Decl. ¶ 34 (describing the calculation for the “Other” category). 25 Court Exhibit 10: The Court’s Resolution Of Allocation Of Employee Payroll And Benefits, By Zone. Employee Stevens Zone Carneros Zone [...] $[...] $[...] [...] $[...] $[...] [...] $[...] $[...] [...] $[...] $[...] [...] $[...] $[...] Other Indirect Labor $1,580,949 $0 Unchallenged Allocation $1,473,491 $0 Total $3,054,440 $ 0 ii. Other Labor Related Costs. As of January 27, 2014, Chevron allocated $2,272,529 35 to “Other” labor related costs. 1/27/14 Metcalfe Decl. Ex. 1. This category includes costs related to employee labor, including “Employee Business Expenses; Office Space; Computer Services & Equipment; Office Services & Equipment; Other Equipment, Services, And Rentals; and Communications.” 7/2/13 Metcalfe Decl. ¶ 20. Costs allocated to this category used only the proportion of Payroll and Benefits costs incurred for the respective zone by month. 7/2/13 Metcalfe Decl. ¶ 20. The Government and Chevron agree that Mr. Metcalfe’s allocation method for the “Other” category is reasonable. 7/2/13 Metcalfe Decl. ¶ 20; 12/6/13 Riley Decl. ¶ 17. On April 8, 2014, the parties were asked to provide an estimated allocation of costs for the “Other” category, based on Mr. Metcalfe’s methodology, adjusted to incorporate the Payroll and Benefits allocations reflected in Court Exhibit 10. On April 14, 2014, the parties advised the court that of the $2,272,529 Chevron claimed in the “Other” category, both parties estimated that $1,930,565 should be allocated to the Stevens Zone if the Payroll and Benefits allocations in Court Exhibit 10 are used. 4/14/14 Joint Notice 1. In addition, Chevron proposed allocating $28,614 to the Carneros Zone. 4/14/14 Joint Notice 1. The Government, however, argued that the court instead should allocate $7,427 to the Carneros Zone and criticized Chevron for failing to account for the date limitations imposed by the court, i.e., the exclusion of amounts incurred prior to May 19, 1997 or after July 6, 2000. 4/14/14 Joint Notice 1, 2 n.*. Chevron responded that “most of the Carneros payroll and ‘other’ costs were 35 As of October 30, 2013, Chevron had claimed $2,272,599 for costs for the “Other” category. 1/27/14 Metcalfe Decl. Ex. 1; 12/6/13 Riley Decl. ¶ 17 and Ex. 3. 26 incurred after the OHA appeal was decided and work on the Carneros Zone ended” and “that limiting the Carneros amount to the 1997–2000 timeframe would require a more complicated methodology.” 4/14/14 Joint Notice 1. As the court previously ruled, Chevron may recover costs incurred for the Carneros Zone equity finalization “until July 6, 2000, the date that Chevron’s appeal to OHA was denied.” Chevron III, 110 Fed. Cl. at 803. Therefore, Chevron’s damages claim is reduced by $334,537, i.e., the difference between Chevron’s initial claim of $2,272,529 and the revised allocation of $1,930,565 for the Stevens Zone plus $7,427 for the Carneros Zone. iii. External Non-Legal Professional And Labor. As to cost allocations for external non-legal professional and labor, Chevron allocated 100% of the software vendor Techbase International (“Techbase”) costs to the Stevens Zone, although “the software . . . was used by Chevron throughout the equity finalization process for all four zones.” 12/6/13 Burzlaff Decl. ¶ 39 (emphasis omitted). Instead, the Government contended that Chevron should “apply the monthly allocation ratio from the Payroll and Benefits category to the monthly costs incurred by Chevron for using the Techbase software, because the monthly payroll cost allocations are a reliable metric of the relative work performed by Chevron on each zone, month-to-month.” 12/6/13 Burzlaff Decl. ¶ 41. Doing so, however, would reduce Chevron’s damages claim in this category by $346,903: a reduction of $353,733 for the Stevens Zone, but an increase of $6,830 for the Carneros Zone. 12/6/13 Burzlaff Decl. ¶ 42; 12/6/13 Riley Decl. ¶ 18 and Ex. 3. 36 Chevron responded that, because “Techbase later was used for [the Shallow Oil Zone] data as well, at no incremental cost, does not justify splitting the Techbase costs [among the] zones.” Pl. Suppl. Reply 7 n.6 (citing 1/27/14 Metcalfe Suppl. Decl. ¶ 8; 1/27/14 Stone Suppl. Decl. ¶ 19). That is so, because the Stevens Zone equity finalization was the reason that Techbase was retained. 10/30/13 Stone Dep. 134–35 (testifying that the Stevens Zone equity finalization would not have proceeded without the Techbase system). Chevron conceded that it used Techbase’s software in more than just the Stevens Zone. Pl. Suppl. Reply 7 n.6 (“Techbase later was used for [Shallow Oil Zone] data as well[.]”); JE 1755 at 8 (describing Techbase International as a “[s]oftware vendor . . . that provided Techbase software for use in equity finalization”); JE 1755 at 65 (listing an “interactive demonstration of . . . Techbase” as part of a 3/28/00 Shallow Oil Zone presentation); see also 12/6/13 Burzlaff Decl. ¶ 39 (“[T]he [Techbase] software . . . was used by Chevron . . . for all four zones.” (emphasis in original)). Of course, Chevron may be correct that it would not have undertaken equity finalization of the Stevens Zone, but for Techbase’s software. But that is irrelevant. See Glendale Fed. Bank, 378 F.3d at 1311 (“[T]he focus of a recovery based on the reliance interest is the real costs incurred for capital and services that . . . would not have [been] incurred but for 36 Exhibit 3 to the 12/6/13 Riley Declaration identifies the reduction as $346,902, presumably due to differences attributable to rounding. Compare 12/6/13 Burzlaff Decl. ¶ 42 and 12/6/13 Riley Decl. ¶ 18 ($346,903), with 12/6/13 Riley Decl. Ex. 3 ($346,902). 27 the contract and its subsequent breach.”). The proper inquiry is whether the Techbase software costs were made in reliance on the procedures promised by May 19, 1997 Equity Process Agreement. See RESTATEMENT (SECOND) OF CONTRACTS § 344(b) (1981) (Damages may be awarded to protect the “reliance interest” of a promisee, i.e., the “interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as [it] would have been in had the contract not been made.”). Therefore, allowing Chevron to allocate 100% of the Techbase software costs, without consideration of the benefits that Chevron received in other zones would over-compensate Chevron. Because the Government’s allocation depends on the monthly allocation ratio from the Payroll and Benefits category, the parties agree that, using the Payroll and Benefit allocations in Court Exhibit 10, the amount allocated to the Stevens Zone for the Techbase software should be reduced by $203,180, and the amount allocated to the Carneros Zone should be reduced by $0. Docket No. 413. Thus, Chevron’s claim for this category will be reduced by $203,180. iv. In-House Technical Consultants. The Government argued that Chevron’s 75.4% allocation of costs for in-house technical consultants to the Stevens Zone is “is inconsistent with [Chevron’s] own supporting documentation.” 12/6/13 Burzlaff Decl. ¶ 46. The Manager of Chevron’s consultant team testified that they “kept track of their hours very accurately and . . . they would know exactly to which zone each charge would apply.” 12/6/13 Burzlaff Decl. ¶ 44 (citing 5/3/11 Thakur Dep. 101–02 (stating that Chevron’s in-house consultants recorded this information on GO-113 Work Orders). By examining the titles and work described, the Government argued that only 57% of the total cost for the GO-113 Work Orders should be allocated to the Stevens Zone. 12/6/13 Burzlaff Decl. ¶ 45, Ex. K. In addition, “99 percent of the line items [in Chevron’s Native File] for the work performed by consultants in 1999 are identified, in the ‘title’ field, as being incurred in connection with the [Shallow Oil Zone].” 12/6/13 Burzlaff Decl. ¶ 47 (citing JE 1868 (5/26/11 Native File 3B)). Accordingly, the Government would allocate Chevron’s in-house consultant costs for the Stevens Zone as follows: 50% for work from August 1997 through October 1997; 100% for work from November 1997 through March 1998; and 10% for work from April 1998 onward. 12/6/13 Burzlaff Decl. ¶ 48. In sum, the Government proposed that Chevron’s claim for this category should be reduced by $789,451. 12/6/13 Burzlaff Decl. ¶ 49; 12/6/13 Riley Decl. ¶ 19, Ex. 3. Chevron responded that the GO-113 Work Orders “are unsigned drafts” that do not necessarily reflect actual charges. 1/27/14 Stone Suppl. Decl. ¶ 19. In fact, the Work Orders “do not show work being done in any zone after September 1998.” 1/27/14 Stone Suppl. Decl. ¶ 19 n.5. Although Chevron’s initial Shallow Oil Zone “kickoff” meeting was in November 1997, Chevron postponed this work when the IPE’s November 4, 1997 Provisional Recommendation for the Stevens Zone issued. 1/27/14 Stone Suppl. Decl. ¶ 19. Consequently, “Chevron’s internal technical consultants were not able to begin substantial work on the [Shallow Oil Zone] until after the first . . . interim meeting in September 1998.” 1/27/14 Stone Suppl. Decl. ¶ 19. 37 37 Chevron estimated that work by Chevron’s in-house consultants on the Shallow Oil Zone was 50% in July 1998, increasing to 75% by January 1999, and 90% by January 2000. 28 Therefore, Chevron argues that it properly allocated these costs between the Stevens Zone and the Shallow Oil Zone; and is entitled to $3,747,712 for technical work on the Stevens Zone. Although the GO-113 Work Orders may not accurately reflect Chevron’s costs for in- house consultants, Chevron has the burden to establish these costs with reasonable certainty. See RESTATEMENT (SECOND) OF CONTRACTS § 352 (1981) illus. 3 (“[Plaintiff] can recover the [amount] that he has spent in reliance. He must, however, then prove that amount with reasonable certainty.”). Mr. Stone’s post-hoc explanation, however, failed to do so. 12/6/13 Riley Decl. ¶ 13 (noting that allocating costs based on Mr. Stone’s chronology was “inconsistent” with Mr. Thakur’s explanation of the GO-113 Work Orders) (citing 5/3/11 Thakur Dep. 14, 59–60). For this reason, Chevron’s claim will be reduced by $789,451 for this category. v. Miscellaneous Expenses. Chevron’s claim included $57,859 in miscellaneous expenses for the Stevens and Carneros Zones. 1/27/14 Metcalfe Ex. 1; 12/6/13 Riley Decl. Ex. 4.1. Because Chevron allocated these expenses based on an average allocation of other categories, the Government’s recommended adjustments to those other categories would necessitate a reduction of $2,826 to Chevron’s Miscellaneous Expenses claim. 12/6/13 Riley Decl. ¶ 20 and Ex. 3. Chevron did not object, other than to dispute that “cost items of less than $10,000 each” does not overcome the assumption “that the process for making the assignments was reasonable and resulted in reasonably certain amounts for the categories identified by the [c]ourt.” 1/27/14 Stone Suppl. Decl. ¶ 18. The court has determined Chevron is entitled to $55,033 for this category, reflecting a $2,826 reduction. 38 vi. Legal Costs. The Government argued that Chevron’s allocation of legal costs also is biased in favor of the Stevens Zone. 39 12/6/13 Burzlaff Decl. ¶ 53. Specifically, four invoices from the law firm of Fried Frank, in the amount of $282,171, “should, but do not, include allocations to the [other three zones],” because during the relevant time period Chevron’s lawyers were working on legal issues applicable to all four zones. 12/6/13 Burzlaff Decl. ¶¶ 51–52. In addition, the Fried Frank invoices do not provide any chronology or itemized description of services performed. 12/6/13 1/27/14 Stone Suppl. Decl. ¶ 19. But, these costs are not recoverable. See Chevron III, 110 Fed. Cl. at 803. 38 Exhibit 3.1 to the 12/6/13 Riley Declaration allocated $55,034 to the Miscellaneous Expenses category, presumably due to differences attributable to rounding. See 12/6/13 Riley Decl. Ex. 3.1 (combining $54,847 for the Stevens Zone with $186 for the Carneros Zone). 39 The Government pointed out that several invoices also were misallocated during Mr. Stone’s deposition; but Chevron subsequently corrected these “insignificant” amounts. 12/6/13 Burzlaff Decl. ¶ 53. 29 Burzlaff Decl. ¶ 51 (noting that the only chronology available was identification of “legal-related activities” from the Equity Finalization Chronology (JE 17)). As a result, Chevron’s costs for this category should be reduced by $126,420. 12/6/13 Burzlaff Decl. ¶ 54; 12/6/13 Riley Decl. ¶ 20 and Ex. 3. Chevron responded that, because “[t]he value of the Stevens Zone was about 98 percent of the combined value of the [other three zones],” it was reasonable to assign all of Chevron’s legal costs to the Stevens Zone, because “Chevron would have incurred the same costs on these issues for the Stevens Zone alone.” 