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EXHIBIT 32.1 CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S. C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Quarterly Report of Towerstream Corporation, (the ‘‘Company’’) on Form10-Q for the period ended September 30,2016 as filed with the Securities and Exchange Commission on the date hereof (the ‘‘Report’’), I, Philip Urso,Chairman and Interim ChiefExecutiveOfficer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: November 10,2016 /s/ Philip Urso Philip Urso Chairman and Interim Chief Executive Officer (Principal Executive Officer)
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Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
)
Plaintiff, )
)
v. ) Case No. CR-19-073-R
)
DOMINIC EUGENE HUNT, )
)
Defendant. )
ORDER
Before the Court is Defendant Dominic Hunt’s Motion in Limine to Exclude
Ballistic Evidence, or Alternatively, for a Daubert Hearing. Doc. No. 67. The Government
has responded in opposition to the motion. Doc. No. 81. Upon review of the parties’
submissions, the Court denies Defendant’s motion.
I. Background
On November 6, 2019, a federal grand jury returned a nine-count, third superseding
indictment charging Defendant with, as relevant here, two counts of being a felon in
possession of ammunition. Doc. No. 41. The two counts—Counts Eight and Nine—stem
from two shootings: One in January of 2019 and another in February of 2019. Id. During
the Oklahoma Police Department’s (OCPD) investigation at the scene of the first shooting,
officers found a Blazer 9mm Luger cartridge casing—the basis for Count Eight. Id. at 5–
6. During the OCPD’s investigation at the scene of the second shooting, officers found a
Blazer 9mm Luger cartridge casing and two Winchester 9mm Luger cartridge casings—
the basis for Count Nine. Id. at 6. Ronald Jones, a firearm and toolmark examiner for the
1
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OCPD, examined the casings and concluded that all four casings were likely fired from the
same unknown firearm, potentially a Smith & Wesson 9mm Luger caliber pistol. Doc. Nos.
81–1, 81–2. Howard Kong, a firearm and toolmark examiner for the Bureau of Alcohol,
Tobacco, Firearms and Explosives’ (ATF) Forensic Science Laboratory, found the same.
Doc. No. 81–4. The Government anticipates calling Mr. Jones and Mr. Kong at trial to
“testify regarding their training, experience, and qualifications, the basis for firearms
identification, their methods of examination in this case, their findings, and the basis for
those findings.” Doc. No. 81, pp. 4–5. Specifically, the Government intends its experts to
testify that:
(1) the ammunition charged in Count Eight was not fired from the Springfield
Armory 9mm Luger caliber pistol [the Defendant’s brother] had on March 11, 2019;
(2) the ammunition charged in Count Eight was not fired from the Smith & Wesson
.40 caliber pistol [the Defendant’s cousin] was convicted of possessing on January
20, 2019; (3) the probability the ammunition charged in Count Nine were fired in
different firearms is so small it is negligible; (4) the ammunition charged in Count
Nine was not fired from [the] Smith & Wesson .40 caliber pistol . . . ; (5) the
probability the ammunition charged in Counts Eight and Nine were fired in different
firearms is so small it is negligible; and (6) the unknown firearm was likely a Smith
& Wesson 9mm Luger caliber pistol.
Id. Defendant now moves to exclude the testimony of Mr. Jones and Mr. Kong, or
alternatively, for a Daubert hearing. Doc. No. 67.
II. Legal Standard
When it comes to the admissibility of expert evidence, district courts maintain the
role of gatekeeper. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2005). In
that role, district courts must adhere to Federal Rule of Evidence 702, which demands that
courts “assess proffered expert testimony to ensure it is both relevant and reliable. ” United
2
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 3 of 17
States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir. 2012). To do this, “the district
court generally must first determine whether the expert is qualified . . . .” United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (en banc). If the expert is sufficiently
qualified, then “the court must determine whether the expert’s opinion is reliable . . . .” Id.
“Although a district court has discretion in how it performs its gatekeeping function, ‘when
faced with a party’s objection, [the court] must adequately demonstrate by specific findings
on the record that it has performed its duty as gatekeeper.’” Avitia-Guillen, 680 F.3d at
1257 (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th
Cir. 2000)). “The proponent of expert testimony bears the burden of showing that its
proffered expert’s testimony is admissible.” Nacchio, 555 [email protected].
Here, Defendant Hunt does not object to the relevancy of the experts’ testimony nor
to the experts’ qualifications. Defendant objects only to the reliability of the experts’
testimony. Doc. No. 67, pp. 11–18. Therefore, the Court need only address whether the
experts’ testimony is reliable. See Avitia-Guillen, 680 [email protected].
“To determine reliability, courts assess the reasoning and methodology underlying
the [experts’] opinion . . . .” Thompson v. APS of Oklahoma, LLC, No. CIV-16-1257-R,
2018 WL 4608505, at *4 (W.D. Okla. Sept. 25, 2018) (internal quotation marks and
citation omitted). “The reliability standard is lower than the merits standard of correctness,
and plaintiffs need only show the Court that their experts’ opinions are reliable, not that
they are substantively correct.” Id. (internal quotation marks and citation omitted). In
Daubert v. Merrell Dow Pharmaceuticals, Inc., 5093 U.S. 579 (1993), the Supreme Court
provided a non-exhaustive list of factors to aid in this determination:
3
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 4 of 17
(1) whether the particular theory can be and has been tested; (2) whether the theory
has been subjected to peer review and publication; (3) the known or potential rate
of error; (4) the existence and maintenance of standards controlling the technique’s
operation; and (5) whether the technique has achieved general acceptance in the
relevant scientific or expert community.
United States v. Baines, 573 F.3d 979, 985 (10th Cir. 2009) (citing Daubert, 509 U.S. at
592–94).1 The reliability inquiry, however, is fact- and case-specific: no one factor is
dispositive or always applicable, and the goal remains “ensuring that an expert ‘employs
in the courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.’” Bitler, 400 F.3d at 1233 (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999)).
III. Firearm Toolmark Identification
In his motion, Defendant challenges the Governments use of firearm toolmark
identification. “Forensic toolmark identification is a discipline that is concerned with the
matching of a toolmark to the specific tool that made it. Firearm identification is a
specialized area of toolmark identification dealing with firearms, which involve a specific
category of tools.” United States v. McCluskey, No. 10-2734, 2013 WL 12335325, at *3
(D.N.M. Feb. 7, 2013) (citation omitted). “Toolmark identification is based on the theory
that tools used in the manufacture of a firearm leave distinct marks on various firearm
components, such as the barrel, breech face, or firing pins . . . [and] that the marks are
individualized to a particular firearm through changes the tool undergoes each time it cuts
1
Daubert itself was limited to scientific evidence, see United States v. Baines, 573 F.3d 979, 985 (10th Cir. 2009),
but in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court made clear that the gatekeeping
obligation of the district courts described in Daubert applies, not just to scientific testimony, but to all expert
testimony. Id. at 141.
4
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and scrapes metal to create an item in the production of the weapon.” Id. at 4. The field of
firearm toolmark examination is based on the theory that some of these markings will be
transferred to a bullet fired from the gun. Id. In conducting a firearm toolmark examination,
a firearms examiner observes three types of characteristics:
(1) Class characteristics: i.e., the weight or caliber of the bullet, the number of lands
and grooves, the twist of the lands and grooves, and the width of the lands and
grooves, that appear on all bullet casings fired from the same type of weapon and
are predetermined by the gun manufacturer;
(2) Individual characteristics: unique, microscopic, random imperfections in the
barrel or firing mechanism created by the manufacturing process and/or damage to
the gun post-manufacture, such as striated and/or impressed marks, unique to single
gun; and
(3) Subclass characteristics: characteristics that exist, for example, within a
particular batch of firearms due to imperfections in the manufacturing tool that
persist during the manufacture of multiple firearm components mass-produced at
the same time.
Ricks v. Pauch, No. 17-12784, 2020 WL 1491750, at *8–9 (E.D. Mich., 2020). Pursuant
to the theory used by the Government’s experts in this case—the Association of Firearms
and Toolmark Examiners (AFTE) method—“a qualified examiner can determine whether
two bullets were fired by the same gun by comparatively examining bullets and
determining whether ‘sufficient agreement’ of toolmarks exist,” meaning that there is
significant similarity in the individual markings found on each bullet. Id. at 9.
IV. Daubert Analysis
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The use of this type of firearm toolmark identification in criminal trials is “hardly
novel.” United States v. Taylor, 663 F. Supp. 2d 1170, 1175 (D.N.M. 2009). “For decades
. . . admission of the type of firearm identification testimony challenged by the defendant[]
has been semi-automatic . . . .” United States v. Monteiro, 407 F. Supp. 2d 351, 364 (D.
Mass. 2006); see also, e.g., United States v. Hicks, 389 F.3d 514 (5th Cir. 2004); United
States v. Johnson, 875 F.3d 1265, 1281 (9th Cir. 2017). Indeed, no federal court has deemed
such evidence wholly inadmissible. See United States v. Romero-Lobato, 379 F. Supp. 3d
1111, 1117 (D. Nev. 2019). Having been routinely admitted, “[c]ourts [are] understandably
. . . gun shy about questioning the reliability of [such] evidence,” Monteiro, 407 F.Supp.2d
at 364. However, because of the seriousness of the criticisms launched against the
methodology underlying firearms identification by Defendant in this case, the Court will
carefully assess the reliability of this methodology, using Daubert as a guide. See, e.g.,
Taylor, 663 F. Supp. [email protected]
The first Daubert factor asks whether the experts’ particular theory can be and has
been tested. Daubert, 509 U.S. at 592–94. Defendant argues—without citation—that the
theory of firearm toolmark identification rests on an assumption that has not been properly
tested. Doc. No. 67, pp. 13–14. The Government responds that its experts’ testimony is
based upon the theory and methodology developed by the Association of Firearms and
2
Some Courts have analyzed whether firearm toolmark identification can fairly be called “science” before evaluating
the Daubert factors. See United States v. Glynn, 578 F. Supp. 2d 567, 570 (S.D.N.Y. 2008). The Court need not
conduct such an analysis here. Though Defendant argues firearm toolmark identification is not a science, Doc. No.
67, p. 14, it is clearly “technical or specialized, and therefore within the scope of Rule 702.” United States v. Willock,
696 F. Supp. 2d 536, 571 (D. Md. 2010), aff’d sub nom. United States v. Mouzone, 687 F.3d 207 (4th Cir. 2012).
6
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 7 of 17
Toolmark Examiners (AFTE), and that this theory has been well tested. Doc. No. 81, pp.
15–16. The Court agrees.
Put simply, the theory of firearm toolmark identification can be and has been tested.
See, e.g., The Association of Firearm and Tool Mark Examiners, Testability of the
Scientific Principle (last visited May 14, 2020), https://tinyurl.com/yal3ja4t (collecting
studies). This conclusion is supported by other courts within the Tenth Circuit that have
already addressed the issue at length, see, e.g., United States v. Taylor, 663 F. Supp. 2d
1170, 1176 (D.N.M. 2009) (“[T]he methods underlying firearms identification can, at least
to some degree, be tested and reproduced”), in addition to a number of other courts outside
the Circuit, see, e.g., Romero-Lobato, 379 F. Supp. 3d at 1118–19 (collecting cases where
“federal courts have held that the AFTE method can be and has been frequently tested” and
holding the same). Accordingly, this first Daubert factor weighs in favor of admissibility.
The second Daubert factor asks whether the technique has been subjected to peer
review and publication. Daubert, 509 U.S. at 593–94. Defendant argues that there have not
been enough studies done of firearm toolmark identification, and that the studies available
have not been subject to peer review. Doc. No. 67, p. 14. The Government contends that
analysis recently provided by federal courts tells a different story. The Court agrees.
In evaluating whether AFTE’s method of firearm toolmark identification satisfies
the second Daubert factor, the United States District Court for the District of Nevada
recently found that:
AFTE publishes its own journal, the appropriately named ATFE Journal,
which is subject to peer review. According to AFTE’s website, the AFTE
Journal, “is dedicated to the sharing of information, techniques, and
7
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 8 of 17
procedures,” and the papers published within “are reviewed for scientific
validity, logical reasoning, and sound methodology.” [What is the Journal?,
The Association of Firearm and Tool Mark Examiners, https://afte.org/afte-
journal/what-is-the-journal (last visited May 1, 2019)]. Several published
federal decisions have also commented on the AFTE Journal, with all finding
that it meets the Daubert peer review element. See U.S. v. Ashburn, 88
F.Supp.3d 239, 245–46 (E.D.N.Y. 2015) (finding that the AFTE method has
been subjected to peer review through the AFTE Journal); U.S. v. Otero, 849
F.Supp.2d 425, 433 (D.N.J. 2012) (describing the AFTE Journal's peer
reviewing process and finding that the methodology has been subjected to
peer review); U.S. v. Taylor, 663 F.Supp.2d 1170, 1176 (D.N.M. 2009)
(finding that the AFTE method has been subjected to peer review through the
AFTE Journal and two articles submitted by the government in a peer-
reviewed journal about the methodology); U.S. v. Monteiro, 407 F.Supp.2d
351, 366–67 (D. Mass. 2006) (describing the AFTE Journal's peer reviewing
process and finding that it meets the Daubert peer review element). And of
course, the NAS and PCAST Reports themselves constitute peer review
despite the unfavorable view the two reports have of the AFTE method.
Romero-Lobato, 379 F. Supp. [email protected]. The second Daubert factor thus weighs in favor
of admissibility.
Defendant suggests that the studies mentioned above are insufficient because they
were not “black-box” studies.3 Doc. No. 67, p. 14. Defendant then cites the PCAST Report,
arguing that there has been only one black-box study on firearms identification and that
this one study has never been subject to peer review. Id. The PCAST Report cited by
Defendant “rejected studies that it did not consider to be blind, such as where the examiners
knew that a bullet or spent casing matched one of the barrels included with the test kit
. . . . ” However, “The PCAST Report did not reach a conclusion as to whether the AFTE
3
A black-box study is a blind study where “many examiners are presented with many independent comparison
problems—typically involving ‘questioned’ samples and one or more ‘known’ samples—and asked to declare whether
the questioned samples came from the same sources as one of the known samples. The researchers then determine
how often examiners reach erroneous conclusions.” President’s Council of Advisors on Science and Technology,
Exec. Office of the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-
Comparison Methods, 49 (2016), available at https://tinyurl.com/j29c5ua.
8
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 9 of 17
method was reliable or not because there was only one study available that met its criteria.”
Id. The Court does not similarly restrict its judicial review to techniques tested through
black-box studies. The Court does, however, approve of the PCAST Report’s ultimate
conclusion: “[W]hether firearms analysis should be deemed admissible based on the
‘current evidence’ is a decision that should be left to the courts.” Id.
The third Daubert factor asks whether the technique has a known or potential rate
of error. Daubert, 509 U.S. at 594. Defendant contends that because there is only one black-
box study, there is not enough information available to determine a known or potential rate
of error in the field of firearm toolmark identification. Doc. No. 67, p. 14. The Government
objects, citing federal cases discussing studies that evidence a low rate of error in firearms
analysis. Doc. No. 81, pp. 17–18. Again, the Court agrees with the Government.
As noted above, the Court declines Defendant’s invitation to restrict judicial review
to techniques tested through black-box studies. “Daubert does not mandate such a
prerequisite for a technique to satisfy its error rate element.” Romero-Lobato, 379 F. Supp.
[email protected]. Still, the Government bears the burden to demonstrate that its experts’
methodology is reliable. See Nacchio, 555 [email protected]. To that end, the Government cites
federal cases that discuss a number of studies which report a low error rate for the AFTE
method. Doc. No. 81, p. 17 (citing Romero-Lobato, 379 F. Supp 3d at 1117–18 and United
States v. Otero, 849 F. Supp. 2d 425, 433–34 (D.N.J. 2012)). Those cases discuss, for
example, a Miami-Dade Study that reported a potential error rate of less than 1.2% and an
error rate by the participants of 0.07%, in addition to an Ames Study that reported a false
positive rate of 1.52%. Id.
9
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Other federal courts examining the AFTE method’s rate of error have likewise
found it to be low. See, e.g., v. Ashburn, 88 F. Supp. 3d 239, 246 (E.D.N.Y. 2015) (“the
error rate, to the extent it can be measured, appears to be low, weighing in favor of
admission”); United States v. Taylor, 663 F. Supp. 2d 1170, 1177 (D.N.M. 2009) (“this
number [less than 1%] suggests that the error rate is quite low”). Even courts that have
found it impossible to calculate an absolute error rate for firearm toolmark identification,
have ultimately concluded that the known error rate is not “unacceptably high.” United
States v. Monteiro, 407 F. Supp. 2d 351, 367–68 (D. Mass. 2006). Defendant does not
introduce any contradictory studies. See Doc. No. 67, p. 14. Based on the record before the
Court, this third Daubert factor weighs in favor of admissibility.
The fourth Daubert factor asks whether there are standards that control the
technique’s operation. Daubert, 509 U.S. 594. Defendant argues that there are no uniform
standards controlling the AFTE method of firearm toolmark identification, and that instead,
the AFTE method is based on subjective methodology. Doc. No. 67, p. 14. The
Government argues that this subjectivity does not weigh against admissibility under the
fourth Daubert factor. Doc. No. 81, p. 18. The Court disagrees.
A main criticism of the AFTE method is that firearm examiners do not reach their
conclusions through objective criteria. See Romero-Lobato, 379 F. Supp. [email protected].
Instead, examiners use a high-powered microscope, in conjunction with their experience
and training, to determine if there is “sufficient agreement” between the “unique surface
contours” of two firearm toolmarks. AFTE Theory of Identification, The Association of
Firearm and Tool Mark Examiners, available at https://afte.org/about-us/what-is-afte/afte-
10
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theory-of-identification (last visited May 14, 2020). “The statement that “sufficient
agreement” exists between two toolmarks means that the agreement of individual
characteristics is of a quantity and quality that the likelihood another tool could have made
the mark is so remote as to be considered a practical impossibility.” 4 Id. Ultimately, the
AFTE itself recognizes that their method is “is subjective in nature.” Id. So too have other
courts. See Romero-Lobato, 379 F. Supp. 3d at 1121 (collecting cases). This fourth factor,
unlike the previous three, weighs against admissibility.
The fifth and final Daubert factor asks whether the theory or technique enjoys
general acceptance within the relevant community. Daubert, 509 U.S. at 594. Defendant
argues that the limitations of firearm toolmark identification is recent and growing, and
that because courts have not seriously considered all aspects of the field or tested its
reliability since the PCAST Report was published, the fifth Daubert factor is not satisfied
here. Doc. No. 67, p. 15. The Government responds arguing that nearly every court to have
addressed the issue has found that the AFTE method enjoys general acceptance within the
4
The AFTE further details their methodology in the following manner:
“[S]ufficient agreement” is related to the significant duplication of random toolmarks as evidence by the
correspondence of a pattern or combination of patterns of surface contours. Significance is determined by the
comparative examination of two or more sets of surface contour patterns comprised of individual peaks,
ridges and furrows. Specifically, the relative height or depth, width, curvature and spatial relationship of the
individual peaks, ridges and furrows within one set of surface contours are defined and compared to the
corresponding features in the second set of surface contours. Agreement is significant when the agreement
in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have
been produced by different tools and is consistent with agreement demonstrated by toolmarks known to have
been produced by the same tool.
AFTE Theory of Identification, The Association of Firearm and Tool Mark Examiners, available at
https://afte.org/about-us/what-is-afte/afte-theory-of-identification (last visited May 14, 2020).
11
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 12 of 17
relevant community—both before and after publication of the PCAST Report. Doc. No.
81, p. 19. The Court agrees.
The AFTE method easily satisfies this final factor. See Romero-Lobato, 379 F.
Supp. 3d at 1122 (collecting cases finding the AFTE theory to be widely accepted in the
relevant community and finding the same). In fact, the AFTE method used by the
Government’s experts here, is “the field’s established standard.” See Ashburn, 88 F. Supp.
[email protected]. That the NAS and PCAST Reports criticize the method does not undermine the
Court’s conclusion. “Techniques do not need to have universal acceptance before they are
allowed to be presented before a court.” Romero-Lobato, 379 F. Supp. 3d at 1122 (citing
Daubert, 509 U.S. at 588–99). Accordingly, this factor weighs in favor of admissibility.
Balancing the Daubert factors, the Court finds that the Government’s expert
testimony, derived from the AFTE methodology, is reliable and therefore admissible—
though subject to the limitations discussed below. The only factor that weighs against
admissibility is the fourth Daubert factor, which highlights the AFTE’s subjective
processes. But, “the subjectivity of a methodology is not fatal under Rule 702 and
Daubert.” United States v. Ashburn, 88 F. Supp. 3d 239, 246 (E.D.N.Y. 2015). By its terms,
Federal Rule of Evidence 702 permits an expert with sufficient knowledge, experience, or
training to testify about a particular subject matter. See Fed. R. Evid. 702; Romero-Lobato,
379 F. Supp. [email protected]. Daubert does not impose a rigid requirement that the expert reach
a conclusion through an entirely objective set of criteria. See Daubert, 509 U.S. at 594–
595. Here, the lack of objective criteria is overcome by the Government’s introduction of
evidence demonstrating that the method has been tested, reviewed by peers and subject to
12
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publication, found to have a potential low rate of error, and widely accepted in the relevant
community. Moreover, Defendant has not cited a single case where a federal court has
completely prohibited firearms toolmark identification testimony under Daubert.
V. Federal Rules of Evidence 702(d)
Next, Defendant argues that even if the expert testimony is admissible under
Daubert, the Government has not met its burden under Rule 702(d) to show that its experts
reliably applied the AFTE method in this case. Under that Rule:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
...
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702(d). Here, Defendant makes four specific objections. He argues that the
Government has not complied with Rule 702(d) because its experts failed to document the
basis for their findings, that a second examiner did not verify or review the experts’ work,
and that the experts failed to comply with two “validity” requirements discussed by the
PCAST Report. Doc. No. 67, p. 17. The Government denies the validity of each objection.
Doc. No. 81, pp. 21–23.
First, as the Government demonstrates, both Mr. Jones and Mr. Kong wrote detailed
reports explaining their analysis. Doc. Nos. 81–9, 81–10. Second, those reports were
reviewed by other examiners in the field. Doc. Nos. 81–1, 81–2, 81–3, 81–4. Finally, the
two validity requirements discussed by the PCAST Report—that experts must provide
evidence demonstrating their rigorous proficiency testing, in addition to whether they were
aware of any facts of the case that might influence their conclusion—are not required under
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Rule 702(d). Nevertheless, the Government has presented evidence demonstrating the
experience, certifications, and continued training of both experts. See Doc. Nos. 81–6, 81–
7, 81–8; cf Doc. No. 81–5. And both experts’ examination reports detail what case-specific
facts they were aware of when drawing their conclusions. See Doc. Nos. 81–1, 81–2.
Accordingly, the Court finds that Defendant’s objections are without merit.
VI. Daubert Hearing
As an alternative, Defendant requests a Daubert hearing to require the Government
to prove that Mr. Jones’s and Mr. Kong’s testimony will be reliable before admitting their
testimony. Doc. No. 17. Again, the Government objects. Doc. No. 81, pp. 24–25. Nothing
requires the Court to hold a formal Daubert hearing in advance of qualifying an expert. See
Goebel v. Denver and Rio Grande Western RR Co., 215 F.3d 1083, 1087 (10th Cir. 2000);
see also Kumho Tire, 526 U.S. at 152 (“The trial court must have the . . . latitude . . . to
decide whether or when special briefing or other proceedings are needed to investigate
reliability”). Considering the parties’ briefing, in addition to the Daubert and Rule 702
analysis above, the Court finds it unnecessary to conduct such a proceeding here. See, e.g.,
Ashburn, 88 F. Supp. 3d at 244 (finding Daubert hearing unnecessary). The reliability of
the Government’s expert testimony has been sufficiently addressed on the briefs. See
Goebel, 215 F.3d at 1087 (noting that a Daubert hearing “is not mandated” and that a
district court may “satisfy its gatekeeper role when asked to rule on a motion in limine”).
VII. Expert Testimony Limitations
In his penultimate argument, Defendant asks the Court to place limitations on the
Government’s firearm toolmark experts because the jury will be unduly swayed by the
14
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 15 of 17
experts if not made aware of the limitations on their methodology. Doc. No. 67, p. 18. The
Government responds that no limitation is necessary because Department of Justice
guidance sufficiently limits a firearm examiner’s testimony. Doc. No. 81, pp. 23–24.
Some federal courts have imposed limitations on firearm and toolmark expert
testimony. See, e.g., Ashburn, 88 F. Supp. [email protected]. However, many courts have continued
to allow unfettered testimony. See, e.g., Romero-Lobato, 379 F. Supp. [email protected].
The general consensus is that firearm examiners should not testify that their
conclusions are infallible or not subject to any rate of error, nor should they
arbitrarily give a statistical probability for the accuracy of their conclusions.
Several courts have also prohibited a firearm examiner from asserting that a
particular bullet or shell casing could only have been discharged from a
particular gun to the exclusion of all other guns in the world.
Id. (citing David H. Kaye, Firearm-Mark Evidence: Looking Back and Looking Ahead, 68
Case W. Res. L. Rev. 723, 734 (2018)).
In accordance with recent guidance from the Department of Justice, see Doc. No.
81–11, the Government’s firearm experts have already agreed to refrain from expressing
their findings in terms of absolute certainty, and they will not state or imply that a particular
bullet or shell casing could only have been discharged from a particular firearm to the
exclusion of all other firearms in the world. Doc. No. 81, p. 24. The Government has also
made clear that it will not elicit a statement that its experts’ conclusions are held to a
reasonable degree of scientific certainty. Id.
The Court finds that the limitations mentioned above and prescribed by the
Department of Justice are reasonable, and that the Government’s experts should abide by
those limitations. See Doc. No. 81–11, p. 3. To that end, the Governments experts:
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[S]hall not [1] assert that two toolmarks originated from the same source to the
exclusion of all other sources. . . . [2] assert that examinations conducted in the
forensic firearms/toolmarks discipline are infallible or have a zero error rate. . . . [3]
provide a conclusion that includes a statistic or numerical degree of probability
except when based on relevant and appropriate data. . . . [4] cite the number of
examinations conducted in the forensic firearms/toolmarks discipline performed in
his or her career as a direct measure for the accuracy of a proffered conclusion. . . .
. [5] use the expressions ‘reasonable degree of scientific certainty,’ ‘reasonable
scientific certainty,’ or similar assertions of reasonable certainty in either reports or
testimony unless required to do so by [the Court] or applicable law.
Id. As to the fifth limitation described above, the Court will permit the Government’s
experts to testify that their conclusions were reached to a reasonable degree of ballistic
certainty, a reasonable degree of certainty in the field of firearm toolmark identification,
or any other version of that standard. See, e.g., U.S. v. Ashburn, 88 F. Supp. 3d 239, 249
(E.D.N.Y. 2015) (limiting testimony to a “reasonable degree of ballistics certainty” or a
“reasonable degree of certainty in the ballistics field.”); U.S. v. Taylor, 663 F. Supp. 2d
1170, 1180 (D.N.M. 2009) (limiting testimony to a “reasonable degree of certainty in the
firearms examination field.”). Accordingly, the Government’s experts should not testify,
for example, that “the probability the ammunition charged in Counts Eight and Nine were
fired in different firearms is so small it is negligible,” see Doc. No. 81, p. 5. To the extent
Defendant wishes to question or clarify the experts’ findings, he may do so through cross
examination or through direct examination of his own firearm toolmark expert.
VIII. Additional Expert Information
Defendant’s final objection is to the alleged lack of information relating to Mr.
Jones’s expert testimony. Doc. No. 67, p. 19. Defendant claims that the Government should
be required to provide “a significantly more detailed summary of what it expects Mr. Jones
16
Case 5:19-cr-00073-R Document 84 Filed 06/01/20 Page 17 of 17
will testify about.” Id. Notably, Defendant provides no support for his objection, and the
Government has failed to respond in opposition. Upon review, the Court finds that the
Government has provided sufficient information relating to Mr. Jones’s expert testimony.
See Doc. No. 81, pp. 4–5; Doc. Nos. 81–1, 81–6, 81–7, 81–9.
IX. Conclusion
For the forgoing reasons, the Court denies Defendant Hunt’s Motion in Limine to
Exclude Ballistic Evidence, or Alternatively, for a Daubert Hearing, Doc. No. 67.
IT IS SO ORDERED this 1st day of June 2020.
17
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THE DREYFUS FAMILY OF FUNDS BNY MELLON FUNDS TRUST c/o The Dreyfus Corporation 200 Park Avenue New York, NY 10166 April 9, 2010 Securities and Exchange Commission Division of Investment Management treet, N.E. Washington, DC 20549 Attention: Christina DiAngelo Re: Review of Fund Filings on Forms N-CSR, N-SAR, N-PX and N-1A and 40-17G Dear Ms. DiAngelo: This letter is written in response to comments regarding the above-referenced filings discussed via telephone with you and Jeffrey Long of the staff (the "Staff") of the Securities and Exchange Commission (the "Commission") on January 19, 2010. I. Fund Filing History : 1. Comment : File semi-annual reports on Form N-CSRS, not Form N-CSR. Response : We received this comment in calendar year 2009 and have been filing, on a going forward basis, semi-annual reports on Form N-CSRS since that comment was received. 2. Comment : The following funds have no recent filing history on EDGAR: File No . Registrant Last Filing Date 811-02625 Dreyfus A Bond Plus, Inc. N-SARA/A 12/18/08 811-21047 Dreyfus Fixed Income Securities N-PX 8/19/08 811-05651 Dreyfus New York Municipal Income, Inc. 40-17g 10/16/06 811-04748 Dreyfus Premier Fixed Income Funds N-SARB 12/29/08 811-04688 Dreyfus Premier Value Equity Funds N-PX 8/21/07 What is the current status of each of these Registrants? File a Form N-8F to deregister the Registrants or bring the filings up to date. Response : These registrants have been either liquidated or merged with other funds. A Form N-8F has been filed to deregister each registrant. 3. Comment : Letters dated September 16, 2009 were addressed and sent to Michael Rosenberg regarding the filing history of the following Registrants: File No . Registrant Last Filing Date 811-22181 Dreyfus Emerging Currency & Income Fund N-2 2/20/08 811-22111 Dreyfus Global Diversified Income Fund N-2 8/10/07 811-22179 Dreyfus High Yield Municipal Income Fund N-2 2/11/08 What is the status of the responses to these letters? As provided by Rule 479 under the Securities Act of 1933, the Fund should file a substantive amendment to the registration statement or withdraw it within thirty (30) days from the date of this notice. If the Fund fails to amend or withdraw the registration statement, or furnish a satisfactory explanation as to why this cannot be done within such thirty days, an order will be issued declaring the registration statement abandoned. Response : Filings were made on February 18, 2010 to withdraw each of these registration statements. 4. Comment : When amended filings are made, please include a cover sheet detailing the reason for the amendment. Please explain the reason for the following amended filings: Original Filing Amended File No. Registrant Form Date Filing Date 811-07123 Advantage Funds, Inc. N-SAR-B/A 12/30/08 1/16/09 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-A/A 4/27/09 4/28/09 811-09903 BNY Mellon Funds Trust N-SAR-B/A 2/27/09 2/27/09 811-09903 BNY Mellon Funds Trust N-SAR-B/A 10/30/08 1/20/09 811-04813 Dreyfus Investment Funds NSAR-B/A 11/27/09 12/3/09 811-03940 Dreyfus Strategic Funds NSAR-B/A 2/27/09 3/3/09 811-05877 Dreyfus Strategic Municipal Bond NSAR-B/A 1/27/09 1/28/09 Fund 811-04765 Dreyfus New York AMT-Free NSAR-B/A 1/23/09 1/26/09 Municipal Bond Fund Response : In response to your comment, we have made correspondence filings with respect to each of these funds explaining the reasons for the amendments, and the date of each filing is indicated in parentheses below. The reason for each amendment filing noted above is as follows: Advantage Funds, Inc .: the initial filing was erroneously transmitted with a number of screens omitted. (Correspondence filing was made on January 28, 2010.) Dreyfus/Laurel Funds, Inc .: the initial filing inadvertently referenced the wrong series of the Registrant for Exhibit 77I and did not include Exhibit 77Q(1). (Correspondence filing was made on February 1, 2010.) BNY Mellon Funds Trust (2/27/09 filing): the amended filing corrected the answer to Question 7-C to apply to all series. (Correspondence filing was made on January 26, 2010.) BNY Mellon Funds Trust (10/30/08 filing): the amended filing was made to incorporate Exhibit 77M, which was inadvertently omitted from the initial filing. (Correspondence filing was made on January 26, 2010.) Dreyfus Investment Funds : the initial filing inadvertently did not reference each series of the -2- Registrant and did not include all relevant exhibits. Subsequent amended filings were made on 11/30/09 and 12/3/09 to file exhibits not included previously (including Exhibit 77B) and reference each series of the Registrant. (Correspondence filing was made on January 29, 2010.) Strategic Funds, Inc .: the amended filing was made to correct the answers to Questions 72C, 72Z, 72AA and 72CC. (Correspondence filing was made on February 1, 2010.) Dreyfus Strategic Municipal Bond Fund, Inc .: the initial filing inadvertently omitted Exhibit 77O. (Correspondence filing was made on February 1, 2010.) Dreyfus New York AMT-Free Municipal Bond Fund : the amended filing revised the answer to question 71D from 31 to 32, based on a rounding recommendation made by the Registrant's independent registered public accounting firm. (Correspondence filing was made on February 4, 2010.) II. Report of Independent Registered Public Accounting Firm included in Form N-SAR-B : 1. Comment : EX-99 to the Form N-SAR-B for Dreyfus Lifetime Portfolios, Inc. (811-07878) filed on 11/25/09 contains the Report of Independent Registered Public Accounting Firm for Dreyfus Municipal Income, Inc. File an amended Form N-SAR-B to include the correct report. Response : An amended Form N-SAR-B, which includes the correct report, was filed on January 29, 2010. 2. Comment : The reports should be addressed to the Board of Directors/Trustees and shareholders. File No. Registrant Form Filing Date 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-B 12/30/08 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-B 10/30/09 811-09903 BNY Mellon Funds Trust N-SAR-B 10/30/09 811-08703 Dreyfus High Yield Strategies Fund N-SAR-B 5/28/09 Refer to the Audit & Accounting Guide: Investment Companies (May 1, 2009), AAG-INV11.19. Response : Beginning with reports for fiscal years ended January 31, 2010, the Reports of Independent Registered Public Accounting Firm are addressed to the Board of Directors/Trustees and shareholders. 3. Comment : The reports should include the city and state of the accounting firm issuing the report. File No. Registrant Form Filing Date 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-B 12/30/08 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-B 10/30/09 811-09903 BNY Mellon Funds Trust N-SAR-B 10/30/09 811-02653 Dreyfus Municipal Bond Fund N-SAR-B 10/30/09 Response : Beginning with reports for fiscal years ended January 31, 2010, the Reports of Independent Registered Public Accounting Firm include the city and state of the accounting firm issuing the report. -3- 4. Comment : The reports should include the name of the accounting firm issuing the report. File No. Registrant Form Filing Date 811-05202 Dreyfus/Laurel Funds, Inc. N-SAR-B 10/30/09 811-02653 Dreyfus Municipal Bond Fund N-SAR-B 10/30/09 File amended Form N-SAR-Bs to include the name of the accounting firm issuing the report. Response : An amended Form N-SAR-B was filed for Dreyfus Municipal Bond Fund on March 2, 2010. On March 1, 2010, we filed a Report of Independent Registered Public Accounting Firm dated October 29, 2009 for Dreyfus/Laurel Funds, Inc. (which included the name of the accounting firm), with a cover letter, as a correspondence filing. 5. Comment : EX-99 to the Form N-SAR-B for Dreyfus/Laurel Funds, Inc. (811-05202) filed on 10/30/09 contains the Report of Independent Registered Public Accounting Firm. The report is dated October 27, 2009. The audit opinion issued for this fund is dated October 29, 2009. How can the report on internal control be issued before the audit opinion date, the date the audit work is substantially completed? Response : We have discussed this comment with the registrant's independent registered public accounting firm, which confirmed that the report date should be the same date as the audit opinion date and informed us that the difference in dates was an inadvertent typographical error. On March 1, 2010, we filed a corrected Report of Independent Registered Public Accounting Firm dated October 29, 2009, with a cover letter, as a correspondence filing. III. Form N-CSR Disclosure Items : 1. Comment : The Form N-CSR filed for Dreyfus Fund, Inc. (811-00523) on 3/3/09 for the 12/31/08 reporting period is incomplete. Item 3 is blank. File an amended Form N-CSR to include the completed filing. Response : An amended filing was made on March 2, 2010, which included the Item 3 information. 2. Comment : The Form N-CSR filed for Dreyfus Stock Fund (811-21236) on 11/30/09 for the 9/30/09 reporting period is incomplete. There are no signatures. Response : The hardcopy of this filing in the fund's files has manually executed signatures. The filed version inadvertently omitted conformed signatures. An amended Form N-CSR was filed on February 12, 2010. 3. Comment : Item 4(b) of Form N-CSR requires disclosure of the following: (b) Disclose, under the caption Audit-Related Fees, the aggregate fees billed in each of the last two fiscal years for assurance and related services by the principal accountant that are reasonably related to the performance of the audit of the registrant's financial statements and are not reported under paragraph (a) of this Item. Registrants shall describe the nature of the services comprising the fees disclosed under this category. The following Registrant's Forms N-CSR do not meet the disclosure requirements of Item 4(b) as there is no description of the nature of the services comprising the fees. -4- Fiscal File No. Registrant Year-End Filing Date 811-07123 Advantage Funds, Inc. 8/31/09 10/30/09 811-03081 Dreyfus Appreciation Fund, Inc. 12/31/08 3/3/09 811-04906 Dreyfus State Municipal Bond Fund 4/30/09 6/29/09 811-00523 Dreyfus Fund, Inc. 12/31/08 3/3/09 811-09891 Dreyfus Opportunity Funds 9/30/09 11/25/09 4/30/09 6/29/09 811-02192 Dreyfus Third Century Fund 5/31/09 7/28/09 811-04428 Dreyfus U.S. Treasury Intermediate Term 12/31/08 3/4/09 Fund 811-04429 Dreyfus U.S. Treasury Long-Term Fund 12/31/08 3/4/09 811-21236 Dreyfus Stock Funds 9/30/09 11/30/09 811-07878 Dreyfus LifeTime Portfolios, Inc. 9/30/09 11/30/09 Response : Beginning with reports for fiscal years ended January 31, 2010, the forms will contain a description of the nature of the services comprising the fees, which was inadvertently omitted from the above-referenced filings. Please note that these services typically consist of one or more of the following: (i) agreed-upon procedures related to compliance with Internal Revenue Code section 817(h), (ii) security counts required by Rule 17f-2 under the Investment Company Act of 1940, as amended (the "1940 Act"), (iii) advisory services as to the accounting or disclosure treatment of registrant transactions or events and (iv) advisory services to the accounting or disclosure treatment of the actual or potential impact to the registrant of final or proposed rules, standards or interpretations by the Commission, the Financial Accounting Standards Board or other regulatory or standard setting bodies. 4. Comment : Item 4(f) of Form N-CSR requires disclosure of the following: (f) If greater than 50 percent, disclose the percentage of hours expended on the principal accountant's engagement to audit the registrant's financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant's full-time, permanent employees. This disclosure item does not appear to be addressed in any Form. Response : We have confirmed with the registrants' independent registered public accounting firms that the audit of each registrant's financial statements for the most recent fiscal year was attributed solely to the work of the principal accountant's full-time, permanent employees. Accordingly, since Item 4(f) requires disclosure " if greater than 50 percent" (emphasis added), we do not believe that any disclosure was required. However, at the suggestion of the Staff, beginning with reports for fiscal years ended January 31, 2010, we will include the following statement: [None] [ percent] of the hours expended on the principal accountant's engagement to audit the registrant's financial statements for the most recent fiscal year were attributed to work performed by persons other than the principal account's full-time, permanent employees. 5. Comment : Item 4(e)(1) requires disclosure of the following: (e) (1) Disclose the audit committee's pre-approval policies and procedures described in paragraph (c)(7) of Rule 2-01 of Regulation S-X. -5- This item does not appear to be adequately addressed. Include more detail in Item 4(e)(1) in future filings. Current disclosure is as follows: Audit Committee Pre-Approval Policies and Procedures . The Registrant's Audit Committee has established policies and procedures (the "Policy") for pre-approval (within specified fee limits) of the Auditor's engagements for non-audit services to the Registrant and Service Affiliates without specific case-by-case consideration. Pre-approval considerations include whether the proposed services are compatible with maintaining the Auditor's independence. Pre-approvals pursuant to the Policy are considered annually. Response : Beginning with reports for fiscal years ended January 31, 2010, we will provide the following disclosure in responding to this item: Audit Committee Pre-Approval Policies and Procedures . The Registrant's Audit Committee has established policies and procedures (the "Policy") for pre-approval (within specified fee limits) of the Auditor's engagements for non-audit services to the Registrant and Service Affiliates without specific case-by-case consideration. The pre-approved services in the Policy can include pre-approved audit services, pre-approved audit-related services, pre-approved tax services and pre-approved all other services. Pre-approval considerations include whether the proposed services are compatible with maintaining the Auditor's independence. Pre-approvals pursuant to the Policy are considered annually. 6. Comment : Item 4(e)(2) of Form N-CSR requires disclosure of the following: (2) Disclose the percentage of services described in each of paragraphs (b) through (d) of this Item that were approved by the audit committee pursuant to paragraph (c)(7)(i)(C) of Rule 2-01 of Regulation S-X. The Item 4(e)(2) disclosure is inconsistent among Registrants. For example, 811-01018 discloses the following: (e)(2) None of the services described in paragraphs (b) through (d) of this Item 4 were approved by the audit committee pursuant to paragraph (c)(7)(i)(C) of Rule 2-01 of Regulation S-X. Other Registrants disclose the following: Note: In each of (b) through (d) of this Item 4, 100% of all services provided by the Auditor were pre-approved as required. In future filings, Item 4(e)(2) disclosures should address the specific disclosure requirements of Item 4(e)(2). Response : Beginning with reports for fiscal years ended January 31, 2010, the following note will follow (d): Note: [None][%] of the services described in paragraphs (b) through (d) of this Item 4 were approved by the Audit Committee pursuant to paragraph (c)(7)(i)(C) of Rule 2-01 of Regulation S-X. -6- IV. Series and Class Identifiers : 1. Comment : The following funds are listed as Active; however, they have liquidated or merged: Liquidation/Merger File No. Registrant Fund Date 811-07123 Dreyfus Advantage Funds, Inc. Select MidCap Growth 8/26/09 Fund 811-05202 Dreyfus/Laurel Funds, Inc. Large Company Stock 8/12/09 811-09891 Dreyfus Opportunity Funds Enterprise Fund 8/12/09 811-21236 Dreyfus Stock Funds International Small Cap 9/09 Response : The series and class identifiers are listed as active because we understand that a final filing on Form N-PX is required before they can be deactivated. A final Form N-PX is anticipated to be filed in August, in the normal course. 2. Comment : The Dreyfus High Yield Strategies Fund (811-08703) is listed as Inactive, but it is active. Response : Since this is a closed-end fund, no series and class identifiers are necessary. However, series and class identifiers were inadvertently included in the initial set-up for this fund; because they were not necessary, they subsequently were made inactive. As a result, it is our understanding that the "inactive" categorization appropriately applies to the series and class identifiers only, and not the fund as a registered closed-end fund. 3. Comment : The Pennsylvania series of Dreyfus State Municipal Bond Funds (811-04906) has a different series identifier for the Z class of shares. Why? Class A, B and C are under S000000353 while Class Z is under S000018822. Response : Class Z was created after Classes A, B and C. When Class Z was set up on EDGAR, it was mistakenly set up as a separate new series and class, rather than as just a new class. Unfortunately, this mistake was not discovered until a number of filings had been done using these identifiers. When EDGAR filer support was contacted by fund counsel to discuss how to remedy the issue, they were instructed to continue using the separate series identifier for Class Z. However, after further discussions with the Staff, in connection with the next filing applicable to Class Z we will obtain a new class identifier under the correct series, mark the identifier currently in use as inactive and use the correct identifier going forward. V. Fidelity Bond Filings (40-17G) : 1. Comment : The most recent fidelity bond filing with the Commission by Dreyfus funds (August 11, 2009) only contains the policy of the primary insurance carrier. Is there any reason why the policies of the secondary insurance carriers were not filed with the Commission? Response : When making our filings, including the most recent annual filing made with the Commission on August 11, 2009, we believed that the filing of the policy of the primary carrier was sufficient as the policies of the excess carriers were "follow form" policies ( i.e ., excess coverage that is subject to all of the terms and conditions of the policy beneath them). However, in light of the Staff's comment and our review of Rule 17g-1 under the 1940 Act, beginning with the receipt of the final bonds that became effective January 31, 2010, we will file the policies of all carriers. -7- 2. Comment : Since only annual filings are made by Dreyfus funds, are the policies amended when a new fund is added to the policy, and if so should amendments be filed? Response : No amendment to the policies in effect during calendar year 2009 was necessary when adding a series/portfolio of a registrant covered by the policies. The primary policy provides coverage for the listed funds "and any investment company advised, sub-advised, and/or administered by The Dreyfus Corporation now existing or acquired or created during the Bond Period." VI. Forms N-CSRBenchmarks : 1. Comment : Consider including average annual total return performance for a fund's benchmark in the applicable shareholder report on Form N-CSR Response : Although the funds are not required to include such information, beginning with reports for fiscal years ended January 31, 2010, benchmark average annual total return performance information is included in the shareholder reports. 2. Comment : With respect to the Dreyfus Passport Fund, the benchmark noted in its 6/30/08 shareholder report differed from the benchmark noted in its 12/31/08 shareholder report. Why is there a difference? If it is a change in the benchmark, the disclosure should include both benchmarks in the 12/31/08 report. Response : The change to which you referred was a change in name only, as the benchmark changed its name to "S&P Developed ex U.S. Small Cap Index" from "S&P/Citigroup EMI World ex U.S. Index." 3. Comment : With respect to The Boston Company International Small Cap Fund, the benchmark noted in each of the graph and the management discussion of fund performance ("MDFP") in its 9/30/08 shareholder report differed. Why is there a difference? If it is a change in the benchmark, the disclosure should include both benchmarks during the first year of the change. Response : The different names to which you referred was the result of a change in name only as the benchmark changed its name to "S&P Developed ex U.S. Small Cap Index" from "S&P/Citigroup EMI World ex U.S. Index." The graph contained the new name of the benchmark, while the MDFP inadvertently used the old name of the benchmark. We note that The Boston Company International Small Cap Fund has since been liquidated. VII. Form N-CSRMiscellaneous : 1. Comment : The MDFP narrative in the 8/31/09 annual report for BNY Mellon International Appreciation Fund only discussed the 8-month stub period ended 8/31/09, which reflected the change in the fund's fiscal year end from 12/31 to 8/31. In the future, the MDFP narrative covering a fiscal year change should discuss the both the stub period under the new fiscal year and the full 12-month period ended with the new fiscal year end. Response : Beginning with reports for fiscal years ended January 31, 2010, any MDFP narrative covering a fiscal year change will discuss the both the stub period under the new fiscal year and the full 12-month period ended with the new fiscal year end. 2. Comment : According to Article 12-14 of Regulation S-X (Investments in and Advances to Affiliates), the financial statements should include disclosure with respect to affiliated sweep investments. -8- Response : Beginning with reports for fiscal years ended January 31, 2010, gross additions and gross reductions of affiliated sweep investments are included in the notes to a fund's financial statements. 3. Comment : We recommended that a fund include an annual dividend rate for the preferred stock listed in its statement of investments. Response : Beginning with reports for fiscal years ended January 31, 2010, a fund's statement of investments will disclose an annual dividend rate on preferred stock. 4. Comment : The accrued expenses and other liabilities for Dreyfus Technology Growth Fund, Dreyfus Strategic Value Fund, Dreyfus Midcap Value Fund and Dreyfus International Value Fund seemed disproportionately higher than other funds. Please explain. Response : The higher expense liability was primarily due to certain sub-transfer agency expenses that were payable to non-affiliated record keepers. These funds have a higher share base using this type of arrangement than other Dreyfus funds. We note that the fees in such arrangement are paid quarterly following billing by the service providers. 5. Comment : With respect to Dreyfus Strategic Municipals, Inc. and Dreyfus Strategic Municipal Bond Fund, Inc., which employ leverage through the use of auction rate preferred stock, consider eliminating the expense ratios pertaining to total average net assets in the financial reports, or at least moving the expense ratios to a footnotesuch ratios are not required. Response : While we recognize that disclosure of this expense ratio is not expressly required, we believe that inclusion of this information is useful to investors as presented. 6. Comment : In the 9/30/08 shareholder report for each of The Boston Company Small Cap Growth Fund and The Boston Company Small Cap Tax-Sensitive Equity Fund, the statements of investments showed that healthcare constituted approximately 28% of each portfolio. What is the concentration policy of each fund and is this consistent with such policy? Response : Each fund has a policy that it will not invest 25% or more of its assets in any industry. In measuring its investments in particular industries for concentration purposes, each fund currently uses a widely-used, standardized investment classification standard. Classifications used in the financial statements generally are broader categories than those used for compliance testing of industry concentration. For example, healthcare is a "sector" under the compliance testing classification standard, within which there are subclassifications. As a result, each of these funds had substantially less than 25% of its assets in each subclassification that it considers to be an industry for concentration compliance testing purposes. We note that the presentation of portfolio holdings in the statement of investments is not required to be consistent with the industry classification standard used for compliance testing purposes. 7. Comment : While the Commission is not responsible for administering the regulations of the Financial Industry Regulatory Authority ("FINRA"), we note that Rule 2210(d)(3) requires that applicable communications with the public provide "the total annual fund operating expense ratio, gross of any fee waivers or expense reimbursements, as stated in the fee table of the investment company's prospectus
." Response : We believe that the presentation of the information upon which you commented is consistent with applicable standards. We understand that the information at the beginning of the report (cover page, inside cover page, table of contents, the letter from the chairman and the discussion of fund -9- performance) could be deemed "communications with the public" under FINRA rules. While we submit each fund's complete report to FINRA pursuant to Rule 2210, FINRA has informed us that it reviews only the above-noted information at the beginning of each report in connection with its standards, consistent with our understanding. VIII. Form N-1A : 1. Comment : For the Dreyfus Core Equity prospectus (dated 1/1/2010), a footnote to the expense table states the following: "The amounts noted in 'Other expenses' reflect expenses of the non-interested Board members." "Other expenses" in the fund's statement of operations for the same period also included loan commitment fees and interest expense. Please explain the discrepancy. Response : Beginning with prospectuses dated May 1, 2010, when applicable the footnote will be revised as follows: "The amounts noted in 'Other expenses' reflect expenses of the non-interested Board members, interest expense and loan commitment fees." 2. Comment : With respect to a unitary fee fund, what is the method of calculating the expense ratio in the fund's expense table when the Board member fees are not included in the unitary fee structure? Response : The expense ratio is calculated based on the Board member fee amount in the fund's statement of operations and such fund's average net assets for the fiscal year. * At the request of the Staff, we hereby acknowledge the following: the affected registrants are responsible for the adequacy and accuracy of the responses in this letter; Staff comments or responses to Staff comments relating to the various Commission filings do not foreclose the Commission from taking any action with respect to any such filings; and a registrant may not assert Staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. /s/ Robert R. Mullery Robert R. Mullery Vice President of the Registrants -10-
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Case 2:21-cv-00296-JLR Document 37 Filed 06/21/21 Page 1 of 2
1 Patrick H. Peluso
2 [email protected]
Woodrow & Peluso, LLC
3 3900 East Mexico Ave., Suite 300
Denver, Colorado 80210
4 Telephone: (463)603-1891
Facsimile: (463)603-1891
5
6 [Additional counsel appearing on signature page]
7 Attorneys for Plaintiff
8
9
10 UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
11
12
CLINT ENGELBRETSON, individually and Case No. 2:21-cv-00296-JLR
13 on behalf of all others similarly situated,
14 Plaintiff,
NOTICE OF VOLUNTARY DISMISSAL
15 v.
16 BAGELCODE USA, INC., a Washington
corporation; GOOGLE LLC, a Delaware
17 limited liability company; and GOOGLE
PAYMENT CORP., a Delaware corporation,
18
Defendants.
19
20
21
Plaintiff dismisses this lawsuit against Defendants without prejudice.
22
Federal Rule of Civil Procedure 41(a)(1) provides, in relevant part:
23
(a) Voluntary Dismissal.
24
(1) By the Plaintiff.
25
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66 and any
26
applicable federal statute, the plaintiff may dismiss an action without a court
27
order by filing:
28
Notice of Voluntary Dismissal
-1-
Case 2:21-cv-00296-JLR Document 37 Filed 06/21/21 Page 2 of 2
1 (i) a notice of dismissal before the opposing party serves either an answer
2 or a motion for summary judgment; or
3 (ii) a stipulation of dismissal signed by all parties who have appeared.
4 (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is
5 without prejudice. But if the plaintiff previously dismissed any federal- or
6 state-court action based on or including the same claim, a notice of
7 dismissal operates as an adjudication on the merits.
8 In this case, Defendants have neither answered Plaintiff’s Complaint nor served a
9 motion for summary judgment. In addition, no class has been certified in this matter so
10 Rule 23’s exceptions do not apply. Likewise, this case does not involve any Receiver so as
11 to implicate Rule 66.
12 Accordingly, Plaintiff hereby dismisses these proceedings in accordance with Rule
13 41(a)(1)(i) without prejudice.
14
15
Dated: June 21, 2021 CLINT ENGELBRETSON, individually and on
16 behalf of all others similarly situated,
17
By: /s/ Patrick H. Peluso
18
One of Plaintiff’s Attorneys
19
Steven L. Woodrow*
20 [email protected]
Patrick H. Peluso*
21 [email protected]
Woodrow & Peluso, LLC
22
3900 East Mexico Ave., Suite 300
23 Denver, Colorado 80210
Telephone: (463)603-1891
24 Facsimile: (463)603-1891
25 Attorneys for Plaintiff and the Class
26
* Pro Hac Vice
27
28
Notice of Voluntary Dismissal
-2-
|
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section13 or 15(d) of The Securities Exchange Act of 1934 Date of report (Date of earliest event reported): April 15, 2010 Kinetic Concepts, Inc. (Exact name of registrant as specified in its charter) Texas 0001-09913 74-1891727 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 8023 Vantage Drive San Antonio, Texas (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code: +1-845-760-1581 (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions: ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. (b)On April 15, 2010,Dr. Todd M. Fruchterman, Executive Vice President, Research, Development & Clinical Sciences, Chief Technology Officer and Chief Medical Officer of Kinetic Concepts, Inc., resigned to pursue other opportunities. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. KINETIC CONCEPTS, INC. (REGISTRANT) Date: April 21, 2010 By: /s/Martin J. Landon Name: Martin J. Landon Title: Executive Vice President and Chief Financial Officer 3
|
Citation Nr: 0213500
Decision Date: 10/02/02 Archive Date: 10/10/02
DOCKET NO. 98-03 998 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to a disability rating greater than 30 percent
for the residuals of a right hip fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Vito A. Clementi, Counsel
INTRODUCTION
The appellant had active duty from February 1965 to February
1968.
This matter was last before the Board of Veterans' Appeals
(Board) in December 1998, on appeal from a rating decision of
the Cleveland, Ohio, Department of Veterans Affairs (VA)
Regional Office (RO). Upon its last review, the Board
remanded the appellant's claim for further development of the
record.
In correspondence dated in September 2002, the appellant's
Chicago, Illinois representative stated that the appellant
was satisfied with the currently assigned disability rating
of 30 percent, but that he desired to continue his appeal
relative to its effective date. Specifically, the appellant
argued that because his claim for an increased rating arose
in February 1997, the 30 percent rating should be made
effective as of that time, vice the currently assigned 10
percent rating. (The Board observes in passing that the RO
correctly noted the appellant's claim arose by application
received in September 1994, and not February 1997).
Conversely, through his Washington, D.C. representative, the
appellant was reported in September 2002 to have continued to
disagree with the currently assigned disability rating.
Applicable law provides that absent a waiver, a claimant
seeking a disability rating greater than assigned will
generally be presumed to be seeking the maximum benefit
allowed by law and regulation, and that a claim remains in
controversy where less than the maximum available benefits
are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993).
In view of the inconsistent positions thus taken by the
appellant's representative, the Board is of the opinion that
the appellant has not withdrawn his appeal as to the issue of
a disability rating greater than assigned, and the issue
therefore remains in appellate status.
FINDINGS OF FACT
1. During the appellate period up to April 3, 2000, the
appellant's right hip disorder was characterized by pain
without significant limitation of function.
2. During the period from April 3, 2000 and thereafter, the
appellant's right hip disorder was characterized by
limitation of flexion to 25 degrees, pain, and limitation
of function.
CONCLUSIONS OF LAW
1. For the period up to April 3, 200, the criteria for an
evaluation in excess of 10 percent for a right hip
disability are not met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253, 5255
(2001).
2. For the period beginning on April 3, 2000, the criteria
for an evaluation of 30 percent for a right hip disability
are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §
4.71a, Diagnostic Codes 5251, 5252, 5253, 5255 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matter: VA's Duty to Notify and Assist
There has been a significant change in the law during the
pendency of this appeal. The Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000),
now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West Supp. 2001). The legislation has eliminated the well-
grounded claim requirement, has expanded the duty of VA to
notify the appellant and the representative, and has enhanced
its duty to assist an appellant in developing the information
and evidence necessary to substantiate a claim. See
generally VCAA.
VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The amendments were effective November 9, 2000, except for
the amendment to 38 C.F.R. § 3.156(a) that is effective
August 29, 2001. Except for the amendment to 38 C.F.R. §
3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38
C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of
this rule merely implement the VCAA and do not provide any
rights other than those provided in the VCAA." 66 Fed. Reg.
45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.
The United States Court of Appeals for Veterans Claims
(Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001)
that the VCAA was potentially applicable to all claims
pending on the date of enactment, citing Karnas v. Derwinski,
1 Vet. App. 308 (1991). Subsequently, however, the United
States Court of Appeals for the Federal Circuit held that
Section 3A of the VCAA (covering the duty to notify and duty
to assist provisions of the VCAA) was not retroactively
applicable to decisions of the Board entered before the
effective date of the VCAA (Nov. 9, 2000). Bernklau v.
Principi, No. 00-7122 (Fed. Cir. May 20, 2002); See also
Dyment v. Principi, No. 00-7075 (Fed. Cir. April 24, 2002).
In reaching this determination, the Federal Circuit appears
to reason that the VCAA may not apply to claims or appeals
pending on the date of enactment of the VCAA. However, the
Federal Circuit stated that it was not reaching that
question. The Board notes that VAOPGCPREC 11-2000 (Nov. 27,
2000) appears to hold that the VCAA is retroactively
applicable to claims pending on the date of enactment.
Further, the regulations issued to implement the VCAA are to
be applicable to "any claim for benefits received by VA on
or after November 9, 2000, the VCAA's enactment date, as well
as to any claim filed before that date but not decided by VA
as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001).
Precedent opinions of the chief legal officer of the
Department and regulations of the Department are binding on
the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes
of this determination, the Board will assume that the VCAA is
applicable to claims or appeals pending on the date of
enactment of the VCAA.
The VCAA provides that VA shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for a benefit under a law
administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. In part, the VCAA specifically
provides that VA is required to make reasonable efforts to
obtain relevant governmental and private records that the
claimant adequately identifies to VA and authorizes VA to
obtain. 38 U.S.C.A. § 5103A (West Supp. 2001).
The Board has carefully considered the evidence of record and
is of the opinion that these provisions of the VCAA have been
satisfied. The appellant has been repeatedly advised through
a Statement and Supplemental Statements of the Case dated in
February 1998, December 2000, March 2001, and July 2002 of
the general law and regulations pertaining the evaluation of
his disorders. On each of these occasions, the appellant was
also advised of his further opportunity to submit evidence in
support of the claims, and the appellant did so on several
occasions.
Moreover, the appellant has not reported being treated by any
other medical practitioners, other than VA, for his right hip
disorder, and these records are obtained. In these
circumstances, all existing evidence that would be needed to
substantiate the claim is of record and further advisement is
neither necessary nor appropriate. Cf. Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Prior to the enactment of the VCAA, it was well-settled law
that in order to trigger VA's obligation to assist in the
development of an increased rating claim, a claimant would
only need submit his competent testimony that symptoms,
reasonably construed as related to the service-connected
disability, have increased in severity since the last
evaluation. See Proscelle v. Derwinski, 2 Vet. App. 629,
631-2 (1992); see also Jones v. Brown, 7 Vet. App. 134
(1994).
The VCAA has not altered this well-established law. Indeed,
and as noted above, the VCAA specifically provides in part
that the assistance provided by VA shall include providing a
medical examination or obtaining a medical opinion when such
an examination or opinion is necessary, as further defined by
statute, to make a decision on the claim. 38 U.S.C.A.
§ 5103A.
In this matter, the appellant has been afforded four VA
medical examinations to ascertain the severity of his
disability. The report of each reflects that they were
conducted with a review of the appellant's claims folder and
with particular scrutiny upon the rating criteria as is set
forth below. Shipwash v. Brown, 8 Vet. App. 218, 222 (1995);
Flash v. Brown, 8 Vet. App. 332, 339-340 (1995).
Accordingly, this matter is ready for appellate review.
The Merits of the Claim
The appellant's disorder is presently assigned a 10 percent
rating effective from September 29, 1994; and a 30 percent
evaluation effective October 24, 2001. See, e.g., Fenderson
v. West, 12 Vet. App. 119 (1999) (at time of initial rating
"separate [staged] ratings can be assigned for separate
periods of time based on facts found").
The appellant argues that his right hip disorder is more
severe than is contemplated by the currently assigned rating.
He further challenges the different evaluations assigned to
his disability, and argues that it has been of the same
severity since the onset of his claim.
Having carefully considered the appellant's contention in
light of the record and the applicable law, the Board
concludes that the evidence supports the assignment of a 10
percent evaluation effective from September 29, 1994, but
that a 30 percent evaluation is warranted effective as of
April 3, 2000, the date of a VA examination.
Upon the facts found, the Board is of the opinion that the
severity of the appellant's disorder noted as of the
currently assigned October 24, 2001 effective date for the 30
percent evaluation are approximately the same as those noted
on April 3, 2000. To the extent that a 30 percent evaluation
will be assigned effective April 3, 2000, the appeal will be
granted. To the extent that the appellant seeks a disability
rating greater than 30 percent, the clear preponderance of
the evidence is against the claim, and the appeal will be
denied.
Applicable law provides that the appellant's rating claim is
to be decided based upon the application of a schedule of
ratings (Schedule), which is predicated upon the average
impairment of earning capacity. See 38 U.S.C. § 1155; 38
C.F.R. § 3.321(a) and 4.1. Separate diagnostic codes
identify various disabilities. See 38 C.F.R. Part 4.
In view of the number of atypical instances, it is not
expected that all cases will show all the findings specified.
38 C.F.R. § 4.21. When an unlisted condition is encountered,
it will be permissible to rate under a closely related
disease or injury in which the functions affected, the
anatomical location, and symptomatology are closely
analogous. Conjectural analogies will be avoided, as will
the use of analogous ratings for conditions of doubtful
diagnosis, or for those not fully supported by clinical and
laboratory findings. Nor will ratings assigned to organic
diseases and injuries be assigned by analogy to conditions of
functional origin. See 38 C.F.R. § 4.20.
The appellant's disorder is evaluated under 38 C.F.R. §
4.71a, Diagnostic Code 5252. Under this provision of the
Schedule, limitation of flexion of the thigh to 45 degrees
warrants a 10 percent evaluation; limitation to 30 degrees
warrants a 20 percent evaluation; limitation to 20 degrees
warrants a 30 percent evaluation; and limitation to 10
degrees warrants a 40 percent evaluation. 38 C.F.R. § 4.71a,
Diagnostic Code 5252. Also for consideration is 38 C.F.R. §
4.71a, Diagnostic Code 5253, providing that limitation of
rotation of the thigh, cannot toe-out more than 15 degrees or
limitation of adduction, cannot cross legs warrants a 10
percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5253.
Limitation of abduction of, motion lost beyond 10 degrees
warrants a 20 percent evaluation. Id.
Because the appellant's disorder is evaluated based in whole
or part upon resulting range of motion diminution, also for
consideration are provisions relative to functional loss.
See 38 C.F.R. §§ 4.40. 4.45; Spurgeon v. Brown, 10 Vet. App.
194, 196 (1997); DeLuca v. Brown, 8 Vet. App. 202, 205
(1995). Section 4.40 provides in part that functional loss
may be due to pain, supported by adequate pathology, and
evidenced by the visible behavior of the claimant undertaking
the motion. The section also provides that weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. Id.
Factors listed for consideration in 38 C.F.R. § 4.45 include
less movement than normal (due to ankylosis, limitation or
blocking, adhesions, tendon-tie-up, contracted scars, etc.);
more movement than normal (from flail joint, resections,
nonunion of fracture, relaxation of ligaments, etc.);
weakened movement (due to muscle injury, disease or injury of
peripheral nerves, divided or lengthened tendons, etc.);
excess fatigability; incoordination, impaired ability to
execute skilled movements smoothly; and pain on movement,
swelling, deformity or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing and weight-bearing are related
considerations. 38 C.F.R. § 4.45.
The degree of impairment resulting from a disability involves
a factual determination of the current severity of the
disability. Francisco v. Brown, 7 Vet. App. 55, 57-58
(1994); see also Solomon v. Brown, 6 Vet. App. 396, 402
(1994). In resolving this factual issue, the Board may only
consider the specific factors as are enumerated in the
applicable rating criteria. See Massey v. Brown, 7 Vet. App.
204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628
(1992).
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. 38 C.F.R. § 4.7. Words such as "severe,"
"moderate," and "mild" are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence-to the
end that its decisions are "equitable and just." 38 C.F.R.
4.6. It should also be noted that use of similarly
descriptive terminology by medical professionals, although
evidence to be considered by the Board, is not dispositive of
an issue. All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 U.S.C.A. 7104; 38
C.F.R. 4.2, 4.6.
The appellant underwent a VA physical examination in March
1997. The appellant reported daily pain, which increased in
severity upon standing and prolonged walking. The examiner
noted that the appellant's right hip flexion was to 115
degrees, and abduction was to 30 degrees with "definite pain
on motion." In April 1997, a VA radiographic study of the
right hip demonstrated no significant bony or joint
abnormality, and the soft tissues were noted to be normal.
In August 1998, a VA radiographic study detected minimal
degenerative arthritic changes of both hips. There was noted
no fractures, dislocations, or destructive bone changes.
The appellant underwent a further VA physical examination in
November 1999. He again reported pain with prolonged
standing and walking, and reported that he was then
experiencing pain with prolonged sitting and standing. Upon
clinical examination, the appellant was noted to walk with a
limp on the right side. Tenderness and soreness was noted
over the anterior hips, lateral right hip, and slightly over
the sciatic notch.
The examiner noted the presence of right hip pain, but
observed that the appellant had excellent hip strength, and
that he could flex his right hip to 125 degrees and abduct to
45 degrees with pain being elicited upon the points of
terminus. The appellant was diagnosed to have a residual
fracture of the right hip with arthritis.
In a February 2000 addendum, the examiner noted that the
appellant's chronic hip pain effected his movement, and that
such symptom effected his endurance and his capabilities in
prolonged standing and walking.
With application of the Schedule, the record thus
demonstrates that up to and including the time of the
February 2000 addendum, the appellant had essentially normal
range of right hip motion. See 38 C.F.R. § 4.71a, Diagnostic
Codes 5252, 5253; see also 38 C.F.R. § 4.71, Plate II
(Indicating that the normal range of hip flexion is 125
degrees, and normal hip abduction is to 45 degrees.). While
there is no question that the appellant's movement was
effected by pain, the competent medical evidence that
pinpoints where the pain affected motion made it clear that
is was at the terminus points. Although diminished capacity
of use was recorded, there was noted no clinically
demonstrated abnormality indicating disuse as set forth in 38
C.F.R. §§ 4.40 and 4.45. On the contrary, excellent hip
strength was noted. Absent the demonstration of some pain on
use and some limitation of function, a compensable rating
would not have been warranted.
It was upon a VA physical examination on April 3, 2000 that
clinical findings approximating the assignment of a 30
percent rating were noted. Although the appellant reported
increasing right hip pain, soreness, tenderness, and
stiffness, as well as fatigability and lack of endurance, the
examiner specifically noted that the appellant was then
walking with an altered gait and the examiner observed an
unequal pattern of wear on the appellant's shoes.
Significantly in the Board's view, although the appellant
reiterated prior reports as to the severity of his right hip
disorder, (i.e., generalized tenderness and soreness) such
appeared to have been confirmed by the examiner.
Additionally, while as previously, range of motion testing
resulted in flexion to 125 degrees and abduction to 45
degrees and pain was again noted upon the terminus of these
movements, also noted was about one inch of atrophy of his
right thigh. The examiner further confirmed that the
appellant had a rotational deformity, and that his ability to
stand, walk, climb, squat, and crawl were effected. There
was no report of flare up.
The essential findings of the April 3, 2000 VA examination
were reiterated thereafter. VA medical records were obtained
reflecting continuous care during the appellate period. Of
note, the appellant was treated in August 2000 for a
continuing complaint of right hip weakness and a rotational
abnormality of the right hip. He reported continued weakness
and an inability to abduct his hip. Upon objective
examination, atrophy of the right hip and calf were noted.
The appellant underwent a further VA examination in October
2001. The appellant reported increasing and constant pain
and a sensation that his right hip would "give way,"
although he did not report any episodes where such a collapse
or dislocation would occur. As to functional ability, the
appellant reported that at best, he was able to walk a
distance of from one-half to a full block before he had to
stop.
Upon clinical examination, the appellant's hip flexion was
limited to 25 degrees while in the supine position. The
examiner noted that it was "interesting" that he could flex
his hip to 90 degrees while seated without significant pain.
Abduction was to 10 degrees.
While the clinical findings from April 2000 and October 2001
are thus supportive of the assignment of a 30 percent rating,
they do not approximate findings consistent with a higher, 40
percent evaluation. Flexion limited to 10 degrees has not
been reported, nor has such diminished capacity by pain or
functional loss been evidenced was to warrant a higher
evaluation.
ORDER
Upon the facts found, no increase is warranted in the 10
percent disability rating prior to April 2, 2000, but a 30
percent disability rating but not higher, effective April 3,
2000 is granted, subject to the statutes and regulations
governing the payment of monetary awards.
Richard B. Frank
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
|
172 F. Supp. 890 (1959)
Agnes J. TUCK, as Executrix of the Estate of George A. Tuck, deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 36926.
United States District Court N. D. California, S. D.
May 4, 1959.
Freed & Freed, San Francisco, Cal., for plaintiff.
Robert H. Schnacke, U. S. Atty., John Kaplan, Asst. U. S. Atty., San Francisco, Cal., for defendant.
ROCHE, District Judge.
This is a taxpayer's suit for refund of estate taxes paid by the estate of George A. Tuck, brought under applicable provisions of 28 U.S.C.A. § 1346(a) (1).
George A. Tuck, decedent, became a stockholder in Atlas Heating and Ventilating Company ("Atlas"), a California corporation, in 1909. As shown by minutes of a stockholders' meeting on May 2, 1910 George A. Tuck owned a *891 one-third interest in Atlas, the remaining two-thirds interests being owned by R. N. Osborn and F. H. Green. R. N. Osborn resigned as a member of the Atlas board of directors in July of 1916 leaving Tuck and Green as majority stockholders. These two men, Tuck and Green, as president and secretary-treasurer, respectively, remained in control of Atlas until 1950 when Tuck acquired the Green interest through sale.
Agnes J. Tuck, wife of George A. Tuck and plaintiff in this action, alleges that minutes of an Atlas stockholders' meeting on February 4, 1919 show that George A. Tuck owned only 1 share of Atlas stock; that sometime prior to February 4, 1919 he had given plaintiff 4,416 shares of Atlas stock, and that these shares were received from decedent as a gift.
Plaintiff further alleges that from outside sources she increased her holdings in Atlas stock, and on July 16, 1921 she owned 4,935 shares. A meeting of Atlas stockholders was held on July 16, 1921 and a stock dividend of six shares on each share outstanding was declared. Plaintiff, therefore, received 29,610 (6 × 4,935) shares of Atlas stock bringing her total Atlas holdings to 34,545 shares of stock. On July 17, 1922 plaintiff transferred 34,545 shares in Atlas stock to decedent. These shares were eventually placed in joint tenancy.
George A. Tuck died August 22, 1952. Plaintiff is the duly appointed and acting executrix of his estate. As executrix of decedent's estate plaintiff filed with the District Director of Internal Revenue at San Francisco, California, form 706, Estate Tax Return for the Estate of George A. Tuck, and on or about November 17, 1953 paid the tax shown thereon in the amount of $45,874.70.
Thereafter defendant United States of America, through its Commissioner of Internal Revenue, assessed against the estate of George A. Tuck an additional tax of $24,336.48 plus interest in the amount of $3,754.57. On October 19, 1956 plaintiff paid the additional tax and interest amounting to $28,091.05.
On July 25, 1957 plaintiff filed form 843 with the District Director of Internal Revenue for refund of the $28,091.05 tax assessment paid in 1957, and $3,000 of the taxes paid by her in 1953. This claim was not allowed, and on December 18, 1957, plaintiff filed this action praying for judgment against defendant in the amount of $31,091.05 plus interest.
Three questions are presented by plaintiff's claim for refund of taxes paid the District Director of Internal Revenue. (1) Was the stock dividend declared by Atlas on July 16, 1921 includable in the gross estate of George A. Tuck? (2) Were the fair market values placed on shares of stock in two California corporations by the District Director of Internal Revenue and held by the Tuck family at George A. Tuck's death too high? (3) Should a $6,399.65 cash contribution made to Atlas by the Tuck trust on April 13, 1931 be included in decedent's gross estate?
The Stock Dividend Issue
It is stipulated that 4,416 shares of Atlas stock owned by plaintiff on July 16, 1921 were a gift to plaintiff by George A. Tuck, and that these shares were properly includable in decedent's gross estate. On that date, July 16, 1921, Atlas declared a stock dividend, and for each share of Atlas stock outstanding stockholders were given 6 shares. Plaintiff, in addition to the 4,416 shares given her by George A. Tuck, had acquired 519 shares from outside sources; thus, she received 29,610 shares of Atlas stock as a result of the stock dividend.
Plaintiff contends that the shares of stock which she received as a result of the stock dividend became her personal property; that on July 17, 1922, one year and one day after the stock dividend declaration, she gave back to George A. Tuck, not only the 4,416 shares of Atlas stock which he had given her, but the shares she had received as a stock dividend as well; therefore, plaintiff contends *892 that the shares resulting from the stock dividend should not be included in George A. Tuck's gross estate.
The statute here applicable provides:
"The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States
* * * * * *
"(e) Joint interests
"(1) To the extent of the interest therein held as joint tenants by the decedent and any other person, * * * except such part thereof as may be shown to have originally belonged to such other person and never to have been received or acquired by the latter from the decedent for less than an adequate and full consideration in money or money's worth: * * *." 26 U.S.C.A. (Internal Revenue Code 1939) § 811(e) (1).
Plaintiff cites six cases in support of her position on the stock dividend issue. Commissioner of Internal Revenue v. McDermott's Estate, 7 Cir., 1955, 222 F.2d 665, 55 A.L.R. 2d 410; Burns v. Commissioner of Internal Revenue, 5 Cir., 1949, 177 F.2d 739; Humphrey's Estate v. Commissioner of Internal Revenue, 5 Cir., 1947, 162 F.2d 1; Harvey v. United States, 7 Cir., 1950, 185 F.2d 463; Commissioner of Internal Revenue v. Gidwitz' Estate, 7 Cir., 1952, 196 F.2d 813, and McGehee v. Commissioner of Internal Revenue, 5 Cir., 1958, 260 F.2d 818, 820. In each of plaintiff's cases there had been a gift or transfer of property in contemplation of death; in three of these cases trusts had been established. The rule of law is clearly enunciated in these cases that only the corpus of a trust and not the income therefrom is includable in a decedent's gross estate. There was in McGehee v. Commissioner, supra, as in the instant case a gift of shares of stock and after the gift, stock dividends declared, and since plaintiff relies most heavily on this case it will bear careful analysis.
In McGehee v. Commissioner decedent made gifts in 1947, 1948, and 1949 of stock in a paper company totaling 774 shares. In 1948 and 1949 the paper company declared stock dividends. There it was conceded that the transfers of 774 shares of stock should be included in decedent's gross estate. The Commissioner, however, asserted and the Tax Court held that shares of stock issued as stock dividends were also to be included. 28 T.C. 412. The Court of Appeals for the Fifth Circuit, in reversing the Tax Court said:
"We conclude that of the stock of Jacksonville Paper Company, only 774 shares should have been included in the gross estate of the decedent."
Plaintiff contends that the holding in that case is decisive of the question in the instant case; that since the shares of stock resulting from issuance of stock dividends in that case were not includable in the gross estate of decedent, the shares of stock resulting from issuance of Atlas stock dividends should not be included in the gross estate of decedent in the instant case.
It is defendant's contention that the factual situation in McGehee v. Commissioner is materially different from the facts in the instant case. In McGehee v. Commissioner the Jacksonville Paper Company had had a nine year history of annual stock dividends; in its 13 year history to 1921 Atlas declared only one stock dividend. Again, in McGehee v. Commissioner, the stock dividends represented a capitalization of current earnings; in the instant case there is no showing that the $76,151.08, which was the excess of net worth over paid-in capital in Atlas and which formed the base for issuance of the stock dividend, represented current earnings. In other words, plaintiff would have the court hold that these earnings which are shown to have occurred in a thirteen-year period were actually all made in a period of less than three years between the gift and the stock dividend.
*893 It is true that in McGehee v. Commissioner, with a 9-year history of annual stock dividends capitalizing current earnings, the Court of Appeals held the stock dividends not includable in the gross estate of the decedent, but the court said at page 820 of 260 F.2d:
"Cases involving stock splits or stock dividends capitalizing corporate profits earned prior to the transfer might require different treatment." (Emphasis added.)
The court read the briefs submitted by counsel, has carefully reviewed plaintiff's exhibits 4 and 5 (the minute book and share record book of Atlas), and listened to oral argument by counsel. The court finds that the stock dividend issued by Atlas capitalized corporate profits earned prior to the transfer of Atlas shares from decedent to plaintiff, and that the stock dividend was includable in decedent George A. Tuck's gross estate.
The Share Valuation Issue
The second issue on which plaintiff grounds her claim for refund of taxes paid is that the determination by the District Director of Internal Revenue of the fair market values of shares of stock in two California corporations and held by the Tuck family on August 22, 1952 were too high.
When George A. Tuck died on August 22, 1952 his family owned and controlled two California corporations, Atlas and International Sales Corporation ("International"). Tuck became one of three major stockholders in Atlas in 1910. Thereafter, in 1916, upon the resignation of R. N. Osborn, Tuck and F. H. Green, acquiring periodically equal numbers of shares, became the two majority stockholders in Atlas. Similarly, these two men became the two majority stockholders in International. It is stipulated that in 1950 the Tuck family owned 50% of the stock in each corporation, and the Green family owned the remaining 50% of the stock in each corporation. It is further stipulated that the Green family sold its interests in Atlas and International to the Tuck family in 1950.
Prior to the 1950 sale Mr. Robert M. Harkness, a securities analyst, made appraisals of the assets of Atlas and International. These appraisals, in evidence as defendant's exhibit No. A, were comprehensive and detailed. From these appraisals Mr. Harkness determined that Atlas was worth $800,000, and International worth $1,225,000. Using these figures as a base the Tuck family paid the Green family $8.50 per share for its Atlas stock and $9.75 per share for its International stock. In 1950, therefore, the Tuck family became the sole owners of the outstanding shares of stock in both corporations.
Plaintiff, in preparation for filing George A. Tuck's estate tax return, obtained appraisals for the shares of stock in Atlas and International from Mr. Robert M. Harkness, and from J. Barth and Company, securities brokers. On the basis of these appraisals, in evidence as portions of plaintiff's exhibit No. 2, it was established that the fair market value for Atlas stock, as of the date of death, August 22, 1952, was $5.75 per share, and $9 per share for International. Using these share valuations plaintiff filed the estate tax return here in question, and paid taxes shown thereon.
Defendant's audit of the return resulted in assessment of a tax deficiency since it was determined that the fair market value of Atlas stock on August 22, 1952 was $8.50 per share, and that of International on the same date $9.75 per share.
In support of her contentions that the fair market valuations shown on the estate tax return were correct, plaintiff called two expert witnesses to testify; Mr. Robert M. Harkness, and Mr. Merl McHenry, general partner of J. Barth and Company.
Mr. Harkness testified that his original appraisals of the assets of the two companies in 1950 which resulted in payment of $8.50 per share for Atlas stock *894 and $9.75 per share for International stock by the Tuck family to the Green family was not applicable to the per share valuations made in 1952 by J. Barth and Company. He testified that an air of bitterness existed between the two families at the time of sale, and that this factor weighed quite heavily in the establishment of the 1950 sale price. He testified that he concurred in the fair market valuations established by the J. Barth and Company appraisals.
Mr. McHenry testified that fair market valuations of stocks such as Atlas and International which were not listed on the stock exchanges are governed by many considerations: (1) strength and integrity of the management, (2) prospects, (3) earnings and dividends, and (4) book values of the companies. He testified that his company took the earnings records for Atlas and International for the 5-year period 1947 to 1951, compared these records with the records of comparable companies whose stocks were listed on the stock exchanges, and that these comparisons adequately supported their findings that the fair market valuation of Atlas stock on August 22, 1952 was $5.75 per share and that of International $9 per share.
Defendant contends that fair market valuations of Atlas and International stock on August 22, 1952 were $8.50 and $9.75 per share, respectively. In support of these contentions defendant called Mr. Martin Hendricks to testify. Mr. Hendricks was the estate tax examiner in the Internal Revenue Service whose audit of George A. Tuck's estate tax return resulted in the deficiency tax assessment.
Mr. Hendricks testified that as a result of his audit of the estate tax return he was of the opinion that the fair market value of Atlas stock should have been $11 per share, and that of International $14 per share. He testified that when the Tuck return was audited he studied the appraisals of Atlas and International assets submitted by J. Barth and Company, and that these appraisals listed net income and earnings per share for the two corporations for the 5-year period prior to 1952 as follows:
Atlas International
Earnings Earnings
Year Net Income Per Share Net Income Per Share
1947 $132,561.28 $2.75 $201,330.85 $3.09
1948 162,440.87 3.37 216,054.92 3.31
1949 19,354.85 .40 150,772.70 2.31
1950 52,449.27 1.08 312,543.80 4.80
1951 138,019.25 2.86 194,130.18 2.98
Mr. Hendricks testified further that even though, in his opinion, the net income and earnings per share figures for Atlas and International would substantiate his fair market valuations of $11.00 and $14.00, he recommended that defendant accept the lower fair market valuations used to consummate the sale of Atlas and International stock in 1950. At this sale the price of Atlas stock was set at $8.50 per share and that of International at $9.75 per share. Defendant accepted these fair market valuations, and contends that the figures shown above for the 5-year period prior to 1952, and comparisons of Atlas and International with comparable companies substantiate this contention.
The court finds that the fair market valuations placed on shares of Atlas and International stock by the District Director of Internal Revenue, as of August 22, 1952, were not too high, *895 and approves their fair market value at $8.50 and $9.75 per share, respectively.
The Capital Contribution Issue
The third issue raised by plaintiff in her claim for refund of taxes paid is whether $6,399.65, being one-half of the interest attributable to a joint tenancy between plaintiff and decedent in a certain cash contribution to the capital of Atlas on April 13, 1931, is includable in the gross estate of decedent. It is stipulated that the Tuck trust contributed $25,598.59 to the capital of Atlas on April 13, 1931.
When plaintiff filed George A. Tuck's estate tax return she deducted $6,399.65 from the gross estate of decedent. Plaintiff made this deduction claiming that she had made contributions equal to decedent's contributions in the establishment of the Tuck trust. Plaintiff contends, therefore, that the $6,399.65 item should be excluded from decedent's gross estate since it never "originally belonged" to decedent.
Defendant did not allow this deduction and included it in decedent's gross estate. It is defendant's contention that the $6,399.65, which plaintiff asserts she contributed to the establishment of the Tuck trust, was originally received from decedent without "adequate consideration in money or money's worth."
It was incumbent upon plaintiff to prove to the court that this $6,399.65 did not originally belong to Mr. Tuck. Plaintiff has not met this burden of proof, and the court finds that this item was properly includable in the gross estate of decedent.
The three issues raised by plaintiff's suit for refund of estate taxes paid and their determination by the court follows:
(1) The stock dividend issue: The court finds that the stock dividend was includable in the gross estate of decedent, George A. Tuck.
(2) The share valuation issue: The court finds that the fair market valuations set by the District Director of Internal Revenue at $8.50 per share for Atlas and $9.75 per share for International as of August 22, 1952 were not too high, and the court approves these valuations.
(3) The capital contribution issue: The court finds that the $6,399.65 cash contribution should have been included in decedent's gross estate.
Plaintiff has failed to carry the burden of proof by a preponderance of the evidence. Judgment, therefore, will be for the defendant, United States of America.
Defendant, in accordance with Rule 21, U.S.Dist.Ct.Rules, N.D.Cal., West's Ann.Code, shall prepare a formal judgment, and findings of fact and conclusions of law in accordance with this opinion.
|
260 F. Supp. 2d 959 (2003)
Cassandra BROWN, and Amy Courtney, Plaintiffs,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION, Scotts Valley Police Department, Tom Bush, Jeff Morales, and DOES 1-10 Defendant.
No. C-01-21200 RMW.
United States District Court, N.D. California. San Jose Division.
April 23, 2003.
*961 Nathan C. Benjamin, Austin B. Comstock, Comstock Thompson Kontz & Brenner, Santa Cruz, CA, David Greene, James Wheaton, First Amendment Project, Oakland, CA, G. Dana Scruggs, Law Offices of G. Dana Scruggs, Santa Cruz, CA, for Amy Courtney, Cassandra Brown, plaintiffs.
Joseph R. Budesky, Robert J. Logan, Kisten M. Powell, Logan & Powell LLP, San Jose, CA, for Scotts Valley Police Department, Tom Bush, defendants.
Daniel P. Weingarten, California Department of Transportation, San Francisco, CA, Janet Wong, California Department of Transportation, San Francisco, CA, for California Department of Transportation, Jeff Morales, defendants.
ORDER GRANTING PERMANENT INJUNCTION
WHYTE, District Judge.
On January 29, 2002, this court issued an order preliminarily enjoining defendants California Department of Transportation and CalTrans's Director Jeff Morales (collectively "CalTrans") from continuing CalTrans's practice of granting an exemption from its permit requirements for the display of American flags on highway overpasses but prohibiting or requiring permits for other flags or banners. See January 29, 2002 [email protected]. The injunction required CalTrans to enforce its permitting rules and regulations on a content neutral and viewpoint neutral basis. Id. CalTrans brought an appeal of this court's order before the Ninth Circuit, where argument was heard on October 9, 2002. Meanwhile, from November 18, 2002 to November 19, 2002, this court held a bench trial.
On March 13, 2003, the Ninth Circuit issued an opinion affirming this court's issuance of a preliminary injunction and remanding the matter for further proceedings. As this case has already been tried, *962 the court issues the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
Based on the evidence presented to this court in connection with the November 2002 bench trial, the court makes the following findings of fact.
A. Stipulated Facts
The following facts are established by stipulation of the parties.
1. When placed on a highway overpass, signs, banners, and United States flags each constitute an encroachment and are subject to removal by CalTrans.
2. Persons wishing to display signs, banners, and United States flags from state highway overpasses have never been issued an encroachment permit to do so.
3. A private individual's display of either the United States flag or a banner by attachment to a bridge structure is inconsistent with CalTrans policy.
B. Testimony of Amy Courtney[1]
4. Ms. Courtney is a farm worker who lives in Santa Cruz County.
5. After the tragic events of September 11, 2001, plaintiff Amy Courtney witnessed the appearance of many United States flags hung from highway overpasses in the Bay Area. Courtney also witnessed banners hung from highway overpasses bearing messages including, "God Bless America," "Support Our Troops," and "United We Stand." Courtney perceived the flag as embodying a message of national unity and support for military action in the wake of the terrorist attacksthe "war" on terrorism. Courtney and co-plaintiff Cassandra Brown disagreed with the war on terrorism and decided to voice their disagreement with those who had hung flags and banners from highway overpasses.
6. On November 27, 2001, plaintiffs hung a banner from the fence on the Granite Creek Road overpass over state Highway 17 in Santa Cruz, California. Plaintiffs' banner faced northbound traffic and bore the message "At What Cost?".[2] Plaintiffs placed their banner next to a United States flag that also had been hung from the overpass fence. The flag was affixed to the outside of the overpass fence by plastic zip ties. Plaintiffs affixed their banner to the outside of the fence with twine. In addition to the flag, another banner containing the message "SC NY" was already hanging from the fence on the opposite side of the overpass.
7. Shortly after hanging their banner, plaintiffs witnessed a Scotts Valley police officer remove their banner from the overpass. The officer did not remove the flag or the "SC NY' banner.
8. After calling the Scotts Valley Police Department and the California Highway Patrol to question the removal of her banner, Courtney telephoned CalTrans. During her call to CalTrans, Courtney spoke with an individual named Golizio, who identified himself as a spokesperson for CalTrans in the district which included Santa Cruz County.[3] Golizio informed *963 Courtney that post-September 11, Cal-Trans's informal policy was to allow United States flags to remain on overpasses while other materials would be removed. Golizio also informed plaintiff that if she wished to hang a banner from the overpass, she would need to file for a permit.
9. On December 4, 2001, plaintiffs again hung anti-war banners from highway overpasses in Santa Cruz County. The first banner, which stated "Are you Buying this War?", was hung on the Highway 17 [email protected]. Hermon Road. A second banner, bearing the words "At What Cost?", was hung from the Granite Creek Road overpass. The same United States flag remained hanging from the Granite Creek Road overpass. As on November 27, plaintiffs hung their second banner next to the flag. On this occasion, plaintiffs affixed their banners to the inside of the overpass fences using twine. The banners were tied to the fence in six points, three on each side of the banner.
10. The banners which plaintiffs hung on December 4 were ultimately removed, although there is no evidence to establish who removed the banners. CalTrans, however, has stipulated that it intended to removeand would have removednot only plaintiffs' banners, but also the banner reading "SC NY."
C. Testimony of Steve Price
11. Steve Price is currently employed by CalTrans in San Luis Obispo, California and holds the position of Deputy District Director for Maintenance and Traffic Operations, District Five. CalTrans District Five is comprised of five counties including Santa Cruz County. Price has been employed in various positions with CalTrans for over twenty years.
12. Within a CalTrans District, Maintenance and Traffic Operations constitute separate divisions. In District Five, Price serves as District Director for both divisions. The maintenance division is responsible for the care of highways, which includes such tasks as removing hazards and encroachments, repair, and landscaping. The traffic operations division is responsible for activities including issuance of encroachment permits, traffic safety, signing, and striping.
13. An encroachment is the occupation of, or placement of an object within, the state highway right of way by a thirdparty.
14. An encroachment permit is written authorization from CalTrans which allows a third party to place or construct something within the highway right of way.
15. Price also testified that prior to September 11, 2001, it was his personal practice and the practice of the department to allow United States flags to remain on highway overpasses but to remove other banners or signs. Price's personal practice, however, appears to be based on isolated incidents where he saw United States flags hanging from overpasses and did not cause them to be removed. Furthermore, Price did not appear to have a basis for testifying to the practices of others. Price stated only that he had observed United States flags hung from overpasses which had not been removed and that on an unspecified number of occasions, he had observed other banners or signs on overpasses which he later observed had been removed. Price's testimony is insufficient to establish the practice of other CalTrans officials with respect to the removal of United States flags hung from highway overpasses.
16. After September 11, 2001, Price witnessed a large proliferation of United States flags affixed to highway overpasses.
17. Price confirmed that the removal of plaintiffs' banners was consistent with Cal-Trans policy.
*964 18. CalTrans communicates back and forth with law enforcement agencies.
D. Testimony of Shahram Sean Nozarri
19. Shahram Sean Nozarri is currently employed by CalTrans as the Office Chief for CalTrans encroachment permits office in the Bay Area. Nozarri has held his current position since October 2000. Nozarri previously worked in the traffic systems department of CalTrans.
20. Nozarri is familiar with CalTrans permit policy regarding the placement of banners, flags and signs on state highway overpasses. Nozarri confirmed the parties' stipulation that prior to September 11, 2001, CalTrans would not issue any permits to persons who wished to display flags or banners on highway overpasses.
21. Shortly after September 11, Nozarri had a telephone conversation with personnel at the CalTrans Sacramento headquarters. The personnel with whom Nozarri spoke were responsible for overall permit policies state wide. Nozarri and his counterparts discussed the formation of an interim policy with respect to flags on highway overpasses. Among the persons Nozarri spoke with at CalTrans headquarters was Paul Cavanaugh. Nozarri spoke with Cavanaugh on September 13, 2001. After his discussion with Cavanaugh, Nozarri wrote and disseminated an e-mail message reflecting the information he had received from CalTrans headquarters. The email states:
To: Permits Seniors
cc: [various individuals]
Subject: US FLAGS ON STATE HIGHWAYS
I just got word from HQ that the Department is formulating a temporary interim policy regarding U.S. flags on State highways in light of the recent tragedy in N.Y. and Washington. It would revolve along the following lines:
US Flags placed in State right-of-way will be allowed to remain in place for a temporary duration (while flags at fed/state buildings are flying at half-staff). Caltrans will not remove any flags but will ensure that they are placed safely and securely.
Only U.S. flags are allowed.
Permits will not be issued for such installations.
Please disseminate to appropriate field/office staff but stand by for more official information from HQ to follow.
Plaintiffs Ex. 1. Nozarri sent the email because he wanted staff to know that while no permits would be issued for flags, Cal-Trans' permit department would be tolerating United States flag installations. In other words, the permitting department adopted the information in the Nozarri email as a working policy. If CalTrans' departmental staff, including maintenance, encountered flags on highway overpasses, the departmental staff was to make sure the flags were securely in place and not flapping or otherwise posing a danger to the driving public.
22. The references in the Nozarri email message tend to show that there was not a separate policy or practice between maintenance and permits. Instead, these references show that permits would not be required for the hanging of flags and that flags would not be removed.
23. The Nozarri email, coupled with plaintiff Courtney's telephone conversation with the CalTrans employee Golizio, establish that CalTrans had adopted a working policy to allow an individual's display of United States flags from highway overpasses without a permit while not allowing an individual's non-permitted display of any other sign, banner, or flag. It appears that the working policy remained in effect until the court issued its preliminary injunction on January 29, 2002. Essentially, CalTrans had granted an exemption to its permitting requirement where an individual sought to display a United States flag from a highway overpass.
E. Testimony of Paul Cavanaugh
24. Paul Cavanaugh is currently employed in the Office of Traffic Operations in CalTrans's Sacramento, California headquarters and has worked with CalTrans since 1991. Within the Office of Traffic *965 Operations, Cavanaugh holds the position of Chief of the Encroachment Permit Branch. Cavanaugh's responsibilities include serving as a liaison between headquarters and the encroachment permitting departments of the twelve CalTrans districts.
25. Cavanaugh attended a meeting on September 13, 2001, with his supervisor and other superiors at CalTrans headquarters regarding CalTrans policy with respect to the hanging of United States flags on highway overpasses by members of the public. It appears that Cavanaugh and his colleagues decided that a working arrangement would be fashioned after the practices described in Sean Nozarri's September 13, 2001 email. After the September 13 meeting Cavanaugh communicated with Nozarri.
F. Testimony of Gregory Lane Holtom
26. Gregory Lane Holtom currently holds the position of associate right of way agent in the acquisitions branch of Cal-Trans's district office in Oakland, California. From September 2000 to September 2002, Holtom was an associate right of way agent in CalTrans's outdoor advertising branch. As part of his work with the outdoor advertising branch, Holtom was responsible for issuing permits and notices of violation with respect to outdoor advertising.
27. Holtom testified that outdoor advertising permits are not issued for the state right of way. Generally, permits are required for off-premises billboards that are visible from the main, traveled portion of the highway. Off-premises advertising refers to advertising for activities that occur outside or away from the actual, physical land on which the sign is located.
28. Holtom testified that an individual may be issued a permit for a sign structure adjacent to the state highway rightof-way and in full view of the highway. The content of an individuals message is not a criteria for the issuance of such a permit.
29. Holtom testified that there is a $300 application fee when an individual applies for an outdoor, off-site advertising permit and a $20 yearly permit fee. Furthermore, an individual's application for an outdoor, off-site advertising permit may take up to 60 days to be processed.
G. Testimony ofNevin Ouane Sams
30. Nevin Quane Sams is currently employed with CalTrans as the traffic safety engineer for CalTrans District Five. Sams is the only person in District Five who holds this position. Sams oversees three divisions of employees: accident surveillance, safety project initiation, and a sign design squad.
31. Sams holds a bachelor of science degree in civil engineering from California Polytechnic University and has worked in traffic safety since 1987. As a part of his training in traffic safety, Sams received training with respect to human factors, and in particular, to human perception and reaction time. In preparation for his testimony, Sams reviewed four documents: the CalTrans Traffic Manual, the Traffic Engineering Handbook published by the Institute of Transportation Engineers, the Federal Highway Administration's Manual of Uniform Traffic Devices, and the California Vehicle Code. CalTrans designated Sams as an expert in traffic safety engineering.
32. Sams testified to various theories employed when deciding how signs are designed and where they are placed on the highway. Essentially, highway signing attempts to communicate to drivers in a clear and concise manner so to avoid confusion and lessen the time needed for interpretation. CalTrans often uses symbols instead of words to communicate messages. *966 Messages using words should be short and legible.