1/27/14 Stone Suppl. Decl. ¶ 19. In addition, Mr. Burzlaff had no basis for assigning 60% of these legal costs to the Shallow Oil Zone. 1/27/14 Stone Suppl. Decl. ¶ 19. Furthermore, Chevron allocated all legal costs to the Stevens Zone, because the May 19, 1997 Decoupling and Equity Process Agreements were required before Chevron would resume equity finalization for the Stevens Zone. 1/27/14 Stone Suppl. Decl. ¶ 19. Both of these agreements, however, applied to all four zones. See 12/6/13 Riley Decl. ¶ 21 and Ex. 3 (allocating legal costs); 1/27/14 Stone Suppl. Decl. ¶ 19 (acknowledging that the May 19, 1997 Decoupling and Equity Process Agreements “applied to all four zones”). Moreover, as a matter of law, the United States Court of Appeals for the Federal Circuit has held that speculative damages are not recoverable; in this instance, an invoice, without any description of services, is insufficient to meet Plaintiff’s burden. See Ind. Mich. Power, 422 F.3d at 1373 (precluding recovery of “speculative damages”); see also Glendale Fed. Bank, 378 F.3d at 1311–12 (holding that establishing damages “is a matter of proof; if too speculative, it can and should be denied as the burden lies with the plaintiff to establish its damages”). For these reasons, the court has determined that Chevron’s claim will be reduced by $126,420. 2. As To Other Costs Claimed. a. Summary Of The Government’s Argument. At trial, one of the Government’s expert damage witnesses initially proposed a $24 million offset, reasoning that is the amount that Chevron would have spent “but for” the Government’s breaches. Chevron III, 110 Fed. Cl. at 805. The court rejected that approach, because it was based on a misperception of the relevant theory underlying reliance damages. See id. (“[E]stablishing that Chevron retained some benefit is not a sufficient basis to establish an offset in a sum certain, a fact that the Government’s damage expert recognized.” (emphasis in original)); see also 12/6/13 Riley Decl. ¶ 29 n.8. Post-trial, the Government took a different approach and advised the court that the following other costs claimed by Chevron should be excluded or reduced: (1) Unsupported transactions, acknowledged by Chevron and Mr. Metcalfe; (2) Improper inclusion of fixed costs unrelated to equity finalization in the CVX Internal Technical Consultants category; (3) Improper inclusion of accrued benefit costs unrelated to equity finalization; and 30 (4) Improper inclusion of costs related to sale. 12/6/13 Riley Decl. ¶ 28. 40 Court Exhibit 11 summarizes these proposed adjustments: 41 Court Exhibit 11: Summary Of The Government’s Proposed Adjustments For Other Specific Costs Claimed By Plaintiff. Improper Improper Unsupported Improper Inclusion Of Inclusion Of Transaction Inclusion Of Accrued Costs Related Category Costs Fixed Costs Benefit Costs To Sale Total Company $0 $0 ($1,102,362) $0 ($1,102,362) Payroll & Benefits Other Labor ($964,138) $0 $0 ($70) ($964,208) Related External Non- ($209,433) $0 $0 ($10,951) ($220,384) Legal Professional and Labor In-House $0 ($1,615,264) $0 $0 ($1,615,264) Technical Consultants Miscellaneous $0 $0 $0 $0 $0 Legal Costs ($20,900) $0 $0 $0 ($20,900) Total ($1,194,471) ($1,615,264) ($1,102,362) ($11,021) ($3,923,118) Source: 12/6/13 Riley Decl. Ex. 4.2 ¶ 28, Riley, 6/3/11 TR 1110−34; see also 6/3/11 TR 1110–34 (describing Mr. Musika’s two-part analysis); 6/3/11 TR 1121–31 (describing the five categories); 3/3/14 Riley Suppl. Decl. Ex. 3 n.1. 40 Mr. Musika’s “Systems Analysis” and “Transaction Analysis” were not addressed by Chevron’s final damages claim, because Chevron did not produce the necessary itemized financial information. 12/6/13 Riley Decl. ¶ 26. “Deficiencies in Chevron’s claimed support” originally identified by Mr. Musika, however, were corrected by Chevron. 12/6/13 Riley Decl. ¶ 29 n.8; see also 12/6/13 Riley Decl. Ex. 1 (itemizing corrections Chevron made in response to Mr. Musika’s analysis). 41 All but $1 of the adjustments recommended by Mr. Musika are deductions to Chevron’s allocated costs for the Stevens Zone. Compare 12/6/13 Riley Decl. Ex. 4.3 (quantifying $3,938,177 in deductions for the Stevens Zone), with id. Ex. 4.4 (identifying $1 in additions for the Carneros Zone). 31 b. Summary Of The Plaintiff’s Response. Chevron’s general response to these proposed adjustments previously has been discussed and objections to specific categories are discussed in the court’s analysis that follows. c. The Court’s Analysis And Resolution Of Other Specific Costs. i. Unsupported Transactions. The Government argued that many of the costs claimed by Chevron had no supporting documentation, as Court Exhibit 12 shows. Court Exhibit 12: The Government’s Proposed Adjustments For Unsupported Transactions. Stevens Zone Carneros Zone Total Legal Costs Total $ 4,121,021 $ 443,585 $ 4,564,606 Supported 4,100,121 443,585 4,543,706 Not Supported $ 20,900 $ 0 $ 20,900 External Non-Legal Prof & Labor Total $ 2,935,430 $ 28,522 $ 2,963,952 Supported 2,725,996 28,523 2,754,519 Not Supported $ 209,434 $ (1) $ 209,433 Other Total $ 1,627,683 $ 0 $ 1,627,683 Supported 663,545 0 663,545 Not Supported $ 964,138 $ 0 $ 964,138 Total Total $ 8,684,134 $ 472,107 $ 9,156,241 Supported 7,489,662 472,108 7,961,770 Not Supported $ 1,194,472 $ (1) $ 1,194,471 Source: 12/6/13 Riley Decl. ¶ 30 & n.9 (citing JE 1871), ¶ 31, Exs. 4.2 and 4.5; 3/3/14 Riley Suppl. Decl. Ex. 3 n.1. 32 Chevron countered that Ms. Riley’s approach was “flawed in that[,] rather than analyzing the overall support provided by all of the available information, she proposes to reduce Chevron’s claimed costs based on individual transactions that she deems as imperfectly supported.” 1/27/14 Metcalfe Suppl. Decl. ¶ 18. Deducting costs for intercompany or small- dollar transactions for lack of support is unreasonable, because, “it would simply be too burdensome to retrieve all of the related supporting documentation” or where “one would not expect to find the type of ‘support’ she demands.” 1/27/14 Metcalfe Suppl. Decl. ¶ 18. Secondary documentation supports 86% of Chevron’s claim, which is higher than that of many spent nuclear fuel cases. 1/27/14 Metcalfe Suppl. Decl. ¶¶ 19–20. It is well established that all costs claimed must have supporting documentation. See Ind. Mich. Power, 422 F.3d at 1373 (precluding recovery of “speculative damages”). Moreover, these transaction costs are not, as Chevron suggests, simply small-dollar or de minimis amounts. For these reasons, the court has determined that Chevron’s claim will be reduced by $1,194,471. ii. Improper Fixed Costs Not Related To Equity Finalization. The Government also argued that, but for the Elk Hills equity finalization, Chevron nevertheless would have incurred a portion of the fixed costs of the Energy Technology Group. 42 12/6/13 Riley Decl. ¶¶ 33–34. According to Chevron’s internal policies and procedures, “key cost components included in the standard rates developed by the [Energy Technology Group] to be charged to other Chevron programs included payroll costs, office rent, computers and software, telecommunications and network connectivity, material and supplies, general travel costs, the president, planning, human resources, and finance.” 12/6/13 Riley Decl. ¶ 33 (citing CVXD5238–CVXD5247 (6/6/05 Chevron ETC Labor Rates); 6/3/11 TR 1124–26. In addition, but for the Elk Hills equity finalization, Chevron would have re-tasked the Energy Technology Group to other projects. 12/6/13 Riley Decl. ¶ 33 (citing 5/3/11 Thakur Dep. 60–62). The Government calculated that 43.1% of the fixed costs of Chevron’s Energy Technology Group “would have existed even without the Elk Hills equity finalization process.” 12/6/13 Riley Decl. ¶ 34. This amount was ascertained by comparing the rate of the most senior Chevron employee assigned directly to the Elk Hills project (Mr. Stone at $91 per hour) with the rate of the highest Energy Technology Group employee (approximately $55 per hour). 43 12/6/13 Riley Decl. ¶ 34 (citing JE 1911 ¶ 18 (6/1/11 Musika Decl.)). As Court Exhibit 13 shows, the Government proposed that Chevron’s claim for Internal Technical Consultants be reduced by 43.1% or $1,615,264. 42 The Energy Technology Group is also referred to as the Chevron Petroleum Technology Company or the CVX Internal Technical Consultants. 12/6/13 Riley Decl. ¶ 33. 43 Mr. Stone’s $91 per hour rate represents 56.9% of the services rendered by the Energy Technology Group, so that the inverse percentage, 43.1%, represents the fixed costs, or the “[Group’s] costs over and above the employee’s salary and benefit costs.” 12/6/13 Riley Decl. ¶ 34 (citing JE 1911 ¶ 18 (6/1/11 Musika Decl.)). 33 Court Exhibit 13: The Government’s Proposed Adjustment For Internal Technical Consultants. Stevens Zone Carneros Zone Total CVX Internal Technical Costs $ 3,747,712 $ - Adjustment of Labor Rate for Removal of Resources Costs 43.1% 43.1% Adjustment to Claimed Costs $ 1,615,264 $ - Source: 12/6/13 Riley Decl. ¶ 34, Exs. 4.2 and 4.6. Chevron responded that, in spent nuclear fuel cases, “it is typical for an internal group to include overhead in its charging process, in exactly the way that [Chevron’s Energy Technology Group] [is] billing here.” 1/27/14 Metcalfe Suppl. Decl. ¶ 22 (citing Bos. Edison Co. v. United States, 658 F.3d 1361, 1370 (Fed. Cir. 2011) (affirming the award of “overhead costs associated with the procurement of materials and capital expenditures” related to the Government’s breach of its contractual obligation to collect nuclear waste)). For this same reason, these overhead costs were billed to DOE by Mr. Burzlaff’s firm. 1/27/14 Metcalfe Suppl. Decl. ¶ 23. Therefore, as part of Chevron’s award, it should receive $3,747,712 for the amount that Chevron saved not hiring outside consultants. 1/27/14 Metcalfe Suppl. Decl. ¶ 24. In the court’s judgment, it was foreseeable that Chevron’s Energy Technology Group would be required to conduct equity finalization. If the Group had been assigned to other projects, presumably it would have contributed to profitable work and Chevron would have received a reasonable a return for this work product. See Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 46 (2d Cir. 1995) (allowing plaintiff to recover “reasonable overhead costs when it is shown that there is a demonstrable past history of ongoing business operations, without requiring proof that a specific alternative project would have absorbed the overhead costs at issue” (footnote omitted)); see also Autotrol Corp. v. Cont’l Water Sys. Corp., 918 F.2d 689, 694–95 (7th Cir. 1990) (allowing plaintiff to recover overhead costs on a reliance theory, where the plaintiff established “a reasonable probability” that the overhead costs would have been covered with another contract if the breached contract never occurred). Since Chevron would have incurred these overhead costs to avoid the more expensive alternative of retaining outside consultants, Chevron is entitled to recover internal technical consultant costs. iii. Accrued Benefit Costs Not Related To Equity Finalization. In addition, the Government argued that four categories of employee benefits paid by Chevron, stock plan, savings plus plan, OPEB [Other Post-Employment Benefits] Cash, and OPEB non-cash, should not be allocated to all employees who worked on the Stevens Zone. 12/6/13 Riley Decl. ¶ 37 (citing JE 1911 ¶ 20 (6/1/11 Musika Decl.)). Chevron responded that its Stevens Zone payroll reflected accrued benefits paid. 1/27/14 Metcalfe Suppl. Decl. ¶ 26 (“Chevron’s method to apply payroll burdens to its personnel is 34 consistent with that of many organizations I have seen throughout my career.”). As to the specific benefits contested by the Government, Mr. Metcalfe confirmed that Chevron’s personnel “actually do receive” these benefits. 1/27/14 Metcalfe Suppl. Decl. ¶ 27 (“[S]tock options are not included in that benefit burden, and are not included in the amounts in total, and therefore should not be deducted.”) (citing 6/1/11 TR 403–07 (Melton); 6/3/11 TR 1227–30 (Metcalfe)). The court has determined that the $1,102,362 in accrued benefit costs claimed by Chevron and contested by the Government are typical and appropriate costs that have been identified with reasonable certainty. See Sys. Fuels, Inc. v. United States, 79 Fed. Cl. 37, 65–66 (2007) (“The payroll loader associated with employee benefit costs is for the most part a proper, directly allocable component of the internal labor costs for the mitigation activities, as the [G]overnment concedes.”), aff’d in part and rev’d in part, 457 F. App’x 930 (Fed. Cir. Jan. 19, 2012). Therefore, Chevron is entitled to recover these accrued benefit costs. iv. Other Costs Not Related To Equity Finalization. At the liability trial, the Government proposed to deduct other costs claimed by Chevron that were not related to equity finalization. 6/11/11 Musika Decl. ¶ 21 (JE 1911). After reviewing Chevron’s revised damages claim, the Government found that Chevron still claimed $15,094 that should be excluded. 12/6/13 Riley Decl. ¶ 38 (citing JE 1718 ¶ 18 (10/29/10 Stone Decl.)). Chevron responded that it has accounted for all appropriate adjustments. 1/27/14 Metcalfe Suppl. Decl. Ex. 1 (reallocating $15,094 in costs for “Invotex Adjustment for Sales- Related Costs” from the Stevens Zone to “Other”). Of this $15,094, Chevron subtracted $11,021 from its claim, but indicated that $4,073 was attributable to invoices outside the date court’s allowable time period, and thus had not been included in Chevron’s original claim and did not need to be deducted from Chevron’s claim. 1/27/14 Metcalfe Suppl. Decl. Ex. 1 (decreasing the “Stevens Out of Date Range” category by $4,073). The Government agreed with this analysis. 3/3/14 Riley Suppl. Decl. Ex. 3 n.4; Docket No. 413. Accordingly, $0 will be deducted from Chevron’s claim. 35 III. SUMMARY OF COSTS AWARDED AS RELIANCE DAMAGES. A. The Stevens Zone Equity Finalization. Court Exhibit 14 is a summary of Chevron’s January 27, 2014 revised Stevens Zone claim and the court’s allocation and other specific cost adjustments. Court Exhibit 14: Summary Of The Court’s Resolution Of Allocation And Other Specific Costs—The Stevens Zone. Cost Chevron’s The Court’s The Court’s The Court’s Total Award Category 1/27/14 “Allocation “Other Adjustments Revised Adjustments” Adjustments” To Avoid Claim Overlap 44 Company $7,986,729 ($1,404,095) $0 $0 $6,582,634 Payroll & Benefits Other Labor $2,272,529 ($341,964) ($964,138) $161,082 $1,127,509 External Non- $2,924,479 ($203,180) ($209,434) $1 $2,511,866 Legal Professional and Labor Internal $3,747,712 ($789,451) $0 $0 $2,958,261 Technical Consultants Miscellaneous $57,674 ($2,827) - - $54,847 Expenses Legal Costs $4,131,585 ($126,420) ($20,900) $1,323 $3,985,588 TOTAL $21,120,708 ($2,867,937) ($1,194,472) $162,406 $17,220,705 For the above-stated reasons, the court has determined that Chevron is entitled to $17,220,705 as reliance damages. It was foreseeable to the Government that these costs would need to be incurred by Chevron to participate in the equity finalization of the Stevens Zone and that Chevron would not have incurred these costs, if it had known that DOE would “repeatedly and materially” violate the May 19, 1997 Equity Process Agreement, the July 8, 1996 contract 44 The court also made adjustments suggested by the Government to avoid any overlap between the “allocation” and “other” adjustments. See 12/6/13 Riley Decl. ¶ 41 (explaining the adjustments to avoid overlap); Docket No. 413. 36 with the Equity IPE, as supplemented, to which Chevron was the direct and intended beneficiary, and would continue to engage in ex parte communications to Chevron’s financial detriment in violation of the covenant of good faith and fair dealing. In addition, the court is satisfied that these costs have been verified to a reasonable degree of certainty, B. The Carneros Zone Equity Finalization. Court Exhibit 15 is a summary of Chevron’s revised Carneros Zone claim and the court’s allocation of cost adjustments and overlap adjustments. Court Exhibit 15: Summary of The Court’s Resolution Of Allocation And Other Specific Costs—The Carneros Zone. Cost Category Chevron’s The Court’s The Court’s The Court’s Total 1/27/14 “Allocation “Other Adjustments Award Revised Adjustments” Adjustments” To Avoid Claim Overlap Company $0 $126,690 $0 $0 $126,690 Payroll & Benefits Other Labor $0 $7,427 $0 ($2,696) $4,731 External Non- $28,522 $0 $1 $0 $28,523 Legal Professional and Labor Internal $0 $0 $0 $0 $0 Technical Consultants Miscellaneous $185 $1 - - $186 Expenses Legal Costs $443,585 $0 $0 $0 $443,585 TOTAL $472,292 $134,118 $1 ($2,696) $603,715 For the above stated reasons, the court has determined that Chevron is entitled to $603,175 as reliance damages. It was foreseeable to the Government that these costs would need to be incurred by Chevron to participate in the equity finalization of the Carneros Zone and that Chevron would not have incurred these costs if it had known that DOE would “repeatedly and materially” violate the May 19, 1997 Equity Process Agreement, the July 8, 1996 contract with the Equity IPE, as supplemented, to which Chevron was the direct and intended beneficiary, and would continue to engage in ex parte communications to Chevron’s financial detriment in 37 violation of the covenant of good faith and fair dealing. In addition, the court is satisfied that these costs have been verified to a reasonable degree of certainty. C. The Freedom Of Information Act Request And Related Proceedings. On January 7, 2003, Chevron sent DOE a Freedom of Information Act (“FOIA”) request to obtain documents related to potential ex parte communications between DOE and the IPE. Chevron III, 110 Fed. Cl. at 772, 804. On April 17, 2003, DOE released one redacted document. Id. On December 23, 2003, DOE provided additional documents to Chevron. Id. On January 28, 2004, Chevron advised the ASFE that the disclosed documents evidenced DOE’s breach of the May 19, 1997 Equity Process Agreement. Id. at 804. On February 19, 2004, Chevron filed a second FOIA request for documents relating to the ASFE’s preparation of the Preliminary and Final Decisions of the Dry Gas and Carneros Zones and any records discussing the involvement of Ms. Egger. Id. at 772–73. Chevron has claimed $84,437 to prepare a January 7, 2013 FOIA request and related proceedings. These costs were incurred from January 1, 2003, i.e.¸ six days prior to Chevron’s January 7, 2003 FOIA request to DOE until January 28, 2004, i.e., the date of Chevron’s notice letter to the ASFE. Pl. Suppl. Br. 2; 1/27/14 Metcalfe Suppl. Decl. Ex. 1. The Government did not object to the costs incurred by Chevron to file and pursue its FOIA request, but reserved the right to appeal. Gov’t Suppl. Resp. 4 n.1. For the above stated reasons, the court has determined that Chevron is entitled to $84,437 in costs incurred related to Chevron’s FOIA request. IV. SANCTIONS FOR THE GOVERNMENT’S “BAD FAITH” CONDUCT RELATING TO PRIVILEGE ASSERTIONS DURING DISCOVERY. After this case was filed, in response to Chevron’s document requests in this case, the Government designated 35,919 pages as privileged. See Chevron III, 110 Fed. Cl. at 806. After an extensive in camera review, issuance of twenty-two Orders, and review by the United States Court of Appeals for the Federal Circuit, the court has determined that at least 42% of the folders analyzed contained an improper assertion of privilege. Chevron has claimed $2,153,533 in legal costs from February 16, 2007, i.e., the date of Chevron’s initial document request, to March 5, 2009, i.e., the date of the United States Court of Appeals for the Federal Circuit’s decision in In re United States, 321 F. App’x 953. Pl. Suppl. Br. 2; 1/27/14 Metcalfe Suppl. Decl. Ex. 1; see also 7/2/13 Metcalfe Suppl. Decl. ¶ 24 (itemizing 58% of Chevron’s legal costs during the relevant period). Forty-two percent of these legal costs would be $904,483. The Government did not object to these legal costs incurred by Chevron, but reserved the right to appeal. Gov’t Suppl. Resp. 4 n.1. The United States Court of Appeals for the Federal Circuit has held a court has “the ability to ‘fashion an appropriate sanction for conduct which abuses the judicial process.’” Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 710 F.3d 1328, 1335 (Fed. Cir. 2013) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991)). Moreover, the United States Supreme Court historically has held that a federal trial court has the inherent power to award attorneys’ fees as a sanction. See Chambers, 501 U.S. at 45. Although a federal trial 38 court has discretion to impose sanctions in its court’s inherent powers, it may not circumvent the Federal Rules of Civil Procedure. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (holding that a trial court may not circumvent a clear mandate of applicable federal rules). Rule 37 of the United States Rules of the Court of Federal Claims (“RCFC”) provides for sanctions, if a party fails to make a required disclosure. See RCFC 37(a)(3)(A), (a)(5); see also Ingalls Shipbuilding, Inc. v. United States, 857 F.2d 1448, 1450 (Fed. Cir. 1988) (“[Rule 37] provides the . . . [c]ourt with an arsenal of discovery sanctions designed to discourage dilatory practices and encourage full disclosure of relevant information prior to trial.”). In addition, RCFC 37(a)(5) authorizes the court to require a party to pay reasonable expenses incurred to compel disclosure from another party. 45 See Ingalls Shipbuilding, 857 F.2d at 1450 (“The decision whether to impose discovery sanctions rests within the sound discretion of the trial court.”); see also Willhite v. Collins, 459 F.3d 866, 870 (8th Cir. 2006) (“[A]n award of attorneys’ fees is permissible under a court’s inherent powers as long as the person being sanctioned has demonstrated bad faith.”); Harlan v. Lewis, 982 F.2d 1255, 1260 (8th Cir. 1993) (holding that bad faith implicitly was established where a party engaged in intentional disruption of discovery process). As the court previously stated: Although Chevron was able to fund the costs to ascertain whether the Government’s privilege assertions were legitimate in this case, most litigants cannot afford such protracted discovery battles. In addition, the collateral discovery proceedings delayed the trial in this case by four years and imposed significant, unnecessary costs on Chevron, as well as the court. . . . [T]he United States Court of Appeals for the Federal Circuit described “bad faith” conduct in words that express the court's view about this case: Indeed, to say that the counsel’s conduct during discovery raises the collective eyebrow of this court would be to understate the severity of their transgressions. Counsel’s tactics during discovery 45 RCFC 37(a)(5)(A) states, in part, provides: [T]he court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion [to compel disclosure], the party or attorney advising the client, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure . . . was substantially justified; or (iii) other circumstances make an award of expenses unjust. RCFC 37(a)(5)(A). 39 evinced a brazen disregard for the legal process. Throughout discovery, counsel’s strategy consisted of efforts to obfuscate, cover-up, and subvert evidence that was properly discoverable and responsive to [plaintiff’s discovery] requests. Federal trial courts necessarily tend to trust the parties’ counsels’ assertion of privilege, as officers of the court. But, when that trust is misplaced, appropriate consequences should follow. The court has determined that DOE and Government discovery tactics as to privileged documents in this case constitute “bad faith” conduct. Chevron III, 110 Fed. Cl. at 807 (alteration in original) (quoting Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1288 (Fed. Cir. 2000)). For the aforementioned reasons, the court has determined that Chevron is entitled to $904,483, as a sanction for the Government’s “bad faith” conduct related to privilege assertions during discovery. V. CONCLUSION. For the reasons discussed in Chevron III and herein, the Clerk of the Court is ordered to enter judgment in favor of Chevron in the amount of $18,813,340. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Judge 40
Exhibit 10.1   --------------------------------------------------------------------------------     MIRANT CORPORATION 2006 NON-EMPLOYEE DIRECTORS COMPENSATION PLAN     --------------------------------------------------------------------------------   --------------------------------------------------------------------------------   MIRANT CORPORATION 2006 NON-EMPLOYEE DIRECTORS COMPENSATION PLAN   ARTICLE 1 PURPOSE   2 1.1   Purpose   2 1.2   Eligibility   2 ARTICLE 2 DEFINITIONS   2 2.1   Definitions   2 ARTICLE 3 ADMINISTRATION   4 3.1   Administration   4 3.2   Reliance   4 ARTICLE 4 SOURCE OF SHARES   5 4.1   Source of Shares for the Plan   5 ARTICLE 5 CASH COMPENSATION   5 5.1   Base Quarterly Retainer   5 5.2   Supplemental Quarterly Retainer   5 5.3   Meeting Fees   6 5.4   Travel Expense Reimbursement   6 5.5   Education Expense Reimbursement   6 ARTICLE 6 EQUITY COMPENSATION   7 6.1   Restricted Stock Units   7 6.2   Stock Options   8 6.3   Special Grants in first Plan Year   9 ARTICLE 7 DEFERRAL OF COMPENSATION   9 7.1   Election to Defer under the Mirant Deferred Compensation Plan   10 ARTICLE 8 AMENDMENT, MODIFICATION AND TERMINATION   11 8.1   Amendment, Modification and Termination   11 ARTICLE 9 GENERAL PROVISIONS   11 9.1   Adjustments   11 9.2   Duration of the Plan   11 9.3   Expenses of the Plan   11 9.4   Status of the Plan   12 9.5   Effective Date   12   --------------------------------------------------------------------------------   MIRANT CORPORATION 2006 NON-EMPLOYEE DIRECTORS COMPENSATION PLAN   ARTICLE 1 PURPOSE   1.1.                              PURPOSE. The purpose of the Mirant Corporation 2006 Non-Employee Directors Compensation Plan is to retain, compensate, and attract highly-qualified individuals who are not employees of Mirant Corporation or any of its subsidiaries or affiliates for service as members of the Board by providing them with competitive compensation and an ownership interest in the Common Stock of the Company. The Company intends that the Plan will benefit the Company and its stockholders by allowing Non-Employee Directors to have a personal financial stake in the Company through an ownership interest in the Common Stock and will closely associate the interests of Non-Employee Directors with that of the Company’s stockholders.   1.2.                              ELIGIBILITY. Non-Employee Directors of the Company who are Eligible Participants, as defined below, shall automatically be participants in the Plan.   ARTICLE 2 DEFINITIONS   2.1.                              