33. Sams offered his opinion that as words are added to a sign, a driver's perception-reaction time increases. In Sams opinion, it takes less time to perceive and react to a United States flag than a banner because the flag does not include words, where a banner such as plaintiffs' would require reading.
34. The majority of the opinions in Sam's expert report with respect to the distraction of drivers applied equally to both flags and banners. Furthermore, Sams admitted that emotional factors related to the messages drivers receive also could affect a driver's perception and reaction time.
II. CONCLUSIONS OF LAW
The court makes the following conclusions of law.
1. A private individual's display, on a state highway overpass, of signs and banners conveying political messages is expressive activity within the meaning of the First Amendment.
2. A private individual's display, on a state highway overpass, of the United States flag is expressive activity within the meaning of the First Amendment under the circumstances following the September 11, 2001 tragedy.
3. In the wake of the September 11, 2001 terrorist attacks, this country's subsequent adoption of a "war" against terrorism, and the spontaneous proliferation of the display of the United States flag, the display of the United States flag constitutes expressive activity espousing support for this nation's unity in the effort to combat terrorism. Brown v. California Dep't of Transp., 321 F.3d 1217, 1224 (9th Cir.2003).
4. Plaintiffs' display of banners bearing the messages "Are you Buying this War?" and "At What Cost?" constituted expressive activity dissenting from the viewpoint espoused by display of the flag. See id.
5. Shortly after the September 11 terrorist attacks, CalTrans adopted a working policy which tolerated the display of United States flags from state highway overpasses by private individuals while not allowing or tolerating the display of signs, banners, or flags expressing other messages. The policy remained in effect until this court issued its preliminary injunction on January 29, 2002 and most likely would have continued in effect absent the injunction.
6. A three part inquiry is conducted to determine the merit of plaintiffs' claim that CalTrans's policy constitutes unreasonable viewpoint discrimination in violation of their First Amendment rights.
First, we must classify the highway under the Supreme Court's forum analysis to determine whether the Government's interest in limiting the use of its property... outweighs the interest of those wishing to use the property for other purposes. Second, we assess the appropriate level of scrutiny for that forum. Finally we must determine whether Cal-Trans's policy withstands this scrutiny.
Brown, 321 F.3d at 1221 (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir.1998)) (internal quotes and citations omitted).
7. California state highway overpass fences are neither public fora nor limited public fora. Brown, 321 [email protected]. Highway overpasses have not traditionally been available for public expression. Id. Further, CalTrans has not intentionally opened the state highway *967 overpasses for public discourse. Highway overpasses are not compatible with expressive activity because the unfettered display of messages on overpasses distracts drivers. Also, CalTrans's policy has been to prohibit all expressive signs, banners, and flags except for directional signs and, after September 11, 2001, United States flags. Thus, state highway overpasses are not limited public fora. Id.
8. As the highway overpasses are nonpublic fora, CalTrans' restrictions on free expression on highway overpasses "are constitutional only if the distinctions drawn are (1) `reasonable in light of the purpose served by the forum' and (2) 'viewpoint neutral.'" Id. (quoting Cornelius, 473 U.S. at 806,105 S. Ct. 3439).
9. CalTrans's policy of allowing the non-permitted display of United States flags from state highway overpasses while not allowing the display of other expressive flags, signs, or bannerswhether containing words or otherwiseis not reasonable. Id. The purpose of the highway is for transportation, and the purpose of the highway overpass and its fence is for safe crossing over the highway by either cars or pedestrians. Id. CalTrans holds the responsibility to monitor the safety and maintenance of both. Although CalTrans justifies its policy of tolerating United States flags while not allowing banners on the ground that banners pose significant safety risks (in the form of driver distraction and falling objects), the same risks inhere to an individual's display of the United States flag from highway overpasses as well. Like persons hanging a banner, persons affixing a United States flag to a highway overpass may inadvertently drop objects into the highway. A flag may become separated from its moorings and fall into the highway as easily as a banner. Moreover, since viewing the United States flag, particularly in times of war, could evoke extremely distracting thoughtsespecially strong emotional reactionsthe safety risk posed by distracted drivers is nearly equivalent between the display of the United States flag and banners containing words. See id. at 1223. Indeed, in many instances, the viewing the United States flag could evince a more distracting reaction than a banner bearing a message of varying lengths.[4]
10. CalTrans's policy of allowing the non-permitted display of United States flags from state highway overpasses while not allowing the display of other expressive flags, signs, or banners is not viewpoint neutral. As discussed above, while the proliferated display of United States flags after September 11 was an expression of solidarity and support of our nation and its policies, plaintiffs' display of their banners was a means of expressing a dissenting viewpoint that questioned the country's commitment to military action.
11. As CalTrans's policy of allowing the non-permitted display of United States flags from state highway overpasses while not allowing the non-permitted display of other expressive flags, signs, or banners is neither reasonable nor viewpoint neutral, it is unconstitutional. See id. at 1222.
12. Plaintiffs are entitled to permanent injunctive relief in the instant case. "The standard for a permanent injunction is essentially the same as for a preliminary injunction except that actual success on *968 the merits rather than likelihood of success on the merits must be shown." Ashker v. California Dep't of Corr., 224 F. Supp. 2d 1253, 1262 (N.D.Cal.2002) (citing Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988)). Thus, "[a] party is entitled to a permanent injunction if it shows actual success on the merits and the likelihood of irreparable harm." Clement v. California Dep't of Corr., 220 F. Supp. 2d 1098, 1114-15 (N.D.Cal.2002) (citing Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir.1996)). For the reasons stated above, plaintiffs have demonstrated that the CalTrans working policy violates their right to free expression under the First Amendment. As "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir.1998) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)), plaintiffs are entitled to permanent injunctive relief.[5]
III. ORDER
Defendant CalTrans is hereby permanently enjoined from continuing, adopting or implementing a policy or practice which allows an individual to hang a United States flag from a highway overpass without a permit while not allowing an individual to hang any other sign, banner, or flag from a highway overpass without a permit. CalTrans must enforce its permitting and maintenance rules and regulations on a content neutral and viewpoint neutral basis.
Nothing in this order shall preclude Cal-Trans from adopting any particular permitting or maintenance policy or practice with respect to the display of signs, flags, or banners on highway overpasses as long as those policies or practices are reasonable and viewpoint neutral.
PERMANENT INJUNCTION
Defendants California Department of Transportation and Jeff Morales (collectively "CalTrans") are hereby permanently enjoined from continuing, adopting or implementing a policy or practice which allows an individual to hang a United States flag from a highway overpass without a permit while not allowing an individual to hang any other sign, banner, or flag from a highway overpass without a permit. Cal-Trans must enforce its permitting and maintenance rules and regulations on a content neutral and viewpoint neutral basis.
Nothing in this order shall preclude Cal-Trans from adopting any particular permitting or maintenance policy or practice with respect to the display of signs, flags, or banners on highway overpasses as long as those policies or practices are reasonable and viewpoint neutral.
NOTES
[1] At trial, plaintiffs were also prepared to offer the testimony of co-plaintiff Cassandra Brown. The parties, however, stipulated that Ms. Brown's testimony was substantially identical to Ms. Courtney's and that Ms. Brown's expressive intent for hanging banners from Highway 17 overpasses on November 27, 2001 and December 4, 2001 was substantially the same as that of Ms. Courtney.
[2] Plaintiffs also intended to hang another banner from the highway overpass at Mount Herman Roadsouth from Granite Creek Road containing the message "Are You Buying this War?"
[3] CalTrans District Five is the district encompassing Santa Cruz County. See ¶ 11 supra.
[4] Although CalTrans has offered Mr. Sams's opinion that it takes less time to perceive and react to a United States flag than a banner with words because the flag does not include words, Sams's opinion is of little value here. Sams has not conducted research to support this conclusion. Sams and CalTrans have not studied the question of whether the United States flag is less distracting than all banners or signs. Further, Sams admitted that his opinion did not take into account emotional factors associated with the United States flag.
[5] CalTrans apparently sought to demonstrate that plaintiffs were not injured because they had an alternative means to voice their message in the form of billboard space along Highway 17. First, the record is less than clear as to whether plaintiffs would be required to obtain a outdoor advertising permit in order to display a political message in view of the state highway. Mr. Holtom's testimony at trial that no permit would be required is contradicted by his testimony to the contrary during his June 2002 deposition. Further, even with the availability of advertising space, CalTrans working policy would still not be viewpoint neutral. "Imposing a financial burden on one viewpoint while permitting the expression of another free of charge runs afoul of the [viewpoint neutrality] requirement." Brown, 321 [email protected]. Finally, as the delay involved in obtaining advertising space would inhibit plaintiffs' speech for even a minimal amount time, it "deals the same blow as does the permit requirement." Id.
|
The bill, in effect, is one to quiet title and may be maintained as such, although inartistically drawn. The bill sets out in detail the complainant's chain of title and recites a judgment of the defendant against which relief is sought. As the answer and agreed state of facts supply the missing jurisdictional allegations in the bill the pleadings will be considered as amended (the court having the right to revamp the pleadings) and the issue disposed of.
One Horowitz conveyed the premises described in the bill of complaint to Litterst as security against endorsements of Horowitz's notes which Litterst later paid after judgment by the bank against Horowitz and Litterst. The deed was in effect an equitable mortgage, recognized as such by the *Page 381
parties and foreclosed at the suit of Litterst, the bank being made a party defendant. The premises were sold by the sheriff in that proceeding in 1914 to one Bolger, the sale confirmed and thefieri facias returned satisfied. Bolger paid the sheriff only a part of the purchase price and the deed was delivered to Litterst's solicitor, who arranged with Bolger to give a purchase-money mortgage for the balance of the purchase price, but this was never done. The deed was never recorded and is still in the possession of Litterst's attorney. The sale was subject to prior encumbrances among which was a $10,000 mortgage held by Elias who foreclosed in 1915, making Litterst and Bolger parties defendant. They did not answer and decree went against them and the property was sold by the sheriff to complainant's predecessor in title. Neither complainant nor his predecessor in title had any notice of the bank's judgment except such as the record afforded. The complainant acquired title on October 15th, 1925. The bank assigned its judgment to Litterst on March 12th, 1925. Litterst was the cashier and an officer and director of the bank during all the period covered by these transactions. The bill seeks to have complainant's property declared free of the alleged lien of the judgment. The defendant insists that his foreclosure proceedings were not completed by delivery of the sheriff's deed to Bolger; that therefore the bank's judgment was still a lien upon the property; that the bank should have been made a party defendant in the Elias foreclosure and, as it was not, the lien of the judgment was not disturbed, and that complainant's predecessor in title took title subject to the lien of that judgment. I am unable to agree with this contention. So far as the records showed the defendant's foreclosure suit was complete, the decree fully satisfied and the bank's judgment cut out in that suit. This constituted payment of Litterst's equitable mortgage. That the balance of the purchase price was not paid by Bolger does not matter. That was the result of an arrangement between Litterst and Bolger. True, the records in the county clerk's office showed title still in Litterst and the supreme court records showed the bank's judgment still *Page 382
open; but a careful searcher having knowledge of defendant's foreclosure suit (as is apparent from the facts) had a right to rely upon the records in that suit indicating a sale to Bolger. The fact that Bolger's deed was not on record accounts for Litterst's being made a party defendant in the Elias foreclosure and indicates meticulous care by the solicitor of complainant in that suit. Had Bolger's deed been recorded the record would have been plain and Litterst need not have been made a party. Bolger was certainly the equitable owner. The complete title was in the two, Litterst and Bolger. Litterst had actual knowledge of the Elias foreclosure and was thoroughly familiar with all of the facts and of the rights of the respective parties, including the rights, if any, of the bank of which he was an officer and director. If it were incumbent upon Elias to give the bank notice of his suit, the notice and knowledge of Litterst, under the circumstances, may be imputed to the bank. Gaston v. Bank,29 N.J. Eq. 98; Trenton Banking Co. v. Woodruff, 2 N.J. Eq. 117;Bank v. Christopher, 40 N.J. Law 435; Willard v. Denise,50 N.J. Eq. 482. But the bank really had no interest. Its judgment had been paid by Litterst, who was the real party in interest under the judgment and he had actual notice of the Elias foreclosure. He sat supinely by and did nothing and cannot now profit by his inaction. The belated assignment of the judgment to Litterst, ten years after the Elias foreclosure, indicates an ineffectual attempt, based on an after-thought, to preserve Litterst's claim. Advances in real estate values may account for this sudden activity after the lapse of so many years. Having remained silent so long and especially during the pendency of the Elias foreclosure suit, with full knowledge of all of the facts, it would be inequitable to permit the defendant to now assert his judgment as a lien. The complainant is entitled to a decree. *Page 383 |
134 S.E.2d 157 (1964)
261 N.C. 125
J. Alton BASS
v.
Patsy Alease ROBERSON and C. A. Roberson.
No. 526.
Supreme Court of North Carolina.
January 17, 1964.
*158 Everette L. Doffermyre and James M. Johnson, Dunn, for plaintiff.
Dupree, Weaver, Horton & Cockman, Raleigh, for defendants.
DENNY, Chief Justice.
This is a borderline case. However, when the evidence adduced in the trial below is considered in the light most favorable to the plaintiff, as it must be on a motion for judgment as of nonsuit, in our opinion it is sufficient to warrant its submission to the jury.
Since a new trial is awarded for reasons hereinafter stated, we refrain from a discussion of the evidence set forth in the record except to the extent deemed necessary in the disposition of other assignments of error. Powell v. Clark, 255 N.C. 707, 122 S.E.2d 706; Tucker v. Moorefield, 250 N. C. 340, 108 S.E.2d 637.
*159 It is unlawful for a pedestrian to cross a street between intersections at which traffic signals are maintained unless there is a marked crosswalk between the intersections at which he may cross and on which he has the right of way over vehicular traffic, and his failure to observe the statutory requirements is evidence of negligence but not negligence per se. Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649, and cited cases; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; G.S. § 20-174.
Appellants' assignment of error No. 16 is to the following portion of the charge: "Now, gentlemen, we have a statute in this State, General Statutes 20-146, that I wish to read to you in connection with the allegations of the complaint. It is as follows: Upon all highways of sufficient width, except one-way streets, the driver of a vehicle shall drive the same upon the right-hand half of the highway and shall drive a slowmoving vehicle as closely as possible to the right-hand edge or curb of such highway unless it is impractical to travel upon such side of said highway, except when overtaking or passing another vehicle, subject to the limitations applicable in overtaking and passing set forth in General Statutes 20-149 and 20-150, which I charge you you are not to be concerned with in this case. I further instruct you, gentlemen of the jury, that if the defendant violated this statute just read to you, that it would constitute negligence. I charge you in this connection, if the defendant Patsy Carroll operated her automobile to the left of the center of said street, on the left half of said street, and she was not in the act of overtaking and passing another vehicle at that time, and that it was practical for her at that time to drive on the right half of said street, that this would be evidence of negligence."
The defendants in their further answer and defense allege that suddenly and without warning the plaintiff darted into the street immediately in front of the car being driven by defendant Patsy Carroll; that upon being confronted with this emergency which had been solely caused by the negligence of the plaintiff, defendant Patsy Carroll applied the brakes and "made every effort to avoid the plaintiff and had brought the car to a virtual stop when it lightly bumped against the plaintiff causing him to fall to the pavement."
It is further alleged that the plaintiff at the time of the accident was suffering from defective eyesight which kept him from observing approaching vehicles. Evidence was introduced by the defendants tending to support these allegations.
In our opinion, there was error in the foregoing instruction to the jury. The court pointed out that the jury was not to be concerned with the limitations applicable in overtaking and passing another vehicle as set forth in G.S. §§ 20-149 and 20-150.
The evidence of the driver of the Roberson car was to the effect that the Curtis Candy truck was parked half in and half out of the parking place, on the right-hand side of the street; that the back of the truck extended into the traveled portion of Wilson Avenue. "As I proceeded southward on Wilson Avenue, I was driving on the right-hand side. When this white (Curtis) truck began to back up, I pulled over to the left a little to go around." The record also reveals that at the time of the accident there were no other vehicles being operated in the block in which the accident occurred.
G.S. § 20-149 provides as follows: "(a) The driver of any such vehicle overtaking another vehicle proceeding in the same direction shall pass at least two feet to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle. This subsection shall not apply when the overtaking and passing is done pursuant to the provisions of G.S. 20-150.1. (b) The driver of an overtaking motor vehicle not within a business or residence district, as herein defined, shall give audible warning with *160 his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction, but his failure to do so shall not constitute negligence or contributory negligence per se in any civil action; although the same may be considered with the other facts in the case in determining whether the driver of the overtaking vehicle was guilty of negligence or contributory negligence."
The pertinent part of G.S. § 20-150 reads as follows: "(a) The driver of a vehicle shall not drive to the left side of the center of a highway, in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety."
We think the evidence supports the view that the accident occurred while the driver of the Roberson car was in the act of passing the Curtis Candy truck, and the evidence reveals no act in connection therewith in violation of the statutes with respect to such attempted passing. The negligence, if any, on the part of the driver of the Roberson car must be determined in light of the plaintiff's presence in the street and whether or not Patsy Carroll used due care to avoid colliding with plaintiff after she observed him or should have observed him in the street. G.S. § 20-174(e).
Assignment of error No. 22 also challenges the correctness of the following portion of the court's instruction to the jury: "I charge you that if the plaintiff, Mr. Bass, crossed South Wilson Avenue at a point other than on a marked crosswalk, that it was his duty under General Statutes § 20-174(a) to yield the right of way to all vehicles upon the roadway, and if you find from the evidence and by its greater weight that he failed to yield the right of way to the defendant Patsy Roberson Carroll, and you find that she had the right of way, then this would be evidence of negligence on the part of the plaintiff, Mr. Bass."
It was error to leave it to the jury to determine whether or not defendant Patsy Carroll had the right of way. The law gave her the right of way. G.S. § 20-174 in pertinent part provides: "(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway. * * * (c) Between adjacent intersections at which traffic control signals are in operation pedestrians shall not cross at any place except in a marked cross-walk."
We deem it unnecessary to discuss the remaining assignments of error since they may not recur on another trial.
New trial.
|
Exhibit 31.1 I, David W. Skiles, certify, that: 1. I have reviewed this quarterly report on Form10-QSB of FPB Bancorp, Inc.; 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 and cash flows of the small business issuer as of, and for, the periods presented in this report; 4. The small business issuer’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules13a-15(e) and 15d-15(e)) for the small business issuer 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 small business issuer, including its consolidated subsidiary, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the small business issuer’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the small business issuer’s internal control over financial reporting that occurred during the small business issuer’s most recent fiscal quarter (the small business issuer’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer’s internal control over financial reporting. 5. The small business issuer’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer’s auditors and the audit committee of the small business issuer’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 small business issuer’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 small business issuer’s internal control over financial reporting. Date: November 6, 2007 By: /s/ David W. Skiles David W. Skiles, President and Chief Executive Officer
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340 F.2d 211
PAN AMERICAN PETROLEUM CORPORATION and Socony Mobil OilCompany, Inc., Appellants,v.W. W. LONG et al., Appellees.SOUTHWESTERN LIFE INSURANCE COMPANY and Valley RoyaltyCorporation,Appellants,v.PAN AMERICAN PETROLEUM CORPORATION and Socony Mobil OilCompany, Inc., Appellees.
No. 21159.
United States Court of Appeals Fifth Circuit.
Dec. 30, 1964, Rehearing Denied March 3, 1965.
J. K. Smith, Fort Worth, Tex., Roy L. Merrill, Houston, Tex., Jack W. Flock, Charles F. Potter, Tyler, Tex., Wardlow L. Lane, Center, Tex., R. T. Wilkinson, Jr., Houston, Tex., Ramey, Brelsford, Hull & Flock, Tyler, Tex., Spruiell, Lowery, Potter, Laster & Guinn, Tyler, Tex., for appellants.
John W. Ford, Kilgore, Tex., James P. Swift, Paul McCarroll and Swift, Walsh, McCarroll & Wood, Dallas, Tex., for appellee.
Robert S. Mizell, Golden, Croley, Howell, Johnson & Mizell Dallas, Tex., amici curiae.
Before RIVES and BROWN, Circuit Judges, and GARZA, District Judge.
JOHN R. BROWN, Circuit Judge:
1
This case is another chapter in the litigation arising out of the recent slant hole oil episode in the East Texas field, this time involving two parties innocent of any purposeful wrongdoing. The question here is whether the slanted-on oil company may recover from a financial institution the proceeds of the stolen oil received by it from the purchasing pipelines in payment of loans and production payments made to or purchased from the slant-holing operator. There are two subsidiary questions. One is whether the Texas two-year Statute of Limitations, Vernon's Ann.Tex.Civ.Stat. art. 5526 (1958), applies to limit the oil company's recovery to proceeds received during the two-year period immediately preceding the filing of this action. The other is whether the financial institution must be given credit for the amount it received but paid over to its debtor pursuant to the mortgage or production payment agreement, such amount being in excess of the required monthly payments. We have concluded that the Trial Court was correct in holding Southwestern Life liable for conversion to the extent of all proceeds received during the two-year period. We therefore affirm.
2
Pan American and Socony Mobil,1 leaseholders on the east side of the field brought this action for conversion2 of oil and gas beneath their tracts against (1) the operator (H. L. Long) of the Long lease adjoining them to the west, (2) the owners of various interests in the Long lease (W. W. Long, Charles R. Stubblefield, and Mrs. Sarah Long Erickson), and (3) Southwestern Life and Valley Royalty.3 The jury in response to special interrogatories found that of the eleven wells on the Long lease, three were deviated and bottomed under the Pan Am lease and one, under the Socony lease; that all production from the Long lease came from the Pan AmSocony leases; that the slanted wells were drilled with Long's knowledge; that operator Long had fraudulently concealed the slant drilling from Pan Am; and that Pan Am had no actual knowledge of facts which would have put them to inquiry, nor through the exercise of reasonable diligence would they have known of the slant drilling.
3
With this foundation, the Trial Judge entered judgment against Operator Long for the market value of 7/8 of the oil produced over the entire 13-year period of operation of the Long lease against the other lease interest owners for the amounts they actually received during this same period; and against SEL for amounts received by it during the last two years (with interest, $232,145.42).4 Because of Operator Long's fraudulent concealment and Pan Am's not being put on notice, the statute of limitations was tolled as to him, but not as to SWL. Only Pan Am and SWL have appealed.
4
The Loan and Production Payment Transactions
5
Between 1955 and 1960, SWL, by itself and through its subsidiary Valley Royalty, engaged in a series of loan and production payment transactions5 with the owners of the operating interest in the Long lease. The first was a loan of $140,000 by SWL to H. L. Long which a year later was renewed and increased to $221,366.87. Both of these loans were secured by essentially identical deeds of trust (mortgages) on Long's interest in the leasehold. These instruments in addition to restricting Long's actions through various covenants6 and giving SWL various and considerable powers with regard to the operation of the well,7 as an additional security, contained an 'assignment of runs' clause,8 whereunder all proceeds from the sale of oil and gas would go directly from the purchasing pipeline to SWL. Under the provisions of the initial and renewal mortgages, 80% Of the amount received from the pipeline each month would be applied to retire the debt, any excess, under ordinary conditions, going to the debtor-Long. In the event 80% Came to less than a fixed monthly figure ($1,963.00 in the first instrument), the percentage retained by SWL could be escalated as high as necessary to reach the specified amount, up to 100%.9
6
The 'assignment of runs' clause contained a direction by the 'grantor'-Long to any purchaser (pipeline) to pay all proceeds to SWL.10 In addition, a separate division order to the pipeline was executed by Long and SWL which recited that production having been transferred, credit should be given SWL for oil extracted from the Long lease. The division order, executed on a pipeline company form, declared the undersigned to be the 'legal owners of the interest' and warranted their title thereto. Paragraph 4 then purported to dispose of the oil:
7
'4. In the absence of written agreement to the contrary, oil received under this division order shall become your property when delivered to said pipeline company, and shall be paid for to the party or parties according to the divisions of interest shown above * * *.'
8
By a stamped clause above its signature, SWL made the express disclaimer 'without warranty of any kind either expressed or implied.' When the loan was renewed and enlarged, the same division order was continued in effect.
9
There were several production payment transactions, the principal one presumably being in the form, or to achieve the effect, of the customary ABC transaction.11 H. L. Long first conveyed his interest in the leasehold to Stubblefield reserving a production payment equal to 90% Of the production until he had received, free of expense, $190,000 plus interest12 and specified taxes. On the same day, Long then transferred this production payment to Valley Royalty in exchange for $190,000. Valley Royalty borrowed this amount from SWL giving as security a deed of trust13 on the production payment which contained an assignment of runs similar to the one previously described in the SWL-Long transaction. All four parties (Stubblefield, Long, Valley Royalty and SWL) executed a division order,14 again similar to the one previously described, directing the pipeline to make payment for the oil it purchased to SWL (90%) and Stubblefield (10%). About a year and a half later, Valley Royalty assigned the production payment to SWL in exchange for cancellation of the debt and the deed of trust.
10
Thus the end result was that SWL stood in the shoes of the original GrantorOwner of the reserved production payment. It had the same rights to payment as did Long and all of the obligations which were binding on the Grantee Stubblefield inured to its benefit. Although the production payment was out of 90% Of the production, the conveyance prescribed that under ordinary conditions 85% Of the proceeds would be applied to the production payment, so long as 85% Was equal to $2,800 for each month (any excess going to the Grantee Stubblefield). If it was not, then the amount to be retained and applied could go as high as 90%. If 90% Was less than $2,800 for any month, the deficiency was recoverable in future months by raising the percentage of the proceeds retained to 90%. This rather elaborate system of payment could be laid aside at any time, however, by the simple expedient of SWL giving Stubblefield 30 days' notice that it intended to retain the full 90% Reserved.15
11
The activities of Grantee Stubblefield as a co-owner and the operator of the lease were seriously restricted by numerous covenants in the reservation of the production payment. In addition to limiting the Grantee's own actions,16 paragraph 10 of the covenants gave SWL, as the owner of the production payment, the right, upon determining that the property was not being operated in a prudent manner, to take over complete operation of the well.17 The other loan and production payment transactions18 were substantially similar in form and content19 to those described above.
I.
Conversion
12
In this case, ascertainment of the applicable legal rules governing the tort of conversion presents no real difficulty, and the problem is whether under these circumstances, conversion is made out. Although the formula has been variously worded by the Courts of Texas, the fundamentals of conversion have been fairly consistently defined. In its brief SWL states a definition which apparently has garnered wide acceptance. Conversion is
13
'* * * the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the same rights by the owner, * * *.' France v. Gibson, Tex.Civ.App., 1907, 101 S.W. 536.20
14
From all definitions encountered the rubric seems to be some distinct act of dominion or control over the personal property of another.21 The convertor may either have actual or constructive possession of the property.22 Although the act of control or dominion must be positive and affirmative23 (mere non-feasance will not do), a wrongful or fraudulent intent or purpose is not required,24 and the presence of good faith in the convertor is relevant only on the issue of damages.25 Only where the owner is seeking to recover the actual property itself rather than the value thereof, or with more particular reference to the slant hole cases, where the slanted-on owner seeks recovery from the adjoining working interest owner, who in developing and operating the lease has incurred 'costs of production'26 does the presence of good faith mitigate or alter the recovery.27
15
The question then, one of pure law, is whether by the receipt and disposition of the sales proceeds from the pipeline purchaser pursuant to the terms and conditions of the mortgages and production payment instruments, assignments of runs, and the division orders-- all of which invested SWL with the broadest operational powers-- there is present the necessary exercise of dominion or control over the property of Pan Am by SWL to constitute conversion.
16
To vary the facts slightly, if under the terms of a mortgage SWL had actually, physically received the oil-- either directly or through a specifically designated agent-- and then made some disposition of it, even though the funds were applied in payment of the note, SWL concedes, as it must, that it would be liable for conversion.
17
But since this did not physically take place, SWL insists throughout its several briefs that this case must be treated as one where the thief sells the stolen property and then pays the proceeds to an innocent third party on a debt, and the general rule that the wronged owner in his action for conversion can only trace the property, not the proceeds,28 applies to prevent recovery.
18
But the case cannot be so viewed. Of course, from the standpoint of benefit, SWL although exercising a different and perhaps lesser control over the oil, has nevertheless been benefited in the same manner as though it had obtained actual possession of the oil and then disposed of it. But this may not be pressed too far. For the nature or amount of the benefit to the party accused of conversion is not decisive because had the person who stole the oil simply sold it to a third party and then paid the proceeds to SWL on a debt, there being no mortgage assignment of runs plus a division order and the like, there would be no conversion by SWL. What is critical is the nature and degree of control over the property in question.
19
But before examining the nature and sufficiency of control as such, the analogy of the simple case of a debtor using proceeds of stolen property to pay a debt is a long way from the situation here involved. Pursuing this approach, the case is more like that in which T, the thief, pledges or mortgages stolen property as security for a loan from C, the creditor, who thereafter obtains and applies on the debt the proceeds of a foreclosure sale. The Holly concept of the negotiability of currency would hardly protect C against a conversion claim by O, the rightful owner.
20
But the case easily satisfies the requirement of control. Here SWL's control over the property, though less than actual possession as mentioned above, is far more extensive than that which attaches to whatever proceeds a debtor may have in a simple creditordebtor relationship. Here we are confronted with an elaborate and sophisticated scheme of financing bearing the marks of the careful hand of knowledgeable counsel, obviously designed primarily to securely bind up and protect the financial institution's investment in an enterprise having its own known hazards and risks, both legal and operational.29 In concluding that SWL exercised enough dominion or control over Pan Am's property to be held for conversion, we focus primarily on three things, which both the deeds of trust and production payments have in common. These are the covenants, the assignments of runs, and the division orders.
The Covenants
21
A casual reading of the covenants30 reveals that SWL had considerable power over both the person of the operator and the lease itself. In the deeds of trust (note 6, supra), the mortgagor covenanted, among other things, to keep the lease in full effect and to operate it continuously in accord with government agency regulations, to pay promptly all bills, to prevent materialmen's or laborer's liens from arising, to pay promptly all taxes and other assessments, to keep and maintain-- and not remove-- any and all improvements and personal property located on the lease, and to permit SWL full inspection. Should the pipeline fail to make payment promptly, SWL had the power to change connections and designate another purchaser (note 8, supra).
22
And further in the production payment instrument (note 16, supra), the operator was bound to maintain, preserve, and renew all rights of way and easements necessary to production, to replace any damaged lease property including the obligation to insure with such carrier and in such amount as was satisfactory with SWL.
23
In all instruments there was provision for SWL, upon the failure of the obligated party to perform properly any covenant, to take over the lease and do whatever was necessary to operate the wells to obtain and sell the production (see notes 7, 17, and 19, supra). The operative language in the instruments indicates that it would take only slight non-performance to trigger this power, allowing SWL to come in to run the whole show, if it chose to do so. Under the terms of the Long Mortgage, SWL was empowered to take over should Mortgagor-Long 'at any time fail to properly operate the mortgaged properties in the manner required herein' (note 7, supra). In the long production payment instruments, SWL was given the express power to determine itself that the property was not being 'operated in a prudent manner,' and then to take over all aspects of operation31 (note 17, supra). Likewise, the W. W. Long and Sarah Long Erickson carved-out production payment instruments provide that on the Grantor-Assignor's failure after 30 days' notice to 'strictly' comply with all 'covenants, obligations, promises and undertakings,' SWL may 'take over, manage, develop and operate' the lease, and 'sell all of the oil, gas and other hydrocarbons produced * * * (from the lease) * * *' and '* * * apply the proceeds * * * to the liquidation of the Production Payment * * *'.
24
The right to take over and operate the lease, selling the production and applying the proceeds in the specified manner, involved far more substantial dominion and control over the mortgaged property and its yield than if SWL had been limited to the Trustee's outcry atop the courthouse steps. And the fact that these powers to take over the lease were not exercised does not detract from the substantiality of the control which these powers gave SWL over Long,32 who, in turn, was in control of all the lease operations. To the contrary, the pudding's eating proved the wisdom of those who conceived and those who executed this intricate arrangement which allowed SWL to profit with safety-- or would have, had the underlying security not been 'hot.'
25
The Assignments of Runs and the Division Orders
26
The assignments of runs (see notes 8, 13 and 19, supra) in express terms are an absolute conveyance to SWL, for a limited purpose, of the minerals 'saved and sold' or the 'proceeds' of the minerals 'saved and sold', or both, from the Long lease. In addition to this terminology, there is also language directing the purchasing pipeline to pay the proceeds to SWL, according to its designated fractional interest, until notified to cease by SWL. The function of the division orders (see note 14 and in text following note 10, supra) was to put this conveyance and direction into practical effect.
27
As previously outlined, these division orders were executed by all parties having an interest in the production and instructed the pipeline as to the parties entitled to payment. The pipeline protected itself by obtaining a warranty that the parties who appeared on the order were in fact the legal owners of the interest in question or entitled to receive the designated payment for the oil. That SWL qualified its signature with the phrase--'without warranty of any kind either expressed or implied'-- is of no significance. This limitation, perhaps effective to protect SWL from some claims by the pipeline, can have no effect in this suit by the owner of the stolen oil, who, of course, was not a party to the division order. More importantly, although SWL did not affirmatively warrant its title, it did at least represent that it was entitled to payment for the oil as between itself and the purchaser. Moreover, Pan Am does not seek recovery on a theory of warranty, but rather of conversion, and the fact that the division order, as to SWL, was not a warranty of title, does not keep it from being a spectacularly significant indicia of the exercise of substantial dominion and control over the oil by SWL. In the business world at least, the sale and the asserted right to receive payment are the strongest indication of control.
28
In answer to Plaintiffs' conversion theory, SWL urges alternatively (1) that the division order does not amount to a contract to sell any oil, or (2) if it is a sale contract, it purports to sell and transfer only that oil which was produced from the Long lease, and not any of that produced from Pan Am's adjacent lease. Therefore, it argues, under either view, the division order is no evidence either of constructive possession, of control or the right to control, of any of Pan Am's property.
29
First, as to the nature of division orders in general, what judicial statements there are refer to other kinds of situations. The Texas Supreme Court extended its 'error refused' imprimatur to Stanolind Oil & Gas Co. v. Terrell, Tex.Civ.App., 1944, 183 S.W.2d 743, which contained the statement that 'A division order is ordinarily the contract under which the production is purchased or accepted for transportation by the pipeline company' (183 S.W.2d at 745). SWL, however, relies strongly on Smith v. Liddell, 1963, Tex., 367 S.W.2d 662, where the Supreme Court, with a different question before it, said a division order conveys no interest. The problem in Smith was whether, as between the grantor and grantee of a fractional royalty interest, a division order which described more land than it should have amounted to a contract under which the grantee's rights were expanded to include the additional production. The Supreme Court answered in the negative that a division order was merely a direction to the pipeline telling it whom to pay, and was revocable. But under this decision there was no question that as to the oil produced and paid for in the past, the terms of the division order controlled. Moreover, Smith did not present to the Supreme Court the necessity of ruling on the nature of a division order as between the transferors of the oil and the purchasing pipeline. We therefore believe that with regard to this latter context, the law of Texas is that a division order is the operative instrument of transfer, whether called a contract or not, and until revoked is binding on the parties, who thereunder declare their present ability and intent to transfer, sell, or otherwise dispose of the oil to the pipeline, and their entitlement to payment for this same transfer. Indeed, SWL's right to revoke the division order is perhaps the strongest proof of its real control.
30
SWL's second argument is based on a technical, literal reading of the instruments which refer to and purport to transfer only oil produced from the Long lease (see notes 8, 13, and 14, supra). Under this view the matter of critical importance is whether the language of the assignment of runs or the division order was in terms of oil in and under the lease rather than in terms of oil produced from certain wells on the lease-- no conversion in the former, but conversion in the latter. In our case the language takes more of a middle course33 and might pose some problems of construction for situations in which the precise wording would be the critical factor.34
31
But the answer to this case is not to be found in a literal reading of these precise words. This argument overlooks the glaring fact that all of the oil for which SWL was paid-- and which funds it has retained or disbursed to other than Pan Am-- came from Pan Am's lease. Of course SWL never intended to get mixed up with stolen oil. But on the natural assumption that oil coming out of a well on a lease was oil coming from that lease, it is obvious that what SWL was really after was to secure its interest by getting its hands on the proceeds of whatever was produced from the Long lease. Oil, and the proceeds from the sale of oil, was the indispensable element. SWL, a life insurance company under heavy duties to policy holders and stockholders as well, had to have security for the loans and a real interest in production as to production payments it acquired. It was oil which Long would produce ostensibly from this lease, not Long's personal credit which made the transaction either economically attractive or feasible. It is perfectly understandable that SWL, a reputable institution, disclaims any purpose of intending to acquire an interest in oil owned, not by Long, but by others. But while preserving its honor and integrity as a proposition of initial intent, it does just that when it seeks to retain the benefits received directly from sales of stolen oil, made under its direction and control.35
II.
Credit For Conduit Disbursements
32
SWL asserts that if it is found guilty of conversion, its liability should be reduced by $100,085.18, this being the amount SWL received but did not retain. After satisfying its requirements as permitted under the terms of the deeds of trust or production payments, SWL paid this sum over to the other interest owners. The argument is that under the terms of the respective agreements (see notes 9 and 15, supra), SWL had no right to retain these funds and occupied the position of a mere conduit. But, as we explained earlier (see in text accompanying notes 9 and 15, supra), this is only part of the picture. If all went well and there was sufficient monthly production, so that the amount received from the pipeline was above the stated minimums, then SWL was to retain only 80% Under the mortgage or 85% Under the production payment. However, should production lag to where 80% Or 85% Fell below the fixed monthly minimum figure, then SWL, under the terms of the respective contracts, had the right to exercise the great advantage of retaining the full amount received from the pipeline-- 100% As to the mortgage, the full 90% As to the production payment. This process could be continued indefinitely-- as long as was necessary for SWL to get its full share and to protect its contingent interests.
33
Secondly, SWL's right to retain the full amount was an extremely valuable complement to its power, under the circumstances delineated in the covenants, to take over complete operation of the well. Besides incurring operational expenses, SWL might pay taxes or litigate as it saw fit in the best interest of the lease, and in such event, access to the full amount of the proceeds was of great advantage to it.
34
To protect itself, as it properly could do, SWL armed itself with broad powers. These powers were exercisable in the first instance through covenants imposing substantial operational obligations on the mortgagor or grantee of the working interest under production payment conveyances. Backing up performance by those parties was the right of SWL to take them over itself. And adding additional economic sanctions was this valuable right to retain money to reimburse itself for the cost of such operations. SWL was entitled not merely to reimbursement-- a right which depended on the obligor's willingness or financial ability to perform, and the prospect of litigation to coerce it. SWL was given intial custody of the funds and the operational right to determine whether, and to what extent, some or all should be retained. Once SWL made that determination, it was perhaps a conduit. But the decision was its act, and one taken pursuant to protective powers which it had imposed. The right to make the decision, the right to make it effectively-- i.e., by retaining money, thus putting the shoe on the foot of the other parties claiming it-- were regarded as valuable rights to a businessman. The law is not required to debase them.
35
We therefore conclude that the Trial Court properly refused SWL credit for the stated amount. SWL exercised the same quality of dominion and control over the funds disbursed as over those retained-- in both cases to the high disadvantage of their owner, Pan Am.
III.
The Two-Year Statute of Limitations
36
Pan Am, as Cross-Appellant, complains of the Trial Judge's conclusion that the Texas two-year Statute of Limitations, Vernon's Ann.Tex.Civ.Stat.Ann. art. 5526 (1958), applied to limit its recovery against SWL. The Trial Court correctly charged the jury on the issue of tolling the statute as to Operator Long under Pan Amer. Petroleum Corp. v. Orr, 5 Cir., 1963, 319 F.2d 612.36 The jury found that Long fraudulently concealed the slant drilling and that Pan Am was not put to inquiry. Thus the statute was tolled as to Long. Pan Am's position is that as a matter of law the fraud of Long while operating the well (partially for the benefit of SWL) is imputable to SWL because of its agency relationship with Long. On this basis, the statute should be tolled as to SWL.
37
While the Court recognizes that one transaction may involve more than one kind of relationship, and even in this situation for some purposes Long may perhaps have been the agent of SWL,37 as well as covenantor-mortgagor-grantor, etc., Pan Am is seeking to capitalize on this observable phenomenon in a way which challenges the imagination. Pan Am is willing to admit that Long, as the agent of SWL, 'may' have exceeded his authority by deviating these wells in violation of common law and Railroad Commission rules, but insists that under accepted agency concepts, there is here a ratification which saddles the principal with this unlawful conduct. The argument is that (a) retention by SWL of the benefits of Long's wrongdoing (b) with knowledge amounts to ratification. The theory is good if-- and the if is a very big one-- element (b) is satisfied.
38
But as to (b), SWL did not know-- legally or actually-- that it had received Pan Am's property until the jury so found or at the earliest, when the slant hole scandal revealed Long's misdeeds. Surely more is required for 'retention with knowledge' than the circularly reasoned showing that when SWL found out (in court) where the oil came from, it failed to pay up-- hence ratification. Apart from this theory of ratification which we find wanting, there is no basis under Texas law for tolling the statute. We thus hold that Pan Am's cause of action against SWL was properly limited to two years.
IV.
Separate Findings for SWL
39
SWL complains of the Trial Judge's overruling its motion for separate findings of fact and conclusions of law. The argument is that 'no issues were or could be submitted to the jury with respect to these defendants (SWL), and with respect to them the case was tried upon the facts without a jury and they were entitled to findings of fact and conclusions of law under Rule 52.'
40
The judgment was based on facts as found by the jury and those stipulated. The only questions with regard to SWL were the legal issues we have [email protected]. These questions were adequately answered in the judgment, and no prejudice whatsoever appearing, there is no reversible error, F.R.Civ.P. 61.
41
The judgment in all respects withstands each attack.
42
Affirmed.
On Petition for Rehearing
PER CURIAM:
43
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be, and the same is, hereby denied.
44
Loan No. 17908 SWL to H. L. Long $140,000.00
Loan No. 19062 Renewal and increase of 17908 221,336.87
Production Payment Reserved by H. L. Long from assignment
No. 39 to Stubblefield and conveyed to Valley
Royalty which in turn conveyed to SWL 190,000.00
Production Payment H. L. Long to Valley Royalty and then
No. 42 subsequently to SWL 50,000.00
Production Payment W. W. Long to Valley Royalty and then to
No. 43 SWL 25,000.00
Production Payment Sarah Long Erickson to Valley Royalty and
No. 44 then to SWL 9,300.00
Loan No. 22502 SWL to W. W. Long 25,000.00
Loan No. 22505 SWL to Sarah Long Erickson 9,000.00
45
GARZA, District Judge (concurring in part and dissenting in part):
46
I concur in the opinion of the majority with the exception of that part of the opinion under Section II where the majority fails to give credit to Southwestern Life for the $100,085.18 which it did not keep but turned over to others. With regard to this part of the District Court judgment, I would reform it to give Southwestern Life credit for this amount and reduce the judgment accordingly.
47
In Harrington v. Texaco, Inc., 339 F.2d 814, I concurred in that part of the opinion making Harrington responsible for all of the money received from the sale of oil from the slated oil well because Harrington was the designated operator and as such he was charged with duties and responsibilities that are not present in the case of Southwestern Life. It is conceded that there is no question involved as to the good faith of Southwestern Life; and there is neither intimation nor indication that Southwestern Life was in any way connected with or had any knowledge of operator Long's slant drilling.
48
The majority seems to lay great stress on the fact that the covenants, the assignment of runs and the division orders give great powers to Southwestern Life, and even allowed them to go in and operate the well; but the fact remains that Southwestern Life never did use the extraordinary powers that the majority refers to in the instruments involved in the loan transaction.
49
All the powers retained by Southwestern Life were to protect its loan, and I believe it would be against public policy for this Court to hold, under the circumstances, that Southwestern Life will have to lose not only its loan but also pay money that it did not keep, because of actions by borrowers of which they had no knowledge. It shocks my conscience to make an innocent party pay for money it never kept.
50
Under the facts of this case, I can see no difference in limiting the liability of Southwestern Life only to the extent that it has benefited, and the holding of this Court in Gulf Oil Corporation v. Lone Star Producing Co., 322 F.2d 28, at page 33, in which Judge Rives held that the Defendant Lone Star Producing Company was responsible for money which it had been overpaid by Gulf only to the extent that it had been benefited from such overpayment.
51
The covenants, the assignment of runs and the division orders, to my mind, are what make Southwestern Life a converter, but they cannot be extended to make them liable for all the money received by them whether kept by it or not. The good faith of the converter, Southwestern Life, should mitigate the recovery against it and make it responsible only to the extent that it benefited by the payments to it.
52
It is common knowledge that most of the present oil and gas development is made on borrowed funds. If those that have money available for this purpose are to be subjected to losing not only what they lend but also be responsible for money received by others acting in bad faith, when the lender itself acts in good faith, to my mind makes the decision of my brethren one which is against public policy.
53
I would, therefore, reform the judgment as indicated above.
On Petition for Rehearing
GARZA, District Judge:
54
In view of my partial dissent filed heretofore, I would grant the motion for rehearing as to the matters covered in my dissent.
1
Socony Mobil intervened and was aligned with Pan Am. Both will be referred to as Pan Am, as their interest and position, unless otherwise indicated, is the same
2
Pan Am alone also relied on a theory of money had and received or restitution
3
Valley Royalty is a wholly owned subsidiary of Southwestern Life, and in all matters their interest is the same. We refer to both as SWL unless otherwise indicated
4
It was stipulated that the total amount paid to SWL by the pipeline-purchasers was $312,317.26 and that of this amount, $214,336.69 was received during the preceding two years. Of this latter amount, $100,085.18 was paid over to the other interest owners in groups (1) and (2) above
5
In chronological order they were:
6
The symbol SWL has been substituted throughout for the full title of Southwestern Life
Among the more important obligations imposed upon the Grantor (Long) were:
'(3) That the aforesaid leases and leasehold estates covered hereby are in full force and effect and * * * that he will do or will cause to be done all things and perform all acts necessary or proper to maintain said leases in full force and do or cause to be done all things required and necessary to prevent a forfeiture thereof.
'(4) To continuously operate or cause to be operated in a good and workmanlike manner the wells now or hereafter existing on the above described premises and in accordance with the best usage of the field and in accordance with the rules and regulations of the Railroad Commission of the State of Texas and of the government of the United States or any agency thereof and to promptly pay all bills for labor and material incurred in the drilling of any additional wells and in the operation of said wells.
'(5) That the grantor herein will not at any time prior to the time of a final and complete release hereof encumber or allow to be encumbered any of the properties covered hereby and in connection with the development, operation and equipment of said leases covered hereby will promptly pay or cause to be paid before delinquency all contractors, subcontractors, laborers and material-men for labor, work, supplies and materials furnished in connection therewith.
'(6) To pay all taxes and assessments of every kind and character charged, levied or assessed against the properties hereinabove described, or any part thereof, before any such taxes or assessments shall become delinquent.
' * * * *y a
'(8) That at this time the grantor herein is lawfully seized and possessed of each and every part of the properties herein described and conveyed; that the same are free and clear of any and all liens and claims * * *. If, during the pendency of this loan, the title to the properties herein described * * * is challenged, or if the security of this debt is questioned or attacked directly or indirectly by suit or otherwise, the grantor herein binds himself * * * to protect and save harmless SWL * * * from any and all cost, loss, damage or claim by reason of the title or the priority of this lien being questioned and SWL shall be authorized at the cost and expense of the grantor herein * * * to take such steps as in its judgment may be necessary for the protection of its interests * * * and * * * SWL * * * shall have the right * * * to direct the prosecution or defense of the interest of the grantor herein * * * and all expenses * * * incident to any action taken * * * shall become a part of the indebtedness secured by this deed of trust * * *.
'(9) To keep and maintain all improvements and all personal property and equipment of grantor herein now situated on said leases and lands and used or obtained in connection therewith in a good state of repair and condition and not to tear down or remove the same or permit the same to be torn down or removed.
'(10) To permit SWL * * * at all times to go upon, examine and inspect and remain on the mortgaged properties and to go upon the derrick floor of any well at any time drilled or being drilled thereon and to furnish to SWL * * * all pertinent information in regard to the development or operation of mortgaged properties.'
7
'ADDITIONAL RIGHTS AND REMEDIES
'If the grantor herein * * * shall fail to comply with the covenants and agreements in this instrument contained, the SWL * * * may, but shall not be obligated to: Perform the same for the account and at the expense of the grantor * * * and any and all expense incurred and paid in so doing shall be payable by the grantor * * * to SWL * * * with interest at the rate of TEN PER CENT (10%) per annum * * * and the amount thereof * * * shall be secured by and under this deed of trust and the amount and nature of the expense and the time when paid shall be held fully established by the affidavit of any officer or agent of SWL * * * provided, however, that the exercise of the right of advance shall in no wise be considered and constitute a waiver of the right of SWL * * * to declare the indebtedness secured by this deed of trust to be at once due and payable.
'Should the grantor herein * * * at any time fail to properly operate the mortgaged properties in the manner required herein or should they make default in the payment of any indebtedness secured hereby or in the performance of any of their obligations hereunder, then in addition to the other rights and remedies SWL * * * shall have the right * * * to take over the operation of said properties and produce the oil, gas and other minerals therefrom and market the same, applying the proceeds derived from the sale thereof, first, to the cost of maintenance and operation of such properties; and, second, to the payment of all indebtedness secured hereby, principal and interest * * * and the balance thereof, if any, to be paid to the grantor herein * * *. Upon such payment of all such costs and indebtedness such properties shall thereupon be returned to the grantor herein * * * in as good condition as when taken over, ordinary wear and tear excepted.'
8
'ASSIGNMENT OF RUNS
'As additional security for the payment of all indebtedness secured hereby * * * the grantor herein does here transfer, assign and convey unto SWL * * * all of the oil, gas, condensate, distillate, all other liquid hydro-carbons and all other minerals saved and sold from the above described leasehold estates, and the proceeds of the sale thereof after the deduction of gross production or severance taxes from and after the first day of February, 1955, at 7:00 AM, and the grantor herein hereby directs any purchaser now or hereafter taking the production from said premises to pay to SWL * * * the proceeds derived from the sale thereof, and to continue to make such payments until notified in writing by the SWL * * * to discontinue the same and the grantor herein further authorizes and empowers SWL * * * to receive, collect and hold all sums of money paid to it hereunder and to apply the same in the manner provided in the note this day executed by the grantor herein, payable to SWL and without any liability or responsibility on the part of said SWL * * * save as to good faith in so applying and receiving said sums; but no other person * * * shall be charged with notice of any of the provisions of said note and shall not be under any duty or obligation to inquire into the right of SWL * * * to receive the same, what application is made thereof, the amount of indebtedness owing, or as to any other matter; * * *
'Should any purchaser take the production from said premises and fail to make payment promptly to SWL * * * in accordance with this agreement, then SWL * * * shall have the right to demand a change of connection and to designate another purchaser with whom a new connection may be made, without any liability on the part of SWL * * * in making such selection, so long as ordinary care is used in the making thereof; and upon failure of the grantor herein * * * to consent to such change of connection, the whole indebtedness secured hereby may be immediately declared due and payable at the option of SWL * * * and said properties shall become subject to foreclosure proceedings hereunder. * * *'
9
The language of the deed of trust payment provision is as follows:
'Being due and payable in not to exceed eighty-four (84) monthly installments, one installment being payable on the 25th day of each month, beginning March 25, 1955, as follows: Eighty percent (80%) of the gross monthly income and revenues (remaining after deduction of taxes for gross production and severance) accruing from and after February 1, 1955, at 7:00 AM, of and from the mineral leasehold interests described as the (Long) Lease in this deed of trust shall be applied monthly as received; provided that if in any month 80% Of the said gross monthly income and revenues is less than $1,963.00, then the percentage of the gross monthly income arising from such mineral leasehold interests shall be increased by such percentage up to 100% If necessary, and for so long as is necessary to provide a monthly payment of $1,963.00, but such percentage shall never be less than 80% Of such gross monthly income * * *.'
10
See note 8, supra
11
See United States v. Witte, 5 Cir., 1962, 306 F.2d 81, 87-88
12
There was also a provision for payment of 7% Interest to the grantor out of production
13
After reciting the conveyance to the Trustee, the instrument provided:
'INDEBTEDNESS SECURED
'This conveyance is made in trust, however, to secure and enforce the full, complete and prompt payment when due of:
'(1) All sums called for, owing and to be owing upon one certain promissory note of even date herewith, executed by Valley Royalty Corporation, bearing interest as therein provided, payable to the order of SWL in the sum of * * * $190,000.00 * * *. Being payable in not more than eighty-four (84) monthly installments of principal and interest * * * as follows: All payments payable to the (Valley) hereof * * * by the pipeline company or other purchaser * * * of the oil, gas * * * reserved by virtue of that certain production payment * * * shall be applied as received, first to the payment of any * * * taxes then * * * payable by reason of the ownership of said production payment, next to the payment of all interest then due * * * on this note, next to the payment to (Valley) * * * of a sum equal to interest at the rate of one-half of one per cent (1/2 of 1%) per annum for the next preceding month, on the unpaid balance of the primary amount of said production payment, and the remainder of such payments from such * * * purchaser, shall be applied to the payment of the principal of this note * * * shall be remitted to Charles R. Stubblefield * * *.'
Compared with the stringent restrictions and obligations imposed on Long when he was the borrower from SWL (see notes 6 and 7, supra), we have these scant provisions where the borrower is an affiliate:
'(a) That no right nor remedy in favor of Mortgagee granted in or secured by this instrument shall be considered as exclusive, but all rights and remedies hereunder shall be cumulative of each other, and of all other rights and remedies and securities which the holder of said note may now or hereafter have securing the above indebtedness.
'(b) To pay all taxes and assessments of every kind and character charged, levied or assessed against the property hereinabove described, or any part thereof, before any such taxes or assessments shall become delinquent.
'* * * *ay
'ASSIGNMENT OF PROCEEDS OF RUNS
'For the * * * purpose of additionally securing the indebtedness * * * and to facilitate the payment * * * of said indebtedness * * * Grantor * * * does also hereby * * * assign * * * to SWL * * * all of its interest in the proceeds of the sale of oil, gas and casinghead gas produced, saved and sold from the above mineral leasehold estate from and after February 1, 1960, at 7:00 A.M. This assignment is upon the following terms and agreements, viz:
'1. Any and all persons * * * purchasing oil, gas and casinghead gas produced * * * from the above described tracts of land * * * are hereby authorized and directed to pay directly to SWL the proceeds of the sale of the interest evidenced by said production payment in all such production, and to continue such payments until furnished with a release hereof executed in writing by SWL.
'2. SWL is authorized to receive, collect and receipt for the proceeds of the sale of the oil, gas and casinghead gas assigned it hereunder, and to apply the funds so received by it in the manner hereinafter specified. * * *.'
14
'DIVISION ORDER
'To MOBIL OIL COMPANY * * *
'Effective 7:00 a.m. February 1, 1960
'The undersigned certify and guarantee that they are the legal owners of the interests set out below opposite their names in the oil produced from the H. L. Long (lease). * * * And until further notice you are authorized to receive oil therefrom, giving credit as directed below:
Per assignment executed by H. L. Long in favor of Charles R. Stubblefield and Production Payment Assignment executed by H. L. Long in favor of Valley Royalty Corporation and Deed of Trust and Assignment executed by Valley Royalty Corporation in favor of (SWL's Trustee) * * * the above total interest heretofore owned by H. L. Long will be paid as indicated above until Mobil Oil Company * * * is notified in writing to the contrary at its Dallas, Texas office.'
15
'* * * Grantor reserves the option to apply upon this production payment the full 90% Interest in the production from the leasehold interest herein assigned, upon giving to Grantee thirty (30) days' written notice of Grantor's intention to do so. * * *.'
16
'1. (The Grantee Stubblefield covenanted that he would do everything necessary to keep the lease in effect and to continuously operate) * * * in a good and workmanlike manner in accordance with best field practices, each and all of the wells which have heretofore been drilled, or which may hereafter be drilled on the tract of land hereinabove described
'2. Grantee * * * covenants that he will comply with or cause to be complied with, all pertinent lawful rulings and orders of the Railroad Commission of Texas, and of such other administrative agencies or bodies which may * * * be * * * constituted to regulate production * * * of oil, gas and casinghead gas * * *.
'3. Grantee covenants that he will maintain, preserve and renew all the rights, rights-of-way, easements, privileges and franchises * * * which are reasonably necessary in the proper operation of said oil and gas leases, and make such payments and do such other acts or things as may normally be necessary or proper to keep said * * * pricileges and franchises valid and subsisting.
'4. Grantee covenants that until the aforesaid reserved production payment interest shall have fully terminated as herein provided, he will replace and/or repair any equipment * * * on said land that may be lost or damaged * * * and * * * Grantee covenants that he will carry * * * insurance upon such equipment, * * * insuring against such hazard and risks in amounts satisfactory to Grantor * * *.
'5. Grantee covenants to pay * * * all lawful taxes of every character in respect to all of the hereinabove described property, and all taxes that may be levied or assessed against the oil, gas and casinghead gas produced and to be produced from said leases * * *.
'6. Grantee covenants * * * to maintain, preserve and keep said property * * * and equipment of every kind and nature in respect to said oil and gas leases in good repair, working order and condition * * * to the end that * * * such property shall be * * * kept in such condition as * * * to permit the most efficient * * * operation thereof.
'7. In respect to all of the property * * * Grantee covenants promptly to pay all bills for labor and material, and never to permit to be affixed thereon any lien, * * *.
'8. Grantee covenants that Grantor shall at all times have the right to go upon, examine, inspect and remain on the aforesaid property, and to go upon any well or wells thereon, and to strap, gauge, measure and inspect any and all tanks at any time on said land.
'9. * * *.'
17
'10. * * * Grantee expressly agrees that in the event Grantor * * * should at any time * * * deem the property not to be operated in a prudent manner, then the holder of said production payment interest * * * may * * * take possession of the oil, gas and mineral leasehold estate subject to such production payment interest, and * * * develop and operate said property for the production of oil, gas and other minerals and in such event, all * * * money expended in * * * workover operations, drilling of wells, and operation costs, shall be chargeable as a lien against the leasehold interest herein assigned to the Grantee * * * which said lien may be collected out of the production credited to such assigned portion of the leasehold estate * * *.'
18
See note 5, supra
19
The H. L. Long $50,000 carved-out production payment was in exactly the same form as that described above, and the same is true of the loans by SWL to W. W. Long and Sarah Long Erickson. The language used in the carved-out production payments conveyed by W. W. Long and Sarah Long Erickson to Valley is not the same as described, but we think there is no operative difference, and none is asserted by the parties
20
See Tex.Jur.2d Conversion 1 for numerous citations to slightly variant definitions
21
A functional and inclusive definition is that proposed by the American Law Institute Revision Committee:
'an intentional exercise of dominion over property which so seriously interfered with the right of another to control it that the actor may justly be required to pay the other the full value of the property.' Restatement, Torts 222A, at 24 (Tent.Draft No. 3, 1956).
22
Sandor Petroleum Corp. v. Williams, Tex.Civ.App. error ref'd n.r.e., 1959, 321 S.W.2d 614; Stidham v. Lewis, Tex.Civ.App., 1929, 23 S.W.2d 851, 852
23
Gulf, C. & S. F. R. Co. v. Pratt, Tex.Civ.App., error ref'd, 1916, 183 S.W. 103
24
Williams v. Deen, 1893, 5 Tex. Civ. App. 575, 24 S.W. 536. Prosser states: 'The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise dominion or control over the goods which is in fact inconsistent with the plaintiff's rights. A purchaser of stolen goods or an auctioneer who sells them in the utmost good faith becomes a convertor, since his acts are an interference with the control of the property.' Prosser, Torts 15 (2d ed. 1955). See also Restatement, Torts 221, comment c (1934); 14 Tex.Jur.2d Conversion 2
25
Restatement, Restitution 128, comments c, k (1937)
26
Harrington v. Texaco, 5 Cir., 1964, 339 F.2d 814
27
There is no question involved as to the good faith of SWL. Although it had the power under the deed of trust and production payment instruments to make full investigation, there is neither intimation nor indication that SWL was in any way connected with or had any knowledge of Operator Long's slant drilling
28
Cited directly in opposing recovery on the theory of money had and received, and at least obliquely as to conversion is the classic case of Holly v. Domestic and Foreign Missionary Society, 1901. 180 U.S. 284, 21 S. Ct. 395, 45 L. Ed. 531; approved for Texas in Burnett's Trust v. Farmers State Bank in Mexia, Tex.Civ.App., error ref'd w.o.m., 1943, 175 S.W.2d 453. The spirit of this rule permeates SWL's entire approach to this case
29
A secondary purpose, with regard to the production payments, was to exploit for the mutual and legitimate benefit of all parties the economic advantages flowing from the unique tax advantages of this type of transaction. See, United States v. Witte, 5 Cir., 1962, 306 F.2d 81, 87-88. Although some may undertake to analyze separately the consequences of a mortgage and production payment on the liability of financial institutions, we believe that for our purposes here the two can be treated together since we find the consequences identical
30
See notes 6, 7, 16, 17 and 19, supra
31
Because of the many powers and duties imposed upon the 'operator,' both by the Texas Railroad Commission and by common law rule, this Court has attributed substantial importance to an individual's being the 'operator' in other slant hole situations. See Harrington v. Texaco, 5 Cir., 1964, 339 F.2d 814
32
Reference here to 'Long' includes, of course, his assignees such as Stubblefield
33
In the Long deed of trust (note 8, supra), the language is '* * * transfer, assign and convey unto (SWL) * * * all of the oil, gas, condensate, distillate, * * * saved and sold from the above described leasehold estates, and the proceeds of the sale thereof * * *. The language in the production payment is only slightly different purporting to reserve to Long a production payment out of 90% 'of the total oil, gas and casinghead gas in and under and which may be produced from the leasehold interest * * * assigned.' Then in the assignment of runs Valley transferred to SWL 'all of its interest in the proceeds of the sale of oil, gas and casinghead gas produced, saved and sold from the above mineral leasehold estate * * *' (note 13, supra). But the division order (note 14, supra) refers to 'the interests set out below opposite their names in the oil produced from the H.L. Long * * *' lease
34
For many purposes, even language purporting to transfer oil produced from certain wells would have to be construed as intending to transfer oil produced from the lease. To do otherwise, in view of the Railroad's Commission's straight hole rule, would be to construe the contract as illegal
35
Having found an adequate basis for recovery in conversion, it is not necessary to pass on Pan Am's theory of money had and received, which may be less surefooted, and could present some complications, dialectally at least
The case of Hull v. Freedman, Tex.Civ.App., 1964, 383 S.W.2d 236, urged upon us by post submission letter, contains statements on the law of conversion not contrary to those here enunciated. The conclusion of no conversion in that case was on facts completely different from the situation before us in this case.
36
In the Orr case the rules were stated to be:
'(b) limitation does not run and the statute is tolled in circumstances where the cause of action * * * has been fraudulently concealed by the defendant and is not discovered by plaintiff two years before filing suit if the plaintiff exercised reasonable diligence in seeking to discover the fraud after being put on inquiry; and (c) even if there is fraudulent concealment by the defendant, the plaintiff is required to act with diligence in seeking to discover fraud after being put on inquiry; * * *.' 319 [email protected].
37
Possibly offsetting this would be the strong Texas policy protecting investors from operational liabilities in the exploration, drilling and development of oil and gas ventures. See, e.g., Snodgrass v. Kelley, Tex.Civ.App., error ref'd, 1940, 141 S.W.2d 381; Berchelmann v. Western Co., Tex.Civ.App., writ ref'd n.r.e., 1962, 363 S.W.2d 875
|
Citation Nr: 1430294
Decision Date: 07/03/14 Archive Date: 07/10/14
DOCKET NO. 06-03 656A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Outpatient Clinic in Columbus, Ohio
THE ISSUE
Entitlement to payment or reimbursement for unauthorized medical expenses incurred for the period January 24, 2004, to January 29, 2004, at Riverside Methodist Hospital.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran, his fiancée, and his son
ATTORNEY FOR THE BOARD
R. Giannecchini, Counsel
REMAND
The Veteran had active military service from September 1967 to July 1969.
This matter comes before the Board of Veterans' Appeals (Board) following a February 2004 decision of the Department of Veterans Affairs Outpatient Clinic (VAOPC) in Columbus, Ohio. In August 2007, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge.
In January 2008, the Board remanded the Veteran's claim to the VA outpatient clinic in Columbus, Ohio for additional development. The Veteran's claims folders have since been returned to the Board. A review of those folders (to include the Veteran's electronic records) does not reflect action has been taken by the VAOPC Columbus on the Veteran's remanded claim. A notation in the claims folders, apparently from Cleveland RO personnel, notes that the claims folders had been sent to the VAOPC Columbus twice in light of the Board's remand but had been returned to the RO without any action taken.
Therefore, the Veteran's claim on appeal is again remanded to the VAOPC Columbus.
Furthermore, at the above-noted August 2007 hearing, the Veteran testified that as a result of his medical emergency on January 24, 2004, he was also financially liable for emergency transportation costs and for treatment he received at Southeastern Ohio Regional Medical Center. The Board infers from the Veteran's testimony an additional claim for payment or reimbursement for unauthorized medical expenses incurred for emergency transportation costs and for treatment received at Southeastern Ohio Regional Medical Center. These issues, while not currently in appellate status, should be considered by the Columbus VAOPC in the first instance.
Finally, the Board also wishes to point out that Congress amended 38 U.S.C.A. § 1725 in February 2010. Under the pre-amendment version, a veteran could be deemed "personally liable" for his emergency treatment if he or she had no other contractual or legal recourse against a third party that would, in whole or in part, extinguish such liability to the provider. This provision essentially dictated that if a veteran had a relationship with a third party entity (e.g. Medicare) that would require the third party entity to pay any part of his medical expenses for emergency care in a non-VA facility, then the veteran could not seek reimbursement for the remaining balance of the expenses from VA, even if the balance was large.
The amended version of the statute strikes the words "or in part" from section 1725(b)(3). See Public Law No. 111-137 § (a)(1). The third prong of section 1725(b)(3) now only precludes a veteran from exercising his right to reimbursement from VA for emergency care in a non-VA facility if a third party (such as Medicare) is wholly responsible for the medical fees he incurs. Congress inserted into the statute additional provisions defining VA's role when a third party is partially liable for a veteran's medical expenses. Congress instructed that in any case in which a third party is financially responsible for part of a veteran's emergency treatment expenses, the Secretary shall be the secondary payer. 38 U.S.C.A. § 1725(c)(4)(B).
Furthermore, while the amended version of 38 U.S.C.A. § 1725 eliminated the complete bar to VA payment for unauthorized emergency expenses where there is other insurance coverage (such as Medicare), it did not provide for payment of all amounts not paid by the other insurance or third party. Rather, the amended version of 38 U.S.C.A. § 1725 expressly provides that VA may not reimburse a veteran for any copayment or similar payment that the veteran owes the third party or for which a veteran is responsible under a health-plan contract. 38 U.S.C.A. § 1725(c)(4)(D). As such, a veteran would not be entitled to payment or reimbursement of the coinsurance or deductible amounts for which he is responsible under a contract with Medicare.
In readjudicating the Veteran's claim, the VAOPC Columbus should take into consideration the amended 38 U.S.C.A. § 1725, if warranted.
Accordingly, the case is REMANDED for the following action:
1. The Columbus VAOPC should review the claims file and ensure that all notification (in particular, correspondence specifically addressing the Veterans Claims Assistant Act of 2000 (VCAA) notice and duty-to-assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met.
2. Following the development above, the Columbus VAOPC should readjudicate the Veteran's claim on appeal, in light of all pertinent evidence (to include the Veteran's August 2007 hearing testimony) and legal authority (specifically, 38 U.S.C.A. §1728 (West 2002); 38 C.F.R. §17.120 (2013); and, if warranted, 38 C.F.R. §17.125 (2013) (revised)).
3. If the benefit sought is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (to include citation to all pertinent legal authority).
In the supplemental statement of the case (SSOC), the Columbus VAOPC must discuss why it was feasible for the Veteran to be transferred from Southeastern Ohio Regional Medical Center to a VA medical facility (as contrasted to Riverside Methodist Hospital), and why such transfer would not have been unreasonable or impractical. In doing so, the Columbus VAOPC's discussion should address the Veteran's medical condition at the time of his transfer from Southeastern Ohio Regional Medical Center and those VA medical facilities that were available on January 24, 2004, to treat the Veteran in light of his specific medical condition.
4. Following the issuance of the SSOC, the Veteran and his representative should be afforded an opportunity to respond before the case is returned to the Board.
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 case must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West Supp. 2013).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).
|
As I understand the opinion of Chief Justice WIEST, the gist of his holding is: "The (mortgage) note remains the sole personal obligation;" notwithstanding the mortgagor's specific covenant in the mortgage to pay the mortgage debt; and from this the conclusion is reached that suit on the obligation is barred by the six-year statute of limitations (3 Comp. Laws 1929, § 13976 [Stat. Ann. § 27.605]). No authorities supporting this conclusion are cited, and none have been called to our attention which squarely sustain it. Further, no good reason appears for holding that the mere simultaneous giving of a note should nullify the obligation of the mortgagor expressed in the covenant. Always a covenant obligation has been considered more solemn and binding than a mere promise in writing not under seal. It is difficult to understand why the weaker obligation should destroy the stronger. Instead the more tenable conclusion would seem to be that the condition of the loan by *Page 195
the mortgagee was that the borrower should not only promise to pay but that he should also covenant under seal to pay. By so doing the borrower extends the term of his personal liability. Such a construction renders both the note and the mortgage covenant operative. To hold otherwise is to render the covenant (the more sacred obligation of the two) an absolute nullity.
The plain statutory provision in this State seems controlling. So far as pertinent, it reads:
"That actions * * * founded upon covenants in deeds and mortgages on real estate, may be brought at any time within ten years from the time * * * when the cause of action accrued on such bond or covenant." 3 Comp. Laws 1929, § 13976 (Stat. Ann. § 27.605).
Certainly if a personal action can be brought "at any time within ten years from * * * the time when the cause of action accrued on such * * * covenant," then, since equity follows the law, the mortgagee or his assignee on foreclosure of a mortgage containing an express covenant to pay, and who (as plaintiff herein) declares upon the covenant, should be given a deficiency decree if the suit was commenced within 10 years after the cause of action on the covenant accrued.
"Equity follows the analogies of the law in all cases where an analogous relief is sought upon similar claim." MichiganIns. Co. of Detroit v. Brown, 11 Mich. 265, 272.
But aside from our statute, there is ample authority holding in accord with the above; and the applicability of the cases hereinafter noted is not impaired by any material difference in statutory provisions. *Page 196
"A covenant in a real estate mortgage expressly providing for the payment of the amount payable by virtue of a note secured by the mortgage is within the 20-year statute of limitations. * * *
"A mortgagee had the right to recover the amount of indebtedness evidenced by notes secured by a mortgage which contained a covenant for the payment of the amount represented by such notes notwithstanding that recovery solely on the notes was barred by the six-year statute of limitations where the action was commenced within the 20-year period of limitation applicable to the covenant of the mortgage. * * *
"The covenant to pay a specified sum may be contained in a collateral instrument or in a mortgage by which the instrument is secured." Broward Operating Co., Inc., v. Harding (syllabi),3 N.Y. Supp. (2d) 696.
While the above recent (1938) New York decision is not one of a court of last resort, it is in accord with the following decision of that State, Dinning v. Gavin, 4 A.D. 298
(39 N.Y. Supp. 485), wherein it is said:
"The fact that the statute of limitations bars recovery upon the notes does not bar it upon the covenant in the mortgage. The notes are not paid; the remedy upon them is barred, but it is not barred upon the covenant in the sealed instrument, and the plaintiff is at liberty to resort to that covenant to secure payment of the debt due him."
Decision in the Dinning Case was affirmed in the court of last resort in New York. See 159 N.Y. 556 (54 N.E. 1090).
The law of Wisconsin is stated in the following case:
"Where a mortgage under seal contains a covenant to pay the debt secured thereby, neither the right to foreclose nor the right to a personal judgment *Page 197
for deficiency is barred until the expiration of 20 years from the time of default. * * *
"The covenant in this case being to pay the sum specified in the note 'with interest accruing thereon at the times and in the manner stated in said note,' the note, though barred (by the six-year statute of limitations), may be taken to fix the terms of interest on the amount secured by the lien."Ogden v. Bradshaw (syllabi), 161 Wis. 49 (150 N.W. 399,152 N.W. 654).
In Arkansas the statute provides that a suit for foreclosure of a mortgage must be "brought within the period of limitation prescribed by law for a suit on the debt." In a foreclosure suit the defendants unsuccessfully urged that the mortgage could not be foreclosed because the five-year statute barring liability on the mortgage note had run. The court said:
"Defendants made two separate written agreements to pay the debt, one contained in a promissory note, and one in a mortgage, both of which were executed on the same day. The note was not under seal, but the mortgage was under seal. The plaintiff founded this action upon the covenant contained in the mortgage, and contends that, as the mortgage was under seal, the statutory period of limitations applicable to it is 10, not five, years. * * *
"In order, then, to determine whether the right to foreclose is barred, it is only necessary to consider whether * * * the plaintiff's right to recover a personal judgment is barred. * * * The mortgage contains an express covenant on the part of defendants that they will pay to the plaintiff the sum of $300 with interest thereon from date until paid at the rate of eight per cent. per annum; and, as this promise was under seal, the right of plaintiff to sue upon it was not barred until after 10 years from the time his cause of action accrued." *Page 198 New England Mortgage Security Co. v. Reding, 65 Ark. 489
(47 S.W. 132).
While it appears to be dictum, the following is at least indicative of the position of the supreme court of Illinois.
"In Great Britain it is usual to insert in the mortgage itself a covenant for the payment of the money. When such a covenant is found in the mortgage, it being under seal, and the debt, to secure which it was given is not, a bar to a recovery of the debt, if of a shorter period than a bar to a sealed instrument, could not affect the remedy on the covenant in the mortgage. If the statutory period necessary to bar an unsealed instrument be of shorter duration than a sealed instrument, a mortgage containing such a covenant given to secure the payment of a debt evidenced by an unsealed note, would be governed by the longer period required to bar a recovery on sealed instruments." Harris v. Mills, 28 Ill. 44 (81 Am. Dec. 259).
A decision of like character will be found inEarnshaw v. Stewart, 64 Md. 513 (2 A. 734).
At the time this court decided Clinton v. Clinton's Estate,148 Mich. 496, the pertinent provisions in our statute of limitations did not differ materially from the present; and Justice HOOKER, speaking for the court, said:
"The mortgage (there was also a note) was executed by both George and Jane Clinton, contained an express promise to pay $225 and interest, and was under seal, as also was the separation agreement. Therefore the statute had not run until 10 years had expired. * * * The mortgage was dated in June, 1882, payable in three years. * * * The personal obligation under the mortgage became barred in June, 1895." *Page 199
Paragraph 3 of the syllabus reads:
"Action on the personal obligation created by a mortgage on real estate is barred in 10 years." (3 Comp. Laws 1897, § 9734.)
The trial court was in error in holding that plaintiff should be denied a deficiency decree. A modified decree will be entered in this court providing for deficiency and the case will be remanded for execution of the decree. Costs to appellant.
BUSHNELL, SHARPE, and POTTER, JJ., concurred with NORTH, J. |
Case: 13-10544 Date Filed: 03/13/2014 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10544
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00153-WS-C-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MURALI KRISHNA A. REDDY,
a.k.a. [email protected],
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(March 13, 2014)
Before WILSON, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-10544 Date Filed: 03/13/2014 Page: 2 of 11
Murali Krishna Reddy appeals his conviction for attempting to use a facility
of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to
engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Mr. Reddy became
the subject of an undercover law enforcement operation after an officer using the
persona of a 15-year-old boy named “Steven” responded to Mr. Reddy’s online
Craigslist ad for oral sex. Through a series of e-mails and text messages, Mr.
Reddy set up a meeting with “Steven” for oral sex. Officers arrested Mr. Reddy
upon his arrival at the designated meeting place.
Mr. Reddy challenges his conviction on three grounds: (1) the evidence
presented at trial was insufficient to support his conviction because he did not learn
that “Steven” was 15 years old until after “Steven” had assented to engage in
sexual activity; (2) the district court’s jury instructions constructively amended his
indictment by including attempt to violate 18 U.S.C. § 2422(b), where the
indictment did not clearly allege attempt; and (3) multiple instances of
prosecutorial misconduct during closing arguments deprived him of a fair trial.
After carefully reviewing the parties’ briefs and the relevant portions of the
records, we affirm.
I. Sufficiency of Evidence
We review de novo a verdict challenged for sufficiency of the evidence.
United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). We view the
2
Case: 13-10544 Date Filed: 03/13/2014 Page: 3 of 11
evidence in the light most favorable to the government and resolve all reasonable
inferences and credibility evaluations in favor of the jury’s verdict. United States
v. Doe, 661 F.3d 550, 560 (11th Cir. 2011).
To sustain a conviction for a crime of attempt under 18 U.S.C. § 2422(b),
the government first must prove (1) that the defendant acted with the specific intent
to persuade, induce, entice, or coerce a minor 1 to engage in unlawful sexual
activity, and (2) that he took a substantial step toward the commission of the
offense. United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). As to
intent, the government must prove that the “defendant intended to cause assent on
the part of the minor,” not that he acted with the specific intent to engage in the
sexual activity. United States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010). An
attempt to “stimulate or cause the minor to engage in sexual activity” fits the
statutory definition of persuasion or inducement. Murrell, 368 [email protected].
“A substantial step can be shown when the defendant’s objective acts mark
his conduct as criminal and, as a whole, strongly corroborate the required
culpability.” United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007) (quotation
omitted). In Murrell, for example, we held that the defendant, who had arranged to
have sex with a minor at a hotel, took a substantial step toward his goal of inducing
1
A defendant can be convicted of an attempt offense under 18 U.S.C. § 2422(b) even if
there is no actual minor victim. See United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002)
(holding that the defendant’s “belief that a minor was involved is sufficient to sustain an attempt
conviction”), superseded by Guideline amendment on other grounds, as recognized in United
States v. Jerchower, 631 F.3d 1181, 1186-87 (11th Cir. 2011).
3
Case: 13-10544 Date Filed: 03/13/2014 Page: 4 of 11
her to engage in sexual activity because he (1) made incriminating statements to an
undercover law enforcement officer; (2) traveled several hours to meet the girl at
the hotel; and (3) brought with him a teddy bear, money to pay the girl’s father,
and a box of condoms. Murrell, 368 [email protected]. See also Yost, 479 F.3d at 820
(holding that the defendant took a substantial step that “crossed the line from mere
‘talk’ to inducement” by placing a call to an undercover officer posing as a minor,
posting sexually explicit pictures online, and making arrangements to meet the
minor).
Here, the evidence was sufficient to support Mr. Reddy’s conviction for an
attempt offense under § 2422(b).
First, there was sufficient evidence for the jury to find that Mr. Reddy
intended to cause a minor to assent to unlawful sexual activity. See Lee, 603 F.3d
at 914. Throughout their e-mail and text-message correspondence, Mr. Reddy
specifically and repeatedly asked the 15-year-old “Steven” whether he agreed to
perform oral sex.2 Additionally, the correspondence showed that Mr. Reddy
intended to induce “Steven” to engage in oral sex by discussing with him where
2
Although some of Mr. Reddy’s comments were rather sheepish and betrayed worry that
“Steven” would not want to go through with the plan (e.g., “r u sure u wanna do this?” or “i am
not among those cute asian guys”), a jury could very reasonably interpret these comments as
designed to shore up “Steven’s” assent and thus “stimulate or cause [him] to engage in sexual
activity.” See Murrell, 368 [email protected]. Indeed, sheepish enticement is still enticement.
4
Case: 13-10544 Date Filed: 03/13/2014 Page: 5 of 11
they could meet, sending him a photo, asking him whether he had “done it before,”
and mentioning the size of his own genitalia. See Murrell, 368 [email protected]
Second, there was sufficient evidence for the jury to find that Mr. Reddy
took a “substantial step” toward causing “Steven” to assent to sexual contact with
him. See Lee, 603 [email protected]. Mr. Reddy asked for “Steven’s” phone number
and initiated a text-message conversation, during which he explicitly propositioned
“Steven” for oral sex. See Yost, 479 F.3d at 820 (finding that a call placed to an
undercover officer posing as a minor constituted a substantial step); Murrell, 368
F.3d at 1288 (finding that incriminating statements to an undercover officer
constituted a substantial step). Mr. Reddy also made arrangements to meet
“Steven” at a specified location, and he later drove to that location. See Yost, 479
F.3d at 820; Murrell, 368 [email protected].
Mr. Reddy’s argument that “Steven” agreed to oral sex before revealing his
age—and that consequently Mr. Reddy neither had the intent nor took a substantial
step to cause a minor’s assent—fails for two reasons. For starters, the record is
unclear as to whether “Steven” assented to perform a specific sexual activity
before telling Mr. Reddy that he was 15 years old. “Steven’s” first e-mail to Mr.
Reddy stated that he “was interested,” and his second e-mail gave his age as 15 and
3
The fact that Mr. Reddy did not post his initial ad on a forum designed for adults to
meet minors, unlike the defendants in Murrell and Yost, does not take his subsequent conduct out
of § 2422(b)’s scope. After he learned “Steven” was only 15 years old, he continued to make
comments—e.g. “u wanna suck me?”—that a jury could reasonably interpret as intended to
“cause the minor to engage in sexual activity.” See Murrell, 368 [email protected].
5
Case: 13-10544 Date Filed: 03/13/2014 Page: 6 of 11
discussed whether Mr. Reddy would “host.” In neither e-mail, however, did
“Steven” expressly state that he assented to oral sex or any other sexual activity.
In addition, the record is clear that once Mr. Reddy learned that “Steven” was 15
years old, he specifically and repeatedly asked “Steven” if he would assent to
perform oral sex. See Lee, 603 [email protected].
Thus, the evidence was sufficient to support both the intent and the
substantial step requirements for an attempt offense under § 2422(b). 4
II. Constructive Amendment of Indictment
We review jury instructions de novo to determine whether they misstated the
law or misled the jury. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.
2000). Constructive amendment of an indictment generally constitutes per se
reversible error. United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994). We
recently held, however, that “in cases where the defendant fails to object to a
constructive amendment, we apply traditional plain-error review.” United States v.
Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (11th Cir. 2013).
4
Mr. Reddy argues that even if there is sufficient evidence to convict him, we should
recommend this case for en banc review so that we may reconsider the definition of
“inducement” as used in the context of § 2422(b). We decline the invitation. An en banc
hearing “an extraordinary procedure intended to bring to the attention of the entire court a
precedent-setting error of exceptional importance in an appeal or other proceeding,” as well as “a
panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of this
circuit.” 11th Cir. R. 35-3. No such circumstances exist here. Mr. Reddy concedes that we are
bound by the definition of “inducement” given in Murrell, 368 [email protected]. Although he argues
that this definition conflicts with other courts’ definitions, he does not contend that Murrell
conflicts with our precedent or with a Supreme Court decision.
6
Case: 13-10544 Date Filed: 03/13/2014 Page: 7 of 11
A constructive amendment occurs “when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.” United States v. Keller,
916 F.2d 628, 634 (11th Cir. 1990). A constructive amendment does not occur
simply because a “jury instruction did not exactly match the form of the
indictment,” so long as “the substance of the indictment remained intact.” United
States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008). In determining whether an
indictment is sufficient, we read it as a whole and give it a “common sense
construction.” United States v. Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009)
(quotations omitted). Additionally, “[t]he law is well established that where an
indictment charges in the conjunctive several means of violating a statute, a
conviction may be obtained on proof of only one of the means, and accordingly the
jury instruction may properly be framed in the disjunctive.” Simpson, 228 F.3d at
1300.
We review whether the district court constructively amended Reddy’s
indictment for plain error because Mr. Reddy failed to raise objections on the
matter before the court. See Madden, 733 [email protected]. The district court did not
plainly err because the jury’s instructions reflected the substance of the indictment.
See Moore, 525 [email protected]. The indictment alleged that Reddy had “used and
attempted to use a facility of interstate commerce . . . to knowingly persuade,
7
Case: 13-10544 Date Filed: 03/13/2014 Page: 8 of 11
induce, entice, and coerce” a minor to engage in a sexual activity.” The “common
sense construction” of this language is that it conjunctively charged Mr. Reddy
with both the attempted and completed offense. See Jordan, 582 F.3d 1239, 1245.
The indictment’s use of the conjunctive, in turn, allowed the jury to be charged that
the government need only prove the attempted offense. See Simpson, 228 F.3d at
1300. 5
Accordingly, the district court did not constructively amend the indictment,
and thus did not commit plain error. See Madden, 733 F.3d at 1322; Moore, 525
[email protected].
III. Prosecutorial Misconduct
Finally, Mr. Reddy argues that he was deprived of a fair trial due to multiple
instances of prosecutorial misconduct during closing arguments. We ordinarily
review a claim of prosecutorial misconduct de novo. United States v. Merrill, 513
F.3d 1293, 1306 (11th Cir. 2008). “However, with respect to a prosecutor’s
statements made during closing where the defendant did not raise this objection at
trial, we review only for plain error,” which is an error that is “so obvious that
failure to correct it would jeopardize the fairness and integrity of the trial.” Id. at
1306-07 (quotation omitted). To establish prosecutorial misconduct, “(1) the
5
Mr. Reddy’s suggested interpretation of his indictment—that the word “attempt”
modified only the phrase “to use a facility of interstate commerce”—does not make sense. Mr.
Redding could never complete his persuasion, inducement, enticement, or coercion of a minor if
he attempted, but failed, to use an interstate-commerce facility. Thus, logically, “attempt” can
only be understood to modify the entire sentence including “persuade, induce, entice. . . .”
8
Case: 13-10544 Date Filed: 03/13/2014 Page: 9 of 11
remarks must be improper, and (2) the remarks must prejudicially affect the
substantial rights of the defendant.” Id. at 1307 (quotation omitted). A
defendant’s substantial rights are prejudicially affected when a reasonable
probability arises that, but for the remarks, the outcome of the trial would have
been different. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
As Mr. Reddy did not raise any objections to the government’s closing
argument, we review for plain error. See Merrill, 513 F.3d 1306-07. Mr. Reddy
challenges three statements that the government made during closing argument: (1)
references to Mr. Reddy’s position as a pediatrician that were allegedly designed to
enflame the jury’s emotions; 6 (2) references to Mr. Reddy’s subpoena power that
improperly shifted the burden of proof onto Mr. Redding; 7 and (3) a statement that
improperly bolstered the testifying police officers’ credibility. 8
Of these three statements, only the first is potentially improper. The
statement regarding Mr. Redding’s subpoena power was proper because Mr.
Redding had specifically called attention to the government’s failure to call the
6
The prosecutor referred to Mr. Reddy as “a pediatric resident,” “a doctor who’s
supposed to heal children and instead is trying to hurt one.” He further stated that Mr. Redding
had “a responsibility to take care of children. He abused that. He took advantage of it, and that
is wrong.”
7
In response to Mr. Redding’s statement to the jury that the government failed to call a
certain witness, the prosecutor stated that Mr. Reddy “can compel anybody to be here. That’s
one of the rights that the Defendant has. The Court can issue subpoenas and compel anybody to
be here and testify.”
8
The prosecutor stated that the investigating officers had “no motive for coming in here
and telling you a lie, risking their careers, risking their futures, risking their reputations.”
9
Case: 13-10544 Date Filed: 03/13/2014 Page: 10 of 11
witness in question. See United States v. Hernandez, 145 F.3d 1433, 1439 (11th
Cir. 1998) (quotation omitted) (“[I]t is not improper for a prosecutor to note that
the defendant has the same subpoena powers as the government, particularly when
done in response to a defendant’s argument about the prosecutor’s failure to call a
specific witness.”). The statement regarding the testifying police officers was not
improper bolstering because it merely “acknowledg[ed] that adverse legal
consequences would flow from lying under oath” and responded to Mr. Redding’s
strategy “to attack and undermine the credibility” of the officers, both of which are
permissible. See United States v. Bernal-Benitez, 594 F.3d 1303, 1314 (11th Cir.
2010).
As to the statement regarding Mr. Redding’s being a pediatrician, it was
improper because his job was irrelevant to whether he had violated 18 U.S.C.
§ 2422(b). However, Mr. Reddy cannot demonstrate prejudice in light of the
strong independent evidence of his guilt. The emails and text messages that he
sent to “Steven” propositioning him for oral sex, as well as his arrival at the
designated meeting place, provided an ample basis for the jury to convict him. He
has thus not shown “a reasonable probability . . . that, but for the remarks, the
outcome of the trial would have been different.” See Eckhardt, 466 [email protected].
Moreover, the curative effect of the district court’s repeated advisements to the
jury that attorneys’ statements were not evidence weigh against Mr. Reddy’s claim.
10
Case: 13-10544 Date Filed: 03/13/2014 Page: 11 of 11
See United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) (“Prosecutorial
misconduct must be considered in the context of the entire trial, along with any
curative instruction.”).
III.
Mr. Reddy’s conviction for an attempt offense under 18 U.S.C. § 2422(b) is
affirmed.
AFFIRMED.
11
|
Case 2:19-cv-12371-SDW-LDW Document 7 Filed 09/03/19 Page 1 of 1 PagelD: 33
oO ODN OO KR WH NY =
RO RO RO KR PO KR NYO HD HDB 2 FS |B = S=& S@& mw Ba em |
oN OO om FB WwW DHS |= O oO WDBN DO OG FBP WO HMO =
Lynn Awkward
80 W. Passaic Ave
Bloomfield, NJ 07003
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LYNN AWKWARD, No. 2:19-12371-SDW-LDW
Plaintiff,
vs,
STATE OF NEW JERSEY and
DAVID P. CARROLL,
Defendants.
REQUEST FOR ENTRY OF DEFAULT
COMES NOW Plaintiff Lynn Awkward and hereby requests the Clerk to enter a
default against defendants State of New Jersey and David P. Carroll, on the basis that
the record in this case demonstrates that there has been a failure to plead or otherwise
defend the Amended Complaint as provided by Rule 55(a) of the Federal Rule of Civil
Procedure.
Respectfully submitted this 3 _dayof_ Sz p fem hel 2019.
dh Awkward, Plaintiff
|
Exhibit 31 CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Steven A. Rothstein, certify that: 1.I have reviewed this quarterly report on Form 10-QSB of Brownshire Holdings, Inc.; 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 and cash flows of the small business issuer as of, and for, the periods presented in this report; 4.The small business issuer's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) 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 small business issuer, 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.Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c.Disclosed in this report any change in the small business issuer's internal control over financial reporting that occurred during the small business issuer's most recent fiscal quarter (the small business issuer's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer's internal control over financial reporting; and 5.The small business issuer's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer's auditors and the audit committee of the small business issuer'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 small business issuer'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 small business issuer's internal control over financial reporting. Date:March 17, 2008 /s/ Steven A. Rothstein Steven A. Rothstein President CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Norman S. Lynn, certify that: 1.I have reviewed this quarterly report on Form 10-QSB of Brownshire Holdings, Inc.; 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 and cash flows of the small business issuer as of, and for, the periods presented in this report; 4.The small business issuer's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) 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 small business issuer, 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.Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c.Disclosed in this report any change in the small business issuer's internal control over financial reporting that occurred during the small business issuer's most recent fiscal quarter (the small business issuer's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer's internal control over financial reporting; and 5.The small business issuer's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer's auditors and the audit committee of the small business issuer'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 small business issuer'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 small business issuer's internal control over financial reporting. Date:March 17, 2008 /s/ Norman S. Lynn Norman S. Lynn Vice President, Corporate Secretary, and Treasurer
|
847 So. 2d 987 (2003)
MAGNETIC IMAGING SYSTEMS, I, LTD., Appellant,
v.
PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
No. 3D02-888.
District Court of Appeal of Florida, Third District.
March 12, 2003.
Rehearing and Clarification Denied May 28 and July 9, 2003.
*988 John G. Crabtree, Key Biscayne; Zebersky & Payne and Edward H. Zebersky, Hollywood; Keith Hope, Tallahassee; Sheftall & Torres and Brian Torres, Miami, for appellant.
Weinstein, Bavly & Moon and Alvin N. Weinstein; Arthur J. Morburger, Miami, for appellee.
Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
Rehearing En Banc and Clarification Denied May 28 and July 9, 2003.
WELLS, J.
Magnetic Imaging Systems I, Ltd. ("Magnetic") appeals a final summary judgment in favor of Prudential Property & Casualty Insurance Company ("Prudential") in which the lower court found that Magnetic was not entitled to a fee award. We disagree and reverse.
Magnetic is a medical service provider that accepts assignment of PIP insurance benefits from its patients. As the assignee of such benefits, Magnetic is entitled to receive PIP payments directly from insurers. On April 18, 1995, Magnetic filed suit against Prudential Insurance Corporation of America ("Prudential of America"), alleging that the insurer had regularly failed to pay interest on late-paid PIP benefits as required by sections 627.736(4)(b) and (c), Florida Statutes (1995).[1]
Magnetic brought suit as the assignee of one of its patients and, as a putative class representative, sought to certify a class consisting of two subgroups: (1) individual insureds to whom interest on late PIP benefits had not been paid; and (2) medical-provider assignees (like itself) to which interest on late PIP benefits had not been paid. After a little more than a year of litigation, Prudential of America moved for summary judgment, arguing that Prudential, not Prudential of America, had issued the insurance policy involved in the action, and that Prudential had timely paid the patient-assignor's benefits as mandated by section 627.736(4)(b). Rather than ruling on the motion for summary judgment, the lower court permitted Magnetic to amend its complaint to substitute Prudential for Prudential of America and to substitute a different patient-assignor, Felix Gentile (whose PIP benefits presumably had not been timely paid), for the patient-assignor named in the original complaint.
Upon substitution, Prudential promptly moved to compel arbitration claiming that disputes "between the insurer and any person providing medical services ... [who] has agreed to accept assignment of [PIP] benefits" had to be arbitrated under section 627.736(5), Florida Statutes (1995). *989 The request was granted; but, before arbitration could begin, two things occurred. First, in August 1998, Prudential tendered a check for $22.12, the amount purportedly due as interest on Mr. Gentile's late-paid benefits. Second, in February 2000, the Florida Supreme Court held that the provision pursuant to which the action had been referred to arbitration, section 627.736(5), was unconstitutional. See Nationwide Mut. Fire Ins. v. Pinnacle Med., Inc., 753 So. 2d 55 (Fla.2000). Consequently, and at Magnetic's request, the trial court's previous orders compelling arbitration were vacated, and the matter was returned to circuit court.
Following a skirmish over whether the action should be dismissed for lack of prosecution while the arbitration was pending, Prudential moved for summary judgment claiming that the forms executed by Magnetic's assignor did not constitute a valid assignment. Prudential also argued that its tender of payment extinguished the entire claim.
On February 27, 2002, the lower court entered final summary judgment in Prudential's favor, concluding that the action should have been dismissed following Prudential's tender of interest due on the late-paid benefits without provision for payment of Magnetic's attorney's fees, because: (1) Magnetic had inappropriately sought to litigate rather than arbitrate as mandated by section 627.736(5); and (2) Magnetic had incurred no fees between the time arbitration was ordered and the time payment was tendered. For the following reasons, we disagree and reverse.
In Central Magnetic Imaging v. State Farm Mut. Auto. Ins. Co., 745 So. 2d 405, 407 (Fla. 3d DCA 1999), this court held that an insurer's payment of PIP benefits demanded by a medical provider assignee following commencement of arbitration constituted a settlement which "is equivalent to a confession of judgment," entitling the assignee to an award of attorney's fees as the prevailing party under section 627.736(5). This court also rejected the notion that an insurer could escape a fee award under 627.736(5) by holding out until an arbitration demand is made, and then paying benefits before action is taken in the arbitration proceeding:
An insurer cannot escape the penalty of attorney's fees simply by ignoring an outstanding medical bill, paying it when an arbitration demand is made and then arguing that arbitration was not held because full payment of benefits was subsequently made.
Id. (citation omitted).
The fact that little occurred following referral of this case to arbitration did not, therefore, negate Magnetic's entitlement to a fee award. Moreover, Magnetic's entitlement to a fee award was not limited to recovering for services rendered only after arbitration was ordered. See Criterion Ins. Co. v. Gutierrez, 319 So. 2d 70 (Fla. 3d DCA 1975) (affirming an award of fees for services incurred both before an action to recover PIP benefits was filed and after an offer of judgment was made). Accordingly, Prudential's tender of payment entitled Magnetic to a fee award.
The Florida Supreme Court's invalidation of section 627.736(5), and its prevailing party fee provision, does not change this result. Section 627.428(1), Florida Statutes (2002), provides that in any dispute "which leads to judgment against the insurer in favor of the insured, attorney's fees shall be awarded to the insured." Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla.2000). As the Florida Supreme Court has explained, current PIP law (as evidenced by sections 627.428(1) and 627.736(8)) "is outcome-oriented. If a dispute arises between an insurer and an *990 insured, and judgment is entered in favor of the insured, he or she is entitled to attorney's fees." Id. at 684. Where an insurer makes payment of a claim after suit is filed, but before a judgment is rendered, such payment operates as a confession of judgment, entitling the insured to an attorney's fee award. See id. at 684-85. These general principles apply not only to disputes between insurers and their insureds, but also to disputes between insurers and those like Magnetic, to whom PIP benefits have been assigned. See § 627.736(8), Fla. Stat. (2001) (confirming that section 627.428 applies to disputes "between an assignee of an insured's rights and the insurer"); Superior Ins. Co. v. Libert, 776 So. 2d 360, 365-66 (Fla. 5th DCA 2001)(finding that an assignee of an insured's PIP benefits was entitled to attorney's fees under section 627.428(1), where the insurer paid the benefits after suit was filed); see also Roberts v. Carter, 350 So. 2d 78, 79 (Fla.1977)(noting that attorney's fees are available under section 627.428(1) to assignees of an insured). Magnetic was entitled to a fee award.
We also find no merit in Prudential's argument that the forms executed by Magnetic's assignor did not constitute a valid assignment of benefits. This is especially so since Prudential obtained an order compelling Magnetic, as assignee, to arbitrate by affirmatively alleging that arbitration was mandatory "between the insurer and any person providing medical services ... [who] has agreed to accept assignment of [PIP] benefits."