DEFINITIONS. Unless the context clearly indicates otherwise, the following terms shall have the following meanings:   “Quarterly Retainer” means the Base Quarterly Retainer and the Supplemental Quarterly Retainers.   “Base Quarterly Retainer” means the quarterly retainer (excluding meeting fees and expenses) payable by the Company to a Non-Employee Director pursuant to Section 5.1 hereof for service as a director of the Company (i.e., excluding any Supplemental Quarterly Retainer); as such amount may be changed from time to time.   “Board” means the Board of Directors of the Company.   “Calendar Year” means the twelve month period ending on December 31 of each year.   “Common Stock” means the common stock, par value $0.01 per share, of the Company.   “Company” means Mirant Corporation, a Delaware corporation.   “Disability” means any illness or other physical or mental condition of a Non-Employee Director that renders him or her incapable of performing as a director of the Company, or any medically determinable illness or other physical or mental condition   --------------------------------------------------------------------------------   resulting from a bodily injury, disease or mental disorder which, in the judgment of the Board, is permanent and continuous in nature. The Board may require such medical or other evidence as it deems necessary to judge the nature and permanency of a Non-Employee Director’s condition.   “Effective Date” means January 3, 2006.   “Election Form” means a form (electronic or otherwise), in the form prescribed by the Corporate Secretary from time to time, pursuant to which a Non-Employee Director elects to defer some or all of his or her Quarterly Retainer and meeting fees pursuant to the Mirant Deferred Compensation Plan.   “Eligible Participant” means any person who is a Non-Employee Director on the Effective Date or becomes a Non-Employee Director while this Plan is in effect; except that during any period a director is prohibited from participating in the Plan by his or her employer or otherwise waives participation in the Plan, such director shall not be an Eligible Participant.   “Fair Market Value” means the closing price of the Common Stock reported on the principal exchange on which the Common Stock is then listed or admitted for trading, on the applicable date (or, if the Common Stock was not traded on such date, then on the last preceeding date on which the Common Stock was traded).   “Lead Independent Director” means the Non-Employee Director who has been designated by the Board as the Lead Independent Director for the Plan Year in question. The Board may change the designation of Lead Independent Director from time to time.   “Non-Employee Director” means a director of the Company who is not an employee of the Company or of any of its subsidiaries or affiliates.   “Omnibus Incentive Plan” means the Mirant Corporation 2005 Omnibus Incentive Plan, or any subsequent omnibus compensation plan approved by the Company’s stockholders Board and designated as the Omnibus Incentive Plan for purposes of this Plan.   “Plan” means this Mirant Corporation 2006 Non-Employee Directors Compensation Plan, as amended from time to time.   “Plan Year” means the twelve-month period ending on June 30 of each year; provided that the first Plan Year shall be a short year beginning January 3, 2006, and ending June 30, 2006.   “Restricted Stock” means shares of Common Stock of the Company that are subject to forfeiture and transfer restrictions. Awards of Restricted Stock granted under this Plan to Eligible Participants are subject to forfeiture and transfer restrictions set forth in Section 6.3.   3 --------------------------------------------------------------------------------   “Restricted Stock Units” represent the right to receive shares of Common Stock, on a one-for one basis, upon termination of service from the Board; provided that applicable vesting provisions are satisfied. Restricted Stock Units granted under this Plan to Eligible Participants will be subject to forfeiture and transfer restrictions set forth in Article 6.   “Stock Options” represent the right to purchase shares of Common Stock in the future at a pre-determined exercise price. Stock Options granted under this Plan to Eligible Participants will be subject to the terms and conditions set forth in Article 6.   “Supplemental Quarterly Retainer” means the quarterly retainer (excluding meeting fees and expenses) payable by the Company to a Non-Employee Director pursuant to Section 5.2 hereof for service as Lead Independent Director or as a chair of a committee of the Board, as such amount may be changed from time to time.   ARTICLE 3 ADMINISTRATION   3.1.                              ADMINISTRATION. The Plan is intended to reflect the program for compensation of the Company’s Non-Employee Directors as determined from time to time by the Board. The Plan shall be administered by the Compensation Committee of the Board (“Compensation Committee”). Subject to the provisions of the Plan, the Compensation Committee shall be authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make all other determinations necessary or advisable for the administration of the Plan. The Compensation Committee’s interpretation of the Plan, and all actions taken and determinations made by the Compensation Committee pursuant to the powers vested in it hereunder, shall be conclusive and binding upon all parties concerned including the Company, its stockholders and persons granted awards under the Plan. The Compensation Committee hereby appoints the Corporate Secretary to carry out the ministerial functions of the Plan, but the Corporate Secretary shall have no other authority or powers of the Compensation Committee.   3.2.                              RELIANCE. In administering the Plan, the Compensation Committee may rely upon any information furnished by the Company, its public accountants and other experts. No individual will have personal liability by reason of anything done or omitted to be done by the Company or the Board, or the Compensation Committee in connection with the Plan. This limitation of liability shall not be exclusive of any other limitation of liability to which any such person may be entitled under the Company’s certificate of incorporation or otherwise.   4 --------------------------------------------------------------------------------   ARTICLE 4 SOURCE OF SHARES   4.1.                              SOURCE OF SHARES FOR THE PLAN. The Stock Options, Restricted Stock, Restricted Stock Units and shares of Common Stock that may be issued pursuant to the Plan shall be issued under the Omnibus Incentive Plan, subject to all of the terms and conditions of the Omnibus Incentive Plan. The terms contained in the Omnibus Incentive Plan are incorporated into and made a part of this Plan with respect to Stock Options, Restricted Stock or Restricted Stock Units granted pursuant hereto and any such awards shall be governed by and construed in accordance with the Omnibus Incentive Plan. In the event of any actual or alleged conflict between the provisions of the Omnibus Incentive Plan and the provisions of this Plan, the provisions of the Omnibus Incentive Plan shall be controlling and determinative. This Plan does not constitute a separate source of shares for the grant of the equity awards described herein.   ARTICLE 5 CASH COMPENSATION   5.1.                              BASE QUARTERLY RETAINER. Each Eligible Participant shall be paid a Base Quarterly Retainer for service as a director during each Plan Year. The amount of the Base Quarterly Retainer shall be established from time to time by the Board. Until changed by the Board, the Base Quarterly Retainer shall be $15,000 for each Non-Employee Director. A pro-rata Base Quarterly Retainer will be paid to any Eligible Participant who joins the Board on a date other than the beginning of a calendar quarter, based on the number of full or partial calendar months between the date such Non-Employee Director joined the Board and the first day of the following quarter (with credit for a full month being given where the Non-Employee Director served for more than 15 days in such month). The Base Quarterly Retainer shall be paid quarterly in arrears in January, April, July and October of each Calendar Year.   5.2.                              SUPPLEMENTAL QUARTERLY RETAINER.   (a)                                  Supplemental Quarterly Retainer for Committee Chairs. Any Non-Employee Director who serves as the chair of a committee of the Board shall be paid a Supplemental Quarterly Retainer, payable quarterly in arrears in January, April, July and October of each Plan Year. The amount of the Supplemental Quarterly Retainer shall be established from time to time by the Board. Until changed by the Board, the Supplemental Quarterly Retainer for a full Plan Year shall be as follows:   Committee   Amount   Audit Committee   $ 5,000   Compensation Committee   $ 2,500   Nominating and Governance Committee   $ 2,500     A prorata Supplemental Quarterly Retainer will be paid to any Non-Employee Director who becomes the chair of a committee of the Board on a date other than the beginning of   5 --------------------------------------------------------------------------------   a calendar quarter, based on the number of full or partial calendar months served in such position during the quarter (with credit for a full month being given where the Non-Employee Director served in such position for more than 15 days in such month).   (b)                                 Supplemental Quarterly Retainer for Service as Lead Independent Director. In addition to the Base Quarterly Retainer and any Supplemental Quarterly Retainer for service as chair of a Board committee, the Lead Independent Director shall be paid an additional Supplemental Quarterly Retainer for service as Lead Independent Director during each Plan Year, payable at the same times as the Supplemental Quarterly Retainer is paid pursuant to Section 5.2(a). The amount of such Supplemental Quarterly Retainer shall be established from time to time by the Board. Until changed by the Board, the special additional Supplemental Quarterly Retainer for the Lead Independent Director for a full Plan Year shall be $5,000. A prorata payment will be paid to any Non-Employee Director who becomes the Lead Independent Director on a date other than the beginning of a calendar quarter, based on the number of full or partial calendar months served in such position during the quarter (with credit for a full month being given where the Non-Employee Director served as Lead Independent Director for more than 15 days in such month).   5.3.                              MEETING FEES. Each Non-Employee Director shall be paid a meeting fee for each meeting of the Board or committee or for any other orientation or Company provided education session thereof he or she attends. If a Board or Committee meeting continues for two consecutive days, two meeting fees will be paid for attendance at such meeting. The amount of the meeting fees shall be established from time to time by the Board. Until changed by the Board, the meeting fee shall be $1,500 which will be paid at the same times as the Supplemental Quarterly Retainer is paid pursuant to Section 5.2(a).   5.4.                              TRAVEL EXPENSE REIMBURSEMENT. All Non-Employee Directors shall be reimbursed for reasonable travel expenses in connection with attendance at meetings of the Board and its committees, or other Company functions at which the Chief Executive Officer requests the Non-Employee Director to participate.   5.5                                 EDUCATION EXPENSE REIMBURSEMENT. All Non-Employee Directors shall be reimbursed for reasonable travel and tuition expenses in connection with attendance at director educational seminars; provided that such seminars are accredited by Institutional Shareholders Services and directors shall limit these educational expenses to $5,000.00 per Plan Year.   6 --------------------------------------------------------------------------------   ARTICLE 6 EQUITY COMPENSATION   6.1.                              RESTRICTED STOCK UNITS.   (a)                                  Annual Grant of Restricted Stock Units. Subject to share availability under the Omnibus Incentive Plan, on the day following the 2006 annual meeting of the Company’s stockholders, and on the day following each subsequent annual meeting of the Company’s stockholders, each Eligible Participant in service on that date will receive an award of $25,000 in value of Restricted Stock Units. The number of Restricted Stock Units so awarded to each Eligible Participant shall be determined by dividing $25,000 by the Fair Market Value of the Common Stock on the date of grant and rounding up to the nearest whole share.   (b)                                 Terms and Conditions of Restricted Stock Units. Restricted Stock Units granted under this Section 6.1 shall be subject to the terms and conditions described below and of the Omnibus Incentive Plan.   (i)                                     Crediting and Settlement of Restricted Stock Units. The Restricted Stock Units shall be credited to a bookkeeping account maintained by the Company on behalf of the Non-Employee Director and, to the extent then vested, shall be settled in (converted to) shares of Common Stock on the date of the Non-Employee Director’s termination of service as a director of the Company (in any capacity). No shares of Common Stock will be issued until the settlement date, at which time the Company agrees to issue shares of Common Stock to the Non-Employee Director (at the conversion rate of one share of Common Stock for each vested Restricted Stock Unit).   (ii)                                  Transfer Restrictions. The Restricted Stock Units may not be sold, transferred, exchanged, assigned, pledged, hypothecated or otherwise encumbered to or in favor of any party other than the Company, or be subjected to any lien, obligation or liability of the grantee to any other party other than the Company.   (iii)                               Award Agreement. Restricted Stock Unit awards shall be evidenced by a written Award Agreement between the Company and the Non-Employee Director, which shall include a vesting schedule, and such other terms and conditions, not inconsistent with the Plan or the Omnibus Incentive Plan, as may be specified by the Compensation Committee.   (iv)                              Rights as Stockholder. A Non-Employee Director shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Restricted Stock Units. Upon conversion of the Restricted Stock Units into shares of Common Stock, the Non-Employee Director will obtain full voting, dividend and other rights as a stockholder of the Company.   7 --------------------------------------------------------------------------------   6.2.                              STOCK OPTIONS.   (a)                                  Annual Grant of Stock Options. Subject to share availability under the Omnibus Incentive Plan, on the day following the 2006 annual meeting of the Company’s stockholders, and on the day following each subsequent annual meeting of the Company’s stockholders, each Eligible Participant in service on that date will receive Stock Options to purchase $50,000 in value of Common Stock. The number of Stock Options so awarded to each Eligible Participant shall be determined by dividing $50,000 by the assumed average Black-Scholes value of Mirant Corporation employee and director stock options as of such Plan Year, as determined by the Compensation Committee, and rounding up to the nearest whole share.   (b)                                 Terms and Conditions of Stock Options. Stock Options granted under this Section 6.2 shall be subject to the terms and conditions described below and of the Omnibus Incentive Plan.   (i)                                     Exercise Price. The exercise price per share of a Stock Option shall be the Fair Market Value of the Common Stock on the date of grant.   (ii)                                  Option Term. Subject to earlier termination as provided herein, the Stock Option shall expire on the tenth (10th) anniversary of the date of grant.   (iii)                               Vesting. Subject to any earlier vesting under the provisions of the Omnibus Incentive Plan in the case of a Change of Control, each Stock Option granted under this Section 6.2 shall vest and become exercisable on the earlier of (A) the one year anniversary of the date of grant, or (B) the termination of the optionee’s service as a director of the Company due to his or her death or Disability (the “Vesting Date”). If the optionee’s service as a director of the Company (whether or not in a Non-Employee Director capacity) terminates other than due to his or her death or Disability prior to the one year anniversary of the date of grant, the optionee shall forfeit all of his or her right, title and interest in and to any unvested Stock Options as of the date of such termination from the Board.   (iv)                              Restrictions on Transfer. Stock Options granted under Section 6.2 are not assignable or transferable other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, and may not be pledged, hypothecated or otherwise encumbered to or in favor of any party other than the Company or an affiliate, or be subjected to any lien, obligation or liability of grantee to any other party other than the Company or an affiliate. Such Stock Options may be exercised, during the lifetime of the Non-Employee Director, only by the Non-Employee Director.   (v)                                 Award Agreement. Stock Options shall be evidenced by a written Award   8 --------------------------------------------------------------------------------   Agreement between the Company and the Non-Employee Director, which shall include such other terms and conditions, not inconsistent with the Plan or the Omnibus Incentive Plan, as may be specified by the Compensation Committee.   (vi)                              Stockholder Rights. A Non-Employee Director shall not have voting, dividend or any other rights as a stockholder of the Company with respect to the Stock Options granted under the Plan. Upon exercise of the Stock Option, the optionee will obtain full voting, dividend and other rights as a stockholder of the Company with respect to such shares.   6.3.                              SPECIAL GRANTS IN FIRST PLAN YEAR.   (a)                                  Restricted Stock or Restricted Stock Units. For the first Plan Year only, each Eligible Participant was given a choice of receiving on January 13, 2006, an award of $25,000 in value of Restricted Stock or $25,000 in value of Restricted Stock Units.   (i)                                     The number of shares awarded to each Eligible Participant who elected to receive Restricted Stock was determined by dividing $25,000 by the Fair Market Value of the Common Stock on the date of grant and rounding up to the nearest whole share. Subject to any earlier vesting under the provisions of the Omnibus Incentive Plan in the case of a Change of Control, the Restricted Stock will vest and become non-forfeitable as to one-third of the shares on the first, second and third anniversaries of the date of grant, or, if earlier, upon the termination of the grantee’s service as a director of the Company due to his or her death or Disability (the period prior to such vesting date being the “Restricted Period”). During the Restricted Period, the Restricted Stock may not be sold, transferred, exchanged, assigned, pledged, hypothecated or otherwise encumbered, or be subjected to any lien, obligation or liability of the grantee. As beneficial owner of the shares, a Non-Employee Director shall have full voting, dividend and other rights as a stockholder of the Company with respect to the shares of Restricted Stock during and after the Restricted Period.   (ii)                                  The number of Restricted Stock Units awarded to each Eligible Participant who elected to receive Restricted Stock Units was determined by dividing $25,000 by the Fair Market Value of the Common Stock on the date of grant and rounding up to the nearest whole share. Subject to any earlier vesting under the provisions of the Omnibus Incentive Plan in the case of a Change of Control, these Restricted Stock Units shall vest and become non-forfeitable as to one-third of the units on the first, second and third anniversaries of the date of grant, or, if earlier, upon the termination of the grantee’s service as a director of the Company due to his or her death or Disability. Such Restricted Stock Units were credited to a bookkeeping account maintained by the Company on behalf of the Non-Employee   9 --------------------------------------------------------------------------------   Director and, to the extent then vested, shall be settled in (converted to) shares of Common Stock on the date of the Non-Employee Director’s termination of service as a director of the Company (in any capacity). No shares of Common Stock will be issued until the settlement date, at which time the Company agrees to issue shares of Common Stock to the Non-Employee Director (at the conversion rate of one share of Common Stock for each vested Restricted Stock Unit). The Restricted Stock Units may not be sold, transferred, exchanged, assigned, pledged, hypothecated or otherwise encumbered to or in favor of any party other than the Company, or be subjected to any lien, obligation or liability of the grantee to any other party other than the Company.   (b)                                 Stock Options. For the first Plan Year only, each Eligible Participant received an award of $50,000 in value of Stock Options on January 13, 2006. The number of such Stock Options was determined as provided in Section 6.2(a) above and the Stock Options have the same terms and conditions as described in Section 6.2(b) above, except that, subject to any earlier vesting under the provisions of the Omnibus Incentive Plan in the case of a Change in Control, the such Stock Options will vest and become exercisable as to one-third of the shares on the first, second and third anniversaries of the date of grant or, if earlier, the termination of the optionee’s service as a director of the Company due to his or her death or Disability.   ARTICLE 7 DEFERRAL OF COMPENSATION   7.1.                              ELECTION TO DEFER UNDER THE MIRANT CORPORATION DEFERRED COMPENSATION PLAN.   (a)                                  Annual Election to Defer.      A Non-Employee Director may elect to defer (i) any portion of his or her Base Quarterly Retainer, (ii) any portion of his or her Supplemental Quarterly Retainer for service as a Committee Chair, (iii) any portion of his or her Supplemental Quarterly Retainer for service as Lead Independent Director, and (iv) any portion of his or her meeting fees pursuant to the Mirant Corporation Deferred Compensation Plan. A Non-Employee Director who wishes to defer compensation under this Section 7.1 must irrevocably elect to do so by delivering a valid Election Form (which delivery may be by electronic or other means approved by the Corporate Secretary) by the December 31 preceding the commencement of the applicable Calendar Year (or within 30 days after a Non-Employee Director first joins the Board). For example, in order to defer compensation payable for the Calendar Year beginning January 1, 2007, the Election Form must be received on or before December 31, 2006. A Non-Employee Director’s participation in this Section 7.1 of the Plan will be effective as of the first day of the quarter beginning after the Non-Employee Director’s Election Form has been effectively delivered (or immediately, in the case of a Non-Employee Director making such election within 30 days after first joining the Board). The deferral Election Form delivered by the Non-Employee Director will become irrevocable as of December 31 for the coming Calendar Year (or immediately when made, in the case of a Non-   10 --------------------------------------------------------------------------------   Employee Director making such election within 30 days after first joining the Board).   (b)                                 Deferral of Compensation for 2006. For 2006, each Eligible Participant was allowed to defer the items listed in Section 7.1(a) (i), (ii), (iii), and (iv) above pursuant to the Mirant Corporation Deferred Compensation Plan by irrevocably electing to do so by delivering a valid Election Form by March 31, 2006. A Non-Employee Directors’ deferral for 2006 was effective as of April 1, 2006 for the remainder of 2006.   (c)                                  Deferral Election. If an Eligible Participant fails to deliver a new Deferral Election prior to December 31 of a Calendar Year indicating an election to change or cease deferrals for the next Calendar Year, the Deferral Election in effect during the current Calendar Year shall become irrevocable as of December 31 of that year and continue in effect during the next Calendar Year.   ARTICLE 8 AMENDMENT, MODIFICATION AND TERMINATION   8.1.                              AMENDMENT, MODIFICATION AND TERMINATION. The Board or the Compensation Committee may terminate or suspend the Plan at any time, without stockholder approval. The Board or the Compensation Committee may amend the Plan at any time and for any reason without stockholder approval; provided, however, that the Board or Committee may condition any amendment on the approval of stockholders of the Company if such approval is necessary or deemed advisable with respect to tax, securities or other applicable laws, policies or regulations. Except as provided in Section 9.1, no termination, modification or amendment of the Plan may, without the consent of a Non-Employee Director, adversely affect a Non-Employee Director’s rights under an award granted prior thereto.   ARTICLE 9 GENERAL PROVISIONS   9.1.                              ADJUSTMENTS. The adjustment provisions of the Omnibus Incentive Plan shall apply with respect to awards of Restricted Stock, Stock Options and Restricted Stock Units outstanding or to be granted pursuant to this Plan.   9.2.                              