Accordingly, the summary judgment denying Magnetic a fee award is reversed and this cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] Sections 627.736(4)(b) and (c), Florida Statutes (1995), in pertinent part provided:
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same....
(c) All overdue payments shall bear simple interest at the rate of 10 percent per year.
|
On a former day of the term an opinion was written herein disposing of the case. Upon motion for rehearing it is called to our attention for the first time, and which was not done before the former opinion was written, that sentence had not been passed upon defendant. Under our statute this court would not have jurisdiction in this character of case until after the final judgment or sentence had been pronounced. An opinion rendered where jurisdiction has not attached would not be authorized, and it will, therefore, be withdrawn and the case will stand for disposition upon appeal, if one should be taken, after sentence has been pronounced. The appeal, as the record now stands, will be dismissed for want of final sentence.
Dismissed.
MORROW, JUDGE, not sitting. |
EFiled: Sep 24 2014 03:37PM EDT
Transaction ID 56082893
Case No. 8663-VCN
COURT OF CHANCERY
OF THE
STATE OF DELAWARE
JOHN W. NOBLE 417 SOUTH STATE STREET
VICE CHANCELLOR DOVER, DELAWARE 19901
TELEPHONE: 956-949-4322
FACSIMILE: 956-949-4322
September 24, 2014
Timothy R. Dudderar, Esquire Scott G. Wilcox, Esquire
Samuel L. Closic, Esquire Whiteford Taylor Preston LLC
Potter Anderson & Corroon LLP The Renaissance Centre, Suite 500
1313 North Market Street 405 North King Street
Wilmington, DE 19801 Wilmington, DE 19801
Re: Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
Date Submitted: May 28, 2014
Dear Counsel:
This is yet another dispute between a shareholder and the corporation about
the scope of inspection in a proceeding under 8 Del. C. § 220. The Court
concluded after trial that the stockholder had demonstrated a proper purpose for his
request. The matter involves a corporation with a limited number of shareholders
and no public reporting duties. Thus, another question is the confidentiality to be
accorded documents that would not ordinarily find their way into the public light.
Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
September 24, 2014
Page 2
The Court addresses the debate in two phases: first, determining the scope of the
production and second, balancing the confidentiality concerns.
Plaintiff Rodney Jefferson (“Jefferson”) demonstrated that valuing his
holdings in Defendant Dominion Holdings, Inc. (“Source4”) is a primary and
proper purpose for the inspections which he proposed.
Tax returns and financial reports are requested.1 Yet, Jefferson seeks
“supporting documents relating thereto.” The scope of such a request is not
entirely clear; more importantly, why supporting documentation is necessary is not
readily apparent. The numbers on the tax returns and financial reports should
suffice.
Executive compensation is another proper topic. Jefferson reasonably seeks
compensation information tied to individuals in their given positions. Jefferson,
however, seeks social security numbers and other personal information (or, at least,
his requests can be read as encompassing such information). No legitimate reason
to release personal information beyond individual names has been offered.
1
The request for financial statements has not been waived.
Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
September 24, 2014
Page 3
Source4 proposes to provide “audited consolidated annual financial
statements” for the period of 2010 through 2013. For purposes of valuing
Jefferson’s stake in the corporation, that should be adequate. Why the unaudited
financial statements (as opposed to just the audited final statements) are needed has
not been explained.
Source4’s audited financials are done on a consolidated basis. That is,
various subsidiaries are not independently audited. Jefferson has not shown why
subsidiary-by-subsidiary (as opposed to consolidated) reports are needed to fulfill
the purposes of his inspection. Production is limited to those audited financials
that already exist. It is not an objective of a Section 220 proceeding to require the
corporation to compile various financial data in a particular format when it has not
done so and when the stockholder has offered no reason why the corporation’s
standard practices should not be respected.2
2
The parties had debated the production of various general ledgers (or information
to be extracted from them) maintained by Source4 and its subsidiaries. That
debate apparently has been resolved. See Pl.’s Opp’n to Def.’s Mot. for Entry of
Def.’s Orders ¶ 4.
Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
September 24, 2014
Page 4
If the requested books and records are maintained in an electronic format
that may be readily used by Jefferson, there is no reason why production should
not be in that form. To the extent the information is maintained on paper, and not
readily available in electronic form, production in paper format is a reasonable
means of responding to the inquiry.3 Payment by the stockholder of the reasonable
costs of copying company paper records is part of the Section 220 process.4
Confidentiality agreements provide a rational, reasonable, and enforceable
methodology for dealing with corporate books and records that otherwise would
not be subject to public review. A closely held corporation does not need to make
all of its records available to the public simply because it has a stockholder with a
legitimate basis for inspecting corporate records. Allowing a shareholder the right
to inspect corporate books and records should not automatically result in the
release of its private—even if not necessarily confidential—information. A
balancing of the needs of the stockholder and the reasonable expectations of the
corporation is required. That balancing is best achieved through a confidentiality
3
Thirty calendar days is a reasonable timeframe for production of all categories of
Source4’s books and records.
4
To the extent that there was a dispute over court costs, the parties have resolved
that issue.
Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
September 24, 2014
Page 5
agreement that both (a) reasonably protects the confidentiality of the books and
records and (b) allows the stockholder to review the documents, not only with his
advisors, but also with other shareholders who share similar views. Thus, a
stockholder should be allowed to share the information, but only with those who
(a) have some reasonable basis for review and (b) agree to preserve
confidentiality.5
A reasonable confidentiality agreement protects the Court from being called
upon to inquire into the motives that may have animated a stockholder’s desire to
inspect the corporation’s books and records. Undoubtedly, there will be times
when the inspection is motivated by hostility toward incumbent management,
inspection not motivated strictly by the best interests of the corporation. In this
instance, Jefferson’s desire to value his shares provides a genuine and proper
purpose. Whether there might be some secondary, ulterior motive lurking in the
background that would incentivize the release of the corporation’s documents is a
question that the Court need not resolve. Source4’s confidentiality concerns are
adequately protected by a confidentiality order.
5
The form of a confidentiality order is not prescribed. Any person acquiring
access to the books and records should execute a confidentiality undertaking.
Jefferson v. Dominion Holdings, Inc.
C.A. No. 8663-VCN
September 24, 2014
Page 6
Finally, there appears to be some dispute about what confidentiality
provisions apply to documents that have been (or will be) released. To clarify, the
Court is not addressing documents disclosed in litigation up to this point. The
treatment of those documents is governed by Rule 5.1 and the confidentiality order
under which they were provided.
Accordingly, the scope of the production has been defined, and the method
for preserving confidentiality has been explained. Counsel are required to prepare
and to submit an implementing form of order.
Very truly yours,
/s/ John W. Noble
JWN/cap
cc: Register in Chancery-K
|
Case 7:19-cr-00375-CS Document 351 Filed 01/25/21 Page 1 of 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
United States of America,
Notice of Adjournment
of Sentencing
-against-
7:19-CR-00375 (CS) (3)
Colin Burnett,
Defendant(s).
----------------------------------------------------------------X
The Sentencing previously scheduled before this Court for February 5, 2021 at
2:15 p.m. is adjourned to April 20, 2021 at 12:00 p.m. in Courtroom 621 of the
United States District Courthouse, 300 Quarropas Street, White Plains, New York
10601.
/s/ Walter Clark, Courtroom Deputy
Dated: January 25, 2021
White Plains, New York
|
Order Michigan Supreme Court
Lansing, Michigan
September 11, 2020 Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
161104
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth T. Clement
Plaintiff-Appellee, Megan K. Cavanagh,
Justices
v SC: 161104
COA: 351897
Kalkaska CC: 18-004179-FH
RYAN RICHARD RAPOZA,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 17, 2020 order
of the Court of Appeals is considered. We DIRECT the Kalkaska County Prosecuting
Attorney to answer the application for leave to appeal within 28 days after the date of this
order. In particular, the prosecuting attorney shall address whether the trial court
erroneously scored Offense Variable 19 at 15 points for the use of force to interfere with
the administration of justice.
The application for leave to appeal remains pending.
I, Larry S. Royster, 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.
September 11, 2020
s0909
Clerk
|
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 10, 2005 Session
THE CENTER FOR DIGESTIVE DISORDERS AND CLINICAL
RESEARCH, P.C., v. RONALD J. CALISHER, Individually and NORMAN
A. LAZERINE, Individually
Direct Appeal from the Circuit Court for Hamilton County
No. 00-C-2224 Hon. W. Neil Thomas, Circuit Judge
No. E2004-02309-COA-R3-CV - FILED AUGUST 30, 2005
Plaintiff sued defendants alleging breach of contract and tortious conduct on the part of defendants
resulting in damages to plaintiff. The Trial Court granted defendants summary judgment and
plaintiff has appealed. On appeal, we affirm the Judgment of the Trial Court.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.
John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for appellant.
G. Michael Luhowiak and Neil A. Brunetz, Chattanooga, Tennessee, for appellee, Norman A.
Lazerine.
Sam D. Elliott, Chattanooga, Tennessee, for appellee, Ronald J. Calisher.
OPINION
This action arises as a result of a contract entered between plaintiff, The Center for
Digestive Disorders and Clinical Research, P.C., and Calisher and Lazerine Associates, Inc. The
“Agreement” was signed on behalf of the corporation by Ronald J. Calisher, as its President and
Chief Executive Officer, and on behalf of the plaintiff by Dr. Richard Krause. The Contract
provided that Calisher & Lazerine Associates, Inc., would provide services for the design and
development of an outpatient endoscopy center to be constructed in Chattanooga, Tennessee. It was
a turnkey project, and architectural engineering firms in Knoxville were enlisted to assist in the
project. The building’s design did not meet certain requirements of the Health Facilities
Commission, which refused to grant a waiver. It was therefore necessary to modify the facility’s
design into two procedure rooms instead of the original three planned. As a result, the facility’s
scheduled opening was delayed approximately ninety days, causing the plaintiff loss of revenue and
increased construction expenses.
Arbitration proceedings as required by the Contract between plaintiff and Calisher
and Lazerine Associates, Inc., were instituted on December 22, 1998. On February 2, 2000, plaintiff
was awarded $416,374.93 in arbitration. Subsequent to the arbitration award, Calisher & Lazerine,
Inc., filed a Chapter Seven bankruptcy and plaintiff instituted this action after the arbitration award
was discharged through bankruptcy.
In granting the defendants summary judgment, the Trial Court described this action
as follows:
Plaintiff’s Complaint, filed on December 15, 2000, alleged that Defendants
“negligently, recklessly, and/or improperly designed and/or constructed and/or
supervised the design and construction of Plaintiff’s endoscopy center,” and
“negligently, recklessly and/or improperly failed to hire personnel with adequate
skills and training to design, construct, and to supervise the design and construction”
of the facility. The Complaint alleges that Calisher and Lazerine owed the Clinic a
duty of care independent of any contractual duty “by failing to adequately render the
services at issue, and having misrepresented their ability to render those services.”
The Plaintiff prays that the Court “declare that Defendants negligently, wrongfully
and/or recklessly failed to provide adequate consultation, design, construction,
engineering, architectural, supervisory, and personnel services for the benefit of the
Plaintiff, with such services failing to meet the applicable standard of care for such
professional services, in breach of their obligations to the plaintiff,” and seeks
damages, costs, attorneys’ fees, pre-judgment interest, and any and all other relief to
which it may be entitled.
Our reading of the plaintiff’s Complaint, reveals that plaintiff essentially charges the
defendants with breach of contract and/or tortious conduct that damaged the plaintiff.
As to the claimed breach of contract, there is no disputed issue of material fact. The
record establishes the Contract was between plaintiff and Calisher and Lazerine Associates, Inc. Dr.
Krause testified:
Q. You signed a contract with the two individuals? What do you base that on?
Do you have a contract with these gentlemen as individuals?
-2-
A. Those were the only two people that I knew so –
Q. Well, I’m going to pass to you what has been previously marked as Exhibit
5, which was attached to your complaint as Exhibit A. Is that the contract
that you’re referring to?
A. If I signed it, it is. Yes.
Q. All right, sir. And does that contract reflect that it’s with an entity called
Calisher & Lazerine Associates, Inc. or does it reflect that it’s a contract with
two individuals?
A. It says Associates, Inc., yes.
Q. And at the time you signed it you read the contract over, did you not?
A. Probably [email protected].
The Trial Court in its opinion granting summary judgment set forth several reasons
why the corporate veil should not be pierced. However, the Complaint does not ask to pierce the
corporate veil, rather, it seeks to hold the two individual defendants personally liable for their alleged
tortious conduct. Under Tennessee law, an agent of a corporation may be personally liable to another
party for the agent’s tortious conduct which injures another, despite the lack of privity. See, John
Martin Co., v, Morse/Diesel, Inc., 819 S.W.2d 428 (Tenn. 1991).
Tenn. R. Civ. P. 56.04 provides that summary judgment may be granted where: (1)
there is no genuine issue with regard to the material facts relevant to the claim or defense contained
in the motion. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993); and (2) the moving party is entitled to
a judgment as a matter of law on the undisputed facts. Anderson v. Standard Register Co., 857
S.W.2d 555, 559 (Tenn. 1993). Summary judgment is appropriate when the undisputed facts, and
the inferences reasonably drawn therefrom, support only one conclusion - that the moving party is
entitled to judgment as a matter of law. Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66
(Tenn. 2001); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).
The moving party has the burden of proving that its motion satisfies the requirements
of Rule 56. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Downen v. Allstate Ins. Co., 811
S.W.2d 523, 524 (Tenn. 1991). To prevail, the movant must either affirmatively negate an essential
element of the non-moving party’s claim or conclusively establish an affirmative defense. McCarley
v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423,
426 (Tenn. 1997).
Plaintiff has raised these issues on appeal:
-3-
The Court erred in not finding individual liability for defendants.
(a) The Complaint asserts a breach of contract claim against the defendants;
(b) Defendants misrepresented their corporate status and skills.
The Court erred in not piercing the corporate veil.
(a) This issue involves the credibility of witnesses.
(b) Relevant corporate records were intentionally destroyed.
(c) Defendants disposed of assets despite notice of this claim.
As already noted, there is no disputed issue of fact in that there is no contract
between the parties in this case, and the complaint did not raise the issue of piercing the corporate
veil.1 The remaining issue to be considered is whether the defendants’ “misrepresented their
corporate status and skills”.
Plaintiff argues in its brief that “both defendants are liable for misrepresentations
contained in their promotional brochure, which misstates the parties with whom any business
relationship would be formed by the plaintiff, and which also misstated the defendants’ “in-depth
knowledge of governing codes and regulatory guidelines. As has clearly been shown, defendants
possess no such knowledge, since they did not even know how to obtain current regulations and
guidelines or did not have the desire to do so.” And the argument goes on to charge that the
defendants had “participated to a fraud”.
While the plaintiff relies on a brochure furnished to it, the Development Agreement
recites that plaintiff was contracting with a California corporation and the Agreement specifically
states:
Entire Agreement This Agreement contains the entire agreement concerning the
subject matter of this Agreement between the parties. It supersedes all other
agreement between them concerning the subject matter of this Agreement. Neither
party has made any representations with respect to the subject matter of this
Agreement, nor any representations inducing the execution and delivery of the
Agreement, except the representations specifically stated.
The plaintiff’s argument that it relied on inducing representations of the brochure or other statements
is contrary to the quoted provision in the Development Agreement. See, Clore v. Village Inc., 1986
WL 4950 (Tenn. Ct. App. April 18, 1986), and such evidence is not admissible under the Parol
Evidence Rule.
1
The relief sought by the Complaint is:
That the Court declare the defendants negligently, wrongfully and/or recklessly failed
to provide adequate consultation, design, construction, engineering, architectural,
supervisor, and personal services for the benefit of the plaintiff, with such services
failing to meet the applicable standard of care for such professional services, and the
breach of their obligations to plaintiff as set forth herein.
-4-
As to the issue of fraudulent misrepresentation, the elements of fraudulent
misrepresentation for which an agent will be personally liable to third parties are: (1) the
representation of an existing or past fact; (2) the representation was false when made: (3) the
representation was in regard to a material fact; (4) the false representation was made either
knowingly or without belief in its truth or recklessly; (5) the plaintiff reasonably relied on the
misrepresented material fact; and (6) the plaintiff suffered damage as a result. Metropolitan Gov’t
of Nashville and Davidson County v. McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992).
Plaintiff’s action for alleged fraudulent misrepresentation fails for two reasons. It is
mandatory that circumstances constituting fraud must be pled with particularity, and the complaint
is deficient on that ground. Tenn.R. Civ. P. 9.02. Further, plaintiff’s reliance on brochures and oral
representations to establish misrepresentation is misplaced because such evidence as has been noted
contradicts the written contract which plaintiff entered for the construction of its clinic. See
Whelchel Co. Inc., v. Ripley Tractor Co., Inc., 900 S.W.2d 691 (Tenn. Ct. App. 1995).
For the foregoing reasons, we affirm the Judgment of the Trial Court and remand,
with the cost of the appeal assessed to The Center for Digestive Disorders and Clinical Research,
P.C.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
-5-
|
Plaintiff's petition alleges that, pursuant to the Emergency Price Control Act of 1942, 50 U.S.C. App., section 901 et seq., the administrator of the O.P.A. issued on December 1, 1942, Maximum Rent Regulation No. 58a for the Omaha Defense-Rental Area; on June 1, 1943, said regulation was amended to include Pottawattamie county; it fixed the maximum rent for hotels and rooming houses as the highest rent during the thirty-day period ending March 1, 1942; defendant operates the Ogden Hotel in Council Bluffs, Iowa; during the thirty-day period ending March 1, 1942, Room 323 in said hotel was rented for $2.75 per week; during the period from December 1, 1942, to August 2, 1943, a period of thirty-five weeks, defendant demanded of and received from plaintiff's decedent $3.50 per week for the occupancy of said Room 323; decedent died October 18, 1943; plaintiff was appointed administrator of his estate on January 22, 1944, and qualified as such. The prayer of the petition demanded $1,750 ($50 for each overcharge of seventy-five cents), attorney's fees, and costs. *Page 515
The defendant filed a motion to dismiss the action, asserting, among other things, that the plaintiff seeks to recover $1,750 for alleged overcharges totaling but $26.25; the action is for a penalty; the act does not provide for the survival of the action; it did not survive and plaintiff is without right to maintain it. The court sustained the motion and dismissed the action. Plaintiff appeals to this court.
[1] I. Appellant cites and relies upon sections 10957 and 10959, Code, 1939, relating to survival of actions. These statutes do not apply to a cause of action created by federal statute. 1 C.J.S. 183, section 135, states the rule thus:
"The statutes of the United States not having prescribed what causes of action shall survive, it has been held that, where a cause of action is given by a federal statute, and no specific provision is made by act of congress for its survival, it survives or not according to the principles of the common law, and not according to the statutes of a state; but if there are any federal statutes relating to the subject, they are controlling."
In Schreiber v. Sharpless, 110 U.S. 76, 80, 3 S. Ct. 423, 424,28 L. Ed. 65, 66, the court states:
"The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. Rev. Stat. § 955. At common law actions on penal statutes do not survive (Com. Dig. tit. Administration, B. 15), and there is no act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. The right to proceed against the representatives of a deceased person depends not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. If the cause of action survives, the practice, pleadings, and forms and modes of proceeding in the courts of the State may be resorted to in the courts of the United States for the purpose of keeping the suit alive and bringing in the proper parties. Rev. Stat. § 914. But if the cause of action dies with the person, the suit abates and cannot be revived. Whether an action survives depends on the substance *Page 516
of the cause of action, not on the forms of proceeding to enforce it. As the nature of penalties and forfeitures imposed by acts of Congress cannot be changed by State laws, it follows that State statutes allowing suits on State penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of Congress."
See, also, Bowles v. Farmers Nat. Bk., 6 Cir., Ky., 147 F.2d 425.
[2] II. Appellant contends that the act provides for survival of this action. The federal courts have expressly held otherwise. Bowles v. Farmers Nat. Bk., supra.
[3] III. By reason of the foregoing, the question whether this cause of action survives must be determined by the principles of the common law. The common-law rule is stated in 1 Am. Jur. 89, section 128, thus:
"A cause of action for the recovery of a penalty does not survive the death of the wrongdoer, being in its nature personal."
And, in 23 Am. Jur. 622, 623, section 27, it is stated:
"The term `penalty' is commonly used as constituting an extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, such liability not being limited to the damages suffered."
The decisions of this court support both of these statements.
In Miller v. Chicago N.W. Ry. Co., 59 Iowa 707, 711,13 N.W. 859, and Moriarty v. Central Iowa Ry. Co., 64 Iowa 696, 700,21 N.W. 143, we held that a statute imposing double damages was penal in nature. In Herriman v. Burlington, C.R. N.R. Co.,57 Iowa 187, 192, 9 N.W. 378, 10 N.W. 340, we held that a statute imposing quintuple damages provided for a penalty. In Bond v. Wabash, St. L. P. Ry. Co., 67 Iowa 712, 716, 25 N.W. 892, Baker Wire Co. v. Chicago N.W. Ry. Co., 106 Iowa 239, 243,76 N.W. 665, and Clark v. American Exp. Co., 130 Iowa 254, 258,106 N.W. 642, we held that a *Page 517
statute imposing treble damages provided for a penalty. In the recent case of Stark v. Ginsberg, 236 Iowa 735, 18 N.W.2d 627, we held that, where recovery was sought under the same statute now before us for $50, whereas the actual damages were but $3.28, the demand included exemplary damages in addition to actual damages. Certainly, under such decisions, this action, which seeks a recovery that is sixty-six times the actual damages, seeks to enforce a penalty.
[4] In construing the very question now before us — whether a demand for a penalty or exemplary damages survives — we squarely held, in Sheik v. Hobson, 64 Iowa 146, 19 N.W. 875, that the right to such damages did not survive the death of the wrongdoer either at common law or under our survivorship statute. And, in the case of Union Mill Co. v. Prenzler, 100 Iowa 540, 546,69 N.W. 876, we held that the same rule prevailed at common law where the person wronged was deceased unless the action was commenced during his lifetime. Here the action was brought after the death of the tenant who was overcharged. Hence, under the common law as expressly recognized by this court, the right to exemplary damages or a penalty did not survive.
IV. There are cases which hold that, since this action was created by federal statute, the decisions of the federal courts are controlling as to the common-law principles that should be applied thereto. Practically all of such cases were decided during the period that the rule of Swift v. Tyson, 16 Pet. (U.S.) 1, 10 L. Ed. 865, was applied by the federal courts. It is difficult to apply such decisions in view of the fact that Swift v. Tyson was overruled by Erie R. Co. v. Tompkins, 304 U.S. 64,58 S. Ct. 817, 82 L. Ed. 1188. However, as we interpret the decisions of the federal courts, we are convinced that the trial court was right herein.
In the case of Schreiber v. Sharpless, supra, 110 U.S. 76, 79,3 S. Ct. 423, 28 L. Ed. 65, 66, heretofore quoted, the supreme court squarely held that an action for a penalty would not survive. And, under repeated decisions of the federal courts, the trial court was clearly right in holding that this action, to recover $1,750 for overcharges totaling $26.75, is to recover a penalty. *Page 518
In the case of Helwig v. United States, 188 U.S. 605, 613,23 S. Ct. 427, 430, 47 L. Ed. 614, 617, the court defines a statutory penalty thus:
"Although the sum imposed by reason of undervaluation may be simply described as `a further sum' or `an additional duty,' if it is yet so enormously in excess of the greatest amount of regular duty ever imposed upon an article of the same nature, and it is imposed by reason of the action of the importer, such facts clearly show it is a penalty in its intrinsic nature, and the failure of the statute to designate it as a penalty, but describing it as `a further sum,' or `an additional duty,' will not work a statutory alteration of the nature of the imposition, and it will be regarded as a penalty when by its very nature it is a penalty. It is impossible, judging simply from its language, to hold this provision to be other than penal in its nature."
In the case of Thierry v. Gilbert, 1 Cir., Mass., 147 F.2d 603, 604, where there was no question of survival involved, the action was directly analogous to that now before us but for that one feature, and the First Circuit Court of Appeals described it thus:
"This is an action by a tenant to recover from his landlord thestatutory penalty provided in § 205 (e) of the Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S.C.A. Appendix § 925 (e), on account of nine monthly overcharges of rent." (Italics supplied.)
In the case of Lambur v. Yates, 8 Cir., Mo., 148 F.2d 137, 139, the Eighth Circuit Court of Appeals, in a similar action by a tenant against his landlord, described the remedy invoked as in the nature of a "qui tam" law. Webster's New International Dictionary, Second Ed., defines "qui tam" thus:
"An action to recover a penalty under a statute which gives part of the penalty to the one bringing the action and the rest to the state or a public body. The plaintiff describes himself as suing as well for the state as for himself."
In the case of Bowles v. Farmers Nat. Bk., supra, 6 Cir., Ky., 147 F.2d 425, 428, the Sixth Circuit Court of Appeals *Page 519
holds that the statute now before us imposes a penalty and that an action therefore does not survive, the court stating:
"We think that the original enactment of this section clearly provided for a penalty. The basic test whether a law is penal in the strict and primary sense is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual. Huntington v. Attrill, 146 U.S. 657, 668, 13 S. Ct. 224,36 L. Ed. 1123. * * *
"The amount of such payments, if made to the injured person, supplies a direct and powerful incentive for the enforcement of the Act by the individual. Cf. Gilbert v. Thierry, 1944, D.C. Mass., 58 F. Supp. 235. As well stated in that case, the treble damages provision is intended to be sufficiently attractive to stimulate an aggrieved person to recover his losses and to enforce the law; and it is also intended to be sufficiently burdensome to deter potential violators and to punish actual violators.
"Moreover, if a sum of money is to be recovered by a third person for violation of a statute instead of the person injured, Huntington v. Attrill, supra, 146 U.S. 657, 668, 13 S. Ct. 224,36 L. Ed. 1123; State of Wisconsin v. Pelican Ins. Co.,127 U.S. 265, 299, 8 S. Ct. 1370, 32 L. Ed. 239, or if the sum exacted isgreatly disproportionate to the actual loss, Helwig v. United States, 188 U.S. 605, 611, 23 S. Ct. 427, 47 L. Ed. 614, it constitutes a penalty rather than damages. The fact that the sum is to be recovered in a civil action does not determine the nature of the exaction. Hepner v. United States, 213 U.S. 103,29 S. Ct. 474, 53 L. Ed. 720, 27 L.R.A., N.S., 739, 16 Ann. Cas. 960; United States v. Zucker, 161 U.S. 475, 16 S. Ct. 641,40 L. Ed. 777; Lees v. United States, 150 U.S. 476, 14 S. Ct. 163,37 L. Ed. 1150; Jacob v. United States, Fed. Cas. No. 7,157. * * *
"In case of recovery under § 205 (e), the sum to be paid is sogreatly in excess of the loss incurred that it cannot be explained except upon the theory that the statute intends to subject the wrongdoer to an extraordinary liability not limited to the damage suffered. Huntington v. Attrill, supra,164 U.S. 657 at page 667, 13 S. Ct. 224, 36 L. Ed. 1123. * * *
"Holding, as we do, that the action for recovery of a *Page 520 penalty does not survive, we conclude that the District Court correctly ruled that no cause of action was stated against this appellee, and correctly dismissed the complaint as to it." (Italics supplied.)
The holding of the First Circuit Court, in Thierry v. Gilbert, supra, and that of the Eighth Circuit Court, in Lambur v. Yates, supra, directly support the position taken by the Sixth Circuit Court in Bowles v. Farmers Nat. Bk., supra. In addition thereto, that case is supported by the following decisions of various federal district courts: Bowles v. Trowbridge, D.C., Cal.,60 F. Supp. 48; Bowles v. Nasif, D.C., La., 58 F. Supp. 644; Brown v. Glick Bros. Lbr. Co., D.C., Cal., 52 F. Supp. 913, 917; Bowles v. Beatrice Creamery, D.C., Wyo., 56 F. Supp. 805, 806.
The decision of the trial court was right. The cause is — Affirmed.
MANTZ, HALE, SMITH, and WENNERSTRUM, JJ., concur.
OLIVER, J., and BLISS, C.J., and MULRONEY and GARFIELD, JJ., dissent. |
Order entered October 30, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00630-CV
DAONN JONES & ALL OCCUPANTS, Appellant
V.
ANTHONY DEMUS ESTATE OF HAWTHORNE ECHOLS (DECEASED), Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-18-02102-C
ORDER
The reporter’s record in this case is past due. By postcard dated September 26, 2018,
2018, we notified Janet Wright, Official Court Reporter for County Court at Law No. 3, that the
reporter’s record was overdue and directed her to file the reporter’s record within thirty days. To
date, the reporter’s record has not been filed and we have not received any correspondence
regarding the reporter’s record.
Accordingly, we ORDER Janet Wright, to file, within FIFTEEN DAYS of the date of
this order either (1) the reporter’s record; (2) written verification no hearings were recorded or
(3) written verification that appellant has not paid for or made arrangements to pay for the
reporter’s record. We notify appellant that if we receive verification she has not requested the
reporter’s record and/or has not paid for or made arrangements to pay for the reporter’s record,
we will order the appeal submitted without the reporter’s record. See TEX. R. APP. P. 37.3(c)
We DIRECT the Clerk to send copies of this order to:
Honorable Sally Montgomery
Presiding Judge
County Court at Law No. 3
Janet Wright
Official Court Reporter
County Court at Law No. 3
All parties
/s/ CAROLYN WRIGHT
CHIEF JUSTICE
|
United States District Court
Southern District of Texas
ENTERED
May 22, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
CORPUS CHRISTI DIVISION
JONATHAN TRIPLETT, §
§
Plaintiff, §
VS. § CIVIL NO. 2:18-CV-296
§
KELSEY B., et al, §
§
Defendants. §
ORDER
The Court is in receipt of the Magistrate Judge’s Memorandum and
Recommendation (“M&R”) to dismiss case, Dkt. No. 7. No party has filed objections
to the M&R, and the time to file objections has passed. See 28 U.S.C. § 636(b)(1)
(setting a 14-day deadline to file objections).
After independently reviewing the record and applicable law, the Court
ADOPTS the M&R, Dkt. No. 7. Plaintiff’s claims are DISMISSED WITH
PREJUDICE to their being asserted again until the Heck v. Humphrey, 512 U.S.
477 (1994) conditions are met. Plaintiff’s civil rights action is frivolous pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). This dismissal counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). The Court therefore DIRECTS the Clerk of the
Court to forward a copy of this Order to the Manager of the Three Strikes List for
the Southern District of Texas at [email protected]. Further, to the
extent that Plaintiff complains about the legality of his probation revocation, the
Court DISMISSES Plaintiff’s claim WITHOUT PREJUDICE to it being
reasserted in a federal habeas corpus petition after exhausting available state
remedies.
1/2
The Court DIRECTS the Clerk of the Court to close this case.
SIGNED this 22nd day of May 2019.
___________________________________
Hilda Tagle
Senior United States District Judge
2/2
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
Judgment of strict foreclosure was entered by the court (Corradino,J.) on October 2, 2000. At that time, a debt was found in the amount of $24,846.08. In addition, counsel fees were awarded in the amount of $1,500.00, a title search fee was awarded in the amount of $250.00 and an appraiser's fee was awarded in the amount of $300.00. The Law Day established was November 13, 2000. CT Page 4058
As part of the same judgment of strict foreclosure, there was a fair market value of the property known as 81 Truman Street, New London, Connecticut, found by the court. That finding provided a land value in the amount of $2,270.00 and a value of $30,730.00 for the building. The total value found was $33,000.00. Those findings were based on an appraisal dated August 14, 2000 by F. Jerome Silverstein.
On December 11, 2000, a motion for deficiency judgment was filed. That motion recited the terms of the judgment of strict foreclosure as mentioned above, and also indicated that the property was subject to a first mortgage which had an unpaid balance of $31,689.45 as of November 29, 2000. That first mortgage was payable to Norwest Bank.
At the hearing with respect to the motion for deficiency judgment, plaintiff presented a Calculation of Deficiency Judgment dated February 20, 2001. In that calculation, there was a request for additional attorney's fees of $1,500.00 as well as additional appraisal fees of $800.00. Also, there was a request for interest accrued from October 2, 2000 which was presented as $1,391.38. There was no explanation as to how the interest was calculated. The plaintiff further submitted an appraisal of the subject property prepared by F. Jerome Silverstein, the same appraiser who provided the initial appraisal upon which the findings of the court were based at the time of the entry of the judgment of strict foreclosure. The appraisal was accompanied by the oath of the appraiser, which had been sworn to on February 2, 2001. That appraisal indicated that the fair market value of the property as of January 2, 2001 was $21,000.00. The appraisal report was received by the court, but no testimony was offered in support of the report.
During the course of the argument on the motion for deficiency judgment, the plaintiff, through counsel, indicated that the change in the value of the property from $33,000.00 to $21,000.00 was brought about by reason that in the initial appraisal the appraiser had been unable to enter into the building. In the course of the subsequent appraisal, when the appraiser entered into the building, his estimate was revised. It was also represented, that the second appraisal had been accepted by the court in the matter of Norwest Bank v. Andrew Lockwood, Docket No. CV00-0557136, Judicial District of New London, as the basis for the value of the property in that case, and that a judgment of strict foreclosure had entered in that file based upon the second appraised value.
At the outset, the court notes that the relevant date for valuation of a property in a strict foreclosure is the date on which the plaintiff obtains title and not the date on which the court enters a judgment of foreclosure. Di Diego v. Zarro, 19 Conn. App. 291 (1989). As a practical CT Page 4059 matter it is neither uncommon nor unusual that the value of the property might change between the date of judgment and the date of the vesting of title. It is the burden of the plaintiff to establish the value of the subject property in pursuit of their motion for a deficiency judgment.Eichman v. J J Building Company, 216 Conn. 443 (1990).
In this case, the court is troubled by the dramatic change between the value of the land as found on August 14, 2000 of $2,270.00, and the subsequent value of the land as found in January, 2001, of $10,000.00. There is no explanation contained within the second appraisal report to account for a difference of such magnitude. There is no claim made that the appraiser was unable to examine the land either on his initial or subsequent visit. Nor is there any claim that any event took place upon or near this property that would have changed the value of the land within a relatively short time between appraisals. That this land more than quadrupled in value is not adequately explained. Similarly, the value of the building changed from $30,730.00 in the initial appraisal to $11,000.00 in the subsequent appraisal. Again, an explanation is offered that the appraiser was not able to view the interior of the property during his initial visit. The report itself contains a notation that "the roof leaks in several locations, several new windows are needed and the interior walls need repairs." However, the initial appraisal report had already stated that the property was in "poor" condition.
In the appraiser's analysis, based on direct sales comparison in both appraisals, there are a total of six comparable properties listed. It is noteworthy that all of the comparable properties sold prior to the date of the initial report, thus presumably all available at the time of that report. In the initial report, after adjustment for sales condition and size, the appraiser concludes that the appropriate value is $22.00 per square foot. In the subsequent report, after the same adjustments, his conclusion is $14.00 per square foot.
The evidence offered by the plaintiff in support of his request for finding a value of the property is not persuasive. The reports submitted by the same expert witness relatively close in time are contradictory and not sufficiently reconciled.
"The determination of [a property's] value by a court is the expression of the court's opinion of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. . . . [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." Eichman v. J J BuildingCT Page 4060Company, supra, at 451-52 (citations omitted).
Based upon the evidence submitted, the court is unable to credit the report of the appraiser from January, 2001 indicating that the value of the property is $21,000.00. Accordingly, the court is unable to find a fair market value for the property as of the date the title has vested in the plaintiff and, therefore, denies the plaintiff's motion for deficiency judgment.
Robaina, J. |
OPINION
Plaintiff-appellants Rudolf and Phyllis Weber appeal from a summary judgment rendered against them by the Montgomery County Court of Common Pleas on their claims against the City of Huber Heights and two of its Emergency Medical Technicians. The Webers contend that they established the existence of a genuine issue of material fact whether their claims were barred by statutory immunity.
We conclude that the Webers demonstrated the existence of a genuine issue of material fact upon which reasonable minds could find in their favor. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings.
I
On June 19, 2000, Rudolf Weber and his wife, Phyllis Weber, filed a lawsuit against the Huber Heights City Council, the Huber Heights Mayor and Council members, the Huber Heights Fire Department, as well as Huber Heights Emergency Medical Technicians ("EMT's"), Steve Hupp and Glenn Brandenburg. The suit was based upon Mr. Weber's allegation that the actions of the Huber Heights EMT's, in responding to the Webers' 911 phone call, constituted willful and wanton misconduct resulting in injury to him. Specifically, Mr. Weber contends that the EMT's failed to assist him to the ambulance stretcher and failed to transport him to a hospital despite the fact that he told them that he thought he was having a stroke. Mrs. Weber alleged that the conduct of the EMT's resulted in the loss of her husband's consortium.
After filing an answer denying liability, the defendants conducted depositions of the Webers during which the following was adduced.
On September 23, 1998, Rudolf Weber, and his wife, Phyllis Weber, were at their home in Huber Heights. Mr. Weber was in the living room watching television while Mrs. Weber was in the bedroom working on her computer. According to Mrs. Weber's deposition, at approximately 10:00 p.m., Mr. Weber summoned her to the living room. Upon entering the room, she observed that Mr. Weber had vomited. Mrs. Weber testified that Mr. Weber informed her that he could not get up and that she should call for emergency help. Mrs. Weber testified that when she called 911, she informed the dispatcher that her husband thought he was having a stroke.
Mrs. Weber testified that the EMT's arrived at the residence within fifteen minutes, and that they brought a stretcher into the house. She testified that she went into another room while they examined her husband. She testified that she heard the EMT's ask Mr. Weber whether he wanted to go to the hospital. She further testified that the EMT's told Mr. Weber that he would have to get up and walk to the stretcher. According to her testimony, Mr. Weber attempted to get up and go to the stretcher, but informed the EMT's that he was unable to do so. She testified that the EMT's then informed her that Mr. Weber's vital signs were "fine" and that he was suffering from a "panic attack."
Mrs. Weber testified that she did not disagree with the EMT's, but did think that something else besides anxiety was wrong with her husband.1
Mrs. Weber called Mr. Weber's parents, but due to the late hour hung up before they answered. She also called Mr. Weber's daughter, but no one answered. After determining that Mr. Weber was not getting worse, Mrs. Weber went to sleep in the bedroom.
Mr. Weber's daughter placed a phone call to her father the next morning. Mr. Weber answered the phone, but he could not hear anything. Mrs. Weber was awakened that morning by Mr. Weber's daughter who came to check on her father. Mrs. Weber testified that the damage which occurred to Mr. Weber between the time she went to sleep and the next day was "obvious." Mrs. Weber testified that Mr. Weber's daughter transported him to his doctor's office, and that she followed a few minutes later. When Mrs. Weber arrived at the doctor's office, an ambulance had been summoned to transport Mr. Weber to the hospital. Upon arriving at the hospital, it was determined that Mr. Weber had suffered a stroke.
According to Mr. Weber's deposition, he told the EMT's that he was suffering from double vision, and that he thought he was having a stroke. He testified that when asked, he told the EMT's that he wanted to go to the hospital. Mr. Weber testified that the EMT's told him he would have to walk to the stretcher. He testified that he tried, but was unable to do so. After that, the EMT's spoke to his wife and left.
The defendants filed a motion for summary judgment upon the ground that they were statutorily immune from suit. In support of their motion, they filed the affidavit of the Huber Heights Fire Chief, a copy of the report filed regarding the 911 call made by Mrs. Weber, and a copy of the "EMS Run Sheet." The EMS Run Sheet indicates that the EMT's checked Mr. Weber's vital signs and conducted a brief medical history, which revealed that Mr. Weber was experiencing vertigo, ringing in the ears, tingling in the fingertips, vomiting, and that he had "a hard time standing." The sheet indicates that the EMT's asked Mr. Weber which hospital he wanted to be transported to, but that Mr. Weber did not want to be transported to the hospital. The Run Sheet also indicated that the EMT's told the Webers to see a physician and to call back if he experienced any further problems.
The trial court granted the defendants' motion for summary judgment. In its decision, the trial court stated, in part, as follows:
According to the report prepared by Defendants, Plaintiff Rudolf Weber's vital signs were normal. The report also indicates that Plaintiff Rudolf Weber did not want to be taken to the hospital. Although Plaintiffs assert that Defendants insisted that Plaintiff walk to the gurney, there has been no showing how such conduct rises to the level of willful or wanton conduct.
From the summary judgment rendered against them, the Webers appeal.
II
The sole assignment of error is as follows:
THE COURT ERRED IN MAKING A DECISION ON A FACTUAL ISSUE, WHICH SHOULD HAVE BEEN DECIDED BY A JURY.
The Webers contend that the trial court erred by rendering summary judgment in favor of the City of Huber Heights and the EMT's. In support, they argue that the evidence establishes the existence of a genuine issue of material fact whether the defendants acted in a wanton and willful manner, which would take them outside the scope of statutory immunity from municipal liability. Specifically, Mr. Weber argues that the EMT's acted in a wanton and willful manner because they did not assist him to the ambulance and they failed to transport him to a hospital despite his request that they do so.
Pursuant to R.C. 4765.49(A), emergency medical technicians ("EMT") are not "* * * liable in damages in a civil action for injury * * * resulting from the individual's administration of emergency medical services, unless the services are administered in a manner that constitutes willful or wanton misconduct." Likewise, a political subdivision that provides emergency medical services is not liable for injuries arising from the actions of its EMT's unless the services are provided in a manner that constitutes willful or wanton misconduct. R.C. 4765.49(B).
This court has set forth the following definition of "wilful and wanton misconduct"
Wilful misconduct is intentionally doing that which is wrong or intentionally failing to do that which should be done. The circumstances must also disclose that the defendant knew or should have known that such conduct would probably cause injury to the plaintiff. It is a general rule that every person may be presumed to intend the natural and probable consequences of his acts. Wilful misconduct implies an intentional disregard of a clear duty or of a definite rule of conduct, a purpose not to discharge such duty, or the performance of wrongful acts with knowledge of the likelihood of resulting injury. Knowledge of surrounding circumstances and existing conditions is essential; actual ill will or an intent to injure need not be present.
Wanton misconduct must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be aware, from his knowledge of such circumstances and conditions, that his conduct will probably result in injury. Wanton misconduct implies a failure to use any care for the plaintiff and an indifference to the consequences, when the probability that harm would result from such failure is great, and such probability is known, or ought to have been known, to the defendant.
Moreover, this court has defined "wilful and wanton misconduct" as "behavior demonstrating a deliberate or reckless disregard for the safety of others." Reynolds v. City of Oakwood (1987), 38 Ohio App. 3d 125, 127.
Bedwell v. Physio-Control Corp. (Jan. 5, 1991), Miami App. No. 89-CA-67, unreported, citations omitted.
Our review of the appropriateness of summary judgment is de novo. The standard of review in summary judgment cases is well-established. "Pursuant to Civ.R. 56, 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, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor." Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St. 3d 367,369-370.
From our reading of the trial court's decision, it appears that the summary judgment is based upon the court's finding that the EMT's did not act with willful or wanton misconduct because Mr. Weber's vital signs were normal on examination and that he did not want to be taken to the hospital.
In our view, the evidence in the record, when viewed in a light most favorable to the plaintiffs, does not support these findings. We find nothing in the EMS Run Sheet to support the trial court's finding that the information recorded regarding Mr. Weber's vital signs indicated that the signs were "normal." Without medical testimony, it is impossible to discern whether the vitals were normal. Furthermore, although the EMS Run Sheet does indicate that Mr. Weber stated that he did not want to be transported to the hospital, the testimony of the Webers contradicted this. These are questions of fact for determination by a jury.
The City and the EMT's urge us to affirm the judgment even if we conclude that the trial court's reasoning is erroneous, because the evidence in the record, when viewed in a light most favorable to the plaintiffs, supports a finding that the conduct of the EMT's did not rise to the level of willful and wanton misconduct. However, we cannot say, based on the record before us, that summary judgment is appropriate.
If a jury were to find that the EMT's believed that Mr. Weber was merely having a panic attack, or that his symptoms did not indicate that he was having a stroke, the alleged failure of the EMT's to transport Mr. Weber to the hospital would not, in our view, constitute willful and wanton misconduct. Even if a jury were to find that the EMT's misdiagnosed Mr. Weber as not likely to have been suffering a stroke, and declined to transport him based upon this incorrect diagnosis, we conclude that their failure to transport Mr. Weber under these circumstances would constitute negligence at most, not willful and wanton misconduct. However, if a jury were to find from all of the evidence, viewed in a light most favorable to the plaintiffs, and drawing all reasonable inferences from that evidence in the plaintiffs' favor, that the EMT's thought that Mr. Weber was having a stroke when they arrived at his home, then reasonable minds could find that the failure to transport him under those circumstances was willful and wanton misconduct. The proper factual determination upon which these legal conclusions rest is a genuine issue of material fact upon which reasonable minds might disagree, based upon the evidence in this record, viewed in a light most favorable to the plaintiffs. Accordingly, the assignment of error is sustained.
III
The sole assignment of error having been sustained, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings.
_______________ FAIN, J.,
YOUNG, J., concur.
GRADY, J., dissenting.
1 Mrs. Weber testified that she is a registered nurse. |
U.S. v. Morrison
IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas D. MORRISON, Master Sergeant
U.S. Army, Appellant
No. 98-0617
Crim. App. No. 9600461
United States Court of Appeals for the Armed
Forces
Argued January 14, 1999
Decided September 30, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and EFFRON, J., joined. SULLIVAN, J., filed
a dissenting opinion, in which CRAWFORD, J., joined.
Counsel
For Appellant: Captain John C. Einstman
(argued); Colonel John T. Phelps, II, Lieutenant Colonel Adele
H. Odegard, and Major Leslie A. Nepper (on brief); Lieutenant
Colonel Michael L. Walters and Captain Dirk Gifford.
For Appellee: Captain Troy A. Smith
(argued); Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Lyle D. Jentzer (on brief); Captain
Steven H. Levin.
Military Judge: Richard J. Hough
THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
members convicted appellant, contrary to his pleas, of 1 specification
of assault consummated by battery on a child under the age of 16 years,
and 2 specifications of committing indecent acts, in violation of Articles
128 and 134, Uniform Code of Military Justice, 10 USC §§ 928
and 934, respectively. In accordance with his guilty pleas, appellant also
was convicted of 3 specifications of larceny and 8 specifications of wrongfully
disposing of stolen property, in violation of Articles 121 and 134, UCMJ,
10 USC §§ 921 and 934, respectively. The adjudged and approved
sentence provides for a dishonorable discharge, confinement for 10 years,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals affirmed the findings and sentence in an unpublished
opinion.
This Court granted review of four issues, and
we resolve this case on the first granted issue:1
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY ADMITTING HIGHLY INFLAMMATORY TESTIMONY OF UNCHARGED MISCONDUCT FROM
APPELLANTS DAUGHTER REGARDING THE FREQUENT SEXUAL ABUSE IMPOSED BY APPELLANT
OVER AN 8-YEAR PERIOD.
For the reasons set out below, we reverse.
Factual Background
Appellant was charged with committing an indecent
act with MR, the daughter of a family friend, by touching her vagina on
1 occasion between September 1 and November 16, 1994. MR was 9 years old
when she testified in late January of 1996. MR testified that while she
was visiting in appellants home, appellant put his hand inside her underpants
and touched her vagina.
The defense theory was that MR was coached
and influenced by adults to fabricate her accusation against appellant.
The defense established a number of inconsistencies in MRs previous statements.
To support the theory that adults who were biased against appellant influenced
MR, the defense introduced evidence that MRs mother was engaged in a lesbian
relationship with appellants wife until February of 1994. The relationship
terminated when appellants wife declined to leave him and begin living
with MRs mother.
The court members found appellant not guilty
of committing an indecent act with MR, but guilty of the lesser-included
offense of assault consummated by a battery "by touching [MR] in an inappropriate
manner."
Appellant was charged with two specifications
of committing indecent acts with LL, his niece. He was charged with fondling
her thighs and breasts, placing his fingers in her vagina, and "French-kissing"
her. The offenses were alleged to have been committed in January of 1993,
when LL was 14 years old.
LL testified that the offenses happened during
a family gathering at her grandparents house. She, her sister, appellant,
and appellants three daughters all slept on the living room floor, because
there were not enough beds for everyone. The area was "pretty cramped,"
and appellant slept next to LL. LL was wearing a long nightshirt and underwear.
LL testified that, during the night, appellant put his hand on her leg,
moved it up under her nightshirt, and touched her breasts. Then he put
his hand in her underpants and stuck his finger in her vagina. LL testified
that appellant asked her, "Wasnt I glad I took my jeans off?"
LL testified that the next morning, appellant
asked her, "Are you mad at me?" She did not respond. She testified that,
later in the day, while riding in appellants car along with her sister
and appellants daughters, appellant told her "not to let sex control [her]
life."
LL testified further that, when they returned
to the grandparents house, appellant asked her if he could lay on the
floor with her again and if he could orally sodomize her. She testified
that she did not know what he meant, but she said "no."
Finally, LL testified that, after appellant
and her grandfather had been drinking, appellant was drunk and about to
fall on the children. As he fell forward, she held him up with her hands,
and he leaned forward and "French-kissed" her. She did not tell anyone
because she was too embarrassed. She testified that she did not reveal
appellants behavior until she was being treated by a gynecologist for
an infection. The gynecologist asked her if she was sexually active or
had been sexually abused, and at that time she accused appellant of abusing
her. Based on LLs testimony, appellant was convicted of committing indecent
acts with her.
Appellants natural daughter, AM, also testified
that she had been sexually abused by appellant. Appellant was not charged
with any offenses involving AM.
AMs testimony at the Article 322
investigation described numerous acts beginning when she was "around six"
and ending shortly after her 13th birthday. AM testified that
appellant helped her insert her first tampon and taught her how to kiss.
She recalled performing oral sex on appellant "in the german housing bathroom."
She testified that she remembered appellant rubbing his genitals against
hers and his mustache tickling her legs and "other places."
After considering a motion in limine
and reviewing AMs testimony at the Article 32 investigation, the military
judge made the following findings of fact and conclusions of law:
First, the fact finder could find by a preponderance
of the evidence that the alleged misconduct occurred;
Second, the acts alleged in this case are similar
in many respects to those about which [AM] would testify. They tend to
demonstrate an unusual, unnatural sexual fascination by Master Sergeant
Morrison towards young girls. The nature of the acts are similar. They
involve touching, fondling, often in public places: in the instance of
the alleged victim in this case, in a room with other people; in the instance
of [AM], in one instance in a German bath house, all of a public-type nature.
Third, as I said, the nature of the acts are
similar. They involve positions of the accuseds adult authority over young
girls. They involve instances of girls of approximately the same age. Although
[AM]s testimony indicates that it occurred initially when she was 6 years
[old], that it continued until she was 12 or 13 years old, which is the
approximate age of at least one of the victims in this case.
I find that the testimony proffered by the
government of [AM] can be considered by the members of the court for its
limited purpose, if any, to show motive, to show continuing plan or scheme;
that is, to show that Master Sergeant Morrison had an unnatural sexual
desire for young girls near the age of the victims in this case and that
in order to satisfy those sexual desires, he would use his adult authority
over young girls to molest them.
Third, that he had an opportunity or ability
to do that; and
Fourth, for its limited purposes, if any, to
show a lack of mistake.
Finally, the military judge announced that he
had applied "the 403 balancing test" and concluded that the probative value
of AMs testimony was "not substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the members of the court."
AM was 23 years old at the time of trial. She
testified that when she was between 4 and 6 years old, appellant taught
her how to kiss, fondled her vagina, and put his fingers in her vagina.
She testified that he "French kissed" her, and she reciprocated.
AM testified that, when she was 12 years old,
appellant performed oral sex on her and then kissed her and fondled her.
She described another occasion when appellant took her into his bathroom
and told her to perform oral sex on him. She testified that she remembered
the feel of his mustache when he performed oral sex on her, and that he
digitally penetrated her "a lot." She testified that appellant told her
that she was "so tight," that "he would like to be inside [her]", and that
"he was saving her for [her] husband." She testified that appellant then
put her on top of him and rubbed her genital area with his.
AM testified that she grew increasingly uncomfortable
with appellants conduct and that, at some time before her 13th
birthday, she asked him to stop, and he did. However, she also testified
that, when she was 15 or 16 years old, appellant came up behind her while
she was washing dishes and caressed her buttocks. She punched him "right
in the solar plexus," and appellant laughed.
At the conclusion of AMs testimony, the military
judge instructed the members as follows:
This evidence may be considered by you for
a very limited purpose, and its for its limited purpose -- for the limited
purpose of its tendency, if any, to establish some type of an unnatural
fascination by the accused in this case for young girls or to establish
a motive or a plan or a scheme or design. It may also be used for its tendency,
if any, to establish an intent [to gratify his sexual lust or desires].
. . . It may also be used for its tendency, if any, to rebut a defense
of accident on the part of the accused.
Appellant testified in his defense, but limited
his direct testimony to the allegations concerning LL. He testified that
he awakened during the night to find LL pulling on his right arm and hand
and pressing his hand to her chest. He testified that his hand was outside
her nightshirt. He withdrew his hand and whispered to LL, "This isnt right
what youre doing. You need to talk to your mother." LL was 13 or 14 years
old at the time. Appellant testified that, while they were riding in his
car, he told LL words to the effect, "Sex is going to get you in trouble.
You need to, you know, be in more control of yourself." Appellant admitted
drinking homemade wine that evening, but he denied kissing LL.
Appellant testified that he was surprised by
LLs allegations. He testified that after he asked his wife for a divorce,
all this stuff just starts hitting me at
one time. It just was nonstop. And it was allegation after allegation,
and I had to keep going to the battalion commander, company commander almost
every week.
He testified that his wife became "[v]ery hostile"
after he filed for divorce. He testified that "[s]hes threatened to take
everything I have ever cherished."
Discussion
Mil. R. Evid. 404(a), Manual for Courts-Martial,
United States (1995 ed.),3
sets out the general rule: "Evidence of a persons character or a trait
of a persons character is not admissible for the purpose of proving that
the person acted in conformity therewith on a particular occasion." This
Court has consistently stated that evidence of uncharged bad acts may not
be introduced solely to show that an accused has a propensity to commit
crimes of the type charged. See United States v. Miller,
46 M.J. 63, 65 (1997); United States v. Castillo, 29 M.J. 145, 150 (CMA
1989); United States v. Hicks, 24 M.J. 3, 7 (CMA 1987); United
States v. Rappaport, 22 M.J. 445, 447 (CMA 1986).
Mil. R. Evid. 404(b) sets out several exceptions
to the prohibition in Mil. R. Evid. 404(a). It allows "[e]vidence of other
crimes, wrongs, or acts" for other purposes, including "proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident."4
In United States v. Reynolds, 29 M.J.
105, 109 (CMA 1989), this Court adopted a three-part test for determining
admissibility of evidence offered under Mil. R. Evid. 404(b):
(1) Whether the evidence reasonably supports
a finding by the court members that appellant committed the prior crimes,
wrongs, or acts;
(2) Whether the evidence makes a "fact of consequence"
more or less probable; and
(3) Whether the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice under Mil.
R. Evid. 403.
Proof of the first prong is satisfied if the conduct
is proven by a preponderance of the evidence. See Huddleston
v. United States, 485 U.S. 681, 690 (1988). The first prong is not
at issue in this case. If AMs testimony is believed, the first prong is
satisfied.
Turning to the second prong, the "fact of consequence"
that is made more or less probable by the evidence, trial counsel offered
the evidence to show motive, intent, plan, opportunity or ability, and
lack of mistake. The military judge ruled that the evidence was admissible
to show motive, plan or scheme, ability or opportunity, and lack of mistake.
Government appellate counsel assert that the evidence was also admissible
to prove intent and modus operandi. Modus operandi was not litigated as
a basis of admissibility at the court-martial.
In United States v. Munoz, 32 M.J. 359,
363 (CMA 1991), this Court upheld the admission of evidence of uncharged
sexual misconduct to show a plan or scheme, even though there was a 12-year
gap between the uncharged misconduct and the charged misconduct. This Court
noted that "[t]he common factors were the age of the victim, the situs
of the offenses, the circumstances surrounding their commission, and the
fondling nature of the misconduct." Our decision in Munoz was consistent
with our earlier decision in United States v. Brannan, 18 M.J. 181,
183 (CMA 1984), where we held that uncharged acts "must be almost identical
to the charged acts" to be admissible as evidence of a plan or scheme.
Cf. United States v. Rappaport, supra (evidence of
"disparate acts" of illicit sex and drug abuse was inadmissible because
it showed propensity, not plan).
Where evidence is offered to show modus operandi,
there must be a "high degree of similarity between the extrinsic offense
and the charged offense." The similarity must be so great that it is "like
a signature marking the offense as the handiwork of the accused." United
States v. Gamble, 27 M.J. 298, 305 (CMA 1988) (internal citations omitted).
Where a military judges ruling on admissibility
of evidence includes factfinding, we will not overturn the findings of
fact unless there are clearly erroneous. United States v. Ayala,
43 M.J. 296, 298 (1995). Where, as in this case, the military judge determines
that the evidence is admissible under Mil. R. Evid. 404(b) and Mil. R.
Evid. 403, we will not reverse except for a "clear abuse of discretion."
See Miller, 46 [email protected].
Our analysis of AMs testimony leads us to
the following conclusions:
Relationship between victims and appellant:
The only common element is that all three victims were young girls. AM
was appellants natural daughter; LL was his niece; MR was unrelated.
Ages of the victims: AM testified that
the abuse started when she was 4-6 years old and continued until she was
13 years old. LL testified that she was 14 years old when the acts occurred.
MR would have been 8 years old when the act occurred. The only common element
is a broad range of ages from 4-14.
Nature of the acts: Appellant was charged
with fondling, "French kissing," and digital penetration of LL, and indecently
touching MR. AM testified to a broad range of sexual acts, ranging from
kissing and fondling to cunnilingus and fellatio. AM and LL both accused
appellant of "French kissing" them, but AM described a private act in her
home and LL described a drunken, public act.
Situs of the acts: AM described conduct
in the privacy of her home. LL described public conduct outside the home.
MR described conduct in appellants home with other children nearby. In
this regard, the military judges finding of fact that all the charged
and uncharged acts were "public" was clearly erroneous. AMs testimony
was that the fellatio occurred in the private bathroom of her home, not
a public German bathhouse as found by the military judge.
Circumstances of the acts: There is
no common theme. AM testified that the kissing and fondling occurred in
the family home, and the acts of sodomy occurred in the privacy of a bedroom
or bathroom. The alleged acts with LL occurred while several children and
adults were sleeping together in a living room. MR described the alleged
touching as occurring in a bedroom while other children were in the house
but in another room.
Time span: AM testified that the acts
stopped about 10 years before the trial, 8 years before the acts described
by LL. While this time gap is not fatal to admissibility, it lessens the
probative value to show a plan or scheme. This case is different from Munoz,
where the incidents, even though 12 years apart, both involved the same
kinds of acts committed in the family home by the accused with his two
daughters, and where the daughters were approximately the same age when
they were victimized by their father.
We conclude that the acts described by AM are
not sufficiently similar to the charged acts to show plan or scheme. Likewise,
they do not have the high degree of similarity required to show modus
operandi. All that the record shows is disparate sexual acts with young
girls of varying ages under various circumstances.
Because we reject the Governments argument
that the evidence was admissible to show modus operandi, we need
not decide whether sustaining the military judges ruling on the basis
of modus operandi would violate due process, since that theory was
not [email protected]. See United States v. Riley, 50 M.J.
410, 416 (1999).
Turning to the other bases for admissibility
asserted by the Government and relied on by the military judge, we conclude
that the evidence had some tendency to show motive and intent, but these
issues were not contested. The charged acts were so overtly sexual that
motive and intent were not in issue. The issue was whether the acts happened.
Thus, the probative value of the evidence was minimal on the issues of
motive and intent. The military judge found that the acts showed appellants
"unnatural sexual desire for young girls." What the military judge found
was propensity evidence, i.e., that appellant had tendencies toward
pedophilia.
Likewise, ability and opportunity were not
in issue. There was no question that appellant had the opportunity and
ability to commit the acts. He readily admitted it.
Lack of mistake was not in issue. Appellant
did not assert mistake or accident. With respect to LLs allegation, appellant
admitted that he awakened with his arm around LL, but he asserted that
LL initiated the act.
Assuming without deciding that the minimal
probative value of AMs testimony on the issue of intent is sufficient
to satisfy the second prong of Reynolds, we hold that it fails the
third prong because the prejudicial impact of AMs testimony outweighed
its probative value. The offenses described by AM were far more serious
than the charged offenses. AM was appellants natural daughter. LL was
appellants niece, a much more distant relative. Appellant and MR were
unrelated. LL and MR described isolated incidents. AM described
an incestuous, long-term pattern of fondling, kissing, digital penetration,
cunnilingus, and fellatio -- virtually every sexual act except vaginal
intercourse. Notwithstanding the deference we give a military judge on
balancing under Mil. R. Evid. 403, we hold that the military judge clearly
abused his discretion.
Decision
The decision of the United States Army Court
of Criminal Appeals is reversed with respect to the findings of guilty
of the Charge and its specifications and the sentence. It is affirmed with
respect to the remaining findings of guilty. The case is returned to the
Judge Advocate General of the Army for remand to the Court of Criminal
Appeals. That court may either dismiss the Charge and its specifications
and reassess the sentence on the basis of the remaining findings of guilty;
or it may authorize a rehearing.
FOOTNOTES:
1 The other granted
issues are as follows:
WHETHER THE MILITARY JUDGE
ABUSED HIS DISCRETION BY PROHIBITING APPELLANT FROM PRESENTING ONE OF HIS
FEW VIABLE DEFENSES TO THE PANEL: THAT THERE EXISTED TWO POSSIBLE SOURCES
OF THE SEXUAL ABUSE OF LL, HIMSELF AND HIS FATHER, AND THAT LLS ALLEGATIONS
ARE NOT INCONSISTENT WITH ACTUAL ABUSE FROM ONLY ONE OF THE TWO RELATIVES.
WHETHER THE MILITARY JUDGE ERRED
BY DENYING THE DEFENSE CHALLENGE FOR CAUSE OF LIEUTENANT COLONEL RETHERFORD,
WHO EXPRESSED DISAPPOINTMENT OVER THE ACQUITTAL OF A SOLDIER CHARGED WITH
THE SAME OFFENSES AS APPELLANT IN A PREVIOUS COURT-MARTIAL.
WHETHER THE TRIAL DEFENSE COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE TO APPELLANT BY NOT PRESENTING EVIDENCE
OF APPELLANTS RESTITUTION ON SENTENCING.
Because we resolve the first granted
issue in appellants favor, we do not resolve these issues.
2
Uniform Code of Military Justice, 10 USC § 832.
3
All Manual provisions are cited to the version applicable at appellants
trial. The 1998 version is unchanged, unless otherwise indicated.
4
Mil. R. Evid. 414 permits evidence of similar crimes in child molestation
cases, but it was not in effect at the time of appellants court-martial.
Accordingly, we do not decide whether the evidence at issue would have
been admissible under Mil. R. Evid. 414.
SULLIVAN, Judge, with whom CRAWFORD, Judge,
joins (dissenting):
Appellant was charged with placing his hand
inside the underwear of 8-year-old MR (the daughter of a close family friend)
and touching her vagina with an intent to satisfy his lust. He was also
charged with putting his hand on the thighs and breast of 13-year-old LL
(his niece) and putting his finger inside her vagina with intent to satisfy
his lust. Finally, he was charged with putting his tongue inside the mouth
of LL with intent to satisfy his lust. Thus, the prosecution was particularly
required by law1 to prove
appellants sexual desires or passions as an essential part of this child
sexual abuse case. See United States v. Whitner, No. 98-0837,
___ MJ (11) (1999) (fact that element not disputed does not remove
prosecutions burden of proof), citing Estelle v. McGuire, 502 U.S.
62 (1991).
Moreover, both MR and LL testified that appellant
committed the charged acts. Appellant also testified but denied committing
the charged offenses. He did say, however, that he was awakened one night
by LL putting his arm to her chest, which he immediately stopped and told
her, "This isn't right." Obviously, whether appellant committed the charged
acts was the critical issue in this case. Consequently, evidence of a sexual
motive on his part for such acts assumed a heightened probative value in
these one-on-one credibility contests. See generally United
States v. Mann, 26 M.J. 1, 3 (CMA 1988).
The testimony of appellants daughter, AM,
that he repeatedly sexually abused her from the ages of 4 to 13 clearly
demonstrated his "unusual" sexual desire for young girls such as the alleged
victims in this case. See United States v. Johnson, 132 F.3d
1279, 1282 (9th Cir. 1997). In addition, this evidence established
a motive for the doing of charged sexual acts against MR and LL as an outlet
for these long-standing desires. See Whitner, supra
at (9). It also indicated a method of operation entailing deliberate
exploitation of his adult position of authority to accomplish his desired
sexual gratification. United States v. Meachum, 115 F.3d 1488, 1495
(10th Cir. 1997). Finally, the military judge repeatedly warned
the members that they could not use the evidence to show appellant had
a bad character and therefore probably committed the charged offenses.
United States v. Hadley, 918 F.2d 848, (9th Cir. 1990).
I disagree with the majoritys selective discounting
of the relevance of this uncharged-misconduct evidence for these Mil. R.
Evid. 404(b) purposes. The majority focuses on distinctions without a difference,
i.e., father instead of an uncle or head of visited household, appellants
home as crime situs instead of a relatives house, and minor age differentials
at various times of the misconduct. In my view, these distinctions neither
singularly nor together support a determination of irrelevance. See
Mil. R. Evid. 401 (any tendency to make existence of fact of consequence
more probable or less probable).
Turning to the Mil. R. Evid. 403 question,
that portion of AMs testimony concerning oral sodomy is a much closer
call, but one which is properly entrusted to the trial judge. See
United States v. Johnson, 49 M.J. 467, 475 (1998) (no abuse of discretion
in admitting prior sexual misconduct evidence where Mil. R. Evid. 403 question
given "thoughtful consideration by the military judge"). The defense asked
the military judge to excise certain testimony from AM that she and appellant
engaged in consensual oral sodomy. He did not grant this request because
he concluded that the probative value of this evidence was not substantially
outweighed by its prejudicial impact, assuming proper limiting instructions
were given.
The precise question before us is whether the
military judge abused his discretion in determining that this evidence
was not unfairly or "unduly" prejudicial. See generally United
States v. Abel, 469 U.S. 45 (1984). In other words, did the judge clearly
err in finding no genuine and disproportionate risk that the members would
be so inflamed by this evidence that they would ignore other evidence in
this case and convict appellant simply on the basis of the uncharged misconduct.
See United States v. Van Metre, 150 F.3d 339, 351 (4th
Cir. 1998). I would find no clear error by the trial judge in this regard
and avoid the temptation to decide this issue de novo.
Oral sodomy between a father and daughter,
consensual or not, is obviously outrageous. Yet, evidence of such conduct
was not necessarily unduly inflammatory in the context of this case. The
charged misconduct in part was similarly egregious, i.e., digital
penetration of a child visitor by an adult head of household. Cf.
United States v. Munoz, 32 M.J. 359, 365 (CMA 1991) (fondling alone
charged). Moreover, other acts of sexual misconduct by appellant on AM,
such as fondling and digital penetration, were similar to those charged
and properly evidenced in this case. In these circumstances, the military
judge could reasonably conclude that there was little chance that appellant
would be convicted of sexual crimes against MR and LL, simply because appellants
daughter was also permitted to testify that appellant committed
oral sodomy upon her. See generally United States v. Van
Metre, supra; Johnson, 132 [email protected].
In conclusion, I still might vote to reverse
this case on the basis of the trial judges rulings excluding evidence
that LL and her mother were sexually abused by LLs grandfather (appellants
father). See generally United States v. Pagel, 45
M.J. 64, 70 (1996) (Sullivan, J., concurring in the result). However, the
military judge allowed defense counsel to cross-examine the alleged victim
concerning its proposed-transferred intent defense and he declined. Accordingly,
I would vote to affirm this case.
FOOTNOTE:
1 Para. 87b(1)(d),
Part IV, Manual for Courts-Martial, United States (1995 ed.); Art. 134,
Uniform Code of Military Justice, 10 USC § 934.
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Notice of Hearings
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Citation Nr: 0819467
Decision Date: 06/12/08 Archive Date: 06/18/08
DOCKET NO. 06-18 108 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
The propriety of an initial 10 percent rating for the
veteran's service-connected post-traumatic stress disorder
(PTSD) for the period from June 27, 2002 to February 6, 2006
and an initial 30 percent rating for the period from February
7, 2006.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran served on active duty from August 1971 to
February 1974.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a November 2005 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO),
implementing a November 2005 Board decision granting service
connection for PTSD. A 10 percent evaluation was assigned.
The veteran perfected an appeal therefrom. By rating
decision in April 2006, the RO increased the 10 percent
rating to 30 percent, effective February 7, 2006. Given the
foregoing procedural development, the issue on appeal for
this matter is as listed in the title page. See Fenderson v.
West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet.
App. 505 (2007) (extending this "staged" rating doctrine to
cases also involving the more traditional claim for an
increased rating where the veteran is not appealing his
initial evaluation but, instead, requesting a higher rating
for an already established service-connected disability); See
also AB v. Brown, 6 Vet. App. 35 (1993).
FINDINGS OF FACT
1. During the period from June 27, 2002 to February 6, 2006,
the veteran's PTSD was manifested primarily by nightmares,
recurrent thoughts, flashbacks, and hypervigilance. These
symptoms demonstrate 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.
2. Since February 7, 2006, the veteran's PTSD is manifested
primarily by the above symptoms as well as anxiety, insomnia,
and avoidance of both sex and thoughts of the traumatic
experience. These symptoms demonstrate occasional decreases
in work efficiency and intermittent periods of an inability
to perform occupational tasks.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 10
percent for PTSD, from June 27, 2002 to February 6, 2006,
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4,130 Diagnostic
Code (DC) 9411 (2007).
2. The criteria for an initial evaluation in excess of 30
percent for PTSD from February 7, 2006 have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.2, 4.7, 4.130 DC 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Pertinent Laws and Regulations
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in the VA Schedule for Rating Disabilities, which is based
upon average impairment in earning capacity. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question
arises as to which of two ratings applies under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt is resolved in favor of the
veteran. 38 C.F.R. § 4.3.
The veteran's entire history is considered when making
disability evaluations. 38 C.F.R. § 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of
the recorded history of a disability is necessary in order to
make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the
regulations do not give past medical reports precedence over
current findings where such current findings are adequate and
relevant to the rating issue. See Francisco v. Brown, 7 Vet.
App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). As
stated previously, the U.S. Court of Appeals for Veterans
Claims (Court) has held that in claims for increased ratings
VA must consider that a claimant may experience multiple
distinct degrees of disability, resulting in different levels
of compensation, from the time the increased rating claim is
filed to the time a final decision is made. Hart v.
Mansfield, supra; see also Fenderson v. West, 12 Vet.
App. 119 (1999).
Under the General Rating Formula for Mental Disorders, a 10
percent evaluation is warranted for 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. A 30 percent evaluation
is warranted for 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, mild memory
loss (such as forgetting names, directions, recent events).
38 C.F.R. § 4.130, DC 9411 (2007).
A 50 percent evaluation is warranted for 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. Id.
A 70 percent evaluation requires 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 work-like
setting); inability to establish and maintain effective
relationships.
A 100 percent rating is warranted if 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 for names of
close relatives, own occupation or own name. Id.
Evaluation in excess of 10 percent from June 27, 2002 to
February 6, 2006
Service connection for PTSD was established by a November
2005 Board decision and implemented by a rating action, which
assigned a 10 percent evaluation, effective June 27, 2002 the
date of receipt of the veteran's claim. The veteran appealed
the initial evaluation assigned.
Service connection was based in part on service personnel
records, service medical records and post service VA records,
showing treatment to address issues that occurred during
service and resulted in post-traumatic stress disorder
related to military sexual assault.
Post service evidence between June 27, 2002 (the effective
date of the grant of service connection for PTSD) and
February 7, 2006 (the effective date of the 30 percent
evaluation) consists of VA outpatient records, which show
that between 2001 and 2002 the veteran received treatment for
a variety of problems, particularly polysubstance abuse.
During that time he was attending a sobriety maintenance
group and individual therapy at a methadone clinic. He was
an active participant during these sessions and maintained
adequate stability. He was stable in his employment and had
recently gained custody of his daughter. A July 2002 entry
shows the veteran was committed to his treatment and had
shown growth as demonstrated by his level of involvement and
treatment status. These records also show the veteran
exhibited classic PTSD symptoms, including nightmares,
hypervigilance, hyperarousal, flashbacks and recurrent
thoughts.
By June 2003, the veteran's PTSD was affecting his ability to
maintain employment. He had ongoing issues of paranoia,
distrust, hypervigilance, hyperarousal and reexperiencing
events, but remained reasonably compliant with medications
prescribed to him. At a May 2004 psychological evaluation,
although the veteran complained of continued nightmares,
hypervigilance and reliving of his military stressors, the
veteran was noted to have made progress in his therapy
sessions and remained compliant with medications to help
symptom management. The remaining records show the veteran
continued to participate in an Opioid Replacement Clinic and
therapy sessions throughout early 2006. Overall this
evidence describes a fairly consistent pattern of
symptomatology and manifestations, which may be described as
productive of mild impairment of industrial and social
adaptability.
Therefore, the Board finds that between June 27, 2002 and
February 7, 2006, the impairment due to PTSD was more
consistent with a 10 percent rating and that the level of
disability contemplated in DC 9411 to support the assignment
of a 30 percent rating for the veteran's disability was
absent.
Evaluation in excess of 30 percent since February 7, 2006
The Board also finds that the veteran's ability to establish
and maintain effective or favorable relationships with people
is not so severely impaired as to warrant a disability rating
in excess of 30 percent from February 7, 2006. On that date,
the veteran underwent VA examination, complaining of
nightmares, flashbacks, paranoia, panic, and an inability to
get along with family and friends. Although he stated that
he had abstained from alcohol and drugs since 1995, he seemed
to contradict himself as he was in still in a methadone
program. The veteran was able to engage in a normal range
and variety of activities of daily living without
interruption of his typical daily routine.
During the examination the veteran had jerking and twitching
of his limbs throughout, but seemed neither anxious nor
overly energized. His thought process overall was fairly
logical, coherent and relevant. He was articulate, verbal,
well dressed and well groomed. He was mentally intact and
fairly cooperative. He seemed intelligent and his speech was
well understood. He was also well oriented to time, place,
and situation. His fund of general information and verbal
comprehension were both good. His concentration was
excellent. His affect was one of excitation and agitation
and his sensorium was clear. However, his reasoning, social
skills and short-term memory were all poor.
The veteran reported that he has had numerous confrontations
with individuals due to anger. He was recently involved in a
fight and actually struck someone. He stated that he has
several DUI's as well as arrests for assault. He was
previously married and has 3 children and currently resides
with his young daughter. He also mentioned a common-law
marriage that lasted for 4 years. He reported problems
keeping a job.
A review of psychological symptoms included anxiety, panic
attacks, depression, insomnia, crying spells, anhedonia, and
nightmares. He denied auditory or visual hallucinations, but
seemed to be indicating paranoia. He denied suicidal or
homicidal ideas. The examiner also noted a number of
behavior problems including mood instability, anger control
problems, combativeness, and agitation, which resulted in him
striking another individual. The veteran seemed to have a
dramatic deficit in social and occupational functioning. A
GAF score of 45 was given.
VA outpatient treatment records dated from March 2006 to May
2007 show that despite several missed appointments, the
veteran was able to continue regular counseling and therapy
sessions as well as treatment through the Opioid Replacement
Clinic.
The veteran underwent VA examination in October 2007. The
examiner interviewed the veteran, took a detailed history of
his post military psychosocial history and reviewed available
clinical reports from treating physicians.
On examination the veteran was very disorganized and quite
congnitively impaired. His primary symptoms were depression,
anger, and aggression as well as periods where he was
euphoric and emotionally labile. He also reported symptoms
of anxiety, nightmares, trouble engaging in sex, and
paranoia. He denied any history of suicidality. He
constantly worried and had trouble sleeping. He had
significant stressors of unstable housing, unemployment and
worsening medical problems. The veteran also had a history
of serving jail time for aggravated assault, domestic
violence, and drug charges. Although the veteran reported
being clean and sober for the last 6-7 years, the examiner
noted that he had in fact tested positive for cocaine use on
the day of the examination. The veteran's life was very
chaotic. He described being cut off from all family and
living with his girlfriend, but not getting along with her.
His occupational adjustment since his last examination had
not changed. He stated that he typically bounced from job to
job with the longest lasting 6 months. He currently spent
his time walking around or looking for things to sell.
The veteran presented as casually dressed but poorly groomed.
He immediately became tearful and labile throughout the
examination. He was verbal and cooperative with the
examination but rapport was difficult to establish. He was
well oriented. His thought process was generally logical and
relevant, but he became incoherent at times and had a
tendency to go off on tangents. There was a history of
delusional thinking and some reports of hallucinations. He
had very poor social skills with reasoning and judgment
extremely poor based on his personal history. His fund of
general information and verbal comprehension were average and
his capacity for simple arithmetic was good. He reported
significant problems with concentration and memory, related
to a number of factors including multiple strokes secondary
to the microvascular disease, an extensive history of alcohol
and drug abuse, and significant psychiatric illness.
The examiner provided four Axis-I diagnoses listed as ongoing
polysubstance dependence, psychotic disorder, PTSD and
cognitive disorder secondary to microvascular disease. The
examiner concluded that the veteran's problem behaviors
centered primarily around his substance abuse, violent
outbursts and physical aggression. The examiner opined that
the PTSD symptoms contribute, at most, only a third to the
veteran's overall social and occupational dysfunction and
that the vast majority of the social and occupational
dysfunction related to his substance abuse/dependence and
long standing personality disorder. The veteran's psychotic
disorder also impacted his social and occupational
functioning and was more likely than not related to the long
history of ongoing substance dependence. The veteran also
has a cognitive disorder secondary to microvascular disease
and was experiencing declining memory and concentration. In
addition, the veteran's personality disorder, which is rooted
in childhood development, framed all of the Axis-I disorders
and accounted for most of the veteran's social dysfunction.
The examiner then concluded that the veteran's overall
condition was about the same as when he was last examined but
with some declining health problems and likely progressive
cognitive decline.
The examiner further opined, in a January 2008 addendum, that
it was less likely than not that the veteran's substance
abuse with resulting psychosis was due to the PTSD. The
examiner noted that it was difficult to differentiate the
psychotic symptoms from the PTSD symptoms. Nonetheless he
concluded that the veteran's anxiety, avoidance of sex,
insomnia, nightmares and avoidance of traumatic experiences
could be attributed to PTSD. The symptoms of psychosis
included, hallucinations, delusions (including paranoia),
disorganized thinking, erratic behavior, inappropriate anger
outbursts, social isolation, and flattened affect. The
veteran's substance abuse exacerbates all of these symptoms.
Although this evidence clearly shows an increase in the
veteran's psychiatric symptoms, the veteran's described
symptoms are well documented and adequately compensated by
the current 30 percent rating under DC 9411.
The record shows a clear connection between PTSD and
interference with the veteran's social interaction and
ability to enjoy life, but it does not show that he
necessarily has increased difficulty with, or an inability
to, establish and maintain effective relationships. Despite
his reported problems with social interaction, he has the
ability to establish and maintain effective relationships,
both in the context of obtaining medical care (such as
individual therapy) and in maintaining relationships, as is
demonstrated by his positive relationships with his daughter
and his ability to continue his relationship with his live-in
girlfriend, albeit with strain. The veteran's maintenance of
relationships under these circumstances is inconsistent with
the interpersonal relationship skills of a person suffering
anxiety symptomatology warranting a 50 percent disability
rating.
The Board acknowledges that the veteran's GAF score has most
recently been assessed at 45 which, according to the Fourth
Edition of the American Psychiatric Association's Diagnostic
and Statistical Manual (DSM-IV), represents 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). While such a GAF score suggests a greater
level of impairment than is contemplated by the current 30
percent rating, the veteran has manifested none of the
symptoms typically considered indicative of that level of
impairment, to include suicidal ideation, severe obsessional
rituals, or frequent shoplifting. Simply stated, when
considered in light of the actual symptoms demonstrated, the
assigned GAF score does not provide a basis, alone, for
assignment of a higher rating for the veteran's PTSD.
"There is no question that the GAF score and the
interpretations of the score are important considerations in
rating a psychiatric disability. See, e.g., Richard v.
Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8
Vet. App. 240 (1995). However, the GAF score assigned in a
case, like an examiner's assessment of the severity of a
condition, is not dispositive of the evaluation issue;
rather, it must be considered in light of the actual symptoms
of the veteran's disorder (which provide the primary basis
for the ratings assigned). See 38 C.F.R. § 4.126(a).
Rather in this case, the veteran was found to have
significant symptoms associated with substance abuse,
psychosis, personality disorder and cognitive disorder in
addition to symptoms of PTSD. These other disorders are not
service-connected, but, according to the evidence, cause a
significant level of additional social and occupational
impairment. Here, the VA examiner in 2007 has differentiated
between service-connected and non-service-connected
symptomatology, and indicated that the vast majority of the
social and occupational dysfunction related to the veteran's
substance abuse/dependence and long-standing personality
disorder. See Mittleider v. Brown, 11 Vet. App. 181 (1998)
(The Board is precluded from differentiating between
symptomatology attributed to a service-connected disability
and another service-connected disability in the absence of
medical evidence which does so).
Thus, the medical evidence demonstrates since February 2006
the veteran's PTSD has been manifested by occupational and
social impairment due to such symptoms as anxiety, insomnia,
nightmares, flashbacks and recurrent thoughts. This is
consistent with social and industrial impairment that is no
more than occasional decreases in work efficiency and
intermittent periods of inability to perform occupational
tasks.
Extra-schedular Consideration & Conclusion
Finally, there is no indication that the schedular criteria
are inadequate to evaluate the veteran's PTSD. Again, the
evidence does not establish that this disability, alone,
causes marked interference with employment (i.e., beyond that
contemplated in the assigned evaluation). Moreover, it does
not establish that the veteran's PTSD necessitates frequent
periods of hospitalization. In light of the foregoing, the
veteran's claim does not present such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards. Therefore,
the Board is not required to remand this matter to the RO for
the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).
See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v.
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
Accordingly, the criteria for the assignment of initial
ratings in excess of 10 percent prior to February 7, 2006,
and in excess of 30 percent since February 7, 2006 are not
met. The Board has considered the veteran's contentions in
making this decision. However, as a layperson, he is not
competent to make medical determinations regarding the
current severity of his PTSD. The current level of
disability shown is encompassed by the ratings assigned and,
with due consideration to the provisions of 38 C.F.R. § 4.7,
higher evaluations are not warranted for any portion of the
time period under consideration and there is no basis for the
assignment of further staged ratings under the Fenderson
case.
The preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b) (West 2002).
Duty 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. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
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).
Proper 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; and (4)
must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). The Court has held that VCAA notice
should be provided to a claimant before the initial RO
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004). However, if VCAA notice is provided after the
initial decision, such a timing error can be cured by
subsequent readjudication of the claim, as in a Statement of
the Case (SOC) or Supplemental SOC (SSOC). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as a SOC or supplemental SOC (SSOC), is
sufficient to cure a timing defect).
The U.S. Court of Appeals for the Federal Circuit recently
held that any error in a VCAA notice should be presumed
prejudicial. The claimant bears the burden of demonstrating
such error. VA then bears the burden of rebutting the
presumption, by showing that the essential fairness of the
adjudication has not been affected because, for example,
actual knowledge by the claimant cured the notice defect, a
reasonable person would have understood what was needed, or
the benefits sought cannot be granted as a matter of law.
Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007)
More recently, the Court concluded that, for an increased
rating claim, VCAA notice should include notice that evidence
of increased severity of the disorder or of greater
interference with work or activities of daily life is
required to support a claim for increased evaluation; that it
include at least general notice of more particularized bases
of granting increased evaluations where, as here, particular
criteria beyond mere increase in severity may be required for
assignment of a higher disability rating; that it include
notice that a particular rating will be assigned by applying
diagnostic codes; and that it include notice, in the form of
examples, of the kinds of evidence required to support the
increased rating claim. Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008).
The Board concludes that the veteran has been afforded proper
notice under the VCAA. The RO provided a VCAA notice letter
to the veteran in October 2002, prior to the initial
adjudication of the veteran's claim. The Court held that in
cases where service connection has been granted and an
initial disability rating and effective have been assigned,
the typical service-connection claim has been more than
substantiated, it has been proven, thereby rendering
38 U.S.C.A. § 5103(a), notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. This increased rating claim is such an appeal.
Dingess v. Nicholson, 19 Vet. App. 473, 490-1; Dunlap v.
Nicholson, 21 Vet. App. 112, 116-117 (2007). In line with
the above reasoning, Vazquez-Flores does not apply to this
initial rating claim as the notice obligation was satisfied
in 2002.
In any event, in a March 2006 letter, the RO notified the
veteran that once service connection for a particular
disability had been established, a disability rating would be
assigned in accordance with the criteria set forth in the VA
schedule for evaluating disabilities. 38 C.F.R. Part 4. The
RO also notified the veteran that an effective date for the
award of benefits would be assigned and would be based,
generally, on the date of the receipt of the claim for
benefits or when the evidence showed a level of disability
that supported a certain rating under the rating schedule.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
This letter was followed by readjudication of the claim in
the April 2006 SOC and SSOCs dated June 2007 and January
2008, all of which contain a list of the evidence considered,
a summary of adjudicative actions, included all pertinent
laws and regulation, including the criteria for evaluation of
the veteran's PTSD, and an explanation for the decision
reached. Thus, the purposes of the notice requirements have
not been frustrated and any error in failing to provide
additional notice has not affected the essential fairness of
the adjudication process because the veteran had actual
knowledge of what information and evidence is needed to
establish his claim. See Sanders supra.
In addition, it appears that all obtainable evidence
identified by the veteran relative to his claims has been
obtained and associated with the claims file, and that
neither he nor his representative has identified any other
pertinent evidence, not already of record, which would need
to be obtained for a fair disposition of this appeal. In the
veteran's notice of disagreement, he disagreed with the
percentage assigned and requested further evaluation. In his
substantive appeal, the veteran indicated additional mental
health records were available from the Dallas VAMC.
Subsequent to his notice of disagreement and substantive
appeal, he underwent additional VA examination to determine
the severity of his disability. It is therefore the Board's
conclusion that the veteran has been provided with every
opportunity to submit evidence and argument in support of his
claim, and to respond to VA notices. Accordingly, the Board
finds that VA met its duty to assist under the VCAA.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to the issues on appeal is required to
comply with the duties to notify and assist. 38 U.S.C.A. §§
5103 and 5103A; 38 C.F.R. § 3.159.
ORDER
The initial 10 percent rating for the veteran's service-
connected PTSD for the period from June 27, 2002 to February
6, 2006 and initial 30 percent rating for the period from
February 7, 2006 are proper. The appeal is denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
|
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 12, 2003
Charles R. Fulbruge III
Clerk
No. 02-60739
Summary Calendar
RICK SPRADLIN,
Plaintiff-Appellant,
versus
ROBERT JOHNSON, Commissioner, Individually and Officially;
DAVID TURNER, Superintendent, Individually and Official Capacity;
DON LEWIS, Lieutenant, Individually and Official Capacity,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:00-CV-324-Gu
--------------------
Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Rick Spradlin appeals from a judgment dismissing his civil
rights complaint after a trial and jury verdict in favor of the
sole remaining defendant. Spradlin contended that the Mississippi
Department of Corrections (“MDOC”)and various supervisory officials
within the MDOC violated his Eighth Amendment rights by failing to
protect him from assaults from gang members.
*
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.
No. 02-60739
-2-
Spradlin argues that the district court committed error in
pre-trial proceedings when it dismissed Commissioner Robert Johnson
and Superintendent David Turner. The district court screened the
case pursuant to 28 U.S.C. § 1915(A) and conducted a hearing
pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), prior
to dismissing Johnson and Turner. Spradlin testified at the Spears
hearing that he intended to sue both Johnson and Turner in their
supervisory capacity. Spradlin’s Spears hearing testimony does not
indicate that Johnson and Turner were notified that Spradlin was
incarcerated under conditions imposing actual risk of substantial
impending harm and consciously and culpably refused to take steps
to prevent it from occurring. See Neals v. Norwood, 59 F.3d 530,
533 (5th Cir. 1995). Spradlin’s appellate argument that he
notified Johnson and Turner of his concerns is unpersuasive. Thus,
the district court did not err when it dismissed Johnson and
Turner.
Spradlin also argues that the evidence was insufficient to
support the jury verdict. Spradlin failed to move for judgment as
a matter of law in the district court pursuant to Federal Rule of
Civil Procedure 50(a). This issue is therefore reviewed only to
determine if any evidence exists to support the jury verdict; if
there is such evidence, the verdict will be upheld. See United
States ex. rel. Wallace v. Flintco Inc., 143 F.3d 955, 962-63 (5th
Cir. 1998). Evidence adduced at trial, including the trial
testimony of the defendant and the prison warden, supports the
No. 02-60739
-3-
jury’s determination that Spradlin failed to prove his failure to
protect claim.
Spradlin has failed to adequately brief any other issue.
Although this court applies less stringent standards to parties
proceeding pro se than to parties represented by counsel and
liberally construes briefs of pro se litigants, pro se parties must
still brief the issues and reasonably comply with the requirements
of FED. R. APP. P. 28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
1995). FED. R. APP. P. 28(A)(9) requires that the brief contain an
argument, with “contentions and the reason for them, with citations
to the authorities and parts of the record on which the appellant
relies” and “for each issue, a concise statement of the applicable
standard of review.” See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993). Spradlin’s brief lists issues for appellate review
other than the district court’s dismissal of Johnson and Turner and
his challenge to the sufficiency of the evidence, but Spradlin
fails to provide record citations, legal authority, and a coherent
argument for each issue. Therefore, he has abandoned these issues
by failing to brief them adequately.
The judgment of the district court is therefore AFFIRMED.
|
Case 6:21-cv-00511-ADA Document 269 Filed 07/27/21 Page 1 of 5
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
FRESHUB, INC. and FRESHUB, LTD.,
Plaintiffs,
Case No. 6:21-CV-00511-ADA
v.
AMAZON.COM, INC., a Delaware Corporation,
AMAZON.COM SERVICES LLC, a Delaware
Limited Liability Company, PRIME NOW, LLC, a
Delaware Limited Liability Company, and WHOLE
FOODS MARKET SERVICES, INC., a Texas
Corporation,
Defendants.
STIPULATION REGARDING
EXTENSION TO FILE MOTION FOR ATTORNEYS’ FEES
Case 6:21-cv-00511-ADA Document 269 Filed 07/27/21 Page 2 of 5
Amazon.com, Inc., Amazon.com Services LLC, Prime Now, LLC, and Whole Foods
Market Services, Inc. (“Defendants”) and Plaintiffs Freshub, Inc. and Freshub, Ltd. (“Freshub”)
stipulate as follows:
WHEREAS, the Court entered a final judgment on July 13, 2021 (Dkt. 268);
WHEREAS, the Court has not ruled in the first instance on the issues presented at the bench
trial in this matter, specifically, Defendants’ defense that the asserted patents are unenforceable
due to inequitable conduct;
WHEREAS, per Federal Rule of Civil Procedure 54, Defendants’ deadline to file a motion
for attorney fees and expenses is currently July 29, 2021 (see Fed. R. Civ. P. 54(d)(2)(B)(ii));
WHEREAS, Defendants have agreed that they will only file a motion for attorneys’ fees
in the event that they prevail on their defense that the asserted patents are unenforceable due to
inequitable conduct;
WHEREAS, the parties agree that, since this basis for seeking attorneys’ fees and expenses
is not yet ripe, both party and Court resources will be preserved by deferring such motion, if any,
until after the inequitable conduct issue is finally determined;
BASED ON THE FOREGOING, THE PARTIES HEREBY STIPULATE as follows:
Defendants’ motion for attorney fees and expenses, if any, shall be due 30 days after the final
resolution of the inequitable conduct defense, inclusive of any appeals.
///
Case 6:21-cv-00511-ADA Document 269 Filed 07/27/21 Page 3 of 5
Dated: July 27, 2021
Respectfully submitted, Respectfully submitted,
/s/ Eric B. Young /s/ Lisa Kobialka
John Palmer
Of Counsel: Texas Bar No. 15430600
[email protected]
Barry K. Shelton (TX Bar #24055029) NAMAN HOWELL SMITH & LEE PLLC
[email protected] 400 Austin Ave., Suite 800, P.O. Box 1470
Bradley Dalton Coburn Waco, TX 76703
[email protected] Telephone: (839)352-8757
SHELTON COBURN LLP Fax: (839)352-8757
311 RR 620 S, Suite 205
Austin, TX 78734
Tel: (839)352-8757
Fax: (839)352-8757
J. David Hadden, (CSB No. 176148) Paul J. Andre (Pro Hac Vice)
Email: [email protected] California Bar No. 196585
Saina S. Shamilov, (CSB No. 215636) Lisa Kobialka (Pro Hac Vice)
Email: [email protected] California Bar No. 191404
Todd R. Gregorian (CSB No. 236096) James Hannah (Pro Hac Vice)
Email: [email protected] California Bar No. 237978
Ravi R. Ranganath (CSB No. 272981) KRAMER LEVIN NAFTALIS
Email: [email protected] & FRANKEL LLP
Allen Wang (CSB No. 278953) 990 Marsh Road Menlo Park, CA 94025
Email: [email protected] Telephone: (839)352-8757
Eric B. Young (CSB No. 318754) [email protected]
Email: [email protected] [email protected]
FENWICK & WEST LLP [email protected]
Silicon Valley Center
801 California Street
Mountain View, CA 94041
Telephone: (839)352-8757
Facsimile: (839)352-8757
Counsel for Defendants Counsel for Plaintiffs,
AMAZON.COM, INC., AMAZON.COM FRESHUB, INC. AND FRESHUB, LTD.
SERVICES LLC, PRIME NOW, LLC, and
WHOLE FOODS MARKET SERVICES,
INC
2
Case 6:21-cv-00511-ADA Document 269 Filed 07/27/21 Page 4 of 5
CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the Court’s
CM/ECF system per Local Rule CV-5(a)(3) on July 27, 2021.
/s/ Eric B. Young
Eric B. Young
3
Case 6:21-cv-00511-ADA Document 269 Filed 07/27/21 Page 5 of 5
[PROPOSED] ORDER
PURSUANT TO STIPULATION, Defendants’ motion for attorney fees and expenses
shall be due 30 days after the final resolution of the inequitable conduct defense, inclusive of any
appeals.
SO ORDERED.
SIGNED this day of , 2021.
ALAN D. ALBRIGHT
UNITED STATES DISTRICT JUDGE
|
Exhibit 10.1
PACIFIC CAPITAL BANCORP
MANAGEMENT RETENTION PLAN
(As Amended and Restated, effective October 25, 2004)
--------------------------------------------------------------------------------
PACIFIC CAPITAL BANCORP
MANAGEMENT RETENTION PLAN
(As Amended and Restated, effective October 25, 2004)
TABLE OF CONTENTS
1. Introduction 1 2. Purpose 1
3. Eligibility to Participate 1 4. When Participation
Ends 2 5. Severance Benefits 2
Eligibility to Receive Benefits 2 Involuntarily
Terminated 2 Other Pay/Benefits 2 Retiree
Health Plan Benefits 3 Exclusion of Benefits 3
Limitation on Benefits 3 6. Exclusions for
Severance Payment 3 7. Severance Payment 4
8. Rules for Determining Annual Compensation 4
Annual Average Compensation 4 Cash Bonus 4
Cash Commissions 4 No Fringe Benefits 4
No Stock Options 4 9. Time and Form of
Severance Payment 4 10. Withholding 5
11. Excise Tax and Non-Deductibility Limitations 5 12.
Retiree Health Plan 5 13. Employment Status 5
Transfer of Employment 5
i
--------------------------------------------------------------------------------
14. Successors 6 Company's Successors 6
Failure to Obtain Assumption 6 Successor Fund
6 Definitions 7-10
Administration of the Plan ERISA Required Information
Cause Change of Control Change
of Control Date Code Determination
Disability Exchange Act Good
Reason Governing Law Incumbent Directors
Plan Year Severance Window Period
ii
--------------------------------------------------------------------------------
PACIFIC CAPITAL BANCORP
MANAGEMENT RETENTION PLAN
(As Amended and Restated, effective October 25, 2004)
1. Introduction
On November 24, 1998, Pacific Capital Bancorp, a California corporation
(hereinafter referred to as Pacific Capital), established a management retention
plan entitled “Pacific Capital Bancorp Management Retention Plan” (hereinafter
referred to as the “Plan”) for the benefit of certain eligible executives of
Pacific Capital and its subsidiaries (hereinafter referred to as “Pacific
Capital”). The Compensation & Nominating Committee of the Board of Directors of
Pacific Capital (the “Committee”) approved the amended and restated Plan on
October 25, 2004.
The Plan shall remain in effect until terminated by the Board of Directors by
resolution adopted by three-fourths of the Incumbent Directors.
This document (“Plan Document”) is intended to give participants an easily
understood explanation of the Plan. This Plan Document, in conjunction with any
future amendments, constitutes the official Plan Document for the Plan. You may
request an additional copy of this Plan Document by sending a written request to
the address below. Please note that capitalized terms have specialized meanings
which are defined in either the section where it is first used or at the end of
the Plan Document.
Neither the receipt of the Plan Document nor the use of the term “you” indicates
that you are eligible for a retention benefit under the Plan. Only those
executives who are selected for participation and satisfy the requirements for a
retention payment contained in the Plan are eligible for a benefit.
If you have questions regarding the Plan, you may contact the Corporate
Secretary at:
Pacific Capital Bancorp
1021 Anacapa Street
Santa Barbara, CA 93106
Telephone: (904)466-1002
--------------------------------------------------------------------------------
2. Purpose
The purpose of this Plan is to:
• enhance the ability of Pacific Capital to retain existing executive management
and, if needed, attract new executives;
• provide reasonable severance benefits for eligible executives in the event of
termination of employment following a Change of Control of Pacific Capital, and;
• enhance executive morale.
3. Eligibility to Participate
You become eligible to participate in the Plan if Pacific Capital employs you
within a position or salary grade (or similar category) selected by the
Compensation & Nominating Committee of the Board of Directors (“Committee”) to
participate in the Plan. If you are among the executive employees whose rank,
position or salary grade (or similar category) is selected for participation,
you will be notified in writing. Employment in an executive capacity does not
entitle you to selection for participation in the Plan. The Committee shall not
select any category of employees for participation unless it determines that
each person in that category is a member of a select group of management or
highly-compensated employees. The Committee’s selection of a category of
executive employees for participation shall be made solely in its discretion and
shall be conclusive and binding.
If you are covered under the terms of an employment agreement, change in control
agreement, or other similar agreement entered into between you and Pacific
Capital, or another subsidiary or entity subsequently acquired, you are not
eligible to participate in this Plan until the terms of such other agreement
expire.
If you are selected for participation, you will receive a written Notice of
Participation from the Corporate Secretary to be executed and returned by you.
4. When Participation Ends
You will cease to be a participant in the Plan as of the first to occur of the
following events:
the date you receive all of the Severance Payments due under the Plan in the
event you are eligible for severance;
the date the Committee notifies you that as a result of a change in your
employment status, you are no longer included in a category selected to be a
participant in the Plan;
the date your employment ends for any reason, which does not result in your
eligibility for severance;
the Board of Directors terminates the Plan;
--------------------------------------------------------------------------------
5. Severance Benefits
Eligibility to Receive Benefits: You are eligible to receive benefits following
a Change of Control only if:
• you are a participant in the Plan at the time of your termination of
employment; and
• you have signed and returned the Notice of Participation form;
• your employment is Involuntarily Terminated by Pacific Capital. Involuntarily
Terminated shall have the following meaning:
• your employment is terminated by Pacific Capital other than for Cause,
• your employment is terminated by Pacific Capital as a result of your death or
your Disability, or
• you terminate your employment for Good Reason within the Severance Window
Period.
Other Pay/Benefits. If (1) your employment is terminated at any time during the
Severance Window Period and you are entitled to receive a Severance Payment, (2)
you participate in any Retiree Health Plan, and/or (3) you timely exercise your
rights under Title X of the Consolidated Budget Reconciliation Act of 1985
(“COBRA”) to continue to participate in Pacific Capital’s Health/Dental/Vision
(“H/D/V”) plans after your termination of employment, Pacific Capital will
continue to pay all premiums and costs associated with your participation (and
your spouse and dependents) in Company H/D/V plans according to your elections
and the terms/conditions of those plans for the period beginning as of the date
of your termination of employment. Payments end the earlier of:
• the date you and your spouse and dependents become covered under another
employer’s health and/or dental insurance plans, or
• the last day of the period you and/or your spouse and dependents are eligible
to participate in Pacific Capital’s H/V/D plans as provided under COBRA.
RETIREE HEALTH PLAN BENEFITS
If you participate in any Retiree Health Plan, Pacific Capital shall have no
obligation to make any payment to you or your spouse and dependents under this
section with respect to their participation.
EXCLUSION OF BENEFITS
In the event your employment is terminated for any reason, either prior to the
occurrence of a Change of Control Date or after the expiration of the Severance
Window Period following a Change of Control Date, you are not entitled to
receive any benefits under this Plan. Other than this Plan, you may be entitled
to receive Severance Benefits that may apply under existing benefit plans and
policies of Pacific Capital.
--------------------------------------------------------------------------------
LIMITATION ON BENEFITS
By executing and returning to Pacific Capital a Notice of Participation, you
acknowledge that payment of benefits to you under this Plan, if any, is the only
compensation that you are entitled to as a result of Involuntary Termination
following a Change of Control. You have no right to bring or maintain any suit,
action, or other proceeding seeking compensation or damages based on any alleged
wrongful termination of your employment with Pacific Capital. Employee waives
and releases any rights that he/she may have under California Civil Code Section
1542 to the full extent that all such rights may lawfully be waived.
6. Exclusions for Severance Payment
You are not eligible for Severance Benefits, if any of the following conditions
apply:
• You fail to report to work or resign from employment prior to the effective
date of your termination of employment set forth in the notice of termination;
• You announce in writing your intention to terminate employment or retire prior
to the date Pacific Capital announces that your employment will terminate;
• Your termination of employment is due to Cause;
• You voluntarily resign or terminate your employment other than for Good
Reason,
• Your employment ends in connection with the sale of assets or a change in
ownership of any part of Pacific Capital’s operations and you are offered a
comparable position with comparable pay with the acquirer.
7. Severance Payment
The Severance Payment is equal to an amount multiplied by your Severance Payment
Percentage based on your position at the time of your termination of employment
times your Average Annual Compensation.
> Position
>
> --------------------------------------------------------------------------------
>
> Severance Payment Percentage
>
> --------------------------------------------------------------------------------
>
> President & Chief Executive Officer 300% Leadership Council
> 200% Executive Vice President 150% Grade 19 or T6 100% Grade
> 18 (grandfathered prior to the amended and restated October
> 25, 2004 Plan 100%
--------------------------------------------------------------------------------
8. Rules for Determining Annual Compensation
Annual Average Compensation. The average of your annual base salary, cash
bonuses, and commissions paid for the last three full Plan Years (or your actual
full Plan Years of employment if employed for less than three years).
Cash Bonus. A cash bonus, if any, is determined after the close of a Plan Year
and normally is paid during the first quarter of the following Plan Year.
Cash Commissions. Any cash commission is determined and paid after the close
of a Plan Year, and the amount, if any, is paid during the following Plan Year.
No Fringe Benefits. Your Annual Average Compensation for any Plan Year does
not include any fringe benefits provided by Pacific Capital, including Pacific
Capital’s I & I Plan or Employee Stock Ownership Plan, any matching
contributions to any 401(k) plan, any contributions or accruals to the Retiree
Health Plans, and any premiums on life, disability, or medical insurance.
No Stock Options. Your Annual Average Compensation for any Plan Year does not
include any income or gain realized by any stock options or other securities or
rights granted to you by Pacific Capital under any stock option plan or other
incentive plan in effect at any time.
9. Time and Form of Severance Payment
Any Severance Payment that you are entitled to receive under this Plan will be
paid by Pacific Capital in a lump sum by the later of (1) if no Dispute is made
with respect to the Determination, (as those terms are used in the Plan), 15
business days after the date of the delivery of the Determination, and (2) if a
Dispute is made with respect to the Determination, 15 business days after the
date of the Dispute resolution.
10. Withholding
All amounts paid by Pacific Capital to you under this Plan are subject
to all applicable federal, state, and local payroll and withholding taxes,
including any withholding obligations under Section 4999 of the Excise Tax.
11. Excise Tax and Non-Deductibility Limitations
If a determination is made that payments and benefits payable to any participant
under this Plan, when aggregated with any other payments or benefits received or
to be received under any other plan by reason of the occurrence of the Change of
Control would be subject to the Excise Tax imposed by Section 4999 of the Code,
the participant is entitled to an additional payment (a “Gross-Up Payment”) in
an amount that will place the participant in the same after-tax economic
position that the participant would have been in if the Excise Tax had not
applied to the payments. The Accountants shall determine the amount of the
Gross-Up Payment. If the Accountants determine that payments are not subject to
an Excise Tax, no Gross-Up Payments will be paid to a participant.
--------------------------------------------------------------------------------
12. Retiree Health Plan
Your rights and benefits under this Plan are in addition to any rights under any
Retiree Health Plan. Nothing in this Plan shall limit your rights under any
Retiree Health Plan and nothing in any Retiree Health Plan shall limit your
rights under this Plan.
13. Employment Status
This Plan does not constitute a contract of employment or impose on Pacific
Capital any obligation to:
retain you as an employee,
change status of your employment, or
change Pacific Capital’s policies regarding termination of
employment.
This Plan does not constitute a contract of employment or impose on you any
obligation to continue your employment with Pacific Capital for any particular
period of time.
Subject to the provisions of any written employment agreement between you and
Pacific Capital, your employment is and continues to be at-will, as defined
under applicable law. If your employment with Pacific Capital terminates for any
reason at any time other than during the Severance Window Period, including any
termination prior to a Change of Control Date, you are not entitled to any
payments, benefits, damages, awards, or other compensation under this Plan. You
will only be entitled to payments, benefits, damages, awards, and other
compensation that are available under Pacific Capital’s established employee
plans and practices at the time of termination.
Transfer of Employment. Notwithstanding anything in this Plan to the contrary,
the reassignment of your employment from Pacific Capital to any subsidiary,
shall not, by itself, be considered a Termination of Employment.
14. Successors
Company’s Successors. Pacific Capital requires any successor to Pacific Capital
(whether by purchase, lease, merger, consolidation, liquidation, or otherwise)
or to all (or substantially all) of Pacific Capital’s business and/or assets, to
assume this Plan and expressly agree to perform all of the obligations of
Pacific Capital under this Plan. For all purposes under this Plan, references to
Pacific Capital include any successor to Pacific Capital and its business and/or
assets, as appropriate. Any corporation, partnership, limited liability company,
or other person or entity which is the successor of Pacific Capital (whether by
purchase, lease, merger, consolidation, liquidation or otherwise) or successor
to all (or substantially all) of the business and/or assets of Pacific Capital
(including the stock of any subsidiary of Pacific Capital) is considered to have
assumed all of Pacific Capital’s obligations under this Plan. This assumption
applies regardless of whether or not any successor specifically acknowledges in
writing that it is assuming all obligations under this Plan.
--------------------------------------------------------------------------------
Failure to Obtain Assumption. The failure of Pacific Capital to obtain the
assumption of this Plan by its successor prior to the effectiveness of any
succession will be considered to be the Involuntary Termination of the
participants in this Plan. The Involuntary Termination of each effected
participant is effective as of the day before the succession effective date.
Effected participants are entitled to receive the same Severance Payment and
other benefits under this Plan that they would have been entitled to receive had
their employment been terminated in an Involuntary Termination after the
succession effective date and after the occurrence of a Change of Control.
Successor Fund. If a transaction occurs in which any person or entity is
considered a successor to Pacific Capital and the successor does not
specifically assume all of Pacific Capital’s obligations under this Plan,
Pacific Capital:
• will retain a sufficient amount to pay, based on the compensation levels of
the participants who are Pacific Capital employees as of the date immediately
preceding the close of the transaction, all of the Severance Payments and other
benefits that are then payable, and
• within two years from the closing date may be payable to participants, and
• promptly after the close of the transaction will use the assets and/or
consideration to pay the Severance Payments and other benefits payable to the
participants.
--------------------------------------------------------------------------------
DEFINITIONS
ADMINISTRATION OF THE PLAN ERISA REQUIRED INFORMATION
The sponsor and Administrator of this Plan is:
Pacific Capital Bancorp
1021 Anacapa Street
Santa Barbara, California 93101
Attn: William S. Thomas, Jr., President & CEO
(904)466-1002
The Designated Agent for service of process:
General Counsel
Pacific Capital Bancorp
1021 Anacapa Street
Santa Barbara, California 9311
Pacific Capital may change the name and position of the Administrator or
Designated Agent at any time.
CAUSE
Cause for termination of the participant’s employment by Pacific Capital is
based upon:
• the continued failure by the participant to substantially perform the
participant’s duties (unless such failure is due to participant’s Disability)
after written documentation specifying the participant’s performance failures is
delivered to the participant and a period of at least 14 business days is given
to the participant to cure such failures;
• any act of dishonesty, breach of confidentiality or ethics violation, or fraud
by the participant;
• the participant’s conviction of a felony, or commission of a criminal or other
act that will probably cause substantial economic damage to Pacific Capital or
substantial injury to its business reputation; or
• the order of a regulatory agency.
CHANGE OF CONTROL
Change of Control is the occurrence of any of the following events:
• An acquisition of any voting securities of Pacific Capital by any person (as
that term is used for purposes of Section 13(d) or Section 14(d) of the Exchange
Act), immediately after which such person has beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the
combined voting power of Pacific Capital’s then outstanding voting securities.
--------------------------------------------------------------------------------
• A cumulative change in the composition of the Board of Directors of Pacific
Capital occurring during any two-year period, as a result of which fewer than a
majority of the directors are Incumbent Directors; provided that no individual
shall be considered an Incumbent Director if such individual initially assumed
office as a result of either an actual or threatened Election Contest (as
described in Rule 14a-11 promulgated under the Exchange Act) (an “Election
Contest”) or other actual or threatened solicitation of proxies or consents by
or on behalf of a person other than the Board of Directors of Pacific Capital (a
“Proxy Contest”) including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
• Approval by the shareholders of Pacific Capital of:
a. A merger, consolidation or reorganization involving Pacific Capital.
b. A complete liquidation or dissolution of Pacific Capital unless (as evidenced
by resolution of the Board of Directors of Pacific Capital) (x) such liquidation
or dissolution is effected primarily for the purpose of consolidating the
business and assets of Pacific Capital with those of one or more subsidiaries of
Pacific Capital and (y) the principal business of Pacific Capital is continued
by such subsidiary immediately after such liquidation or dissolution; or
c. An agreement for the sale or other disposition of all or substantially all of
the assets of Pacific Capital to any person other than one or more subsidiaries
of Pacific Capital.
CHANGE OF CONTROL DATE
Change of Control Date is the earliest of:
• the date on which the Change of Control occurs;
• the date on which Pacific Capital executes an agreement which would result in
the occurrence of a Change of Control;
• the date on which the Board of Directors of Pacific Capital approves a
transaction which, if completed, would result in a Change of Control; or
• the date Pacific Capital fails to satisfy its obligations to have this Plan
assumed by any successor to Pacific Capital involved in the Change of Control.
--------------------------------------------------------------------------------
CODE
Code means the Internal Revenue Code of 1986, as amended.
DETERMINATION
Initial Determination. An initial determination as to whether any payments would
be subject to the Excise Tax shall be made at Pacific Capital’s expense by an
accounting firm selected by Pacific Capital (which firm may be Pacific Capital’s
regular outside auditors) (the “Accountants”). The Accountants shall provide
their determination (the “Determination”), together with supporting calculations
and documentation, to Pacific Capital and the participant within 30 days after
the date of the participant’s Termination of Employment. For purposes of making
the calculations, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999 of
the Code. Pacific Capital and the participant shall furnish information and
documents to the Accountants as they may reasonably request in order to make a
Determination. Pacific Capital shall bear all costs that the Accountants may
reasonably incur in connection with any calculations contemplated by this
section. If the Accountants determine that no Excise Tax is payable by a
participant, Pacific Capital shall cause the Accountants to provide the
participant an opinion that the Accountants have substantial authority under the
Code not to report an Excise Tax on the participant’s federal income tax return.
Dispute. The Participant and Pacific Capital shall have the right to dispute the
Determination (the “Dispute”). The participant and/or Pacific Capital shall
initiate the Dispute, if at all, by delivering to the Administrator written
notice of the Dispute within 10 days after the delivery of the Determination by
the Accountants. If a written notice of Dispute is not delivered to the
Administrator within such 10-day period, it shall be conclusively presumed that
there is no Dispute and the Determination shall be binding, final, and
conclusive upon the participant and Pacific Capital. If Pacific Capital
initiates the Dispute, they shall promptly deliver to the participant a copy of
the written notice delivered to the Administrator. Pacific Capital shall pay the
reasonable attorney fees, costs, and expenses incurred in good faith by the
participant in connection with the resolution of any Dispute, regardless of the
outcome of the Dispute.
DISABILITY
Disability shall have the same meaning as that term is defined in Pacific
Capital’s Long-Term Disability Plan.
EXCHANGE ACT
Exchange Act means the Securities Exchange Act of 1934, as amended.
--------------------------------------------------------------------------------
GOOD REASON
Good Reason is the occurrence of any of the following events, without the
participant’s express written consent:
• the assignment to the participant of duties that are inconsistent with the
participant's position and salary;
• a significant reduction of the participant's duties or responsibilities;
• a reduction of the participant’s base pay and annual cash bonuses or
commissions, unless the reduction in such bonuses and commissions results
primarily from a proportionate reduction in the bonus and/or commission pool
available to employees based on the performance of Pacific Capital Bancorp or
the performance of the participant, or a material reduction in the kind or level
of employee benefits to which the participant is entitled;
• the termination of the participant's status as a member of the Leadership
Council of Pacific Capital;
• the relocation of the participant’s principal place of employment more than 35
miles from the present principal place of employment.
GOVERNING LAW
This Plan Document shall be governed and interpreted in accordance with
California law.
INCUMBANT DIRECTORS
Incumbent Directors means directors of Pacific Capital who are elected (or
nominated for election) to the Board by the affirmative vote of at least a
majority of the Incumbent Directors at the time of such election or nomination.
An individual who is elected or nominated in connection with an actual or
threatened Proxy Contest relating to the election of directors shall not be
considered an Incumbent Director.
PLAN YEAR
Plan Year means the period beginning January 1st and ending December 31st of
each year.
SEVERANCE WINDOW PERIOD
The Severance Window Period is a period of 24 months immediately following the
Change of Control Date.
-------------------------------------------------------------------------------- |
Jfourtj) Court of
£§>an gntonio,
April 08,2013
No. 04-12-00735-CR and 04-12-00736-CR
Albert NICHOLAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B93-6 and B93-7
Honorable Rex Emerson, Judge Presiding
ORDER
Appellant's Second (Further) Motion for Rehearing is DENIED. In an appeal, this court
can only consider the record that was before the trial court in ruling on appellant's motion for
DNA testing. See Leza v. State, 351 S.W.3d 344, 362 n.78 (Tex. Crim. App. 2011) ("Perhaps the
most basic characteristic of the appellate record is that it is limited to matters before the trial
court."); Roughley v. State,No. 05-03-00049-CR, 2003 WL22450442, at *1 (Tex. App—Dallas
Oct. 29, 2003, pet. ref d) (holding trial court is not required "to review a convicted person's
entire trial record in ruling on a motion for post-conviction DNA testing").
Ca
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
Keith E. Hottle
Clerk of Court
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE EDWARD FARMER, No. 06-35635
Petitioner-Appellant, D.C. No.
v. CV-02-01565-ALA
GEORGE H. BALDWIN,
Respondent-Appellee. ORDER
CERTIFYING A
QUESTION TO
THE SUPREME
COURT OF
OREGON
Filed August 15, 2007
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
ORDER
George Edward Farmer (“Farmer”) appeals the district
court’s dismissal of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254, arising from his conviction in Ore-
gon state court on one count of murder. The district court did
not reach the merits of Farmer’s claims, ruling instead that he
failed to exhaust available state remedies, and that his claims
are now procedurally defaulted.
Farmer contends on appeal that the district court erred in so
concluding, arguing that because he complied with Oregon
procedural rules to present his claims to the state courts, those
claims are now exhausted and warrant federal habeas review.
Because this contention raises an important and unresolved
issue of Oregon law, we respectfully CERTIFY A QUES-
9871
9872 FARMER v. BALDWIN
TION for review by the Supreme Court of Oregon. We offer
the following statement of relevant facts and explanation of
the “nature of the controversy in which the question[ ] arose.”
OR. REV. STAT. § 28.210(2) (2005).
BACKGROUND
An Oregon state court jury convicted Farmer of murder and
the trial court sentenced him to twenty-five years to life
imprisonment. Farmer appealed his sentence only, and the
Oregon Supreme Court ultimately affirmed the trial court’s
judgment. State v. Farmer, 856 P.2d 623 (Or. 1993). Farmer
thereafter sought state post-conviction relief, alleging in his
post-conviction petition to the trial court that he had been
denied adequate assistance of both trial and appellate counsel,
in violation of the Sixth and Fourteenth Amendments. He also
claimed that both his conviction and sentence violated his fed-
eral guarantees of due process and equal protection, and that
he had been searched in violation of the Fourth Amendment.
On appeal from the trial court’s denial of Farmer’s post-
conviction petition, his appellate attorney in October 2001
attempted to submit a “no-merits” brief according to the pro-
cedure outlined in State v. Balfour, 814 P.2d 1069 (Or. 1991).
Balfour calls for a two-part brief when an attorney represent-
ing an indigent criminal defendant cannot identify a non-
frivolous claim to raise on appeal. Balfour, 814 P.2d at 1079-
80. Section A, prepared and signed by the attorney, must con-
tain a statement of the case sufficient to apprise the court of
the appeal’s jurisdictional basis, but it may not contain any
assignment of error or argument. Id. at 1080. If the client
wishes to raise an issue or issues the attorney deems frivolous,
the brief must contain Section B, which “shall raise any claim
of error requested by the client . . . in the manner that the cli-
ent wishes to raise it,” and is signed by the client alone. Id.
Farmer’s appellate attorney drafted Section A of the Balfour
brief, in which he stated that he had conferred with Farmer
and Farmer’s post-conviction trial counsel in an effort to iden-
FARMER v. BALDWIN 9873
tify any non-frivolous claim to raise on appeal. Section A did
not contain any assignment of error, but did state that Farmer
“has filed a Petition for Post-Conviction Relief and makes all
the allegations set forth therein.” This portion of the brief also
stated that Farmer was offered an opportunity to draft and
submit Section B with the assistance of counsel, but that he
instead chose “to attach a copy of his post conviction petition,
in the hopes of at least preserving all the issues presented
therein.” Farmer’s post-conviction petition was appended to
Section A of the brief in original form, but without a heading
identifying it as “Section B” of the brief.
After the Oregon Court of Appeals affirmed without opin-
ion, Farmer filed a petition for review in the Oregon Supreme
Court in July 2002. On the petition’s opening page Farmer
stated that he intended to rely on the petition itself and the
briefs filed in the court of appeals. In the body of his petition
Farmer raised no claims and made no assignments of error,
but stated inter alia that: (1) the reasons justifying reversal of
the court of appeals “are set forth in the appellate brief”; and
(2) his position was “set forth in the . . . [B]alfour brief.” Far-
mer did not attach a copy of the Balfour brief to his petition
for review. The Oregon Supreme Court summarily denied
review. Farmer v. Baldwin, 54 P.3d 1041 (Or. 2002).
Farmer thereafter filed the instant habeas petition, in which
he again alleged that he had been deprived of his federal right
to effective trial and appellate assistance, that his federal guar-
antees of due process and equal protection had been violated,
and that he was searched in violation of the Fourth Amend-
ment. The district court concluded that because Farmer did
not “fairly present” his federal claims to the Oregon Supreme
Court, those claims were not exhausted and federal habeas
review was therefore precluded under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Further, rea-
soning that Farmer could no longer present his claims to the
Oregon Supreme Court because they were untimely under
Oregon’s procedural rules, the district court determined those
9874 FARMER v. BALDWIN
claims were procedurally defaulted for purposes of federal
habeas review. Because Farmer had shown neither the cause
nor prejudice necessary to cure this procedural default, the
district court dismissed his habeas petition. Farmer timely
appealed to this court.
DISCUSSION
As a general matter, no federal habeas relief is warranted
until a state prisoner has exhausted all available state reme-
dies. 28 U.S.C. § 2254(b)(1). This so-called “exhaustion
requirement” is intended to afford “the state courts a mean-
ingful opportunity to consider allegations of legal error”
before a federal habeas court may review a prisoner’s claims.
Vasquez v. Hillery, 474 U.S. 254, 257 (1986); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “To pro-
vide the State with the necessary ‘opportunity,’ the prisoner
must ‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Dun-
can v. Henry, 513 U.S. 364, 365 (1995) (per curiam)).
Our central inquiry is whether Farmer satisfied this “fair
presentation” requirement in his petition for review to the
Oregon Supreme Court, thereby exhausting his available state
remedies, and authorizing him to seek federal habeas relief. In
particular, we inquire whether Farmer’s petition for review,
which refers directly and repeatedly to his Balfour brief, to
which his original post conviction petition was attached in
place of (although not labeled as) Section B, and which
attachment explicitly stated his federal claims, constitutes pre-
sentation of those claims to the Oregon Supreme Court under
Oregon’s rules or practice. This inquiry turns directly on the
construction and application of several Oregon Rules of
Appellate Procedure, as well as on the practice followed by
the Oregon Supreme Court, and presents questions of Oregon
law for which we have found no guidance in the case law
FARMER v. BALDWIN 9875
from either the Oregon Court of Appeals or the Oregon
Supreme Court.
I. Oregon Rule of Appellate Procedure 9.05
As an initial matter, we are mindful that Farmer’s petition
for review to the Oregon Supreme Court did not comply with
the state’s appellate rules generally governing such petitions.
The operative rule at the time Farmer sought review broadly
required all petitions to the Oregon Supreme Court to contain:
a concise statement of the legal question presented for review;
the rule of law the petitioner proposed to be established; a
concise statement of each reason asserted for reversal or mod-
ification of the Court of Appeals’ decision; a short statement
of facts; and a statement of specific reasons why the issues
presented had importance beyond the particular case and war-
ranted decision by the Supreme Court. Or. R. App. P. 9.05(3)
(2001). Farmer’s petition did not specifically contain any of
the required elements, but rather referred the Oregon Supreme
Court to his Balfour brief — including the petition attached
thereto in lieu of Section B — filed in the Court of Appeals
in an attempt to satisfy the applicable requirements. We have
no trouble concluding that the Oregon Supreme Court would
find Farmer’s petition lacking under a straightforward appli-
cation of Rule 9.05(3) (2001).1 However, we are also per-
suaded that the lower Balfour pleading standard, codified in
Oregon Rule of Appellate Procedure 5.90, applies to Farmer’s
petition. See Or. R. App. P. 9.05 cmt. (2001) (referring to
Rule 5.90(5) as the governing rule “regarding filing a petition
for review where a ‘Balfour’ brief was filed on behalf of the
appellant in the Court of Appeals”). We are simply unaware
of the extent to which the Oregon Supreme Court may be
flexible in applying that rule, particularly with respect to a
petitioner’s referring the Court to a statement of claims set
forth in a Balfour brief filed in the Court of Appeals.
1
The substance of former Rule 9.05(3) is contained in current Oregon
Rule of Appellate Procedure 9.05(4).
9876 FARMER v. BALDWIN
II. Balfour and Oregon Rule of Appellate Procedure
5.90
Grappling with the competing considerations presented
when an indigent criminal defendant wishes to appeal but his
appointed counsel does not identify any meritorious grounds
to raise, the Oregon Supreme Court in Balfour considered first
whether an attorney has an ethical duty to withdraw under
such circumstances. Balfour, 814 [email protected]. Concluding
that no such duty exists, the court then sought to establish a
standard that would “assure an indigent appellant that requi-
site equality both of representation by counsel and access to
appellate review that will satisfy the due process and equal
protection concerns” identified by the United States Supreme
Court in Anders v. California, 386 U.S. 738 (1967). Id. at
1079. The court set out specific procedures for Oregon courts
to apply in “appeals of right by indigent persons with a consti-
tutional right to counsel in their criminal appeal,” establishing
the two-part Balfour brief discussed above. Id. at 1079-80. As
part of formulating those procedures, the court emphasized
that because counsel is not ethically responsible for the con-
tents of Section B, counsel “shall present to the court in the
brief the issue that the client seeks to raise in the manner that
the client seeks to raise it.” Id. at 1080. Shortly after the Ore-
gon Supreme Court issued Balfour, its requirements were
codified in Oregon Rule of Appellate Procedure 5.90, effec-
tive January 1, 1994.
Specifically, Rule 5.90 provides that when appointed appel-
late counsel has thoroughly reviewed the record, conferred
with trial counsel and the client, and determined that the case
raises no meritorious issues, counsel must file a two-part Bal-
four brief. Or. R. App. P. 5.90(1) (2001). Section A, signed
by counsel, must contain a statement of the case including a
statement of facts, a description of any demurrer or significant
motion filed in the case and the trial court’s disposition of the
motion, and a statement that the case is being submitted pur-
suant to Rule 5.90. Or. R. App. P. 5.90(1)(a) (2001). Section
FARMER v. BALDWIN 9877
B of the brief is signed by the client alone, and demonstrates
significant relaxation of the procedural requirements with
which a brief to the Oregon Court of Appeals would other-
wise have to comply. The operative version of the rule when
Farmer sought appellate review in this case provided that Sec-
tion B of his brief “shall contain any claim of error requested
by the client,” and required only that Section B “attempt to
state the claim and any argument in support of the claim as
nearly as practicable in the manner that the client seeks, in
proper appellate brief form.” Or. R. App. P. 5.90(1)(b) (2001).
Cf. Or. R. App. P. 5.45 (2001). Further, when appointed coun-
sel submits a Balfour brief to the Oregon Court of Appeals,
Rule 5.90 provides a similar procedure to seek review in the
Oregon Supreme Court, authorizing a petition for review con-
taining a Section A that complies with Rule 9.05 (governing
generally petitions for review in the Supreme Court), and a
Section B that complies with the Balfour standard set out in
Rule 5.90. Or. R. App. P. 5.90(5) (2001).
As noted, Farmer’s petition for review to the Oregon
Supreme Court did not comply strictly with Rule 5.90. Rather
than stating Farmer’s federal claims in a “Section B,” the peti-
tion instead attempted to incorporate by reference Farmer’s
Court of Appeals’ briefing, which, by means of the attach-
ment described above, expressly included those federal
claims. We have found no Oregon case law examining the
language of Rule 5.90 in effect when Farmer filed his petition,
particularly the provision that Section B of his brief “shall
attempt to state the claim and any argument in support of the
claim as nearly as practicable in the manner that the client
seeks, in proper appellate brief form.” Or. R. App. P.
5.90(1)(b) (2001). Nor have we found any Oregon case law
construing the boundaries of current Rule 5.90, which omits
the comma after the words “the client seeks”. Or. R. App. P.
5.90(b)(i) (2007).
However, as this court has previously noted, the Oregon
Supreme Court has routinely considered briefs filed in the
9878 FARMER v. BALDWIN
court of appeals not only to adjudicate the merits after review
has been granted, but also, at least in some cases, to determine
whether to grant review in the first instance. Wells v. Maass,
28 F.3d 1005, 1009 (9th Cir. 1994) (collecting cases). This
practice, in combination with the relaxed pleading standards
enunciated in Balfour and codified in Rule 5.90, presents a
substantial argument that Farmer “fairly presented” his fed-
eral claims to the Oregon Supreme Court. See Insyxiengmay
v. Morgan, 403 F.3d 657, 668-69 (9th Cir. 2005) (holding that
a petition to the Washington Supreme Court fairly presented
federal claims by incorporating an appendix that contained
arguments relating to three federal claims, when state law did
not prohibit such incorporation); see also Lockheart v. Hulick,
443 F.3d 927, 929 (7th Cir. 2006) (concluding that if it is per-
missible under state law for a petitioner to raise an argument
to an appeals court by incorporating other documents, a peti-
tioner may fairly present his claim by incorporating such doc-
uments). Oregon law has not yet addressed that issue, and we
do not think it appropriate to substitute our judgment for that
of the Oregon Supreme Court regarding the interpretation of
Oregon’s appellate procedures and practice. Because of the
unique and delicate interplay of federal and state interests
implicated by federal habeas corpus actions, and because res-
olution of this question as a matter of Oregon law is likely to
substantially affect Oregon state prisoners seeking federal
habeas relief, we believe this question is most appropriately
answered in the first instance by the Oregon Supreme Court.
CONCLUSION
We certify the following question to the Supreme Court of
Oregon:
Whether, under its rules or practice, the Oregon
Supreme Court would deem a federal question not
properly raised before it, when that question has
been presented by means of an attachment to a Bal-
four brief filed in the Court of Appeals, and the
FARMER v. BALDWIN 9879
attachment served as (but was not labeled as) Section
B of said brief, and the petitioner specifically states
in his petition to the Supreme Court that his reasons
for seeking review are set forth in the Balfour brief.
We respectfully request the Oregon Supreme Court to exer-
cise its discretionary authority under Oregon’s Uniform Certi-
fication of Questions of Law Act, OR. REV. STAT. §§ 28.200
to .255 (2005), to accept and decide this question. If the Ore-
gon Supreme Court decides that the question presented in this
case is inappropriate for certification, or if it declines the cer-
tification for any other reason, it should so state and we will
resolve the question according to our understanding of Ore-
gon law.
The Clerk will file a certified copy of our Order with the
Oregon Supreme Court under OR. REV. STAT. § 28.215
(2005). This appeal is withdrawn from submission and will be
submitted following receipt of the Oregon Supreme Court’s
Opinion on the question certified. This panel retains jurisdic-
tion over further proceedings in this court. The parties will
notify the Clerk within one week after the Oregon Supreme
Court accepts or rejects certification, and again within one
week after the court renders its opinion.
IT IS SO ORDERED.
_________________________________
STEPHEN REINHARDT
Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit
COUNSEL LISTING
Lisa Hay, Steven T. Wax, Assistant Federal Public Defend-
ers, 101 S.W. Main Street, Suite 1700, Portland, Oregon,
97204, petitioner-appellant.
9880 FARMER v. BALDWIN
Erin C. Lagesen, Assistant Attorney General, 1162 Court
Street, NE, Salem, Oregon, 97301-4096, for respondent-
appellee.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.
|
91 Wis. 2d 394 (1979)
283 N.W.2d 427
STATE EX REL., Respondent,
v.
Jerald J. REIBLE, Plaintiff:
Margaret A. REIBLE, Defendant-Appellant.
No. 78-407.
Court of Appeals of Wisconsin.
Submitted on briefs April 25, 1979.
Decided July 26, 1979.
*395 For the appellant the cause was submitted on the briefs of Legal Services of Northeastern Wisconsin, Inc. and David J. Le Grand, staff attorney, of Green Bay.
For the respondent the cause was submitted on the brief of Francis J. Sailer of Appleton.
Before Dean, P.J., Donlin, J., and Foley, J.
FOLEY, J.
Margaret Reible appeals from that portion of an order modifying her divorce judgment which requires her to pay child support for children in her custody, and which attaches a lien on her share in the family homestead in favor of the Outagamie County Child Support Agency to secure her payment of the support.[1]
*396 The issue is whether the court, in modifying the Reibles' divorce judgment, had jurisdiction to order the custodial parent to pay child support in order to attach a lien on her property in favor of the agency providing her with monthly AFDC payments.
Jerald and Margaret Reible were divorced in June, 1977. The judgment awarded Margaret custody of the couple's four children, and required Jerald to pay $100 per week for child support. The judgment allowed Margaret to remain in the family homestead until she remarried, moved or died, or until the youngest child reached eighteen, whereupon the home was to be sold. Proceeds of the sale were to be shared equally by Margaret and Jerald. Margaret was required to make all future mortgage payments on the home. The record does not indicate when Margaret began receiving AFDC payments, but approximately six weeks after the divorce Margaret assigned her right to support from Jerald to the state, in accordance with sec. 49.19(4)(h), Stats. (1975).[2]
In February, 1978, Jerald sought and received a reduction in support to $55 per week. In June, 1978, upon the petition of the Outagamie County Child Support Agency, an order to show cause was issued on the question *397 of why there should not be an increase in the support ordered by the divorce judgment and subsequent modification. After a hearing, the court ordered an increase in Jerald's support obligation from $55 to $90 per week. Under the order, Jerald would continue to pay $55 per week and there would be a $35 per week accumulating lien against Jerald's half-share of the equity in the Reible homestead, collectible when the house was sold. The court also ordered Margaret to pay $136 per month support in the form of an accumulating lien, in favor of the Child Support Agency, on her share of the equity in the homestead. The combined amounts ordered as support from Margaret and Jerald equaled the $526 per month AFDC benefits received by Margaret.
Jerald has not appealed the order modifying his support obligation, and there is no question that the court acted properly under sec. 247.30, Stats.,[3] in providing for eventual payment by attaching a lien against Jerald's interest in the home. We do not, however, find any basis in the law for the order being appealed which requires Margaret to pay support for children in her custody as a means of allowing the state to recover AFDC benefits received by her.
[1]
There is no common law right for the state to recover welfare payments. Any recovery provisions must be statutory. Whitwam v. Whitwam, 87 Wis. 2d 22, 273 N.W.2d 366 (Ct. App. 1978). In sec. 49.195(1), Stats., the legislature has specifically provided when and how support *398 payments may be recovered from AFDC recipients. The statute provides in pertinent part:
Recovery of aid to families with dependent children. (1) If any parent at the time of receiving aid under s. 49.19 or at any time thereafter acquires property by gift, inheritance, sale of assets, court judgment or settlement of any damage claim, the county granting such aid may sue the parent to recover the value of that portion of the aid which does not exceed the amount of the property so acquired. During the life of the parent, the 10-year statute of limitations may be pleaded in defense against any suit for recovery under this section; and if such property is his or her homestead it shall be exempt from execution on the judgment of recovery until his or her death or sale of the property, whichever occurs first.... The court may refuse to render judgment or allow the claim in any case where a parent, spouse or child is dependent on the property for support, and the court in rendering judgment shall take into account the current family budget requirement as fixed by the U.S. department of labor for the community or as fixed by the authorities of the community in charge of public assistance....
[2]
This case was not, however, an action brought under sec. 49.195, Stats., nor can it be considered the functional equivalent. The court gave no recognition to the factors which sec. 49.195 requires be considered, and no one addressed the issue of whether Margaret's homestead was property acquired by gift, inheritance, sale of assets, court judgment or settlement of a damage claim "at the time of receiving aid or at any time thereafter." Therefore, the court's jurisdiction to act was confined to its powers under the statutes governing divorce actions. These powers do not include ordering support from a custodial parent in order to attach a lien on her property to secure eventual repayment to the state.
*399 [3]
The state argues that sec. 247.075, Stats., allows the court to order measures, such as used against Margaret, to obtain reimbursement of AFDC payments. We disagree. Section 247.075 provides:
State is real party in interest. Whenever aid under s. 49.19 is provided a dependent, the state shall be deemed a real party in interest within the meaning of s. 803.01 for purposes of securing reimbursement of aid paid, future support and costs as appropriate in an action affecting marriage.
While this section recognizes the state's interest in securing reimbursement for money paid out under welfare grants, it provides no specific measures for recovery, and it does not designate from whom recovery may be sought. If there is a right to obtain a lien against the recipient's property on the basis of an order establishing a monthly support obligation, it must be found elsewhere in the statutes governing divorce actions. Chapter 247, Stats., gives the state no such right.
[4]
Sections 247.08(2),[4] 247.29(2),[5] and 247.32(1),[6] Stats., provide specific means of receiving reimbursement *400 of money paid to AFDC recipients. In each section, however, the state's right to pursue its remedy is predicated upon an assignment under sec. 49.19(4) (h), Stats. Section 49.19(4) (h) refers to an assignment by an aid recipient of rights to support from "any other person." The assignment, therefore, gives the state only the rights held by the aid recipient against other persons. Thus, none of these sections contemplate recovery directly from the aid recipient.
In addition, we do not accept the state's argument that sec. 247.25, Stats., which allows the court to "order either or both parents" to pay child support, permits an award of child support in this case against the defendant, the custodial parent, for purposes of reimbursing the state for AFDC payments. Defendant has no income. Support, if ordered, would have to come from assets. The only significant assets is defendant's interest in the home. Construing sec. 247.25 as suggested by the state, would permit avoidance of the requirements of sec. *401 49.195, Stats., by permitting reimbursement out of defendant's interest in the home. We will not construe sec. 247.25 to effect this result.
Absent any express authorization in ch. 247 authorizing the court to require support from Margaret Reible or to attach a lien against her property, those portions of the order are vacated. If the state desires to seek reimbursement from Margaret Reible, the specific means provided in sec. 49.195(1), Stats., must be followed.
By the Court.Order affirmed in part and vacated in part.
NOTES
[1] The lien attaches for the benefit of the state, which holds the right to reimbursement of AFDC payments where there is a child support obligation under §49.19(4)(h), Stats. Section 247.32(1), Stats., permits the county child support agency to petition the court for modification of a support order on behalf of the state. Section 247.32(1) provides in part:
Revision of judgment. (1) After a judgment providing for child support ... the court may ... on the petition of either of the parties, or upon the petition of the department of health and social services, a county welfare agency or a child support agency if an assignment has been made under s. 49.19(4) (h) or if either party or their minor children receives aid under ch. 49 ... revise and alter such judgment respecting the amount of such maintenance or child support and the payment thereof....
[2] The legislature recently amended §49.19(4) (h)1b, Stats., to provide for automatic assignment of any rights to support at the time the recipient applies for aid. See §334m, ch. 418, Laws of 1977.
[3] Section 247.30, Stats. (1977), provides in part:
Enforcement of maintenance payment and child support orders. In all cases where child support payments ... are ordered, the court may provide that the same shall be paid in such sums and at such times as shall be deemed expedient, and may impose the same as a charge upon any specific real estate of the party liable....
[4] Section 247.08(2), Stats., provides in part:
If the state or any subdivision thereof furnishes public aid to a spouse or dependent children for support and maintenance and the spouse fails or refuses to institute an appropriate court action under this chapter to provide for the same, the person in charge of county welfare activities, the county child support agency or the state department of health and social services shall have the same right as the individual spouse to initiate an action under this section, for the purpose of securing reimbursement for support and maintenance furnished and of obtaining continued support and maintenance....
[5] Section 247.29(2), Stats., provides:
If any party entitled to maintenance payments or support money, or both, is receiving public assistance under ch. 49, the party may assign the party's right thereto to the county department of social services or public welfare or municipal relief agency granting such assistance. Such assignment shall be approved by order of the court granting the maintenance payments or support money, and may be terminated in like manner; except that it shall not be terminated in cases where there is any delinquency in the amount of maintenance payments and support money previously ordered or adjudged to be paid to the assignee without the written consent of the assignee or upon notice to the assignee and hearing. When an assignment of maintenance payments or support money, or both, has been approved by the order, the assignee shall be deemed a real party in interest within s. 803.01 but solely for the purpose of securing payment of unpaid maintenance payments or support money adjudged or ordered to be paid, by participating in proceedings to secure the payment thereof. Notwithstanding assignment under this subsection, and without further order of the court, the clerk of court, upon receiving notice that a party or a minor child of the parties is receiving aid under s. 49.19, shall forward all support assigned under s. 49.19(4) (h)1 to the department.
[6] See note 1, supra.
|
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Ceragon is currently active in Telefonica deployments in 6 national markets. The Telefónica Group, a global Tier-1 telecommunications company and one of the world’s leading integrated operators, offers communication, information and entertainment solutions in 25 countries, servicing more than 300 million subscribers. Press Release Vivo Teams Up with Ceragon to Expand Nationwide LTE Deployment – July 23, 2013 For more information about Vivo, click here About Ceragon Networks Ltd. Ceragon Networks Ltd. (NASDAQ: CRNT) is the #1 wireless backhaul specialist.We provide innovative, flexible and cost-effective wireless backhaul and fronthaul solutions that enable mobile operators and other wired/wireless service providers to deliver 2G/3G, 4G/LTE and other broadband services to their subscribers.Ceragon’s high-capacity, solutions use microwave technology to transfer voice and data traffic while maximizing bandwidth efficiency, to deliver more capacity over longer distances under any deployment scenario. Based on our extensive global experience, Ceragon delivers turnkey solutions that support service provider profitability at every stage of the network lifecycle enabling faster time to revenue, cost-effective operation and simple migration to all-IP networks.As the demand for data pushes the need for ever-increasing capacity, Ceragon is committed to serve the market with unmatched technology and innovation, ensuring effective solutions for the evolving needs of the marketplace. Our solutions are deployed by more than 430 service providers in over 130 countries. Media Contact: Media Contact: Company & Investor Contact: Justine Schneider Abigail Levy-Gurwitz Yoel Knoll Calysto Communications Ceragon Networks Ceragon Networks Tel: 808.645.7406 Tel: 808.645.7406 Tel. 808.645.7406 [email protected] [email protected] [email protected] Join the discussion Ceragon Networks® and FibeAir® are registered trademarks of Ceragon Networks Ltd. in the United States and other countries. CERAGON ® is a trademark of Ceragon Networks Ltd., registered in various countries.Other names mentioned are owned by their respective holders. This press release may contain statements concerning Ceragon’s future prospects that are “forward-looking statements” under the Private Securities Litigation Reform Act of 1995. These statements are based on current expectations and projections that involve a number of risks and uncertainties. There can be no assurance that future results will be achieved, and actual results could differ materially from forecasts and estimates. These are important factors that could cause actual results to differ materially from forecasts and estimates. Some of the factors that could significantly impact the forward-looking statements in this press release include the risk of significant expenses in connection with potential contingent tax liability associated with Nera’s prior operations or facilities, risks associated with unexpected changes in customer demand, risks associated with increased working capital needs, and other risks and uncertainties, which are discussed in greater detail in Ceragon’s Annual Report on Form 20-F and Ceragon’s other filings with the Securities and Exchange Commission. 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617 S.W.2d 36 (1981)
Mrs. Ethel RATLIFF, Movant,
v.
The FISCAL COURT OF CALDWELL COUNTY, KENTUCKY, etc., et al., Respondents.
Supreme Court of Kentucky.
May 26, 1981.
*37 J. Granville Clark, Russellville, for movant.
William G. McCaslin, Princeton, for respondents.
STEPHENS, Justice.
The principal issue before us is whether Kentucky's eminent domain act (KRS 416.540-416.680) denies an appeal to the condemnee of the condemnor's right to take the property.
The City of Princeton and the Fiscal Court of Caldwell County, on behalf of the Electric Plant Board, filed an action in December of 1976 in the Caldwell Circuit Court to condemn certain land of the movant located within the city. The purpose of the taking was to expand the utility's existing electrical transmission system. Following the filing of the action, the condemnee placed in issue the condemnor's right to take the property. Voluminous proof was taken by both parties, including engineers and other expert witnesses.
The trial judge ruled that the proposed taking was for a public purpose and was proper within the meaning of the eminent domain statute. Based on the report of the commissioner, he entered an interlocutory judgment granting the condemnor the immediate right of possession and awarding $25,000 in damages. The condemnor took possession of the land and began construction of the transmission line. A jury trial, addressing solely the issue of damages, was held nearly 20 months later, and final judgment was entered by the trial judge. In that final judgment, the issue of the right to take was not addressed.
The condemnee attempted to appeal both from the interlocutory judgment with its disposition of the right to take and from the final judgment. The Court of Appeals affirmed the damage award and ruled that under the provisions of KRS, Chapter 416, there is no "indication, express or implied, that a right to appeal to the taking itself exists." The only question appealable was the question of damages. The opinion was based on the court's view of the statutory scheme and on its view of the nearly absolute right of the Commonwealth (or its designee) to condemn property through the process of eminent domain.
We granted discretionary review because we disagree with the Court of Appeals' interpretation of the eminent domain statute. In the past, we have taken the position that, under certain specific condemnation statutes, there is no appeal by the *38 condemnee on the question of the condemnor's right to take. See for example, Cartmell v. Urban Renewal and Community Development Agency of the City of Maysville, Ky., 432 S.W.2d 445 (1968). Both the movant and respondents agree that the statutory scheme does not permit an appeal by the condemnee of the condemnor's right to take. This being true, movant claims that the statute is unconstitutional because it violates the mandate of Sec. 115 of the Kentucky Constitution which guarantees at least one appeal. Appellee denies that Sec. 115 affects the statute. We are in the rather unique position of disagreeing with both parties' interpretation of this statute.
In 1976, the Kentucky General Assembly enacted a new condemnation statute, the Kentucky eminent domain act. KRS 416.540-416.680. The purpose of the act was to set up a new and uniform condemnation procedure. A condemnor is defined as "any person, corporation or entity, including the Commonwealth of Kentucky, its agencies and departments, county municipality and taxing district authorized and empowered by law to exercise the right of eminent domain." KRS 416.540(2). The legislature also required all other condemnors to follow the procedure set out in the new act. See KRS 416.010 et seq.
The statute was enacted shortly after the voters of Kentucky approved the new Judicial Article. That article, which became effective January 1, 1976, includes Section 115, which is as follows:
Section 115. Right of Appeal Procedure In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court. . . . (emphasis added).
This specific, constitutional mandate, effectively extending the rights of litigants, must be interpreted in accordance with its plain meaning. Stephens v. Goodenough, Ky., 560 S.W.2d 556 (1977). In accordance with the theory of statutory construction, we believe that the general assembly was cognizant of the constitutional article when it enacted the new eminent domain act. Cook v. Ward, Ky., 381 S.W.2d 168 (1964). We are, when considering the constitutionality of a statute, obliged to give it, if possible, the interpretation which upholds its constitutional validity. George v. Scent, Ky., 346 S.W.2d 784 (1961).
We have no difficulty in concluding that the statute does indeed provide an appeal when a condemnee is dissatisfied with the trial court's ruling on the condemnor's right to take the property. This provision for an appeal becomes evident once the condemnation procedure is carefully examined.
A petition seeking condemnation is required to contain those allegations necessary to show that the petitioner is entitled to exercise the right of eminent domain. KRS 416.570(1). The condemnee's answer is "confined solely to the question of the right of the petitioner to condemn the property.. . ." KRS 416.600 (emphasis added). The statute directs the condemnee to raise immediately (if at all) the issues of the right to take. If no such answer is filed, the trial court must enter an interlocutory judgment which authorizes the taking and grants the right of immediate possession upon payment of the commissioners' award. KRS 416.610(2). Any exceptions to such interlocutory judgment are to be confined to the amount of the award. KRS 416.620(1).
If, however, the answer referred to in KRS 416.600 has been filed (putting in issue the right to take), the trial court must immediately determine the matter. Upon deciding that such right does exist in the condemnor, an interlocutory judgment is to be entered. Should the trial court rule that the condemnor does not have the right to condemn, the trial judge is directed to enter a final judgment. KRS 416.610(4). It can be seen that if the trial court rules in favor of the condemnors right to take, an "interlocutory" judgment is entered. If, however, the condemnor is adjudged not to have the right to take, a final judgment is made.
Within 30 days from the entry of the interlocutory judgment which, under KRS 416.620(1), has validated the right to take, a statement of exceptions may be filed. The *39 losing condemnee cannot, in those exceptions, challenge the provision of the judgment which authorizes the taking. KRS 416.620(1). The statute then permits an appeal from the final judgment of the circuit court. KRS 416.620(2). This refers to KRS 416.610(4), which directs the entry of a final judgment denying the right of the condemnor to take, supra. The statute says nothing expressly of a losing condemnee's right to appeal.
The statute provides, however, that upon 30 days from the entry of the interlocutory judgment (if no exceptions were filed) or upon final determination of the exceptions, the circuit court "shall enter such final judgment as may be appropriate." KRS 416.620(6).
It can readily be seen that there is no specific, unequivocal statutory provision that permits an immediate appeal from the trial court's ruling that a condemnor has the right to take, thus resulting in the right of immediate entry. KRS 416.610(4), supra. The trial court is, at that juncture, directed to enter an "interlocutory" judgment.
The condemnor can proceed to achieve whatever construction and/or destruction that was the purpose of the petition for condemnation. A possible remedy to prevent the immediate taking is set forth in Stillpass v. Kenton County Airport Board, Inc., Ky., 403 S.W.2d 46 (1966). This may or may not be an adequate remedy as far as the condemnee is concerned. It certainly is not, however, as protective to the right of a condemnee as an immediate appeal, which preserves the status quo, and which, we believe, is demanded by Ky. Const., Sec. 115, the provisions of which were known by the 1976 General Assembly. While the word "interlocutory" normally implies a non-appealable order, such an order (no matter what it is called) can be appealed if a matter is finally litigated by the judgment, or if it operates to divest some right in such manner as to put it out of the power of the court to place the parties in their original condition. Commonwealth et al. ex rel. Reeves v. Unknown Heirs of Brown, Ky., 249 S.W.2d 52 (1952). See also, CR 54.02.
We believe that if the right of immediate possession (and all that such implies) is exercised, in many instances, even if an appellate court later reverses the trial court's determination of the condemnor's right to take, that the condemnee cannot be returned to his same position. For example, see the Cartmell cases, supra. Moreover, if the mandated appeal is made after the taking, the condemnor could easily suffer by a condemnee's action in "laying under the log" and allowing excessive damages to accrue, prior to appeal.
The balancing of the equities of condemnor and the private citizen whose property can be taken is not an easy one. Certainly, the new eminent domain statute is, putting it kindly, inartfully drawn. However, prominent in the foreground, and tipping the scales, is the mandated appeal set out in Ky.Const., Sec. 115, supra. We believe that the provisions of KRS 416.610(4) referring to an interlocutory judgment because of the above reason, allows an immediate, expedited appeal, by the condemnee of the question of the condemnor's right to take. There is no doubt but that a losing condemnor has this right also.
In the instant case, the condemnee made no effort to use the procedure set out in Stillpass, and apparently made no effort to have the final judgment of the trial court address the right of the condemnor to take her property. However, we have reviewed the testimony before the trial court concerning the right to take and, although there is some conflict, it is very clear that the selection of the route of the transmission lines and the purpose for which they were built is for a public use and is therefore proper and well within the power of the condemnor. Ky.Const., Sec. 242; KRS 416.540 et seq.
The decision of the Court of Appeals with respect to movant's right to appeal the right to take is reversed, but the trial court's decision on the merits is affirmed.
All concur, except CLAYTON, J., who did not sit.
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Citation Nr: 0519129
Decision Date: 07/14/05 Archive Date: 07/20/05
DOCKET NO. 00-15 288 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to service connection for residuals of a neck
trauma.
3. Entitlement to service connection for a low back
disorder.
4. Entitlement to service connection for peripheral
neuropathy.
5. Entitlement to service connection for angina.
ATTORNEY FOR THE BOARD
J.W. Kim, Associate Counsel
INTRODUCTION
The appellant served on active duty from June 1956 to
September 1957.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Manchester, New
Hampshire.
In a February 2000 rating decision, the RO, in essence,
denied service for post-traumatic stress disorder (PTSD), a
low back disorder, peripheral neuropathy, and angina. In
March 2000, the appellant filed a notice of disagreement
(NOD) with the denial of service connection for PTSD. The RO
issued the appellant a Statement of the Case (SOC), and the
appellant perfected his appeal by timely filing a VA Form 9
in July 2000.
In an April 20, 2002, rating decision, the RO denied service
connection for residuals of neck trauma. In an April 22,
2002, rating decision, the RO, in essence, denied service for
PTSD, a low back disorder, peripheral neuropathy, and angina.
The appellant timely perfected an appeal of these
determinations to the Board.
In November 2003, the Board remanded the appeal for further
development. The Board notes that the issue of service
connection for angina was not a part of that remand; however,
the Board observes that the issue is still a part of the
current appeal. In this regard, the Board notes that
additional pertinent evidence has been added to the record
since the issuance of the July 2002 Supplemental Statement of
the Case (SSOC). The Board observes, however, that the
additional evidence essentially duplicates evidence that was
previously of record and discussed in the June 2002 SOC and
July 2002 SSOC. Thus, a remand for the issuance of a SSOC to
address the additional evidence is not warranted. 38 C.F.R.
§ 19.37(a) (2004).
In light of the above, the issues are as listed on the title
page.
FINDINGS OF FACT
1. The appellant does not currently have PTSD.
2. The residuals of a neck trauma did not originate in
service or within one year thereafter and are not related to
any incident of service.
3. A low back disorder did not originate in service or
within one year thereafter and is not related to any incident
of service.
4. Peripheral neuropathy did not originate in service or
within one year thereafter and is not related to any incident
of service.
5. Angina did not originate in service or within one year
thereafter and is not related to any incident of service.
CONCLUSIONS OF LAW
1. Post-traumatic stress disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.304(f) (2004).
2. The residuals of a neck trauma were not incurred in or
aggravated by service and may not be presumed to have been
incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112,
1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2004).
3. A low back disorder was not incurred in or aggravated by
service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
4. Peripheral neuropathy was not incurred in or aggravated
by service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
5. Angina was not incurred in or aggravated by service and
may not be presumed to have been incurred or aggravated
therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Board observes that the Veterans Claims Assistance Act of
2000 redefined VA's duty to assist a veteran in the
development of a claim. Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000) [hereinafter VCAA]. This law and its
implementing regulations essentially eliminate the
requirement that a claimant submit evidence of a well-
grounded claim, and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a)
(West 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2004).
The VCAA and its implementing regulations also include new
notification provisions. Specifically, they require VA to
notify the claimant and the claimant's representative, if
any, of any information and medical or lay evidence, not
previously provided to the Secretary, that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004).
In this case, the record reflects that VA has made reasonable
efforts to notify the appellant of the information and
medical and lay evidence necessary to substantiate his
claims. In April and July 2001 letters, VA informed the
appellant of the information and evidence necessary to
substantiate his claims for service connection. In addition,
VA provided the appellant with a copy of the appealed
February 2000 and both April 2002 rating decisions, March
2000 and June 2002 SOCs, and numerous SSOCs. These documents
provided notice of the law and governing regulations, as well
as the reasons for the determinations made regarding his
claims. By way of these documents, the appellant was also
specifically informed of the information and evidence
previously provided to VA or obtained by VA on his behalf.
In addition, the record reflects that VA has made reasonable
efforts to inform the appellant of the evidence he was
responsible for submitting and what evidence VA would obtain
on his behalf. Specifically, in the April and July 2001
letters, VA informed the appellant that VA would assist in
obtaining relevant records and asked him to identify sources
of any relevant records, including medical and employment
records, so that VA could request those records on his
behalf. VA also asked the appellant to inform VA of any
additional information or evidence relevant to his claims.
Lastly, VA informed the appellant that it is his
responsibility to ensure that VA receives all the evidence
necessary to support his claims. Thus, the Board finds that
the appellant was informed of the evidence he was responsible
for submitting and the evidence VA would obtain on his
behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Board also finds that the appellant was informed that he
could submit any records in his possession relevant to his
claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Furthermore, the record reflects that VA has made reasonable
efforts to obtain relevant records adequately identified by
the appellant. Specifically, the information and evidence
that have been associated with the claims file consist of the
appellant's limited service records, post-service VA and non-
VA medical records, and statements made by and on behalf of
the appellant in support of his claims. The Board observes
that all available private medical records have been obtained
and associated with the record. Additionally, in light of
the Board's finding that the appellant does not currently
have PTSD, the Board concludes that VA will discontinue
providing assistance in obtaining evidence because the
evidence obtained indicates that there is no reasonable
possibility that further assistance would substantiate this
claim. See 38 C.F.R. § 3.159(d).
The Board notes that the appellant's service medical records
are not of record. In this regard, the Board observes that,
in cases where service medical records are lost or have been
destroyed, VA has a heightened duty to assist the appellant
in developing his claim. O'Hare v. Derwinski, 1 Vet. App.
365 (1991). The record reflects that the RO made numerous
requests to the National Personnel Records Center (NPRC) for
the appellant's service medical records. The appellant was
notified of the unsuccessful attempts and provided him with
an opportunity to submit any service medical records in his
possession. NPRC has responded that there are no service
medical records for the appellant. Thus, the Board observes
that the appellant's service medical records are not
available.
In addition, the Board notes the appellant's contentions that
maintenance records for an ejection seat should be obtained,
as they will show that it malfunctioned during the time
period in question. The Board observes, however, that even
if such records exist and show that there was a malfunction,
the evidence would not establish that he was actually
injured.
All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (2004) (describing harmless error). Given
that the February 2000 rating decision predated the VCAA, the
Board finds that any defect in the timing of the provision of
notice was properly cured when the RO furnished the appellant
the April 2001 letter, along with the above-mentioned
correspondences, and subsequently readjudicated his claim on
April 22, 2002. Under the circumstances in this case, the
Board finds that the appellant has received the notice and
assistance contemplated by law and adjudication of his claims
poses no risk of prejudice to the appellant. See Bernard,
supra.
II. Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2004).
Service connection may also be awarded for a chronic
condition when: (1) a chronic disease manifests itself and is
identified as such in service (or within the presumptive
period under 38 C.F.R. § 3.307 (2004)) and the veteran
presently has the same condition; or (2) a chronic disease
manifests itself during service (or within the presumptive
period) but is not identified until later and there is a
showing of continuity of symptomatology after discharge. 38
C.F.R. § 3.303(b) (2004); see 38 C.F.R. § 3.309 (2004).
If arthritis or angina manifested to a degree of 10 percent
within one year after separation from service, the disorder
may be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2004).
Post-Traumatic Stress Disorder
The appellant contends, in essence, that he has PTSD due to a
training accident, during which an ejection seat
malfunctioned, and he lost consciousness and injured his neck
and low back.
The Board observes that the criteria for evaluating claims
for service connection for PTSD were amended in June 1999,
with the effective date made retroactive to March 7, 1997.
Prior to June 18, 1999, to establish service connection for
PTSD, the record must include a clear diagnosis of the
condition; credible supporting evidence that the claimed in-
service stressor actually occurred; and a link, established
by medical evidence, between current symptomatology and the
claimed in-service stressor. 38 C.F.R. § 3.304(f) (effective
prior to June 18, 1999).
Effective June 18, 1999, service connection for PTSD must
include medical evidence diagnosing the condition in
accordance with 38 C.F.R. § 4.125(a); a link, established by
medical evidence between the current symptoms and an in-
service stressor; and credible supporting evidence that the
claimed stressor occurred. 38 C.F.R. § 3.304(f) (effective
from June 18, 1999). The most notable change is that a
"clear" diagnosis is no longer required. However, the
requirement of credible supporting evidence of a claimed
stressor did not change.
If the evidence establishes that the appellant engaged in
combat with the enemy, and the claimed stressor is related to
that combat, the appellant's lay testimony alone may
establish the occurrence of the claimed in-service stressor
in the absence of clear and convincing evidence to the
contrary, provided that the claimed in-service stressor is
consistent with the circumstances, conditions, or hardships
of the appellant's service. Id.; see Cohen v. Brown, 10 Vet.
App. 128 (1997).
Based on the appellant's military records, the Board finds
that he did not engage in combat. Indeed, the appellant does
not contend that he engaged in combat. Additionally, the
Board observes that the appellant's service medical records
are unfortunately unavailable and thus do not help to
corroborate the claimed stressor. Thus, the appellant must
provide credible supporting evidence that the claimed in-
service stressor occurred. The Board acknowledges that
additional verifying evidence may be obtained from sources
other than the appellant's service records. 38 C.F.R.
§ 3.304(f); see Moreau v. Brown, 9 Vet. App. 389, 395 (1996).
After a careful review, the Board notes that the record does
not contain a diagnosis of PTSD. Thus, the medical evidence
fails to show that the appellant currently has PTSD. In this
regard, the Board observes that, in the absence of proof of a
present disability, there can be no valid claim for service
connection. See 38 U.S.C.A. § 1131; Degmetich v. Brown, 104
F.3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353
(Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223
(1992).
The Board acknowledges the appellant's contentions that he
has PTSD that is related to service. The Board observes,
however, that he, as a layperson, is not competent to provide
probative medical evidence on a matter such as the diagnosis
or etiology of a claimed medical condition. See Jones v.
Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2
Vet. App. 492 (1992).
Given the foregoing, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for post-traumatic stress disorder. Thus,
the benefit-of-the-doubt doctrine is inapplicable and the
claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Residuals of a Neck Trauma
The appellant contends, in essence, that he has residuals of
a neck trauma due to an in-service training accident, during
which an ejection seat malfunctioned and he injured his neck.
The Board observes that the appellant's service medical
records are unfortunately unavailable. As such, the Board is
unable to verify that the appellant was treated for an in-
service injury to his neck. Regardless, in an April 1999
statement the appellant stated that, although he had some
pain in the neck and lower back, he did not think it was
serious and did not see the flight surgeon. Similarly, on
his May 1999 application for VA benefits, the appellant
stated that he believes he was seen by the flight surgeon but
does not remember. In this regard, the Board observes that
the service medical records may not even be probative in this
case. Furthermore, the appellant's statement indicates that,
even if he had suffered the alleged in-service injury, the
injury was likely acute in nature and not severe.
The appellant has not otherwise provided credible evidence
that he suffered an injury to his neck in service. In this
regard, the Board observes that [redacted], the appellant's
roommate in service, stated in a letter to the appellant that
he does not remember anything about ejection seat training.
Mr. [redacted] adds that the appellant must have broken the
ejection seat and thus he and the others did not have to
complete the training. He then states that those days were a
blur and apologizes for not being able to recall the event.
The Board notes that Mr. [redacted] seems to acknowledge that
an ejection seat malfunctioned while the appellant was in it;
however, the Board points out that Mr. [redacted] states twice
that he has no recollection of the event. Thus, the Board
finds Mr. [redacted] statement to be lacking in probative
value. Furthermore, he does not acknowledge that the
appellant suffered any injuries due to a malfunctioning
ejection seat.
The Board notes that the record contains a September 2000
letter from R. Witkin, MD, to the appellant that essentially
links the appellant's current neck disability to an ejection
seat accident in service. In this regard, the Board observes
that the United States Court of Appeals for Veterans Claims
has held on a number of occasions that a medical opinion
premised upon an unsubstantiated account is of no probative
value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993);
Moreau, supra; Swann v. Brown, 5 Vet. App. 229, 233 (1993).
The Board also notes that a January 2001 VA treatment note
reflects that the appellant injured his head and neck in 1957
in the Air Force when he suffered a concussion. However, the
Board observes that this statement appears to merely reflect
a recordation of historical information relayed by the
appellant, rather than indicating a medical opinion relating
his current residuals of a neck trauma to service. In this
regard, the Board observes that a bare transcription of lay
history, unenhanced by additional comment by the transcriber,
does not become competent medical evidence merely because the
transcriber is a health care professional. See LeShore v.
Brown, 8 Vet. App. 406, 409 (1995). Moreover, as discussed
above, a medical opinion premised upon an unsubstantiated
account is of no probative value. See Reonal, supra; Moreau,
supra; Swann, supra.
Furthermore, the record fails to show that the appellant's
residuals of a neck trauma manifested to a compensable degree
during the one-year presumptive period following discharge.
38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). In this regard,
the appellant has not submitted any medical records dated
prior to 1992.
The Board acknowledges the appellant's contentions that he
incurred an in-service injury to his neck and that his
residuals of a neck trauma are related to service. The Board
observes, however, that he, as a layperson, is not competent
to provide probative medical evidence on a matter such as the
diagnosis or etiology of a claimed medical condition. See
Jones, supra; Espiritu, supra.
In sum, without an in-service incurrence of injury, service
connection for the residuals of a neck trauma is not
warranted. Thus, the Board concludes that the preponderance
of the evidence is against the claim for service connection
for residuals of a neck trauma. Thus, the benefit-of-the-
doubt doctrine is inapplicable and the claim must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert, supra.
Low Back Disorder
The appellant contends, in essence, that he has a low back
disorder due to an in-service training accident, during which
an ejection seat malfunctioned and he injured his low back.
As discussed above, the appellant's service medical records
are unfortunately unavailable, and the Board is unable to
verify that the appellant was treated for an in-service
injury to his low back. Furthermore, as discussed above, the
appellant's statement that he does not remember whether he
was treated in service indicates that the alleged injury was
likely acute in nature and not severe.
The Board notes that the appellant has not provided credible
evidence of an in-service injury to his low back. In this
regard, the Board again notes that Mr. [redacted] statement
lacks probative value and fails to acknowledge that the
appellant suffered any injuries due to a malfunctioning
ejection seat.
The Board again notes Dr. Witkin's September 2000 letter to
the appellant linking the appellant's current low back
disability to an ejection seat accident in service and
observes that it is of no probative value. See Reonal,
supra; Moreau, supra; Swann, supra. Likewise, the Board
notes that the January 2001 VA treatment note indicating that
the appellant incurred an injury in 1957 in the Air Force is
of no probative value. See Reonal, supra; Moreau, supra;
Swann, supra. Without an in-service incurrence of injury,
service connection is not warranted.
Furthermore, the record fails to show that the appellant's
low back disorder manifested to a compensable degree during
the one-year presumptive period following discharge. 38
C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). In this regard, the
appellant has not submitted any medical records dated prior
to 1992.
The Board acknowledges the appellant's contention that he
incurred an in-service injury to his low back and that his
low back disorder is related to service. The Board observes,
however, that he, as a layperson, is not competent to provide
probative medical evidence on a matter such as the diagnosis
or etiology of a claimed medical condition. See Jones,
supra; Espiritu, supra.
Given the foregoing, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for a low back disorder. Thus, the
benefit-of-the-doubt doctrine is inapplicable and the claim
must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, supra.
Peripheral Neuropathy
The appellant contends, in essence, that he has peripheral
neuropathy due to an in-service training accident, during
which an ejection seat malfunctioned and he injured his neck
and low back. On his May 1999 application for VA benefits,
the appellant stated that his peripheral neuropathy began in
June 1993.
As above, the appellant's service medical records are
unfortunately unavailable, and the Board is unable to verify
that the appellant was treated for an in-service injury to
his neck or low back. Furthermore, as above, the record
contains no competent or credible evidence that the veteran
incurred an injury in service. Without an in-service
incurrence of injury, service connection is not warranted.
Furthermore, the record fails to show that the appellant's
peripheral neuropathy manifested to a compensable degree
during the one-year presumptive period following discharge.
38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). In this regard,
the appellant has not submitted any medical records dated
prior to 1992. Moreover, the appellant dated the onset of
his peripheral neuropathy to 1993, which is over 35 years
after separation from service.
The Board acknowledges the appellant's contention that he
incurred an in-service injury to his neck and low back and
that his peripheral neuropathy is related to that in-service
injury. The Board observes, however, that he, as a
layperson, is not competent to provide probative medical
evidence on a matter such as the diagnosis or etiology of a
claimed medical condition. See Jones, supra; Espiritu,
supra.
Given the foregoing, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for peripheral neuropathy. Thus, the
benefit-of-the-doubt doctrine is inapplicable and the claim
must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, supra.
Angina
The appellant contends, in essence, that he has angina that
was incurred in or aggravated by in service. On his May 1999
application for VA benefits, the appellant stated that his
angina began in 1983.
Initially, the Board again notes that the appellant's service
medical records are unfortunately unavailable, and thus the
Board is unable to verify that the appellant complained of or
was treated for angina in service.
After a careful review of the record, the Board observes that
the appellant has not submitted competent medical evidence
linking his angina to service. Moreover, the appellant dated
the onset of his angina to 1983, which is over 30 years after
separation from discharge. In addition, the appellant has
not submitted any medical records dated prior to 1992. In
this regard, the record fails to show that the appellant's
angina manifested to a compensable degree during the one-year
presumptive period following discharge. 38 C.F.R. §§ 3.303,
3.307(a)(3), 3.309(a).
The Board acknowledges the appellant's contention that his
angina is related to service. The Board observes, however,
that he, as a layperson, is not competent to provide
probative medical evidence on a matter such as the diagnosis
or etiology of a claimed medical condition. See Jones,
supra; Espiritu, supra.
Given the foregoing, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for angina. Thus, the benefit-of-the-
doubt doctrine is inapplicable and the claim must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert, supra.
ORDER
Service connection for post-traumatic stress disorder is
denied.
Service connection for the residuals of a neck trauma is
denied.
Service connection for a low back disorder is denied.
Service connection for peripheral neuropathy is denied.
Service connection for angina is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
|
EXHIBIT 10.2
RESTRICTIVE COVENANT AGREEMENT
This Agreement is made and delivered by me, Robert Giuliano (“me” or “I”), as an
employee of the Bryce Rx Laboratories, Inc., (“Company”). This Agreement is
effective on the date I sign it. I understand that this Agreement applies
throughout my employment with the Company and that certain provisions also apply
after my employment with the Company ends. I execute and deliver this Agreement
to the Company (i) as part of the transaction and in consideration of all the
outstanding shares of stock of the Company (all of which were owned by me) being
acquired to Sunpeaks Ventures, Inc., (ii) as part of my continuing employment by
the Company, and (iii) as a requirement of Sunpeaks Ventures, Inc. to complete
the acquisition of all the outstanding shares of stock of the Company (all of
which were owned by me).
I understand that, in the course of my employment by the Company, I will have
access to and make use of information and materials of the Company that are
confidential information and/or trade secrets that are the property of the
Company.
I agree that the Company has a vital interest in maintaining the confidentiality
of its confidential information and trade secrets, as well as rights to
inventions and trade secrets, since doing so allows the Company to compete
fairly in the marketplace and to enhance the value of the Company to
shareholders and help provide job security for its employees.
I agree that the Company’s ability to compete fairly in the marketplace will be
protected by reasonable limitations on my ability to solicit the employees or
customers of the Company and to compete with the Company.
I understand that the I will benefit from acquisition of the stock of the
Company.
In consideration of the above and other good and valuable consideration
described in this Agreement, I agree to the following terms and conditions:
TERMS AND CONDITIONS
1.
Definitions. The following definitions apply to this Agreement:
(a)
“Company” means Bryce Rx Laboratories, Inc., a New York corporation
(b)
“Confidential Information” means trade secrets and all other confidential,
proprietary, secret and/or sensitive information of the Company, whether or not
explicitly labeled or marked as such, including, but not limited to information
conceived, originated, discovered, or developed in whole or in part by me during
my employment, not generally known in the relevant trade or industry, about the
Company’s business, products, processes, and services, and information relating
to research, development, inventions, formulas, flow charts, source and object
codes, products and services under development, pricing and pricing strategies,
marketing and selling strategies, servicing, purchasing, accounting,
engineering, cost and costing strategies, sources of supply, customer lists,
customer requirements, business methods or practices, and training and training
programs.
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(c)
“Inventions” means discoveries, concepts, formulas, and ideas, whether or not
patentable, copyrightable, or protectable as a mask work, including but not
limited to processes, methods, formulas, and techniques, as well as improvements
thereof or know-how related thereto, relating to any current or prospective
products, product ideas, and/or activities of the Company, with which activities
I am acquainted as a consequence of my employment with the Company.
(d)
“Conflicting Product” means any product (excluding Scarguard), software,
process, or service of any person or organization other than the Company, in
existence or under development, which substantially resembles and competes with
a product, process, software, Invention, Work, or service upon or with which I
work during my employment by the Company or about which I acquire (at any time)
Confidential Information.
(e)
“Conflicting Organization” means any person (including myself) or organization
(or any person or organization controlled by, controlling, or under common
control with such person or organization) which is engaged in, or is about to
become engaged in, research on or development, production, marketing, or selling
of, a Conflicting Product, except that Red Rock Labs and Innovative Remedies,
LLC will not be treated as Conflicting Organization to the extent of my existing
level of involvement with those entities on the date hereof limited to the
Products set forth in Schedule A hereof and provided that my relationship with
those entities continues at the level no greater than my level of involvement on
the date hereof.
(f)
“Works” means individually and collectively work product, writings, reports,
inventions, formula, research, studies, improvements, discoveries, ideas, text,
graphics, procedures, designs, and all associated intellectual property and
other intellectual property or similar rights, whether or not patentable or
registrable under copyright or trademark laws or protectable as trade secrets
under state, federal or common law, relating to any current or prospective
activities of the Company, with which I am acquainted as a consequence of my
employment with the Company, upon or with which I work during my employment by
the Company, or about which I acquire (at any time) Confidential Information.
2.
Confidentiality.
(a)
The Company’s ability to survive and compete successfully is based largely upon
Confidential Information that it develops, possesses, and uses. I acknowledge
that all Confidential Information is and will at all times remain the property
of the Company. I agree that, except as required in my duties to the Company
(including, but not limited to, working with and/or providing service to
customers and other employees of the Company who have a need to know, and
fulfilling my obligations to perform the duties that have been assigned to me by
the Company), I will never, directly, indirectly, or otherwise use, disseminate,
disclose, lecture upon, or publish articles concerning Confidential Information
without having first obtained written permission from the Company to do so. I
will safeguard and maintain on Company premises, to the extent possible in the
performance of my work for the Company, all documents and things that contain or
embody Confidential Information. I understand that any failure to mark or
otherwise identify any Confidential Information as confidential, proprietary, or
protected information will not affect its status as part of the Confidential
Information under and subject to the terms of this Agreement. If I am not sure
whether certain information is Confidential Information, I agree to treat the
information as Confidential Information unless I have been inform in writing to
the contrary by an executive officer of the Company. If there is any dispute
relating to my unauthorized use or disclosure of Confidential Information, I
agree that I will be required to demonstrate by credible evidence that the
information was not Confidential Information or that its disclosure or use was
authorized.
Page 2 of 8
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(b)
I further acknowledge and agree that any information and materials received by
the Company from third parties (including, without limitation, the Company's
business partners) in confidence (or subject to non-disclosure or similar
covenants) will be deemed to be and will be Confidential Information for
purposes of this Agreement.
(c)
I will not disclose to the Company, use in its business, or cause the Company to
use, any information or material which is confidential to any third party
without proper authorization of such third party. I will not incorporate into
any product used or sold by the Company any patented or copyrighted materials of
any third party unless such incorporation by the Company has been authorized by
the owner of such rights or its agent.
3. Disclosure and Assignment of Inventions. With respect to
Inventions made or conceived by me during my employment with the Company whether
or not with the use of Company facilities, materials, or personnel, either
solely or jointly with another or others, during (i) my employment with the
Company, or (ii) within three (3) years after termination of my employment,
without royalty or other consideration to me therefor, I will:
(a)
inform the Company promptly and fully of each Invention.
Page 3 of 8
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(b)
inform the Company in writing upon completion of any and all studies or research
projects undertaken on the Company’s behalf, whether or not a given project has,
in my opinion, resulted in an Invention.
(c)
apply, at the Company’s request and expense, for the U.S. and Foreign letters
patent or copyright registration as the Company may desire.
(d)
assign to the Company all of my rights to such Inventions, rights to
applications for U.S. and/or foreign letters patent and copyrights, and rights
to U.S. and/or foreign letters patent and copyrighted granted upon or issued in
respect of such Inventions.
(e)
acknowledge and deliver promptly to the Company (without charge to the Company
but at its expense) all written instruments and take all actions, such as giving
testimony in support of my inventorship or original authorship, as may be
necessary in the opinion of the Company to obtain and maintain U.S. and/or
foreign letters patent and copyright registrations and to vest the entire right
and title thereunto in the Company.
(f)
not disclose any Invention to any person outside the Company without the
Company’s written permission.
4.
Rights in Other Matters. I agree that:
(a)
Subject to a reasonable royalty agreement or other license agreement to be
mutually agreed upon between the Company and me on a product by product basis, I
will grant to the Company the right to use in its business, and to use, make,
and sell products, processes, and/or services derived from any inventions,
discoveries, concepts, and ideas, whether or not patentable or copyrightable,
including but not limited to processes, methods, formulas, and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions but which are conceived or made by me with or without
the use or assistance of the Company’s facilities, materials, or personnel.
(b)
All Works created by me, both past and future, during my employment by the
Company will be and remain exclusively the property of the Company. Each such
Work is a “work made for hire” and the Company may file applications to register
copyright as author thereof. I assign to the Company all rights, including all
copyright rights throughout the world, including all renewals and extensions
thereof, in and to all Works created by me, both past and future, during my
employment by the Company. I will take whatever steps and do whatever acts the
Company requests, including but not limited to, placement of the Company’s
proper copyright notice on such Works to secure or aid in securing copyright
protection and will assist the Company or its nominees in filing applications to
register claims of copyright in such Works. I will not reproduce, distribute,
display publicly, or perform publicly, alone or in combination with any data
processing or network system, any Works of the Company without the written
permission of the Company.
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5. Return of Documents. Upon termination of my employment with the
Company, whether terminated with or without cause, I will return to or leave
with the Company all documents, records, notebooks, and other repositories of or
containing Confidential Information or material associated with or related to
Inventions, including each original and all copies thereof, as well as all
originals and all copies of Works, or other tangible Company property, whether
prepared by me or others, then in my possession or under my control.
6. Nonassertion. I will not assert any rights under any inventions,
discoveries, concepts, or ideas or improvements thereof, or know-how related
thereto, as having been made or acquired by me prior to my being employed by the
Company, or since the date of my employment and not otherwise covered by the
terms of this Agreement, unless, prior to executing this Agreement, I have
disclosed in writing the existence of any of my rights in any inventions,
discoveries, or concepts.
7. Nonsolicitation. Independent of any obligations I have under
Paragraph 9, during my employment and for a period of three (3) years after
termination of my employment with the Company, whether terminated with or
without cause, I will not, directly or indirectly, (i) divert or attempt to
divert any person, concern, or entity which is furnished services or products by
the Company from doing business with the Company or otherwise to change its
relationship with the Company; or (ii) induce or attempt to induce any customer
or supplier of the Company to cease being a customer or supplier of the Company
or otherwise to limit its relationship with the Company; or (iii) render
services, directly or indirectly, to any Conflicting Organization in connection
with the research, development, manufacture, testing, sale, merchandising, or
promotion of a Conflicting Product to any customer or supplier (or prospective
customer or supplier) of the Company with whom I had a direct or indirect
contact, or about whom I may have acquired any knowledge, during my employment
with the Company.
8. Solicitation of Employees. I agree that, during my employment with
the Company and for a period of three (3) years following termination of my
employment with the Company, whether terminated with or without cause, I will
not, directly or indirectly, solicit or induce, or attempt to solicit or induce,
any employee of the Company to leave the Company to associate in any manner with
a Conflicting Organization, or hire or solicit the services of any employee of
the Company to associate in any manner with a Conflicting Organization.
9. Restrictions on Competition. Independent of any obligations that I
have under Paragraph 7, during my employment with the Company and for a period
of three (3) years after termination of my employment with the Company, whether
terminated with or without cause, I will neither render services, directly or
indirectly, whether as principal or as agent, officer, director, employee,
consultant, shareholder, or otherwise, alone or in association with any other
person, corporation, or entity, to or for any Conflicting Organization within
the United States which would reasonably and in good faith require me to divulge
or disclose any Confidential Information, nor will I render services, directly
or indirectly, whether as principal or as agent, officer, director, employee,
consultant, shareholder, or otherwise, alone or in association with any other
person, corporation, or entity, to research, develop, test, manufacture or sell
a Conflicting Product for an entity that would be defined as a Conflicting
Organization. I recognize that the Company conducts business within the
geographic area set forth herein, and therefore, I agree that this restriction
is reasonable and necessary to protect the Company’s Confidential Information.
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10. Limitation. Notwithstanding anything in this Agreement to the
contrary, for so long as Scarguard (Red Rock Labs) and Innovative Remedies, LLC
are not treated as Conflicting Products or Organizations, I will not be
restricted from developing new cosmeceutical and or prescription status
products, provided that the Company and/or Sunpeaks Ventures, Inc. is given the
right of first refusal for any and all such developments. In addition,
notwithstanding anything in this Agreement to the contrary, the pharmaceuticals
and over-the-counter products set forth on Schedule A to this Agreement will be
excluded for the application of this Agreement and I may be involved in the
research and development of those products set forth on Schedule A.
11. Assignability. All my obligations under this Agreement are binding
upon my heirs, assigns, and legal representatives and all of the obligations of
the Company will be binding upon its successors and assigns. The Company will
have the right to assign and transfer this Agreement to a successor to all or
substantially all of the business or assets of the Company or any division or
part of the Company with which I am, have been or will be employed, or to which
I have provided services during my employment with the Company.
12. Obligations Survive Termination of Employment. Termination of my
employment whether voluntary or involuntary, whether with or without cause, will
not impair or relieve me of my obligations hereunder.
13. Governing Law. This Agreement will be construed in accordance with
and governed for all purposes by the law of the State of Maryland, without
regard to the conflict of law or choice of law provisions thereof.
14. Severability. I agree that the restrictions and covenants in this
Agreement are reasonable and enforceable. However, if any one or more of the
provisions contained in this Agreement, for any reason under the law as it will
then be construed, is held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable in any respect, I expressly request and authorize such
court to modify such provision so as to permit enforcement of this Agreement to
the most full extent possible. If no such modification is possible, then this
Agreement will be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein and, as so construed, will remain in
full force and effect.
15. Breach. I understand that the covenants and promises made by me
in this Agreement are a material inducement to the Company to continue my
employment and to provide me other benefits and consideration for this
Agreement. I understand that any breach or violation by me of this Agreement
will result in immediate and irreparable injury to the Company in amounts
difficult to ascertain. Therefore, should I breach any portion of this
Agreement, I agree that the Company will be entitled to proceed directly to a
court of competent jurisdiction to obtain the remedies of specific performance
and injunctive relief (including but not limited to temporary restraining
orders, preliminary injunctions, and permanent injunctions) without the
necessity of posting a bond or other undertakings therewith.
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16. Waiver. I understand that if the Company or I waive any breach of
any covenant, provision or obligation in this Agreement, such action will not be
considered to be a continuing waiver of any such covenant, provision or
obligation, or of any future breach thereof.
17. Interpretation. No provision of this Agreement will be interpreted
against the Company or me because such provision or this Agreement was prepared,
revised, or modified by either of us.
18. Attorney’s Fees. I understand that should either the Company or I
prevail in any legal action to enforce this Agreement that the losing party will
be obligated to reimburse the prevailing party all of its reasonable attorneys’
fees incurred in relation to such legal action.
19. Acknowledgements. I acknowledge that I have read and understand
the provisions of this Agreement, that I have been given an opportunity for my
legal counsel to review this Agreement, that the provisions of this Agreement
are reasonable, and that I have received a copy of the Agreement.
/s/ illegible /s/ Robert Giuliano (SEAL) Witness Robert Giuliano
Date ACCEPTED: COMPANY:
Bryce Rx Laboratories, Inc.
By: /s/ Robert Giuliano (SEAL)
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Schedule A
EXCLUDED PHARMACEUTICALS AND OVER-THE-COUNTER PRODUCTS
Scarguard Line;
Scarguard; Scar Light; Solar Guard, Bruise Guard; Pierce Guard; pierce Rescue;
Bite Me; Itchy; DermaFine; Psoriafilm.
Innovative Remedies Line
Vita Soup; Vita Pop; Veggie Soup; Veggie Pop Line; Tattoo Plus Line; Delay.
Page 8 of 8
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Name: Council Decision (EU) 2019/385 of 4 March 2019 on the conclusion of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of CÃ ´te d'Ivoire (2018-2024)
Type: Decision
Subject Matter: fisheries; Africa; international affairs; European construction
Date Published: 2019-03-12
12.3.2019 EN Official Journal of the European Union L 70/1 COUNCIL DECISION (EU) 2019/385 of 4 March 2019 on the conclusion of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of CÃ ´te d'Ivoire (2018-2024) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43, in conjunction with Article 218(6)(a)(v) and Article 218(7) thereof, Having regard to the proposal from the European Commission, Having regard to the consent of the European Parliament (1), Whereas: (1) On 17 March 2008, the Council adopted Regulation (EC) No 242/2008 (2) concluding the Fisheries Partnership Agreement between the Republic of CÃ ´te d'Ivoire and the European Community (3) (the Agreement). The Agreement was then tacitly renewed and is still in force. (2) The last Protocol to the Agreement expired on 30 June 2018. (3) The Commission has negotiated, on behalf of the Union, a new Protocol implementing the Agreement (the Protocol). The Protocol was initialled on 16 March 2018. (4) In accordance with Council Decision (EU) 2018/1069 (4), the Protocol was signed on 1 August 2018, subject to its conclusion at a later date. (5) The Protocol has been applied on a provisional basis as from the date of its signature. (6) The objective of the Protocol is to enable the Union and the Republic of CÃ ´te d'Ivoire (CÃ ´te d'Ivoire) to work more closely on promoting a sustainable fisheries policy, sound exploitation of fisheries resources in Ivorian waters, and CÃ ´te d'Ivoire's efforts to develop a blue economy. (7) The Protocol should be approved. (8) Article 9 of the Agreement establishes the Joint Committee responsible for monitoring its implementation (the Joint Committee). Furthermore, in accordance with Article 5(4) and Articles 6 and 7 of the Protocol, the Joint Committee may approve certain amendments to the Protocol. In order to facilitate the approval of such amendments, the Commission should be empowered, subject to specific conditions, to approve those amendments under a simplified procedure, HAS ADOPTED THIS DECISION: Article 1 The Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of CÃ ´te d'Ivoire (2018-2024) is hereby approved on behalf of the Union (5). Article 2 The President of the Council shall, on behalf of the Union, give the notification provided for in Article 14 of the Protocol. Article 3 Subject to the provisions and conditions set out in the Annex to this Decision, the Commission shall be empowered to approve, on behalf of the Union, the amendments to the Protocol to be adopted by the Joint Committee. Article 4 This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union. Done at Brussels, 4 March 2019. For the Council The President A. ANTON (1) Consent of 12 February 2019 (not yet published in the Official Journal). (2) Council Regulation (EC) No 242/2008 of 17 March 2008 on the conclusion of the Fisheries Partnership Agreement between the European Community and the Republic of CÃ ´te d'Ivoire (OJ L 75, 18.3.2008, p. 51). (3) OJ L 48, 22.2.2008, p. 41. (4) Council Decision (EU) 2018/1069 of 26 July 2018 on the signing, on behalf of the Union, and provisional application of the Protocol on the implementation of the Fisheries Partnership Agreement between the European Union and the Republic of CÃ ´te d'Ivoire (2018-2024) (OJ L 194, 31.7.2018, p. 1). (5) The Protocol has been published in OJ L 194 of 31.7.2018, p. 3, together with the decision on signature. ANNEX SCOPE OF THE EMPOWERMENT AND PROCEDURE FOR ESTABLISHING THE UNION POSITION IN THE JOINT COMMITTEE (1) The Commission shall be authorised to negotiate with the Republic of CÃ ´te d'Ivoire and, where appropriate and subject to compliance with point 3, agree on modifications to the Protocol in respect of the following issues: (a) review of fishing opportunities and related provisions in accordance with Articles 6 and 7 of the Protocol; (b) adaption of the arrangements for implementing sectoral support in accordance with Article 6 of the Protocol; (c) management measures falling within the powers of the Joint Committee in accordance with Article 5(4) of the Protocol. (2) In the Joint Committee established under the Agreement, the Union shall: (a) act in accordance with the objectives pursued by the Union within the framework of the Common Fisheries Policy; (b) promote positions that are consistent with the relevant rules adopted by regional fisheries management organisations and in the context of joint management by coastal States. (3) When a decision on modifications to the Protocol referred to in point 1 is to be adopted during a Joint Committee meeting, the necessary steps shall be taken to ensure that the position to be expressed on behalf of the Union takes account of the latest statistical, biological and other relevant information transmitted to the Commission. To this effect and based on that information, a document setting out the particulars of the proposed Union position shall be transmitted by the Commission services, in sufficient time before the relevant Joint Committee meeting, to the Council or to its preparatory bodies for consideration and approval. (4) In respect of the issues referred to in point 1(a), the approval of the envisaged Union position by the Council shall require a qualified majority of votes. In the other cases, the Union position envisaged in the preparatory document shall be deemed to be agreed, unless a number of Member States equivalent to a blocking minority objects during a meeting of the Council's preparatory body or within 20 days from receipt of the preparatory document, whichever occurs earlier. In case of such objection, the matter shall be referred to the Council. (5) If, in the course of further meetings, including on the spot, it is impossible to reach an agreement in order for the Union position to take account of new elements, the matter shall be referred to the Council or its preparatory bodies. (6) The Commission is invited to take, in due time, any steps necessary as a follow up to the decision of the Joint Committee, including, where appropriate, publication of the relevant decision in the Official Journal of the European Union and submission of any proposal necessary for the implementation of that decision. |
70 S.W.3d 532 (2002)
STATE of Missouri, Respondent,
v.
Jerome BATES, Appellant.
No. WD 59307.
Missouri Court of Appeals, Western District.
January 22, 2002.
Motion for Rehearing and/or Transfer Denied March 5, 2002.
Application for Transfer Denied April 23, 2002.
*533 Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.
Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.
Before EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 5, 2002.
VICTOR C. HOWARD, Judge.
A jury convicted Jerome Bates of attempted statutory rape in the second degree and attempted statutory sodomy in the second degree. He brings two points on appeal. In his first point, he alleges that the evidence was insufficient to show he took a "substantial step" toward the commission of those offenses. Specifically, he contends that "his correspondence from prison with the victim, without more, was insufficient to be strongly corroborative of the firmness of his purpose to complete the commission of the offense upon his release from prison." We agree. Finding his first point dispositive, we do not address his second point.
The judgment entered upon defendant's convictions is reversed and defendant is ordered discharged.
Background
On July 13, 2000, a grand jury indicted defendant on one count of attempted statutory rape in the second degree and one count of attempted statutory sodomy in the second degree. On October 3, 2000, the case went to trial. Just prior to trial, the Cole County prosecutor requested leave to file a Second Amended Substitute Information in Lieu of Indictment. This information charged defendant with the same charges as set forth in the indictment but narrowed the time frame for when the crime occurred to a one-year time period and added victim's date of birth. The State charged defendant with attempted statutory rape and attempted statutory sodomy based upon the following actions of defendant:
[B]etween June 27, 1998 and June 27, 2000,[1] ... while incarcerated at the Missouri Department of Corrections, in conversations and letters to [victim], a child under the age of 16, [defendant] repeatedly solicited promises from [victim] that she would have sexual intercourse, anal intercourse and oral intercourse with him upon his scheduled release from prison on June 27, 2000, and supplied her with pornographic pictures and handwritten instructions of how he would have sex with her, and such conduct was a substantial step toward the commission of [the crimes], and was done for the purpose of committing such crimes.
At trial, the State presented evidence including sexually explicit letters, pictures cut from magazines, and pamphlets, which victim testified she began receiving at the age of twelve from defendant while he was in prison. Often times, defendant would send the sexually explicit materials to victim hidden in cards and between paper glued together. Victim testified that defendant had been a father figure to her for most of her life. She and her mother often visited defendant while he was in prison and corresponded with him both on the phone and through letters. Victim did not tell anyone about the sexually explicit correspondence she had with defendant until the day approached when he would be released from prison. She then became *534 scared and informed a counselor of her fears. The counselor contacted the police.
The officer who interviewed victim also questioned defendant about the materials. Defendant at first denied sending victim anything and claimed instead that the materials were intended for victim's mother. After the officer explained the problems with defendant's explanations to him, defendant refused to make eye contact and answered, "I don't know." Defendant was never released from prison before he was charged with the crimes. During the pendency of his case, defendant wrote a letter to the prosecutor acknowledging that he sent victim the letters and materials. He claimed that he did so only because victim had a friend that was receiving letters and naked pictures from a man in prison, and victim had become jealous of this friend. Defendant claimed that he sent the materials to victim "just so she can show her friend. [He] did it so she would not write to some man in prison."
The State's evidence consisted of this correspondence from defendant to victim in addition to witness testimony concerning the correspondence. We have set forth in more detail the specifics of the evidence below in our discussion of whether the evidence was sufficient to sustain defendant's convictions. Defendant moved for an acquittal at the close of the State's case. The court overruled his motion. Defendant did not put on any evidence, and a jury subsequently convicted him as charged. After denying defendant's motion for a new trial, the court found him to be a prior and persistent offender and sentenced him to two ten-year terms of imprisonment on each count, to run concurrently to each other but consecutively with the sentence(s) he was already serving. This appeal follows.
Standard of Review
Upon review of defendant's challenge to the sufficiency of the evidence, we must determine if the State presented sufficient evidence from which a reasonable juror could have found defendant guilty beyond a reasonable doubt. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc), cert. denied, ___ U.S. ___, 122 S. Ct. 567, 151 L. Ed. 2d 440 (2001). This standard of review requires that we:
"must look to the elements of the crime and consider each in turn.... [The Court is] required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. [The Court] disregard[s] contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, [the Court] consider[s] whether a reasonable juror could find each of the elements beyond a reasonable doubt."
Id. (alterations in original) (quoting State v. Grim, 854 S.W.2d 403, 411 (Mo. banc), cert. denied, 510 U.S. 997, 114 S. Ct. 562, 126 L. Ed. 2d 462 (1993)). Despite our review in deference to the State's evidence, we cannot "`supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.'" Id. (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).
Sufficiency of the Evidence: Substantial Step
In reviewing defendant's claim that the evidence was insufficient to demonstrate an attempt to commit statutory rape in the second degree and an attempt to commit statutory sodomy in the second degree thus warranting submission to the jury, we first consider the statutes under which defendant was charged and convicted. Under *535 Section 566.034.1,[2] "[a] person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age." For purposes of this section, "sexual intercourse" is defined as, "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." § 566.010(4). Under Section 566.064.1, "[a] person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age." For purposes of this section, "deviate sexual intercourse" is defined as:
any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.
§ 566.010(1). Because defendant was charged with the attempt of both of these offenses, we must also consider the attempt statute, Section 564.011, which states:
A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
Thus, an attempt charge under § 564.011 has two elements: (1) the defendant's purpose to commit the underlying offense, and (2) the defendant's doing of an act which constitutes a substantial step toward the commission of that offense. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999).[3] Defendant does not dispute the sufficiency of the evidence concerning the "purpose" element. Rather, he contends that the evidence was insufficient to support a finding that he took a substantial step toward the commission of the offenses. We must determine whether defendant's conduct constitutes a "substantial step" toward the commission of the offenses or, in terms of § 564.011, whether his conduct constitutes "any act which ... is strongly corroborative of the firmness of [defendant's] purpose to complete the commission of [statutory rape in the second degree and statutory sodomy in the second degree]."
"What act or conduct will constitute a substantial step will depend on the facts of the particular case." State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989). The State alleges that defendant's sending of the letters and sexually explicit materials, coupled with his conversations with victim in which he made her promise to have sex with him, constitute an act which was a substantial step toward the attempted statutory rape and sodomy of victim. The evidence offered by the State at trial showed as follows:
In September of 1999, when victim was twelve years old, defendant sent her a letter that included lengthy sexually explicit jokes and told her when he was going to be released from prison. Over the next several months, he sent her more letters *536 with dozens of pictures of naked men and women engaging in vaginal, anal and oral sex. In December of 1999, defendant sent victim a letter that included a drawing of a man entering a woman vaginally from behind. Defendant wrote on this drawing, "I love you so much [victim]" with an arrow drawn toward the man in the picture. He also wrote "your dk feel so good, Jerome" with an arrow drawn toward the woman in the picture. Additional correspondence from defendant to victim included promises that he would take her shopping and give her half of his paycheck, that they would meet at the hotel as she had promised when she left for "work" and she could be back at the time she was supposed to be back, that he would not buy her a Christmas present unless she answered his letter, that he had a present for her but would not give it to her until she answered his letter and told him "something that I want to hear," that victim's "py belongs to me" and that "the other woman who lives with you" told him "that me and you can do whatever we want to." The only other woman living with victim at the time was her mother.