DURATION OF THE PLAN. The Plan shall remain in effect through the Plan Year ending in 2015, unless terminated earlier by the Board or the Compensation Committee.   9.3.                              EXPENSES OF THE PLAN. The expenses of administering the Plan shall be borne by the Company.   11 --------------------------------------------------------------------------------   9.4.                              STATUS OF THE PLAN. The provisions of Article 7 of the Plan are intended to be a nonqualified, unfunded plan of deferred compensation under the Internal Revenue Code of 1986, as amended. Plan benefits shall be paid from the general assets of the Company or as otherwise directed by the Company. A participant shall have the status of a general unsecured creditor of the Company with respect to his or her right to receive Common Stock or other payment upon settlement of the Restricted Stock Units granted under the Plan. No right or interest in the Restricted Stock Units shall be subject to the claims of creditors of the Non-Employee Director or to liability for the debts, contracts or engagements of the Non-Employee Director, or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that nothing in this Plan shall prevent transfers by will or by the applicable laws of descent and distribution. To the extent that any participant acquires the right to receive payments under the Plan (from whatever source), such right shall be no greater than that of an unsecured general creditor of the Company. Participants and their beneficiaries shall not have any preference or security interest in the assets of the Company other than as a general unsecured creditor.   9.5.                              EFFECTIVE DATE. The Plan was originally adopted by the Compensation Committee on May 8, 2006, to be effective as of January 3, 2006.     MIRANT CORPORATION       By:         Elizabeth B. Chandler     Vice President, Assistant General Counsel and Secretary   12 --------------------------------------------------------------------------------
949 F.2d 399 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Ernest G. MOORE, Plaintiff-Appellant,v.Steve SHELDON; Margaret Wall, Defendants-Appellees. No. 89-35475. United States Court of Appeals, Ninth Circuit. Submitted Nov. 6, 1991.*Decided Dec. 5, 1991. Before TANG, O'SCANNLAIN and RYMER, Circuit Judges. 1 MEMORANDUM** 2 Ernest Moore, a prisoner acting pro se, appeals the district court's grant of summary judgment in favor of defendants on his claims under 42 U.S.C. § 1983. We affirm. 3 * Moore's complaint alleges that defendants Wall, the health services manager at Oregon State Penitentiary, and Sheldon, a general practitioner who provides medical care to Oregon prisoners, denied Moore access to treatment by an outside heart specialist at state expense. Moore also alleges that, while in the prison infirmary recovering from an injury, he suffered chest pains and requested the return of his nitroglycerine tablets, which had been confiscated pursuant to prison policy on his admission into the infirmary. The tablets were not returned until Moore left the infirmary two days later. Moore claims that these actions amounted to denial of medical treatment in violation of the Eighth Amendment's proscription of cruel and unusual punishment. Moore further asserts that defendants took the challenged actions in retaliation for his filing of administrative grievances and lawsuits charging prison officials with racial discrimination. 4 After more than two years of preliminary proceedings, the district court entered summary judgment for defendants, and denied Moore's motion to amend his complaint. Moore timely appealed. II 5 The Eighth Amendment proscribes "deliberate indifference to the serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). If medical needs are met within the prison, the constitution does not require that prison officials provide supplemental outside medical care. Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986). Moreover, disagreements over "matter[s] for medical judgment," such as whether additional tests or treatment are required, are insufficient to establish a constitutional violation. Estelle, 429 U.S. at 107. 6 Summary judgment was properly granted for appellees on the Eighth Amendment claim. Moore was examined and treated by prison medical personnel every time he complained of poor health. Appellees refused to refer him to an outside cardiac specialist at state expense1 because they believed referral was not medically indicated. This "is a classic example of a matter for medical judgment," Estelle, 429 U.S. at 107, and as such cannot provide the basis for a constitutional claim. Nor does the short delay in returning his nitroglycerine tablets amount to deliberate indifference to his serious medical needs. See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987). III 7 Allegations that prison officials have interfered with the right to petition for redress of grievances by retaliating against a prisoner for bringing litigation or filing grievances may state a constitutional claim. See Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.1989); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir.1985). 8 Viewed in the light most favorable to Moore, the evidence of retaliation consists of: (1) his conclusory allegation to that effect; and (2) his assertion that Frank Lowe, another inmate at the Oregon State Penitentiary, would "testify to being referred to a heart specialist for treatment after complaining of chest pains." Moore did not provide an affidavit from Lowe, nor did he provide any details as to Lowe's condition or treatment. Moore did not allege that Lowe's condition was similar to his, that Lowe's outside treatment was financed by the state, or that Lowe had not filed administrative grievances or lawsuits against the prison officials. 9 In order to survive a motion for summary judgment, the non-moving party must provide evidence to support the existence of all essential elements on which he will bear the [email protected]. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is appropriate if the evidence is such that it would require a directed verdict in favor of the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Although the pleadings of a pro se litigant, particularly a prisoner, are liberally construed, to avoid summary judgment such a litigant "must present some 'significant probative evidence tending to support the complaint.' " Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984) (quoting General Business Systems v. North American Phillips Corp., 699 F.2d 965, 971 (9th Cir.1983)). 10 Moore has not satisfied this requirement. In order to make out a retaliation claim, a prisoner must show that his constitutionally protected conduct was a substantial or motivating cause of the defendants' actions. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Although, as the district court noted, Moore was provided ample time to conduct discovery, he has not adduced any significant probative evidence to support his retaliation claim.2 IV 11 Moore contends that the district court erred in refusing to grant him leave to amend his complaint. His request for leave to amend accompanied his objections to the magistrate judge's Findings and Recommendation. Moore had been granted leave to amend his complaint more than a year earlier, but had declined to do so. 12 Leave to amend following summary judgment may be granted at the discretion of the court. Ferris v. Santa Clara County, 891 F.2d 715, 718 (9th Cir.1989), cert. denied, 111 S. Ct. 141 (1990). Although the general policy in favor of allowing amendment is especially liberally construed when applied to pro se litigants, id. at 719, leave to amend need not always be given. 13 Moore, in his request for leave to amend, sought to add a number of factual allegations and unnamed additional defendants to his complaint. The district court did not abuse its discretion in denying leave to add new defendants. Moore offered no excuse for his failure to include these defendants in his complaint, or to amend earlier when leave was granted. He did not even name the other defendants he wished to add. Denial of leave to amend was proper under the circumstances. See Burns v. County of King, 883 F.2d 819, 823 (9th Cir.1989). 14 Of the fourteen factual claims Moore sought to add to his complaint, only four arguably related to the actions of defendants Sheldon and Wall. The relevant claims were: (1) that he was not always served diabetic meals while in administrative segregation at OSCI; (2) that treatment for a toothache was delayed ten hours; (3) that his nitroglycerine tablets were confiscated before he was placed in a punishment cell for five hours, and that he experienced chest pains while in the cell; and (4) that he was injected with thorazine without his knowledge after complaining of an angina attack. 15 Viewed in the light most favorable to Moore, these additional allegations could not survive defendant's motion for summary judgment. The first three allegations demonstrate at most slight delays in treatment, not deliberate indifference to serious medical problems. The medical history submitted by defendants in support of their motion for summary judgment amply demonstrates that Moore was treated with thorazine because, in the professional judgment of the medical staff, his chest pains were caused by anxiety. Since addition of these claims would have been futile, the district court did not err in denying leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987). V 16 Finally, Moore asserts that the magistrate judge denied him a jury trial out of "judicial vindictiveness" following Moore's demand for trial before an Article III judge. The record does not support this claim. The magistrate judge struck the May 31, 1988 date set for a jury trial after the defendants filed their motion for summary judgment on May 24. The only reasonable inference is that the trial date was struck pending resolution of the summary judgment motion. VI 17 For the foregoing reasons, appellant Moore's claims of error are rejected and the district court's order is 18 AFFIRMED. * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3 1 Appellees did indicate that Moore would be allowed to consult with an outside physician at his own expense 2 This case is not analogous to Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir.1989), where a grant of summary judgment in favor of defendants on a prisoner's retaliation claim was reversed. The Valandingham case involved a factual dispute as to whether the action allegedly taken in retaliation for Valandingham's complaints had in fact occurred. Valandingham supported his contentions with affidavits from witnesses. Id., 866 [email protected]. Here, defendants do not dispute that Moore was denied access to outside medical care at state expense. They assert, however, that this denial was pursuant to institution policy, and not in retaliation for the filing of grievances and lawsuits. Defendants have shown that Moore was sent at state expense to an outside specialist when outside care was medically indicated. Moore has not countered these assertions with anything more than conclusory allegations
239 Md. 1 (1965) 209 A.2d 776 ELMER v. STATE [No. 147, September Term, 1964.] Court of Appeals of Maryland. Decided May 7, 1965. The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY and SYBERT and CARTER, C.J., Chief Judge of the Second Judicial Circuit, specially assigned. *3 Donaldson C. Cole, Jr., for appellant. Roger D. Redden, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Walter M. Baker, State's Attorney for Cecil County, on the brief, for appellee. SYBERT, J., delivered the opinion of the Court. Dissenting opinion by HAMMOND, J., at page 11, infra. Sentenced to five years in the House of Correction after being found guilty of assault and battery by a jury in the Circuit Court for Cecil County, John Davidson Elmer appeals. The State's evidence at the trial tended to show that Elmer had joined with several other young men in beating the complaining witness, a man in his fifties, in the early morning hours of January 18, 1964, across the street from a tavern near Elkton, Maryland. The same incident was before this Court in the case of Vandegrift v. State, 237 Md. 305, 206 A.2d 250 (1965). Although the appellant claims several errors occurred in the trial, we find it necessary to decide only one of the issues, i.e., whether the trial judge committed prejudicial error when he declared, in the presence of the jury, that a certain witness for the State was hostile. The State called as a witness one Richard Davis, who had been mentioned previously in the trial as having been one of the men who had participated with the appellant in the attack upon the prosecuting witness. Davis had been indicted along with Elmer but before the latter's trial the State had confessed not guilty as to Davis. During the course of the direct examination of Davis, the judge "declared" him to be hostile, in the presence of the jury, under the following circumstances: "Q. [by the State's Attorney]: You didn't hear Richie Vandegrift [one of the accused] say, `I will stop him