Defendant also sent victim a document entitled "arrest warrant" from "The Court of Love." Defendant typed in at the top "Mr. Jerome K. Bates vs. [victim]." This "warrant" included language such as "anything you say or scream during sexual questioning will be used in your favor in a court of love," and:
In the event of the loss of said document... this court will be forced to plead this case of total unrestrained desire and satisfaction, which will result in further more obscene action against your sweet and sexy body which may include: licking and kissing you until you pass out. I am going to blow your mind in every sexual way imaginable for years to come.
Defendant also sent victim diagrams of various sexual positions, with handwritten notes on them such as "you always did like getting on top of me" with a smiley face, "just let me know the `ways' you want me to make love to you," and "do you think you can hold your leg up like this for me," referencing a particular sexual position. Defendant sent instructions to victim concerning how she was to sneak out of her house as if she were going to school and instead secretly rendezvous with him at a hotel when he was released from prison. He instructed her on how she should lick her finger and put it in her vagina to prepare to have sex with him so it would not be "to [sic] sore," what the anal sex portrayed in the pictures entailed, and the necessity that victim go on birth control when he was released from prison. One color photo of a penis being inserted into a vagina included a note from defendant to victim saying, "that's how this dk going to be in you; don't forget we got to take some pictures of your pretty py." One drawing of a man with a mouth on a woman's vagina included instructions to victim to cut her hair from "around that area" so it would not get in defendant's mouth. Another drawing of the same act said that in two more months victim could "get all this dk." Another drawing of a man entering a woman from behind had an arrow to the man with the word "me" and an arrow to the woman with the word "you."
Defendant also sent victim pamphlets intended to educate teenagers on sex. He wrote instructions to her on the pamphlets such as "I want go on soft" next to instructions on how to put on a condom and "me and you" next to the words "have sex only with each other." In his correspondence with victim, defendant also ordered victim not to have sex with anyone else because he wanted to be her first and threatened *537 to punish her if she did. Defendant repeatedly reminded victim that she had sworn an oath to God to have sex with him, and she had to keep that promise. He told her that he would buy a douche and "rubbers" and that eventually he wanted her to have a baby by him.
In March of 2000, defendant wrote another letter to victim saying that he was disappointed in her, telling her that she "owed" him and that "we got a lot to do when I come back"referring to pornographic pictures he had sent her of naked men and women engaging in various sexual acts. In reference to one of the enclosed pictures he wrote, "this will be us getting down and I know your ahole is going to blow my mind. Let me tell you something, when you and me make a promise, we do not break that promise."
We find that this correspondence from defendant to victim does not legally constitute a substantial step toward statutory rape and statutory sodomy. While it is obvious that through these communications defendant expressed a desire to become sexually active with a young girl, he took no further action beyond this expression. The mere sending of the sexually explicit material and letters to victim, though an abhorrent act, is not sufficient to establish attempt liability for statutory rape and sodomy. This evidence of his desire was not "accompanied by any other corroborative action." Molasky, 765 [email protected]. Indeed, as the State points out, the law of substantial step attempt does not focus on what has yet to be done, but instead focuses on what a defendant has already done. Id. at 600. Nonetheless, as Molasky instructs, "Missouri cases indicate a substantial step is evidenced by actions, indicative of purpose, not mere conversation standing alone." Id. at 602 (footnote omitted).
In Molasky, the defendant, while in prison, had several conversations with two other inmates to arrange the killing of persons who were in the process of adopting defendant's son. Id. at 599. With them out of the way, defendant felt that his father could gain custody instead. Id. at 602. One of the inmates wore a hidden microphone to tape his conversation with defendant. Id. at 599. During one of the taped conversations, a price for the killing was set at $5,000, a time when the killings could be done was discussed, and defendant emphasized that he wanted the bodies disposed of and that his son should not witness the murders. Id. Defendant never produced an address or place of employment or photo of the intended victims. Id. at 602. Another inmate testified that he was solicited by defendant to perform the murders. Id. at 599. A price was established, a shotgun was to be used and nothing was to occur in front of defendant's son. Id. When the inmate demanded payment before the murders, defendant instructed him to call his father, say he was "Mr. Wonderful" and that he would receive $2,000. Id. Neither inmate took any action to follow through with the murders. Id.
While making it clear it was not suggesting solicitation could never be a substantial step to support an attempt charge, the Supreme Court found that this solicitation was mere conversation not accompanied by any other corroborative action. Id. at 602. The Court specifically mentioned as examples the fact that no concrete arrangements were made for payment, no money changed hands and no identification or photo of the alleged victim was given. Id. There was mere conversation unaccompanied by actions indicative of purpose. Id.
The State attempts to analogize defendant's actions to those of defendant Bolen in State v. Bolen, 731 S.W.2d 453 (Mo.App. *538 E.D.1987). Bolen was charged with sodomy and attempted sodomy for Bolen's simultaneous acts of masturbating his young victim and proposing oral sodomy in exchange for a concert ticket, a payment of five dollars and a payment of ten dollars "to secure permission." Bolen, 731 [email protected]. Bolen argued that no separate "substantial step" toward the commission of the attempt sodomy occurred. Id. at 458. The Eastern District found that "the successive offers of consideration [were] a substantial step because they [were] `strongly corroborative of the firmness of [Bolen's] purpose to complete the commission of the offense.' [Section 564.011] does not require that an actual or specific attempt be made to perform each and every element of the crime." Id. (quoting § 564.011 RSMo Cum.Supp.1984). As we previously mentioned, "[w]hat act or conduct will constitute a substantial step will depend on the facts of the particular case." Molasky, 765 [email protected]. Bolen is factually distinguishable from the case now before us. The consideration offered to the victim in Bolen is not present in this case. The State claims that defendant's promises to give victim money and presents or to withhold presents or support constitute consideration. However, upon a close review of the evidence, we fail to see that any of defendant's "promises" were made in exchange for victim having sex with him. If anything, defendant made these promises only in return for victim writing him back while he was in prison.
We also consulted other jurisdictions' treatment of the sufficiency of evidence to show a substantial step toward the commission of statutory rape and sodomy. While it may be fortunate that there is not an abundance of case law on the subject, the cases we did find all were factually distinguishable in that the other defendants' actions were more readily ascertained to be a "substantial step" toward attempted statutory rape or sodomy. For example, in State v. Fowler, 3 S.W.3d 910 (Tenn.1999), the Supreme Court of Tennessee found that the evidence therein supported the jury's finding that Fowler's conduct constituted a substantial step toward the commission of statutory rape. Fowler, who was seeking homosexual activity on the night of his arrest, stopped at a rest area that had a reputation for homosexual activity. While there, Fowler approached an undercover police officer and agreed to pay him for "delivery of a young male" for the "purpose of procuring a young male [for] sex." Fowler, 3 [email protected]. He then wrote the officer a check for $200 "with the expectation that the boy would be turned over to [Fowler]." Id. In finding that the evidence "overwhelmingly supports the jury's finding that [Fowler's] conduct constituted a substantial step toward the commission of statutory rape," the court stated:
Requiring conduct beyond the defendant's conduct in this case would be inconsistent with both the general goal of crime prevention and [its] analysis in Reeves [, in which the court abandoned the "mere preparation" test or the requirement of an "overt act" in attempt lawwhich requirement has also been abandoned in Missouri]. We would create a dangerous precedent by requiring that the defendant take delivery of the boy or actually begin some act that would approach sexual penetration. Once a pedophile purchases a child and takes the child into his possession, some damage has likely occurred. Moreover the child is placed in a position of imminent danger from which the child may be powerless to protect himself or herself.
Id. at 912-13. Fowler not only showed his intent to statutorily rape a young boy, but he took the additional substantial step of *539 writing a check for $200 to the officer in order to effectuate his intent. In our case, defendant only wrote victim the letters and sent pictures from prison. There was no further "substantial step."
The State suggests that if we find that defendant's actions in this case do not constitute a substantial step, we will be creating the "dangerous precedent" that the Tennessee Supreme Court expressly sought to avoid in Fowler. We disagree. By holding that the evidence is insufficient herein, we certainly do not suggest that in order to charge defendant as they did the State had to wait for him to actually "begin some act that would approach sexual penetration" of victim. We certainly do not condone defendant's conduct, nor do we intend to suggest what conduct is required to support a charge of attempted statutory rape and sodomy. We merely hold that, on the facts of this case, the State's evidence is insufficient as a matter of law to support the jury's finding of guilt on the charged crimes in that the communications from defendant to victim do not constitute a "substantial step" toward the commission of attempted statutory rape and attempted statutory sodomy.
The State urges that more than "mere conversation" existed in this case. We disagree. The letters are conversations, and, as irresponsible and deplorable as the things defendant wrote to victim may be, the conversations simply are not sufficient to support defendant's convictions. Indeed, defendant's conduct in writing those letters to victim constitutes a crime, but it does not constitute the charged crimes of attempted statutory rape and sodomy in the second degree under Sections 564.011, 566.034 and 566.064. Following the holding of our Supreme Court in Molasky, we find there was no substantial step toward the commission of the crimes charged. 765 [email protected].
Defendant's point on appeal is granted.
Conclusion
The evidence is insufficient to demonstrate that defendant took a substantial step toward the commission of statutory rape in the second degree or statutory sodomy in the second degree. Therefore, the trial court erred in submitting the case to the jury and overruling defendant's motion for judgment of acquittal. Withrow, 8 [email protected]. The judgment entered upon defendant's convictions is reversed, and the cause is remanded with instructions to discharge defendant. Id.
EDWIN H. SMITH, P.J., and HOLLIGER, J., concur.
NOTES
[1] Although the second amended information is not a part of the record on appeal, we believe from the prosecutor's discussion with the court at the start of trial that this date was changed to "between June 27, 1999, and June 27, 2000."
[2] Statutory references are to RSMo 1994.
[3] For a more detailed discussion on attempt law in Missouri, see H. Morley Swingle, Criminal Attempt Law in Missouri: Death of a Tale of Two Theories, 56 J. Mo. Bar 144, 144-51 (2000).
|
260 N.J. Super. 127 (1992)
615 A.2d 644
JOHN KNOBLOCK AND LYNN KNOBLOCK, PLAINTIFFS-APPELLANTS,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted October 1, 1992.
Decided October 19, 1992.
*129 Before Judges BRODY, LANDAU and THOMAS.
Greene & Millinger, attorneys for appellants (Irwin Millinger, on the brief).
Robert A. Auerbach, attorney for respondent (Randi S. Greenberg, of counsel and on the brief).
The opinion of the court was delivered by BRODY, J.A.D.
Plaintiffs are the insureds named in a homeowners' policy issued by defendant. As a resident of plaintiffs' household, their infant son Jason is an additional insured under the terms of the policy. Jason was injured while staying at the home of his aunt and uncle, Richard and Barbara Knoblock, when he fell from a minibike that he contends they negligently permitted him to ride. Jason's mother commenced a personal-injury negligence action on his behalf against Richard and Barbara Knoblock, who in turn filed a counterclaim against Jason's mother and filed a third-party action against his father seeking indemnity or contribution.
Plaintiffs commenced this action for a judgment declaring that defendant's policy covered the claims asserted against them in the negligence action. Judge Mannion granted defendant's motion for summary judgment on the ground that the negligence claims asserted against plaintiffs fall within an exclusion in the policy. The relevant coverage and exclusion provisions of the policy respectively are as follows:
If a claim is made or suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:
a. pay up to our limit of liability for the damages for which the insured is legally liable, and
*130 b. provide a defense at our expense....
* * * * * * * *
Personal Liability: We do not cover bodily injury to you or any insured....
We have sustained the validity of an exclusion in a homeowners' policy for bodily injuries sustained by "any insured" covered by the policy. Foley v. Foley, 173 N.J. Super. 256, 258-260, 414 A.2d 34 (App.Div. 1980). Plaintiffs argue that the language of the exclusion is ambiguous when applied to the present case because it does not expressly apply to claims or suits for indemnity or contribution.
Where the language of an insurance policy is ambiguous or vague it must be given any reasonable interpretation that will provide coverage. Kopp v. Newark Ins. Co., 204 N.J. Super. 415, 420, 499 A.2d 235 (App.Div. 1985). Ambiguities in the language of an exclusion must be construed against the insurer. Boswell v. Travelers Indem. Co., 38 N.J. Super. 599, 606, 120 A.2d 250 (App.Div. 1956). Where there is no genuine ambiguity, however, we may "not engage in a strained construction to support the imposition of liability." Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J. 530, 537, 582 A.2d 1257 (1990).
We agree with Judge Mannion that there is no ambiguity in the language of the exclusion. The policy plainly does "not cover bodily injury to ... any insured." In a personal injury action, indemnity claims of someone only vicariously liable and contribution claims of a joint tortfeasor are derived solely from the "bodily injury" claim of the injured person. Where that bodily injury is allegedly sustained by "any insured," the exclusion withdraws coverage. Accord California State Auto. Assn Inter-Ins. Bureau v. Bourne, 162 Cal. App.3d 89, 92-93, 208 Cal. Rptr. 131 (Ct.App. 1984) ("Thus, the operative facts which bring an indemnity action within the policy also subject it to the exclusion."); Parker v. State Farm Mut. Auto. Ins. Co., 263 Md. 206, 282 A.2d 503, 508-09 (1971) ("The law generally *131 will not permit by indirection or circuity what it will not allow directly.").
Plaintiffs rely on Campanile v. State Farm Ins. Co., 161 A.D.2d 1052, 558 N.Y.S.2d 203 (App.Div.), aff'd, 78 N.Y.2d 912, 573 N.Y.S.2d 463, 577 N.E.2d 1055 (1991), where the court held that a similarly worded exclusion is ambiguous because it does not expressly exclude cross-claims for indemnity and contribution. The court based its opinion on the holding in Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. Co. of N.Y., 45 N.Y.2d 551, 410 N.Y.S.2d 571, 382 N.E.2d 1347 (1978). The presiding justice in Campanile stated in a concurring opinion that the exclusion "is clear and unambiguous and any resort to rules of construction outside its plain and ordinary meaning is therefore unnecessary and improper [citations omitted]. The terms of the policy at issue clearly exclude any coverage or defense to plaintiff for the bodily injury which gave rise to the cross claim." Campanile, 558 N.Y.S.2d at 205 (Kane, P.J., concurring). He joined in the opinion solely because of the holding in Graphic Arts.
The holding in Graphic Arts is based upon New York's law, which differs from ours, respecting third-party claims against an employer in workers' compensation actions. Graphic Arts Mutual Insurance Co. had written an automobile insurance policy for an employer. The policy excluded coverage for bodily injury of any employee of the insured arising out of and in the course of employment by the insured. An employee was injured while a passenger in the employer's truck, driven by a fellow employee, when the truck collided with another motor vehicle. Barred by the workers' compensation law from tort recovery from his employer, the employee brought an action against the owner and against the operator of the other vehicle. Those defendants asserted a third-party claim against the employer for "comparative or equitable apportionment," a judge-made contribution-like remedy against employers available to third parties in New York workers' compensation actions. Dole *132 v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).
Relying on the exclusion in its policy, Graphic Arts refused to cover the employer for the third-party claim. The New York Court of Appeals held that the employer reasonably expected the exclusion to exclude coverage for employee workers' compensation claims, but not for "Dole-Dow claims." Graphic Arts, supra, 410 N.Y.S.2d at 574, 382 [email protected]. The Court was concerned that applying the exclusion to a third-party claim would leave the employer without coverage.[1] Thus the Court held that the exclusion did not apply to third-party "Dole-Dow" claims. The Campanile court expanded the Graphic Arts holding beyond exclusions for workers' compensation injuries by requiring that in order to avoid ambiguity, an exclusion for bodily injury in a homeowners' policy also must expressly exclude cross-claims for indemnity and contribution.
The purpose of excluding coverage for intra-family bodily-injury negligence claims in a homeowners' policy is to exclude from the policy the risk of collusive claims. See Minners v. State Farm Mut. Auto. Ins. Co., 284 Minn. 343, 170 N.W.2d 223, 227 (1969). That rationale applies equally when there are third-party claims for indemnification or contribution based upon the same bodily injury. Where a defendant in a personal-injury negligence action joins a household relative of the injured person as an additional defendant, the exclusion need not expose the relative to indemnity or contribution liability. The injured person may settle with the relative for a nominal sum and recover from the nonrelative tortfeasor only in proportion *133 to his, her or its negligence. See Theobald v. Angelos, 44 N.J. 228, 232, 208 A.2d 129 (1965).
Affirmed.
NOTES
[1] In similar circumstances, New Jersey denies the third party contribution from an employer who, because of the immunity, is not considered a joint tortfeasor. Ramos v. Browning Ferris Indus., 103 N.J. 177, 184, 510 A.2d 1152 (1986). Ramos expressly contrasts our law in this regard with New York's Dole-Dow approach. Id. at 186-87, 510 A.2d 1152.
|
Case 2:20-cv-02291-DOC-KES Document 333 Filed 05/27/21 Page 1of3 Page ID #:8536
_. FILED
CLERK, U.S. DISTRICT COURT
CENTRAL DISTRICT t
BY
LA 20-CV-02291-DOC-{KESx)
LA Alliance for Human Rights, et al. v. City of Los Angeles, et al.
EVERY WOMAN HOUSED
ACTION PLAN FOR WOMEN AND FAMILIES IN SKID ROW
SUMMARY
Per the 2020 Greater Los Angeles Homeless
Count, there are 600 unhoused individuals
who identify as cisgender female (541),
transgender (45), and non-binary (11) residing
in Skid Row. 55 families experiencing
unsheltered homelessness were also counted.
Of people experiencing homelessness in the
Skid Row Community, 35% reported chronic
homelessness, 30% serious mental illness, and
25% substance abuse disorder.
As of today, the Downtown Women’s Center
(DWC) has 200 women in its programs who
are ready to move into housing. With
expanded services and the support of
community partners over the next two years,
DWC can provide an additional 400 women
with short- and long-term services and
housing, to effectively end homelessness for a
total of (00 women who would otherwise be
residing unhoused in Skid Row.
Initial outreach and intake will require 90 days
while short-term responses and long-term
solutions will take 180 days and 90-365 days,
respectively, to implement. Up to two years of
financial support for rent and supportive
services will also be required. Critical to the
overall success of this initiative is the City and
County’s support in procuring treatment beds,
interim housing options, and landlords willing
to rent units at affordable rates.
AT $12,000 PER
PERSON ANNUALLY,
DWC CAN END
HOMELESSNESS FOR
600 UNSHELTERED
WOMEN IN SKID ROW
ACTION STEPS ATA
GLANCE:
Locate 200 landlords for women
already enrolled in LAHSA-
funded rental assistance and
social service programs
Expand DWC’'s Access Center
from place-based services to
include mobile outreach
Increase flex funding to provide
100 women with financial
resources for rapid placement
into permanent housing
Create linkages to 100 mental
health and substance abuse
treatment beds
Provide 200 interim housing
placements via models such as
Project Roomkey, Project Safe
Haven, and A Bridge Home,
and/or via the conversion of
unused commercial space
Renew DWC’s Housing Justice
Program to provide culturally
responsive pathways to
permanent housing for the 300
women placed in treatment beds
and interim housing
Contract with the local
Coordinated Entry System for
Families to serve up to 55
unhoused families in Skid Row
Case 2:20-cv-02291-DOC-KES Document 333 Filed 05/27/21 Page 3o0f3 Page ID #:8538
In order to serve the 600 unaccompanied women and 55 families currently
residing without shelter in Skid Row, DWC proposes the following plan, which
consists of (1) outreach and intake, (2) short-term housing responses, and
(3) long-term housing solutions.
OUTREACH & INTAKE:
The DWC Mobile Access Center Outreach will triage the needs of women daily and
connect them to pathways for permanent housing. DWC staff will also assess for other
service needs and connect women as necessary to DWC’s mental health, healthcare,
employment, COVID vaccination, and culturally responsive enrichment services.
Access to daily meals, bathrooms, and showers will be provided to all.
SHORT-TERM HOUSING RESPONSES:
Short-Term Housing opportunities are needed for 300 women and must include
options for mental health treatment and or hospitalization, substance abuse
treatment, and Interim housing. To this end, DWC requests access to 100 inpatient
treatment beds and 200 interim housing Beds.
Avenues for the procurement of beds may include:
e A Bridge Home
¢ Funding for overnight hotel stays
e Expansion of Project Roomkey and or Project Safe Haven efforts
e Conversion of vacant downtown office and or commercial space
LONG-TERM HOUSING SOLUTIONS:
Long Term Housing opportunities can be provided by scaling DWC’s Housing Justice
Program (formerly known as Project 100), Rapid Re-Housing Program, Problem Solving
Program (funded by LAHSA), and Permanent Supportive Housing Program.
DWC currently has the capacity and resources to house 200 women. With additional
support in locating landlords, DWC could house all of these women within the next
180 days. To further support long-term solutions, DWC requests access to the new
Housing Choice Vouchers made available through the American Rescue Plan.
An expansion of the Housing Justice Program would furthermore enable DWC to
provide on-going case management and long-term housing navigation to the 300
women connected with short-term housing, while bringing a layer of much needed
trauma-informed community-building to Skid Row.
Through its Problem Solving Program, DWC can also resolve homelessness for up to
100 women, by supporting them in relocating to areas where they have the option to
live permanently with family or acquaintances. Problem Solving funds can pay for
relocation expenses, ensuring that the individual has a permanent place to reside ina
different location.
For more information, contact {{EMAIL+PHONE}}
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 17 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-4136
vs. (D.C. No. 2:02-CR-372-DAK)
(D. Utah)
JOEL CRIOLLO-CASTENEDA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRISCOE, Circuit Judge.
Defendant-Appellant Joel Criollo-Casteneda entered a conditional plea to
possession of 500 grams or more of methamphetamine with intent to distribute, 21
U.S.C. § 841(a)(1), and was sentenced to 70 months imprisonment and three years
supervised release. He now appeals the denial of his motion to suppress, arguing
that the consent search of his vehicle was unlawful because it was the product of
an unlawful detention. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Background
On May 15, 2002 at approximately 1:10 p.m. while traveling through Utah,
Mr. Criollo-Casteneda was clocked on radar going 83 miles per hour in a 75-mile-
per-hour zone by Utah Highway Patrol Sergeant Paul Mangelson. The officer
informed Mr. Criollo-Casteneda that he had been pulled over for speeding and the
officer asked to see his driver’s license. Mr. Criollo-Casteneda informed the
officer that he did not have a license. He did, however, produce a registration
indicating that the vehicle belonged to one Zaira Berenience Corravubuios. The
officer noticed a strong minty odor emanating from the vehicle, though he could
detect no obvious source. The officer testified that such an odor often masks the
odor of narcotics. The officer also noticed a pen cap with no corresponding pen,
some used napkins on the passenger seat, and a cell phone. According to the
officer, the pen cap, napkins and cell phone were indicative of narcotics
consumption. The officer also observed that the vehicle’s ignition key was on a
key ring by itself with a tag like car dealers use to track inventory. The officer
thought that the vehicle might be stolen or in the wrong hands, but he did not run
a check on the vehicle to see if it was stolen. Finally, the officer noticed that Mr.
Criollo-Casteneda’s eyes appeared glassy and bloodshot, suggesting personal
consumption.
The officer suspected that Mr. Criollo-Casteneda may have been using or
-2-
transporting illegal drugs. Accordingly, before returning the vehicle registration
or otherwise advising Mr. Criollo-Casteneda of the consequences of driving
without a license, the officer requested permission to search the vehicle. Mr.
Criollo-Casteneda gave his consent to search and did not object at any time while
the search occurred. The search revealed two packages of methamphetamine
(smeared with toothpaste) hidden in the rear quarter panel of the vehicle. Mr.
Criollo-Casteneda was arrested and advised of his rights.
After concluding that Mr. Criollo-Casteneda had standing to challenge the
search of the vehicle, the district court concluded that Mr. Criollo-Casteneda gave
voluntary consent to the search of his vehicle and that search did not exceed the
scope of that consent. The district court prefaced its holding by stating that
“[t]here is nothing to suggest that the initial stop or subsequent detention of
Criollo-Casteneda was improper, and Defendant does not contend otherwise.” I
R. Doc. 19 at 5. The district court relied upon the defendant’s concession at oral
argument that “we do not challenge the detention of the defendant following the
stop of the vehicle” based upon defendant’s operating the vehicle in violation of
Utah Code. II Supp. R. at 10.
Discussion
The parties disagree about the standard of review. Ordinarily, we review
-3-
the findings of the district court on a motion to suppress in the light most
favorable to the prevailing party; Fourth Amendment reasonableness is reviewed
de novo. United States v. Tueller, 349 F.3d 1239, 1242 (10th Cir. 2003). The
government suggests that our review should be for plain error because (1) the
detention argument now raised was not raised by the defendant in his motion to
suppress or at the suppression hearing, and (2) the defendant actually conceded
the detention issue at the suppression hearing. We agree.
We recently held “that when the district court explicitly resolves an issue
of law on the merits, the appellant may challenge that ruling on appeal even if he
failed to raise the issue in district court,” and the ordinary standard of review
applies, not plain error. United States v. Hernandez-Rodriguez, 352 F.3d 1325,
1328 (10th Cir. 2003). Here, the district court remarked that nothing suggested a
constitutionally suspect initial stop or detention, but it is clear that it did not
evaluate this legal issue, nor develop additional facts that would have assisted in a
more comprehensive resolution. There simply was no reason for the district court
to go further given the Defendant’s concession of this issue. Our review is thus
for plain error–requiring “(1) an error; (2) that is plain or obvious; (3) that affects
substantial rights, and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 1329.
According to Mr. Criollo-Casteneda, his continued detention beyond that
-4-
period necessary to effectuate the original purpose of the traffic stop constituted
an illegal seizure which tainted any consent. See United States v. Melendez-
Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). When a police officer stops a
vehicle for a suspected traffic violation, a seizure has occurred within the
meaning of the Fourth Amendment. Such stops are considered akin to
investigative detentions and must be premised on a reasonable suspicion that the
motorist has violated a provision of the applicable motor vehicle code. See
United States v. Ramstad, 308 F.3d 1139, 1144 (10th Cir. 2002). The Supreme
Court has interpreted the Fourth Amendment as requiring that such investigative
detentions “last no longer than necessary to effectuate the purpose of the stop.”
Florida v. Royer, 460 U.S. 491, 500 (1983).
An officer engaged in a routine traffic stop may “request a driver’s license
and vehicle registration, run a computer check, and issue a citation.” United
States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). Extending the length
of the detention beyond the time necessary to perform these functions requires
either that the encounter be consensual in nature or that the officer have an
objectively reasonable suspicion of criminal activity. Id. Refining this
requirement, we have held that a traffic stop cannot be transformed into a
consensual encounter while the officer remains in possession of the motorist’s
paperwork because the motorist would not feel free to terminate the encounter.
-5-
United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993).
Mr. Criollo-Castaneda argues that the officer’s request to search the vehicle
exceeded the permissible scope of the traffic stop and thus constituted an illegal
detention. Specifically, relying on Royer, Mr. Criollo-Casteneda suggests that the
permissible scope of his detention extended only so far as to allow the officer to
process violations for speeding and driving without a license. Mr. Criollo-
Casteneda contends that when the officer, in the absence of reasonable suspicion
and while still in possession of the vehicle registration, requested permission to
search the car, he exceeded the permissible scope of the detention, thereby
rendering it illegal. Accordingly, he argues, the consent to search is tainted by an
illegal detention and the products of the search should be suppressed.
The government concedes that Mr. Criollo-Casteneda’s detention was not
consensual because the officer had possession of the registration. Indeed, the
officer testified that prior to his arrest, Mr. Criollo-Casteneda “wasn’t going to
drive the vehicle away” due to the absence of a driver’s license and the officer’s
suspicion that he was impaired. II Supp. R. at 20-21. The government argues
that the officer had reasonable and articulable suspicion to detain the Defendant
beyond the initial stop and ask for permission to search the vehicle. We consider
the totality of the circumstances based on the record furnished to us. United
States v. Arvizu, 534 U.S. 266, 273 (2002). We agree with the government.
-6-
Although we may question the persuasive value of a pen cap without a pen, used
napkins without surrounding fast food wrappers, and a cell phone standing alone,
when combined with a strong mint odor without any obvious source and the
appearance of Mr. Criollo-Casteneda’s eyes, the totality of the circumstances
adequately support reasonable suspicion. II Supp. R. at 16, 19. We hold that
there was no error, let alone plain error in the district court’s denial of the
suppression motion. Thus, the judgment is
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-7-
No. 03-4136, United States v. Criollo-Casteneda
BRISCOE, Circuit Judge, concurring:
I concur in the order and judgment. I write separately only to highlight that
an individual can voluntarily consent to a search even though the individual is
subject to a non-consensual detention.
To the extent defendant is arguing that a voluntary and valid consent cannot
be given by a person being legally detained, he is wrong. A “[v]alid consent can
be given by a person being detained.” United States v. Soto, 988 F.2d 1548, 1557
(10th Cir. 1993). See also United States v. Orrego-Fernandez, 78 F.3d 1497 (10th
Cir. 1996) (discussing Soto and reaffirming that a person being detained on side
of highway is capable of voluntarily consenting to search of vehicle). “The
voluntariness of consent must be determined from the totality of the
circumstances, and the government bears the burden of proof on the issue.” Soto,
988 [email protected]. To sustain its burden, “the government must show that there
was no duress or coercion, express or implied, that the consent was unequivocal
and specific, and that it was freely and intelligently given.” Id. Here, the district
court found that defendant's consent was voluntarily given, and this court “must
accept that finding unless it is clearly erroneous.” Id.
Defendant does not argue that the district court's finding of voluntary
consent was clearly erroneous and there would be no merit to such argument. No
threat or overt coercion was applied to obtain consent. Only one officer was
present and the encounter took place in public view. The officer requested
permission to search the car only one time and there is no evidence that he used a
threatening tone or demeanor. Defendant does not argue on appeal that the scope
of the search exceeded his consent.
-2-
|
NUMBER 13-15-00593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE TRACEY W. MURPHY
On Petition for Writ of Mandamus and
Petition for Writ of Injunction.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Per Curiam Memorandum Opinion1
On December 14, 2015, relator Tracey W. Murphy, proceeding pro se, filed a
petition for writ of mandamus and petition for writ of injunction contending that prison
officials confiscated legal papers pertaining to relator’s previous appeals and his current
appeal, now pending in this Court in our cause number 13-15-00324-CV: Tracey W.
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Murphy v. Christopher Pauley, et al., arising from trial court cause number B-14-1508-
CV-C in the 343rd District Court of Bee County, Texas. Relator contended that he was
being denied access to courts and could not file his brief in the pending appeal.
This Court requested that Christopher Pauley, the Office of the Attorney General
(“OAG”), and Jeffrey Catoe, Senior Warden of the George Beto Unit at the Texas
Department of Criminal Justice, or any others whose interest would be directly affected
by the relief sought, file a response to the petition for writ of mandamus on or before the
expiration of ten days from the date of this order. See TEX. R. APP. P. 52.2, 52.4, 52.8.
On December 22, 2015, the OAG, acting on behalf of the respondents in this cause, filed
a response to relator’s petition.
Through its response, the OAG contended that relator’s “5 bundles of
miscellaneous paperwork” was appropriately confiscated and handled pursuant to the
administrative directives of the Texas Department of Criminal Justice that pertain to the
personal property that an offender is allowed to store and possess. The OAG, however,
recognized that the “5 bundles of miscellaneous paperwork” “may or may not have
contained legal material,” which is handled under separate administrative directives.
Accordingly, the OAG, in “an abundance of caution” sent relator copies of the entire clerk’s
record and reporter’s record for his pending appeal by express overnight mail.
Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of
the courts of appeals, and states that the courts of appeals "shall have such other
jurisdiction, original and appellate, as may be prescribed by law." TEX. CONST. art. V, §
6 (West, Westlaw through 2015 R.S.). This Court's original jurisdiction is governed by
section 22.221 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 22.221
2
(West, Westlaw through 2015 R.S.); see also In re Cook, 394 S.W.3d 668, 671 (Tex.
App.—Tyler 2012, orig. proceeding). In pertinent part, this section provides that we may
issue writs of mandamus and "all other writs necessary to enforce the jurisdiction of the
court." See id. § 22.221(a). We have original jurisdiction as necessary to protect our
jurisdiction over a pending appeal. See generally id. § 22.221; In re Richardson, 327
S.W.3d 848, 851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296
S.W.3d 682, 684 (Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7
S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding); see also In re
Linder, No. 13-12-00391-CV, 2012 WL 2928263, at *1 (Tex. App.—Corpus Christi June
20, 2012, orig. proceeding) (per curiam) (mem. op.).
In this original proceeding, relator sought access to the materials necessary to draft
his brief for his pending appeal and thus invoked our jurisdiction to grant extraordinary
relief. However the OAG has provided relator with the necessary materials.
Accordingly, to the extent that relator sought relief regarding the papers necessary for his
appeal, we conclude that this original proceeding is moot and should be dismissed. See
In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) (“A
case becomes moot if a controversy ceases to exist between the parties at any stage of
the legal proceedings . . .”); State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)
(stating that, for a controversy to be justiciable, there must be a real controversy between
the parties that will be actually resolved by the judicial relief sought). To the extent that
relator sought any other relief, including compensation for “irreparable injuries,” we lack
jurisdiction over the requested relief. Accordingly, the Court, having examined and fully
considered the petition for writ of mandamus and injunction and the response thereto, is
3
of the opinion that this matter should be DISMISSED. See TEX. R. APP. P. 52.8(a). Any
and all other relief requested is also DISMISSED.
PER CURIAM
Delivered and filed the
30th day of December, 2015.
4
|
AMENDMENT NO. 1 TO LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AGREEMENT (this “Amendment”) is made and entered
into as of May 8, 2006, with respect to that certain Loan Agreement dated as of
September 19, 2005 (as amended, restated, supplemented or otherwise modified
from time to time, the “Loan Agreement”), by and among ARVINMERITOR RECEIVABLES
CORPORATION, a Delaware corporation, as “Borrower,” ARVINMERITOR, INC., an
Indiana corporation in its capacity as the initial “Collection Agent,” THREE
PILLARS FUNDING LLC, a Delaware limited liability company, and SUNTRUST BANK, a
Georgia banking corporation, as “Lenders”, and SUNTRUST CAPITAL MARKETS, INC., a
Tennessee corporation, as “Three Pillars Agent” and as “Administrative Agent”.
Capitalized terms used and not otherwise defined herein are used with the
meanings attributed thereto in the Loan Agreement.
BACKGROUND
The parties wish to amend the Loan Agreement on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
1. Amendments.
(a) Exhibit F to the Loan Agreement is hereby amended and restated in
its entirety to read as set forth in Exhibit 1 hereto.
(b) The definitions of “Receivable” and “Reserve Floor” in Section 1.1
of the Loan Agreement are hereby amended and restated in their entirety to read,
respectively, as follows:
“Receivable” means all indebtedness and other obligations owed to an Originator
at the time it arises, and before giving effect to any transfer or conveyance
under the Receivables Sale Agreement (including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible) arising from the sale of goods or the
provision of services by such Originator and further includes, without
limitation, the applicable Obligor’s obligation to pay any Finance Charges,
freight charges and other obligations of such Obligor with respect thereto;
provided, however, in no event shall indebtedness or obligations of Tower
Automotive, Inc. or any of its subsidiaries to any Originator existing as of the
Closing Date, or indebtedness or obligations of General Motors Corporation and
its subsidiaries existing as of any date, constitute a “Receivable.”
Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations
represented by an individual invoice, shall constitute a Receivable separate
from a Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; provided that any indebtedness,
rights or obligations referred to in the immediately preceding sentence shall be
a Receivable regardless or whether the Obligor or applicable Originator treats
such indebtedness, rights or obligations as a separate payment obligation.
“Reserve Floor” means, for any Calculation Period, the sum of (a) 22%, plus (b)
the product of (i) the Expected Dilution Ratio as of the most recent Calculation
Date, times (ii) the Dilution Horizon Ratio as of the most recent Calculation
Date.
(c) Section 3.2(a) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
(a) on each Distribution Date prior to the Commitment Termination
Date, (i) in the case of the first Distribution Date after a Loan is funded, for
the period since the funding of such Loan through and including the last day of
the month ending immediately prior to such Distribution Date or (ii) in the case
of any subsequent Distribution Date, for the period since the first day through
and including the last day of the month ending immediately prior to such
Distribution Date;
(d) Clause (iv) of subsection (a) of Section 5.1 is amended and
restated in its entirety to read as follows:
(iv) the Lock-Box Accounts and all funds on deposit therein (other than
funds constituting collections and proceeds of accounts receivable that are not
Receivables), together with all certificates and instruments, if any, from time
to time evidencing such accounts and funds on deposit; and
(e)
Section 10.2.6 is amended and restated in its entirety to read as follows:
10.2.6 Delinquency Ratio. The Delinquency Ratio shall equal or exceed 8.5%
on a rolling three-month average basis.
(f)
A new subsection (h) is added to Section 11.2.3, reading as follows:
(h) All payments and other amounts collected or received by the
Collection Agent, the Administrative Agent, any Co-Agent, or any Lender (whether
received into any Lock-Box or Lock-Box Account or otherwise) in respect of
Receivables (as defined in the Receivables Sale Agreement) that are not
Receivables as defined herein, or in respect of any other accounts receivable of
any Originator that are not Receivables as defined herein, shall be remitted to
the owner thereof on the Business Day collected or received, or as promptly
thereafter as such payments or amounts are determined not to be Collections.
2. Consent; Financing Statements. In furtherance of the foregoing:
(a) each of the Agents and the Lenders hereby consents to the execution,
delivery, and performance by the Borrower and the Originators of an amendment to
the Receivables Sale Agreement in form and substance as Exhibit 2 attached
hereto,
(b) the Administrative Agent is hereby authorized to amend all financing
statements filed in connection with the Receivables Sale Agreement naming the
Originators, as debtors/sellers, and the Borrower, as secured party/purchaser,
to exclude from the collateral described therein all receivables of General
Motors Corporation and its subsidiaries arising on after May 8, 2006, and all
proceeds thereof, and
(c) the Administrative Agent is hereby authorized to amend all financing
statements naming the Borrower as debtor filed in connection with the
Transaction Documents to release from the collateral covered thereby all
receivables existing at May 8, 2006, owing from General Motors Corporation and
its subsidiaries, all receivables from General Motors Corporation and its
subsidiaries arising on or after that date, and all proceeds thereof.
3. Representations. In order to induce the Agents and the Lenders to enter into
this Amendment, the Borrower hereby represents and warrants to the Agents and
the Lenders that no Significant Event or Unmatured Significant Event exists and
is continuing as of the date hereof.
4. Effectiveness. This Amendment shall become effective and shall inure to the
benefit of the Borrower, the Collection Agent, the Lenders, the Agents and their
respective successors and assigns when the Administrative Agent shall have
received one or more counterparts of (i) this Amendment, duly executed and
delivered by each of the parties hereto, (ii) an amended and restated Co-Agents’
Fee Letter, duly executed and delivered by each of the parties thereto, and
(iii) the amendment to the Receivables Sale Agreement in the form of Exhibit 2
hereto, duly executed and delivered by the Borrower and the Originators.
5. Ratification. Except as expressly amended above, the Loan Agreement remains
unaltered and in full force and effect and is hereby ratified and confirmed.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW)).
7. Counterparts. This Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one
-2-
and the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
<Signature pages follow>
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their respective officers thereunto duly authorized as of the day and year first
above written.
ArvinMeritor Receivables Corporation, AS BORROWER
By: /s/ James D. Donlon, III
Name:
James D. Donlon, III
Title:
Senior Vice President and Chief Financial Officer
ARVINMERITOR, INC., as initial Collection Agent
By: /s/ James D. Donlon, III
Name:
James D. Donlon, III
Title:
Senior Vice President and Chief Financial Officer
-4-
THREE PILLARS FUNDING LLC, AS A CONDUIT LENDER
By: /s/ Doris J. Hearn
Name: Doris J. Hearn
Title:
Vice President
SUNTRUST BANK, AS A COMMITTED LENDER
By: /s/ Douglas C. O’Bryan
Name: Douglas C. O’Bryan
Title:
Vice President
SUNTRUST CAPITAL MARKETS, INC., AS THREE PILLARS AGENT AND AS ADMINISTRATIVE
AGENT
By: /w/ Michael G. Maza
Name:
Michael G. Maza
Title: Managing Director
-5-
|
Citation Nr: 1521393
Decision Date: 05/19/15 Archive Date: 05/26/15
DOCKET NO. 05-29 082 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for a hip disability.
2. Entitlement to service connection for an arteriovenous malformation (AVM).
3. Entitlement to service connection for depression.
4. Entitlement to service connection for memory loss (claimed as dementia).
5. Entitlement to service connection for a right eye condition.
REPRESENTATION
Veteran represented by: Kathy A. Lieberman, Attorney at Law
ATTORNEY FOR THE BOARD
L. Pelican, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1966 to June 1968.
This case comes before the Board of Veterans' Appeals (the Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claims for AVM and a hip disability. An October 2008 rating decision from the Houston RO denied the Veteran's claims of entitlement to service connection for depression, memory loss, and a right eye condition. The Veteran filed a timely appeal with respect to both decisions.
In June 2007, the Board of Veterans' Appeals (the Board) denied the Veteran's claims. Thereafter, the Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (the Court).
In May 2009, the Court vacated the Board's June 2007 denial of entitlement to service connection for AVM and hip disability. The Court remanded those issues for further development, and, if necessary, readjudication consistent with the Court's decision.
In December 2009, July 2012, and June 2013, the Board remanded the case to the VA Appeals Management Center (AMC) in Washington, D.C., for further development. That development included obtaining medical records from the VA Medical Center in Houston, Texas, since July 2008, requesting private medical records from St. Joseph Medical Center since 1979, requesting private medical records from the Veteran's treatment at the East Houston Regional Medical Center (formerly the Sun Belt Regional Medical Center), requesting records associated with a Workman's Compensation claim, scheduling the Veteran for a VA examination to determine the nature and etiology of the Veteran's AVM, and associating with the record an April 2013 independent medical opinion obtained by the AMC.
As a result of the remands, the AMC obtained records reflecting the Veteran's treatment at the Houston VAMC from July 2008 through May 2012, as well as records reflecting the Veteran's [email protected]. Joseph's Hospital from June to July 1983, March to August 1979, and July 2009. The Veteran also underwent a July 2010 VA neurologic examination, and the AMC associated with the claims file the April 2013 independent medical opinion report.
In March 2010, the East Houston Regional Medical Center reported that records reflecting the Veteran's treatment from 1984 to 2001 had been destroyed in a flood in 2001. In June 2010, the U.S. Department of Labor reported that it had no records reflecting a Workman's Compensation claim filed by the Veteran. In March 2013, the AMC requested the Veteran's records from the Social Security Administration (SSA). However, the SSA reported that those records had been destroyed. In July 2013, St. Joseph Medical Center reported that it had no records related to the Veteran's treatment from 1979 to 2002, as records were only maintained for 10 years.
In August 2013, following the above development, the AMC continued to deny the Veteran's claims of entitlement to service connection for a hip disability and AVM. The case was returned to the Board.
In a February 2014 decision, the Board denied the Veteran's claims. Thereafter, the Veteran filed a timely appeal with the Court.
A November 2014 Court Order granted a Joint Motion for Remand (JMR), vacating the Board's decision to the extent that it denied the claims listed above, and remanded the appeal to the Board for further adjudication. The November 2014 JMR determined that the Board erred in not obtaining treatment records from the Houston VAMC dated after July 2010, citing other evidence indicating the Veteran continued to receive treatment at the facility through May 2012. Additionally, the JMR faulted the Board for relying on inadequate VA examinations, in particular the July 2010 VA examination and the April 2013 independent medical opinion report. The JMR directed the Board to obtain the identified VA medical records and then provide the Veteran with an adequate examination.
The Board further notes that while proceedings were ongoing for the AVM and hip disability appeal, the Veteran's appeal for depression, memory loss, and a right eye condition was discontinued in 2011 due to a clerical error. The appeal was reactivated in April 2012. By way of a VA Form 21-22a received in January 2015, the Veteran's representative for the AVM and hip disability assumed representation for the Veteran as to depression, memory loss, and a right eye condition.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
In advancing the terms of the November 2014 JMR, the Court found that the Board relied on inadequate examinations to deny the Veteran's claim for AVM. In this regard, the Court found that the April 2010 VA examination report's findings were unclear in that the examiner stated the Veteran's AVM symptoms improved following his resection, which occurred 11 years after service and therefore had no relevance in determining whether the malformation was related to service. The Court also found that the April 2011 addendum did not provide sufficient detail to inform the Board on the question of whether the Veteran's in-service headaches amounted to a "superimposed disability," for the purposes of establishing service connection.
The Court also found that the April 2013 independent medical opinion was inadequate as it was unclear, based on the letterhead on which the opinion was printed, whether the author of the opinion was an independent physician or a "rating board physician." The JMR also cited the examiner's reliance on medical records not contained in the claims file; however, as noted above, the records cited by the examiner were contained in the electronic portion of the claims file at the time of the examination and remain there presently. Additionally, the JMR cited the examiner's statement that the opinion was based on a "limited review of the literature," as calling into question the examiner's qualifications to render the requested opinion and suggesting the opinion may have lacked sufficient rationale. The JMR directed that on remand the Veteran should be provided an adequate examination.
The Board notes that the Veteran submitted a positive nexus opinion from Dr. A. A., a private physician, in February 2015. However, that opinion did not specify whether the Veteran's AVM was a congenital defect or a congenital disease.
A congenital or developmental defect is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2014). Therefore, a congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Further, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304(b) (2014), does not apply to congenital defects. However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service, which results in additional disability. See 38 U.S.C.A. §§ 1110, 1111 (West 2014); VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Accordingly, Dr. A. A.'s opinion does not provide the Board with enough information to render a decision on the Veteran's claim.
With respect the Veteran's claimed hip disability, the Veteran has not been afforded a VA examination, nor is a nexus opinion of record. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.
VA medical records include a February 2008 x-ray report showing bilateral narrowing of the hips with degenerative changes, osteophyte formation, and subchondral tiny cystic changes. The Veteran has alleged he experienced a hip injury while in service, and that he received treatment for it at a dispensary. See March 2004 statement. The Veteran has elsewhere indicated that he reported his hip injury, that nothing was done for it, and as a result of the pain he experienced, he was unable to follow orders and received an Article 15. See October 2004 Notice of Disagreement. The Veteran's service treatment records do not support his contentions, as they are silent for any complaints or treatment for a hip condition. Moreover, on his April 1968 separation examination and report of medical history, the Veteran's spine and other musculoskeletal systems and lower extremities were clinically normal, and the Veteran explicitly denied bone, joint, or other deformities.
However, the Veteran's service personnel files are not of record. Documentation of the Veteran's reported Article 15 for failing to follow orders may support his October 2004 contention regarding a hip injury, and trigger the duty to obtain the Veteran a VA examination. See McLendon v. v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, on remand the Veteran's service personnel records should be obtained and associated with the record. If they show he received an Article 15 for failing to follow orders due to hip pain, he should be afforded a VA examination to assess the etiology of his claimed hip disability.
Lastly, with respect to the claims for depression, memory loss, and a right eye condition, the Board notes that those appeals have not yet been certified to the Board. As noted above, a review of the record shows that the Veteran's appeal with respect to those issues was closed in 2011 due to a clerical error. In January 2012, the error was discovered and his appeal was reactivated in April 2012. The Veteran requested a travel board hearing on his January 2015 VA Form 9.
Ordinarily the Board would wait for the RO to certify these appeals to the Board before acting. However, given the anomalous situation presented in this case, the presence of a timely VA Form 9, and in the interest of sparing the Veteran further undue delay in the adjudication of his claims, the Board finds it appropriate in this instance to act on the pending hearing request. As the Veteran has not been afforded a hearing, it is appropriate to remand this case for due process reasons for these claims.
Accordingly, the case is REMANDED for the following actions:
1. Obtain the Veteran's service personnel records and any outstanding service treatment records from his active duty service from all appropriate sources, including but not limited to the Veteran's unit, the National Personnel Records Center (NPRC), and the Records Management Center (RMC) or any other appropriate repository. All efforts to obtain these records should be fully documented. Any records obtained should be associated with the file. If no records are available, a negative reply is requested and should be associated with the file.
2. Obtain all outstanding VA treatment and evaluation records dated from November 2013 to present. All records received should be associated with the claims file.
3. Next, the Veteran should be afforded an examination by an appropriate examiner to determine the current nature and etiology of his AVM disability. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed.
Based on the review and the examination, the examiner is asked to:
a) Identify any residuals from the Veteran's AVM.
b) State whether the Veteran's AVM and any residuals therefrom is a congenital / developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. Please provide a complete explanation for the opinion.
c) If it is a congenital/developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability. Please provide a complete explanation for the opinion.
d) If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the disease preexisted active service. Please provide a complete explanation for the opinion.
e) If the disease clearly and unmistakably preexisted service, is it clear and unmistakable (obvious, manifest, and undebatable) that the disease WAS NOT aggravated (i.e., permanently worsened) during the Veteran's service or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion.
f) Is the answer to the above questions is no, whether it is at least as likely as not (a probability of 50 percent or greater) that AVM or residuals therefrom began in or are related to active service. Please provide a complete explanation for the opinion.
Review of the entire file is required, and a rationale for any opinion offered is requested. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011).
4. If warranted based on new evidence obtained, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed hip disability. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed.
Based on the review and the examination, and after identifying any diagnosed hip disability, the examiner is asked to opine on the whether it is at least as likely as not (a probability of 50 percent or greater) any diagnosed hip disability began in or is related to active service.
Review of the entire file is required, and a rationale for any opinion offered is requested. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011).
5. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claims. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond.
6. Schedule the Veteran for a travel board hearing before a Veterans' Law Judge for his depression, memory loss, and right eye claims, and notify him of the scheduled hearing at the latest address of record. This hearing is to be scheduled in accordance with applicable law.
The case should then be returned to the Board for appropriate appellate 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).
These claims 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).
_________________________________________________
MICHAEL A. PAPPAS
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) (2014).
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Case 3:21-cr-00957-JM Document 44 Filed 08/20/21 PageID.154 Page 1 of 5
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case
UNITED STATES DISTRICT Co
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA JUDGMENT IN AC
V.
LUIS ALFONSO CAZZALI (1)
Case Number: 3:21-CR-00957-JM
Matthew C. Binninger
Defendant's Attorney
USM Number 01311-506
• -
THE DEFENDANT:
IZI pleaded guilty to count(s) One of the Information
D was found guilty on count(s)
after a plea ofnot guilty.
Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offense(s):
Title and Section / Nature of Offense Count
21:952, 960 - Importation OfMethamphetamine (Felony) I
The defendant is sentenced as provided in pages 2 through 5 of this judgment.
The sentence is imposed pursuant to the Sentencing Reform Act of 1984.
D The defendant has been found not guilty on count(s)
D Count(s) is dismissed on the motion of the United States.
IZ! Assessment: $100.00
• NT A Assessment*: $
*Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
IZI No fine • Forfeiture pursuant to order filed , included herein.
IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30 days of any
change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this
judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and United States Attorney of
any material change in the defendant's economic circumstances.
August 20. 2021
Date of Imposition of Sentence
. F Y ,MILLER
DSTi\TES DISTRICT JUDGE
Case 3:21-cr-00957-JM Document 44 Filed 08/20/21 PageID.155 Page 2 of 5
AO 245B (CASD Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: LUIS ALFONSO CAZZALI (1) Judgment - Page 2 of 5
CASE NUMBER: 3:21-CR-00957-JM
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:
Forty-eight (48) months as to count 1
• Sentence imposed pursuant to Title 8 USC Section 1326(b).
IZl The court makes the following recommendations to the Bureau of Prisons:
Strong recommendation for Residential Drug Abuse Program.
• The defendant is remanded to the custody of the United States Marshal.
• The defendant must surrender to the United States Marshal for this district:
• at A.M. on
-------------------
• as notified by the United States Marshal.
The defendant must surrender for service of sentence at the institution designated by the Bureau of
• Prisons:
• on or before
• as notified by the United States Marshal.
• as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on
_ _ _ _ _ _ _ _ _ _ _ _ _ _ to _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
at - - - - - - - - - - - - , with a certified copy of this judgment.
UNITED STATES MARSHAL
By DEPUTY UNITED STATES MARSHAL
3:21-CR-00957-JM.
Case 3:21-cr-00957-JM Document 44 Filed 08/20/21 PageID.156 Page 3 of 5
AO 245B (CASO Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: LUIS ALFONSO CAZZALI (1) Judgment - Page 3 of 5
CASE NUMBER: 3:21-CR-00957-JM
SUPERVISED RELEASE
Upon release from imprisonment, the defendant will be on supervised release for a term of:
Three (3) years
MANDATORY CONDITIONS
1. The defendant must not commit another federal, state or local crime.
2. The defendant must not unlawfully possess a controlled substance.
3. The defendant must not illegally possess a controlled substance. The defendant must refrain from any unlawful use of a
controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least
two periodic drug tests thereafter as determined by the court. Testing requirements will not exceed submission of more
than 4 drug tests per month during the term of supervision, unless otherwise ordered by the court.
D The above drug testing condition is suspended, based on the court's determination that the defendant poses a low
risk of future substance abuse. (check if applicable)
4. D The defendant must make restitution in accordance with 18 U .S.C. §§ 3663 and 3663A or any other statute authorizing
a sentence of restitution. (check if applicable)
5. ~The defendant must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6. • The defendant must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. §
20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in
the location where the defendant resides, works, is a student, or was convicted of a qualifying offense. (check if
applicable)
7. •
The defendant must participate in an approved program for domestic violence. (check if applicable)
The defendant must comply with the standard conditions that have been adopted by this court as well as with any other
conditions on the attached page.
3 :21-CR-00957-JM
Case 3:21-cr-00957-JM Document 44 Filed 08/20/21 PageID.157 Page 4 of 5
AO 245B (CASO Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: LUIS ALFONSO CAZZALI (1) Judgment - Page 4 of 5
CASE NUMBER: 3:21-CR-00957-JM
STANDARD CONDITIONS OF SUPERVISION
As part of the defendant's supervised release, the defendant must comply with the following standard conditions of
supervision. These conditions are imposed because they establish the basic expectations for the defendant's behavior
while on supervision and identify the minimum tools needed by probation officers to keep informed, report to the
court about, and bring about improvements in the defendant's conduct and condition.
1. The defendant must report to the probation office in the federal judicial district where they are authorized to reside within 72
hours of their release from imprisonment, unless the probation officer instructs the defendant to report to a different probation
office or within a different time frame.
2. After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer
about how and when the defendant must report to the probation officer, and the defendant must report to the probation officer
as instructed.
3. The defendant must not knowingly leave the federal judicial district where the defendant is authorized to reside without first
getting permission from the court or the probation officer.
4. The defendant must answer truthfully the questions asked by their probation officer.
5. The defendant must live at a place approved by the probation officer. If the defendant plans to change where they live or
anything about their living arrangements (such as the people living with the defendant), the defendant must notify the
probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to
unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or
expected change.
6. The defendant must allow the probation officer to visit them at any time at their home or elsewhere, and the defendant must
permit the probation officer to take any items prohibited by the conditions of their supervision that he or she observes in plain
view.
7. The defendant must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer
excuses the defendant from doing so. If the defendant does not have full-time employment the defendant must try to find full-
time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the
defendant works or anything about their work (such as their position or their job responsibilities), the defendant must notify the
probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible
due to unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a
change or expected change.
8. The defendant must not communicate or interact with someone they know is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, they must not knowingly communicate or interact with that person without
first getting the permission of the probation officer.
9. If the defendant is arrested or questioned by a law enforcement officer, the defendant must notify the probation officer within 72 hours.
10. The defendant must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e.,
anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such
as nunchakus or tasers ).
11. The defendant must not act or make any agreement with a law enforcement agency to act as a confidential human source or
informant without first getting the permission of the court.
12. If the probation officer determines the defendant poses a risk to another person (including an organization), the probation
officer may require the defendant to notify the person about the risk and the defendant must comply with that instruction.
The probation officer may contact the person and confirm that the defendant notified the person about the risk.
13. The defendant must follow the instructions of the probation officer related to the conditions of supervision.
3:21-CR-00957-JM
Case 3:21-cr-00957-JM Document 44 Filed 08/20/21 PageID.158 Page 5 of 5
• AO 245B (CASO Rev. 1/19) Judgment in a Criminal Case
DEFENDANT: LUIS ALFONSO CAZZALI (1) Judgment - Page 5 of 5
CASE NUMBER: 3:21-CR-00957-JM
SPECIAL CONDITIONS OF SUPERVISION
1. Not enter or reside in the Republic of Mexico without permission of the court or probation officer and comply
with both United States and Mexican immigration laws.
2. Participate in a program of drug or alcohol abuse treatment, including drug testing and counseling, as directed
by the probation officer. Allow for reciprocal release of information between the probation officer and the
treatment provider. May be required to contribute to the costs of services rendered in an amount to be determined
by the probation officer, based on ability to pay.
3. Report all vehicles owned or operated, or in which you have an interest, to the probation officer.
4. Submit your person, property, house, residence, vehicle, papers, [computers (as defined in 18 U.S.C. §
1030(e)(l)), other electronic communications or data storage devices or media,] or office, to a search conducted
by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The
offender must warn any other occupants that the premises may be subject to searches pursuant to this condition.
An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that the offender
has violated a condition of his supervision and that the areas to be searched contain evidence of this violation.
Any search must be conducted at a reasonable time and in a reasonable manner.
II
3:21-CR-00957-JM
|
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2173
R ENARDO L. L YNCH,
Plaintiff-Appellant,
v.
N ORTHEAST R EGIONAL C OMMUTER R AILROAD C ORP.,
d/b/a M ETRA /M ETROPOLITAN R AIL,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-07276—Elaine E. Bucklo, Judge.
A RGUED M ARCH 29, 2012—D ECIDED O CTOBER 29, 2012
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. On October 8, 2007, Renardo
Lynch was injured while working at a jobsite as a
mechanic for Metropolitan Rail (Metra), when the top
rail of a chain-link fence he was installing fell and struck
him on the back of his neck and shoulders. Lynch filed
a complaint under the Federal Employers’ Liability Act
(FELA) seeking damages against Northeast Regional
2 No. 11-2173
Commuter Railroad Corporation, doing business as
Metra, for the injuries he sustained that day. The district
court granted summary judgment in favor of Metra,
and Lynch appeals.
I.
Lynch was hired by Metra in 1987 to work in the track
department, but moved to the Bridges and Building
(“B & B”) department where he held a number of posi-
tions. At the time of the injury, he was working as a
B & B mechanic. The duties of a mechanic included:
installing fences, doors and windows; painting; brick-
work; installing pedestrian road crossings at depots;
upkeep of depots; and maintaining Metra bridges and
buildings. Although Metra provided training regarding
some of those duties, no training was provided re-
garding the installation of fencing. Mechanics learned
how to install fences from working with peers on
the jobsites.
The installation of fences was a routine part of a me-
chanic’s job in that such work was done several times
per month, and it occurred in distinct phases over
multiple days. In the first stage, a work crew would dig
holes about three feet deep and set vertical fence posts
in cement. Those posts, called terminal or end posts,
measured approximately 3 inches in width. The cement
was then allowed to cure for 1-2 days.
In the next phase, the top rails of the fence were in-
stalled. Those rails were secured to the fence posts by
No. 11-2173 3
means of brackets with attached cups that were tightened
around the fence post. The cups were recessed at least
one and a half inches so the top rail could be placed
in the sleeve of the cup and secured. The top rail was
first cut to the proper dimension to fit from one cup end
to another, and the cups were loosened to position the
top rail in place and then tightened to secure it. Ac-
cording to the deposition testimony of crew members
who regularly installed fencing, once the top rail is
secured and the brackets tightened the top rail should
not be able to slip out of the cups.
After the top rail is installed, the fabric or chain link
is put in place and secured to the skeleton—the rail and
posts. Lynch was engaged in this task at the time of
the injury.
On the day of the incident, Lynch and the other
members of his work crew reported to Metra’s Western
Avenue facility at 6:00 in the morning. The work crew
that day included the foreman Brad Clark, assistant
foreman Trancito Reyes, B & B mechanics Ivory Scott
and Kurtis Otero, and Nathan Fullbright. The foreman
briefed the crew as to their tasks for the day, and
they proceeded to the Western Avenue depot with the
necessary supplies. It is undisputed that the fence
posts had previously been installed at that site, and
the evidence is unclear as to whether the top rails were
in place or whether Lynch’s work crew installed them
that day. Lynch did not believe that he helped install
the top rail that day. The fence was located on a hill,
which was described as steep, and there was a drop in
elevation between the two fence posts.
4 No. 11-2173
At the time of the incident, Lynch and Otero were
installing the fabric or mesh part of the fence and were
on their knees next to each other tightening brackets at
the bottom of the fence post. The top rail fell, hitting
Lynch across the back of his neck and shoulders
and causing him to sprawl “flat face down.” Lynch was
uncertain as to whether he lost consciousness, but he
was dazed. He ended up missing work for approximately
28-30 days following the injury.
Lynch and Otero both maintained that they were not
pulling on any portion of the posts or top rail at the
time the rail dropped, and that they did not believe
any actions on their part contributed to its fall. Metra
has acknowledged that there was nothing Lynch or his
co-workers did to cause the pole to fall. See Metra’s
Rule 56.1 Statement of Uncontested Facts at 3, no. 29.
Metra also admitted that the employees are responsible
for inspecting the work being done. Id. at 4, no. 38.
II.
The district court recognized that under FELA,
45 U.S.C. § 51 et seq., an employee will survive sum-
mary judgment if the evidence justifies with reason
the conclusion that the employer’s negligence played
any part in producing the injury. Dist. Ct. Op. at 4. Ac-
cording to the district court, that means that under
FELA an employer is liable for its negligence even if
the injured worker is even more negligent, but it does
not stand for the proposition that a plaintiff who “fails
to produce even the slightest evidence of negligence”
No. 11-2173 5
is entitled to a jury trial. Id. The court then considered
the evidence produced by Lynch to establish the
elements of negligence. Although Metra had moved
for summary judgment on the basis that Lynch failed to
demonstrate a breach of due care, the court assumed
that Lynch had in fact presented sufficient evidence of
a breach of its duty to provide a reasonably safe work-
place with proper training. Id. at 5-6. Instead, the court
granted summary judgment for Metra on the issue of
causation, holding that Lynch’s theory that the top
rail was cut too short or improperly installed rested
on speculation not facts. Id. at 6. In particular, the court
emphasized the failure of Lynch to introduce evi-
dence of the measurement of the top rail and the
distance between the fence posts, or the grade of the
hill. 1 Id. at 7-8. The court dismissed the testimony of co-
worker Otero that a top rail should not come loose if cut
and secured properly, declaring that Otero was a fact
witness not an expert, and that no expert testimony
was provided. Id. at 7. The court held that the causation
1
Such measurements are too often overlooked. See Coffey
v. Northern Illinois Regional Commuter R.R. Corp. (METRA), 479
F.3d 472, 478 (7th Cir. 2007) (noting the curious and deplorable
aversion of many lawyers to exact measurements). In this
case, however, there is no indication whether the pole was
even available to be measured. The extent of the injury was
not immediately clear, and therefore the pole may not have
been retained. We note that the measurement was not
provided by Metra either, although it potentially could have
eliminated the possibility of worker negligence in cutting it.
6 No. 11-2173
standard under FELA was not so lax as to allow a
plaintiff to proceed on nothing more than rank specula-
tion, and granted summary judgment to Metra on that
basis. Id. at 8.
In addressing the lack of evidence presented by Lynch
regarding causation, the district court noted that it
could be related to the failure of Metra to argue for sum-
mary judgment on that issue:
To be fair, plaintiff’s brevity on this issue is likely
the result of defendant’s curious failure to argue that
it is entitled to summary judgment based on the
absence of any evidence of causation, instead focusing
on the argument that the evidence does not support
a breach of due care.
Id. at 6, n.3. The court nevertheless concluded that
Metra had “carried its initial burden under Rule 56,
by identifying record evidence to support its statement
that ‘it is unknown why the pole fell,’ and is entitled
to summary judgment based on plaintiff’s failure to
dispute that evidence with ‘specific facts showing there
is a genuine issue for trial.’ ” Id.
III.
On appeal, Lynch argues that the district court erred
in granting summary judgment on a basis not asserted
by Metra without providing it an opportunity to respond.
Pursuant to Federal Rule of Civil Procedure 56(a), “a
party may move for summary judgment, identifying
each claim or defense—or the part of each claim or
No. 11-2173 7
defense—on which summary judgment is sought.” In
this case, Metra moved for summary judgment on the
ground that Lynch had failed to demonstrate negligence,
but specifically that he had not demonstrated a breach
of duty because Metra lacked actual or constructive
notice of a defect that caused Lynch’s injuries. The
court chose, however, to grant summary judgment on a
different ground not argued by Metra, that of causation.
Metra does not contend on appeal that it briefed the
causation issue before the district court. Instead, it points
out that under Federal Rule of Civil Procedure 56(f),
a district court may grant summary judgment on a
ground not raised by the moving party. A look at the
actual language of Rule 56(f) clarifies the circumstances
under which the court may so act:
After giving notice and a reasonable time to respond, the
court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party;
or
(3) consider summary judgment on its own after
identifying for the parties material facts that may
not be genuinely in dispute.
[emphasis added]. Rule 56(f) thus allows a court to
grant summary judgment on grounds not raised by a
party only after providing notice and a reasonable time
to respond. There is no indication that such notice and
time to respond was provided in this case. Lynch asserts
on appeal that, given an opportunity to respond, he
8 No. 11-2173
would have presented medical evidence linking his
injury to the impact caused by the top rail. That evidence,
however, would not have addressed the court’s concern
that Lynch had failed to demonstrate that Metra’s
breach of a duty caused the top rail to fall. It is unclear
whether Lynch would have presented evidence relating
to that issue, such that the failure to provide notice and
time to respond would have adversely impacted him.
Ultimately, we need not address this Rule 56(f) issue,
because there was no need for Lynch to provide any
further response; we hold below that the record con-
tains sufficient evidence of causation and therefore
the court improperly granted summary judgment on the
merits.
IV.
FELA was enacted in response to the dangers inherent
in working for the railroad and the high rate of injuries
among railroad employees. See Consolidated Rail Corp. v.
Gottshall, 512 U.S. 532, 542-43 (1994). It establishes a
standard for employer liability that is more lax than
common law negligence standards, and eliminates a
number of traditional defenses such as contributory
negligence, the fellow-servant rule, and assumption of
risk. Williams v. National R.R. Passenger Corp., 161 F.3d
1059, 1061 (7th Cir. 1998); Gottshall, 512 U.S. at 542-43.
Under FELA, railroads are liable if carrier negligence
played any part, even the slightest, in producing the
injury. CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630,
2634 (2011); DeBiasio v. Illinois Central R.R., 52 F.3d 678, 685
No. 11-2173 9
(7th Cir. 1995). A plaintiff’s burden under FELA is thus
significantly lighter than in an ordinary negligence
action. Green v. CSX Transportation, Inc., 414 F.3d 758, 766
(7th Cir. 2005). A jury verdict in a FELA action can be set
aside only if there is a complete absence of probative
facts to support the jury’s conclusion. DeBiasio, 52 F.3d at
685; Hines v. Consolidated Rail Corp., 926 F.2d 262, 268
(3d Cir. 1991) (holding that a “ ‘trial court is justified in
withdrawing . . . issue[s] from the jury’s consideration
only in those extremely rare instances where there is a
zero probability either of employer negligence or that
any such negligence contributed to the injury of an em-
ployee.’ ”).
FELA imposes strict liability on railroad carriers who
violate certain safety statutes, but none of those statutes
are implicated here. See McBride, 131 S. Ct. at 2643 n.12;
McGinn v. Burlington Northern R. Co., 102 F.3d 295, 298-99
(7th Cir. 1996); Granfield v. CSX Transportation, Inc., 597
F.3d 474, 480 (1st Cir. 2010); Phillips v. CSX Transportation,
Inc., 190 F.3d 285, 288 (4th Cir. 1999). Therefore in order
to survive summary judgment, Lynch had to allege evi-
dence creating a genuine issue of fact on the elements of
negligence including duty, breach, foreseeability, and
causation. Green, 414 [email protected]. Before the district court,
Metra argued that it was entitled to summary judgment
because Lynch failed to present evidence that Metra
was on notice of any unsafe condition and did not create
a genuine issue of fact that Metra breached its duty to
provide a safe workplace. The district court assumed
that Lynch met the element of breach of duty, but
granted summary judgment on the ground that Lynch
10 No. 11-2173
did not raise a genuine issue of fact as to the element of
causation. On appeal, the only issue presented to us is
whether the district court properly granted summary
judgment based on Lynch’s failure to raise a genuine
issue of fact as to causation. Metra does not argue on
appeal that summary judgment should be upheld based
on other grounds such as duty, breach or foreseeability,
and therefore we can limit our analysis to whether the
district court properly resolved the causation issue.
A.
The district court began by correctly stating that an
employee in a FELA action is “entitled to a jury if ‘the
proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing
the injury,’ ” a standard set forth by the Supreme Court
in Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506
(1957). Dist. Ct. Memorandum Opinion and Order at 4,
quoting Harbin v. Burlington Northern R.R. Co., 921 F.2d
129, 131 (7th Cir. 1990) and Rogers (emphasis in Harbin).
The district court then concluded, however, that “the
import of this principle is merely that under the FELA,
an employer will be liable for its negligence even if the
injured worker was even more negligent,” and declared
that it does not stand for the proposition that a plaintiff
who fails to produce even the slightest evidence of negli-
gence is entitled to proceed to a jury trial. Id. That
characterization of the FELA standard is troublesome.
The Supreme Court in McBride, decided after the dis-
trict court issued its opinion, rejected the notion that
No. 11-2173 11
the “any part . . . in causing the injury” language con-
cerned only division of responsibility among multiple
actors, and not causation generally. 131 S. Ct. at 2638 n.2.
In that case, CSX argued that the relaxed FELA standard
displaced only common law restrictions on recovery
for injuries involving contributory negligence, and did
not address the requisite directness of a cause. Id. at 2637.
The Court held that Rogers announced a general standard
for causation in FELA cases not one applicable exclu-
sively to injuries involving multiple causes. Id. at 2639.
The “in part” language applied as well to the “directness
or foreseeability of the connection between the carrier’s
negligence and the plaintiff’s injury.” Id. Therefore, the
district court erred in stating that the import of
the “in part” standard was merely to hold the carrier
liable in cases of negligence by multiple actors. Rogers
made clear that the common law consideration about
whether a particular cause was “sufficiently substantial”
to constitute a proximate cause was replaced with the
straightforward “any part” language as the “single” inquiry
determining causation in FELA cases. Id. at 2638-39.
Accordingly, the FELA “in part” standard impacts the
causation analysis beyond cases in which the employee
is also negligent. That said, the district court properly
noted that FELA does not render employers strictly
liable for any workplace injury without any showing of
negligence. The relevant inquiry, then, is whether the
evidence here raised a genuine issue of fact that Metra’s
negligent breach of duty was a cause, even in the
slightest, of the injury to Lynch.
12 No. 11-2173
B.
The district court assumed that Lynch had raised a
genuine issue of fact as to Metra’s breach of its duties
under FELA to provide employees a reasonably safe
workplace, safe equipment, proper training, and suitable
methods to perform the assigned work. Lynch alleged
that those duties were breached in three aspects: (1) Metra
failed to provide adequate training in fence installation;
(2) Metra failed to adopt and enforce reasonably safe
work methods and procedures; and (3) Metra failed to
inspect, discover and remedy unsafe conditions. Lynch’s
theory was that the top rail slipped from its cup either
because it was cut too short or not securely tightened,
or because it was not installed in a manner that appro-
priately accounted for the steep grade of the hill.
In the district court, Lynch presented evidence that
the foreman at the worksite had an ongoing obligation
to inspect the work being performed at each phase, and
that in the foreman’s absence the assistant foreman
had that responsibility. At the time of the incident, the
foreman was away from the jobsite acquiring needed
materials, but the assistant foreman, Reyes, was pres-
ent. There was also testimony that crew members indi-
vidually had an obligation to inspect.
In addition, the record contained testimony from
some of the crew members as to the procedures for mea-
suring and cutting the top rail so that it fit snugly, as
deeply-seated into the cups attached to the fence posts
as possible. Scott had worked for 18 or 19 years as
a B & B mechanic at Metra and installed fences regularly
No. 11-2173 13
during that time. He testified that a rail that is cut to
the proper length and tightened in the cup should
not be able to come out of the cup. Otero, who had
11 years of experience working for Metra as a B & B
mechanic, similarly testified that a rail that is cut to
the proper length and secured in the cup should not
be able to fall out. He further opined that the grade of
the hill might have impacted it. He testified that in
installing the mesh on the posts and rails, there was
concern regarding the impact of the grade of the hill, and
that a trench was dug in front of one of the posts in the
area of the accident in order to accommodate for the
impact of the grade of the hill on the ability to properly
secure the mesh to the posts and rail. Finally, Lynch
presented evidence that although workers received
training on a number of mechanic tasks, they received
no formal training for installing fences, although they
engaged in that task on a regular basis. They learned
how to install fences “on the job,” from other crew mem-
bers involved in the installation. Although Otero had
been a mechanic for 11 years, he had never worked on
a fence with an elevation difference like the one
involved here, which he described as at least a 2-3 foot
drop between posts. He received no training on
installing fencing in circumstances such as that one.
That evidence is sufficient to present a genuine issue
of fact concerning the causation issue. From that testi-
mony, a jury could reasonably conclude that the top
rail fell out because it was either cut too short or improp-
erly tightened in the cup by a Metra employee. The
jury could further conclude that the problem would
14 No. 11-2173
have been discovered if a Metra employee had inspected
the top rail after it was installed and before the next
phase, fastening the mesh to the skeleton, was initiated.
Finally, a jury could determine that the failure to pro-
vide training in fence installation left the crew mem-
bers ill-equipped to adjust to non-standard conditions
such as the steep grade of the hill, and that the inability
of the employees to anticipate the impact of that grade
on the rail contributed to the fall.
C.
The district court held that Lynch could not proceed
because those theories were based on nothing more than
rank speculation. The court rejected the testimony of
Otero as unhelpful because he testified both that a top
rail should not come out if cut to the proper length and
that the grade of the hill could have caused it to fall out.
The court then declared that “more importantly,” Otero
was a fact witness not an expert. The court criticized
Lynch for failing to measure the distance between the
posts, the length of the top rail, and the grade of the
hill, and for failing to attempt to recreate the accident
“or otherwise investigate or exclude other possible
causes.” Dist. Ct. Op. at 7. As to Otero’s testimony that
the hill was steep and at least a 15 percent grade, the
court dismissed it as explicitly speculative.
The district court erred in dismissing the testimony
as speculative and demanding direct evidence of the
cause of the fall and exclusion of other possible causes. In
its statement of uncontested facts for the summary judg-
No. 11-2173 15
ment motion, Metra admitted that the crew members
were working on a hill, that it was a warm, clear and
sunny day and lighting was not a problem, that Lynch
was installing the mesh and nothing he did caused the
pole to fall, and that no one slipped or fell causing the
top rail to dislodge. In other words, Metra acknow-
ledged that the top rail did not fall out as a result of
inclement weather or an “act of God,” that Lynch did not
cause it to dislodge in his actions installing the mesh,
and that the rail did not have any apparent design or
manufacturing defect. That leaves the most obvious
cause of the fall—the failure to cut it long enough to
ensure that it remained seated in the cups, or the failure
to securely tighten the cup. Either of those conditions
could be easily ascertained if the rail had been in-
spected prior to proceeding with the next phase of fence
construction—installing the mesh fabric. The testimony
indicated that a properly installed top rail should be
snug, and could move in the cups only slightly; a
person inspecting the top rail could have checked the
amount of movement and the amount of resistance in
its movement, thus determining whether it was properly
seated in the cups.
The district court in effect held that the jury could not
draw the most obvious conclusion as to the cause of the
injury, because there is no direct evidence of that cause
and no expert testimony supporting that conclusion.
That is inconsistent with the consistent holdings of
this and other courts that under FELA, circumstantial
evidence alone can support a jury verdict, and expert
testimony is unnecessary where the matter is within
the realm of lay understanding and common knowledge.
16 No. 11-2173
D.
We consider first the implication that expert testimony
is necessary to survive summary judgment on a FELA
claim. Courts have consistently rejected that position,
holding that expert testimony is not required. For
instance, in Harbin, we considered Harbin’s FELA action
against Burlington Northern Railroad, claiming that
the unsafe work conditions caused his heart attack.
Harbin, 921 F.2d 129. The evidence demonstrated that
the roundhouse in which Harbin worked had no
special ventilation system. Id. at 129-30. Locomotives
left running in the building created clouds of exhaust
fumes. Id. at 130. In addition, once a year Harbin would
clean the inside of the boilers, by scraping the soot off
the inside and blowing it out with an air pressure hose.
Id. at 129-30. That would send additional soot into the
air. Id. The railroad provided Harbin with a mask but
it covered only his mouth and not his nose. Id. at 130.
Harbin provided expert testimony from a doctor that
inhalation of particulate matter could irritate the lungs
and stress the heart, precipitating a heart attack, but did
not provide any expert testimony as to the air quality
or the amount of soot in the roundhouse air. Id.
The railroad protested that Harbin’s evidence thus
amounted to nothing more than pure fantasy, containing
“less substance than broth brewed from the bones of
a starved pigeon.” Id. at 131.
The district court in Harbin held there was enough
evidence of causation to go to a jury given the med-
ical expert testimony, but that there was insufficient
No. 11-2173 17
evidence of negligence. Id. The court opined that with-
out knowledge of the precise quantity or composition
of soot in the air, a jury would not be able to assess
the reasonableness of the railroad’s conduct. Id.
Although recognizing that expert testimony would
undoubtedly enhance Harbin’s case, we held on appeal
that it was not essential under the regime of FELA. Id. at
131. We held that “[a] long line of FELA cases reiterate
the lesson that the statute vests the jury with broad discre-
tion to engage in common sense inferences regarding
issues of causation and fault.” 921 F.2d at 132, citing
Rogers, 352 U.S. at 510 (noting that the decision must be
left for the jury “in all but the infrequent cases where fair-
minded jurors cannot honestly differ whether fault of
the employer played any part in the employee’s in-
jury”). Accordingly, we held that a jury could
reasonably conclude that the failure to implement a
different cleaning method such as a vacuum rather than
air pressure hose, and the failure to take other pre-
cautions such as more effective face masks, was negli-
gent. Id. at 131-32. We did not require expert testimony re-
garding the efficacy or practicality of such measures in
order to allow the case to proceed to the jury, noting that
“numerous FELA actions have been submitted to a jury
based upon far more tenuous proof—evidence scarcely
more substantial than pigeon bone broth.” Id. at 132.
Similarly, in Ulfik v. Metro-North Commuter R.R.,
77 F.3d 54, 59 (2d Cir. 1996), the court considered
whether expert testimony was necessary to establish
whether exposure to paint fumes on July 15 caused Ulfik’s
18 No. 11-2173
dizziness eight days later on July 23, which was the
only disputed link in the causal chain. The court held
that a jury could properly infer that exposure to paint
fumes caused headaches, nausea and dizziness without
the need for expert testimony. Id. at 59-60. The court
noted that expert testimony may be necessary where
some special expertise is necessary to draw a causal
inference because of its esoteric nature, but that
in general the causal sequence can be inferred from
circumstantial evidence, expert testimony, or common
knowledge. Id. at 60, citing W. Page Keeton et al., Prosser
& Keeton on the Law of Torts, § 41, at 270 (5th ed. 1984);
see also Myers v. Illinois Central R.R. Co., 629 F.3d 639, 643
(7th Cir. 2010) (expert testimony unnecessary in cases
where the layperson can understand what caused the
injury); Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d
Cir. 2004) (in FELA action, expert testimony necessary
only if causal link is beyond the knowledge of the lay
juror, such as the link between exposures to toxins and
squamous cell carcinoma).
The district court thus erred in dismissing Otero’s
testimony as merely a fact witness not an expert. There
was no reason for expert testimony on the easily under-
stood causal connection between improper installation
of a top rail and its subsequent drop to the ground. In
fact, the inference is an easier one to make than the infer-
ences in Ulfik that exposure to paint fumes caused dizzi-
ness eight days later, or the inference in Harbin that the
soot stirred up by the idling locomotives and boiler
cleaning was so significant as to create a safety con-
cern necessitating additional action by the railroad.
No. 11-2173 19
E.
The other basis—and perhaps overriding concern—of
the district court appears to be that Lynch has failed
to present any direct evidence establishing the cause of
the top rail collapse. Courts have repeatedly held, how-
ever, that in FELA cases the element of causation may
be established through circumstantial evidence or
common knowledge, and that direct or expert testimony
is not required. Missouri Pacific R.R. Co. v. Kansas Gas and
Elec. Co., 862 F.2d 796, 800 (10th Cir. 1988) (a case can
rest entirely on circumstantial evidence and still be suf-
ficient to reach the jury under FELA); Gibson v. Elgin,
Joliet & Eastern Ry. Co., 246 F.2d 834, 837 (7th Cir. 1957)
(burden met if proof, though entirely circumstantial,
from which a jury may with reason make the inference).
In fact, in Rogers the Supreme Court declared that
“[c]ircumstantial evidence is not only sufficient, but
may also be more certain, satisfying and persuasive
than direct evidence.” Rogers, 352 U.S. at 508, n.17.
The Supreme Court’s decision in Gallick v. Baltimore and
Ohio R. Co., 372 U.S. 108 (1963), which was recently reaf-
firmed in McBride, is instructive. See McBride, 131 S. Ct. at
2639. Gallick was a spotting crew foreman working on
the railroad’s right of way when he was bitten by an
insect. Gallick, 372 U.S. at 109. In an unfortunate progres-
sion, the wound from the bite became infected, and the
infection spread throughout his body, resulting in the
eventual amputation of both of his legs. Id. None of the
doctors who treated Gallick could explain the etiology
of his condition, but some of them characterized it as
20 No. 11-2173
secondary to an insect bite. Id. at 109-10. Gallick filed suit
against the railroad under FELA, claiming that the
insect bite occurred as he was working near a fetid pool
containing dead and decaying rats and pigeons, which
had existed for many years and of which the railroad
had knowledge. Id. at 100. He argued that the pool of
stagnant water attracted insects and resulted in the
bite and subsequent infection. Id. The appellate court in
the case held that a jury could not reasonably find
liability, because there was no direct evidence that the
insect had any connection with the pool of water or
evidence which would negate alternative possibilities
that the insect “had emanated from ‘the nearby putrid
mouth of the Cuyahoga River, or from the weeds, or
unsanitary places situated on property not owned or
controlled by the railroad.’ ” Id. at 112. The appellate
court concluded that the evidence was merely a series
of guesses and speculations—a chain of causation too
tenuous to support liability. Id.
The Supreme Court reversed that determination,
holding that the appellate court improperly invaded the
function and province of the jury, and that there was
sufficient evidence to warrant the jury’s conclusion
that the injuries were caused by the railroad’s acts or
omissions. Id. at 113. Specifically, the Supreme Court
held that the appellate court erred in requiring either
direct evidence that the insect had a connection to the
fetid pool, or more substantial circumstantial evidence
than that the pool created conditions that furnished an
environment to attract and infect such insects. The Court
noted that in FELA cases, the role of the court is not
No. 11-2173 21
to search the record for conflicting circumstantial
evidence and to take the case from the jury because the
evidence equally supports inconsistent and uncertain
inferences. Instead, it is the function of the jury, not
the court, to select among conflicting inferences and
conclusions.
The Court reached a similar conclusion in Lavender v.
Kurn, 327 U.S. 645, 646 (1946), a FELA case alleging
that a switchtender’s death was attributable to railroad
negligence. The switchtender, Haney, was found uncon-
scious near the track and died as a result of a fractured
skull. Id. at 648 An autopsy revealed an injury to the
back of his head made by a fast moving small round
object. Id. at 648-49. The petitioner’s theory was that
Haney was struck by the end of a mail hook hanging
down loosely on the outside of a mail car on a backing
train. Id. at 649. The petitioner introduced evidence that
the mail hook could have swung out 12 to 14 inches, and
if it so extended and if Haney was standing on top of a
nearby mound of dirt, he could have been struck by
the mail hook. Id. The respondent countered that the
mound was 10 to 15 feet north of the track and there-
fore the hook could not have reached Haney’s head. Id.
at 649-50. Instead, the respondent theorized that Haney
was murdered, and introduced evidence that hoboes
and tramps frequented the area at night and that Haney
carried a pistol to protect himself. Id. at 650. The Court
held that there was sufficient evidence of negligence to
justify submitting the case to the jury. Id. at 652. The
Court held that there was evidence from which it might
be inferred that the mail hook struck Haney. Id. The
22 No. 11-2173
Court acknowledged that there was also evidence in-
dicating that it was physically and mathematically im-
possible for the hook to strike Haney, and that there
were facts from which one could infer that he had
been murdered. Id. But the evidence indicating the hook
could have reached Haney was sufficient to allow the
case to go to the jury. Id. The Court explicitly rejected
the notion that the speculative nature of the inquiry
should prevent submission of the case to the jury:
It is no answer to say that the jury’s verdict involved
speculation and conjecture. Whenever facts are in
dispute or the evidence is such that fair-minded
men may draw different inferences, a measure of
speculation and conjecture is required on the part
of those whose duty it is to settle the dispute by
choosing what seems to them to be the most reason-
able inference. Only when there is a complete ab-
sence of probative facts to support the conclusion
does a reversible error appear.
Id. at 653.
Those cases establish that circumstantial evidence is
sufficient to establish FELA liability, and that a jury
can make reasonable inferences based on that circum-
stantial evidence even where conflicting inferences are
also appropriate and no direct evidence establishes
which inference is correct. See also DeBiasio v. Illinois
Central R.R., 52 F.3d 678, 684 (7th Cir. 1995) (testimony
by worker that, based on his 13 years of experience,
the sequence of events indicated that the cars had made
impact but failed to couple automatically, enough to
No. 11-2173 23
submit case to the jury even though no one witnessed
the actual impact). Mendoza v. Southern Pacific Transporta-
tion Co., 733 F.2d 631, 633 (9th Cir. 1984) (slight evidence
is sufficient in FELA cases to raise a jury question, and
it is only necessary that the conclusion be one that is
not outside the possibility of reason on the facts and
circumstances shown); Gibson, 246 F.2d at 837 (jury
verdicts can be based solely on speculation, conjecture
and possibilities).
F.
Finally, the district court and Metra rely on Coffey
v. Northeast Illinois Regional Commuter R.R. Corp. (METRA),
479 F.3d 472 (7th Cir. 2007) for the assertion that con-
jecture is insufficient to avoid summary judgment, but
that is demonstrably not the holding in Coffey. In fact,
Coffey further reinforces Lynch’s argument that sum-
mary judgment was improperly granted. In Coffey, the
plaintiff, a train engineer, asserted a FELA claim based
on an injury sustained when his head struck a sun visor as
he climbed into the driver’s cab of the train. Id. at 474.
Coffey hypothesized that the bolts fastening the visor
to the wall had been loosened by the vibration of the
train, causing the visor to descend halfway so that it
was pointing at the driver’s head. Id. at 475. Rather
than dismiss that possibility as speculative, we held that
“[t]he conjecture is implausible, though not quite so
outlandish that it can be rejected as a matter of law. But
pretty outlandish . . . .” Id. In finding sufficient evidence
of causation, we noted that “it is possible to tell a
24 No. 11-2173
story in which the horizontal position of the visor in
this case was the result of the railroad’s negligence in
failing to tighten the bolts.” Id. at 476. Recognizing
that evidence may be merely circumstantial, we
opined that it might even be argued that the position
of the visor was itself evidence of negligence, as the
position has no utility. Id. at 477. Therefore, in Coffey
we did not fault the plaintiff for failing to present
sufficient evidence of causation or for relying on circum-
stantial evidence. Coffey in fact held that the causation
theory could not be dismissed as a matter of law even
though the possible story was outlandish. The problem
in Coffey instead was with the failure to provide any
evidence at all of foreseeability. No evidence was pre-
sented of the proximity of the visor to the driver’s
head when groping for the light switch, or of the
weight and padding of the visor, either of which would
have given the railroad reason to foresee injury and
take precautions. Id.
Similar to Coffey, the fall of the pole from the cups
holding it is itself evidence that the pole was not
properly installed—either as a result of a failure to prop-
erly cut the pole to the optimal length or to secure the
pole tightly in the cup. The testimony of Otero and
Scott was consistent that a pole cut to the proper length
and securely tightened will not fall. Although the
district court appeared to believe that Otero con-
tradicted that testimony in also stating that the hill
may have caused the fall, there is nothing inherently
inconsistent in those two statements. The effect of
gravity could certainly cause a pole on the lower post
No. 11-2173 25
to seat itself more deeply in the lower cup, with the
result that a pole that was cut even slightly too short
or not tightened securely would fall. There is nothing
inconsistent in identifying both the hill and the
improper installation as causing the pole to fall.
Moreover, the failure to inspect the pole installation
before workers proceeded to install the mesh—an inspec-
tion that Metra appears to require—establishes causa-
tion as well because there is no reason to believe that
an improperly installed pole would not have been dis-
covered in the course of an inspection. The failure to
inspect the installation of the top rail was particularly
problematic because the testimony indicated that the
work crew was concerned about the installation of the
fence given the steep grade of the hill, and that the top
rail for that section was left uncompleted because of
the difficulties it presented. Those difficulties arguably
were compounded by the failure to train the employees
as to how to address such circumstances. Thus, it is not
only “possible to tell a story” that involves employer
negligence here, it is in fact the most likely explanation
for the events given the uncontradicted testimony that
a properly cut and tightened pole will not fall, and
that workers were supposed to inspect the work at
each stage. And the concern in Coffey with the lack of
evidence of foreseeability is not even an issue raised
by the parties in this case—nor should it be. The
danger of an improperly secured metal pole suspended
in the air above employees working to secure a mesh
fence is obvious, and the need to take precautions
follows from that. In fact, the obligation to inspect the
26 No. 11-2173
work at each stage is undoubtedly in recognition of that
danger.
Lynch therefore adequately raised genuine issues of
material fact as to negligence as required under FELA.
The decision of the district court granting summary
judgment is V ACATED and the case R EMANDED for fur-
ther proceedings consistent with this opinion.
10-29-12
|
Case 1:20-cv-01109-TAB-SEB Document 11 Filed 04/21/20 Page 1 of 2 PageID #: 117
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AUDREY COURTER, )
)
Plaintiff, )
)
v. ) No. 1:20-cv-01109-SEB-TAB
)
HOOK-SUPERX, LLC, )
)
Defendant. )
ORDER OF REFERENCE
The parties have indicated their consent to the exercise of jurisdiction by a United States
Magistrate Judge by the filing of a joint consent [Dkt. 10]. It is, therefore, ORDERED, that this
case be referred to the currently assigned United States Magistrate Judge, The Honorable Tim A.
Baker, to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73. Should this case be reassigned to a magistrate judge other than
the magistrate judge assigned the date of this order, any attorney or party of record may object
within 30 days of such reassignment. If no objection is filed, the consent will remain in effect.
The cause number of this action shall be amended to reflect the referral of this action to the
Magistrate Judge. Please use altered case no. 1:20-cv-01109-TAB-SEB on all future filings with
this court.
IT IS SO ORDERED.
4/21/2020
Date: ______________ _______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Case 1:20-cv-01109-TAB-SEB Document 11 Filed 04/21/20 Page 2 of 2 PageID #: 118
Distribution:
Alex Maurice Beeman
REMINGER CO. LPA (Indianapolis)
[email protected]
Nicholas Gene Brunette
REMINGER CO. LPA (Indianapolis)
[email protected]
Sarah Jane Graziano
HENSLEY LEGAL GROUP, PC
[email protected]
Eileen Ruth Smart
HENSLEY LEGAL GROUP
[email protected]
|
The bill prays an injunction against the defendant for an alleged violation of a covenant contained in her deed, whichinter alia provides "that no stable or any outbuildings of any kind shall be erected on said lots." Complainants and defendant are adjoining property owners. Their respective lands are part of a tract comprising four hundred and twenty lots known as "East Orange Park," owned and developed by Philip J. Bowers
Company. Deeds to various grantees of the common grantor contain restrictions pursuant to a general plan adopted for the development and improvement of the tract. All lots similarly located were treated alike. The erection of garages on inside lots was permitted. No provision was made for the erection of garages on corner lots. Deeds for corner lots contained the restriction sub judice. A neighborhood or community scheme was ostensibly contemplated. The erection of a dwelling house only on corner lots was planned. Where, as in the case sub judice, the restrictions *Page 226
are based upon a uniform scheme they will be enforced in equity. In Dettsloff v. Hockstetter, 96 N.J. Eq. 391 (at p. 393), the court says: "The theory upon which those community agreements are enforced is that there has accrued to everybody the rights as are defined in these uniform restrictive covenants, and that it is inequitable upon the part of any person after entering into a general scheme of that kind to repudiate their agreement and violate the covenants in a manner that they had agreed not to do. A suit of this nature is not a suit for the enforcement of a covenant, strictly speaking. The written covenants are all made with the vendor who sold these properties; they do not run in terms to grantees of the vendor, they are in form personal to the vendor, and this is not a suit by the vendor for the enforcement of these covenants as such, it is a suit by one of the purchasers against other purchasers to compel them to observe good faith in this general scheme, and it is the uniform covenants to which all have agreed, which we turn to to ascertain the scope and tenor and character of that general scheme, and it is from the general scheme defined by these covenants that the equity arises as distinguished from a suit to enforce specifically a covenant by a person to whom the covenant has been made." The complainants, not being a party to the defendant's deed, and having therefore no privity, either of legal estate or contract, with the defendant, have only an equitable right to enforce the covenant in question, and such right depends upon the existence of the general plan for the development and improvement of the entire "East Orange Park" tract by a uniform scheme, which is manifest herein, and the insertion of covenants in the deeds of purchasers, intended for the benefit of each purchaser and to which each purchaser with notice was subject. Morrow v. Hasselman, 69 N.J. Eq. 612 (atp. 614). The fact that restrictions contained in deeds of various grantees varied in different sections of the tract in accordance with the designs of the promotors for the character of such sections respectively, does not affect the integrity of the planned neighborhood or community *Page 227
scheme. Sanford v. Keer, 80 N.J. Eq. 240, 245. A small number of violations of restrictive covenants which in no substantial way affect the property of the complainants will not constitute a bar to complainants' relief by way of enforcement of the restrictive covenant in question. Polhemus v. DeLisle, 98 N.J. Eq. 256.
As stated in the above-cited case: "The small number of such violations on a large tract is really an indication of the general adherence to the general plan of the whole tract." The defendant claims that several garages were built in violation of covenants prohibiting same, that complainants did not object thereto and therefore they are estopped from enforcing the covenant against the defendant. It has not been satisfactorily established herein that the complainants had knowledge of any such violation of restrictive covenants. Even if they had knowledge thereof it was not incumbent upon them to seek the enforcement of the covenant throughout the entire tract. There is no proof herein of any such violations in close proximity to or materially affecting complainants' property. The complainants promptly protested to defendant against infringement by her of the restrictive covenant in question by the erection of a garage upon her property upon their being apprized of her intention to erect such garage, and they also made known to the defendant their intention to compel her observance of such covenant by suit, if necessary. Notwithstanding such protest and notice the defendant proceeded with the erection of the garage upon her property, and it has been completed and is now in use by the defendant. The completion of the garage under such circumstances must be considered to have been at the defendant's risk of being obliged to remove same upon the court determining that the erection thereof was violative of the restrictive covenant in question. Morrow v. Hasselman, supra (at p. 619). InLaverack v. Allen, 2 N.J. Mis. R. 637; 130 Atl. Rep. 615, it was held: "Defendant grantee, erecting building on lot with knowledge of complainants' right under restriction in her deed, proceeded at her peril, and was precluded *Page 228
from complaining that complainants did not object to the erection of such building." The covenant in question, in so far as it prohibits the erection of a stable, will not prohibit the erection of a garage. Bourgeois v. Miller, 89 N.J. Eq. 285;Hilsinger v. Schwartz, 99 N.J. Eq. 288. The language of covenant following the word stable, "or any outbuilding of any kind," is broad enough to comprehend the erection of any building whatever additional or appurtenant to the dwelling house. Anoutbuilding within the meaning of the covenant sub judice
comprehends a building adjoining or belonging to the dwelling house, something used or intended for use in connection therewith. Words and Phrases (2d Series) 838. The termsoutbuilding and outhouse are frequently used interchangeably.46 C.J. 1156. The supreme court of Connecticut held a garage on a residence lot, constructed apart from the dwelling house, to be an "outhouse," within a restrictive covenant forbidding the erection or maintenance of any "outhouse" on land conveyed.Basset v. Pepe, 110 Atl. Rep. 56. It is urged in behalf of the defendant that under the familiar maxim of ejusdem generis
the outbuildings prohibited by the covenant in question must be those similar to a stable. Defendant concedes that if the words "any kind whatsoever" had been used in the covenant, it would include buildings other than and dissimilar to a stable (Buchanan Smock Lumber Co. v. East Jersey Coast Water Co.,71 N.J. Law 350), but urges in the absence of the wordwhatsoever the rule of ejusdem generis should control. In my judgment neither the maxim ejusdem generis, nor the much broader maxim noscitur a sociis are applicable to the covenantsub judice.
I will advise a decree for the complainants. *Page 229 |
Fourth Court of Appeals
San Antonio, Texas
October 29, 2018
No. 04-18-00633-CV
CITY OF RIO GRANDE, TEXAS, et al.,
Appellants
v.
BFI WASTE SERVICES OF TEXAS, LP d/b/a Allied Waste Services of Rio Grande Valley,
Appellees
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-15-604
Honorable Migdalia Lopez, Judge Presiding
ORDER
The appellants’ second unopposed motion for extension of time to file brief is hereby
GRANTED IN PART. Time is extended to November 19, 2018.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of October, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
|
202 Cal. App. 2d 399 (1962)
LEONARD LA SALA, Plaintiff and Respondent,
v.
ELLA S. FERRARA, Movant and Appellant.
Civ. No. 25917.
California Court of Appeals. Second Dist., Div. Four.
Apr. 13, 1962.
Nicolas Ferrara and Edmond Gattone for Movant and Appellant.
Martin M. Shapero for Plaintiff and Respondent.
BALTHIS, J.
Plaintiff Leonard La Sala filed this action against defendant Peerless Insurance Co., Inc., on an attachment bond given by it in a prior action. In that prior action, Ferrara had obtained a judgment against one of the defendants named therein, Poole Truck Lines, but judgment was in favor of La Sala (a defendant in that action) against Ferrara, and such judgment was affirmed on appeal (Ferrara v. La Sala, 186 Cal. App. 2d 263 [9 Cal. Rptr. 179]). Plaintiff Ferrara in that prior action had levied an attachment on La Sala's property, and had filed the undertaking provided for in section 539, Code of Civil Procedure. After judgment in his favor as defendant, La Sala, as plaintiff, commenced this action on the attachment bond to recover damages.
Ella Ferrara then filed a complaint in intervention in this action. The substance of such pleading was that (1) intervener had an agreement to indemnify defendant Peerless Insurance Company and hence was the real party in interest, (2) intervener had obtained a judgment for $3,639 against Poole Truck Lines in the prior action, (3) plaintiff La Sala was indebted to Poole Truck Lines in the sum of $5,200, and (4) the action in intervention is brought to recover the debt due from La Sala to Poole Truck Lines and to subject the same to payment of the judgment of intervener against Poole Truck Lines. Plaintiff La Sala demurred to the complaint in intervention on the ground that it did not state facts sufficient to constitute a cause of action.
After intervener conceded that the first amended complaint in intervention stated her case as strongly as possible, the *401 court made its order sustaining the demurrer without leave to amend and from the judgment of dismissal, intervener appeals.
Intervener did obtain a judgment against Poole Truck Lines in the prior action and apparently is attempting to collect such judgment by an intervention in this action. This being an action against Peerless on the attachment undertaking, the issues involved in the prior action and in the collection of the judgment against Poole Truck Lines are in no way related to the issues presented and the parties involved here.
It is clear that neither intervener nor the surety Peerless has any setoff or counterclaim against plaintiff La Sala. [1a] Under section 438, Code of Civil Procedure, a counterclaim must be a claim in favor of defendant and against plaintiff. [2] In Advance Industrial Finance Co. v. Western Equities, Inc., 173 Cal. App. 2d 420 [343 P.2d 408], the court recognized and applied this rule, saying: (pp. 426-427) "A counterclaim or a setoff is defined as a cause of action in favor of the defendant on which he might have sued the plaintiff in a separate action and, in the case of a counterclaim, might have obtained affirmative relief. [3] ... While the doctrine of setoff, as distinguished from statutory counterclaim, is eminently an equitable one, the equitable right is founded on the idea that mutual existing indebtedness, arising out of contracts between parties to the record, creates payment of both demands so far as they equal each other. ... [1b] A counterclaim must be a claim in favor of the defendants and against the plaintiff; it may not be in favor of another person. ... This action is between plaintiff and Western Equities and the guarantor, Moser; it is not against Jo-Max. In order that defendants may offset against plaintiff, they must own a claim against plaintiff which they can offset."
[4] In the instant case, intervener is in the position of a defendant as far as plaintiff is concerned, and as a defendant (or as an intervener) she has no claim against or contract with plaintiff; likewise she has no counterclaim or setoff that can be used against plaintiff in this action. Her attempted use of the judgment against Poole Truck Lines and plaintiff's alleged indebtedness to Poole does not in any way diminish plaintiff's claim against Peerless on the attachment bond and cannot be used on the basis of a counterclaim or setoff in this action.
[5] The facts stated do not give rise to any cause of action *402 for intervention here. Intervener is not in any way restricted in the collection of her judgment against Poole Truck Lines by this denial of the alleged right to intervene. As a judgment creditor, she has access to the summary process of garnishment of any debt owing to the judgment debtor (Code Civ. Proc., 688). Under section 720, Code of Civil Procedure, a judgment creditor has available summary procedures against a debtor of the judgment debtor by way of supplemental proceedings in aid of execution.
The judgment of dismissal as to the complaint in intervention is affirmed.
Burke, P. J., and Jefferson, J., concurred.
|
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934 For the month of July, 2015 Commission File Number: 001-14475 TELEFÔNICA BRASIL S.A. (Exact name of registrant as specified in its charter) TELEFONICA BRAZIL S.A. (Translation of registrant’s name into English) Av. Eng° Luís Carlos Berrini, 1376 - 28º andar São Paulo, S.P. Federative Republic of Brazil (Address of principal executive office) Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: Form 20-F X Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Yes No X Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Yes No X TELEFÔNICA BRASIL S.A. Publicly-Held Company CNPJ MF 02.558.157/0001-62 - NIRE 151.87.164.10081-4 NOTICE TO THE MARKET Telefônica Brasil S.A. (“Company”) hereby announces that on this date Vivendi S.A. announced in the markets where its shares are traded, a material fact informing that, in July 29, 2015, after closing of the New York Stock Exchange (NYSE), sold 67.9 million preferred shares, representing 4% of its capital. São Paulo, July 30, 2015. Alberto Manuel Horcajo Aguirre Investor Relations Officer Telefônica Brasil S.A. – Investor Relations Tel: 765.251.4301 Email: [email protected] www.telefonica.com.br/ir TELEFÔNICA BRASIL S.A. Publicly-Held Company CNPJ MF 02.558.157/0001-62 - NIRE 151.87.164.10081-4 Paris, July 30, 2015 Vivendi sells its remaining shares in Telefonica Brasil Vivendi announces that after the close of the New York stock exchange on July 29, 2015, it sold 67.9 million preferred shares of Telefonica Brasil (representing 4.0% of its share capital) for approximately US$877 million. This transaction was carried out after first converting the preferred shares into American Depositary Receipts (ADR). Following this transaction and upon the completion of the previously announced exchange of 3.5% of Telefonica Brasil preferred shares for 0.95% of Telefonica ordinary shares, Vivendi will have completed its disposal of Telefonica Brasil. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. TELEFÔNICA BRASIL S.A. Date: July30, 2015 By: /s/ Luis Carlos da Costa Plaster Name: Luis Carlos da Costa Plaster Title: Investor Relations Director
|
Exhibit 10.2
AMENDMENT NO. 5
TO
2004 EMPLOYEE STOCK PURCHASE PLAN
OF NUVASIVE, INC.
WHEREAS, effective as of March 25, 2014 the Board of Directors of NuVasive, Inc.
agreed to amend the 2004 Employee Stock Purchase Plan, as previously amended
(the “2004 ESPP”), pursuant to Section 26 of the 2004 ESPP.
NOW THEREFORE, the 2004 ESPP shall be amended as of March 25, 2014 as follows:
1.
The second sentence of Section 10(a) of the 2004 ESPP is hereby amended and
restated in its entirety to read as follows:
“The deductions may be made (at the election of the participant) either (i) as
an election of a whole dollar amount not less than $10 per payroll deduction,
nor greater than an amount equal to the amount that is fifteen percent (15%) of
the participant’s compensation, or (ii) as a percentage of the participant’s
compensation in one percent (1%) increments, not less than one percent (1%), nor
greater than fifteen percent (15%), or, in each case, such lower limit set by
the Committee.”
2.
Except as amended by this Amendment No. 5, the 2004 ESPP shall remain unchanged
and in full force and effect.
3.
Except as otherwise provided in this Amendment No. 5, terms used herein shall
have the meanings ascribed to such terms in the 2004 ESPP.
|
Title: [IA] Neighbor cut down a large amount of vegetation and piled it all inside my fenced in yard.
Question:A quick search of this subreddit addressed some tree issues, but alas, all of my trees remain unmolested. I'm not sure what to do here and am not even certain if this *should* be dealt with legally. So:
I came home tonight to large amounts of cut down brush piled inside my chain link fence, all up and down the fence line. My fence runs the property line between my yard and the neighbor's yard. Nothing in my yard had been cut. Some vegetation **had** started to climb and get tangled in the fence, and those have mostly been cut down by my neighbor. However, there is far too much brush for it to be from simply cutting out the growth ~~in~~ on the fence.
I do have pictures from a couple days ago showing my fence, and I'm going to take pictures in the morning of everything left inside my yard today just to compare the before and after.
My understanding of the issue is this (and admittedly I could be wrong):
A) They cut the growth ~~inside~~ on my fence, ergo on my property, and they had no right to do that in the first place.
Or
B) They cut down growth in their yard and trespassed by throwing the brush into my yard.
I suspect some combination of the two. Now, I personally think either way makes them responsible for removing the brush, but I don't know for sure. My partner is of the opinion we should just go out and throw all the brush back into their yard, but I'm not sure if that's okay.
Edit: I'm reading some law sites from other states saying that while a neighbor can trim vegetation that encroaches on their property, they do so at their own expense. To me, that also means the expense of disposing of the trimmings. Unfortunately I'm having a hard time finding anything Iowa-specific.
**Summary**
Neighbor cut down a large amount of vegetation from their yard / the other side of my fence and then piled all the brush inside my yard. How do I go about fixing this?
Topic:
Real Estate law
Answer #1: In general, you have a right to cut down vegetation that encroaches on your property from someone elses property. However, also generally, you can't keep whatever you cut down. So from that POV they were right to return the cuttings to you. |
On February 15, 1911 (Acts 32d Leg. c. 112), the Legislature passed what it regarded as a special law, and which act undertook to confer upon the city of New Braunfels power to construct, maintain, and operate, within and without the city limits, a waterworks system and electric light system and any other public utilities; and, in order to accomplish the purposes stated, the act authorizes the city, among other things, to condemn, or acquire by eminent domain proceedings, any lands, waters, springs, rivers, riparian rights, pumps, waterwheels, rams, and dams upon making compensation therefor in the manner prescribed by law. It also prescribes that the laws prescribing procedure by railroad corporations in condemning and acquiring property shall apply to and govern the city of New Braunfels in condemnation proceedings. October 12, 1911, the city of New Braunfels filed an application with the county judge of Comal county, in which it was stated that it was a municipal corporation, containing over 1,000 inhabitants, and incorporated under the general laws of the state, and under title 18 of the Revised Civil Statutes (articles 605-702). The undisputed proof shows that it had a population of less than 10,000 and about 3,000. The application invoked the authority of the statute referred to, designating it as a special law, and stated, among other things, that Gus Tolle was the owner of certain riparian and water rights, which the city desired, in order to construct, maintain, and operate a certain dam. It was further alleged that the water and riparian rights referred to would embrace the right by the construction of its proposed dam to cause the water in the Guadalupe river to be backed onto and over a *Page 346
certain tract of land belonging to Gus Tolle. The petition or application contained other averments, and concluded with a prayer asking that commissioners be appointed as authorized by the Revised Statutes for the assessment of damages in condemnation proceedings by railroad companies, and that commissioners be required to take the necessary steps to assess such damages. Commissioners were appointed and qualified, and, after notifying Tolle, they made a report to the county judge assessing Tolle's damages at $100. That report was filed October 24, 1911, and on October 28, 1911, Gus Tolle, acting by his attorneys, filed in the county court an elaborate document, styled "Answer and objections of Gus Tolle." In that answer the statute hereinbefore referred to was assailed, and alleged to be null and void among other reasons because it was in conflict with certain provisions of the Constitution of this state. Before the trial Gus Tolle died, and his heirs were made parties to the suit, and both sides filed additional pleadings, the contents of which need not be stated. The case was tried in the county court of Comal county. The defendants' exceptions to the city's pleading, and their contention that the statute referred to was unconstitutional and void, and therefore did not authorize this proceeding, were overruled, and judgment rendered awarding to the city the riparian rights it sought to recover, upon its paying to the defendants $750, the amount of damages assessed by the jury; and the defendants have appealed.
The city of New Braunfels, having a population of less than 10,000, incorporated under the general laws of the state. When it incorporated in that manner, the provisions of the Revised Statutes prescribing the powers and duties of such municipal corporations became its charter; and, as the provisions of the Revised Statutes referred to do not confer upon such cities, towns, or villages the power and authority to condemn property by the method pursued in this case, the power to do so did not exist, if the special law under which this proceeding was instituted is unconstitutional and void. Section 4 of article 11 of the Constitution of this state prescribes that "cities and towns having a population of 10,000 inhabitants or less, may be chartered alone by general law," and section 5 of the same article provides that "cities having a population of more than 10,000 inhabitants may have their charters granted or amended by a special act of the Legislature." Section 56 of article 3 deals with legislative limitations, and declares "the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the affairs of counties, cities and towns, wards or school districts * * * incorporating cities, towns or villages or changing their charters. * * * And in all other cases where a general law can be made applicable, no local or special law shall be enacted." Counsel for appellants contend that the statute under which this proceeding was instituted is a special law, and that it is in conflict with the foregoing constitutional provisions. Counsel for appellee contend that, while it was enacted and has been designated by them as a special law, it is not so in fact; but, on the contrary, is a general law. In Hall v. Bell County, 138 S.W. 178, this court had occasion to make a thorough investigation of the authorities upon the question of what constitutes a special or local law, and we refer to the opinion in that case for our views upon the subject. In that case the Supreme Court granted a writ of error, and we have held up the decision of this case to wait until that case was finally decided. A few days ago the Supreme Court decided that case, and sustained the opinion of this court in holding that the statute there under consideration was a local or special law, and repugnant to that provision of the Constitution which prohibits the Legislature from passing a local or special law regulating the affairs of counties, cities, etc. Upon the authority of that case, and many others to the same effect, we hold that the statute here involved is a local or special law. And we also hold that it is repugnant to our Constitution, and must therefore be declared void. There are some authorities which hold that the provision of the Constitution which inhibits the Legislature from passing a local or special law in all cases where a general law can be made applicable is directory and not mandatory, and that the Legislature must be the sole judge in that respect; but, we do not find it necessary to pass upon that question.
Counsel for appellee further contend that the provision of the Constitution which requires cities and towns having a population of 10,000 inhabitants or less to be chartered by a general law does not deny to the Legislature the power to amend such charters by local or special law. Counsel for appellant, on the other hand, contend that when that provision is considered in connection with the section immediately following, which authorizes the Legislature to grant or amend charters of cities having a population of more than 10,000 inhabitants, the former should be construed as prohibiting the Legislature from amending the charters of cities or towns having a population of less than 10,000 by local or special laws. There is force in that contention, but we prefer to rest our decision upon the proposition that the statute in question violates section 56 of article 3, which prohibits the Legislature from incorporating cities, towns, or villages, or changing their charters by local or special law, except as otherwise provided in the Constitution. The only provision in the Constitution which authorizes the Legislature to incorporate or change the charters of cities and towns by *Page 347
local or special law is section 5 of article 11; and it is limited by its terms to such cities and towns as have a population of more than 10.000 inhabitants.
As before said, the charter of the city of New Braunfels is the provisions of the Revised Statutes prescribing the powers and duties of cities and towns; and, as that city had less than 10,000 inhabitants, the Constitution inhibited the Legislature from passing any local or special law which enlarged or restricted the powers of that municipality. We have not found it necessary to decide whether or not the statute here involved is one which regulates the affairs of the city of New Braunfels within the purview of the Constitution. There is some diversity of opinion as to what is the meaning of the word "regulate," and as to its application to a particular state of facts, some courts giving to the term "regulate" a somewhat restricted, and others giving to it a liberal, construction.
Appellants have assigned error upon the rulings of the court below overruling their contention, and sustaining the vadidity of the statute under consideration, and we sustain those assignments and reverse the case and render judgment for appellants.
Reversed and rendered.
On Motion for Rehearing.
This motion has been duly considered, and our conclusion is that it should be overruled. It is true, as stated in the motion, that appellee in the court below and in this court made the contention that its condemnation proceeding was authorized by our general statutory law, relating to the subject of condemnation by cities and towns; and, inasmuch as counsel for appellee is now pressing that contention, our reasons for overruling it will be briefly stated.
The law referred to is incorporated in articles 1003, 1004, and 1005 of the Revised Statutes of 1911. That law authorizes incorporated cities and towns to condemn private property for the following, and no other, purposes: (1) In order to open, change, or widen streets, avenues, or alleys; (2) for the construction of water mains, or supply reservoirs or standpipes for waterworks or sewers; (3) for the purpose of establishing thereon hospitals or pesthouses; and (4) for the purpose of constructing or maintaining sewer plants or systems. The condemnation proceeding in this case was instituted for and resulted in a judgment securing to the city of New Braunfels the right to back the water from its proposed dam over two strips of land belonging to appellant along the water line on each side of the Comal river. It is true that the city contended, and perhaps correctly, that it was necessary to thus flood appellant's land in order to construct and maintain the proposed water and light plant for the city; but the statute now under consideration does not authorize the condemnation of any property for the purpose of establishing a light plant, and does not authorize condemnation of private property for use in connection with a water plant, except for the construction of water mains, supply reservoirs or standpipes. The city of New Braunfels was not seeking to condemn appellant's property for use for either of those purposes; and therefore the provisions of the general statute relating to the subject of condemnation do not sustain the contention of appellee's counsel.
Motion overruled. |
Case 1:19-cv-01959-SEB-MJD Document 74 Filed 03/27/20 Page 1 of 2 PageID #: 723
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARY J. FREDERICK, )
JOHN JUSTIN COLLIER, )
WILLIAM L. MARKS, JR., )
MINNIE LEE CLARK, )
COMMON CAUSE INDIANA, )
)
Plaintiffs, )
)
v. ) No. 1:19-cv-01959-SEB-MJD
)
CONNIE LAWSON, )
)
Defendant. )
MINUTE ENTRY FOR MARCH 27, 2020
TELEPHONIC STATUS CONFERENCE
HON. MARK J. DINSMORE, MAGISTRATE JUDGE
The parties appeared by telephone for a Status Conference. The parties confirmed that
all discovery has been completed. The conference concluded without further order.
Dated: 27 MAR 2020
Case 1:19-cv-01959-SEB-MJD Document 74 Filed 03/27/20 Page 2 of 2 PageID #: 724
Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the court’s ECF system.
|
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (“Agreement”) is made this 27th day of June, 2006 by
and between INTERNATIONAL ENEXCO LTD., a British Columbia corporation
(“Enexco”); and GOLDEN PHOENIX MINERALS, INC., a Minnesota corporation (“Golden
Phoenix”).
RECITALS
A. On January 28, 1998 Enexco and Golden Phoenix entered into the
“Contact Property Letter Agreement, Elko County, Nevada” (the “Letter
Agreement”). Pursuant to the Letter Agreement, Golden Phoenix could earn a 60%
interest in the Contact Property by expending $2,600,000.00 in exploration and
development work and making cash payments to Enexco.
B. On December 23, 2004 Golden Phoenix gave written notice to Enexco
that it was terminating the Letter Agreement and withdrawing from the Contact
Property. Under the terms of the Letter Agreement notification allows for a
30-day period of before reaching an Effective Date of January 22, 2006 for this
termination.
C. The parties now wish to set forth certain understandings and
agreements with respect to the Letter Agreement and Golden Phoenix’s obligations
thereunder.
THEREFORE, the parties have agreed as follows:
1. Termination of Letter Agreement. Pursuant to Sections 11, 12, 20(b),
and 22 of the Letter Agreement, the parties acknowledge and agree that the
Letter Agreement
-1-
--------------------------------------------------------------------------------
dated January 28, 1998 is terminated with an Effective Date of January 22, 2005;
and that Golden Phoenix releases any claims of further rights, title, or
interest in the Contact Property owned by Enexco; and that Enexco releases
Golden Phoenix from any and all claims, demands, or liabilities arising from
Golden Phoenix’s activities on the Contact Property. In complying with Section
20(b) of the Letter Agreement, Golden Phoenix has caused to be delivered a
Quitclaim Deed to Enexco dated February 25, 2005 relinquishing its interest in
the Contact Property.
2. Reclamation Activities. Golden Phoenix represents to Enexco that all
reclamation obligations with respect to the Contact property have been
satisfied, except that there remain approximately three drill holes, which need
to be plugged in accordance with state and federal regulations. Enexco agrees to
accept the hole plugging liability in full, and to complete and file the
necessary paperwork with the State of Nevada.
3. Delivery of Data. Golden Phoenix has delivered substantially all of
the data relating to the Contact Property to Enexco in electronic format. Golden
Phoenix has delivered substantially all hard copy data, drill cuttings, pulps,
and other information (collectively the “Data”) to Enexco.
4. Orderly Transition. Golden Phoenix agrees to undertake such other
reasonable steps as may be necessary to effect an orderly transition and return
of the Contact Property to Enexco.
-2-
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have executed this Termination Agreement the day
and year first above written.
ENEXCO MINING COMPANY, INC.
a British Columbia corporation
By_____________________________________
G. ARNOLD ARMSTRONG, President
GOLDEN PHOENIX MINERALS, INC.,
a Minnesota corporation
By_____________________________________
DAVID A. CALDWELL, President
STATE OF NEVADA
)
) ss
COUNTY OF WASHOE )
On the 27th day of June, 2006, personally appeared before me a notary public, G.
ARNOLD ARMSTRONG, President of ENEXCO MINING COMPANY, INC., a British Columbia
corporation, personally known or proved to me to be the person whose name is
subscribed to the above TERMINATION AGREEMENT, who acknowledged to me that he
executed the above on behalf of said corporation.
Notary Seal
__________________________________
NOTARY PUBLIC
-3-
--------------------------------------------------------------------------------
STATE OF NEVADA )
) ss
COUNTY OF WASHOE )
On the 27th day of June, 2006, personally appeared before me a notary public,
David A. Caldwell, President of GOLDEN PHOENIX MINERALS, INC., a Minnesota
corporation, personally known or proved to me to be the person whose name is
subscribed to the above TERMINATION AGREEMENT, who acknowledged to me that he
executed the above on behalf of said corporation.
Notary Seal
__________________________________
NOTARY PUBLIC
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|
Case 1:20-cr-00214-DAD-BAM Document 67 Filed 05/06/21 Page 1 of 2
1 TORRES | TORRES STALLINGS
A LAW CORPORATION
2 David A. Torres, SBN135059
3 1318 K. Street
Bakersfield, CA 93301
4 Tel: +1-448-986-9915
Fax: +1-448-986-9915
5 Email: [email protected]
6 Attorney for:
7 ISREAL MUNOZ- MUNGUIA
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11 UNITED STATES OF AMERICA, Case No. 1:20-CR-00214 DAD-BAM
12 Plaintiff,
13 v. STIPULATION AND ORDER TO AMEND
HOME DETENTION CURFEW
14 ISRAEL MUNOZ- MUNGUIA,
15 Defendants.
16
TO: THE CLERK OF THE UNITED STATES DISTRICT COURT, HONORABLE BARBARA
17
A MCAULIFFE AND ANGELA SCOTT ASSISTANT UNITED STATES ATTORNEY:
18
COMES NOW Defendant, ISRAEL MUNOZ-MUNGUIA, by and through his attorney
19
of record, DAVID A. TORRES, and at the request of Pretrial Services, hereby moves that the
20
court amend the conditions of release.
21
On November 18, 2020. Mr. Munoz-Munguia was ordered release on numerous Pretrial
22
conditions and a property bond. The conditions of release regarding home detention (7(n))
23
ordered that he remain inside the residence at all time except for employment; education;
24
religious services; medical, substance abuse, or mental health treatment . . . Counsel is seeking to
25
amend defendant’s curfew to the following:
26
Curfew: Defendant is to remain inside his residence every day from 8:00 p.m. to 6:00 a.m.
27
or adjusted by the pretrial services officer for medical; religious services, employment or court-
28
1
Case 1:20-cr-00214-DAD-BAM Document 67 Filed 05/06/21 Page 2 of 2
1 ordered obligations. All prior orders are to remain in full force and effect.
2 AUSA Jessica Massey has no objection to the amendment of the condition. I have also
3 been in contact with PTS Officer Mark DeLaTorre and he has no objection to amending said
4 condition.
5
6
IT IS SO STIPULATED.
7 Respectfully Submitted,
DATED: April 28, 2021 /s/ David A Torres ___
8 DAVID A. TORRES
Attorney for Defendant
9
ISREAL MUNOZ-MUNGUIA
10
11
DATED: April 28, 2021 /s/ Jessica A. Massey_______
12 JESSICA A. MASSEY
13 Assistant U.S. Attorney
14
15 ORDER
16
IT IS SO ORDERED that Isreal Munoz-Munguia’s Pretrial Supervision be amended and
17
his curfew be set from 8:00 p.m. to 6:00 a.m. or adjusted by the pretrial services officer for
18
medical; religious services, employment or court-ordered obligations. Mr. Munoz-Mungia must
19
abide by all the conditions of his conditions of his release.
20
IT IS SO ORDERED.
21
Dated: May 6, 2021 /s/ Barbara A. McAuliffe _
22
UNITED STATES MAGISTRATE JUDGE
23
24
25
26
27
28
2
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6288
(D.C. No. CIV-97-336-A)
JAMES EMMANUEL EARLS, (W.D. Okla.)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6308
(D.C. No. 96-CV-2044)
BARRY DEAN BISCHOF, (W.D. Okla.)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-6158
(D.C. No. 93-CR-44)
BARRY DEAN BISCHOF, also (W.D. Okla.)
known as Wes, also known as Barry,
also known as Parry Wesley Hardin,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BARRETT, and HENRY, Circuit Judges.
After examining defendants’ briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
The cases are therefore ordered submitted without oral argument.
In appeals No. 97-6288 and No. 97-6308, Defendant Earls, represented by
counsel, and Defendant Bischof, acting pro se, seek the issuance of certificates
of appealability, see 28 U.S.C. § 2253(c)(1)(B), that would enable them to appeal
the district court’s denial of 28 U.S.C. § 2255 relief from their drug trafficking
convictions.
Mr. Earls argues that the district court abused its discretion in refusing to
allow him to amend his § 2255 motion to include a claim seeking the reduction of
his conspiracy sentence because the indictment and general verdict were
ambiguous as to the object of the conspiracy. See Stafford v. Saffle, 34 F.3d
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2-
1557, 1560 (10th Cir. 1994) (reviewing denial of leave to amend habeas petition
for abuse of discretion). Mr. Earls sought to amend his § 2255 motion prior to the
district court’s decision denying § 2255 relief, the claim he sought to include by
amendment is meritorious, see United States v. Pace, 981 F.2d 1123, 1128-30
(10th Cir. 1992); see also United States v. Bush, 70 F.3d 557, 560-62 (10th Cir.
1995) (applying Pace to post-sentencing guidelines guilty plea), and the
government conceded this same claim in Mr. Bischof’s § 2255 proceeding,
resulting in a five-year reduction in Mr. Bischof’s conspiracy sentence. Under
these circumstances, we must conclude that the district court abused its discretion
in refusing to allow Mr. Earls to amend his § 2255 motion to include this claim.
See Stafford, 34 F.3d at 1560 (leave to amend should be freely granted when
justice so requires). We, therefore, issue Mr. Earls a certificate of appealability
as to this one issue, and remand this claim to the district court for resentencing.
Because both defendants have failed to make a substantial showing of the
denial of a constitutional right as to any of their other claims, see 28 U.S.C.
§ 2253(c)(2), we deny the certificates in all other respects and dismiss the
remainder of these appeals.
In appeal No. 98-6158, Defendant Bischof, represented by counsel, appeals
the district court’s refusal to conduct de novo resentencing, after granting him
§ 2255 relief from his 18 U.S.C. § 924(c) conviction. We construe this appeal as
-3-
requesting a certificate of appealability, and deny that request. See United States
v. Mendoza, 118 F.3d 707, 709 n.3 (10th Cir.), cert. denied, 118 S. Ct. 393
(1997); see also United States v. Pearce, No. 97-2173, 1998 WL 247951, at *1 n.2
(10th Cir. May 18, 1998) (treating government’s appeal from district court’s
decision not to resentence defendant, after vacating his conviction in § 2255
proceeding, as appeal under 28 U.S.C. § 2253, rather than as direct appeal under
18 U.S.C. § 3742).
Generally, a defendant cannot raise an issue for the first time in a § 2255
proceeding, absent a showing of cause and prejudice, or that the federal court’s
failure to consider the issue will result in a fundamental miscarriage of justice.
See United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). A defendant may,
however, raise a claim of ineffective assistance of counsel for the first time in
a § 2255 proceeding. See, e.g., United States v. Kunzman, 125 F.3d 1363, 1365
(10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).
Arguing several different theories of relief, defendants first assert that
a government witness, William Craig, falsely testified that he was not testifying
pursuant to a plea agreement. In light of the overwhelming evidence of the guilt
of both defendants and the minimal importance of Mr. Craig’s testimony to the
government’s case, there is not a reasonable probability that disclosure of the plea
agreement would have affected the jury’s decision. See, e.g., Kyles v. Whitley,
-4-
514 U.S. 419, 433 n.7 (1995) (prosecutor’s knowing use of perjury requires
reversal of conviction if there is any reasonable likelihood that the false testimony
could have affected jury’s decision); Strickland v. Washington, 466 U.S. 668, 694
(1984) (constitutionally ineffective assistance requires showing that there is
reasonable probability that, but for counsel’s deficient performance, result of
proceeding would have been different); United States v. Scarborough, 128 F.3d
1373, 1376 (10th Cir. 1997) (to establish Brady v. Maryland, 373 U.S. 83 (1963),
violation, there must be reasonable probability that, had the suppressed evidence
been disclosed, result of proceeding would have been different).
Defendants next argue that their attorneys were ineffective for failing
to require the government to prove, at sentencing, that the methamphetamine
involved in these offenses was D-methamphetamine, rather than
L-methamphetamine. Because government lab reports and circumstantial
evidence introduced at trial established that some of the trafficked substance
was D-methamphetamine, defendants’ attorneys did not provide ineffective
assistance by failing to assert this [email protected]. See United States v.
Behler, 100 F.3d 632, 636 (8th Cir. 1996) (“When the government seizes and
tests an amount of a controlled substance that is less than the whole for which the
defendant is responsible, the sentencing court is permitted to infer from these
samples that the whole quantity attributable to the defendant contained the same
-5-
substance.”), cert. denied, 118 S. Ct. 152 (1997). See generally Strickland,
466 U.S. at 692 (counsel’s performance must be both deficient and prejudicial).
In further support of this claim, Mr. Earls also asserts that he has newly
discovered evidence questioning the accuracy of the government’s lab tests.
See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (cause excusing procedural
bar includes previously unavailable factual basis of claim). To the extent that
this new evidence was not submitted to the district court, however, we will not
consider it on appeal and, therefore, we deny Mr. Earls’ motion to supplement the
appellate record. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500,
506 (10th Cir. 1994) (in reviewing summary judgment decision, appellate court
cannot consider evidence that was not before district court). In any event, his
new evidence is too vague and conclusory to call into doubt the results of the
government’s lab tests or to otherwise require an evidentiary hearing on this
issue.
Mr. Bischof’s arguments that his attorney was ineffective for failing to
insure that the audiotapes given to the jury during its deliberations were properly
redacted, and that the government failed to disclose that one of its agents
attempted to intimidate a potential witness, are meritless. 1
1
Although Mr. Earls also asserted these two arguments to the district court,
he does not pursue them on appeal.
-6-
Finally, Mr. Bischof challenges the district court’s decision not to conduct
de novo resentencing after granting him § 2255 relief from his 18 U.S.C. § 924(c)
conviction. The district court vacated that conviction under Bailey v. United
States, 516 U.S. 137 (1995), and granted the government’s motion to resentence
Mr. Bischof, after considering the sentencing guidelines enhancement for the use
and possession of a weapon. See U.S.S.G. § 2D1.1(b)(1). See generally
Mendoza, 118 F.3d 707. In resentencing Mr. Bischof, the district court found
that the enhancement was not warranted, but it also denied Mr. Bischof’s motion
to conduct de novo resentencing. The district court did not abuse its discretion in
doing so. See United States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996).
We, therefore, GRANT Mr. Earls’ application for a certificate of
appealability in appeal No. 97-6288 as to the single issue challenging the district
court’s denial of his motion to amend his § 2255 motion, deem the district court
to have abused it discretion in denying Mr. Earls leave to amend, and REMAND
that claim to the district court for resentencing. In all other respects, we DENY
-7-
defendants’ applications for certificates of appealability and DISMISS the
remainder of these appeals.
Entered for the Court
James E. Barrett
Senior Circuit Judge
-8-
|
Citation Nr: 0012851
Decision Date: 05/16/00 Archive Date: 05/22/00
DOCKET NO. 91-14 905 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
bronchitis, bronchospastic restrictive lung disease.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran had over 20 years of active military service when
he retired in July 1988.
This case originally came before the Board of Veterans'
Appeals (Board) on appeal from a March 1989 rating
determination, which granted service connection and assigned
noncompensable evaluations for bronchitis, an adjustment
disorder with depressed mood, removal of a foreign body from
the left thigh, epicondylitis of the right elbow,
degenerative joint disease of the right acromioclavicular
joint, bilateral sensorineural hearing loss, residuals of an
appendectomy, residuals of a fractured left thumb and fifth
finger, and hemorrhoids. The rating determination also
denied service connection for degenerative joint disease of
the left acromioclavicular joint, a prostate condition, a
sinus condition, an eye condition, organic stomach disease,
and viral syndrome. In June 1989, the veteran filed a notice
of disagreement which indicated that he wished to appeal all
the assigned disability evaluations, and some items for which
the regional office (RO) had denied service connection. In
January 1990, the RO issued a statement of the case
addressing all those issues raised by the veteran in his June
1989 notice of disagreement.
In March 1990, a substantive appeal was received from the
veteran with regard to the issues of entitlement to increased
evaluations for a psychiatric disorder, bronchitis, removal
of a foreign body of the left upper thigh, the right elbow
disability, hemorrhoids, residuals of an appendectomy,
residuals of a fracture of the left thumb and fifth finger,
and bilateral hearing loss. The veteran also requested that
the denials of service connection for degenerative joint
disease of his left shoulder, chronic organic stomach
disease, and chronic viral syndrome continued to be
addressed. The veteran also requested that the RO address
the issue of constant ringing in his ears.
In a December 1990 rating determination, service connection
was granted for esophagitis with duodenitis, with a
noncompensable disability evaluation being assigned. The RO
also increased the veteran's disability evaluations for
bronchitis and an adjustment disorder with depressed mood
from noncompensable to
10 percent disabling, effective from August 1, 1988.
The United States Court of Appeals for Veterans Claims
(Court) has held that on a claim for an original or an
increased rating, the appellant will generally be presumed to
be seeking the maximum benefit allowed by law or regulations,
and it follows that such a claim remains in controversy where
less than the maximum benefit available is awarded. AB v.
Brown, 6 Vet. App. 35, 38 (1993). The Court further held
that, where a claimant has filed a notice of disagreement as
to an RO decision assigning a particular rating, a subsequent
RO decision awarding a higher rating, but less than the
maximum available benefit, does not abrogate the appeal. Id.
Thus, the Board continues to have jurisdiction of the claim
for a higher rating for bronchitis, bronchospastic
restrictive lung disease.
In April 1992, the Board remanded this matter to the RO in
order to ascertain the proper address of the veteran and to
determine whether he desired a personal hearing. The issues
which the Board identified as properly before it were:
entitlement to service connection for degenerative joint
disease in the left shoulder, a viral syndrome, a chronic
gastrointestinal disorder, a sinus condition, an eye
disorder, and a prostate disorder, as well as the issues of
entitlement to compensable evaluations for residuals of
removal of a foreign body from the left upper thigh,
epicondylitis of the right elbow, degenerative joint disease
of the right shoulder, bilateral sensorineural hearing loss,
residuals of an appendectomy, residuals of fractures of the
left thumb and fifth finger, and hemorrhoids. The Board
further listed the issues of entitlement to increased
evaluations for bronchitis and an adjustment disorder with
depressed mood as properly before it.
In a March 1993 rating determination, the RO increased the
veteran's disability evaluations for epicondylitis of the
right elbow and for esophagitis with duodenitis from
noncompensable to 10 percent disabling. The RO also granted
service connection for bilateral tinnitus and assigned a 10
percent disability evaluation. The RO further noted that the
veteran should undergo an additional Department of Veterans
Affairs (VA) examination to determine an exact psychiatric
diagnosis, as service connection for an adjustment disorder
with depressed mood was improper. The RO confirmed and
continued all other previous denials. In March 1993, the
veteran filed a claim for service connection for a left knee
disorder.
An August 1993 rating determination found the granting of
service connection for neurosis was proper and changed the
diagnosis from an adjustment disorder with depressed mood to
post-traumatic stress disorder (PTSD) and continued a 10
percent disability evaluation. The RO also denied service
connection for right and left knee disorders at that time.
At his April 1995 personal hearing before a member of the
Board, the veteran, through his representative, indicated
that he wished to withdraw the issues of entitlement to
service connection for sinus, eye, and prostate disorders.
The veteran further indicated that he wished to withdraw the
issues of entitlement to increased evaluations for residuals
of a left thigh injury with small retained foreign body,
epicondylitis of the right elbow, degenerative joint disease
of the right shoulder, bilateral hearing loss, and residuals
of a fracture of the left thumb and fifth finger. The
veteran also noted that he wished to continue his appeal
concerning the issues of entitlement to service connection
for degenerative joint disease of the left shoulder and
entitlement to service connection for viral syndrome claimed
as residuals of pneumonia, as well as the issues of increased
evaluations for residuals of his appendectomy, PTSD,
bronchitis, hemorrhoids, and esophagitis and duodenitis. The
veteran also requested that the RO assign separate disability
evaluations for esophagitis and duodenitis.
The Board further noted that in April 1994, the veteran,
through his representative, expressed his disagreement with
the denial of service connection for a bilateral knee
disorder. Since a timely notice of disagreement had been
filed, a statement of the case regarding that issue must be
provided to the veteran and his representative. Pursuant to
the previous Board remand, the RO issued a statement of the
case on the issues of service connection for right and left
knee disabilities. As the veteran has not perfected his
appeal on these issues, the Board will not address these
issues.
In May 1995, the Board remanded this case for additional
development, to include scheduling the veteran for a VA
psychiatric, respiratory, appendectomy, gastrointestinal,
hemorrhoid, and orthopedic examinations.
In an August 1998 rating determination, the RO increased the
veteran's disability evaluation for PTSD from 10 to 30
percent with an effective date of April 19, 1995. It also
increased the veteran's disability evaluation for his
esophagitis and duodenitis/gastritis to 30 percent effective
August 1, 1988. The RO continued the previous denials on the
other issues.
In a March 1999 decision of the Board, service connection for
degenerative joint disease of the left shoulder and residuals
of pneumonia, viral syndrome, a compensable evaluation for
hemorrhoids, a compensable evaluation for residuals of an
appendectomy, an evaluation in excess of 30 percent for
esophagitis and duodenitis, an evaluation in excess of 10
percent for post-traumatic stress disorder (PTSD), prior to
August 19, 1995, and an evaluation in excess of 30 percent
for PTSD from April 19, 1995, to April 30, 1998, were denied.
In that decision, a current evaluation for 50 percent for
PTSD was granted. Finally, the issue of a rating greater
than 10 percent for bronchitis was remanded for additional
development. The RO completed that development, to the
extent possible, and the case is again before the Board for
final appellate review. (The Board is obligated by law to
ensure that the RO complies with its directives. Stegall v.
West, 11 Vet. App. 268 (1998)).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim has been obtained.
2. The veteran's bronchitis, bronchospastic restrictive lung
disease is productive of, at worst, forced expiratory volume
(FEV-1) of 72 percent of predicted value, the ratio of FEV-1
over forced vital capacity (FEV-1/FVC) of 85 percent, and
diffusion capacity of the lung (DLCO) of 73 percent of
predicted value; the overall disability from bronchitis is no
more than moderate in degree.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
bronchitis, bronchospastic restrictive lung disease have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
4.1, 4.7, 4.97, Diagnostic Code 6600 (1999); 38 C.F.R. §
4.97, Diagnostic Code 6600 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board observes that the veteran has noted disagreement
with the assignment of the initial rating for bronchitis and
has properly perfected his appeal. Therefore, the propriety
of the rating during the time period from August 1, 1988,
through the point in time when a final resolution of each
issue has been reached, is currently before the Board.
Grantham v. Brown, 114 F.3d 1156 (1997); Fenderson v. West,
12 Vet. App. 119 (1999).
Factual Background
A review of the veteran's service medical records
demonstrates that he was treated on numerous occasions for
upper respiratory disorders, bronchitis, and viral pneumonia
while inservice.
At the time of his October 1988 VA examination, the veteran
reported having increased dyspnea, mostly with exercise, when
he ran about 1/2 mile. The veteran also stated that he
became dyspneic after walking up 3 flights of stairs. A
chronic cough was denied. Chest x-rays revealed no active
disease. The veteran had good excursion, bilaterally, and
his lungs were clear to percussion and auscultation. A
diagnosis of history of recurrent pneumonia and bronchitis,
with minimal residuals, was rendered.
In July 1990, the veteran was afforded an additional VA
examination. Pulmonary function testing performed at that
time revealed mild restrictive impairment. Forced expiratory
volume (FEV) 1 was 93 percent of predicted, post-
bronchodilation. FEV1/FVC was 94 percent, post-
bronchodilation. Diffuse capacity of the lung for carbon
monoxide (DLCO) was 88 percent of predicted. A chest x-ray
revealed no infiltrates.
VA outpatient treatment records dated in September 1990 and
May 1991 show that the lungs were clear.
A private treatment record dated in July 1992 shows that the
veteran complained of head congestion, drainage, and
coughing. The chest was clear on examination. The
assessment was upper respiratory infection/bronchitis.
At the time of a December 1992 outpatient visit, the veteran
was seen with complaints of fever, nightsweats for a few
days, nasal congestion, and a positive cough that was
productive of colored mucous. The lungs were clear on
examination. A diagnosis of bronchitis, probably viral, was
rendered at that time.
Service department records dated in January 1995 show an
assessment of acute, resolving bronchitis.
VA outpatient treatment records dated in March 1995 show that
the veteran complained of bronchitis over the past few
months. Cough was described as periodic with green sputum.
The cough did not keep him [email protected]. Wheezing was denied.
The veteran reported that he had those problems "off and on"
over the years. A chest x-ray dated in March 1995
demonstrated no active disease. The pertinent diagnostic
impression was bronchitis.
At his April 1995 hearing, the veteran reported that he was
"plagued" with bronchitis. Hearing transcript (T.) 24. The
veteran stated that he coughed every day. T. 25.
VA outpatient treatment records in January 1996 show that the
veteran sought treatment because he thought that he had
bronchitis. A history of bronchitis about once a year was
noted. A cough that produced yellow sputum was described by
the veteran. There was no shortness of breath. Physical
examination revealed no rales or rhonchi. The diagnostic
impression was bronchitis.
A few days later in January 1996, the veteran was afforded a
VA respiratory examination. The veteran's major complaints
were frequent episodes of bronchitis with cough and sputum
which had previously been treated. He denied any wheezing,
chest pain, or hemoptysis. Clinical examination of the
thorax was entirely within normal limits. Lung function
studies suggested a restrictive ventilatory pattern but this
was because of a reduced Slow Vital Capacity effort on his
lung volume determinations. FEV1 was 92 percent of predicted
and FEV1/FVC was 89 percent, post-bronchodilation. DLCO was
82 percent. Chest x-rays revealed no acute pulmonary
disease. An old healed granulomatous disease was noted.
Private treatment records dated in August 1996 show that the
veteran was treated for bronchitis. In December 1996, the
veteran was treated for the onset of chest pain that "felt
like razor blades" from the day before. He reported
increased coughing. The pertinent impression was bronchitis.
Private medical records dated in November 1997 indicate that
the veteran sought treatment for the acute onset of fever and
cough. Objective examination showed that the chest was clear
to auscultation and percussion, without rhonchi.
In May 1998, the veteran was afforded an additional VA
respiratory examination. At the time of the examination, the
veteran complained of having bronchitis, which is a syndrome
of a viral disease, including coughing, green sputum, nasal
congestion, green nasal discharge, epistaxis, anterior chest
wall pain which was worse with coughing, sore throats,
fevers, occasional hoarseness of throat, and other myalgias,
since 1970. He noted that these bouts lasted approximately
one week but that they varied between two and ten days. He
noted having had these illnesses approximately twenty times.
At the time of examination, he reported that he had no
symptoms.
Physical examination revealed the veteran was in no acute
distress. Chest examination was clear to auscultation and
percussion. Pulmonary function tests revealed mild
restrictive disease. FEV1 was noted to be mildly reduced at
72 percent of predicted and FEV1/FVC was 85 percent, post-
bronchodilation. DLCO was described as mildly reduced at 73
percent. It was the examiner's impression that the veteran's
repeated bouts of respiratory viruses did not seem to be
related to any irritant, allergy, or prior respiratory tract
injury.
Treatment records dated in January 1999 show that the veteran
reported recent upper respiratory infection/bronchitis,
treated with medication. He had no specific complaints about
6 days after initial treatment. There was no dyspnea.
A July 1999 VA x-ray demonstrated no infiltrate in the lungs.
Spirometry testing showed the FEV1 was mildly reduced. DLCO
was normal. The impression was that the veteran's efforts
were questionable and therefore interpretation was made with
caution. FEV1 was 76 percent of predicted and FEV1/FVC was
109 percent, post-bronchodilation. DLCO was 84 percent.
On VA respiratory examination in July 1999, the examiner
stated that the veteran's claims file had been reviewed.
Physical examination revealed no evidence of wheezing, rales
or rhonchi. There was no cough with deep breathing. The
examiner reviewed the cardiovascular system; there were no
pertinent findings. The pertinent diagnosis was recurrent
pulmonary, which varied from bronchospastic to restrictive.
The impression was that the veteran had some episodic
bronchitis while he was in service, which was not severe or
excessively long. The veteran stated that he was more
disabled than the record showed. The examiner noted that
this was possible, as coughs frequently hung on a little
longer than it was able to be documented in the medical
records. The examiner's opinion was that the veteran did not
seem to have significant chronic pulmonary disability, but
when he had episodes, they were significantly disabling.
Legal Criteria
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities, which is based on
average impairment of earning capacity. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic
codes identify the various disabilities.
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. 38 C.F.R. § 4.7 (1999).
The veteran's bronchitis, bronchospastic restrictive lung
disease is rated by the RO under Diagnostic Code 6600. The
Board recognizes that the schedular criteria for respiratory
disabilities were changed effective October 7, 1996. Where a
law or regulation changes after a claim has been filed or
reopened, but before the administrative or judicial appeal
process has been concluded, the version most favorable to an
appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so. Karnas v. Derwinski,
1 Vet. App. 308 (1991). Thus, the veteran's service-
connected bronchitis must be evaluated under both the old and
the new rating criteria to determine which version is most
favorable to the veteran.
Under the criteria of Diagnostic Code 6600 in effect prior to
the revision, a
10 percent disability evaluation was warranted for moderate
chronic bronchitis with considerable night or morning cough,
slight dyspnea on exercise, and scattered bilateral rales. A
30 percent evaluation was warranted for moderately severe
bronchitis, with persistent cough at intervals throughout the
day, considerable expectoration, considerable dyspnea on
exercise, rales throughout the chest, and beginning chronic
airway obstruction. 38 C.F.R. § 4.97, Code 6600 (1995).
Under the criteria of Diagnostic Code 6600 as revised, a 100
percent rating is warranted for pulmonary emphysema or
chronic obstructive pulmonary disease (COPD) manifested by
FEV-1 less than 40 percent of predicted value, or; the ratio
of Forced Expiratory Volume in one second to Forced Vital
Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion
Capacity of the Lung for Carbon Monoxide by the Single Breath
Method (DLCO (SB)) less than 40-percent predicted, or;
maximum exercise capacity less than 15 ml/kg/min oxygen
consumption (with cardiac or respiratory limitation), or; cor
pulmonale (right heart failure), or; right ventricular
hypertrophy, or; pulmonary hypertension (shown by Echo or
cardiac catheterization), or; episode(s) of acute respiratory
failure, or; requires outpatient oxygen therapy. A 60
percent rating is warranted for pulmonary emphysema or COPD
manifested by FEV-1 of 40- to 55-percent predicted, or; FEV-
1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent
predicted, or; maximum oxygen consumption of 15 to 20
ml/kg/min (with cardiorespiratory limit). A 30 percent
rating is warranted for pulmonary emphysema or COPD
manifested by FEV-1 of 56- to 70-percent predicted, or; FEV-
1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent
predicted. A 10 percent rating is warranted for pulmonary
emphysema or COPD manifested by FEV-1 of 71- to 80- percent
predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB)
66- to 80-percent predicted. See 38 C.F.R. § 4.97, Code 6600
(1999).
Analysis
Initially, the Board finds that the appellant's claim is well
grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). This
finding is predicated upon the appellant's assertions that
the disability has increased in severity. Proscelle v.
Derwinski, 2 Vet. App. 629 (1992). Once it has been
determined that a claim is well grounded, as here, the VA has
a statutory duty to assist in the development of evidence
pertinent to the claim. The RO sought to obtain all
pertinent treatment records, and the veteran was afforded
several VA examinations. Accordingly, the Board finds that
the duty to assist has been satisfied.
In determining the proper rating to be assigned for a given
disability, the Board may only consider those factors which
are included in the rating criteria provided by regulations
for rating that disability. To do otherwise would be error
as a matter of law. Massey v. Brown, 7 Vet. App. 204, 208
(1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).
In this case, the veteran's bronchitis is rated under
Diagnostic Code 6600. For the reasons discussed below, the
Board finds no basis for an evaluation in excess of 10
percent for bronchitis under either the prior or the revised
criteria of Diagnostic Code 6600.
In this regard, the Board first observes the criteria for a
10 percent rating under the "new" criteria. A 10 percent
evaluation is warranted for an FEV-1 of 71 to 80 percent
predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB)
66 to 80 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code
6600 (1999). The pulmonary function results to be applied
for rating purposes are those obtained post therapy, or after
bronchodilation according to the preambulatory material that
appeared with the publication of the revised criteria. 61
Fed. Reg. 46723, 46724 (Sept. 5, 1996). In reviewing the
results from the various pulmonary function tests throughout
the appeal period, the Board has taken the lowest results,
representing the most severe impairment, in May 1998, and
notes that such results fall squarely in the criteria
recognized for a 10 percent evaluation. Other results in
1990, 1996, and 1999 reflect lesser impairment and thus would
not provide the basis for a higher rating.
The criteria in effect prior to the revision in rating
respiratory disabilities also do not provide a basis for a
rating higher than 10 percent. As noted above, a 10 percent
rating encompasses moderate chronic bronchitis with
considerable night or morning cough, slight dyspnea on
exercise, and scattered bilateral rales. Again, the Board
finds that the disability picture shown by the record
reflects the 10 percent diagnostic criteria. The veteran
testified as to having a daily cough. This testimony is
consistent with the 10 percent rating which compensates for a
considerable cough. A 30 percent rating is assigned for
moderately severe bronchitis, with persistent cough at
intervals throughout the day, considerable expectoration,
considerable dyspnea on exercise, rales throughout the chest,
and beginning chronic airway obstruction. While the veteran
complained of increased dyspnea on exertion during the 1988
VA examination, the competent medical evidence of record does
not demonstrate indicate such symptomatology as considerable
expectoration, considerable dyspnea on exercise, rales
throughout the chest, and beginning chronic airway
obstruction. Following clinical examination in 1988, for
example, the examiner found minimal residuals associated with
the service-connected lung disability. The 1999 examiner
similarly found no significant pulmonary disability.
Additionally, no medical evidence has revealed the presence
of rales. The examiner in 1999 noted that the veteran had a
cough that often was longer than recorded in the record.
Nevertheless, the examiner's opinion was that no significant
disability resulted. No medical evidence refers to the
bronchitis as moderately severe. For these reasons, the
Board finds that the veteran's bronchitis is no more than
moderate in degree. Overall, the criteria for an evaluation
in excess of 10 percent for the veteran's bronchitis have not
been met.
The Board also notes that the veteran's service-connected
disability includes a restrictive component. Under the
revised criteria, there are now specific criteria, Diagnostic
Codes 6840-6845, that apply to the effects of restrictive
lung disease. 38 C.F.R. § 4.97. A rating of 10 percent and
30 percent under these diagnostic criteria is the same as
that cited under 38 C.F.R. § 4.97, Diagnostic Code 6600
(1999). As discussed above, the results of pulmonary
function testing do not justify a rating in excess of 10
percent.
Ratings under Diagnostic Codes 6600 to 6817, and 6822 through
6847, are not to be combined with each other. 38 C.F.R. §
4.96. A single rating will be assigned under the diagnostic
code that reflects the predominant disability picture with
elevation to the next higher evaluation where the severity of
the overall disability warrants such elevation. Id. The
Board in the instant appeal does not find that the overall
disability picture warrants elevation to the next higher
evaluation. Rather, the predominant disability picture is
bronchitis, compensated at a rate of 10 percent for moderate
disability. The "restrictive" component of the service-
connected disorder is not shown to be productive of
significant disability in light of the examiner's comments.
For example, the examiner in January 1996 stated that there
was a "suggestion" of a restrictive ventilatory pattern only.
In 1998, the restrictive disease was described as "mild."
Similarly, the 1999 examiner, while noting the restrictive
variation of the veteran's respiratory disease also concluded
that the veteran did not seem to have significant pulmonary
disability. In sum, the severity of the overall disability
picture is not such that elevation is appropriate.
For all the reasons described above, a rating in excess of 10
percent is not warranted.
Additional Matter
The Board notes that this appeal for a higher rating stemmed
from an initial rating determination that had granted service
connection. In such situations, the concept of "staged
ratings" may be applicable. Fenderson v. West, 12 Vet. App.
119 (1999). In this case, the RO did set forth what criteria
were necessary for a higher rating, and the veteran had the
opportunity to present evidence as well as testimony at a
hearing with regard to the pertinent criteria. Additionally,
for the reasons discussed previously, a rating higher than 10
percent is not warranted at any time after service
separation, and the Board finds that the 10 percent rating
properly commences as of the grant of service connection,
August 1, 1988. Bernard v. Brown, 4 Vet. App. 384 (1993).
The Schedule for Rating Disabilities will be used for
evaluating the degree of disabilities in claims for
disability compensation. The provisions contained in the
rating schedule will represent as far as can practicably be
determined, the average impairment in earning capacity in
civil occupations resulting from disability. 38 C.F.R.
§ 3.321(a) (1999). In the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability. 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)(1999).
With respect to this case, the Board observes that in light
of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not
have jurisdiction to assign an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance. The veteran was
provided with the text of the criteria for an extraschedular
rating in the supplemental statement of the case dated in
August 1998. The RO did not choose to refer the issue for
extraschedular consideration.
In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court
clarified that it did not read the regulation as precluding
the Board from affirming an RO conclusion that a claim does
not meet the criteria for submission pursuant to 38 C.F.R.
§ 3.321(b)(1), or from reaching such conclusion on its own.
See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In this case, the Board concurs that the veteran's
bronchitis, bronchospastic restrictive lung disease is
neither unusual nor exceptional as to render impractical the
application of the regular schedular standards. The record
does not reflect frequent periods of hospitalization because
of his service-connected disability, or interference with
employment to a degree greater than that contemplated by the
regular schedular standards which are based on the average
impairment of employment.
Hence, no basis has been presented upon which to predicate
referral of the veteran's case to the Under Secretary for
Benefits, or the Director of the VA Compensation and Pension
Service for consideration of extraschedular evaluation for
bronchitis, bronchospastic restrictive lung disease.
ORDER
An evaluation in excess of 10 percent for bronchitis,
bronchospastic restrictive lung disease is denied.
M. Sabulsky
Member, Board of Veterans' Appeals
|
Citation Nr: 1342682
Decision Date: 12/24/13 Archive Date: 12/31/13
DOCKET NO. 11-28 738 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Niece
ATTORNEY FOR THE BOARD
M. Yuan, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1967 to May 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in November 2010, a statement of the case was issued in August 2011, and a substantive appeal was received in October 2011. A March 2013 Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file.
During the March 2013 Travel Board hearing, the Veteran indicated for the first time that his hypertension is also related to his PTSD. As such, and in order to afford the Veteran the broadest scope of review, the issue has been amended as indicated above.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The record indicates the Veteran regularly received treatment at the Columbia, South Carolina VA Medical Center (MC), but the most recent records are dated in October 2011. Any pertinent VA treatment records since then are constructively before the Board and must be secured. See Bell v. Derwinski, 2 Vet. App. 611 (1992).
The Veteran was afforded a June 2010 VA examination in conjunction with his claim. The examiner at the time failed to provide an etiological opinion or an explanation for its absence. As such, the June 2010 examination is inadequate, as it fails to address the nature and etiology of the Veteran's hypertension, and because the examiner did not have the opportunity to consider the issue of secondary service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007).
Accordingly, the case is REMANDED for the following action:
1. The RO should send the Veteran the appropriate VCAA notice explaining what is necessary to substantiate a claim of service connection for hypertension as secondary to PTSD.
2. The RO should secure all outstanding records of evaluations or treatment for hypertension from the Columbia VAMC dated since October 2011. If such records are unavailable, the reason for their unavailability and a notation of the scope of the search must be noted in the record, and the Veteran should be so notified.
3. Thereafter, the RO should schedule the Veteran for examination by a VA cardiologist to determine the nature and likely etiology of his hypertension disability. The examiner must review the entire record in conjunction with the examination. Thereafter, the examiner should provide an opinion that responds to the following:
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension disability is causally related to his active military service, including as a result of exposure to herbicides such as Agent Orange?
(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension is proximately due to, or aggravated by, his service-connected PTSD?
The examiner must provide a complete rationale for all opinions.
5. The RO should then review the record and readjudicate the claim(s). If a claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond before the record is returned to the Board.
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. 2012).
_________________________________________________
ALAN S. PEEVY
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) (2013).
|
801 F. Supp. 1164 (1992)
Jack Jr., Jean, and Jack III STRAUBE, Plaintiffs,
v.
FLORIDA UNION FREE SCHOOL DISTRICT, Thomas Sobol, Thomas Neveldine, Commissioners, New York State Education Department, Defendants.
No. 91 Civ. 1359 (GLG).
United States District Court, S.D. New York.
August 25, 1992.
*1165 *1166 *1167 *1168 *1169 Cole, Schotz, Bernstein, Meisel & Forman, P.A. by Rebecca K. Spar, of counsel, Hackensack, N.J., for plaintiffs.
Serchuk & Zelermyer by Steven A. Coploff, of counsel, New York City, for defendant Florida Union Free School Dist.
Robert Abrams, Atty. Gen. by Martha O. Shoemaker, of counsel, New York City, for defendants Thomas Sobol and Thomas Neveldine.
OPINION
GOETTEL, District Judge.
Education plays a vital role in a free society. While not a fundamental right under the Constitution, our courts have consistently recognized that the opportunity to "acquire the minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process" should be available to all children equally. San Antonio School District v. Rodriguez, 411 U.S. 1, 37, 93 S. Ct. 1278, 1299, 36 L. Ed. 2d 16 (1973). The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA") (previously the Education for Handicapped Act ("EHA")[1]), was passed by Congress to ensure educational services for the handicapped who, prior to the passage of the Act, were in many cases not receiving any [email protected].
The case of Jacob Straube is sad, but perhaps not that unusual. Jack, as he is known, is almost eighteen years old and about to enter his senior year in high school. Although he possesses average to above average intelligence, just prior to entering tenth grade, Jack read only at a third grade level. This suit is based on the claim that the educational system has failed this boy. Underlying is the ultimate question what should our educational system be doing for students with handicaps?
BACKGROUND
Jack Straube has dyslexia which is a developmental disorder which affects his ability to read and write. This dyslexia is compounded by a condition known as attention deficit disorder, manifested by impassivity and poor concentration. Jack has been classified as "learning disabled", as a result of these conditions, and is entitled, because of the IDEA, to receive, at public expense, specially designed instruction to meet his educational needs.
Jack is being educated in the Florida Union Free School District in Orange County, New York. He currently attends S.S. Seward Institute, the district's high school. The Florida school district is a small system serving roughly 400 students in total. Starting in third grade, Jack was evaluated annually by the district's Committee on *1170 Special Education ("CSE") and provided with an Individualized Education Program ("IEP") which was intended to address his needs as identified by the CSE. Over the years, the programs set up for Jack by the CSE included time in a special resource room, mainstreaming into regular classes, remedial reading, and counseling. Despite these efforts, in 1990-91 when Jack would have entered tenth grade, test scores showed he read only at a third grade level. The IEP for that school year was similar to that of previous years. Jack's parents decided that the school district had had enough time to teach their son to read and challenged his IEP as "inappropriate". Their goal was to place Jack in the Kildonan School in Armenia, New York, a residential school which purportedly has a high degree of success in teaching dyslexic children to read. The Kildonan School utilizes a teaching method known as Orton-Gillingham which is a multi-sensory approach to learning.
Under the IDEA, parents are provided with due process in order to challenge an IEP which they believe is "inappropriate". The Straubes requested such a hearing to review the IEP proposed for Jack's sophomore year in high school. Shortly after the hearing commenced in August 1990, the school district agreed to place [email protected]. The Straubes began the enrollment process but were then told that the district could not authorize the Kildonan placement because the school was not "approved" by the New York State Education Department. The Straubes nevertheless enrolled Jack at Kildonan after allegedly investigating other alternatives drawn from the "approved" list.
The impartial hearing, at which the Straubes were represented by a trained lay advocate, took place over several days. At the conclusion, the Impartial Hearing Officer ("IHO") concluded that the "programs provided over the years, as resulted in this 15 year old's reading at a third grade level, must be considered a failure." In the Matter of the Special Education Due Process Hearing on the Petition of J.S., Impartial Hearing Officer's Decision (November 27, 1990), at 6. He determined that the school district's proposed placement as described in the 1990-91 IEP was inappropriate. The IHO noted, however, that Jack could not be placed in Kildonan, although that school appeared to present the best hope because of its particular teaching methods, because the school was not approved by the State Education Department, a requirement under the IDEA. The IHO observed that "no private school either within or without the state dealing with this Child's severe learning disability, at his chronological age, is registered as an approved school." Id., at 8. The IHO remanded the case back to the CSE to reformulate Jack's IEP for the 1990-91 school year. The Straubes began this suit to challenge the IHO ruling and placed Jack in Kildonan.
After nine months in Kildonan, Jack's reading scores had improved dramatically.[2] Lacking the funds to continue his education there, the Straubes re-enrolled Jack in the Florida high school. The IEP fashioned for 1991-92 continued the same educational strategy as the other ones that had failed so miserably in the past: mainstreaming for all subjects but math and reading, special education reading, five hours per week in the resource room and counseling. The IEP noted that Jack required a multi-sensory approach to learning.
DISCUSSION
The Straubes, the Florida school district and the State are all moving for summary judgment. The Straubes seek conditional approval of Kildonan, compensatory damages and an order to the State to institute new procedures for the approval of schools. The State and the school district seek dismissal of the Straubes' complaint in its entirety. Several preliminary issues must be resolved before the substance of the motions can be addressed.
*1171 Mootness
The defendants argue that this case is mooted by the fact that there was a new IEP in place for Jack to which his parents have apparently assented. Defendants contend that the 1990-91 IEP is the subject of this litigation and would not be in effect regardless of its legal sufficiency. Since the dispute concerning the 1990-91 IEP no longer exists, defendants suggest that this court lacks jurisdiction to hear the Straube's complaint.
Article III of the United States Constitution requires that there be a "case or controversy" before a federal court can render a decision. "However, where the offensive conduct is `capable of repetition, yet evading review,' the rule that mootness strips the court of jurisdiction does not control." Christopher P. by Norma P. v. Marcus, 915 F.2d 794, 802 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 1081, 112 L. Ed. 2d 1186 (1991), (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982)). So where the complaining party would be subjected to the same action at some future point, mootness does not exist. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (per curiam); Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1040 (5th Cir.1989).
It cannot be disputed that the 1990-91 IEP is no longer applicable to Jack. Yet judicial review is still available in light of the ponderous procedures of the IDEA. See Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 186-87 n. 9, 102 S. Ct. 3034, 3041 n. 9, 73 L. Ed. 2d 690 (1982) (allowing judicial review of an IEP which expired at the end of the school year); Frutiger v. Hamilton Central School Dist., 928 F.2d 68, 73 (2d Cir.1991). Moreover, the issues raised by his parents in their challenge to that program still continue. Indeed, Jack's IEP for 1991-92 merely continues the regime which had already been deemed "inappropriate" by the IHO although we are cognizant that as a result of his year at Kildonan, his needs may have changed. Assuming that Jack's needs have not changed, the fact remains that there is a very real possibility that the school district will continue to give Jack another inappropriate placement unless the question of whether the school district is limited to choices from the "approved list" in making placements.
In addition, the crux of the Straubes' complaint is that the State has failed to provide a continuum of educational options for the severely dyslexic student. As placement in any of the schools on the State's approved list had not been recommended by either the IHO or the 1991-92 CSE, the fundamental problem complained of by the Straubes namely, that no viable educational option for Jack was provided by the State continues to exist. See Honig v. Doe, 484 U.S. 305, 320-21, 108 S. Ct. 592, 602-03, 98 L. Ed. 2d 686 (1988) (lack of policy concerning school response to disability related misconduct could continue to result in IDEA/EHA violations which could affect plaintiff who was 20 years old and still eligible for educational services); Daniel R.R., 874 F.2d at 1041 (primary controversy concerning extent of State's mainstreaming obligation likely to recur each year). We do not find therefore that his claim is moot.
Eleventh Amendment
The IDEA abrogates the Eleventh Amendment for violations occurring in whole or in part after October 30, 1990. 20 U.S.C. § 1403. The State defendants argue that any of their actions giving rise to this suit took place prior to October 30, 1990 and that this action is therefore barred. It is true that any actions of the State with respect to the IEP in 1990-91 and the administrative hearings took place prior to October 30, 1990 and may not serve as a basis for this suit. For example, any interference by the State in the settlement negotiations between the school district and the Straubes occurred prior to October 30, 1990 and is therefore not actionable.
In addition, the plaintiffs claim that the State has failed to provide a continuum of placement alternatives for dyslexic students. The unavailability of a proper placement *1172 for Jack in August 1990 when his IEP was written continued past October 30, 1990 and had a proper placement been available, plaintiffs contend that an appropriate IEP could have been created at some point for Jack. We had stated in an earlier decision that the State could be found liable on the basis that it had failed to provide a continuum of options for the severely learning disabled students in violation of 34 C.F.R. 300.551, a harm which continued past October 30, 1990. Straube v. Florida Union Free School Dist., 778 F. Supp. 774 (S.D.N.Y.1991). Although the State argues that it has provided this continuum, that assertion goes to the merits of this case, not to the issue of Eleventh Amendment immunity.
Moreover, to the extent that the plaintiffs are seeking prospective relief, the Eleventh Amendment is not a bar. Edelman v. Jordan, 415 U.S. 651, 677, 94 S. Ct. 1347, 1362, 39 L. Ed. 2d 662 (1974). The Straubes seek an injunction ordering the State to expand the educational alternatives available for dyslexic students. They also seek a specific placement for Jack in the future. Neither request for relief is prohibited by the Constitution.
Qualified Immunity
The State officials also claim that they are entitled to qualified immunity from liability for civil damages. "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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). In addition, even where rights are clearly defined, an official is shielded by qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights. Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991); Robison v. Via, 821 F.2d 913 (2d Cir.1987) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986)).
The Commissioners of Education argue, citing no authority, that in the absence of Supreme Court precedent or Second Circuit precedent on point, a statutory right was not clearly established. We do not agree that Jack's right to a "free appropriate public education" was not a clearly established statutory right. The case law is replete with authority confirming that a handicapped child's right to equal educational opportunity is protected by the guarantees in the IDEA. See, e.g., Rowley, 458 U.S. at 181, 102 S. Ct. at 3038. Indeed, the IDEA, itself, so states. See 20 U.S.C. § 1400(c). Additionally, "in order to qualify for federal financial assistance under the Act, a State must demonstrate that it `has in effect a policy that assures all handicapped children the right to a free appropriate public education.'" Rowley, 458 U.S. at 180-81, 102 S. Ct. at 3037-38 (quoting 20 U.S.C. § 1412(1)). Thus, it is very clear that the State has the ultimate responsibility for ensuring that each eligible child receives an appropriate education.
In addition, Sobol and Neveldine claim that their actions concerning the use of an approval process for private schools was objectively reasonable. While we have no quarrel with the use of a pre-approved list because it surely promotes efficiency in locating placements for eligible children, the plaintiffs' complaint is not with the use of an approval process but with the use of a process which prevents the list from containing educational options which would satisfy the requirement that a "continuum of alternative placements" be assured by the State. 34 C.F.R. § 300.551(a). If the State has not provided sufficient alternatives, then its behavior cannot be said to be objectively reasonable. Therefore, a factual determination is the necessary predicate to the availability of qualified immunity to the State defendants. That determination rests upon the resolution of the State defendants' motion for summary judgment.
Cross-Motions for Summary Judgment
A. The Individuals with Disabilities Education Act
The IDEA was passed to provide educational opportunity for handicapped *1173 children when Congressional fact finding determined that many children with disabilities were either being excluded from the classroom or misplaced so that their education had no meaning. Rowley, 458 U.S. at 191, 102 S. Ct. at 3043 (citing H.R. Rep., at 2). The Act's stated purpose is to:
assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the right of children with disabilities and their parents or guardians are protected, ... and to assess and assure the effectiveness of efforts to educate children with disabilities.
20 U.S.C. § 1400(c); see Rowley, 458 U.S. at 179-84, 102 S. Ct. at 3037-39. The Act gives disabled students a substantive right to public education and conditions federal assistance upon a State's compliance with the substantive and procedural goals of the Act. Honig v. Doe, 484 U.S. at 310, 108 S. Ct. at 597; Robert D. v. Sobel, 688 F. Supp. 861, 862 (S.D.N.Y.1988).
The "free appropriate public education" required by the IDEA must be tailored to each child's unique needs and take place in the least restrictive environment suitable for the child. 20 U.S.C. §§ 1400(c), 1412(5)(B). Free appropriate education requires "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203, 102 S. Ct. at 3049.
To develop the proper program for each eligible child, the IDEA mandates an individualized education program, or IEP, for each eligible child. The IEP, prepared at meetings between the school district, the child's teacher, and the child's parents or guardians, defines the child's present educational performance, establishes annual and short-terms objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. 20 U.S.C. § 1401(19); see Heldman v. Sobol, 962 F.2d 148, 151 (2d Cir.1992). The IDEA requires that the IEP be reviewed and, if necessary, revised, no less than annually. 20 U.S.C. § 1414(a)(6). The end result of an IEP is a placement which is intended to meet that child's educational needs.[3]
The regulations promulgated pursuant to the IDEA require that "a continuum of alternative placements [be] available to meet the needs of handicapped children for special education and related services." 34 C.F.R. § 300.551(a). The continuum must include, among other things, audiology, counseling, and medical services in addition to occupational and physical therapy, and recreation. Id., at § 300.551(b); see id., at § 300.113.
Recognizing that on occasion the school district is unable to provide sufficient support services to the disabled child, the IDEA gives the State the option of providing free public education in private schools and facilities. 20 U.S.C. § 1413(a)(4)(B)(i) (1990). In such instances, "the [s]tate educational agency shall determine whether such schools and facilities meet standards that apply to [s]tate and local educational agencies." Id. § 1413(a)(4)(B)(ii). In New York, placement in private residential schools is permitted provided that the school has been approved by the Commissioner of Education. N.Y. Educ. Law § 4402(2)(b)(2). In the Spring of 1990, New York had a list of over 170 private schools which were approved for special education placements. See New York State's List of *1174 Approved In-State and Out-of-State Private and Special Act School Districts for Children with Handicapping Conditions (Spring 1990). Of these, seven had programs for severely learning disabled students in their mid-teens.[4] Two of those schools offered residential placements.
B. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that the trial judge shall grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. The threshold inquiry is whether there are genuine factual issues that must be resolved by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). On cross-motions, the rule governing inferences and burden of proof remains the same. In deciding whether the moving party is entitled to judgment as a matter of law, all inferences must be drawn against the moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962), and reasonable minds must not differ as to the import of the evidence before the court, Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir.1990).
Here, each party asserts that the material facts in this case are undisputed warranting judgment in its favor as a matter of law. It is evident, however, that there are factual disputes. But even a dispute of fact does not preclude summary judgment if the dispute is not material to the issue to be determined. Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11-12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987).
C. Was the IDEA Violated?
Under the IDEA, Jack Straube is entitled to a "free appropriate public education." Jack has been educated in the Florida public schools since 1980. He was classified as learning disabled in 1983 and it is now contended that his education has not been appropriate. Specifically, plaintiffs argue that in light of Jack's lack of progress from 1984 to 1990, the placement chosen in the 1990-91 IEP was inappropriate. The defendants do not contest Jack's lack of progress. Florida instead contends that its hands were tied because the State did not make appropriate placements available; the State asserts that it provided sufficient educational options and any failures were due to the failure of the school district to comply with the requirements of the IDEA.
The State and the local educational agency receiving federal funds are both charged with the duty of providing handicapped children with appropriate educations. See 20 U.S.C. § 1414(a); id., at § 1414(d) (if local educational agency is unable to furnish free appropriate education, state shall provide appropriate programs); 34 C.F.R. § 300.600. The IDEA states that "`free appropriate public education' means special education and related services that a) have been provided at public expense, under public supervision and direction, and without charge, b) meet the standards of the State educational agency, c) include an appropriate preschool, elementary, or secondary school education in the State involved, and d) are provided in conformity with the individualized education program required under section 1414(a)(5) of [the Act]." 20 U.S.C. § 1401(18).[5] An *1175 appropriate education is therefore provided when personalized educational services are provided. Rowley, 458 U.S. at 197, 102 S. Ct. at 3046.
What the Act is not intended to do is to require States to provide services which maximize each child's potential or to achieve strict equality of opportunity or services. Id., 458 U.S. at 198, 102 S. Ct. at 3046; Rettig v. Kent City School Dist., 720 F.2d 463, 466-67 (6th Cir.1983), cert. denied, 467 U.S. 1201, 104 S. Ct. 2379, 81 L. Ed. 2d 339 (1984); A.W. By and Through N.W. v. Northwest R-1 School Dist., 813 F.2d 158, 163-64 (8th Cir.), cert. denied, 484 U.S. 847, 108 S. Ct. 144, 98 L. Ed. 2d 100 (1987). Instead, the Act creates a "basic floor of opportunity" which consists of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Rowley, 458 U.S. at 201, 102 S. Ct. at 3048. The IDEA opens "the door of public education to handicapped children on appropriate terms [rather] than [] guarantee[ing] any particular level of education once inside." Id., 458 U.S. at 192, 102 S. Ct. at 3043. Thus, the education secured by the IDEA is not one that will maximize potential or the best possible but instead simply appropriate. Id., at 197 n. 21, 102 S. Ct. at 3046 n. 21; Springdale School District # 50 of Washington County v. Grace, 693 F.2d 41, 43 (8th Cir.), cert. denied, 461 U.S. 927, 103 S. Ct. 2086, 77 L. Ed. 2d 298 (1982); Greer By and Through Greer v. Rome City School Dist., 762 F. Supp. 936, 941 (N.D.Ga.1990), aff'd, 950 F.2d 688 (11th Cir.1991), withdrawn on other grounds, 956 F.2d 1025 (1992). See Tucker v. Bay Shore Union Free School Dist., 873 F.2d 563, 567 (2d Cir.1989) ("The [IDEA] guarantees to a handicapped child an education that is `appropriate,' not one that provides everything that might be thought desirable by `loving parents.'").
Providing an appropriate education for dyslexic students is the obligation of both New York State and the Florida Union Free School District. The parties agree that at the time the 1990-91 IEP was written, Jack was reading at a level far too low to be commensurate with what appears to be average to high average intelligence. As a result, we must agree with the plaintiffs and the IHO that the special education provided to Jack up to 1990 failed and certainly had not been appropriate. Yet, failure of special education does not necessarily state a claim under the IDEA so long as the State has complied with the procedures set forth in the Act and the IEP was reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051.
The Straubes contend that the State Education Department has not complied with IDEA procedures because 1) New York has not provided a continuum of alternative placement options and 2) New York requires that districts must select private school placements from a pre-approved list which is not representative of private schools nor provides for all handicapping conditions.[6] While no one has suggested that the 1990-91 IEP as originally proposed for Jack was appropriate, the State contends that there were other options available for placement and that it has therefore complied with the IDEA.[7]
*1176 Plaintiffs suggest that the "continuum of alternative placement options", required by 34 C.F.R. § 300.551(a), imposes a duty upon the state to ensure that there be a placement option specifically suited for Jack's particular needs and goals. We do not agree. There is no obligation under the IDEA for a school district to provide a specific program or employ a specific methodology in providing for the education of children with disabilities. Lachman, 852 [email protected]. Instead, the continuum must "make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement", id., at § 300.551(b(2), and provide related services such as transportation and "such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education," id., at § 300.13(a). Consequently, the continuum must include alternative placements and supplementary services in conjunction with regular class placement. Daniel R.R., 874 F.2d at 1043; Greer, 762 F.Supp. at 939-40.
The possible placements that the State must provide are not intended to provide the "best" available education but rather "appropriate" education. Greer, 762 F.Supp. at 941. The local educational authorities can make choices and allocate scarce resources without the courts intervening in their choices so long as sufficient options are available to provide reasonable opportunities for the disabled child. Rowley, 458 U.S. at 208, 102 S. Ct. at 3052; A.W. v. Northwest, 813 F.2d at 164; Barnett v. Fairfax County School Board, 721 F. Supp. 757, 762 (E.D.Va.1989) (school district needs to provide only one method for educating hearing impaired children despite availability of other methods which may be more suited), aff'd, 927 F.2d 146 (4th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 175, 116 L. Ed. 2d 138 (1991). The purpose of the continuum is to ensure that a variety of choices are available so that an IEP can be constructed which ensures an appropriate education. An appropriate education is one that should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Rowley, 458 U.S. at 204, 102 S. Ct. at 3049. There was never a requirement that New York have a placement available for Jack which maximized his potential or provided him with the best education. So long as a placement was available which would have afforded educational benefit, the continuum has been satisfied. Id., 458 U.S. at 203, 102 S. Ct. at 3049; Greer, 762 F.Supp. at 941 n. 7. Cf. Barnett v. Fairfax County School Board, 721 F.Supp. at 761 (hearing impaired student who wanted to attend local high school but was receiving B grades in centralized program had no claim under EHA).
It is against these standards that we must evaluate the education that Jack has received and the opportunities that are available to him. Up to sixth grade, Jack was mainstreamed with one hour daily in the resource room. These IEPs were consistent with the priority placed on mainstreaming by Congress. When it became apparent that Jack was having problems in a regular classroom, he was assigned to a self-contained special education class for all of his academic subjects except Spanish.[8] Although Jack was promoted each year, he did not necessarily pass each subject. The record suggests that we cannot totally rely on the Rowley standard to assess the educational benefit derived by Jack because the continual decrease in his grades and *1177 the failure of his reading level to move up in six years suggests that perhaps Jack was being moved from grade to grade in order to get him through the system. The continual lack of achievement and educational progress suggests that the IEPs developed for Jack did not yield any educational benefit. Thus, we would agree with the IHO that the IEP proposed for 1990-91 which would continue the programs of previous years could only be deemed inappropriate. Jack's movement from grade to grade, for whatever reason, cannot be deemed the progress that an appropriate education would have brought.
When education within the regular school system is not effective, as clearly it was not in this case, then a private placement must be considered by the educational agencies. See Roncker on Behalf of Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied sub nom, Cincinnati City School Dist. Bd. of Educ. v. Roncker, 464 U.S. 864, 104 S. Ct. 196, 78 L. Ed. 2d 171 (1983). Assuming that a private placement was the necessary choice for the 1990-91 IEP, we have been returned to the question of whether in its private placement approvals, the State provided a continuum of alternative placements. This question invites us into investigating state educational policies and facilities which is far beyond the scope of review permitted.[9] We are nevertheless compelled by the claims raised by these plaintiffs to assess the placements which exist on the "pre-approved" list. In doing so, we are cognizant that we "lack the `specialized knowledge and experience' necessary to resolve `persistent and difficult questions of educational policy.'" Rowley, 458 U.S. at 208, 102 S. Ct. at 3052 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. at 42, 93 S. Ct. at 1301).
It seems to us that a "continuum of alternative placements" exists if the pre-approved list contains private placement alternatives for male teenagers with dyslexia.[10] The Regional Supervisor with the Office for Special Education Services of the New York State Education Department has provided an affidavit which states that nine schools in the Lower Hudson Valley Region are potentially capable of providing services to a child with dyslexia. We do not agree that three of those recommendations are appropriate[11]; moreover, none of these schools are recommended for severely learning disabled students.
There is no requirement though that a child receive a residential placement located in his immediate geographic area although it is preferable. Assuming that Jack is severely dyslexic and that he must be consequently classified as severely learning disabled, our review of the pre-approved list reveals seven placement options on the approved list for Jack. See footnote 3, supra.[12] Only two of these schools offer residential placements. The other schools are not located near Jack's home. However, that fact does not mean that they are not appropriate placements. Indeed, the Straubes considered the Community *1178 School, located in northern New Jersey, a viable option and they acknowledge that with the exception of the Community School, they simply did not consider applying to any other school on the list. Notice of Cross-Motion for Summary Judgment in Favor of Sobol and Neveldine, Exh. D, at 114. The Straubes acknowledge that had Jack been accepted, they would have sent him to the Community School. The fact that Jack was not accepted does not mean that the State has failed in its duty to provide a possible placement for Jack. See Antkowiak by Antkowiak v. Ambach, 838 F.2d 635 (2d Cir.1988) (court would not order placement in unapproved school despite child's rejection by six in-state residential facilities).
The plaintiffs argue that no other schools on the list were within the continuum because none of the schools met the exact requirements of the Straubes. They claim that their advocate contacted all the approved private day and residential schools in the Hudson Valley Region and asked:
Do you have a program for average to above average intelligence for a 15 year old boy with severe dyslexia, reading at a second grade level, and with Attention Deficit Disorder? Is the program a reading/language based curriculum which will remediate the disability while at the same time provide a college prep curriculum?
The plaintiffs claim that without exception the answer was no.[13] The problem is that the plaintiffs had too high expectations for what the placement options were to do. An appropriate program is not a perfect program nor one that maximizes potential. An appropriate program is one that will move the child along academically, not one that will guarantee college entrance. Thus, the Straubes' rejection of a program which had a vocational focus was unreasonable because it indicated a lack of understanding of what the IDEA was intended to achieve. See Daniel R.R., 874 F.2d at 1048 ("States need not provide every conceivable supplementary aid or service to assist the child."). Moreover, other than the statement by their advocate, see footnote 13, supra, the plaintiffs have not offered any credible evidence to show that any of the other schools on the pre-approved list were not appropriate placements for Jack. Plaintiffs cannot "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Insurance, 804 [email protected]. Thus, we conclude that New York State offered a continuum of placement options which satisfied the requirements of the federal statute.
The plaintiffs also claim that the State in mandating that placements be made from a pre-approved list was violating the procedures of the IDEA. The IDEA requires that a private placement be in a school whose program meets the standards of the State. 20 U.S.C. § 1401(18). The list maintained by New York is a compilation of those schools who have met state requirements[14] and maintenance of *1179 such a list is not unusual. See Cordero by Bates v. Pennsylvania Dept. of Education, 795 F. Supp. 1352, ___, (M.D.Pa. 1992). Indeed, so long as there are sufficient placement options on the list and the process in electing a placement from the list does not take an unreasonably long period of time, restricting the choice of placements of those schools on a pre-approved list is not a violation of the IDEA. Id.; see Antkowiak, 838 F.2d at 641 (state may not add additional steps not contemplated in the scheme of the Act even if the procedures are intended to add additional safeguards for the handicapped student). In this case, we have concluded that there were options on the list for Jack. There is no evidence that a placement, if one was sought, could not have been obtained in an acceptable amount of time. We do not find, therefore, that the use of a pre-approved list is illegal.
Plaintiffs also urge that requiring schools to apply for approval before placements can be made limits the options available for placement. Assuming that the pre-approved list has no viable options, this argument has some force. But plaintiffs have not demonstrated that there are no placements for Jack which will provide him with an appropriate education.
D. Failure to Provide an Appropriate IEP
We agree with the IHO that the Florida Union Free School District failed to provide Jack with an appropriate IEP. His progress from grade to grade was not sufficient, in our view, to indicate that he was receiving the educational opportunity to which he was entitled. The School district does not bear the total fault for this affair. The State bears ultimate responsibility for ensuring that every eligible child has an appropriate placement. Honig v. Doe, 484 U.S. at 329, 108 S. Ct. at 607; see 20 U.S.C. § 1414(d)(1); Todd D. by Robert D. v. Andrews, 933 F.2d 1576, 1582 (11th Cir.1991). Even though the State may have satisfied its direct duties, it is essentially responsible for the actions taken by the local educational agency. "Each state educational agency is ultimately responsible for ensuring that each agency in the State is in compliance with the IEP requirements and the other provisions of the Act and regulations." 34 C.F.R., App. C, Question 1; see id., at § 300.600(a)(1). "[T]he state's role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of local school districts." Cordero by Bates, 795 F. Supp. 1352 (citing Honig v. Doe, 484 U.S. 305, 108 S.Ct. at 592).
In addition, Jack's parents must share some responsibility for the shortcomings in his education. They were cognizant of Jack's lack of progress and yet acquiesced in the same type of IEP year after year despite being quite aware of their due process rights. The structure of the IDEA presumes that a child's parents or guardians will arduously seek to ensure that the child receives all of the benefits to which they are entitled by the Act. Rowley, 458 U.S. at 209, 102 S. Ct. at 3052. The Straubes did not demonstrate this ardor and as a result it became very easy for the school district to provide Jack with what appears to be inappropriate and minimal services.
We conclude that Jack did not receive an appropriate IEP for the school year 1990-91 and therefore a violation of the IDEA has occurred.
E. Appropriate Relief
The plaintiffs are seeking to have Jack placed at Kildonan for the 1992-93 school year. As Kildonan is not on the list of approved schools, we cannot order such relief. Tucker v. Bay Shore Union Free School Dist., 873 F.2d at 568; Antkowiak, 838 [email protected]. In addition, we will not order Jack's placement because we feel it is the province of the local educators to make that decision. We thus remand this matter to the Committee on Special Education with instructions to develop an Individualized Education Program for Jacob Straube which will address his particular *1180 needs. If Jack made satisfactory progress[15] in his last [email protected]. Seward Institute, then the CSE may develop an IEP to be based in the district's high school that it believes is appropriate. If, on the other hand, Jack made no progress in his last year in the public school or regressed from the achievements attained in his year at Kildonan, then the CSE is not to order special education classes and time in a resource room because the record is quite clear that such a program will not do the job. Instead, the CSE is ordered to explore the possibility of a private placement on the approved list, using New York's Residential Placement System. See Affidavit of Hannah Flegenheimer (May 15, 1992), at ¶ 16.
If no appropriate placement is available or if Jack is not accepted by any of the schools, we are then left with a difficult situation. It is quite plain in the Second Circuit that a placement may not be made in an unapproved school. Yet the situation may come up where that is the only option. Even in such situations, the courts in this Circuit have adhered to the position that a school must be approved by the State before placements funded by the IDEA can be made. Antkowiak, 838 F.2d at 640-41; Matthew S. by Steven S. v. Sobol, 1991 WL 12184 (S.D.N.Y. January 29, 1991); Hiller v. Board of Education of the Brunswick Central School Dist., 687 F. Supp. 735, 742 (N.D.N.Y.1988).
Thus, should a residential placement be needed and none is available, the State is ordered to expand the alternative placements on its list. See Cordero v. Bates, 795 F. Supp. 1352 (ordering State to provide timely placements for handicapped children who are on waiting list due to lack of approved schools). If the CSE and the Straubes, working with the State authorities determine that Kildonan would be an appropriate placement, the State must take affirmative steps to provide conditional approval for the school.[16] We are cognizant that there may be very valid reasons why Kildonan is not approved for New York placements. But if the only objection to Kildonan is its refusal to designate itself as a school for the handicapped and the school in all other ways meets state conditions, New York should provide conditional approval for the school and pay for Jack's tuition during the 1992-93 school year. The CSE is given thirty days from the date of this decision to notify this court of what IEP has been developed. (This limited period is necessary in light of the imminence of the school year's commencement.)
We emphasize that Kildonan is not an option until the CSE and the Straubes have exhausted all efforts to locate an appropriate placement within the parameters currently set by the State. This court will not *1181 view lightly any lack of diligence on the part of the Florida School District and the Straubes to circumvent the State's procedures in order to obtain a [email protected].
F. Damages
The Straubes seek compensatory damages for the tuition paid to Kildonan during the school year of 1990-91 and their related expenses such as transportation and counseling. Under the law of the Second Circuit, parents may not be reimbursed for the unilateral placement of their child in an unapproved private school even if that placement would have been appropriate under the IDEA. Tucker, 873 F.2d at 568; Antkowiak, 838 [email protected]. Other Circuits have not followed this rule, see Carter v. Florence County School Dist. Four, 950 F.2d 156 (4th Cir.1991), and a petition for certiorari has been filed in the Carter case. 60 U.S.L.W. 3689 (1992). We, however, are bound by the law in the Second Circuit. Therefore, the Straubes are not entitled to reimbursement for the year of [email protected].
As noted in an earlier footnote, Jack's 1989-90 IEP called for weekly counseling. It is uncontested that Jack did not receive this counseling because of staffing shortages in the school district. His 1990-91 IEP also called for weekly counseling. Whether the counseling would have been provided is speculative because of the Straubes' unilateral placement of their [email protected]. However, Jack was entitled to a year of counseling which he did not receive. In lieu of ordering a year of counseling which Jack would receive anyway as part of a future IEP if counseling were deemed necessary, we order the school district to compensate the Straubes for the $1,320 they spent to provide Jack with counseling during the 1990-91 school year. See Max M. v. Illinois State Bd. of Educ., 629 F. Supp. 1504, 1519 (N.D.Ill.1986). If Jack's 1992-93 calls for counseling, we order the Florida School District to ensure that he receives that counseling as called for by the IEP. If staffing shortages exist, then the school district must arrange for appropriate counseling through private providers.
The Straubes have also requested that compensatory education be ordered for Jack to compensate for all of the years that he did not receive a "free appropriate public education." Specifically, the plaintiffs would like Jack to receive his high school diploma and have the defendants pay Jack's tuition at a college which specializes in education of dyslexic students.
Although Jack can receive compensatory education beyond his twenty-first birthday, Burr by Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir.1988), reaffirmed, 888 F.2d 258 (2d Cir.1989), cert. denied, 494 U.S. 1005, 110 S. Ct. 1298, 108 L. Ed. 2d 475 (1990), it cannot be granted in the form of college tuition. The IDEA directs funds into special education at elementary and secondary schools and there is no provision in the Act for the payment of funds for post-secondary education. But a student may receive educational services in compensation for services which were not provided even while the student is attending college. See Puffer v. Raynolds, 761 F. Supp. 838 (D.Mass.1988). The Florida Union Free School District is ordered to provide Jack with one year of remedial educational services after his graduation from high school. We recognize that Jack's future educational needs are not immediately knowable. However, that does not foreclose our ability to order that to which he is entitled which is deprivation of a "free appropriate public education" in the 1990-91 school year. Lester H. by Octavia P. v. Gilhool, 916 F.2d 865, 868 (3d Cir. 1990), cert. denied sub nom., Chester Upland School Dist. v. Lester H., ___ U.S. ___, 111 S. Ct. 1317, 113 L. Ed. 2d 250 (1991).
After Jack's graduation from high school, the Committee on Special Education, the State and the plaintiffs are ordered to develop a compensatory program which will take into account Jack's educational status at that time and whatever progress he has made in the interim. See Puffer, 761 F.Supp. at 853.
*1182 Finally, we turn to the plaintiffs' request for costs and money damages. Plaintiffs are entitled to be reimbursed for the costs associated with the due process hearing. Those costs are $1,045 paid to an educational consultant and $1,172 for the cost of an attorney. We will not make this award now but wait until an application for attorneys' fees and costs has been submitted.[17]
Mrs. Straube seeks compensation for the time expended raising funds to pay for Jack's [email protected]. These efforts may not be compensated. The value of contributed parental services may be considered as damages only when those efforts were made in providing services to which the child was entitled as a matter of law. For example, in Hurry v. Jones, 734 F.2d 879 (1st Cir.1984), the parents were reimbursed for the time and expenses involved in transporting their son to school. The child was entitled to door-to-door transportation to and from school which he had not received in violation of the Education for Handicapped Act (now the IDEA). Additionally, the court found that the damages sought by the parents were no greater than what would have been paid for transportation services during that period of deprivation because the driver's time is a normal component of transportation costs. Id., 734 [email protected]. In contrast, the Straubes were not entitled to reimbursement for the tuition paid to Kildonan and their time was not expended on delivering services to Jack but on raising money. Thus, under the IDEA they are not entitled to compensation.
CONCLUSION
Plaintiffs' motion for summary judgment is granted in part and denied in part. New York's motion for summary judgment is granted in part and denied in part. Florida Union Free School District's motion for summary judgment is denied. Plaintiffs are to submit an order within ten days of this decision.
SO ORDERED.
NOTES
[1] The EHA was passed in 1975 to address the right of children with disabilities to receive an education. Despite the amendments passed in 1990 and the change of the Act's name to the IDEA, the EHA remains the foundation for IDEA. See Heldman v. Sobol, 962 F.2d 148 n. 1 (2d Cir.1992). Thus, though this case was brought under the IDEA, the cases which have addressed the rights of disabled children under the EHA remain precedent for interpretations of the IDEA.
[2] The 1991-92 IEP for Jackie indicates the following scores: reading comprehension, 9.0; word identification, 9.8; passage comprehension, 7.0. In stark contrast, the 1990-91 IEP indicates a reading level of 3.7.
[3] It is worth noting that the structure of the Act encourages the mainstreaming of disabled children into the regular classroom setting whenever possible. Honig v. Doe, 484 U.S. at 311, 108 S. Ct. at 597; Daniel R.R., 874 F.2d at 1044; Lachman v. Illinois State Board of Education, 852 F.2d 290, 295 (7th Cir.), cert. denied, 488 U.S. 925, 109 S. Ct. 308, 102 L. Ed. 2d 327 (1988). Mainstreaming is intended to provide handicapped children with the benefits to be derived by interacting with their peers. It is generally accepted that the goals of mainstreaming and placing the handicapped child in the most suitable academic environment can conflict and that one of the decisions to be made in developing an appropriate IEP is the proper balancing of two desirable ends. See, e.g., Daniel R.R., 874 [email protected]. To the largest extent possible, Jack was mainstreamed.
[4] These schools were: Lorge School, New York, New York; Summit School, Forest Hills, New York; Wildwood School, Schenectady, New York; Gustavus Adolphus Learning Center, Jamestown, New York; Community School of Bergen County, Teaneck, New Jersey; Community High School, Demarest, New Jersey; and Pathway School, Jeffersonville, Pennsylvania. Only the Pathway School and the Adolphus Learning Center offered residential placements. With the exception of the Community School and the Community High School, none of the day placements would be feasible because they are located too far from Jack's home in Orange County to make a commute feasible.
[5] Section 1414(a)(5) is the requirement that the IEP be established and revised no less than annually. 20 U.S.C. § 1414(a)(5).
[6] The plaintiffs also challenge the State's inclusion of dyslexia in the category of learning disabilities rather than designating it as a distinct handicapping condition. Federal regulations do not separate dyslexia from other learning disabilities. The IDEA lists categories of children who should be considered "handicapped." See 20 U.S.C. § 1401(a)(1)(A). Included is a category for "specific learning disabilities" which encompasses perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. 34 C.F.R. Pt. 104, App. A; 34 C.F.R. § 300.5(9). There is no requirement under the IDEA that every variation of disability be addressed separately by state policy so long as an appropriate education can be provided to each handicapped child, no matter what disability makes him or her eligible for special educational services.
[7] It should be noted that the IHO found that there were no placements available. However, he may have drawn that conclusion based on limited information because it appears that only schools in the Hudson Valley region were contacted regarding placement of Jack. The State never suggested any other placements at the hearing although its representative was never asked that question. It is the State's position now that other placement options were and are available for Jack's education.
[8] At some point, counseling was also recommended. Plaintiffs contend that the recommended counseling was rarely provided. This was confirmed by the testimony of Dr. Friedman, the chairman of the CSE and a psychologist in the Florida school district at the impartial hearing. We will consider this fact if we find that the plaintiffs are entitled to damages. Jack's behavior in the classroom was described as disruptive and interfered with the instructional process. Affidavit of Rebecca Spar, at Pa 55. It was observed that when Jack felt a subject was worthwhile such as ninth grade mathematics, he could achieve good grades. Indeed, an educational psychologist noted that Jack would sit quietly and persevere in a task that he deemed meaningful. See id., at Pa 143.
[9] As stated earlier, in suits brought under 20 U.S.C. § 1415(e)(2), the court must ask 1) has the State complied with the procedures set forth in the Act and 2) is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051.
[10] The plaintiffs criticize the State's classifications because New York does not recognize dyslexia as a handicapping condition distinct from a general category of learning disabled. This is not a problem so long as the needs of dyslexic children are addressed in the placement options provided by the state.
[11] The Astor Learning Center does not take children over the age of 13. Jack was 15 at the time a placement was under consideration. The Children's Home of Kingston and the Summit School only take learning disabled children who are emotionally disturbed which Jack is not. Other schools recommended by the Regional Supervisor which might possibly be appropriate placements were the Karafin School in Mount Kisco, the UCP of Ulster County, Sugar Loaf UFSD, Greenburgh Graham UFSD although these schools do not indicate that they serve the severely learning disabled student.
[12] The Office of Civil Rights of the United States Department of Education, found that nine of the schools on the list of approved private schools had actually served dyslexic students. Exh. A, p. 3. We do not know how many of these schools can address properly severe dyslexia.
[13] Marilyn Arons, the Straubes' advocate, summarized the responses she claimed she received from these schools as follows:
We have a mixed E.D. and L.D. population. We do not specialize in learning disabilities. Our program is a behavior modification program. The program described only exists in elementary schools. By the time a student reaches 15, vocational education becomes the primary focus. Our L.D. population is generally lower functioning and not average to above average in intelligence.