from calling the police'? "[Defense Counsel]: Your Honor, I object to this. "The Court: Why ? "[Defense Counsel]: Because he can't lead the witness, and he has even gone one step further. *4 "The Court: This is his witness. Are you taken by surprise at what this man is saying? "[Defense Counsel]: No. "The Court: I am asking him [the State's Attorney]. Wait a minute. "[State's Attorney]: Your Honor, I am not taken by surprise, but he is a hostile witness and I would like to have him declared as such. "The Court: I will declare him as such. Go ahead. (Emphasis supplied.) "[Defense Counsel]: I object, your Honor. "The Court: All right, you have your objection. "[State's Attorney]: Q. You didn't hear Vandegrift say he was getting him, he would stop him? A. No, sir. "Q. Nothing of that nature? A. All I heard Richie say, `Somebody better help this man. I will help him.' That is all I heard. "Q. And you are going to stick to that, are you? A. That is all I heard, yes, sir. "[State's Attorney]: Okay. You can have him." Defense counsel did not make a motion for a mistrial, or a motion to strike out the judge's declaration that the witness was a hostile one and to instruct the jury to disregard it, and it has been suggested that the failure to make either of these motions prevents our review of the question as to the prejudicial effect of the judge's remarks. There can be little doubt that the making of one, or both, of these motions by defense counsel would properly have preserved the question involved in the above objection for review. We have so stated on several occasions. See, for example, Bryant v. State, 207 Md. 565, 585, 115 A.2d 502 (1955). But, in order to determine whether these are the only methods, under all circumstances, of preserving the question of allegedly improper remarks of the trial judge for appellate consideration, we must consider our previous decisions and our present Maryland Rules. We do not deem it necessary to go back earlier than the case *5 of Sandruck v. Wilson, 117 Md. 624, 84 A. 54 (1912), which involved a civil proceeding. This Court stated a trial judge should be careful to avoid expressing in the presence of the jury an opinion as to the existence of any fact which should be left to their determination, but held that remarks of the trial judge which plainly indicated that he thought the plaintiff should recover were not prejudicial in that particular case, as the judge could properly have instructed the jury to return a verdict for the plaintiff. In Lee v. State, 163 Md. 56, 58, 161 A. 284 (1932), the Court noted that "the appeal has not been perfected in entire compliance with the rules governing appeals to this court," but went on to reverse, holding that the appellant had been denied a constitutional right to equal protection of the laws. One of the contentions raised in Marino v. State, 171 Md. 104, 187 A. 858 (1936), was a claim that the trial judge had made improper statements in the presence of the jury. The Court stated that if the defendant desired "to reserve these questions, he should have moved the court" to declare a mistrial. However, the Court proceeded, after stating that the trial judge "should be exceedingly careful in any remarks made by him * * *," to consider and decide the question, stating further "the above statements of the court do not constitute an expression as to the existence or not of any fact, its weight or credibility, but only relate to the admissibility of evidence, and, to some extent, the reason for its rejection * * *." (p. 110 of 171 Md.). In 1938, the case of Kirschgessner v. State, 174 Md. 195, 198 A. 271 (1938), was decided; more will be said of this case later. Chief Judge Bond wrote the opinion in Cohen v. State, 179 Md. 696 (where it is unreported), 16 A.2d 878 (where it is reported) (1940). There, reversible error was claimed in a remark made by the trial judge. The record failed to reproduce the complained of incident with clarity; however, the Court assumed "some damage" resulted. The opinion pointed out that no motion to strike out the remark, to warn the jury to disregard the same, or to declare a mistrial had been made, and stated, "Correction by one of them must be attempted to enable *6 this court to set aside a judgment because of an improper remark." (p. 879). Although stating this as a general rule, the Court was careful to say: "We do not pass on available methods of correcting any interference by a court that might amount to a denial of due process of law." (p. 880). (Emphasis supplied.) It will be noted that this decision was rendered prior to the adoption of our present rules of court when formal bills of exceptions had to be presented in order to obtain a review of lower court rulings by this Court. It will also be noted that "available methods" of correcting a denial of due process were not included within the scope of the ruling laid down. Lubinski v. State, 180 Md. 1, 22 A.2d 455 (1941), was decided the following year. Again, remarks made by the trial court were challenged. The Court stated that there were "no exceptions to any of these remarks, nor was there any motion made as a result of them," hence their propriety was not properly before the Court for review. However, the opinion noted the exception named in Cohen, supra, relative to "available methods of correcting" any denial of due process, and went on to say: "We find nothing in the rulings on the evidence * * * or in the remarks of the trial court, which would justify us in concluding there has been any denial of due process of law, or any infringement on the constitutional rights of the appellant." (Emphasis supplied.) (pp. 9-10 of 180 Md.) This case seems to have been the last one (touching the question involved here) decided before the adoption on November 1, 1945, of Court of Appeals Rule 17, the forerunner of present Maryland Rule 522, which applies to criminal proceedings by virtue of Rule 725 f. At the time of the trial below, Rule 522 a and b read as follows: "a Formal Exceptions Unnecessary. A formal exception to a ruling or order of the court is unnecessary. "b Action Desired or Objection. For purposes of reconsideration by the trial court or review on appeal, it is sufficient that a party at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires *7 the court to take or his objection to the action of the court, and unless requested by the court it shall not be necessary to state the grounds therefor." Since the adoption of this rule, we have decided several cases involving the question under consideration, but none seems to have dealt explicitly with the matter as to how Rule 522 relates thereto. In Brown v. State, 203 Md. 126, 100 A.2d 7 (1953), no objection was made to the court's action (challenged remarks of the trial judge); hence the question was not properly before the Court of Appeals. In Bryant v. State, supra (207 Md. 565, 115 A.2d 502), the Court repeated the propriety of making one or more of the motions mentioned above when complaint is made of remarks made by the trial judge. The opinion stated that "The degree of severity of a trial judge's rebukes of an attorney" is left to the discretion of the trial judge "as long as they do not prevent a fair and impartial trial." (Emphasis supplied.) The Court held that the record failed to show that the actions and statements of the judge were such "as to deprive him [the defendant] of a fair and impartial-trial." (p. 585 of 207 Md.). The trial judge in Wolfe v. State, 218 Md. 449, 146 A.2d 856 (1958), attempted to assist the defendant, who was not represented by counsel; however, we were of the opinion that certain of the remarks made by the trial court in the presence of the jury, in doing so, were, in fact, prejudicial. Judge Horney, for the Court, pointed out that "Generally, the prejudicial effect of improper remarks may not be raised on appeal unless preserved by an appropriate objection" (a motion to declare a mistrial or a motion to strike out the remarks), but, under the circumstances there prevailing, we held that "we must of our own motion take cognizance of and correct the plain error * * * even though such error may not have been properly includible in the assignment of errors * * *." (p. 455 of 218 Md.). In other words, we concluded that the remarks made by the judge below denied the appellant due process of law. Judge Hammond, for the Court, in Brown v. State, 220 Md. 29, 39, 150 A.2d 895 (1959), stated: "There was an objection *8 to the questions [propounded by the court], which was overruled. Appellant [who was represented by counsel] did not ask that the jury be instructed to disregard the questions and answers, nor did he move for a mistrial, which are the steps we have said should be taken in such a situation. [Citation.] Nevertheless, we feel constrained to say that the questions asked were clearly improper." Again, in Rowe v. State, 234 Md. 295, 302, 199 A.2d 785 (1964), we held: "Even though a question as to the failure of the trial court to advise the jury with respect to not returning a verdict on the indictment in the event of a finding of insane now was not included in the assignment of errors, we think we must, under the unusual circumstances of this case, take cognizance of the plain error sua sponte." (It will be noted the question in this case did not involve allegedly improper remarks of a trial judge.) We have set forth the holdings in the above cases and Rule 522 a and b in order that we may consider our present question in proper perspective. We think the decisions before the adoption of Rule 522 clearly point out that, prior thereto (when formal bills of exceptions were required in order to obtain appellate review), the general rule was that the proper mode of preserving for appellate review challenged remarks made by a trial judge was by a motion for a mistrial or a motion to strike out the remarks and to warn the jury to disregard them; and, upon denial of such motion, or motions, to take exceptions to the court's rulings. To this general rule there was an exception, namely, when the record clearly showed that the accused had not had a fair and impartial trial, and thereby was denied due process of law. Although specifically noting this exception, the decisions (prior to the adoption of Rule 522) did not spell out the "available methods" to be used to obtain appellate review when the trial resulted in a denial of due process. However, in Wolfe v. State, supra, we held, as stated above, that this Court should raise the question sua sponte. See also Apple v. State, 190 Md. 661, 667-668, 59 A.2d 509 (1948). We mentioned above the case of Kirschgessner v. State (174 Md. 195). In that case the State, having failed to get responsive answers from a witness, asked for and obtained, in the *9 jury's presence, a bench warrant for him on a charge of perjury. After a forty-five minute recess the witness was brought into court in the sheriff's custody and resumed the stand, over the defendant's objection, and the bench warrant was dismissed, again over the defendant's objection. In spite of the objections, this Court ruled that "the question of prejudice to the defendant's constitutional right to a fair and impartial trial" had not been preserved for appellate review, since no motion for a mistrial had been made (p. 202 of 174 Md.). With due deference to our predecessors, we find it impossible to square the holding with the present-day concept of due process of law; therefore, to the extent that this opinion conflicts therewith that case is hereby overruled. We think, under the unusual circumstances here presented and the unquestionably harmful effects of the judge's remarks in the presence of the jury as we point out in more detail below, the accused was not afforded a fair and impartial trial and he was, therefore, denied due process of law, which, under the authorities cited above, would call for our review of the propriety of the court's remarks, even if no objection had been made thereto. However, there was an objection made as noted in the colloquy set forth above. Rule 522 explicitly states that formal exceptions "to a ruling or order of the court" is no longer necessary, but for purposes of "review on appeal" it is sufficient that a party "at the time [of] the ruling * * * makes known to the court the action which he desires the court to take or his objection to the action of the court." The rule is couched in simple and easily understood terms, and its meaning is clear: it is no longer necessary, in order to reserve for appellate review, for a party to take formal exceptions to rulings of the court during the course of a trial, provided the party makes known to the court "his objection to the action of the court," or "the action which he desires the court to take." One of the primary purposes of this Rule was to simplify procedure by doing away with unnecessary and outmoded formalities, thereby saving time in the trial of causes and avoiding unnecessary expense. Although there may be a possible question as to whether the *10 objection in the instant case was directed specifically to the remarks of the judge when he said "I will declare him as such. Go ahead," or to the judge's