Plaintiffs' Responsive Statement Pursuant to Local Rule 3(g), Affidavit of Marilyn Arons (May 18, 1992), at ¶ 6. There is no objective evidence supporting her assertion that she contacted all of the schools on the list and received the answer as described from each school.
[14] General criteria for approval is an assurance that all laws and regulations will be complied with and that the school has an ability to serve children with handicapping conditions. Applications are accepted only from chartered schools and must include a financial statement from an independent certified public accountant. Staff members from the Commissioner of Education's office then conducts an on-site visit to review its facilities and programs.
The specific standards for approval do not appear to be codified in any one place nor has any evidence been adduced by the defendants to indicate what factors would merit approval. Indeed, one of plaintiffs' complaints is that the approval standards appear to be nebulous.
[15] Jack's progress will be measured by comparing his scores in language arts, reading and mathematics at the end of the school year in 1991 with his scores at the end of the school year in 1992. Also taken in account will be his behavior, attitude towards school, and effort put into school work as measured by comparisons between reports written by his teachers at Kildonan [email protected]. Seward Institute.
[16] New York will not waive its requirement that local educational agencies use only private schools contained in the pre-approved list when a child must be placed in a private school. See Plaintiffs' Statement Pursuant to Rule 3(g), ¶ 31; State's Counter 3(g) statement, ¶ 9. New York does allow conditional approval upon the submission of certain documents and an on-site program review visit. 8 N.Y.C.R.R. 200.7(2)(i)(a)-(d). Conditional approval still requires that a school seek approval. Kildonan has declined to apply for approval from New York because the school chooses not to designate itself as a school for the handicapped, apparently a requirement of New York. See In the Matter of J. and J.S., Parents, on behalf of their son, J.S., Transcript of Hearing before Impartial Hearing Officer Earle Warren Zaidins (October 4, 1990), at 1230, 1243-46. Kildonan is approved by New Hampshire, California, Pennsylvania and in the past New Jersey on a case by case basis when no other placement is appropriate for the child.
A school cannot be compelled to apply for approval, but the State can approach Kildonan. If Kildonan meets the State's requirements in every other way except for the way it designates itself, it seems arbitrary to allow semantics to stand in the way of what would be an appropriate placement option for Jack. While the IDEA requires the States to set the standards for the private placement schools, if the only standard not met is clearly unreasonable, then that standard must be dropped.
[17] We will note that while expert fees are recoverable by a prevailing party, the Straubes have not paid such fees but instead agreed to attempt to recover these fees should they prevail. Additionally, the time of lay advocates, although extraordinarily valuable to this case, may not be recompensed under the IDEA. The Act makes provision for attorneys' fees; Ms. Arons, Mr. Gaynor and Ms. Gaynor are not attorneys.
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113 HR 5295 IH: Small Airport Regulation Relief Act of 2014
U.S. House of Representatives
2014-07-30
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I
113th CONGRESS
2d Session
H. R. 5295
IN THE HOUSE OF REPRESENTATIVES
July 30, 2014
Mr. Smith of Nebraska introduced the following bill; which was referred to the Committee on Transportation and Infrastructure
A BILL
To amend title 49, United States Code, with respect to apportionments under the Airport Improvement
Program, and for other purposes.
1.Short TitleThis Act may be cited as the Small Airport Regulation Relief Act of 2014.
2.ApportionmentsSection 47114(c)(1) of title 49, United States Code, is amended by adding at the end the following:
(G)Special rule for fiscal years 2015 and 2016Notwithstanding subparagraph (A), the Secretary shall apportion to the sponsor of an airport under
that subparagraph, for each of fiscal years 2015 and 2016, an amount based
on the number of passenger boardings at the airport during calendar year
2012 if the airport had—
(i)fewer than 10,000 passenger boardings during the calendar year used to calculate the apportionment
for fiscal year 2015 or 2016 under subparagraph (A); and
(ii)10,000 or more passenger boardings during calendar year 2012.
.
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784 F. Supp. 129 (1992)
UNITED STATES of America
v.
Giuseppe GAMBINO, et al., Defendants.
No. 7S 88 Cr. 919 (PKL).
United States District Court, S.D. New York.
February 18, 1992.
*130 Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Andrew C. McCarthy, Frances M. Fragos, of counsel), for U.S.
Mitchell A. Golub, New York City, for Joseph LaRosa.
Martin G. Fogelson, New York City, for Emanuele Adamita.
Ira J. Friedman, Brooklyn, N.Y., for Francesco Inzerillo.
John M. Apicella, Brooklyn, N.Y., for Lorenzo Mannino.
ORDER AND OPINION
LEISURE, District Judge:
On January 3, 1990, a Grand Jury filed the seventh superseding indictment (the "indictment") against the defendants in this case. The evidence presented to the Grand Jury was the result of a long-term investigation by the Government into various activities of an international organization known as "the Mafia" or "La Cosa Nostra." According to the Government, this organization, or systems of organizations, is responsible for the importation and distribution of large quantities of narcotics in violation of federal law. To supplement its income from the narcotics trade, the organization also allegedly participates in gambling, loan sharking, and extortion. The Government charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.
Four defendants charged in the indictment Joseph LaRosa ("LaRosa"), Emanuele Adamita ("Adamita"), Francesco Inzerillo ("Inzerillo"), and Lorenzo Mannino ("Mannino") (collectively, the "moving defendants") have moved this Court pursuant to Fed.R.Crim.P. 14 for severance, and/or for an immediate trial. In support of their motions, the defendants argue that they will suffer "prejudicial spillover" if they are tried along with the remaining defendants and that the delay in their trial, pending a Supreme Court decision on a Double Jeopardy Clause issue originally raised by one of their codefendants, is unreasonable and inconsistent with the provisions of the Speedy Trial Act. For the reasons stated below, the defendants' motions are denied in their entirety.
*131 Background
The indictment in this case contains seven counts. Count One charges the defendants with conspiracy to import heroin and cocaine into the United States in violation of 21 U.S.C. § 963. Count Two charges the defendants with conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846. Count Three charges defendant Giuseppe Gambino with a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Four charges defendant Rosario Naimo with a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Five charges that defendants Giuseppe Gambino, Giovanni Gambino, Rosario Naimo, Salvatore LoBuglio, and Salvatore D'Amico distributed and possessed with intent to distribute heroin on March 15, 1988, in violation of 21 U.S.C. §§ 802, 812, 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2. Count Six charges defendants Giuseppe Gambino and Mannino with obstruction of justice in violation of 18 U.S.C. §§ 1512 and 2. Count Seven charges all defendants with participation in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961 and 1962.
Previously, after the sixth superseding indictment in this case was returned by the Grand Jury,[1] the defendants in this case brought a number of motions, which the Court decided in an Order and Opinion issued on January 25, 1990. United States v. Gambino, 729 F. Supp. 954 (S.D.N.Y. 1990). Nine defendants moved for severance from the main trial, and therefore for individual prosecutions, pursuant to Fed. R.Crim.P. 14.[2] The Court declined to order separate trials for each of the defendants then before the Court; rather, the Court divided the defendants into two groups for purposes of trial. United States v. Gambino, 729 F.Supp. at 969-71. "Group A" consisted of defendants Giuseppe Gambino and Matteo Romano, as well as Mannino, Inzerillo, and Adamita. "Group B" consisted of defendants LaRosa,[3] Salvatore LoBuglio, Giuseppe D'Amico, Salvatore D'Amico, Francesco Cipriano, Salvatore Candela, and Carmelo Guarnera. In making the division, "[a] major concern of the Court was to divide the defendants into groups which would minimize the quantity of evidence not pertaining to a particular defendant which that defendant would have to sit through." Id. at 971. The Court therefore "grouped defendants depending on the extent of overlapping evidence based on the face of the indictment, especially the overt acts," with Group A "consist[ing] of individuals alleged to be leaders of the conspiracy and active from its start in the mid-1970s," and Group B consisting of what the Government referred to as "`secondary wholesale distributors' or those who `oversaw and facilitated the transportation, smuggling and storage of multiple kilogram quantities of narcotics.'" Id.
On May 7, 1990, the trial of the Group B defendants began. On July 24, 1990, the jury returned a verdict finding Salvatore LoBuglio and Salvatore D'Amico guilty on Counts One, Two, and Five. The other Group B defendants who were tried were acquitted on all charges. The Second Circuit recently affirmed the convictions of LoBuglio and D'Amico. United States v. Gambino, 951 F.2d 498 (2d Cir.1991). The trial of the Group A defendants is now tentatively scheduled to begin in the fall of 1992.[4]
*132 As part of the January 25, 1990 Order and Opinion, the Court also ruled on Double Jeopardy motions brought by defendants Giuseppe Gambino, Matteo Romano, and Emanuele Adamita. The Court denied Gambino's motions to dismiss Counts One, Two and Three of the indictment against him; denied Romano's motions to dismiss Counts One, Two and Seven of the indictment against him; and denied Adamita's motions to dismiss the indictment against him. United States v. Gambino, 729 F.Supp. at 957-69. Gambino and Romano appealed the Court's rulings to the Second Circuit, and on December 10, 1990, a panel of the Second Circuit issued a decision relating to the Double Jeopardy claims of Gambino and Romano. United States v. Gambino, 920 F.2d 1108 (2d Cir.1990). The Second Circuit noted that on May 29, 1990, the Supreme Court issued its decision in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), which, the Second Circuit concluded, "significantly altered the jurisprudential landscape of double jeopardy." United States v. Gambino, 920 [email protected]. In light of the Supreme Court's Grady decision, the Second Circuit reversed this Court's decision on Gambino's Double Jeopardy claims as to Counts One and Two of the indictment, holding that the prosecution of Gambino on Counts One and Two is barred by the Double Jeopardy Clause, but affirmed the remainder of this Court's Order and Opinion.
On July 9, 1990, Adamita whose Double Jeopardy claims were also rejected in this Court's January 25, 1990 Order and Opinion, United States v. Gambino, 729 F.Supp. at 968-69 renewed his motion to dismiss the indictment pursuant to the Double Jeopardy Clause after the Supreme Court issued its Grady decision. On August 22, 1990, this Court issued an Order an Opinion denying Adamita's motion to dismiss the indictment. United States v. Gambino, 742 F. Supp. 855 (S.D.N.Y.1990). Adamita appealed the Court's denial of his motion to dismiss the indictment to the Second Circuit; on December 18, 1990, the Second Circuit affirmed this Court's denial of Adamita's motion in an unpublished opinion. United States v. Gambino, 923 F.2d 846 (2d Cir.1990).
Subsequently, both the Government and defendants Gambino and Romano petitioned the Supreme Court for a writ of certiorari with respect to those portions of the Second Circuit's December 10, 1990 decision that had been resolved adversely to each of them. Similarly, Adamita petitioned the Supreme Court for a writ of certiorari with respect to the Second Circuit's decision affirming this Court's denial of his Double Jeopardy motions. On June 10, 1991, the Supreme Court denied Adamita's petition for a writ of certiorari. See ___ U.S. ___, 111 S. Ct. 2810, 115 L. Ed. 2d 982 (1991). On October 7, 1991, the Supreme Court denied Gambino and Romano's petitions for a writ of certiorari. See ___ U.S. ___, 112 S. Ct. 54, 116 L. Ed. 2d 31 (1991). The Government's petition for a writ of certiorari, however, has remained pending. Also on October 7, 1991, the Supreme Court granted the Government's petition for a writ of certiorari from the decision of the Tenth Circuit in United States v. Felix, 926 F.2d 1522 (10th Cir.1991), a case raising issues very similar to those considered by the Second Circuit in holding that the prosecution of Gambino on Counts One and Two is barred by the Double Jeopardy Clause. See ___ U.S. ___, 112 S. Ct. 47, 116 L. Ed. 2d 25.
Defendants LaRosa, Adamita, Inzerillo, and Mannino have each now moved this Court for severance and/or for an immediate trial. LaRosa has moved, pursuant to Fed.R.Crim.P. 14, for severance of his trial from those of his codefendants "to avoid prejudicial spillover which would inevitably result from a joint trial." LaRosa also seeks to join in the motions filed by his codefendants, to the extent that they are applicable to him. Affirmation of Mitchell A. Golub, Esq., counsel for LaRosa, dated November 24, 1991 ("Golub Aff."), at 1-2. Adamita has moved, pursuant to Fed. R.Crim.P. 14, for severance of his trial in order to avoid "prejudicial spillover," as well as so-called "prejudicial taint." Adamita Memorandum of [email protected]. Inzerillo has moved, pursuant to Fed.R.Crim.P. *133 14, for severance from the joint trial, and also claims that the delay in the trial of the Group A defendants is "unreasonable" and inconsistent with the Speedy Trial Act. Affidavit of Ira J. Friedman, Esq., counsel for Inzerillo, sworn to on November 27, 1991 ("Friedman Aff."), at 1-4. Mannino has moved "for a severance and for a trial forthwith," claiming that the delay in trial is inconsistent with the Speedy Trial Act. Affidavit of John M. Apicella, Esq., counsel for Mannino, sworn to on November 27, 1991 ("Apicella Aff."), ¶ 3. The Court will address first the defendants' arguments relating to severance and second the defendants' arguments relating to the Speedy Trial Act.
Discussion
I. Severance
A. General Considerations
Rule 14 of the Federal Rules of Criminal Procedure provides in part that:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Generally, "defendants who are jointly indicted should be jointly tried." United States v. Ventura, 724 F.2d 305, 312 (2d Cir.1983). There is a strong "policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted." United States v. Cardascia, 951 F.2d 474, 482 (2d Cir.1991). The Supreme Court has recognized that "[j]oint trials play a vital role in the criminal justice system," and that "[j]oint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Richardson v. Marsh, 481 U.S. 200, 209-10, 107 S. Ct. 1702, 1708-09, 95 L. Ed. 2d 176 (1987) (Scalia, J.); see also United States v. Casamento, 887 F.2d 1141, 1150 (2d Cir.1989) ("by and large, joinder promotes judicial efficiency"), cert. denied, 493 U.S. 1081, 110 S. Ct. 1138, 107 L. Ed. 2d 1043 (1990).
"A trial court has wide discretion in considering a motion to sever pursuant to Fed. R.Crim.P. 14." United States v. Gallo, 863 F.2d 185, 194 (2d Cir.1988) (citing United States v. Sliker, 751 F.2d 477, 492 (2d Cir.1984), cert. denied, 470 U.S. 1058, 105 S. Ct. 1772, 84 L. Ed. 2d 832 (1985)), cert. denied, 489 U.S. 1083, 109 S. Ct. 1539, 103 L. Ed. 2d 843 (1989); see also United States v. Casamento, 887 F.2d at 1149 ("Motions to sever are committed to the sound discretion of the trial judge.") (citing United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.), cert. denied, 488 U.S. 966, 109 S. Ct. 493, 102 L. Ed. 2d 530 (1988)). It is well-established in the Second Circuit that:
In order to demonstrate an abuse of this discretion, a defendant bears the "extremely difficult burden" of showing that substantial prejudice resulted from the denial of the motion. United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980). It must further be shown that the prejudice resulted from the joinder, not merely that the defendant "might have had a better chance for acquittal at a separate trial." United States v. Rucker, 586 F.2d 899, 902 (2d Cir.1978).
United States v. Gallo, 863 F.2d at 194; see also United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir.1992) ("[T]o overturn a conviction based on the denial of a severance motion, the defendant must show that he was so severely prejudiced that, in effect, he was denied a fair trial not only that his chances would have been improved at a separate trial.") (citing United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir.1990)).
In United States v. Casamento, supra, although the Second Circuit expressed some "misgivings" about lengthy, multidefendant criminal trials, it nonetheless rejected the defendant-appellants' argument "that the length and complexity of [their] trial," which involved 21 defendants and lasted 17 months, "deprive[d] appellants of their right to due process." 887 [email protected]. The Second Circuit noted both the advantages (greater efficiency and decreased *134 chance of inconsistent verdicts) and the disadvantages (great burdens placed upon jurors, defendants, counsel and trial judges) provided by lengthy, multidefendant trials, and "recognize[d] that district judges must retain a considerable degree of discretion in determining whether, on balance, the fair administration of justice will be better served by one aggregate trial of all indicted defendants or by two or more trials of groups of defendants." Id.; see also United States v. DiNome, 954 F.2d 839, 842 (2d Cir.1992). The Second Circuit further set out "some benchmarks ... to guide the exercise of that discretion," including:
In those cases where the judge determines that the time for presentation of the prosecution's case will exceed four months, the judge should oblige the prosecutor to present a reasoned basis to support a conclusion that a joint trial of all the defendants is more consistent with the fair administration of justice than some manageable division of the case into separate trials for groups of defendants. In determining whether the prosecutor has made an adequate showing, the judge should weigh the interests of the prosecution, the defendants, the jurors, the court, and the public.
United States v. Casamento, 887 [email protected].
In the instant case, which the Government has indicated will likely last at least 9 months, the Government has already advanced significant reasons to keep the Group A defendants together in one trial (as opposed to separate trials for each individual defendant); these reasons were set forth in the Court's Opinion and Order of January 25, 1990, which addressed the original severance motions brought in this case:
First, the government does indeed have an interest in prosecuting the case in a similar fashion as it was presented to the Grand Jury. Co-conspirators should be tried together whenever feasible. Second, the government and the public have an interest in as quick and efficient a resolution of the charges as possible.... Third, the stress on the witnesses will be lessened by minimizing the total number of trials. Keeping the number of times that certain key witnesses must repeat their testimony will also reduce the relative advantage accruing to defendants who are tried at later dates and who can benefit from knowledge of the contents and weaknesses of a witness's testimony.
United States v. Gambino, 729 F.Supp. at 971. These considerations are no less applicable now, and the mere fact that the trial of the Group A defendants will be more lengthy and complex than any separate trial of an individual defendant is insufficient to justify further division of the defendants in this case. Moreover, although LaRosa argues that "a severance eliminates the need for a trial court to resolve difficult, if not impossible dilemmas regarding evidence which may be admissible against some, but not all, defendants, streamlines the issues before the court and the jury, and eliminates time consuming strategic and scheduling conflicts amongst defense counsel," LaRosa Memorandum of Law at 4-5, this argument is specious. While it is undoubtedly true that the trial of any one severed defendant, by itself, will be shorter and less complicated than a joint trial of all Group A defendants, the aggregate costs to the judicial system of four severed trials plus one joint trial of the remaining defendants would far exceed those of a joint trial of all Group A defendants.
B. "Prejudicial Spillover"
The main focus of the arguments of the moving defendants is not, however, the mere length and complexity of the upcoming trial of the Group A defendants; rather, the moving defendants argue that they should be severed from the remaining defendants because they will suffer "prejudicial spillover" from evidence that is expected to be introduced at trial relating acts allegedly committed by their codefendants.[5] Claims of "prejudicial spillover" seldom *135 succeed, see, e.g., United States v. Vanwort, 887 F.2d 375, 384 (2d Cir.1989) ("`A defendant raising a claim of prejudicial spillover bears an extremely heavy burden.'") (quoting United States v. Friedman, 854 F.2d 535, 563 (2d Cir.1988), cert. denied, 490 U.S. 1004, 109 S. Ct. 1637, 104 L. Ed. 2d 153 (1989)), cert. denied, 495 U.S. 906, 110 S. Ct. 1927, 109 L. Ed. 2d 290 (1990), particularly when the "prejudicial spillover" claim is advanced by a defendant who is charged, along with other defendants, with conspiracy or RICO Act violations. In the instant case, the arguments advanced by the moving defendants in support of their claims of "prejudicial spillover" are without merit.
LaRosa argues that he "had a comparatively small role in what has been alleged to have been a sixteen year conspiracy" and that "[o]nly a tiny fraction of the evidence that will be presented at the trial will either directly or indirectly implicate him." LaRosa Memorandum of Law at 3. LaRosa concludes that severance of his trial "from the main trial would ensure that he would be judged only by the evidence against him, rather than by the greater evidence against others." Id. at 8-9. Adamita argues that he "can fairly be characterised as a minor participant in the context of this indictment" and will face "prejudicial spillover" and "prejudicial taint"[6] unless he is tried alone. Adamita Memorandum of [email protected]. Inzerillo also argues that his participation in the conspiracies, as alleged in the indictment, is comparatively minor, and that he will suffer "prejudicial spillover" if he is tried with his codefendants. Friedman Aff., ¶¶ 8-9.
The moving defendants' "prejudicial spillover" arguments fail for at least three reasons. First, even a cursory review of the indictment indicates that the moving defendants can hardly be characterized as minor participants in the conspiracies alleged by the Government. Indeed, the roles that they are alleged to have played are substantially greater than those of the Group B defendants, and it was precisely because of their alleged greater participation that the Court previously determined that the moving defendants should be tried together, along with the Group A Defendants. See United States v. Gambino, 729 F.Supp. at 971 ("Group A consists of individuals alleged to be leaders of the conspiracy" and "represents an alleged core of conspirators operating a variety of illegal enterprises out of the Caffe Giardino."). Moreover, the mere fact that the moving defendants may have played comparatively smaller roles in the alleged criminal activities than did the other Group A defendants does not mandate that the moving defendants' severance motions be granted. "`"[D]iffering levels of culpability and proof are inevitable in any multidefendant trial and, standing alone, are insufficient *136 grounds for separate trials."'" United States v. Torres, 901 F.2d 205, 230 (2d Cir.) (quoting United States v. Chang An-Lo, 851 F.2d at 557) (quoting United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983)), cert. denied, ___ U.S. ___, 111 S. Ct. 273, 112 L. Ed. 2d 229 (1990); see also United States v. Cardascia, 951 F.2d at 483 ("a disproportionate introduction of evidence relating to joined defendants does not require a severance in every case"). In Cardascia, the Second Circuit recognized that:
The deference given by an appellate court to a trial court's severance decision reflects the policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted. Acknowledged in this policy is the inevitable tolerance of some slight prejudice to codefendants, which is deemed outweighed by the judicial economies resulting from the avoidance of duplicative trials. Further, the risk of inconsistent verdicts resulting from separate trials, and the favorable position that later tried defendants obtain from familiarity with the prosecution's strategy is obviated through multidefendant trials.
Id., at 482-83 (citing Richardson v. Marsh, 481 U.S. at 209-10, 107 S. Ct. at 1708-09). In the instant case, the considerations underlying the policy in favor of joint trials substantially outweigh any possible prejudice that the moving defendants may suffer from being tried with the codefendants who, as charged in the indictment, may be relatively more culpable than the moving defendants.
Second, even if the Court were to grant the severance motions and order separate trials, much of the evidence relating to acts allegedly committed by the moving defendants' codefendants would likely be admissible in the separate trials. In United States v. DiNome, supra, a case in which the defendants were convicted of, inter alia, RICO violations and conspiracy to violate the federal narcotics laws, several defendants appealed to the Second Circuit and claimed that they were prejudiced on account of "spillover." The DiNome Court noted that:
Appellants' "spillover" claim is ... misnamed. The typical spillover claim is that evidence admissible against only one defendant is prejudicial to all defendants and that individual trials should have been held to avoid that prejudice. In the present case, however, the evidence in question is relevant to the RICO charges against all defendants and most probably would have been admitted even if defendants had been accorded individual trials.
DiNome, 954 F.2d at 843-44 (citations omitted). More specifically, the Second Circuit reasoned that:
In the present case, the evidence of numerous crimes, including the routine resort to vicious and deadly force to eliminate human obstacles, was relevant to the charges against each defendant because it tended to prove the existence and nature of the RICO enterprise.... Such evidence was also relevant to prove a pattern of racketeering activity by each defendant.... The evidence of the [RICO enterprise]'s various criminal activities was, therefore, relevant to the RICO charges against each appellant ... because it tended to prove: (i) the existence and nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part of each defendant by providing the requisite relationship and continuity of illegal activities.
Id., at 843 (citations omitted).
In the instant case, Count Seven of the indictment charges all defendants with participation in a criminal enterprise in violation of the RICO statute. The moving defendants cannot be heard to complain that they will be prejudiced by the introduction at trial of evidence relating to racketeering acts allegedly committed by their codefendants; such evidence would likely be admissible in individual trials in order to prove the existence and nature of a RICO enterprise and a pattern of racketeering activity on the part of each defendant, by providing the requisite relationship and continuity of illegal activities.
*137 Similar considerations apply to evidence relating to acts allegedly committed by the moving defendants' codefendants as part of the conspiracies charged in the indictment. Count One charges the defendants, including all four moving defendants, with conspiracy to import cocaine and heroin into the United States. Count Two charges the defendants, including all four moving defendants, with conspiracy to distribute cocaine and heroin. Although the moving defendants argue that they will suffer "prejudicial spillover" from the introduction of evidence of acts allegedly committed by the other Group A defendants, such evidence would likely be admitted in individual trials, because the Government is "entitled to show the entire range of evidence of the conspiracy against each" defendant. United States v. Nersesian, 824 F.2d 1294, 1304 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987); accord United States v. Scarpa, 913 F.2d at 1015; United States v. Biaggi, 909 F.2d 662, 676 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 1102, 113 L. Ed. 2d 213 (1991); United States v. Villegas, 899 F.2d 1324, 1347 (2d Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 535, 112 L. Ed. 2d 545 (1990); United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S. Ct. 2154, 80 L. Ed. 2d 540 (1984).
Third, even though there may be evidence relating to acts allegedly committed by the moving defendants' codefendants that would not be admissible in a separate trial, the introduction of such evidence in a joint trial will not sufficiently prejudice the moving defendants so as to justify separate trials. "`[T]he fact that evidence may be admissible against one defendant but not another does not necessarily require a severance.'" United States v. Chang An-Lo, 851 F.2d at 567 (quoting United States v. Carson, 702 F.2d at 367 (citations omitted)). In the instant case, the substantial reasons supporting trial of the Group A defendants together (as opposed to separate trials for each defendant), see United States v. Gambino, 729 F.Supp. at 970-71, as well as the general policy reasons favoring joint trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted, see, United States v. Cardascia, 951 F.2d at 482-83, outweigh any possible prejudice that the moving defendants may suffer by being tried with their codefendants. See also United States v. Carpentier, 689 F.2d 21, 27 (2d Cir.1982) ("A certain amount of prejudice to a defendant is regarded as acceptable given the judicial economies that result from joinder."), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74 L. Ed. 2d 957 (1983). The moving defendants' applications for severance pursuant to Fed.R.Crim.P. 14 on the grounds of "prejudicial spillover" are therefore denied.
II. Delay Pending Supreme Court's Double Jeopardy Decision
Inzerillo has moved for "an immediate trial," asserting that the "continued delay" of his trial is "patently unreasonable" and is inconsistent with the provisions of the Speedy Trial Act. Friedman Aff., ¶¶ 1-3. Inzerillo further argues that he "has had his trial date delayed by numerous motions and appeals involving princeably [sic] codefendant Giuseppe Gambino and the government. Indeed, the most recent delay is directly attributable to the government which claims that it's waiting for a decision in an unrelated case, pending in the Supreme Court regarding an evidentiary matter." Id., ¶ 6. Similarly, Mannino's "application for a severance and for a trial forthwith is made in response to the action of the Government in seeking to delay the trial of [Mannino] until the United States Supreme Court has ruled in the unrelated case of United States v. Felix." Apicella Aff., ¶ 3.[7] The defendants' Speedy Trial *138 Act arguments are, however, without merit.
The Speedy Trial Act, 18 U.S.C. §§ 3161-74, provides in part that:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1). "Although the Speedy Trial Act requires that a defendant be tried within seventy days of the filing of an indictment or of a defendant's first appearance in court, 18 U.S.C. § 3161(c), various exclusions from the seventy-day calculation are permitted." United States v. Louis, 814 F.2d 852, 857 (2d Cir.1987). These exclusions include "[a]ny period of delay resulting from other proceedings concerning the defendant, including ... delay resulting from any interlocutory appeal [or] delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(E)-(F).
The interlocutory appeal of defendant Giuseppe Gambino's Double Jeopardy Clause claims has not yet been finally decided. Gambino initially moved this Court to dismiss Counts One, Two, and Three of the indictment against him; the Court denied Gambino's motions in its January 25, 1990 Order and Opinion, 729 F. Supp. at 958-63. On appeal, the Second Circuit held, inter alia, that the prosecution of Gambino on Counts One and Two is barred by the Double Jeopardy Clause, but the prosecution of Gambino on Count Three is not barred by the Double Jeopardy Clause. 920 [email protected]. Both Gambino and the Government petitioned the Supreme Court for a writ of certiorari with respect to those portions of the Second Circuit's decision decided adversely to them; although the Supreme Court has already denied Gambino's petition, ___ U.S. ___, 112 S. Ct. 54, 116 L. Ed. 2d 31 (1991), it has not yet ruled on the Government's petition, which has remained pending. It appears that the Supreme Court is holding its decision on the Government's petition until it issues a decision in United States v. Felix, 926 F.2d 1522 (10th Cir.), cert. granted, ___ U.S. ___, 112 S. Ct. 47, 116 L. Ed. 2d 25 (1991), a case involving Double Jeopardy Clause issues similar to those raised in the Government's petition in the instant case. Therefore, as to defendant Giuseppe Gambino, the delay pending the Supreme Court's decision on the Government's petition is unquestionably excluded from the Speedy Trial Act's time calculation as a "delay resulting from any interlocutory appeal." 18 U.S.C. § 3161(h)(1)(E).
As for the moving defendants who have advanced claims pursuant to the Speedy Trial Act, the delay pending the Supreme Court's decision on the Government's petition with respect to Gambino's Double Jeopardy Clause claims is also excluded from the Speedy Trial Act's time calculation, as "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161(h)(7). Under the Speedy Trial Act, delay attributable to one defendant is charged to all codefendants. United States v. Piteo, 726 F.2d 50, 52 (2d Cir. 1983), cert. denied, 466 U.S. 905, 104 S. Ct. 1682, 80 L. Ed. 2d 156 (1984); see also United States v. Pena, 793 F.2d 486, 489 (2d Cir.1986) (same). The purpose of 18 U.S.C. § 3161(h)(7) "is to make sure that [the Speedy Trial Act] does not alter the present rules on severance of codefendants by forcing the Government to prosecute the first defendant separately or to be subject to a speedy trial dismissal motion under" 18 U.S.C. § 3161. United States v. Pena, 793 F.2d at 489 (quoting S.Rep. No. 1021, 93d Cong., 2d Sess. 38 (1974)), U.S.Code Cong. & Admin.News 1974, p. 7186. "Congress clearly intended that, where appropriate, *139 joint trials of defendants should continue to be available as a means of promoting judicial efficiency by avoiding duplicative proof at successive trials. It thus intended that reasonable speedy trial time be excludable under [18 U.S.C. § 3161(h)(7)] when necessary to enable joint trials to go forward." Id.
"As a general rule," the delay caused by a codefendant's motions in a joint trial can "be attributed to all the defendants without analyzing whether the delay was reasonable." United States v. Cephas, 937 F.2d 816, 822 (2d Cir.1991) (citing United States v. Vasquez, 918 F.2d 329, 334-35 (2d Cir. 1990)), cert. denied, ___ U.S. ___, 112 S. Ct. 884, 116 L. Ed. 2d 788 (1992). However, "when a defendant [has] made a severance motion that [has been] denied, a court must examine the reasonableness of any delay caused by a codefendant's motion before it can be excluded as against the complaining defendant." Id. (citing United States v. Vasquez, 918 F.2d at 336-37). The moving defendants who have moved for severance and advanced Speedy Trial Act claims filed their motions on or about November 29, 1991. The Court must therefore ascertain whether the delay running from November 29, 1991 is reasonable so that the delay may be excluded under 18 U.S.C. § 3161(h)(7).
Although there is no certainty as to when Supreme Court will reach a decision as to the Government's petition, it is highly likely that the Supreme Court will issue its decision in United States v. Felix on which it scheduled oral arguments for January 14, 1992 by the end of its current term, in either June or July of this year, and it is therefore also likely that the Supreme Court will reach a decision as to the Government's petition by that time. As of now, the Court anticipates that the trial of the Group A defendants will commence during the fall of this year, and the delay between the time of the filing of the severance motions and the expected commencement of the trial is eminently reasonable.
The Court notes that it is patently incorrect for Inzerillo to argue that the trial of the Group A defendants has been delayed because of "a decision in an unrelated case, pending in the Supreme Court regarding an evidentiary matter." Friedman Aff., ¶ 6. As discussed supra, the Court, the Government, and Gambino are waiting for the Supreme Court to reach a decision as to the Government's petition for a writ of certiorari from the Second Circuit's ruling that the prosecution of Gambino on Counts One and Two of the indictment is barred by the Double Jeopardy Clause; it is not "a decision in an unrelated case" for which the parties are waiting. Furthermore, neither the Government's petition to the Supreme Court in the instant case nor the Felix case, which raises similar Double Jeopardy Clause issues, can fairly be described as cases "regarding an evidentiary matter." It is similarly inaccurate for Mannino to argue that the Government is "seeking to delay the trial of [Mannino] until the United States Supreme Court has ruled in the unrelated case of United States v. Felix," Apicella Aff., ¶ 3, or that "the Supreme Court has denied the Government's petition for certiorari on the double jeopardy issue in the instant case which this court has already ruled on!," Mannino Memorandum of Law at 3. As discussed supra, although it appears that the Supreme Court is waiting until it decides United States v. Felix before deciding on the Government's certiorari petition in the instant case, it is still an interlocutory appeal in this case the appeal that Giuseppe Gambino initially brought to the Second Circuit for which the parties in this case are waiting before the commencement of trial.
Beyond the Speedy Trial Act time exclusions attributable to "delay resulting from any pretrial motion," 18 U.S.C. § 3161(h)(1)(F), "delay resulting from any interlocutory appeal," 18 U.S.C. § 3161(h)(1)(E), and "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted," 18 U.S.C. § 3161(h)(7), there is an additional Speedy Trial Act time exclusion that applies to the instant case. The Speedy Trial Act, 18 U.S.C. § 3161(h), provides for a time exclusion for:
*140 (8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:
. . . . . .
(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.
These provisions "do not permit unlimited delays, and the trial court has the responsibility to ensure that the length of an excludable continuance is reasonably related to the needs of the case." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1197 (2d Cir.) (citing United States v. LoFranco, 818 F.2d 276, 277 (2d Cir.1987)), cert. denied, 493 U.S. 933, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989). In the instant case, however, given the large number of defendants and counts charged in the indictment; the substantial proof expected to be offered at trial; the extensive pretrial motion practice in which various defendants have engaged; the effects of the Supreme Court's 1990 Grady v. Corbin decision on Double Jeopardy Clause jurisprudence in general and in this case in particular; and the Supreme Court's pending decision on the Government's certiorari petition from the Second Circuit's decision on Giuseppe Gambino's Double Jeopardy claims, the "ends of justice" will best be served by waiting until the Supreme Court finally disposes of the Government's certiorari petition before commencing the joint trial of the Group A defendants. Cf. United States v. DiTommaso, 817 F.2d 201, 210 (2d Cir.1987) ("multidefendant, international drug smuggling and money-laundering case was sufficiently complex to warrant excludable time" under 18 U.S.C. § 3161(h)(8)(B)(ii)). In the instant case, the alternative to granting a continuance would be two or more lengthy, complex trials of various Group A defendants, with a greater possibility of inconsistent verdicts and all of the unwelcome burdens on the judicial system of multiple separate trials, as opposed to one (albeit lengthy and complex) proceeding in which all of the charges contained in the indictment can be adjudicated. The moving defendants have therefore failed to establish that their rights under the Speedy Trial Act entitle them to an immediate trial.
Lastly, the Court notes that neither Inzerillo nor Mannino has alleged entitlement to an immediate trial under the Speedy Trial Clause of the Sixth Amendment, but even if they had made such a claim, that claim would fail. The Sixth Amendment provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." "The principal purpose of the speedy trial clause is to protect the accused from unnecessary delay on the part of the government in bringing the accused to trial." United States v. Diacolios, 837 F.2d 79, 82 (2d Cir.1988) (citations omitted). There are four factors that "must be considered in determining whether a defendant's sixth amendment right to a speedy trial has been violated: (i) the length of the delay, (ii) the reason for the delay, (iii) whether and how the defendant has asserted his speedy trial rights, (iv) resultant prejudice, if any." Garcia Montalvo v. United States, 862 *141 F.2d 425, 426 (2d Cir.1988) (per curiam) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191-92, 33 L. Ed. 2d 101 (1972)). "No one of these factors, however, is `either a necessary or sufficient condition to the finding of a deprivation of a right,' and courts still must engage in a sensitive balancing process whereby the conduct of both the prosecution and the defendant are weighed." Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir.1988) (emphasis in original) (quoting Barker v. Wingo, 407 U.S. at 530, 92 S. Ct. at 2192), cert. denied, 488 U.S. 1032, 109 S. Ct. 842, 102 L. Ed. 2d 974 (1989).
An analysis of the Barker v. Wingo factors indicates that the delay between indictment and the expected date of trial of the Group A defendants easily passes muster under the Sixth Amendment. First, the time between the filing of the original indictment in this case, in which both Inzerillo and Mannino were charged December 14, 1988 and the expected date of trial, although lengthy, is not itself beyond the bounds of propriety under the Sixth Amendment. Cf. United States v. Vasquez, 918 F.2d at 338 ("delay of 24 months is `considerably shorter than that of other cases in which no Sixth Amendment violation has been found'") (quoting United States v. McGrath, 622 F.2d 36, 41 (2d Cir.1980)).
Second, the reasons for the delay include the complexity of this multidefendant case, in which a conspiracy lasting approximately 15 years is charged; the extensive pretrial motion practice before this Court, the Second Circuit, and the Supreme Court, in which many of the defendants (including the moving defendants) have engaged; and the substantial uncertainty with respect to the prosecution of Counts One and Two against Giuseppe Gambino caused by the Supreme Court's 1990 Grady v. Corbin decision. These reasons all justify the delays encountered in this trial, and the Court is satisfied that the Government has been absolutely diligent in its prosecution of the case.
Third, the moving defendants did not advance their Speedy Trial claims until November 29, 1991 nearly three years after the original indictment was filed, which would "hardly render[ ] plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them." United States v. Vasquez, 918 [email protected].
Fourth, the prejudice resulting to the moving defendants is slight. Inzerillo has remained free on bail while the charges contained in the indictment are pending. Although Mannino is currently incarcerated, and "incarceration in the pretrial period [is] a hardship and must be included in the assessment of `prejudice,'" id., Mannino was only comparatively recently remanded into custody after the Court revoked his release conditions and his incarceration does not "approach the prejudice suffered by defendants in cases where [the Second Circuit has] found a speedy-trial violation." Id. (quoting Flowers v. Warden, 853 F.2d 131, 133 (2d Cir.), cert. denied, 488 U.S. 995, 109 S. Ct. 563, 102 L. Ed. 2d 588 (1988)). Therefore, even if Inzerillo and Mannino had advanced a Speedy Trial claim under the Sixth Amendment, such a claim would fail.
Conclusion
For the reasons stated above, the moving defendants' motions for severance of their trials pursuant to Fed.R.Crim.P. 14 and for immediate trial are denied in their entirety.
SO ORDERED.
NOTES
[1] The Grand Jury filed the sixth superseding indictment on December 14, 1989.
[2] These defendants included the four defendants who have brought the instant severance motions LaRosa, Adamita, Inzerillo, and Mannino as well as defendants Salvatore LoBuglio, Giuseppe D'Amico, Francesco Cipriano, Salvatore Candela, and Carmelo Guarnera.
[3] After the Court issued its Order and Opinion, the Government moved for reconsideration of the placement of LaRosa in Group B. See Letter of Andrew C. McCarthy, Esq., Assistant United States Attorney, dated February 6, 1990. The Court granted the Government's application on February 20, 1990, and moved LaRosa to Group A.
[4] Defendant Giovanni Gambino is also now a part of Group A; he was added as a defendant in this case in the seventh superseding indictment, filed on January 3, 1990.
[5] Although Mannino has not explicitly made a claim of "prejudicial spillover," he has indicated that he "adopts by reference the arguments of his co-defendants insofar as they are applicable to him." Mannino Memorandum of Law at 6. The Court will therefore consider any possible claims of "prejudicial spillover" that could apply to Mannino as well as to the other moving defendants.
[6] In support of his claim of "prejudicial taint," Adamita cites United States v. Salerno, 937 F.2d 797 (2d Cir.1991), cert. granted, ___ U.S. ___, 112 S. Ct. 931, 117 L. Ed. 2d 103 (1992). Adamita's reliance on Salerno is, however, misplaced. In Salerno, "an enormous [case] involving bidrigging in the New York City concrete industry, with numerous small, tangentially-related counts attached like barnacles," id. at 799, the Second Circuit held that the District Court committed reversible error when it excluded, pursuant to Fed.R.Evid. 804(b)(1), exculpatory grand jury testimony of two witnesses who at trial invoked their Fifth Amendment privilege against self-incrimination. Id. at 808. The Second Circuit did not merely reverse those convictions that were affected by the erroneous exclusion of evidence; rather, it recognized that "[b]ecause such a huge portion of this case must be reversed on this single evidentiary error, and because the spillover taint undermines the convictions on the lesser counts as well," it reversed the convictions of all appealing defendants. Id. The Second Circuit reasoned that the "likelihood of prejudicial taint, from the numerous erroneous verdicts to the remaining few, is simply too great for us to ignore." id. at 809. The problem identified in Salerno "spillover taint running from the erroneously-achieved convictions to the remaining few," id. at 799 bears no relevance to the instant case. The Salerno Court reversed the convictions not because there were differing degrees of participation among the defendants or because the introduction of evidence as to some defendants prejudiced others, but rather because the convictions on the charges that comprised the major part of the case were improperly obtained.
[7] Although LaRosa does not explicitly mention the Speedy Trial Act, he does assert that "[t]his court has been faced with continuous delay in scheduling a trial for the [Group A] defendants while double jeopardy issues involving three of those defendants have wound their way through the appellate process," LaRosa Memorandum of Law at 2, and he states that he "seeks to join in the motions filed contemporaneously herewith and in the future by other defendants, insofar as they are applicable" to him. Golub Aff. at 2. The Court will therefore consider LaRosa to have joined in the motions of the other moving defendants who are seeking an immediate trial.
|
Citation Nr: 9935156
Decision Date: 12/17/99 Archive Date: 02/08/00
Citation Nr: 9935156
Decision Date: 12/17/99 Archive Date: 12/23/99
DOCKET NO. 96-30 108 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to an increased disability rating for
service-connected residuals of a fracture of the left distal
femur with degenerative joint disease and post-operative
meniscectomy and partial synovectomy, currently evaluated as
30 percent disabling.
2. Whether a claim of entitlement to service connection for
a left hip disorder, as secondary to service-connected
residuals of a fracture of the left distal femur with
degenerative joint disease and post-operative meniscectomy
and partial synovectomy, is well grounded.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
DECISION TO VACATE
The veteran had active military service from September 1954
to February 1958. These issues arose from a March 1996
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) in New Orleans, Louisiana, that denied
the above-noted claims.
On December 8, 1997, the veteran testified at a personal
hearing before a Member of the Board. He provided the Board
Member with a private clinical record, dated December 1,
1997, and waived RO consideration. The Board issued a
decision on May 20, 1998, which denied the above-noted claims
without consideration of the newly submitted evidence.
The Board may vacate an appellate decision when a veteran is
denied due process of law. 38 C.F.R. § 20.904(a) (1999).
Because the evidence provided by the veteran at his hearing
in December 1997 was not considered in the May 20, 1998,
Board decision, the Board concludes the veteran was denied
due process of law.
In view of the foregoing, and to accord the veteran due
process, the May 20, 1998, Board decision which adjudicated
the issues of entitlement to a disability rating in excess of
30 percent for service-connected residuals of a fracture of
the left distal femur with degenerative joint disease and
post-operative meniscectomy and partial synovectomy and
whether a claim of entitlement to service connection for a
left hip disorder, as secondary to service-connected
residuals of a fracture of the left distal femur with
degenerative joint disease and post-operative meniscectomy
and partial synovectomy is well grounded is VACATED.
ORDER
The May 20, 1998, Board decision which adjudicated the issues
of entitlement to a disability rating in excess of 30 percent
for service-connected residuals of a fracture of the left
distal femur with degenerative joint disease and post-
operative meniscectomy and partial synovectomy and whether a
claim of entitlement to service connection for a left hip
disorder, as secondary to service-connected residuals of a
fracture of the left distal femur with degenerative joint
disease and post-operative meniscectomy and partial
synovectomy is well grounded is hereby VACATED.
P.M. DILORENZO
Acting Member, Board of Veterans' Appeals
Citation Nr: 9815524
Decision Date: 05/20/98
DOCKET NO. 96-30 108 DATE
On appeal from the Department of Veterans Affairs Regional Office in New Orleans,
Louisiana
THE ISSUES
1. Entitlement to an increased evaluation for a left knee disability, currently evaluated as 30
percent disabling.
2. Entitlement to service connection for a left hip replacement, as secondary to a service
connected left knee disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael F. Bradican, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1954 to February 1958.
This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating
decision of March 1996, from the New Orleans, Louisiana, Regional Office (RO) of the
Department of Veterans Affairs (VA).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his left knee disability has worsened and warrants an evaluation in
excess of the currently assigned 30 percent. He further contends that his hip replacement was
necessitated by deterioration caused by his service connected left knee disability. He
specifically contends that his left hip was arthritic and fractured much more easily as a result
of this. He claims that but for this weakening he would not have fractured his hip, and would
not have required left hip replacement.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991 & Supp.
1998), has reviewed and considered all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the preponderance of the evidence is
against his claim for an increased rating for a left knee disability. His claim for secondary
service connection for left hip replacement is not well grounded and is therefore denied.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the veteran's claim has been
developed.
2. The veteran's left knee disability is manifested by limitation of motion, pain with weather
changes and on impact, difficulty standing or sitting for long periods of time, and complaints
of instability with no objective findings.
3. No medical evidence or opinion has been presented which attributes or etiologically
connects the veteran's subcapital fracture of the left femur and subsequent left hip
replacement, to his service connected left knee disability.
CONCLUSIONS OF LAW
1. The criteria for an increased rating for a left knee disability are not met. 38 U.S.C.A. 1155,
5107 (West 1991); 38 C.F.R. 3.321, 4.71a Diagnostic Codes 5256, 5257, 5261 (1997).
2. The veteran has not submitted evidence of a well-grounded claim for entitlement to service
connection for a left hip replacement as secondary to a service connected left knee disability.
38 U.S.C.A. 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
1. Entitlement to an increased evaluation for a left knee disability currently evaluated as 30
percent disabling.
Generally, claims for increased evaluations are considered to be well grounded. A claim that a
condition has become more severe is well grounded where the condition was previously
service connected and rated, and the claimant subsequently asserts that a higher rating is
justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2
Vet.App. 629, 632 (1992).
The Board is satisfied that all relevant facts pertaining to the left knee disability have been
properly developed. There is no indication that there are additional pertinent records which
have not been obtained. No further assistance to the appellant is required to comply with the
duty to assist mandated by 38 U.S.C.A. 5107.
The appellant claims that his left knee disability has worsened and warrants an increased
disability rating. Disability evaluations are determined by the application of a schedule of
ratings which is based on average impairment of earning capacity. Separate diagnostic codes
identify the various disabilities. 38 U.S.C.A. 1155; 38 C.F.R. Part 4.
The percentage ratings in the SCHEDULE FOR RATING DISABILITIES represent as far as
can practicably be determined the average impairment in earning capacity resulting from such
disabilities and their residual conditions in civil occupations. 38 C.F.R. 4.1 (1997). Moreover,
each disability must be considered from the point of view of the veteran working or seeking
work. 38 C.F.R. 4.2 (1997).
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. 38 C.F.R. 4.7 (1997).
Service connection for a left knee disability was granted via a rating decision of June 1992. A
30 percent evaluation was assigned. It was noted that the veteran underwent open reduction
and internal fixation following a fracture of his left distal femur. Following service he
developed left knee trouble and twice underwent arthroscopic surgery.
In February 1992, the veteran's private physician reported that he will eventually require total
left knee replacement. Conservative measures were expected to be used for the present
because of the veteran's young age.
The report of a VA examination, conducted in September 1995, shows the veteran
complaining of occasional pain in the left distal femoral region. He reported chronic diffuse
left anterior knee pain, aggravated with weather changes, climbing, excessive bending of the
left knee and sitting, standing or ambulation in excess of one hour. He reported stiffness of
the left knee with frequent crepitus, but no swelling, locking or buckling.
Objective findings showed the veteran ambulatory with a mild limp and no cane. The
diagnosis given was status post fracture of the left distal femur with open reduction and
internal fixation. Status post arthroscopic medial meniscectomy and partial synovectomy of
the left knee and post traumatic degenerative joint disease of the left knee with residual
disability.
The Board notes the veteran's testimony at his personal hearing, conducted in October 1996.
The veteran stated that his left knee had begun giving way on him. He reported pain with
weather changes and pain if he bumps his knee. He stated that he could not move his knee
more than 90 degrees and that it makes loud noises when moved. He reported stiffness when
he gets up to walk. He reported that he has been told that there is a lot of lateral movement in
his left knee.
The report of a VA examination, conducted in November 1996, shows the veteran
complaining of pain in his left knee and the left knee giving way sometimes. He did not
report falling due to knee weakness or the knee giving way. He reported that he was unable to
participate in active outdoor activities due to left knee pain.
Objective evaluation showed no swelling, deformity or other impairment of the knee,
including subluxation, lateral instability, non-union with loose motion, or malunion. The
diagnoses included degenerative joint disease of the left knee and old fracture of the left distal
femur.
The Board notes the testimony of the veteran at his personal travel board hearing, conducted
in December 1997. He stated that he had not had treatment for his knee disability for 3 years
and that he took over the counter medication for pain. He reported that his left knee gives
way without warning. He stated that he sometimes wears a soft brace for sports activities and
that he cannot bend his knee past 90 degrees. He stated that his left knee is tender and gives
him pain if he bumps it. He reported that he could stand for about 1-2 hours.
The veteran's left knee disability is currently evaluated under 38 C.F.R. 4.71a Diagnostic
Code 5257. Diagnostic Code 5257 provides for a 10 percent rating for impairment of the knee
with subluxation or lateral instability which is considered to be slight. A 20 percent rating is
assigned if there is moderate instability or subluxation. A 30 percent rating is assigned if there
is severe instability or subluxation. The veteran's left knee disability is currently evaluated as
30 percent disabling, the highest evaluation available under Diagnostic Code 5257.
In order to be assigned a schedular rating in excess of 30 percent there would have to a
finding that the veteran's left knee disability resulted in ankylosis of the knee, under
Diagnostic Code 5256, or that the veteran's leg had extension limited to 30 degrees, under
Diagnostic Code 5261. There is no medical evidence of record which indicates that the
veteran's left knee is ankylosed. Likewise there is no evidence which shows that his left leg
extension is limited to 30 degrees. The Board finds that there is no provision in the rating
schedule upon which an increased rating for the left knee disability could be based.
The record does not show that the RO expressly considered referral of this case to the Chief
Benefits Director or the Director, Compensation and Pension Service, for the assignment of an
extraschedular rating under 38 C.F.R. 3.321(b)(1) (1997).
The United States Court of Veterans Appeals (Court) has recently held that the Board is
precluded by regulation from assigning an extraschedular rating under 38 C.F.R. 3.321(b)(1)
in the first instance; however, the Board is not precluded from considering whether referral to
the appropriate first-line official is required. The Board is still obligated to seek out all issues
that are reasonably raised from a liberal reading of documents or testimony of record and to
identify all potential theories of entitlement to a benefit under the law and regulations. Floyd
v. Brown, 9 Vet.App. 88 (1996).
The Court has also held that the Board must address referral under 38 C.F.R. 3.321(b)(1) only
when circumstances are presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227
(1997). Having reviewed the record with these holdings in mind, the Board finds no basis for
action on the question of the assignment of an extraschedular rating.
2. Entitlement to service connection for a left hip replacement as secondary to a service
connected left knee disability.
The threshold question that must be resolved with regard to each claim is whether the
appellant has presented evidence that each claim is well grounded; that is that the claim is
plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no
duty to assist him or her in any further development of that claim, since such further
development would be futile. 38 U.S.C.A. 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.
App. 78 (1990).
An appellant has, by statute, the duty to submit evidence that a claim is well grounded. The
evidence must "justify a belief by a fair and impartial individual" that the claim is plausible.
38 U.S.C.A. 5107(a) (West 1991). In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the United
States Court of Veterans Appeals (Court) held that the appellant in that case had not presented
a well- grounded claim as a matter of law. The Court pointed out that "unlike civil actions,
the Department of Veterans Affairs (VA) benefits system requires more than an allegation; the
claimant must submit supporting evidence." Tirpak, at 611.
The evidentiary assertions by the appellant must be accepted as true for the purposes of
determining whether a claim is well grounded, except where the evidentiary assertion is
inherently incredible or beyond the competence of the person making the assertion. See King
v. Brown, 5 Vet.App. 19 (1993).
In this case, evidentiary assertions as to the claim for benefits pursuant to 38 U.S.C.A. 1151
are beyond the competence of the appellant. Espiritu V. Derwinski, 2 Vet.App. 492 (1992).
The appellant cannot meet his initial burden of proof for purposes of determining that his
claim is well grounded by relying on his own opinion as to medical matters. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993).
The veteran contends that his left hip began to deteriorate as a result of his left knee injury.
He believes that this degenerative joint disease caused his bones to become more susceptible
to breaking. He believes that were it not for this degeneration he would not have broken his
hip in a fall from a bicycle in April 1994.
The report of a VA examination, conducted in April 1992, shows X- ray evidence, and a
diagnosis of degenerative joint disease of the left hip. A rating decision, dated in December
1996, granted service connection for degenerative joint disease and assigned a 10 percent
rating.
Private medical records, dated in April 1994, show the veteran undergoing an open reduction
and internal fixation of the left hip. Records from August 1994 show the veteran having three
screws removed from his hip. Records from September 1994 show the veteran doing well
with no sign of aseptic necrosis.
A VA X-ray examination, conducted in March 1995, showed mild degenerative changes of
the hip joint. The diagnosis was possibility of aseptic necrosis or avascular necrosis. Private
medical records from April 1995 show X-ray evidence of flattening of the head of the left
femur with narrowing of the joint space and early deformity. Private medical records, dated in
April 1995, show the veteran undergoing left total hip arthroplasty.
The report of a VA examination, conducted in November 1996, shows the veteran reporting
that he believed his fractured hip was attributable to weakening of the bones due to arthritis.
The examiner specifically disagreed with the veteran's theory. The diagnosis given was
fracture of the left hip complicated with avascular necrosis of the femoral head and left hip
replacement as a result of this.
The Board notes the veteran's testimony at his two personal hearings, conducted in October
1996 and December 1997. He reiterated his earlier contentions that his service connected left
knee injury caused degenerative joint disease in his left hip. He believed that this arthritis of
the left hip caused his bones to become more susceptible to breaking. He contended that this
is the reason he fractured his left femur in a bicycle accident and that he was entitled to
secondary service connection for his hip replacement.
He also noted that he was seen by a chiropractor in the mid 1980's. He stated that the
chiropractor took X-rays of his left hip and pointed out degeneration of the joint. He
contended that this chiropractor stated that the degenerative joint disease of the left hip was
attributable to the left knee disability. He stated that he did not remember the chiropractor's
name. He stated that he would attempt to obtain these records, but evidently was not able to
obtain them.
The Board concludes that he has failed in his duty to submit "evidence" which would "justify
a belief by a fair and impartial individual," that his claim is plausible. See Tirpak, 2 Vet.App.
at 611. The Court has held that lay assertions of medical causation cannot constitute evidence
to render a claim well grounded. See Grottveit t v. Brown, 5 Vet.App. 91, 93 (1993). See also
Barfield v. Brown, 5 Vet.App. 8, 9 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494
(1992).
The RO has conceded that the veteran's left knee disability caused his left hip degenerative
joint disease. Service connection for that disability, degenerative joint disease of the left hip,
has been granted. The veteran's contention that this degenerative joint disease caused his bone
to break more easily is not supported by any medical evidence or opinion. The physician who
conducted the most recent VA examination specifically disagreed with this theory. Since there
is no competent, credible evidence of medical causality or contribution, the claim is not well
grounded.
ORDER
Entitlement to an increased evaluation, in excess of 30 percent, for a left knee disorder, is
denied. Entitlement to service connection for a left hip replacement, as secondary to a service
connected left knee disability, is denied.
M. W. GREENSTREET Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 & Supp. 1998), a
decision of the Board of Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed with the agency of
original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of this decision which you have received
is your notice of the action taken on your appeal by the Board of Veterans' Appeals.
|
I concur in all that is said in this decision, but I think in the case of Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649, cited with approval herein, the second paragraph of the syllabus is not accurate when it says there is no contributory negligence where the actions *Page 554
of plaintiff "in no way contributed to, were a substantial factor in, or a material element to the happening of a collision with defendant's car which resulted in his injuries." It seems to me cases can be readily suggested where a plaintiff's negligence had no active part in producing an accident or collision between two vehicles but where such negligence nevertheless proximately contributed to cause his injury. |
584 F. Supp. 1437 (1984)
In the Matter of the Extradition of Michele SINDONA, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci.
No. 82-2869M.
United States District Court, E.D. New York.
May 3, 1984.
*1438 *1439 Asst. U.S. Atty. Reena Raggi, E.D.N.Y., Brooklyn, N.Y., for the U.S.
Robert J. Costello, Phelan & Costello, New York City, for Sindona.
Paul A. Goldberger, Goldberger, Feldman & Dubin, New York City, for Venetucci.
MEMORANDUM AND ORDER
GLASSER, District Judge:
The Republic of Italy has applied for the extradition from the United States to Italy of Michele Sindona, William J. Arico, a/k/a "Robert McGovern" and Robert Venetucci. William J. Arico died on February 19, 1984, while attempting to escape from the Metropolitan Correction Center where he was detained while this proceeding was pending and an order of dismissal as to him was entered on February 21, 1984.
Michele Sindona has moved pursuant to 18 U.S.C. § 3184 for an order dismissing the complaint filed as to him on December 15, 1983 for the reason that the Court did not lawfully obtain jurisdiction over him.
Robert Venetucci has moved pursuant to 28 U.S.C. § 144 for an order of recusal and for an order dismissing the complaint against him for the reason that the requirement of probable cause has not been satisfied.
I. Venetucci's Motion for Recusal
The basis of Venetucci's motion that I recuse myself is that in an order dated October 11, 1983, I ruled on an extradition request made with regard to Charles Arico *1440 and Rocco Messina by the Republic of Italy, and that I could not, therefore, render a fair and impartial judgment in this proceeding concerning him. It is also claimed that in the prior proceeding I expressed my belief in an "existing conspiracy" and in a hearing in this proceeding on January 18, 1984, I called to the attention of Venetucci's counsel "numerous paragraphs from the complaint which would support the Court's original finding of a conspiracy" (Par. 9 of Affidavit of Venetucci's counsel, Paul A. Goldberger, submitted in support of the motion). Finally, in paragraph numbered 10 of the foregoing affidavit, counsel states that "Since this Court has already made up its mind about the existence of a conspiracy in which Mr. Venetucci is also alleged to have been a member, it is impossible for the Court to make the requisite independent fact-finding determination of probable cause."
The statute upon which this motion is predicated, 28 U.S.C. § 144, provides as follows:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists .... (emphasis added)
The "bias or prejudice" to which the affidavit must be addressed is clearly the personal bias or prejudice referred to in the first paragraph of § 144.
Mindful of footnote 13 on page 582 of United States v. Grinnell Corp., 384 U.S. 563, 86 S. Ct. 1698, 1709, 16 L. Ed. 2d 778 (1966), the question that arises is whether I have the jurisdiction to entertain and decide this motion. That footnote reads:
13. Judge Wyzanski referred the question of his disqualification to Chief Judge Woodbury of the Court of Appeals for the First Circuit who after hearing oral argument held that no case of bias and prejudice had been made out under § 144.
I have been unable to find a legal requirement that such a referral be made. On the contrary, the overwhelming view expressed in the cases which have addressed the question is that not only do I have the jurisdiction, I have the duty to pass upon the sufficiency of the affidavit as a matter of law. See, e.g., Garfield v. Palmieri, 193 F. Supp. 582 (E.D.N.Y.1960), aff'd 290 F.2d 821 (2d Cir.), cert. denied, 368 U.S. 827, 82 S. Ct. 46, 7 L. Ed. 2d 30 (1961); United States v. Bell, 351 F.2d 868, 878 (6th Cir.), cert. denied, 383 U.S. 947, 86 S. Ct. 1200, 16 L. Ed. 2d 210 (1966).
I now turn to the sufficiency of the affidavit as a matter of law. The portions of that affidavit which are relevant to the question of sufficiency have already been referred to. I am moved to observe, preliminarily, that in my prior order of October 11, 1983, I did find that there was "probable cause to believe that Messina and Arico were members of an existing conspiracy and that the statements were made during the course of and in furtherance of that conspiracy ...." That finding has since been affirmed by the Court of Appeals for the Second Circuit on February 7, 1984 (Docket Nos. 83-2336, 83-2338). The name of Robert Venetucci was not known to me until November 1, 1983, when I signed a warrant for his arrest. To suggest, therefore, that when I issued my order of October 11, 1983 I made a determination regarding Robert Venetucci is specious.
As to assertions in the affidavit that the statements I made during the course of the proceeding on January 18, 1984 suggest that I had already decided that Venetucci was a member of an existing conspiracy, those assertions are not supported by the transcript nor are they true in fact.
The claim that my recusal is necessary, or even appropriate, because I have decided the question of probable cause in a related extradition proceeding similarly lacks merit. The controlling principle as *1441 appears in United States v. Grinnell Corp., supra, 384 U.S. at 583, 86 S. Ct. at 1710 is as follows:
The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31, 41 S. Ct. 230, 232, 65 L. Ed. 481.
See also In re International Business Machines Corp., 618 F.2d 923 (2d Cir.1980); King v. United States, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 99 S. Ct. 155, 58 L. Ed. 2d 154 (1978) and the cases in virtually every circuit collected in Shank v. American Motors Corp., 575 F. Supp. 125, 129 (E.D.Pa.1983), Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S. Ct. 2035, 72 L. Ed. 2d 483 (1982) precisely addresses Venetucci's assertion here, in observing at p. 1020 that: "[A] motion for disqualification ordinarily may not be predicated on a judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." I would only add that there has been no demonstration that I have a tendency to rule any particular way or that I have a particular judicial leaning or attitude.
There being no assertion of personal bias or prejudice either against Mr. Venetucci or in favor of any adverse party or of any bias or prejudice stemming from an extrajudicial source, the affidavit in support of the motion for an order of recusal is insufficient as a matter of law and the motion is denied.
II. Sindona's Motion to Dismiss for Want of Jurisdiction
This motion is predicated on a reading of 18 U.S.C. § 3184 which provides in pertinent part as follows:
Whenever there is a treaty ... for extradition between the United States and any foreign government, any ... judge of the United States, ... may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty ..., issue his warrant for the apprehension of the person so charged, that he may be brought before such ... judge, ... to the end that the evidence of criminality may be heard and considered .... (emphasis added)
Mr. Sindona contends that he is and has been a federal prisoner, committed to the custody of the Attorney General of the United States for a term of 25 years by Judge Thomas Griesa of the United States District Court for the Southern District of New York following his (Sindona's) conviction in connection with the collapse of the Franklin National Bank. Since August 1982, he has been in the Federal Correction Institution at Otisville, New York. Prior to being sentenced in that criminal proceeding, Mr. Sindona lived and worked in Manhattan. A previous extradition proceeding was held in the United States District Court for the Southern District of New York in which the Republic of Italy's request for his extradition was granted and later affirmed. Sindona v. Grant, 619 F.2d 167 (2d Cir.1980).
On December 7, 1983, Stephen S. Trott, Assistant Attorney General in the Criminal Division of the U.S. Department of Justice, prepared a memorandum to Norman A. Carlson, Director of the Bureau of Prisons, advising him that he will be contacted by Reena Raggi, an Assistant United States Attorney for the Eastern District of New York, to arrange for the transfer of Mr. Sindona to Brooklyn for his initial appearance and for all other appearances as they may be needed incident to these extradition proceedings.[1] Mr. Sindona contends that *1442 he should have been brought to the Eastern District of New York by a writ of habeas corpus ad prosequendum; that such a writ was a procedural pre-requisite and that to have been brought to this Court by any other means was unlawful and should have, ex proprio vigore, divested the court of jurisdiction. Sindona relies upon the following cases to support his position: Morgan v. United States, 380 F.2d 686, 699 (9th Cir.1967), cert. denied, 390 U.S. 962, 88 S. Ct. 1064, 19 L. Ed. 2d 1160 (1968); Rose v. United States, 365 F. Supp. 841, 843 (N.D.Ill.1973); Carbo v. United States, 364 U.S. 611, 81 S. Ct. 338, 5 L. Ed. 2d 326 (1961); Lawrence v. Willingham, 373 F.2d 731 (10th Cir.1967); United States v. Schurman, 84 F. Supp. 411 (S.D. N.Y.1949); United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), and Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973).
It is not disputed that 18 U.S.C. § 3184 was literally complied with. The extradition complaint was made under oath by Chief Deputy Marshal Michael Pizzi and filed with the Court on December 15, 1983 in the presence of Michele Sindona, who was in the court at the very moment that the oath was administered to the Marshal. The complaint, therefore, was made under oath, charging Sindona, who was then found within the jurisdiction of this court, with the commission of crimes in the Republic of Italy that are covered by a treaty. It is the procedure by which Sindona was "found" within the jurisdiction that is challenged. For the reasons which follow, Sindona's motion to dismiss the complaint on jurisdictional grounds is denied.
The contention that he could have lawfully been brought from the Federal Correctional Institution in Otisville, New York to this Court only by a writ of habeas corpus ad prosequendum is erroneous. Carbo v. United States, supra, traces the course followed by Congress in granting judicial power to issue writs of habeas corpus in general and the writ of habeas corpus ad prosequendum in particular. That course ended in what is presently 28 U.S.C. § 2241, subdivision (c)(5) thereof being a codification of the common law writ ad prosequendum. That writ was issued when it was "necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed.... Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined," Carbo v. U.S., supra, 364 U.S. at p. 615, 81 S.Ct. at p. 340. And at page 621, 81 S. Ct. at 344, the court continued, "That comity is necessary between sovereignties in the administration of criminal justice in our federal-state system is given full recognition by affording through use of the writ both respect and courtesy to the laws of the respective jurisdictions." As Carbo makes plain, the traditional use of the writ ad prosequendum has been to bring a defendant in the custody of another sovereign to trial before the court issuing the writ. Lawrence v. Willingham, supra, 373 F.2d at 732; United States v. Hooker, 607 F.2d 286, 288 (9th Cir.1979), cert. denied, 445 U.S. 905, 100 S. Ct. 1083, 63 L. Ed. 2d 321 (1980); In re Liberatore, 574 F.2d 78 (2d Cir.1978). That traditional use of the writ is reflected in each case relied upon by Sindona: Morgan v. U.S., supra (removal from state prison to federal court to stand trial); Rose v. U.S., supra (removal from federal correctional *1443 institution to state court); Carbo v. U.S., supra (removal from state prison to federal court); Lawrence v. Willingham, supra (removal from federal correctional institution to state court); United States v. Schurman, supra (removal from state prison to federal court). See also Interstate Agreement on Detainers Act, 18 U.S. C.App. II. The transfer of Sindona from one federal facility to another federal facility or to a federal court did not require the issuance of a writ ad prosequendum. Nor would its use in such a case have been traditional.
It might be useful to note that the writ ad prosequendum is not the exclusive tool to effectuate federal-state extradition. 18 U.S.C. § 4085 provides:
(a) Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or in the District of Columbia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment of conviction, cause such person, prior to his release, to be transferred to a penal or correctional institution within such State or District.
If more than one such request is presented in respect to any prisoner, the Attorney General shall determine which request should receive preference.
The expense of personnel and transportation incurred shall be chargeable to the appropriation for the "Support of United States prisoners."
(b) This section shall not limit the authority of the Attorney General to transfer prisoners pursuant to other provisions of law.
That statute manifestly echoes Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254, 42 S. Ct. 309, 66 L. Ed. 607 (1922) at pp. 261-262, 42 S.Ct. at p. 311: "There is no express authority authorizing the transfer of a federal prisoner to a state court.... Yet we have no doubt that it exists and is to be exercised with the consent of the Attorney General. In that officer, the power and discretion to practice the comity in such matters between the federal and state courts is vested." See also Atkinson v. Hanberry, 589 F.2d 917 (5th Cir.1979).
Having established that the writ ad prosequendum was neither necessary nor appropriate, was Sindona lawfully transferred from the federal correctional institution at Otisville, New York to the Metropolitan Correctional Center (MCC) in New York City (the federal holding facility for the Eastern and Southern Districts) and periodically from the MCC to the Marshal's holding facility in the federal courthouse in Brooklyn pursuant to the direction of the Attorney General or his designated representative embodied in the Memorandum dated December 7, 1983 set out in full in the footnote?
The prisons of the United States and the custody of prisoners under sentence are generally under the supervision and regulation of the Attorney General. 18 U.S.C. §§ 4041, 4042. "The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another." 18 U.S.C. § 4082(b) (emphasis added). That Sindona was lawfully transferred from one place of confinement to another at the direction of the Attorney General pursuant to § 4082(b) is plain.
Although not explicitly raised during oral argument or in his memoranda of law, I will assume that by his reference to United States v. Toscanino, supra, 500 F.2d 267, Sindona is asserting by implication either (1) that he had a due process right to a hearing prior to transfer, or (2) this Court should refuse to exercise jurisdiction on the authority of Toscanino.
As to the first, the due process clause in and of itself does not protect a duly convicted prisoner against transfer from one *1444 institution to another within either the state or the federal prison system. In Atkinson v. Hanberry, supra, the court said: "Whatever expectations the prisoner may have in remaining at a particular prison ... it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or no [email protected]." 589 F.2d at 920 (quoting Meachum v. Fano, 427 U.S. 215, 228, 96 S. Ct. 2532, 2540, 49 L. Ed. 2d 451 (1976). See also Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976).
As to his reliance on Toscanino, it is misplaced. In that case, the defendant was kidnapped from Uruguay and transported to Brazil where he was tortured, drugged and brought to the United States. The court was moved to state that "... we think a federal court's criminal process is abused or degraded where it is executed against a defendant who has been brought into the territory of the United States by the methods alleged here.... We could not tolerate such an abuse without debasing `the process of justice.'" 500 F.2d [email protected]. There isn't the slightest resemblance between this case and Toscanino. Sindona's presence in this Court was not secured by force or fraud nor could any claim be made that it was.
Finally, Sindona seeks to sustain his jurisdiction argument by reliance upon Shapiro v. Ferrandina, supra. In that case, Shapiro's extradition was requested of the United States by the State of Israel. A warrant for his arrest was signed by Judge Motley of the District Court for the Southern District of New York, pursuant to which Shapiro was arrested at his home in Brooklyn and was brought before Judge Pollack of the Southern District. Shapiro contended that the complaint and warrant for his arrest issued by Judge Motley failed to explicitly state that he was "found" within the Southern District of New York. The Court dismissed that contention as meritless since § 3184 calls only for a complaint under oath stating that the person sought has committed within the jurisdiction of the requesting country a crime covered by a treaty. His attack upon the validity of his arrest based upon a complaint and a warrant he insisted were defective was rejected. In "seeking a warrant in the Southern District ..." said the court, "the government was acting on a good faith belief that Shapiro could be `found' there." Shapiro v. Ferrandina, supra, 478 F.2d at 899, 900. Shapiro also contended that even if his arrest in Brooklyn was valid, he should then have been taken before a judge in the Eastern District for the extradition hearing. For that he relied upon Pettit v. Walshe, 194 U.S. 205, 24 S. Ct. 657, 48 L. Ed. 938 (1904). After analyzing the holding in Walshe, the court concluded that it had no application to Shapiro's case.
Shapiro v. Ferrandina, in any event, has no relevance here. Sindona was not arrested following the issuance of a warrant which can be claimed to be defective. There was no warrant. Nor can there be any dispute as to whether the recitations in the complaint were proper or made in good faith. There was no mistake about where Mr. Sindona was. Par. 81 of Marshal Pizzi's complaint states as follows:
MICHELE SINDONA is presently in the custody of the Attorney General serving the sentence detailed ¶ 5, supra. He will be transferred by order of the Attorney General from the Federal Correctional Institution, Otisville, New York, to the Federal Courthouse, Eastern District of New York, by the Bureau of Prisons and United States Marshal's Service on or about December 15, 1983 to allow for the filing of this complaint and the commencement of extradition proceedings.
As I have already indicated, the statute (18 U.S.C. § 3184) was precisely complied with and Sindona's motion to dismiss the complaint for the reason that the court lacked jurisdiction over him is denied.
Having ruled on the motion and stated my reason for the ruling, I am moved to make several other observations, being fully aware that an "over-speaking judge is no well-tuned cymbal." I believe *1445 that the phrase "found within his jurisdiction" in 18 U.S.C. § 3184 does not mean the equivalent of being discovered within the jurisdiction. That is to say, the word "found" should not be read as the past tense of "find," but rather, should be read as being synonymous with "present" and the phrase would thus be read as "present within his jurisdiction."[2]
The purpose of the extradition hearing required by § 3184 is not to adjudicate guilt or innocence, but to determine whether the alleged offenses with which the defendant is charged are covered by the extradition treaty and whether an official with jurisdiction (a judge or magistrate) was presented with any evidence to warrant a finding that there was reasonable ground to believe the defendant is guilty. Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L. Ed. 970 (1925); Melia v. United States, 667 F.2d 300, 302 (2d Cir.1981); Simmons v. Braun, 627 F.2d 635, 637 (2d Cir.1980). Rule 18 of the Fed.R.Crim.P., which requires that a prosecution shall be had in a district in which the offense was committed can have no application here since the alleged offense was committed within the jurisdiction of Italy. It is there that Sindona will be prosecuted if he is extradited. The constitutional provisions, statutes and rules (e.g., Art. III, section 2; Rules 18, 20 Fed.R. Crim.P., 18 U.S.C. § 3237 et seq.) with which venue in federal criminal cases are intertwined are not at all implicated in an extradition proceeding. The only venue requirement in such a proceeding is that the hearing "be held on land, publicly, and in a room or office easily accessible to the public." 18 U.S.C. § 3189.
III. The Extradition Request
A. Pre-requisites to Extradition
The request for the extradition of Sindona and Venetucci was made in accordance with Article XI of the Treaty of Extradition between the United States and Italy, 26 U.S.T. 495, T.I.A.S. 8052 (1973) (hereafter "Treaty"). That Article requires:
1. That the request be made through diplomatic channels.
This requirement was satisfied by the submission to the court of three declarations by T. Michael Peay, Deputy Assistant Legal Adviser in the Office of the Legal Adviser for the United States Department of State, each dated December 6, 1983, attesting to that fact and annexing to each declaration the diplomatic notes from the Embassy of Italy to the Department of State requesting the extradition of Sindona and Venetucci.
2. That the request be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting Party including the law defining the offense, the law prescribing the punishment for the offense, and the law relating to the limitation of the legal proceedings or the enforcement of the penalty for the offense.
This requirement was satisfied by the documentary submissions by the Republic of Italy which are embraced by eight packets, seven of which are certified by the Ambassador of the United States and one by the United States Charge d'Affaires in accordance with 18 U.S.C. § 3190. Those packets are dated March 15, 1982, March 7, 1983, April 19, 1983, July 7, 1983, October 28, 1983 (Vol. I); October 28, 1983 (Vol. II); October 28, 1983 (Vol. III) and November 28, 1983.
3. That the request be accompanied by a warrant of arrest issued by a judicial officer of the requesting party and by such evidence as, according to the laws of the *1446 requested party, would justify his arrest and committal for trial if the offense had been committed there, including evidence that the person arrested is the person to whom the warrant of arrest refers.
Warrants for the arrest of Michele Sindona were issued by Judge Gherardo Colombo and Judge Giulano Turone of the Milan (Italy) Civil and Criminal Court on July 15, 1981 (Documents numbered 2 and 3 in the packet of March 15, 1982); by Judge Giulano Turone on October 22, 1982 (Document number 1 in the packet of October 28, 1983, Volume 1). A warrant for the arrest of Robert Venetucci was issued by Judge Giulano Turone on September 27, 1983 (Document number 2 in packet of October 28, 1983, Volume I). That portion of this requirement pertaining to the evidence will be addressed hereafter.
4. That the warrants of arrest, deposition and other evidence given under oath or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when they bear the signature or are accompanied by the attestation of a judge, magistrate, or other official or are authenticated by the official seal of the Ministry of Justice and, in any case, are certified by the principal diplomatic or consular office of the United States. Any deposition or other evidence which was not given under oath shall be admitted in evidence when there is an indication that the deponent was informed by the appropriate authorities of the penal sanctions to which he would be subject in the case of false or incomplete statements.
An examination of the documents submitted by the Republic of Italy reveals that these requirements have been satisfied. See also 18 U.S.C. § 3190.
B. General Principles
Before considering the sufficiency of the documents as requiring a finding that the extradition request should be granted or denied, a statement of the principles applicable to an extradition hearing may be helpful.
The purpose of the extradition hearing is not to determine the guilt or innocence of the persons whose extradition is requested. Rather, the court must determine whether: (1) there is a valid extradition treaty between the Republic of Italy and the United States; (2) Michele Sindona and Robert Venetucci are the persons sought; (3) the offenses with which they are charged are extraditable; (4) the requirements of "double criminality" are satisfied; (5) there is probable cause to believe that Sindona and Venetucci committed the offenses for which their extradition is requested; (6) the required documents are presented in accordance with the laws of the United States, translated and duly authenticated by a United States Consul; and (7) all other treaty requirements and procedures have been followed. Bassiouni, International Extradition, United States Law and Practice IX § 5-1 (1983). The Federal Rules of Evidence are not applicable in an extradition proceeding (Fed.R.Ev.Rule 1101(d)(3)) and hearsay is admissible.
IV. The Evidence
A. At the outset, I find that there is a valid extradition treaty between the Republic of Italy and the United States; that Michele Sindona and Robert Venetucci are the persons sought; and that the required documents are presented in accordance with the laws of the United States, translated and duly authenticated by a United States Consul. I shall now address the remaining requirements which must be satisfied before the extradition request may be granted as to Sindona and Venetucci separately.
B. The Extraditability of the Offenses Charged and "Double Criminality":
1. Sindona
The Republic of Italy has charged Michele Sindona with crimes of murder, extortion and conspiracy to commit extortion, receiving stolen property and conspiracy to commit the crime of receiving stolen property. The offenses *1447 with which he is charged are extraditable.
2. Venetucci
The Republic of Italy has charged Robert Venetucci with the crimes of extortion and conspiracy to commit the same.
Article II of the Treaty provides in relevant part:
Persons shall be delivered up according to the provisions of this Treaty for any of the following offenses provided that these offenses are punishable by the laws of both Contracting Parties and subject to a term of imprisonment exceeding one year.
1. Murder
* * * * * *
16. Extortion by private or public persons.
17. Receiving or transporting any money, valuable securities or other property knowing the same to have been unlawfully obtained ...
* * * * * *
30. ...
Extradition shall also be granted for attempts to commit, conspiracy to commit or participation in, any of the offenses mentioned in this Article.
3. The offenses for which Sindona and Venetucci are sought to be extradited are punishable by the laws of both the Contracting Parties and are subject to a term of imprisonment exceeding one year. Italian Penal Code, Articles 56, 61, 81, 110, 112, 339, 575, 577, 610, 629, 648; 18 U.S.C. §§ 2, 371, 641, 875, 1952, 1961, 1962; New York Penal Law §§ 105.10, 110.00 et seq.; 125.00 et seq; 135.65, 155.40.
Although Article II of the Treaty requiring that offenses be "punishable by the laws of both Contracting Parties" if read literally would preclude reference to the laws of New York since New York is not a Contracting Party, it is well settled that treaties are to be construed liberally rather than literally. Factor v. Laubenheimer, 290 U.S. 276, 293, 54 S. Ct. 191, 195, 78 L. Ed. 315 (1933). Thus, in Hu Yau Leung v. Soscia, 649 F.2d 914 (2d Cir.) cert. denied, 454 U.S. 971, 102 S. Ct. 519, 70 L. Ed. 2d 389 (1981), the court decided that the phrase "Under the law of the United States of America" in an extradition treaty must be taken to include both the state and federal law in the absence of evidence that the contrary was intended. See also Wright v. Henkel, 190 U.S. 40, 58, 23 S. Ct. 781, 785, 47 L. Ed. 948 (1903). It is also immaterial that the criminal activity as defined in the United States Code or the New York Penal Law is not characterized in precisely the same way as is that activity under Italian Law. "The law does not require that the name by which the crime is described in the two countries shall be the same.... It is enough if the particular act charged is criminal in both jurisdictions." Collins v. Loisel, 259 U.S. 309, 312, 42 S. Ct. 469, 470, 66 L. Ed. 956 (1922).
I find, therefore, that the offenses with which Sindona and Venetucci are charged are extraditable under the Treaty and that the requirement of "double criminality" is satisfied; that is, the offenses are punishable by the laws of the Contracting Parties and subject to a term of imprisonment exceeding one year.
C. The Requirement of Probable Cause
1. Sindona
a. The Murder of Giorgio Ambrosoli
The collapse of the financial enterprises of Michele Sindona both here and abroad and the criminal proceedings which followed are recounted in United States v. Sindona, 636 F.2d 792 (2d Cir.1980), cert. denied, 451 U.S. 912, 101 S. Ct. 1984, 68 L. Ed. 2d 302 (1981) (in which he was convicted of fraud, perjury and bail jumping) and in Matter of Sindona, 450 F. Supp. 672 (S.D.N.Y.1978), aff'd sub nom. Sindona v. Grant, 619 F.2d 167 (2d Cir.1980) (extradited to Italy to face charges of bankruptcy fraud).
Giorgio Ambrosoli, a lawyer, was appointed by the Italian Ministry of the Treasury *1448 on September 27, 1974 as the liquidator of Banco Privata Italiana (BPI) which was formed only months before from the merger of two Sindona-controlled banks, the Banca Unione (BU) and the Banca Privata Finanziaria (BFP). Mr. Ambrosoli's role was to reconstruct the bookkeeping records of the bank with a view to possibly recovering some or all of its assets for distribution to creditors (Document # 1, March 15, 1982 packet).
Following the decree of the Ministry of the Treasury which forced BPI into liquidation and named Mr. Ambrosoli as liquidator, a consortium was formed of three banks owned by the Republic of Italy for the purpose of repaying depositors of BPI. Funds for that purpose were to be obtained from Banca D'Italia, the Italian Central Bank. The three banks constituting the consortium were Banco diRoma, Banca Commerciale Italiana and Credito Italiano, Ltd.
Beginning in approximately 1976, Sindona, through various intermediaries, proposed to highly placed government and bank officials various plans to settle the bank's difficulties at the least cost to himself and to avoid the criminal prosecution he faced for his role in causing the collapse of the banks he controlled in Italy and of the Franklin National Bank in the United States. One of the persons Sindona sought to enlist on his behalf was Mr. Enrico Cuccia, a prominent banker in Milan. (Document # 7, Packet of October 28, 1983, Volume I).
The settlement plans were not favorably received and Sindona formed the belief that Ambrosoli and Cuccia were responsible for the rejection of those plans and that they were the persons who were blocking the road to his salvation. (See, e.g., Documents 1, 2 and 7, Packet of March 15, 1982). To eliminate the obstacle he presented, Sindona embarked upon a campaign of vilification and harassment of Ambrosoli which escalated to threats and finally to his death by murder at approximately midnight on July 11, 1979 as he was returning to his home in Milan.
The villification and harassment of Mr. Ambrosoli is evidenced by the following:
(1) An interview Sindona gave to Il Fiorino, an Italian newspaper, on February 21, 1976 in which he accused Mr. Ambrosoli of embezzlement and characterized him as a low level lawyer who undertook a task that was too big for him (Document # 4, Packet of March 15, 1982).
(2) A denunciation of Ambrosoli and complaint against him lodged with the Republic Attorney's Office at the Court of Milan (Document # 5, Packet of March 15, 1982). The Court of Milan subsequently found that there was no basis for instituting any proceedings against Mr. Ambrosoli (Document # 6, Packet of March 15, 1982).
(3) A letter to the Governor of the Bank of Italy charging Ambrosoli with bias, unethical behavior, incompetence, bad faith and urging his removal (Document # 8, Packet of March 15, 1982).
(4) A letter to the General Manager and Editor of Corriere-della Sera, an Italian newspaper, in which he calls Ambrosoli a thief, a low level lawyer who resorts to scandal to conceal his own inadequacies and expresses the wish that his charges be brought to the attention of the Bar so that Mr. Ambrosoli can be disciplined (Document # 9, Packet of March 15, 1982).
The threats directed against Mr. Ambrosoli and attributed to Sindona are reflected in the following documents:
(1) Document # 10, Packet of March 15, 1982, a transcription of a recorded telephone call to Ambrosoli, in which he is told "you only deserve to die killed as a cuckold, you are a cuckold and a bastard."
(2) Document # 11, Packet of March 15, 1982, a deposition of Enrico Cuccia, in which he relates that Sindona told him during a meeting between them in New York in April 1979 that he (Sindona) would have Ambrosoli disappear without leaving a trace of him. See also Document # 6, Packet of July 7, 1983.
(3) Document # 15, Packet of October 28, 1983 Vol. II, deposition of Luigi DiFonzo, *1449 in which he testifies that Sindona's son Nino told him of Sindona's involvement in the threats to Ambrosoli.
(4) Document # 16, Packet of October 28, 1983, Vol. II, tape recorded interview of Nino Sindona by Luigi DiFonzo.
Robert Venetucci and William Arico were prisoners at the same time at the Federal Correctional Institution in Lewisburg, Pennsylvania. There came a time, after they were released from prison that Venetucci introduced Arico to Sindona (Documents # 10, 15, Packet of October 28, 1983, Vol. II; see also Document # 14, Packet of March 15, 1982). Arico thereafter informed Henry Hill (by whom he was employed in criminal ventures) that he (Arico) was a contract murderer for Sindona (Document # 1, Packet of July 7, 1983; Document # 10, Packet of October 28, 1983, Vol. II).
Arico, using the alias of William McGovern, made numerous trips to Milan, Italy (Documents # 18, 19, 20, 21, Packet of October 28, 1983, Vol. III). He was in Milan when Ambrosoli was murdered (Documents # 21, 22, Packet of October 28, 1983, Vol. III). A witness to the shooting of Ambrosoli, Emilio Bollani, testified that the murderer emerged from a red Fiat 127, fired at Ambrosoli and departed in that vehicle (Document # 26, Packet of October 28, 1983, Vol. III). That William Arico rented a red Fiat 127 in Milan prior to the murder of Ambrosoli and returned it the following morning is evidenced by Documents # 22, 24, Packet of October 28, 1983, Vol. III. That William Arico arrived at JFK Airport on July 12, 1979 is evidenced by Document # 18, Packet of October 28, 1983, Vol. III. It should also be noted that the bullets taken from the body of Giorgio Ambrosoli during the autopsy were very probably 357 magnum caliber fired from a single gun either a Smith and Wesson or Ruger revolver of corresponding caliber (Document # 17, Packet of March 15, 1982). Henry Hill testified that in September or October 1978, he sold six or seven guns to William Arico which, Arico said, he intended to use to commit murders in Italy for Michele Sindona. Among the guns sold to Arico were two Smith and Wesson 357 caliber pistols (Document # 1, Packet of July 7, 1983). Finally, Document # 1, Packet of March 7, 1983, evidences the existence of Swiss bank accounts in the name of McGovern-Arico. See also Packet of November 28, 1983, Official Statement of Guido Viola.
Based upon the documents to which specific reference has been made, together with all the other evidence presented in accordance with the Treaty and the laws of the United States, I find there is probable cause to believe that Giorgio Ambrosoli was murdered and that his murder was instigated, procured and paid for by Michele Sindona.
b. Extortion and Conspiracy to Commit Same
As has been previously mentioned, Sindona had formed the belief that Enrico Cuccia could materially assist in obtaining the approval of the settlement plans Sindona had proposed and that his refusal to lend his assistance was a significant cause of the difficulty in which Sindona found himself. The Republic of Italy asserts that failing to obtain Mr. Cuccia's assistance upon request, Sindona caused threatening telephone calls, letters and other coercive measures (e.g., arson) to be directed at Cuccia in the hope that he could, by such measures, obtain the helpful intervention of Cuccia that he could not obtain merely for the asking.
That Sindona was obsessed by the belief that Mr. Cuccia could rescue him from his difficulties and that he embarked upon a plan to extort Cuccia's assistance is reflected in Documents # 7, 11, 21, 22 of Packet of March 15, 1982.
Threatening telephone calls were received by Mr. Cuccia from May 1977 until approximately April 1980 (Document # 11, Packet of March 15, 1984). One threat was also received by letter in September 1979 (Document # 6, Packet of July 7, 1983). As to the letter, Miceli Crimi testified before Judges Turone and Colombo on June 15, 1981 that the typewriter used to write *1450 the threatening letter to Enrico Cuccia in September 1979 was the same typewriter he gave to Sindona in August 1979 (Document # 20, Packet of March 15, 1982).
The threatening telephone calls received by Mr. Cuccia have been testified to by him in depositions reflected in Documents # 11, 24, Packet of March 15, 1982; Documents # 6, 7 and 8, Packet of July 7, 1983.
The acts of arson [email protected]. Cuccia's residence are described in Mr. Cuccia's deposition of June 8 and 9, 1983, Document # 6, Packet of July 7, 1983.
In the Matter of the Extradition of Rocco Messina and Charles J. Arico, a/k/a Charles J. Pido, decided by me on October 11, 1983, 83 Misc. 1004, aff'd 728 F.2d 77 (2d Cir.1984), I granted a request by the Republic of Italy for the extradition of Messina and Charles Arico. I found that there was probable cause to believe that they committed the crimes with which they were charged: complicity in aggravated private violence and complicity in aggravated attempted extortion. That finding was based on transcriptions of recorded telephone calls made on March 28, 1980, in which threats against Mr. Cuccia and his family were made. The voices of the persons making those calls were identified as belonging to Messina and Charles Arico (see Documents # 5, 10 and 11, packet of October 28, Vol. I).
Charles Arico is the stepson of William Arico and Rocco Messina was William Arico's neighbor (see Document # 1, Packet of July 7, 1983).
William Arico's visits to Milan, particularized as to dates and hotels in which he was registered, are set forth in the deposition of Police Sergeant Orlando Gotelli, Document # 21, Packet of October 28, 1983, Vol. III. On at least three of those visits, Arico was accompanied by Rocco Messina.
Arico's efforts to locate Mr. Cuccia are revealed in the deposition of Mariangela Quaglierini (Document # 23, Packet of March 15, 1982 and Document # 6, Packet of October 28, 1983, Vol. I).
That Michele Sindona was implicated in and directed the threats against Mr. Cuccia is reflected in Documents # 15 and 16, Packet of October 28, 1983, Vol. II and in the depositions of Enrico Cuccia (see Document # 11, Packet of March 15, 1982 and Document # 5, Packet of October 28, 1983, Vol. I).
Telephone threats were also directed at Giorgio Ambrosoli which were calculated to coerce him to take such action as would result in the favorable disposition of Sindona's difficulties (Documents # 7 and 8, Packet of October 28, 1983, Vol. I).
Based upon the documents specifically referred to and upon all the evidence submitted by the Republic of Italy, I find that there is probable cause to believe that Michele Sindona committed the crimes of extortion and conspiracy to commit extortion.
c. Receiving Stolen Property and Conspiracy to Commit Same
Dr. Guido Viola, who has been referred to during the course of this decision as judge and who is referred to in the various documents before the court as Magistrate or Inquiring Magistrate or as Magistrate with functions of Assistant Public Prosecutor of the Republic of Italy in Milan stated, in the documents contained in the packet of November 28, 1983 as follows:
1. Giorgio Ambrosoli, in his capacity as Liquidator of the Banca Privata Italiana was a "public official."
2. The investigations conducted by Mr. Ambrosoli in his capacity as Liquidator were covered by "official secrecy."
3. The reports written by Mr. Ambrosoli were covered by official secrecy until made available to the parties by the Magistrate in May, 1979.
4. If Sindona were in possession of such reports prior to the time when the restraint of official secrecy had been lifted, his possession would have been unlawful and upon receiving the report would be committing the crime of receiving something which had been procured unlawfully.
*1451 During the course of a meeting with Sindona in New York on April 10, 1979, Cuccia was informed by Sindona that the latter was in possession of the report Mr. Ambrosoli prepared for the Magistrate (see Document # 11, packet of March 15, 1982 and Document # 6, packet of July 7, 1983).
In a deposition of Mrs. Xenia Dittrich taken on July 20, 1983, she testified that she was Michele Sindona's secretary in 1977, 1978 and 1979 in New York. She also testified that Sindona had a copy of Mr. Ambrosoli's report which he requested her to retype (Document # 4, packet of October 28, 1983, Vol. I).
Based upon the documents specifically referred to and upon all the evidence submitted by the Republic of Italy, I find that there is probable cause to believe that Michele Sindona committed the crime of receiving stolen property and conspiracy to commit the same.
2. Venetucci
The assertion of the Republic of Italy that there is probable cause to believe that Venetucci committed the crimes of conspiracy to commit extortion and extortion is based upon the evidence submitted in support of its extradition request as follows:
Among the many threatening phone calls received by Enrico Cuccia, as has already been discussed, two were received in February 1980. One was received on February 5th and the other on February 28th. Those calls were recorded and the recordings transcribed (see attachments to Cuccia Deposition, Document # 5, Packet of October 28, 1983, Vol. I). Threats, explicit and implicit, are conveyed for the purpose of coercing Mr. Cuccia to take some action on behalf of Sindona. The lives of Mr. Cuccia's family, as well as his own life are clearly threatened.
James Stein, a probation officer with the United States Probation Service, listened to the tape recordings of those two telephone conversations and identified the voice of the caller as belonging to Robert Venetucci. Mr. Stein's identification of Venetucci's voice is based on conversations he has had with Venetucci no less than once a month for approximately three years while supervising Venetucci who was on parole for a 1973 federal narcotics conviction (see Document # 14, packet of October 28, 1983, Vol. II).
Venetucci made application at the extradition hearing for leave to call an expert witness who would cast doubt upon the identification of Venetucci's voice on the recorded telephone conversations. His application was denied. As has already been stated, "[a]n extradition hearing is not the occasion for an adjudication of guilt or innocence." Melia v. United States, 667 F.2d 300, 302 (2d Cir.1981). "As in the case of a grand jury proceeding, a defendant has no right to cross-examine witnesses or introduce evidence to rebut that of the prosecutor.... In the exercise of the extraditing judge's discretion, a fugitive may be permitted to offer explanatory testimony, but may not offer proof which contradicts that of the demanding country." Messina v. United States, supra, 728 [email protected]. The offer of proof made by Venetucci was contradictory, not explanatory.
Venetucci's affiliation with Sindona and Arico has previously been adverted to. Venetucci knew Arico as a fellow inmate at the Federal Correctional Institution at Lewisburg, Pennsylvania and introduced Arico to Michele Sindona (Document # 10, Packet of October 28, 1983, Vol. II and Document # 14, Packet of March 15, 1982). Sindona telephoned Venetucci on several occasions (Document # 28, packet of October 28, 1983, Vol. III) and papers pertaining to Venetucci were among the documents taken from Arico when he was detained by Customs Agents (Document # 3, Packet of October 28, 1983, Vol. I). That Sindona and Venetucci were known to each other and were involved in the threats made to Ambrosoli and Cuccia is also reflected in Document # 16, Packet of October 28, 1983, Vol. II, which also reveals that large sums of money were paid to Venetucci by Sindona for the services Venetucci performed in that connection. Much of that money was laundered through Swiss banks *1452 (see Document # 29, Packet of October 28, 1983, Vol. III and Affidavit of Special Agent Thomas K. Gilligan in Packet of November 28, 1983; see also Document # 16, Packet of October 28, 1983, Vol. II).
Based upon the documents specifically referred to and upon all the evidence submitted by the Republic of Italy, I find that there is probable cause to believe that Robert Venetucci committed the crimes of extortion and conspiracy to commit the same, and his motion to dismiss the complaint against him is denied.
Neither Sindona nor Venetucci have challenged the existence of a valid extradition treaty between the Republic of Italy and the United States, or that they are the persons sought, or that the offenses with which they are charged are extraditable, or that the requirements of double criminality are satisfied, or that the required documents are duly presented, translated and authenticated and that all other treaty requirements and procedures have been followed. Venetucci challenged the existence of probable cause and moved to dismiss the complaint against him on that ground. His motion was denied.
Sindona's challenge to this proceeding related only to the jurisdiction of the court to entertain it. At the hearing on February 21, 1984, counsel for Sindona stated that he was authorized by Sindona to inform the court that "We had no intention of presenting any evidence in opposition to the extradition motion, to the complaint based upon the documents sent.... The reason we offer no evidence in opposition is because we recognize this proceeding cannot determine Mr. Sindona's innocence and only a proceeding in Italy can. Mr. Sindona desires to have such a proceeding and to be able to prove his innocence, and frankly, would like to prove his innocence as soon as possible." (Tr. pp. 31-32).
In sum, the Court finds that: (1) there is a valid extradition treaty between the Republic of Italy and the United States; (2) Michele Sindona and Robert Venetucci are the persons sought; (3) the offenses with which they are charged are extraditable; (4) the requirements of "double criminality" are satisfied; (5) there is probable cause to believe that Michele Sindona and Robert Venetucci committed the offenses with which they are charged; (6) the required documents are presented in accordance with the laws of the United States, translated and duly authenticated by a United States Consul; and (7) all other treaty requirements and procedures have been followed.
Accordingly, the request of the Republic of Italy for the extradition of Michele Sindona and Robert Venetucci is granted. Article V, Treaty.
NOTES
[1] The complete text of that memorandum is as follows:
William Arico and Michele Sindona are federal prisoners housed by you within the Southern District of New York. Both of them are subject to an extradition request recently made by the Government of Italy. Several other individuals involved with them, Charles Arico, Rocco Messina and Roberto Venetucci, were in the Eastern District of New York when they were arrested for extradition to Italy.