ruling that the State's Attorney would be allowed to ask leading questions, the objection followed the judge's remarks immediately and the doubt, if any, relative thereto should, we think, be resolved in the appellant's favor. Therefore, we conclude that the question of the propriety of the remarks made by the trial court in the presence of the jury is properly before us for review under Rule 522. The court's declaration, in the presence of the jury, of the hostility of the State's witness, Davis, clearly prejudiced the appellant's right to a fair and impartial trial. As the case developed, its outcome depended almost entirely upon the credibility which the jury would accord to the-witnesses for the State, on the one hand, and the witnesses for the defense (all of whom denied, in effect, that the appellant had participated in the attack upon the prosecuting witness), on the other. Of the State's witnesses, only one, Pinder, who was watching from a window of the tavern some 40 to 50 feet away, testified that the appellant was one of four men who tussled with the prosecuting witness, although he was unable to say which one or ones threw the prosecuting witness down and stomped on him. The prosecuting witness himself testified he did not know which of the men assaulted him. The other State's witnesses were unable to say they saw any physical contact between the appellant and the prosecuting witness. Davis' testimony was to the same effect. When the trial judge declared Davis a witness hostile to the State, after he had been called by the State and had given testimony favorable to the defense, the judge's remark clearly indicated his disbelief of the witness and unquestionably influenced the jury's appraisal of the credibility of the witness. It was, of course, the function of the jury alone, as the triers of the facts, to weigh and determine that factor. The rule in such cases was stated by this Court in United Rys. Co. v. Carneal, 110 Md. 211, at pp. 232-233, 72 A. 771 (1909), and quoted in Marino v. State, supra (at p. 110 of 171 Md.), as follows: "* * * It is undoubtedly true that a trial Judge, because of his high and authoritative position, should *11 be exceedingly careful in any remarks made by him during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury * * *." The rule was applied in Newton v. State, 147 Md. 71, 86-88, 127 A. 123 (1924), where this Court held (upon objection, unaccompanied by any motion) that remarks made by the trial court in the presence of the jury which directly reflected upon the credibility of a defense witness constituted prejudicial error. We think that the appellant must be granted a new trial. It should be noted that we are not deciding that the trial judge was wrong in concluding the witness was hostile, but rather that, even though his conclusion was correct, the prejudicial error was committed by not making the declaration of the witness' hostility (if any such declaration was felt necessary) out of the presence of the jury. Judgment reversed and case remanded for a new trial; costs to be paid by Cecil County. HAMMOND, J., filed the following dissenting opinion. I dissent because it is plain to me that out of the minuscule molehill of a routine and harmless ruling by a trial judge in the ordinary course of a criminal trial this Court has made a momentous mountain of reversible error, amounting to a deprivation of due process of law. The Court says that what occurred is reviewable on appeal for two reasons — one, because it unconstitutionally deprived the accused of a fair trial and two, because his counsel preserved it for review by objecting to it under Maryland Rule 522. Taking the latter ground first, it seems to me inescapable from the record that, assuming that rule to be applicable, the only objection ever made or thought of by appellant's counsel was to the allowing of leading questions by the State's Attorney of *12 the witness Davis. When the State's Attorney first asked a leading question, defense counsel said: "* * * I object to this"; and when the court said "Why?" answered: "Because he can't lead the witness * * *." Then when the State's Attorney said of the witness: "* * * he is a hostile witness and I would like to have him declared as such," and the court said: "I will declare him as such. Go ahead" (clearly to continue to ask leading questions), defense counsel said again: "I object," (equally clearly, it seems to me), not to the judge's agreeing with the States' Attorney's characterization of the witness as hostile but to the permitting of leading questions. No one, including the majority, questions that the witness was hostile or the propriety of allowing leading questions of him. Deprivation of due process is found by the majority because Judge Rollins, in ruling that "I will declare him as such," in response to the State's Attorney's statement that Davis was a hostile witness, destroyed or damaged prejudicially the credibility of the witness. To me this approaches, if it does not embrace, the fanciful. Of the State's witnesses only one gave support to the State sufficient to make a case for a jury to pass on. The others, of whom Davis was but one, all were obviously not sympathetic to the State's effort to convict and said from the stand as little as they could, and that reluctantly. But because a witness is reluctant to help the State or hurt the accused — in other words, is "hostile" to the State — does not necessarily mean that what testimony can be extracted from him is not to be believed. If this were so, the rule permitting the asking of leading questions of such a witness, the reason for and the aim of which is to elicit the truth, would be meaningless. It is not meaningless, any more than is the right to ask leading questions on cross-examination of a witness who has been produced by the other side. He, too, often is a "hostile" witness but this does not make his testimony on cross-examination incredible. We pay lip service to trial by jury as a bulwark of the protection of individual rights, but judicial treatment of whether a particular jury has been influenced towards unfair determination of those rights often seems to proceed on the assumption, contrary to the theory on which the jury system is based *13 and supposed to operate, that the men and women on that jury lacked average intelligence, common sense, experience and judgment. There would seem no reason in the case before us to think the jury was led to believe that Judge Rollins was announcing that he thought the witness was not a truthful man and not to be believed. It must have been apparent to them that he was merely recognizing, as every one else in the court room by then must have, that the witness wanted to say as little as he could and that, therefore, the State, in an effort to overcome his hostility towards testifying, should be able to ask him questions which would require him to give information. The claim that the passing remark of the trial judge made the trial unfair to the point of being unconstitutional under "the present-day concept of due process of law" (quite obviously meaning largely the concept now held by the Supreme Court and lower federal courts) would seem to rest on a foundation of sand. Maryland has adhered generally to the much — and to me, justly — criticized rule that the trial judge should be only an umpire. For an example of that criticism, see 3 Wigmore (3rd Ed. 1940), Sec. 784. Many courts of other jurisdictions, including those of the federal judicial system, have taken the broader approach and have held that a nisi prius judge may express his views on the merits of the case, including the guilt of the accused in exceptional cases (where guilt is clear), and as to the bearing and weight of the testimony, including its credibility, provided he makes it unequivocally plain to the jury that they independently and for themselves must make the ultimate determination. This is the practice in Great Britian and Canada. Chitty (Brickwood's Packett on Instruction to Juries), p. 126, et seq., says: "It is the practice for the judge at nisi prius not only to state to the jury all the evidence that has been given, but to comment on its bearing and weight, and to state the legal rules upon the subject and their application to the particular case, and to advise them as regards the verdict they should give." New Jersey has adopted the English rule, State v. Hummer, *14 65 A. 249, as has California, People v. Busby (Dis. Ct. App. Calif.), 104 P.2d 531; People v. Ottey (Calif.), 56 P.2d 193, and apparently also Connecticut, Michigan and Pennsylvania, Commonwealth v. Romano (Pa.), 141 A.2d 597; People v. Lintz (Mich.), 222 N.W. 201; State v. Journey (Conn.), 161 A. 515. In United States v. Murdock, 290 U.S. 389, 394, 78 L. Ed. 381, Mr. Justice Roberts for the Court said (holding the rule not applicable on the facts): "Although the power of the judge to express an opinion as to the guilt of the defendant exists, it should be exercised cautiously and only in exceptional cases. Such an expression of opinion was held not to warrant a reversal where upon the undisputed and admitted facts the defendant's voluntary conduct amounted to the commission of the crime defined by the statute. Horning v. District of Columbia, 254 U.S. 135, 65 L. Ed. 185, 41 S. Ct. 53." See also United States v. Link (3rd Cir.), 202 F.2d 592. In United States v. Kravitz (3rd Cir.), 281 F.2d 581, the judge said to the jury: "Let me say quite frankly to you that I do not believe Joseph Abrams [a witness] absolutely * * *." Judge Goodrich for the Court held this was not reversible error. This Court has said that a judge should not reflect on the credibility of a witness. Newton v. State, 147 Md. 71. As, has been noted, it is clear to me that Judge Rollins did not do this, but if it be assumed that he did and that, therefore, the error, if properly reserved for appellate review — as it was not — would amount to reversible error under Maryland law, this does not mean that the error deprived the accused of due process of law which requires reversal on the initiative of the reviewing appellate Court. Judge Rollins' ruling that he recognized Davis as a hostile witness reflected only what was undeniably and obviously true. In his charge, Judge Rollins instructed the jury that anything he said as to the evidence was advisory only and not binding on them. If it be assumed that by the form of the trial judge's *15 ruling he conveyed to the jury the impression that he thought the witness to be unworthy of belief, this would not have constituted reversible error, much less come close to a denial of due process of law in a trial in the federal courts or those of many states. The phrase in Art. 23 of the Declaration of Rights of the Maryland Constitution, "That no man ought to be taken or imprisoned * * * or deprived of his life, liberty or property, but * * * by the law of the land" has been held to be synonymous with the words "due process of law" as used in the Constitution of the United States, Slansky v. State, 192 Md. 94, and the Court of Appeals is not at liberty to set up a Maryland concept of due process against controlling decisions of the Supreme Court. Raymond v. State, ex rel. Szydlouski, 192 Md. 602. The majority in the present case have treated a brief occurrence in a trial as constituting a deprivation of due process under Maryland law when it would not have been so treated under federal law. I would affirm.
Exhibit 5 AÉROPOSTALE, INC. March 27, 2013 AÉROPOSTALE, INC. 112 West 34th Street, 22nd floor New York, NY 10120 Ladies and Gentlemen: I have acted as counsel to AÉROPOSTALE, INC., a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Registration Statement”), relating to the registration of an aggregate of 5,625,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), that may be offered and sold upon the terms and subject to the conditions set forth in the Aéropostale Second Amended and Restated 2002 Long-Term Incentive Plan (the “Plan”) In so acting, I have examined originals or copies (certified or otherwise identified to my satisfaction) of the Registration Statement and the Plan pursuant to which shares of the Common Stock will be issued and such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as I have deemed relevant and necessary as a basis for the opinion hereinafter set forth. In such examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents.As to all questions of fact material to this opinion that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of the Company. Based on the foregoing, and subject to the qualifications stated herein, I am of the opinion that the 5,625,000 shares of Common Stock being registered for sale pursuant to the Registration Statement have been duly authorized and, when issued and delivered upon receipt by the Company of consideration constituting lawful consideration under Delaware law in accordance with the Plan, will be validly issued, fully paid and non-assessable. I hereby consent to the use of this letter as an exhibit to the Registration Statement. Yours very truly, /s/ Edward M. Slezak Name: Edward M. Slezak Title: Senior Vice President and General Counsel