The Attorney General has decided that the William Arico and Michele Sindona extradition hearings will also be heard within the Eastern District of New York. He has assigned Assistant United States Attorney Reena Raggi to represent the Government of Italy.
When Ms. Raggi is prepared to institute proceedings against the other two, she will contact you, or your designated representative, in order to arrange for their transfer to Brooklyn for their initial appearance, and then whenever they are needed for a court appearance. Thank you for your cooperation.
[2] It is interesting to note in this regard that Article I of the Treaty of Extradition between the United States of America and Italy, 26 U.S.T. 495, T.I.A.S. 8052 (1973) provides that "Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with or convicted of any of the offenses mentioned in Article II of the Treaty committed within the territory of the other or outside thereof under the conditions specified in Article III of this Treaty.
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PARKE BANCORP, INC. 2 PARKE BANCORP, INC. 2 TABLE OF CONTENTS Page Section One Letter to Shareholders 1 Selected Financial Data 3 Management’s Discussion and Analysis of Financial Condition and Results of Operations 4 Market Prices and Dividends 21 Management’s Report on Internal Control Over Financial Reporting 23 Section Two Report of Independent Registered Public Accounting Firm 1 Consolidated Financial Statements 2 Notes to Consolidated Financial Statements 6 Corporate Information 54 Parke Bancorp, Inc. (the “Company”) may from time to time make written or oral “forward-looking statements” including statements contained in this Annual Report and in other communications by the Company which are made in good faith pursuant to the “Safe Harbor” provisions of the Private Securities Litigation Reform Act of 1995.These forward-looking statements involve risks and uncertainties, such as statements of the Company’s plans, objectives, estimates and intentions that are subject to change based on various important factors (some of which are beyond the Company’s control).The following factors, among others, could cause the Company’s financial performance to differ materially from the plans, objectives, expectations, estimates and intentions expressed in such forward-looking statements; the strength of the United States economy in general and the strength of the local economies in which the Company’s bank subsidiary, Parke Bank, conducts operations; the effects of, and changes in, trade, monetary and fiscal policies and laws, including interest rate policies of the Board of Governors of the Federal Reserve System; inflation, interest rate, market and monetary fluctuations; increased competition from both banks and non-banks; legal and regulatory developments; the impact of our participation in the Treasury’s capital purchase plan; technological changes; mergers and acquisitions; changes in consumer spending and saving habits; and the success of Parke Bank at managing these risks. To Our Shareholders: We are very pleased to report that Parke Bancorp, Inc., for the 11th consecutive year has generated strong earnings. We continue to maintain strong capital ratios that are evidence of management’s resolve to operate the bank in a safe, sound and efficient manner. Earnings in 2011 were consistent with our record profits reported in 2010. Net income available to common shareholders in 2011 was $6.3 million or $1.26 per diluted common share, compared to $6.4 million, or $1.27 per share in 2010. Total assets increased 4.5% to $790.7 million, an increase of $33.9 million from December 31, 2010. The primary source of our increase in assets was our strong deposit growth in 2011. Total deposits grew 5.0% to $634.9 million in 2011, a $30.1 million increase from December 31, 2010. This growth was spread over many of our deposit products with substantial growth in interest free checking. We recently re-opened our fire damaged Kennedy branch, which will help support continued deposit growth. Our loan portfolio remained relatively flat at $625.1 million as of December 31, 2011, compared to $626.7 million as of December 31, 2010. Many small businesses continue to pay down debt, deleveraging in a very uncertain business climate. Low consumer confidence and broad uncertainty within the business community continue to be major deterrents to an economic recovery. The strength of our earnings in 2011 supported our increase in total equity of $6.5 million to $77.3 million as of December 31, 2011, an increase of 9.2% from December 31, 2010. Our focus on generating a strong return to our shareholders was evident with a 10.5% return on equity in 2011. The real estate market collapse continues to have a negative effect on our loan portfolio. Nonperforming loans increased to $44.5 million at December 31, 2011, an increase of $17.0 million. In 2011, we experienced some migration of delinquent loans to nonperforming status, however, loans past due 30 to 89 days decreased from $15.8 million as of December 31, 2010 to $6.5 million as of December 31, 2011. We continue to take a very conservative approach to managing the risk in our loan portfolio. In 2011 our allowance for loan losses increased to $19.3 million or 3.1% of our total loans, compared to 2.4% of our total loans as of December 31, 2010. Although we are experiencing a level of success in disposing of our real estate owned (OREO), as of December 31, 2011, OREO increased $2.7 million from December 31, 2010 to $19.4 million. We continue to develop pro-active strategies to dispose of our troubled real estate loans. There are strategies in place to liquidate the collateral supporting these loans. The legal process for gaining control of these troubled assets has worsened in 2011, with foreclosures in New Jersey now taking more than 900 days. Our credit challenges are a top priority. We were fortunate in 2011 in bringing back Robert P. Gehring as our Chief Credit Officer. Bob was our first Senior Loan Officer when we opened Parke Bank 12 years ago. Bob and his wife moved to Florida and recently returned to the area. Bob has extensive experience and expertise in credit analysis and government regulations. Bob has developed a Credit Risk Management Department at Parke Bank, which will be critical to our continued growth and profitability. The economy, both nationally and regionally, is showing some signs of recovery. The recovery, especially in the real estate industry, is very slow and volatile. A strong headwind facing the recovery is the high 1 unemployment rate. We have seen an increase in job creation, but far less than what is needed for a full fledged recovery. A recovery in the housing market is dependent on strong employment growth. There has been an increase in national home builder optimism, although some critics state there is just less pessimism. At Parke Bank we have seen increased optimism within our home builders’ customer base. We are also experiencing increased activity with interested buyers of our OREO portfolio, which is another good sign for the economy. 2012 will continue to be very challenging for the nation’s economy, the banking industry and Parke Bank. 2012 is a Presidential election year, with the White House and the GOP candidates all talking about an economic recovery and what is needed. Unfortunately, very little will be accomplished in addressing these challenges until the election is over. We also don’t expect any relief from the increased regulatory burden on the country’s businesses and banks during an election year. However, we believe that the economy will continue to recover, although very slowly. A major factor in Parke Bancorp’s continued strong earnings is the success of our SBA joint venture, 44 Business Capital. We were #1 in the Delaware Valley region in SBA loan generation, a remarkable accomplishment in only 2 ½ years. The management and staff of 44 Business Capital continues to do a tremendous job in generating quality SBA loans. We are focused on expanding our market share for SBA loans in the Delaware Valley while maintaining the highest credit standards. We are cautiously optimistic about 2012. Hopefully, many of the uncertainties with our political leaders will be eliminated and a strong plan of budget reduction, decreased regulatory burden and a clear direction for a strong economic recovery will be established. We will continue to work very hard to maintain our leadership in our peer group for cost efficiency, which was 34.18% in 2011 and a strong net interest margin, which was 4.46% in 2011. We will continue to focus on improving the asset quality in our loan portfolio. Combined, these factors should support the continued strength of our Company’s profitability and enhance shareholder value. C.R. “Chuck” Pennoni Vito S. Pantilione Chairman President and Chief Executive Officer 2 Selected Financial Data At or for the Year Ended December, 31 Balance Sheet Data: (in thousands) Assets $ Loans, Net $ Securities Available for Sale $ Securities Held to Maturity $ Cash and Cash Equivalents $ OREO $ $ $
|
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 26, 2017 at Knoxville
EMMETT LAMON ROSEMAN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 15-CR-87-PCR Franklin L. Russell, Judge
___________________________________
No. M2016-01051-CCA-R3-PC – Filed May 23, 2017
___________________________________
The Petitioner, Emmett Lamon Roseman, appeals the denial of post-conviction relief
from his 2013 Marshall County Circuit Court convictions of possession of marijuana with
intent to sell, sale of 0.5 grams or more of crack cocaine, delivery of 0.5 grams or more of
crack cocaine, and three counts of failure to appear, for which he received an effective
sentence of twenty years. In this appeal, the Petitioner contends that he was denied the
effective assistance of counsel and that his guilty pleas were not knowingly and
voluntarily entered. Discerning no error, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Wesley Hall (on appeal), Unionville, Tennessee, and Brian Belden (at hearing),
Shelbyville, Tennessee, for the appellant, Emmett Lamon Roseman.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Robert J. Carter, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Plea Acceptance Hearing
At the plea acceptance hearing, the State provided a factual basis for the
Petitioner’s guilty pleas. The Petitioner acknowledged that he signed five documents,
which constituted his petitions to plead guilty. The Petitioner stated that he understood
everything in each document. For each charge, the trial court explained to the Petitioner
the potential sentence he might receive based upon potential range classifications. The
trial court explained:
And so I don’t know what’s going to happen at your sentencing
hearing. Okay. I’m going to follow the law, but I don’t know what’s going
to happen. If I don’t know, General Barnard can’t tell you, or your
attorney, what’s going to happen. If I don’t know, your attorney can’t tell
you what’s going to happen, because it’s just up in the air.
During questioning by the trial court, the Petitioner indicated that he understood that he
was pleading “open” and acknowledged that no one had made promises to him about
what was going to happen at the sentencing hearing.
Sentencing
At the Petitioner’s sentencing hearing, the trial court imposed a total effective
sentence of twenty years in the Department of Correction. State v. Emmett Lamon
Roseman, No. M2013-02150-CCA-R3-CD, 2014 WL 4071937, at *1 (Tenn. Crim. App.
Aug. 19, 2014), no perm app. filed. On direct appeal, this court summarized the relevant
facts from the Petitioner’s sentencing hearing, as follows:
[T]he presentence report, which was introduced at the sentencing hearing,
reflects that on January 12, 2011, members of the 17th Judicial District
Drug Task Force and detectives with the Lewisburg Police Department
utilized the services of a confidential informant (CI). The CI purchased
$60 worth of marijuana from the [Petitioner] in the parking lot of an
apartment building on Haynes Street in Lewisburg. After the transaction,
the [Petitioner] returned to an apartment on the top left side of the building.
The agents and detectives watched the building for one or two hours and
noticed several individuals arrive and leave from the [Petitioner’s]
apartment. One of the individuals, who was stopped by Agent Brad Martin,
possessed a small bag of marijuana. Officer Tim Miller decided to
approach the apartment and perform a “knock-and-talk.” He walked up the
stairs, looked through the blinds, and saw the [Petitioner] and a young
female in the living room. When Officer Miller knocked on the closed
door, he saw the female grab a Ziploc bag from the couch and run toward
the rear of the apartment. The bag appeared to contain a large amount of
marijuana. The [Petitioner] answered the door, and Officer Miller walked
down the hall where the female had gone. He noticed a light on in the
-2-
bathroom off the hall. An empty Ziploc bag was lying on the floor and
approximately three ounces of marijuana was floating on the water inside
the toilet. The agents performed a consensual search of the [Petitioner] and
found $450 of suspected illegal drug proceeds, including $60 from the
controlled buy. A subsequent consensual search of the residence revealed
two sets of digital scales in the master bedroom. The [Petitioner] spoke
with the agents and acknowledged ownership of the marijuana and scales.
The presentence report further reflects that on October 19, 2011, Agent
Brad Martin and Officer Tim Miller met with a CI, who told them that the
[Petitioner] and Whitney Green were involved in the illegal distribution of
cocaine. At approximately 7:04 p.m., the CI called Green and asked to buy
$100 worth of crack cocaine. Around 7:21 p.m., Green sent the CI a text
message, instructing him to meet her at Kris’s Store. The [Petitioner] and
Green arrived at the store in a red Ford Focus. The CI approached the car
and had a “hand-to-hand exchange” with the [Petitioner]. Afterward, the CI
rendezvoused with the agents and relinquished a small, white, plastic bag
containing crack cocaine.
The presentence report also reflects that the [Petitioner] had two prior
misdemeanor convictions for failure to appear; three convictions of assault;
eight convictions of selling marijuana; four convictions of possessing
marijuana; one conviction of disorderly conduct; and two convictions of
possessing drug paraphernalia.
Renee Howell, a probation officer, testified that she prepared the
[Petitioner’s] presentence report. She stated that the [Petitioner] previously
had probationary sentences revoked on at least two occasions. She also
stated that the [Petitioner] was on probation when he committed the three
failure to appear offenses; however, he was not on probation when he
committed the drug offenses.
On cross-examination, Howell said that when she spoke with the
[Petitioner], he indicated that he was trying to “turn his life around as best
as he can.” He told her that he was taking courses while he was
incarcerated.
Regarding the conviction of possession of marijuana with the intent to sell,
the parties agreed that the [Petitioner] was a Range II offender, that he was
entitled to release eligibility after service of thirty-five percent of his
sentence, and that he was subject to a sentence between two to four years.
-3-
The parties also agreed that the [Petitioner] was a Range I offender on the
crack cocaine conviction, that he was entitled to release eligibility after
service of thirty percent of his sentence, and that he was subject to a
sentence between eight to twelve years. Finally, the parties agreed that the
[Petitioner] was a Range III offender for his convictions of failure to
appear, that he was entitled to release eligibility after service of forty-five
percent of his sentence, and that he was subject to a sentence between four
to six years.
To each conviction, the court applied enhancement factor (1), that the
[Petitioner] has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range.
Tenn. Code Ann. § 40-35-114(1). The court specifically noted that it did
not consider the felony offenses used to establish the [Petitioner’s]
sentencing range but considered his multitude of misdemeanor offenses.
The court also applied enhancement factor (8), that the [Petitioner], before
trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community, to all of the convictions. Id. at [§ 40-
35-114](8). The court noted that the [Petitioner] had previously violated
probation on at least two occasions. Finally, the court applied enhancement
factor (13)(C), that the [Petitioner] was on probation at the time he
committed the offenses, to the failure to appear convictions. The court
applied mitigating factor (1), that the [Petitioner’s] criminal conduct neither
caused nor threatened serious bodily injury, to all of the convictions. Tenn.
Code Ann. § 40-35-113(1). However, the court did not afford the factor
“significant weight.” After considering the enhancement and mitigating
factors, the trial court sentenced the [Petitioner] to three years for the
marijuana conviction, ten years for the crack cocaine conviction, and five
years for each of the three failure to appear convictions.
The court further found that consecutive sentencing was appropriate
because the [Petitioner] is an offender whose record of criminal activity is
extensive. Tenn. Code Ann. § 40-35-115(2). Additionally, the court found
that consecutive sentencing was appropriate for the failure to appear
convictions because the [Petitioner] committed the offenses while on
probation. The court observed that the [Petitioner] was arguably a
professional criminal, noting that it did not “see a lot of other alternative
means of support other than illegal activities”; however, the court declined
to impose consecutive sentencing on this basis. Id. at [§ 40-35-115](1).
The court ordered two of the [Petitioner’s] failure to appear sentences to be
served concurrently with each other but consecutively to the third failure to
-4-
appear sentence. The court further ordered the sentences for the drug
offenses to be served concurrently with each other but consecutively to the
sentences for failure to appear, for a total effective sentence of twenty
years.
Id. at *1-3. Upon review, this court affirmed the trial court’s sentencing determinations.
Id.
Post-Conviction Proceedings
Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief.
Following the appointment of counsel, the Petitioner filed an amended post-conviction
petition.
At the post-conviction relief hearing,1 the Petitioner testified that he was
incarcerated when he retained trial counsel to represent him and explained that trial
counsel met with him at the jail twice for about ten to fifteen minutes both times. The
Petitioner, who had a high school diploma, stated that trial counsel discussed the case
with him and went over the State’s discovery as it related to the charge of possession of
marijuana with intent to sell. Trial counsel told the Petitioner that he had reviewed the
“audio and video” recording2 relating to the charges of sale and delivery of crack cocaine,
but trial counsel failed to show this evidence to the Petitioner. The Petitioner stated that
he had “no idea” what was on the audio and video recording; he said that trial counsel
only told him that there was “a girl” on the tape.
On cross-examination, the State questioned the Petitioner regarding his
truthfulness at the guilty plea acceptance hearing. The Petitioner recalled that before he
pled guilty he spoke to trial counsel, signed some forms, and answered questions from the
trial court. The Petitioner agreed that, during the plea acceptance hearing, the trial court
went over all of the elements of the crimes to which he was pleading guilty. He
acknowledged telling the trial court that he understood what it meant to plead open, that
no one had promised him anything as to what his sentence would be, and that the trial
court discussed the potential sentences that the Petitioner could receive including the
potential length and the possibility of consecutive sentences. The Petitioner
acknowledged that the trial court specifically asked him twice if anyone had promised
him anything about what was going to happen at the sentencing hearing, and the
1
We have summarized only the portions of the post-conviction hearing testimony relevant to the
issues raised by the Petitioner on appeal.
2
It is unclear from the record if this was one recording containing audio and video or if it was
two recordings—one audio and one video.
-5-
Petitioner twice answered, “No sir.” The Petitioner testified, however, that trial counsel
told him that he “would get no more than [fifteen] years.” The Petitioner stated that it
was only after the entry of his guilty pleas that trial counsel told him about the audio and
video recording of the cocaine sale in the discovery.
Trial counsel testified that he had been practicing law for three and a half years
and handled mostly criminal matters. Trial counsel stated that he received a copy of
discovery in the Petitioner’s case, and he recalled reviewing the audio and video
recording of the cocaine sale. He testified that he visited the Petitioner at the jail two or
three times and that his normal practice would have been to take his laptop into the jail to
review any audio and video recordings with the Petitioner. However, he could not
specifically recall showing the Petitioner the audio and video [email protected]. Trial
counsel stated that when he visited the Petitioner in jail he would stay for “[r]oughly an
hour or so.”
Trial counsel denied that he promised the Petitioner that he was going to receive a
particular sentence in exchange for an open plea. He recalled that he discussed the
charges with the Petitioner and the options available: take the deal that was offered, plead
open, or go to trial. Trial counsel stated that he explained what each option meant, and he
discussed the class and range of each count of the indictments and the possible sentence
that he might receive. Trial counsel also told the Petitioner that he could not predict what
sentence the Petitioner would receive at a sentencing hearing. Nonetheless, the Petitioner
wanted to enter the guilty pleas.
On cross-examination, trial counsel testified that, “at the very least,” he discussed
with the Petitioner what was on the audio and video recording from discovery. Trial
counsel reiterated that it was his custom to bring his laptop to the jail and review such
discovery there with the client. However, he could not specifically recall if he did so in
the Petitioner’s case. On redirect examination, trial counsel stated that, if a client ever
asked to see a recording in trial counsel’s possession, he would show it to the client.
At the conclusion of the hearing, the post-conviction court found that the
Petitioner received effective assistance of counsel and that the Petitioner entered an
informed and voluntary plea. The post-conviction court noted that trial counsel consulted
with the Petitioner both in court and on two or three occasions in the jail for about an
hour at a time. The post-conviction court stated that there was no evidence that the
Petitioner’s case was “so complex that that was an inadequate time in which to discuss a
decision and enter a plea.” The court found that the Petitioner’s testimony at the post-
conviction hearing was not credible. It noted that, at the plea acceptance hearing, the trial
court “went over in minute, tedious detail what it mean[t] to enter into an open plea.”
The post-conviction court stated:
-6-
I don’t know how in the world I could have made it any clearer that
there could be no promises, that if I didn’t know what I was going to do,
then no one could promise him what I was going to do, because if I didn’t
know, no one else knew.
Moreover, the Petitioner testified under oath at the plea acceptance hearing that “no one
had promised him anything about the outcome of the sentencing.” The post-conviction
court accredited trial counsel’s testimony that he did not make any promises to the
Petitioner about what sentence the Petitioner would receive and found that trial counsel
“made no such promise.”
Additionally, the post-conviction court found that no discovery was withheld from
the Petitioner. The post-conviction court further noted that, at the time of the plea
acceptance hearing, the Petitioner stated he had no complaints about trial counsel’s
performance. The court stated:
Based upon the evidence presented at the evidentiary hearing and upon the
[Petitioner’s] lack of complaints about [trial] counsel at the plea acceptance
hearing and based upon the extensive factual basis presented by [the State]
at the plea acceptance hearing, it is found that [trial counsel] timely
provided everything he needed to provide to [the Petitioner] for [the
Petitioner] to make every decision he needed to make about pleading open
and about persisting in that plea. There was no evidence that anything in
the discovery helped the [Petitioner] in any way or was likely to give
encouragement to a rational person to take the case to a jury trial.
The post-conviction court determined that “even if there were errors [by trial
counsel] . . . there [was] just no evidence that but for those errors, there would have been
a different outcome” and found that the Petitioner “fully understood what he was doing at
the plea acceptance hearing.” Accordingly, the post-conviction court entered a written
order denying relief. This timely appeal follows.
Analysis
On appeal, the Petitioner contends that trial counsel rendered ineffective assistance
of counsel by advising the Petitioner that the trial court would “most likely sentence him
to a total of [fifteen] years” and by failing to show the Petitioner the “audio and/or video”
portion of his discovery. The Petitioner further asserts that, due to trial counsel’s
ineffectiveness, his guilty pleas were involuntarily and unknowingly made. He contends
that he “may have chosen to take his cases to trial instead of pleading guilty” if he had
-7-
been able to view the video evidence and that he “may not have [pled] guilty” but for
counsel’s advice that he would likely receive a fifteen-year sentence. The State responds
that the post-conviction court properly denied relief.
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court’s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court’s
conclusions of law and application of the law to factual findings are reviewed de novo
with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015).
When reviewing the trial court’s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Fields, 40
[email protected]. Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved by the [post-conviction court].” Id. (citing Henley, 960 S.W.2d at
579); see also Kendrick, 454 [email protected].
Ineffective Assistance of Counsel
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 [email protected]. We will not second-guess a reasonable trial
-8-
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 [email protected]. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 [email protected].
Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 [email protected]. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
A substantially similar two-prong standard applies when the petitioner challenges
counsel’s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S.52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
at *4 (Tenn. Ct. Crim. App. April 26, 2012). First, the petitioner must show that his
counsel’s performance fell below the objective standards of reasonableness and
professional norms. See Hill, 474 U.S. at 58. Second, “in order to satisfy the ‘prejudice’
requirement, the [petitioner] must show that there is a reasonable probability that, but for
counsel’s errors, he would have not have pleaded guilty and would have insisted on going
to trial.” Id. at 59.
In this case, the post-conviction court accredited trial counsel’s testimony and
found that trial counsel never promised the Petitioner that he would receive a particular
sentence from the trial court. The record supports this finding as trial counsel denied that
he promised the Petitioner that he would receive no more than fifteen years in exchange
for his open guilty plea. Trial counsel testified that he told the Petitioner that he could
not predict what sentence the Petitioner would receive at a sentencing hearing.
Moreover, the record reflects that the trial court explained the concept of “pleading open”
to the Petitioner at length during the plea acceptance hearing; the Petitioner indicated that
he understood that he was pleading “open” and acknowledged that no one had made
promises to him about what was going to happen at the sentencing hearing. The record
-9-
does not preponderate against the post-conviction court’s factual findings, and the
Petitioner has failed to establish deficient performance on the part of trial counsel.
Regarding the audio and video recording, the post-conviction court found that the
Petitioner offered no evidence that the contents of the audio and video recording would
have helped his defense and that he would have proceeded to trial based on the recording.
A copy of the audio and video recording was not presented as evidence at the post-
conviction hearing. Trial counsel, whose testimony the post-conviction court accredited,
testified that it was his practice to bring his laptop to the jail in order to review audio and
video recordings with clients. Although he did not specifically recall watching the
recording with the Petitioner, he testified that he personally reviewed it and discussed the
contents with the Petitioner. The Petitioner has failed to establish both deficient
performance and prejudice based on this claim. He is not entitled to relief.
Unknowing Guilty Plea
When reviewing a guilty plea, this court looks to both the federal standard as
announced in the landmark case Boykin v. Alabama, 395 U.S. 238 (1969), and the state
standard as announced in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on
other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. P. 3(b). Don Allen Rodgers,
2012 WL 1478764, at *5. Under the federal standard, there must be an affirmative
showing that the plea was “intelligent and voluntary.” Boykin, 395 U.S. at 242.
Likewise, the Tennessee Supreme Court has held that “the record of acceptance of a
defendant’s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e. that he has been made aware of the significant
consequences of such a plea . . . .” Mackey, 553 [email protected]. “[A] plea is not
‘voluntary’ if it is the product of ‘[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).
In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:
[T]he relative intelligence of the defendant; degree of his familiarity
with criminal proceedings; whether he was represented by competent
counsel and had the opportunity to confer with counsel about the options
available to him; the extent of advice from counsel and the court
concerning the charges against him; and the reasons for his decision to
- 10 -
plead guilty, including a desire to avoid a greater penalty that might result
from a jury trial.
Blankenship, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244.
Statements made by a petitioner, his attorney, and the prosecutor during the plea
colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of
truth, and to overcome such presumption, a petitioner must present more than
“conculsory allegations unsupported by specifics.” Id. at 74.
In denying relief, the post-conviction court determined that the Petitioner
voluntarily entered the open plea, “fully understanding what it meant to plead open.” It
noted that the trial court “went over in minute, tedious detail what it mean[t] to enter into
an open plea,” and the Petitioner testified under oath at that hearing that “no one had
promised him anything about the outcome of the sentencing.” Additionally, the post-
conviction court determined that trial counsel timely provided discovery information to
the Petitioner so that the Petitioner could make an informed plea.
We agree with the post-conviction court that the Petitioner’s decision to plead
guilty was both voluntary and knowing. The record shows that the Petitioner had a high
school diploma and was well-acquainted with criminal proceedings based on his prior
criminal convictions. As previously determined, the Petitioner was represented by
competent counsel who conferred with the Petitioner about what was on the audio and
video recording and about the various options available to the Petitioner. Trial counsel
discussed the class and range of each count of the indictment and the possible sentences
that the Petitioner might receive. Trial counsel told the Petitioner that he could not
predict what sentence the Petitioner would receive at a sentencing hearing. At the plea
acceptance hearing, the Petitioner stated that he had no complaints about trial counsel’s
performance. Additionally, the trial court engaged in a lengthy plea colloquy with the
Petitioner, explaining the potential sentence for each of his charges based on potential
range classifications, and the trial court ensured that the Petitioner understood what it
meant to plead open. Under these circumstances, the Defendant is not entitled to relief.
- 11 -
Conclusion
For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
- 12 -
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Citation Nr: 0431283
Decision Date: 11/24/04 Archive Date: 11/29/04
DOCKET NO. 95-01 292 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for hypertension, to
include as secondary to service-connected post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Donnell R. Fullerton, Attorney
WITNESSES AT HEARINGS ON APPEAL
Appellant and a clinical psychologist
ATTORNEY FOR THE BOARD
J. L. Tiedeman
INTRODUCTION
The veteran served on active duty from July 1958 to September
1961.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
In June 1999, the Board denied service connection for PTSD
and hypertension. The veteran appealed to the United States
Court of Appeals for Veterans Claims (Court). The Court, in
a July 2001 order, granted the parties' separate motions for
remand, vacating the June 1999 Board decision and remanding
the case to provide the Board an opportunity to readjudicate
the claims under the Veterans Claims Assistance Act (VCAA).
In March 1997, the veteran testified before a Veterans Law
Judge who has since retired. The veteran requested another
hearing, and in August 2002, he and an expert witness
testified before the undersigned Veterans Law Judge.
In November 2002, the case came again before the Board, when
entitlement to service connection for PTSD was granted. With
respect to the hypertension claim currently on appeal, the
Board remanded the issue in July 2003 for additional
development. The requested development having been
accomplished, the case is again before the Board for
appellate adjudication.
FINDINGS OF FACT
1. The veteran's hypertension was not manifested during his
service or to a compensable degree within one year of his
separation from service.
2. The preponderance of the evidence is against the claim
that the veteran's hypertension was caused or aggravated by
his service or his service-connected PTSD.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated during the
veteran's active military service; may not be presumed to
have been incurred in service; and was not proximately due
to, the result of, or aggravated by service-connected PTSD.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5100 et. seq. (West
2002); 38 C.F.R. §§ 3.307, 3.309, 3.310 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA. There was a significant change in the law on November
9, 2000, at which time the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. Regulations implementing the VCAA are found
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
VA must notify the veteran of evidence and information
necessary to substantiate his claim and inform him whether he
or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In this regard, the veteran was notified of the evidence and
information necessary to substantiate his claim in the rating
decision dated in July 1993; the statement of the case dated
in September 1993; the supplemental statements of the case
dated in October 1994, September 1998, February 2004, and
June 2004; the Hearing Officer's decision dated in September
1994; the Board decision dated in June 1999; the Board
remands dated in June 1997 and July 2003; and the letter
dated in February 2004. These documents included a summary
of the evidence in the case; citation to pertinent laws and
regulations; and a discussion of how they affect the
decision. The RO clearly explained why the evidence was
insufficient under applicable law and regulations to grant
the benefit sought.
VCAA notice must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request the claimant
to provide any evidence in his or her possession that
pertains to the claim. The February 2004 letter specifically
invited the veteran to give VA any additional evidence he had
regarding the issue on appeal.
All the VCAA requires is that the duty to notify be
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). Here, because each of
the content requirements of a VCAA notice has been fully
satisfied, any error in not providing a single notice to the
veteran covering all content requirements is harmless error.
In claims for disability compensation the VCAA duty to assist
requires VA provide medical examinations or obtain medical
opinions when necessary for an adequate decision. The Board
notes that the available medical evidence is sufficient for
an adequate determination. Further, the veteran has not
identified any outstanding medical records. VA has obtained
a medical opinion with respect to the etiological question at
issue here. Additionally, the veteran has been afforded two
hearings before a Veterans Law Judge. Therefore, the Board
finds the duty to assist and duty to notify provisions of the
VCAA as to the issues addressed in this decision have been
fulfilled.
A VCAA notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (AOJ). The Board finds
that any defect with respect to the timing of the VCAA notice
requirement was harmless error. While the notice provided to
the veteran was not given prior to the first agency or
original jurisdiction (AOJ or RO) adjudication of the claim,
the notice was provided by the AOJ prior to the transfer and
certification of the veteran's case to the Board and notice
complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b). The issues on appeal were re-
adjudicated and a supplemental statements of the case was
provided to the veteran. The veteran has been provided every
opportunity to submit evidence and argument in support of his
claims, and to respond to VA notices. Therefore, to decide
the appeal would not be prejudicial error. See VAOPGCPREC 7-
2004 (July 16, 2004).
Legal Criteria. Service connection may be granted for
disability resulting from injury or disease incurred in or
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303. Service connection may also be granted when a claimed
disability is found to be proximately due to or the result of
a service-connected disability, or when aggravation of a
nonservice-connected disorder is found to be proximately due
to or the result of a service-connected disability. 38
C.F.R. 3.3 10(a); Harder v. Brown, 5 Vet. App. 183, 187
(1993).
To establish entitlement to service connection on a secondary
basis, there must be competent medical evidence of record
establishing that a current disability is proximately due to
or the result of a service-connected disability. Lathan v.
Brown, 7 Vet. App. 359, 365 (1995) (holding that if a claim
involves a question of medical causation, competent medical
evidence is required to establish a causal nexus).
Some chronic diseases are presumed to have been incurred in
service, although not otherwise established as such, if
manifested to a degree of ten percent or more within one year
of the date of separation from service. 38 U.S.C.A. §
1112(a)(1); 38 C.F.R. § 3.307(a)(3); see also 38 U.S.C.A. §
1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic
diseases, such as cardiovascular-renal disease).
In deciding a claim based on aggravation, after having
determined the presence of a preexisting condition, the Board
must first determine whether there has been any measured
worsening of the disability during service and then whether
this constitutes an increase in disability. See Browder v.
Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet.
App. 155, 163 (1993). Temporary or intermittent flare-ups of
the preexisting condition during service are not sufficient
to be considered aggravation unless the underlying condition,
as contrasted to symptoms, has worsened. Crowe v. Brown, 7
Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App.
292, 296-97 (1991).
Any additional impairment of earning capacity resulting from
an already service-connected condition, regardless of whether
or not the additional impairment is itself a separate disease
or injury caused by the service-connected condition, shall be
compensated. Thus when aggravation of a nonservice-connected
condition is proximately due to or the result of a service-
connected condition, such veteran shall be compensated for
the degree of disability (but only that degree) over and
above the degree of disability existing prior to the
aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995).
Factual Background. The veteran's July 1958 enlistment
examination reflects blood pressure readings of 130/80
sitting, 126/76 recumbent, and 130/80 standing. Service
medical records reveal that the veteran was hospitalized from
November 4, 1960, to November 23, 1960, with blood pressure
readings during that time of 150/80, 140/90, and what appears
to be 150/80. The discharge examination reveals a blood
pressure reading of 128/80, both sitting and standing. There
is no evidence in any of these documents that the veteran was
given a diagnosis of hypertension in service, or that he was
treated for the disorder while in service.
Following service, a November 1994 memorandum from W. J.
Bradley, III, M.D., notes that he had treated the veteran for
hypertension and abdominal pain since 1988. Dr. Bradley
added that both of these disorders were associated with
stress and were related to the veteran's emotional problems.
An undated statement from Dr. Bradley reads: "This is to
certify that [the veteran] suffers from anxiety,
gastrointestinal distress and arterial hypertension. This in
my opinion dates from his U. S. Coast Guard service."
The veteran testified at a Board hearing in March 1997 that
he had hypertension during service, referring specifically to
the in-service hospitalization report. He also stated that
he had been treated about 20 years ago by Dr. Bradley, who
had since died.
An October 1985 VA treatment record reflects a blood pressure
reading of 130/70, and a notation that the veteran was
"anxious." A June 1993 VA treatment record reflects the
first diagnosis of hypertension of record. More recent
treatment records confirm ongoing treatment for hypertension.
In August 2002, a psychologist, Dr. T. Fullerton, testified
at a hearing before the undersigned Veterans Law Judge. At
that time, Dr. Fullerton stated, in pertinent part:
There are a number of body systems
that actually are more reactive to
stress than others. Typically we see
people who have either gastro issues,
lower back pains and that when
stresses get higher, certain of these
people that different subsystems get
attacked for different people. Some
people it's a [gastrointestinal]
system, other people it's lower back
pain and so that appears to be the
link that is being suggested.
Dr. Fullerton further testified:
I think there is likely a causative
link between the psychiatric issues
aggravating his high blood pressure.
My opinion would be that that wasn't
the whole factor but that is actually
a contributing factor that his
psychiatric distress and his low
coping sources that he can be
relatively easily overwhelmed and he
gets overwhelmed and he keeps these
things in physiologically.
A January 2004 VA opinion regarding the etiology of the
veteran's hypertension has been associated with the claims
folder. It reads:
The veteran's claim folder and
service medical records have been
extensively reviewed. There is no
documented evidence of elevated
blood pressures during his service
tenure, nor is there any documented
incidences in his service medical
records that could contribute to
hypertension at a later date.
The veteran does, at the present
time, have a diagnosis of
hypertension and is currently being
treated by the VA for it.
Hypertension is a disease of unknown
etiology, but there are several
entities which are associated with
the onset of the disease. PTSD,
however, is not one of them.
Periods of stress as a result of
PTSD may temporarily raise blood
pressure readings, but do not
contribute to the cause or to the
worsening of the disease of
hypertension itself.
Analysis. Initially, the Board notes that the service
medical records do not show that the veteran had hypertension
in service. Likewise, post service medical records are
negative for the disorder for more than 30 years thereafter.
Although an undated statement from W. J. Bradley, M.D.,
indicates that the veteran's hypertension "dates from his U.
S Coast Guard service," the Board finds this opinion
unpersuasive in light of the lack of medical evidence to
support it. Indeed, there is no indication that Dr. Bradley
ever reviewed the veteran's claims folder, to include service
medical records. Further, the statement provides no
rationale for its conclusion. Moreover, this statement is
contradicted by the January 2004 VA opinion, which indicates
that, "there [are no] documented incidences in [the
veteran's] service medical records that could contribute to
hypertension at a later date." Based on the foregoing, the
Board finds that the preponderance of the evidence is against
the claim for service connection for hypertension on a direct
or a presumptive basis.
As noted previously, the veteran also has asserted that his
hypertension developed secondary to his service-connected
PTSD. In support of this contention are (1) another
statement from Dr. Bradley, and (2) the August 2002 testimony
of Dr. Fullerton. Specifically, in a November 1994
statement, Dr. Bradley indicated that the veteran's
hypertension and abdominal pain were "related to emotional
problems." Here again, however, there is no indication that
Dr. Bradley reviewed the claims file in connection with this
opinion, and no underlying rationale is provided. Moreover,
there is no indication that Dr. Bradley, who is currently
deceased, was a cardiovascular specialist. In August 2002,
Dr. Fullerton testified that the veteran's "psychiatric
issues" are a contributing factor to his hypertension.
However, the Board notes that Dr. Fullerton is a clinical
psychologist, not a medical doctor, and it is not reported
that he had reviewed the veteran's claims folder prior to
rendering this opinion.
On the other hand, the VA cardiovascular specialist provided
a detailed opinion, which indicated that PTSD is not a known
factor associated with the onset of hypertension. Further,
the physician stated that periods of stress as a result of
PTSD may temporarily raise blood pressure readings, but do
not contribute to the cause or to the worsening of the
disease of hypertension itself. The Board again finds the
opinion of the VA examiner to be most persuasive in this
case, as his opinions were based on complete review of the
medical file and on his experience in the field of
cardiology.
The Board has considered the written and oral testimony of
the veteran and his representative, who have asserted that
the veteran's hypertension is related to his service-
connected PTSD. However, both the veteran and his
representative are laypersons, and, as such, are not
competent to give an opinion requiring medical knowledge such
as involved in making diagnoses or explaining the etiology of
a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the claim, and that
service connection for hypertension, to include as secondary
to service-connected PTSD, must be denied. The Board has
considered the applicability of "benefit of the doubt"
doctrine; however, the record does not demonstrate an
approximate balance of positive and negative evidence as to
warrant the resolution of these matters on that basis. 38
U.S.C.A. § 5107(b).
ORDER
Service connection for hypertension, to include as secondary
to service-connected PTSD, is denied.
____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is +1-561-938-8983.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's [email protected].
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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Exhibit 10.34
GOVERNMENT OF PUERTO RICO
PUERTO RICO ELECTRIC POWER AUTHORITY
AMENDMENT NO. 5 TO EMERGENCY MASTER SERVICE AGREEMENT FOR PREPA’S ELECTRICAL
GRID REPAIRS - HURRICANE MARIA
APPEAR
AS FIRST PARTY: The Puerto Rico Electric Power Authority (PREPA), a public
corporation and government instrumentality of the Commonwealth of Puerto Rico,
created by Act 83 of May 2, 1941, as amended (“Act 83”), represented in this act
by its Executive Director, Justo Luis Gonzalez Torres, of legal age, married,
engineer and resident of Juana Díaz, Puerto Rico.
AS SECOND PARTY: Cobra Acquisitions LLC (Contractor), a limited liability
company organized and existing under the laws of the State of Delaware with a
place of business at 14201 Caliber Drive, Suite 300, Oklahoma City, Oklahoma
73134, herein represented by Arty Straehla, of legal age, married, and a
resident of Oklahoma City, Oklahoma.
WHEREAS: PREPA is authorized to enter into this agreement by virtue of Section
6(f) of Act 83.
WHEREAS: On October 19, 2017, PREPA and the Contractor entered into an Emergency
Master Service Agreement for PREPA’s Electrical Grid Repairs - Hurricane Maria
(the “Original Contract).
WHEREAS: PREPA and the Contractor executed an Amendment No. 1 to the Original
Contract dated November 1, 2017, an Amendment No. 2 to the Original Contract
dated as of December 8, 2017, an Amendment No. 3 to the Original Contract dated
December 21, 2017, an Amendment No. 4 to the Original Contract dated as of
January 28, 2018 (the Original Contract, as so amended, the “Contract”).
WHEREAS: The United States Army Corps of Engineers (USACE) has been the primary
procurement authority for materials necessary for the restoration of power in
Puerto Rico, whose procurement channels have faced increasing supply chain
pressures and whose procurements must comply with various U.S. laws and
regulations such as the Buy American Act (41 U.S.C. §§ 8301-8305).
WHEREAS: Various materials required for the restoration of power are only
readily available from foreign suppliers under contract with PREPA and who meet
PREPA’s specifications.
WHEREAS: Stateside response efforts and storm restoration requirements in places
such as Houston, TX and the State of Florida following Hurricanes Harvey and
Irma depleted materials from suppliers available to the USACE, and for these or
other supply chain constraints, have limited the availability of materials
through the USACE to
Puerto Rico.
WHEREAS: Contractor may have suppliers that can provide necessary materials at a
lower cost, or in a more expedient manner at a still reasonable cost, so as to
not further delay the restoration of desperately needed power to the people of
Puerto Rico.
WHEREAS: Hundreds of thousands of people in Puerto Rico are still without
electricity, likely requiring still months of restoration efforts, especially in
the hardest-to-service parts of the island.
WHEREAS: The valuable aid provided by the USACE may not last an indefinite
amount of time, and likely not until power is fully restored to pre-Hurricane
María levels.
WHEREAS: PREPA must be prepared and able to scale and maintain the necessary
level of effort to continue work at current levels should the USACE mission
assignment end, and along with it, its 1,000-plus contractors funding.
--------------------------------------------------------------------------------
Amendment No. 5 to Emergency Master Service Agreement for PREPA’S Electrical
Grid Repairs - Hurricane María
2
WHEREAS: PREPA requires a contract vehicle that provides relief of the
restoration effort’s material procurement constraints and allows PREPA the
flexibility to quickly scale its own restoration efforts should the need
present.
WHEREAS: PREPA and the Contractor agree that a further amendment to the Contract
is necessary.
WITNESSETH
In consideration of the mutual covenants hereinafter stated, the Parties agree
as follows:
TERMS AND CONDITIONS
1.
PREPA and the Contractor agree that Article 3 of the Original Contract is hereby
amended by striking the dollar amount of “$445,429,800 (Contract Amount)”
appearing on the seventh (7th) line of such article and replacing it with the
following dollar amount: “$945,429,800 (Contract Amount)”.
2.
PREPA and the Contractor agree that the first paragraph of Article 14 of the
Contract is hereby amended by striking the first paragraph thereof and replacing
it with the following:
“1)
Notwithstanding anything to the contrary in this Contract regarding its term,
PREPA may, at any moment, terminate, cancel or accelerate its expiration, after
giving the Contractor not less than thirty (30) days prior written notice, for
any or no reason, when in PREPA’s judgment such action responds to its best
interest. PREPA may terminate this Agreement immediately at any time in cases of
gross negligence by the Contractor upon written notice to Contractor specifying
such gross negligence.”
3.
Materials. The Parties agree that the Contractor may purchase and provide PREPA
with materials needed for the restoration work of the electrical system (the
“Materials”), subject to the following terms and conditions:
(a)
Prior to placing the order for any Materials, the Contractor shall provide to
PREPA a schedule of the costs of such Materials on a pass-through basis and the
cost for transportation, for final review and approval by PREPA. No purchases
shall be made by Contractor on behalf of PREPA except with prior written
authorization from PREPA;
(b)
All Materials will comply with specifications provided by PREPA.
(c)
All Material procurements by Contractor must comply with Federal regulations
under the Code of Federal Regulations Title 2 Sections 200.317 to 200.321,
200.326, 200.333 and Appendix II.
(d)
Contractor will complete all purchases in accordance with all Puerto Rico laws,
rules and regulations, including but not limited to Act 83, Regulation 8518
issued by PREPA, known as the Bid Regulation (Reglamento de Subastas), the
Procedure for Purchases by Request for Quotes or Offers Exempt from Formal Bid
Process (the “Procedures for Exempt Purchases”), and Chapter 500 of PREPA’s
Administrative Manual (Purchases), as applicable. As provided Act 83 and the Bid
Regulation, a bid process will not be required when, due to an emergency
situation, immediate delivery of certain materials is required. In such cases,
purchases shall be made by Contractor in accordance with the provisions of the
Procedures for Exempt Purchases. PREPA will provide written notice to the
Contractor when Procedures for Exempt Purchases is authorized.
(e)
PREPA will reimburse the Contractor for (i) the actual cost of the Materials on
a pass-through basis and (ii) transportation costs.
(f)
Any profit of Contractor on transportation of materials must not be calculated
on a “cost plus a percentage of cost” basis.
(g)
The Contractor will deliver the Materials to PREPA’s General Warehouse in Palo
Seco or any other location identified by PREPA in writing at the time the order
for the Materials is placed. All risk of loss of the Materials
--------------------------------------------------------------------------------
Amendment No. 5 to Emergency Master Service Agreement for PREPA’S Electrical
Grid Repairs - Hurricane María
3
will transfer to PREPA upon delivery to the location identified by PREPA. Title
shall pass to PREPA upon payment in full of all amounts due in connection with
the Materials.
(h)
The Contractor shall use its reasonable efforts to obtain the lowest prices
available, while considering manufacturers capacity and/or supplier ability to
meet the demand of the work schedules which may require procurement from
different manufacturers and suppliers.
(i)
For any Materials procured under Emergency Procedures, PREPA will certify that
each material procurement was necessary due to emergency or exigent
circumstances and complies with PREPA’s policies and regulations for emergency
procurement.
(j)
It is the responsibility of the Contractor to maintain records sufficient to
detail the history of procurement. These records will include, but are not
necessarily limited to the following: (i) rationale for the method of
procurement, (ii) rationale for the election of contract type, (iii) criteria
for contractor selection or rejection, (iv) basis for the contract price, (v)
documentation of reasonableness of the costs based on multiple quotations and/or
pricing solicitations whenever possible to support the costs claimed, (vi)
evidence provided by PREPA of emergency situations and immediate need for
materials to support that such purchase is exempt from a formal bid process, as
required under Act 83, (vii) other evidence of compliance with the applicable
purchasing procedures and (viii) any other documentation required by federal or
state law. Upon request by PREPA, Contractor shall deliver to PREPA a file
containing all documentation described herein.
(k)
For any Materials to be procured by the Contractor, PREPA shall review the
procurement and will provide certification regarding procurement compliance with
Section 15(b) (2) of Act No. 83 of May 2, 1941, as amended, PREPA’s internal
policies, and all required statutory and contractual provisions.
4.
The Contractor shall submit invoices for Materials separately from invoices for
other work performed under the Contract. All invoices will be delivered in
compliance with the provisions of Section 3 of the Contract, as amended.
5.
By signing below, the Contractor certifies that no other Federal, State or local
agencies, non-insurance agency or any other entity has paid or will pay
Contractor for Material costs paid to Contractor by PREPA.
6.
The Parties agree that the third paragraph of Article 3, Consideration, of the
Original Contract is hereby stricken and replaced with the following four
paragraphs:
“PREPA will review each invoice and if it is in compliance with the requirements
set forth in the Contract, PREPA will issue a preliminary recommendation
approving the invoice within seven (7) calendar days from when it is received.
If PREPA recommends preliminary approval, PREPA will pay an amount equal to 80%
of such invoice amount within three (3) calendar days of the approval. If PREPA
makes a preliminary recommendation of disapproval, PREPA will return the invoice
to the Contractor within three (3) calendar days with a written explanation for
such disapproval. Contractor shall have the right to resubmit for payment any
invoices that do not receive a preliminary recommendation of approval, and such
invoices will be processed in accordance with this paragraph.
PREPA will process for payment the remaining 20% of each invoice once the work
associated with that specific invoice has been completed by Contractor and
accepted by PREPA. PREPA will make commercially reasonable efforts to issue such
acceptance of work within 15 calendar days from when such invoice is received.
In any event, PREPA will either accept and make payment to Contractor or reject
such invoice within 30 calendar days from when it is received. If PREPA rejects
such invoice, PREPA will return the invoice to the Contractor within three (3)
calendar days with a written explanation for such rejection. Contractor shall
have the right to resubmit for payment any rejected invoice, and such invoices
will be processed in accordance with this paragraph. A finance charge of 1% per
month shall be due on payments received after the date due pursuant to the
schedule described above.
--------------------------------------------------------------------------------
Amendment No. 5 to Emergency Master Service Agreement for PREPA’S Electrical
Grid Repairs - Hurricane María
4
The Contractor further warrants that work for which Contractor has received
payments in full from PREPA shall be free and clear of liens, claims, security
interests or encumbrances in favor of the Contractor and its Subcontractors or
other persons or entities making a claim by reason of having provided labor,
materials and equipment relating to the work.
Payment for Materials and their Transportation
The Contractor shall submit the invoices of the Materials and their
transportation costs on or before delivery of, and PREPA’s receipt of, the
Materials to the location designated by PREPA at the time the order is placed.
The Contractor must submit with each invoice the evidence of payment (or terms
of payment indicating an obligation to pay) for the Materials and their
transportation. PREPA will review each invoice and if it is in compliance with
the schedule of Materials and their transportation as approved by PREPA, PREPA
shall pay such invoice within ten (10) calendar days from the date of delivery
of the Materials and the receipt of such by PREPA.
7.
PREPA hereby acknowledges and accepts that the Contractor has delivered to PREPA
the certifications required under Executive Orders OE-1991-24 and OE-1992-52 as
well as a copy of Contractor’s Certificate of Formation.
8.
PREPA hereby certifies that no public officer or employee of PREPA who has the
power to approve or authorize contracts has evaluated, considered, approved or
authorized any contract between PREPA and Contractor in which he/she or any
member of his/her family unit has or has had direct or indirect economic
interest during the last four (4) years prior to his/her holding office.
9.
The definition of “Contract” contained in Article 2, paragraph 3) of the
Original Contract is hereby amended by deleting therefrom the following text
inadvertently appearing on lines two and three thereof: “, which constitute an
amendment and supersedes to that contract entered into by the parties on
September 26, 2017,”
10.
PREPA shall not approve the purchase of any Materials under this Amendment until
this Amendment is properly registered in the Office of the Controller of the
Government of Puerto Rico.
11. The Contractor will neither increase nor decrease its total staffing
resources more than 10% from the level agreed to in Exhibit 1-B Contractor’s
Rate Schedule of 882 personnel without the written consent of PREPA.
12.
Employees not to Benefit: The Parties hereby declare that, to the best of their
knowledge, no public officer or employee of the Commonwealth of Puerto Rico, its
agencies, instrumentalities, public corporations or municipalities or employee
of the Legislative or Judicial branches of the Government has any direct or
indirect interest in the present Agreement. The Contractor certifies that
neither it nor any of its partners, directors, executives, officers, and
employees receives salary or any kind of compensation for the delivery of
regular services by appointment in any agency, instrumentality, public
corporation, or municipality of the Commonwealth of Puerto Rico.
13.
PREPA hereby certifies that this Amendment has been approved by the delegate of
the Governor of Puerto Rico, as required under Act 3-2017 and Office of the
Chief of Staff Memorandum No. 2017-001; Office of Management and Budget Circular
Letter 141-17.
14.
Except as set forth herein, the Contract remains in full force and effect in
accordance with its terms.
--------------------------------------------------------------------------------
Amendment No. 5 to Emergency Master Service Agreement for PREPA’S Electrical
Grid Repairs - Hurricane María
5
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on and
effective as of this 27th day of February, 2018.
Puerto Rico Electric Power Authority Cobra Acquisitions LLC
_/s/_Justo L. Gonzalez Torres /s/ Arty Straehla____________
Justo L. Gonzalez Torres Arty Straehla
Executive Director Chief Executive Officer
Employer Social Security XX-XXXXXXX Employer ID Number XX-XXXXXXX
/s/ Keith Ellison_____________
Keith Ellison
President, Cobra Acquisitions LLC
|
Citation Nr: 1040781
Decision Date: 10/29/10 Archive Date: 11/04/10
DOCKET NO. 06-22 060 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Douglas Massey, Counsel
INTRODUCTION
The Veteran served on active duty from April 1970 to December
1971.
This appeal to the Board of Veterans' Appeals (Board) is from a
June 2006 rating decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in Oakland, California.
As support for his claim, the Veteran testified at a hearing at
the RO in November 2008 before the undersigned Veterans Law Judge
of the Board, also referred to as a Travel Board hearing.
In February 2009, after deciding other claims that also were on
appeal (including increasing the rating for the Veteran's
posttraumatic stress disorder (PTSD) from 50 to 70 percent), the
Board remanded the remaining TDIU claim to the RO via the Appeals
Management Center (AMC) for further development - specifically,
to have him examined for a medical opinion concerning whether he
is unemployable due to his service-connected disabilities.
After receiving the file back from the AMC, the Board issued a
decision in January 2010 denying the claim for a TDIU. The
Veteran appealed to the U.S. Court of Appeals for Veterans Claims
(Court/CAVC). In an August 2010 order, granting a joint motion,
the Court vacated the Board's decision and remanded the claim to
the Board for further development and readjudication in
compliance with directives specified.
And to comply with the Court's order, the Board in turn is again
remanding the claim to the RO via the AMC.
REMAND
The Veteran alleges he has been unable to obtain or maintain
substantially gainful employment since January 2005, primarily
because of the severity of his service-connected PTSD. He claims
that, although he stopped working in January 2005 because of a
cervical spine injury at his civilian job, he nevertheless has
been unable to obtain another job during the years since that
injury because of the severity of his PTSD. He says he can no
longer drive a truck, which is the only job he is trained to do.
The PTSD, as mentioned, is rated as 70-percent disabling. The
Veteran's other service-connected disabilities are tinnitus,
rated as 10-percent disabling, bilateral hearing loss, rated as
zero-percent disabling (i.e., noncompensable), and malaria, also
rated as zero-percent disabling. Therefore, he satisfies the
threshold minimum rating requirements of § 4.16(a) for
consideration of a TDIU, that is, without having to resort to the
extra-schedular provisions of § 4.16(b).
The record shows the Veteran was employed at the U.S. Postal
Service for 18 years until he was terminated for misappropriating
funds. Thereafter, he worked for 2 years at a concrete company
before working as a truck driver for 10 years until injuring his
cervical spine at work in October 2004. According to VA Form 21-
4192, he was on temporary total disability at his company,
presumably as a result of that intercurrent work-related injury.
In a January 2006 letter, M.J.C., MSW, and J.R.B., MA, noted the
Veteran had "occupational difficulty/unemployable" due to his
PTSD and marital problems. Other letters signed by these
clinicians in June 2004 and April 2005 provide further evidence
of his occupational difficulties. Although he indicated during a
June 2007 VA examination that he was unemployed due to his work-
related cervical spine injury, he subsequently testified under
oath during his November 2008 hearing that he could no longer
work due to the severity of his service-connected PTSD,
irrespective of that cervical spine injury.
Consequently, the Board remanded the claim in February 2009 to
have the Veteran undergo VA examinations for medical opinions
concerning whether he is unable to secure or maintain
substantially gainful employment on account of his
service-connected disabilities. In remanding the claim for these
medical opinions, the Board directed the examiners to consider
the Veteran's ability (or inability) to work as a truck driver or
in other professions consistent with his level of education,
training, and experience. See Friscia v. Brown, 7 Vet. App. 294,
297 (1994) (indicating the Board may not reject a claim for a
TDIU without producing evidence, as distinguished from mere
conjecture, that the Veteran can perform work that would produce
sufficient income to be other than marginal).
Pursuant to that remand directive, the Veteran was afforded three
VA examinations to determine whether his service-connected
disabilities preclude him from securing or maintaining
substantially gainful employment. In particular, an infectious,
immune, nutritional disorders examination was performed in April
2009, a psychiatric examination also in April 2009, and an
audiology examination in May 2009. Unfortunately, as pointed out
in the joint motion, these examinations did not substantially
comply with the Board's February 2009 remand directive for two
reasons. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008).
First, the Board instructed that the examiners must consider the
Veteran's ability to work "consistent with his level of
education, training, and experience." However, none of the
three examiners considered his level of education when commenting
on his ability to secure or maintain substantially gainful
employment in light of his service-connected disabilities. And
second, the examiner who conducted the audiology examination did
not comment at all on the Veteran's ability to secure or maintain
substantially gainful employment in light of his service-
connected hearing loss and tinnitus.
Therefore, another remand is required for compliance with this
prior remand directive. See Stegall v. West, 11 Vet. App. 268,
270 (1998) (holding that a remand by the Board imposes upon the
Secretary of VA a concomitant duty to ensure compliance with the
terms of the remand). But see, too, Dyment v. West, 13 Vet. App.
141, 146-47 (1999) (clarifying that there need only be
substantial, not exact, compliance with a remand directive).
Accordingly, the TDIU claim is again REMANDED for the following
additional development and consideration:
1. Schedule the Veteran for appropriate VA
examinations for additional medical comment
on the effect of his service-connected
disabilities on his employability.
The claims file, including a complete copy of
this remand and the joint motion, must be
made available to the examiners for their
consideration.
Based on their examination findings and other
evidence contained in the claims file, the
examiners must offer an opinion as to the
likelihood (very likely, as likely as not,
or unlikely) the Veteran is unable to obtain
or maintain substantially gainful employment
solely as a result of the combination of his
service-connected disabilities, which are:
(1) PTSD - rated as 70-percent disabling;
(2) tinnitus - rated as 10-percent
disabling; (3) bilateral hearing loss - 0
percent; and (4) residuals of malaria - also
0 percent.
In particular, the examiners must consider
the Veteran's ability (or inability) to work
as a truck driver or in other professions
consistent with his level of education,
training, and experience. Consider also
whether he is only employable under certain
circumstances, such as if only allowed
certain accommodations or other special
considerations. Additionally, if it is
determined he is indeed incapable of
obtaining or retaining substantially gainful
employment within these parameters,
the examiner should estimate and state the
approximate date of onset of this total
occupational impairment.
It is imperative the examiners discuss the
rationale of the opinions, whether favorable
or unfavorable, if necessary citing to
evidence in the record and addressing the
specific concerns raised in the August 2010
joint motion.
2. Then readjudicate the TDIU claim in light
of the additional evidence and addressing the
specific concerns raised in the August 2010
joint motion. If this claim is not granted
to the Veteran's satisfaction, send him and
his representative a Supplemental Statement
of the Case and give them an opportunity to
submit additional evidence and/or argument in
response before returning the file to the
Board for further appellate review.
The Veteran has the right to submit additional evidence and
argument concerning the claim 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. 2009).
_________________________________________________
KEITH W. ALLEN
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) (2009).
|
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------X
: 5/4/2021
JOEL SCHMIDT, :
as father and natural guardian of Benjamin A. :
Schmidt, a minor :
Plaintiff, : 20-CV-3003 (VSB)
:
-against- : ORDER AND NOTICE OF
: INITIAL CONFERENCE
UNITED STATE OF AMERICA, :
:
Defendant. :
--------------------------------------------------------- X
VERNON S. BRODERICK, United States District Judge:
This case has been assigned to me for all purposes. It is hereby:
ORDERED that, in light of the public health crisis, the Court will not be holding an
initial pretrial conference.
IT IS FURTHER ORDERED that, by May 18, 2021, the parties submit a joint letter, not
to exceed three (3) pages, providing the following information in separate paragraphs:
1. A brief description of the nature of the action and the principal defenses
thereto;
2. A brief explanation of why jurisdiction and venue lie in this Court. If any
party is a corporation, the letter shall state both the place of incorporation
and the principal place of business. If any party is a partnership, limited
partnership, limited liability company or trust, the letter shall state the
citizenship of each of the entity’s members, shareholders, partners and/or
trustees;
3. A brief description of all contemplated and/or outstanding motions;
4. A brief description of any discovery that has already taken place, and/or
that which will be necessary for the parties to engage in meaningful
settlement negotiations;
5. A brief description of prior settlement discussions (without disclosing the
parties’ offers or settlement positions) and the prospect of settlement;
6. The estimated length of trial; and
7. Any other information that the parties believe may assist the Court in
advancing the case to settlement or trial, including, but not limited to, a
description of any dispositive issue or novel issue raised by the case.
IT IS FURTHER ORDERED that the parties also jointly submit to the Court a proposed
case management plan and scheduling order. A template for the order is available at
http://nysd.uscourts.gov/judge/Broderick. The status letter and the proposed case management
plan should be filed electronically on ECF, consistent with Section 13.1 of the Court’s Electronic
Case Filing (ECF) Rules & Instructions, available at https://nysd.uscourts.gov/rules/ecf-related-
instructions.
SO ORDERED.
Dated: May 4, 2021
New York, New York
______________________
Vernon S. Broderick
United States District Judge
2
|
1 Reported in 236 N.W. 319.
Defendant corporation appealed from a judgment entered against it for $13,496.
The present important portion of a contract between plaintiff, the respondent herein, and appellant, arising out of a lengthy state of facts relating to a farm, is this:
"And thereafter [respondent] to give a quitclaim deed of said premises to said John A. Albinson Lumber Company [appellant] and take a mortgage back for whatever balance remains unpaid to him."
At that time the balance had reference to an indebtedness due respondent evidenced by the personal note of John A. Albinson and secured by a second mortgage on the farm. When the time came to perform the contract appellant was willing "to give the mortgage back" but refused to execute a promissory note to be secured by the mortgage, claiming that the agreement was that the mortgage was to secure the personal note of John A. Albinson, who was willing to give the note. Respondent insisted upon the note of the appellant. This action followed.
The complaint sought reformation of the contract to show that it was the note of appellant which the mortgage was to secure; that respondent have a lien on the farm and that it be foreclosed; and *Page 284
that respondent have personal judgment against appellant. The court did not reform the contract but directed the entry of the personal judgment.
1. A mortgage, as stated in 1 Jones, Mortgages (8 ed.) § 17, is best defined by saying it is a mortgage. The authorities seem to agree that it is a conveyance of an estate as security for the payment of a debt and to become void upon the payment of it. It was said in Dahl v. Pross, 6 Minn. 38 (89) that a mortgage is given by the owner or the holder of the legal title of property, to secure (ordinarily) his contract to pay money. A covenant therein to pay the debt is usual, but such is not an essential. Van Brunt v. Mismer, 8 Minn. 202 (232). It is only necessary that there be a debt or a duty to be performed. There are ordinarily two real requisites of a mortgage, viz. (1) a conveyance of land and (2) security. This usually involves a debt; but not necessarily the mortgagor's debt. His personal obligation is not an essential; that may be specifically excluded. The mortgage may be given to secure the debt of a third person; or the mortgagee may rely wholly upon the security.
2. Of course the written contract cannot be changed by parol evidence, but parol evidence is sometimes permissible in aid of construction. It is permissible where there is equivocation. Here the sentence including the words "to take a mortgage back" is equivocal in relation to whose note is to be secured. It is not necessarily certain as to whose note is to be so secured by the mortgage. The language used would be applicable whether the parties intended the mortgage to secure the note of appellant or the note of John A. Albinson. Hence the statements of the parties may be proved by parol to ascertain their intentions. Pfeifer v. National L. S. Ins. Co. 62 Minn. 536, 64 N.W. 1018; 2 Dunnell, Minn. Dig. (2 ed.) §§ 3397-3398; Klueter v. Joseph Schlitz Brg. Co. 143 Wis. 347, 128 N.W. 43,32 L.R.A.(N.S.) 383; Osterberg v. Section 30 Development Co. 160 Minn. 497,200 N.W. 738. See Cargill Comm. Co. v. Swartwood, 159 Minn. 1,198 N.W. 536.
Parol evidence is also permissible for the purpose of ascertaining the subject matter and the viewpoint of the parties in relation *Page 285
thereto. In order to ascertain the intention of the parties it is important to know the circumstances under which the words were used, and what was the object, appearing from the circumstances, which the parties then had in mind. Such evidence is admissible to identify the subject matter, that is, to apply the language of the instrument to the subject matter; and for the purpose of explaining away any uncertainty arising from such application. 2 Dunnell, Minn. Dig. (2 ed. Supp.) §§ 3400, 3402, 3403 and 3407. The identity of the note to be secured by appellant's mortgage was a part of the subject matter. If the meaning of the contract, either in its literal sense or as applied to the facts, is obscure, oral evidence may be received in aid of applying the contract to the subject matter. Klueter v. Joseph Schlitz Brg. Co. 143 Wis. 347,128 N.W. 43, 32 L.R.A.(N.S.) 383.
The pleadings put in issue the identity of the note to be secured, and the court under the rules of law stated properly received parol evidence as to statements of the parties as to whose note was to be secured. Defendants called two witnesses who testified that the talk was that Mr. Albinson was to give his personal note which was to be secured by the mortgage. The agent who represented the plaintiff in the transaction testified that there was no such talk. There were circumstances tending to corroborate both sides. The evidence sustains the court's determination of the issue in favor of the respondent.
3. An assignment of error is based upon a finding that the respondent tendered a performance of the contract, tendering a quitclaim deed and demanding the execution of a note and mortgage for $10,219.22 and demanded a cash payment of $1,572.38 as accrued interest and $128.33 taxes with accrued penalty. Judgment was apparently entered accordingly with additional interest.
Under the terms of the agreement respondent was not entitled to a cash payment of the interest. It was to be included in the mortgage. But appellant's refusal to perform was not because of this unauthorized demand for cash; nor did it defend on that ground. In view of this situation, together with the determination *Page 286
that appellant was required by the contract to give its own note, this unauthorized demand for cash cannot now be the basis for reversible error.
4. Appellant also assigns as error a finding that by virtue of the agreement it agreed to pay all interest due on plaintiff's second $11,400 mortgage, with taxes and interest on the first mortgage for $10,000. Under the terms of the contract appellant agreed to "advance and pay" the respondent from time to time until May 29, 1927, the interest on the first mortgage and the taxes as they should from time to time become due and payable. The finding seems to have gone beyond appellant's contractual obligation and was error, but we cannot determine from the record the consequences of this error. It is possible that the personal judgment should be for a smaller amount. Yet in view of the conclusion that appellant is to be held personally liable for the amount due on respondent's second mortgage, we cannot say that the error was prejudicial. Respondent was probably in a position to require payment of the interest on the first mortgage as well as the taxes before determining the correct amount for which the appellant was to give a mortgage. If not, the appellant has failed to make clear the alleged prejudicial error.
Affirmed. |
This was an action for damages for personal injuries brought by Samuel Jackson against the Chicago, Rock Island Pacific Railway Company. The cause is conceded by all parties to be brought under and to be governed by the provisions of the federal Employers' Liability Act. There is little or no conflict in those portions of the testimony material to a decision here. It appears that the plaintiff was one of a number of men engaged in loading rails upon a flat car. There were about *Page 147
80 of these rails. Four or five of them were more or less bent or crooked. These crooked rails were loaded last. The method of loading was that stakes were placed at the west end and also upon the farther side of the car. Plaintiff and his fellow workmen then lifted the rail and placed the end behind the stakes on the west end of the car, and then threw the east end upon the car. When one of the crooked rails was so thrown, it bounded back and injured one of the muscles of plaintiff's leg. The negligence alleged is that no stake was placed at the east end of the car to prevent the rail from falling back and off the car. There was evidence that the method employed in loading these rails was the usual and customary method employed in this section. There was no evidence that the placing of a stake at the east end of the car would make such work more safe. We are asked by the defendant in error to say from common knowledge and experience that a stake at both ends of the car would constitute a safer method of loading than that employed in the instant case. Doubtless such a stake would have probably prevented this particular injury, but whether placing a stake at each end of the car would render loading rails from the side generally more safe is an entirely different question. Obviously in loading from the side of the car — and there is no evidence that any other place of loading was available or more safe, if available — one end of the rail would be shoved behind the stake at one end of the car, but the same could not be true when the other end was loaded. There, if a stake be placed at both ends of the car, the rail must necessarily be lifted up and over the stake, and in handling heavy steel rails we are not at all sure that such method might not be fraught with more danger than the one here employed. Assuming, however, without deciding, that there was evidence to sustain the jury's finding of negligence, it seems the plaintiff must fail upon another ground. It appears from all the testimony that plaintiff was a man of mature years; that he had worked as a section hand, taking up and laying rails upon the Cotton Belt Railway, and upon the Rock Island, and for other roads in other kinds of railway work; that he knew that the rails they were loading might fall back. Plaintiff testified:
"Q. But you yourself knew they were liable to fall back and you were guarding against that? A. Yes, sir."
If it were negligence to fail to provide a stake at the east end of the car, that fact was as open and obvious to the plaintiff as to any one else. Clearly from his own testimony he knew that the rails might fall back and injure him. He knew and appreciated the risk arising from the alleged negligence, and, knowing it, went ahead with the work without protest. Nothing could more clearly establish the defense of assumption of the risk as known at common law. This defense comprehends, not only the assumption of the risks ordinarily incident to the employment but also the risks arising from the master's negligence in providing, a safe place to work after the —
"employe becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. * * * When the employe does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employe assumes the risk, even though it arise out of the master's breach of duty." Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 Cow. C. A 477, 63 L. R. A. 551; Gila Valley G. N. R. Co. v. Hall, 232 U.S. 94, 34 Sup. Ct. 229. 58 L. Ed. 521, and cases cited.
This cause being brought under the federal Employers' Liability Act, and there being no contention that the failure to provide the stake was a violation of the Safety Appliance Act, or any other federal statute, "enacted for the safety of employes" the defense of assumption of the risk as it existed at common law was open to the carrier. 35 U.S. Stat. at L. P. 65; Seaboard Air Line v. Horton, supra; St. L. S. F. R. Co. v. Snowden, 48 Okla. 115, 149 P. 1083; Southern R. Co. v. Crockett, 234 U.S. 725, 34 Sup. Ct. 897, 58 L Ed. 1564.
Whatever may be the apparent force of the contention that the provision of the Oklahoma Constitution (Const. art. 23, sec. 6), requiring the submission of the defense of assumption of the risk as a question of fact to the jury, applies to cases such as the present one, upon the theory that the right to the defense is preserved under such provision, and only the method of determining it varied thereby, and of the reasoning by analogy from the decision in Minn. St. L. R. Co. V. Bombolis,241 U.S. 211, 36 Sup. Ct. 595, 60 L. Ed. 961, and of St. L.
S. F. R. Co. v. Brown. 241 U.S. 223, 36 Sup. Ct. 602, 60 L. Ed. 966, the decision of this court in St. L. S. F. R. Co. v. Snowden, supra, is conclusive that these provisions cannot affect a suit brought under the federal statute, upon the ground that if the defense *Page 148
permitted is "that of the common law" (St. L. S. F. R. Co. v. Snowden, supra), then in cases where the evidence is undisputed and the circumstances permit of but one conclusion, the question must be decided by the court as a matter of law, and not by the jury as a matter of fact, since such is the common law, and such must be the result in our courts in these cases where the federal act creating the liability likewise allows the common-law defense (St. L. S. F. R. Co. v. Snowden, supra; Toledo, S. L. W. R. Co. v. Slavin, 236 U.S. 454, 35 Sup. Ct. 306, 59 L. Ed. 671; So. Pac. v. Seley, 152 U.S. 145, 14 Sup. Ct. 530. 38 L. Ed. 391; Burke v. Union Coal Co., 157 Fed. 178, 84 Cow. C. A. 626; 26 Cyc. 1479, and cases cited).
In this cause the court submitted the question of assumption of the risk to the jury. The plaintiff's evidence clearly established the defense. Under the doctrine of the Snowden Case the cause ought not to have been submitted to the jury. Having been submitted, it was error to sustain a verdict for the plaintiff.
For the reasons given, the cause is reversed, for further proceedings not inconsistent with this opinion.
By the Court: It is so ordered. |
Case 16-20092-jrs Doc 36-1 Filed 02/14/19 Entered 02/14/19 14:58:34 Desc
Application for Trustee Compensation Page 1 of 4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
In Re: Case No.: 16-20092-JRS
NANCY GODWIN HAMBY, Chapter: 7
Debtor(s) Honorable JAMES R. SACCA
Field 223
FINAL APPLICATION OF TRUSTEE FOR COMPENSATION
COMES NOW, Albert F. Nasuti, Chapter 7 Trustee, pursuant to 11 U.S.C. §330, and
respectfully shows that the assets of this estate have been liquidated, and the Trustee had
$39,807.59 for disbursement to creditors during his tenure as the Chapter 7 Trustee. The
statutory fee is calculated on the amount of $19,060.59, representing total funds brought into the
estate in the amount of $39,807.59, less the Debtor's allowed and claimed exemption of
$20,747.00.
In the administration of said estate, the Trustee has performed those services required by
a Trustee within the time frame of March 26, 2018 and December 21, 2018.
The Trustee believes his services to be reasonable in the amount of $14,178.50. The
statutory allowance is $2,656.06. The Trustee has not previously received any compensation.
The Trustee has not in any form or guise agreed to share the compensation for such
services with any person not contributing thereto, or to share in the compensation of any person
rendering services in this proceeding to which services applicant has not contributed (other than
a law partner or forwarding Attorney at Law). Your applicant has not entered into any
agreement, written or oral, express or implied, with any other party in interest or any attorney of
any other party in interest in this proceeding for the purpose of fixing the amount of the fees or
other compensation to be paid to any party in interest, or any attorney of any party in interest
herein for services rendered in connection therewith.
Case 16-20092-jrs Doc 36-1 Filed 02/14/19 Entered 02/14/19 14:58:34 Desc
Application for Trustee Compensation Page 2 of 4
The Trustee has advanced the following expenses properly chargeable to the estate, none
of which have been repaid, and for which the Trustee requests reimbursement:
Xerox copies $18.30
Mileage $87.58
Postage (Actual) $39.53
TOTAL $145.41
WHEREFORE, Albert F. Nasuti, the Chapter 7 Trustee, respectfully moves this Court for
the entry of an Order allowing compensation for the Chapter 7 fees in the amount of $2,656.06,
reimbursement of expenses in the amount of $145.41, and any other relief the Court may deem
appropriate.
Dated this 21th day of December, 2018.
/s/ Albert Nasuti
Albert F. Nasuti, Chapter 7 Trustee
Georgia Bar No. 535209
Thompson, O'Brien, Kemp & Nasuti, P.C.
40 Technology Parkway South, Suite 300
Peachtree Corners, GA 30092
Tel: 432-232-4221
[email protected]
Case 16-20092-jrs Doc 36-1 Filed 02/14/19 Entered 02/14/19 14:58:34 Desc
Application for Trustee Compensation Page 3 of 4
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
IN RE: ) CASE NO.: 16-20092-JRS
)
NANCY GODWIN HAMBY, ) CHAPTER 7
)
Debtor ) HONORABLE JAMES R. SACCA
CASE NARRATIVE
NOW COME, Albert F. Nasuti, Chapter 7 Trustee and Thompson, O’Brien, Kemp &
Nasuti, P.C., as Counsel for the Chapter 7 Trustee, and hereby file the following Case Narrative
to accompany the Trustee’s Application for Compensation and the Attorney for Trustee’s
Application for Compensation, and show the Court as follows:
The case was filed as a Chapter 7 on January 15, 2016. The Trustee reviewed the petition
and schedules and conducted the §341 meeting of creditors. The Trustee filed a No Distribution
Report on February 23, 2016. The Debtor was discharged and the clerk closed the case on May
4, 2016.
In late 2017, the Trustee was contacted by an attorney representing the first priority
mortgage holder on the Debtor’s former residence who advised that there was an overage from a
foreclosure sale of the Debtor’s real property. The attorney sought guidance on who was entitled
to the overage funds. The Trustee then reviewed the situation on the funds, only to determine
that the Debtor’s estranged husband (a co-owner of the subject real property) had filed his own
Chapter 7 case No. 16-73195-pmb, In Re David Lee Hamby, and it appeared his estate or
Trustee may also hold a claim to the overage funds.
The Trustee then communicated with the attorneys for the first mortgage holder, the
second mortgage holder, and the Trustee for David Lee Hamby, Kyle Cooper. While the parties
attempted to sort out rights to the overage, the U.S. Trustee was notified and a request was made
to reopen the case. On January 25, 2018, a Motion to Reopen the case was filed and a hearing
was scheduled for March 8, 2018. The Court held a hearing on the motion and after hearing from
the Chapter 7 Trustee, reopened the case by order entered March 19, 2018 (Docket No. 18). The
Court also reopened David Lee Hamby’s case.
Case 16-20092-jrs Doc 36-1 Filed 02/14/19 Entered 02/14/19 14:58:34 Desc
Application for Trustee Compensation Page 4 of 4
Once the respective cases were reopened the Trustee obtained a claims bar date while
concurrently protecting the estate’s interest in the funds overage 1. The Trustee also obtained
approval to pay the Debtor’s claimed exemption in the funds. The Trustee reviewed and
liquidated all claims. The Trustee filed all required tax returns and obtained a §505 (b) tax
clearance.
The Trustee is now closing the case and paying a dividend to creditors. The Trustee
shows that all actions taken were necessary and proper and were in compliance with his statutory
duties.
Respectfully submitted this 21st day of December, 2018.
/s/ Albert Nasuti
__________________________________
Albert F. Nasuti, Chapter 7 Trustee
Georgia State Bar No. 535209
Thompson, O’Brien, Kemp & Nasuti, PC
40 Technology Parkway South, Suite 300
Peachtree Corners, Georgia 30092
Tel: 432-232-4221
1
The Debtors in both cases were subject to a Superior Court divorce order which created rights in the overage funds
and obligations to pay certain debts, which conflicted with what their respective rights may be under bankruptcy
law. As a result, the two Trustees communicated extensively and exchanged various positions on rights to the funds,
including how to deal with the mortgage holders (first and second mortgage holders) making claims to the funds.
The Trustees ultimately split the funds evenly between the two estates.
|
Certiorari brought by Rose M. Robst against the Board of Appeals of the city of Wauwatosa to review an order of said board made under a zoning ordinance. From the portion of an order permitting amendment of the petition and from an order denying a motion to supersede the writ granted upon the amended petition the defendants appeal. The facts are stated in the opinion.
The petition of plaintiff alleges that the city of Wauwatosa has a zoning ordinance which establishes a "B" district in which no more than duplex apartments are permitted. The ordinance also provides that the lawful use of a building existing at the time of the enactment of the ordinance may be continued although such use does not conform to the ordinance, but that such nonconforming use may not be extended. The plaintiff owns a building located in district "B." The building inspector of the city, pursuant to terms of the ordinance, gave notice to the plaintiff reciting that her building was occupied by five families and ordered that she change the use of the building so, that it would comply with the ordinance. In compliance with the statute, sec. 62.23 (7) (e) 4, Stats., the plaintiff appealed the order of the inspector to the Board of Appeals. The board on hearing upheld the action of the inspector. Sec. 62.23 (7) (e) 10, Stats. 1941, provides that any person aggrieved by any decision of the Board of Appeals may present to a court of record a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the ground of illegality, which petition shall be "presented to the court" within thirty days after the filing of the decision in the office of the Board of Appeals. Div. 11 of said par. (e) further provides that in such presentation the court may allow a writ of certiorari "directed to the board of appeals," and par. 13 that upon the hearing on the return to the *Page 191
writ the court may receive evidence and decide the issue upon the return and such evidence as is received by the court.
The petition named the building inspector, whose order was reviewed by the board, and the board, but did not name the individual members of the board. The plaintiff presented her petition to the court within the thirty-day period, and the court within that period issued its writ of certiorari addressed in the name of the state and directed to the building inspector by name and to the Board of Appeals without naming its members. The building inspector moved to supersede this writ on the specified grounds that it was "not issued in the name of the state" and that it "was misdirected."
This motion was heard on November 28th, which was more than thirty days after the filing of the order of the Board of Appeals. The court made an order superseding the writ which recited that "it appearing that said writ was not issued in the name of the state of Wisconsin and was wrongly directed, and should have been directed to the individual members of the board." The court also of its own motion provided in the order that the plaintiff have five days within which "to amend her petition and name the individual members of the Board of Appeals." The plaintiff amended her petition in conformity with this order, and on the amended petition the court issued a second writ of certiorari directed to the individual members of the board. The board moved to supersede this writ on the specified grounds that the court had no jurisdiction of the person of the defendants or the subject of the action; that the action was not commenced within the time limited by law; that the petition did not state facts sufficient to constitute a cause of action; and that the writ was misdirected. The court denied this motion.
The questions raised are stated by the appellants in their brief substantially and in the order as below stated and numbered. *Page 192
(1) Did the court have jurisdiction to issue the second writ on the amended petition?
The first writ was superseded on the ground that it was misdirected. Under State ex rel. Flint v. Fond du Lac,42 Wis. 287, that writ was properly directed. That case wascertiorari to review proceedings of the common council of the city. The affidavit on which the writ in the Flint Case
was issued, corresponding to the "petition" in the instant case, was entitled "The state of Wisconsin on the relation of Robert Flint against the common council of Fond du Lac." Nowhere in the affidavit are the persons constituting the common council, or any of them, named. The writ was addressed: "The state of Wisconsin to the common council of the city Fond du Lac." Motion was made to "dismiss" the writ and all proceedings on the ground among others that "the writ is [was] directed to the common council of the city of Fond du Lac, and the common council has no capacity to sue or be sued." The motion was denied by the trial court. The opinion of this court states, page 294:
"The objection that the writ of certiorari was improperly directed to the common council . . . is untenable. It was the acts and proceedings of the common council . . . which were sought to be reviewed. The common council, under the city charter, is a permanent body; has the legal control of all its records and papers; appoints the city clerk; and could therefore make return to the writ."
The petition as originally presented contained all statements required by the statute on which the proceeding is based, sec.62.23 (7) (e) 10, Stats. 1941. It was therefore sufficient to support the original writ, and was thus sufficient in itself to support the second writ also. It is true that the original writ was superseded by an order of the court. But the petition remained and as it was sufficient in itself to support the first writ although it did not contain the names of the members of the board it was also sufficient to support the second writ when *Page 193
those names were added. The court therefore, had jurisdiction to issue that writ.
That the original petition was sufficient need not rest alone on the Flint Case, supra. Examination of the printed cases on file in this court in over twenty-five cases of certiorari ormandamus running to county boards discloses that the members of such boards were not named in either petition or writ. At least one of the county boards of the state comprises over eighty members. It would be entirely useless to name in either petition or writ such a list of members. All that should be reasonably necessary to bring up a record to be reviewed in absence of express statutory provision is to deliver demand therefor to such officer as will pursuant to performance of official duty cause the record to be produced. This is manifest from the fact that the statute, sec. 252.04, Stats., now provides that a writ of certiorari to bring up the record of a county, town, or village, or school board, or city council shall run to the clerk thereof. Prior to the incorporation of this provision in the statute a writ of certiorari addressed to a board and served upon its chairman was sufficient to cause return of the board's record. There then being no statutory provision expressly providing upon whom a writ directed to one of the bodies next above named should be served, such service as was reasonably adequate to cause the record to be produced was sufficient. By analogy the service of the instant original writ upon the chairman of the defendant appeal board, as the record shows here was done, was sufficient.
The twenty-five cases above referred to in which the printed cases were examined to check up on the prevailing practice were nearly all brought before the amendment of sec. 252.04, Stats., providing for direction of writs of certiorari to the clerks of the bodies named in the statute. The case last brought prior to the amendment is State ex rel. Ollinger v. Manitowoc,92 Wis. 546, 66 N.W. 702. It is stated in the opinion of that case, page 548, that the writ of certiorari "should be directed *Page 194
to the officers or board whose act it was sought to review, whenever that is a permanent body and has control of its own records." It is said, page 549: "The writ . . . should have been directed to the county board of supervisors of Manitowoc county." And again it is there said: "The writ should have been directed to the board of supervisors."
It is true that it is said in State ex rel. Graff v. Everett,103 Wis. 269, 79 N.W. 421, and State ex rel. Kulike v. TownClerk, 132 Wis. 103, 105, 111 N.W. 1129, that the writ should have been issued to members of the town board. But whether it should have been so issued was not involved and the case does not reach the point that a writ addressed to the town board as such is sufficient. It is likewise true that the point that the writ might be addressed to either the board or its members was not directly involved in the Ollinger Case,supra., but the latter seems to announce the correct practice as disclosed by the great majority of cases in this court. Since. the Everett and Kulike Cases, supra, pronouncements in nearly all cases to review actions of boards the petitions and writs have named the individual members. But in Stateex rel. Sheboygan v. Sheboygan County, 194 Wis. 456,216 N.W. 144, certiorari to the county board and the county clerk, the members of the board were not named in the petition, and the writ ran to the board and not its members and the county clerk, and the return was signed by the chairman of the board and the clerk. And in State ex rel. Johnson v. County Boards,167 Wis. 417, 167 N.W. 822, mandamus to compel action by county boards, the writ ran to the county boards. Neither petition nor writ named the members of the boards. The cases involving the bodies now named in the statute cited are now expressly governed thereby, but we consider that the practice in cases involving other municipal boards established pursuant to statute, which are of a permanent nature, as distinguished from boards of review which complete a particular assignment of work and then adjourn sine die, the writ of *Page 195 certiorari to review their action may run, as stated in theOllinger Case, supra, either to "the board or its member." A writ to review the proceedings of a tribunal no longer in existence must go to the officer having charge of its records.State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N.W. 188.
(2) Was the action commenced within the thirty days limited by sec. 62.23 (7) (e) 10, Stats., for presenting the petition to the court?
The question here stated seems to have been based on the idea that the time of commencing the action is fixed by the issuing of the writ. This is an incorrect concept. Under the instant statute the action was commenced when the plaintiff presented the original petition to the court. The plaintiff presented her petition within the thirty days' period and that is all the statute required. That being done, the court could issue its writ when it got ready.
(3) Does the amended petition state facts sufficient to constitute a cause of action, (a) under sec. 62.23 (7) (h), Stats., prohibiting extension of nonconforming uses, and (b) because of failure to properly plead the zoning ordinance?
(a) The petition states that before the enacting of the zoning ordinance the plaintiff had, (1) "opened an apartment house upon said [the] premises [in suit] with three apartments therein and made improvements upon said premises fitting it for an apartment house and has ever since maintained an apartment house therein for the accommodation of no less than three apartments and tenants." The petition also states, (2) "that at the time said [zoning] ordinance was adopted your petitioner had been, for months, conducting apartments therein numbered, at said location in one building and has never abandoned the keeping and operating of three apartments in said building at said location." The petition further states, (3) "that at the time the said ordinance was first passed and long prior thereto said premises were used there as apartments for at least three families and such use *Page 196
for at least three apartments and families has continued to the present day without interruption ever since the year 1919, and your petitioner has a right to continue to use said premises for apartments and families numbering three or more."
The petition sets out the notice of the building inspector served upon the plaintiff which states that the building "may not be used as the residence for more than two families . . . [and] is now being used as the residence for five families."
It seems to be the contention of appellants that these several allegations of the petition show that the plaintiff claims the right to use t, he building for occupation for more than three families because she was so using it when the ordinance was adopted, and that she claims the right to use it for the occupation of five families. The point of the case is not what she claims but what her rights of use are under the facts shown by the record when it is returned and such evidence if any as the court may receive under sec. 62.23 (7) (e) 13, Stats. Under the reasonable intendment of the plaintiff's allegation (2) above quoted it would seem that at adoption of the ordinance the building was fitted for occupancy and being occupied by three families and that it has been kept and operated for such occupation ever since. If this be the fact the plaintiff under the ordinance has the right to continue such use, and the fact that she claims the right to use the building for more than three families if she does so claim, does not defeat that right. We think that from the allegations of the petition and the recital of the notice therein set out the issue between the parties is whether at the time of the giving of the notice the building was being used and ever since the adoption of the ordinance has been used for three families. If it has at times been occupied by more than three families, or was at the time of the giving of the notice being occupied by more than three families, this would not defeat the right to continue to use it for occupancy by three families. If it was at the time of the notice being occupied by more than three families *Page 197
defendants may compel the ceasing of use by more than three families.
(b) It was held in Decker v. McSorley, 111 Wis. 91, 95,86 N.W. 554, that an ordinance may be pleaded "by stating its substance and legal effect." The material portions of the ordinance in suit were so pleaded in the instant petition.
(4) Did the court have power under sec. 62.23 (7) (e) 10, Stats., to permit the bringing in of new parties more than thirty days after the filing of the board's order with the board?
We consider that if the court was of opinion that the bringing in of the individual members of the board was necessary to the bringing up of the board's record it had the power to direct amendment of the complaint to incorporate their names. That is what the court did. The petition having been presented to the court within the thirty-day period it was properly before the court. The quashing of the writ first issued did not dismiss the action. The motion to quash was in effect a demurrer to the petition for insufficiency of facts stated.State ex rel. Karnes v. Board of Regents, 222 Wis. 542,269 N.W. 284. Being such, the court might properly do as it would in sustaining any other demurrer, permit pleading over on terms, which is what its order permitting amendment of the petition to name the parties did. As we have already said, the plaintiff in timely presenting her petition to the court had done all that she was required to do to get her case into court. Being properly in court the court in its discretion might properly permit such amendment as it considered necessary in the interests of justice to keep her in rather than throw her out and destroy her right of action by dismissing her case. As we have stated, amendment of the petition was unnecessary and permitting an unnecessary amendment plainly did not of itself dismiss the action.
By the Court. — The order of the circuit court dated December 29, 1941, denying the motion to supersede the writ ofcertiorari, and the portion of the order entered November 28, 1941, appealed from, are affirmed. *Page 198 |
EXHIBIT 32.1 CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S. C. SECTION 1350 AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the Annual Report of American Commerce Solutions, Inc. (the "Company") on Form 10-K for the period ended February 29, 2012 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Frank D. Puissegur, Chief Financial Officer (Principal Financial Officer) and Director of the Company, certify, pursuant to 18 U.S. C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge: (1) The Report fully complies with the requirements of Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date:May 24, 2012 /s/ Frank D. Puissegur Frank D. Puissegur Chief Financial Officer (Principal Financial Officer) and Director
|
113 HRES 488 EH: Supporting the people of Venezuela as they protest peacefully for democracy, a reduction in violent crime and calling for an end to recent violence.
U.S. House of Representatives
2014-03-04
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
IV
113th CONGRESS
2d Session
H. RES. 488
In the House of Representatives, U. S.,
March 4, 2014
RESOLUTION
Supporting the people of Venezuela as they protest peacefully for democracy, a reduction in violent crime and calling for an end to recent violence.
Whereas the United States Government should support the rule of law, and free and peaceful exercise of representative democracy in Venezuela, condemning violence and intimidation against the country's political opposition, and calling for dialogue between all political actors in the country;
Whereas, on February 12, 2014, also known in Venezuela as the National Youth Day, students began protesting in several cities Venezuelan leader Nicolas Maduro’s inability to stem violent crime, his undemocratic actions, and a rapidly deteriorating economy marked by high inflation and shortages of consumer goods;
Whereas, on February 12, 2014, a judge issued an arrest warrant for Leopoldo López, leader of the opposition party Voluntad Popular, for unfounded allegations in connection with the student protests;
Whereas, on February 17, 2014, the Government of Venezuela notified the United States Department of State that it had declared 3 consular officers at the United States Embassy in Venezuela personae non gratae;
Whereas over the last year, the Government of Venezuela has expelled a total of 8 United States Government officials from Venezuela;
Whereas, on February 18, 2014, opposition leader Leopoldo Lopez turned himself in to Venezuelan authorities, was arrested, and charged with criminal incitement, conspiracy, arson, and intent to damage property;
Whereas Leopoldo Lopez is currently being held in a prison at a military facility;
Whereas nongovernmental human rights organizations have alleged that the charges brought against Venezuelan opposition leader Leopoldo López appear to be a politically motivated attempt to silence dissent in the country;
Whereas the Venezuelan Government has blocked users’ online images as opposition groups marched through Caracas;
Whereas the Venezuelan people have been protesting economic, social, and political concerns facing their country, including corruption, rising inflation rates, shortages of everyday products, increasing crime rates, and the erosion of human rights and respect for political dissent;
Whereas, on February 19, 2014, President Barack Obama criticized the Venezuelan Government for arresting protesters, called for their release, and urged the government to focus on the “legitimate grievances of the Venezuelan people”;
Whereas, as of February 26, 2014, there have been 14 people killed, over 100 injured, and many persons unjustly detained in relation to pro-democracy demonstrations throughout Venezuela;
Whereas Venezuelan leader Nicolas Maduro threatened to expel the United States news network CNN from Venezuela and has taken off the air the Colombian news channel NTN 24, which transmits in Venezuela, after news outlets reported on the nation-wide protests;
Whereas the Inter-American Commission on Human Rights released a statement on February 14, 2014, which “expresses its concern over the serious incidents of violence that have taken place in the context of protest demonstrations in Venezuela, as well as other complaints concerning acts of censorship against media outlets, attacks on organizations that defend human rights, and acts of alleged political persecution”; and
Whereas as a member of the Organization of American States and signatory to the Inter-American Democratic Charter, the Government of Venezuela has agreed to abide by the principles of constitutional, representative democracy, which include free and fair elections and adherence to its own constitution: Now, therefore, be it
That the House of Representatives—
(1)supports the people of Venezuela in their pursuit of freedom of expression and freedom of assembly to promote democratic principles in Venezuela;
(2)deplores acts which constitute a disregard for the rule of law, the inexcusable violence perpetrated against opposition leaders and protesters in Venezuela, and the growing efforts to use politically motivated criminal charges to intimidate the country's political opposition;
(3)urges responsible nations throughout the international community to stand in solidarity with the people of Venezuela and to actively encourage a process of dialogue between the Government of Venezuela and the political opposition to end the violence;
(4)urges the United States Department of State to work in concert with other countries in the Americas to take meaningful steps to ensure that basic fundamental freedoms in Venezuela are in accordance with the Inter-American Democratic Charter and to strengthen the ability of the Organization of American States (OAS) to respond to the erosion of democratic norms and institutions in Venezuela;
(5)urges the Organization of American States and its Inter-American Commission on Human Rights to utilize its good offices and all mechanisms at its disposal to seek the most effective way to expeditiously end the violence in Venezuela in accordance with the Inter-American Democratic Charter; and
(6)supports efforts by international and multilateral organizations to urge the Venezuelan Government to adopt measures to guarantee the rights to life, humane treatment, and security, and the political freedoms of assembly, association, and expression to all of the people of Venezuela.
Karen L. Haas,Clerk.
|
Case: 19-20154 Document: 00515859460 Page: 1 Date Filed: 05/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2021
No. 19-20154
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yanna Gassaway,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:15-CR-301-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
After a bench trial, Yanna Gassaway was convicted of wire fraud, in
violation of 18 U.S.C. § 1343. The district court imposed a below-guidelines
sentence of 20 months plus three years of supervised release. The court
entered an order of forfeiture for real property obtained as a result of the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 19-20154 Document: 00515859460 Page: 2 Date Filed: 05/12/2021
No. 19-20154
fraud and imposed restitution of $324,840. On appeal, Gassaway contends
that (1) the evidence was insufficient to sustain her conviction, (2) the district
court violated the Speedy Trial Act, (3) the court erred in denying a jury trial,
(4) the prosecution engaged in misconduct and selective, malicious prosecu-
tion, and (5) the court erred in ordering $324,840 in restitution.
Gassaway has been released from prison but is still subject to a term
of supervised release. Accordingly, this appeal is not moot. See Spencer
v. Kemna, 523 U.S. 1, 8 (1998); United States v. Lares-Meraz, 452 F.3d 352,
354−55 (5th Cir. 2006).
We review preserved challenges to the sufficiency of the evidence
de novo. United States v. Ocampo-Vergara, 857 F.3d 303, 306 n.3 (5th Cir.
2017); United States v. Mitchell, 792 F.3d 581, 582 (5th Cir. 2015). To estab-
lish wire fraud, the government must prove (1) a scheme to defraud; (2) the
use of, or causing the use of, wire communications in interstate or foreign
commerce in furtherance of the scheme; and (3) a specific intent to defraud.
See § 1343; United States v. Sanders, 952 F.3d 263, 277 (5th Cir. 2020); United
States v. del Carpio Frescas, 932 F.3d 324, 329 (5th Cir.), cert. denied, 140 S. Ct.
620 (2019); United States v. Simpson, 741 F.3d 539, 547−48 (5th Cir. 2014).
Gassaway maintains that the government did not prove all the ele-
ments necessary to sustain a conviction for wire fraud. She asserts that
(1) she had nothing to do with the initial counterfeit check, (2) she had no
intent to defraud Bank of America, (3) Bank of America is responsible for any
loss it suffered, and (4) use of e-mail alone was not sufficient to establish the
requisite interstate nexus. The record reveals that Gassaway made a false
material statement―that she would invest $450,000 in a bank guarantee―to
obtain something of value from others, namely, money. See United States v
Scully, 951 F.3d 656, 670−71 (5th Cir.), cert. denied, 141 S. Ct. 344 (2020);
United States v. Evans, 892 F.3d 692, 711−12 (5th Cir. 2018). Moreover,
2
Case: 19-20154 Document: 00515859460 Page: 3 Date Filed: 05/12/2021
No. 19-20154
Gassaway made the fraudulent representations with the knowing intent to
bring about a financial or personal gain for herself. See Scully, 951 F.3d
at 670−71; United States v. Richards, 204 F.3d 177, 207 (5th Cir. 2000).
Furthermore, although e-mail alone is not sufficient to establish the wire-
communications element, the evidence reveals at least one interstate wire
transfer from a Bank of America account in Texas to an escrow account in
Georgia. That transfer was critical to an essential step in the plan. United
States v. Sanders, 952 F.3d 263, 277 (5th Cir. 2020); United States v. Hoffman,
901 F.3d 523, 547 (5th Cir. 2018). The government presented substantial
evidence to support the guilty verdict. See United States v. Smith, 895 F.3d
410, 415−16 (5th Cir. 2018).
Because Gassaway did not move for dismissal of the indictment based
on a Speedy Trial Violation, to the extent that she makes such an argument,
she has waived her statutory speedy-trial claim. United States v. Reagan,
725 F.3d 471, 486−87 (5th Cir. 2013); 18 U.S.C. § 1362(a)(2). In addition,
she has abandoned any constitutional claim of a speedy-trial violation for
failure to brief the issue adequately. See United States v. Gentry, 941 F.3d 767,
792 (5th Cir. 2019); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Gassaway additionally avers that she did not waive her right to a jury
and that the district court infringed on her Sixth Amendment rights when it
denied her a jury trial based on past postponements. We review de novo the
validity of a waiver of the right to trial by jury. See United States v. Mendez,
102 F.3d 126, 128−31. The record reveals that Gassaway competently waived
her right to a jury trial both orally and in writing. See Fed. R. Crim. P.
23(a); United States v. Mendez, 102 F.3d 126, 128−31 (5th Cir. 1996).
We review assertions of prosecutorial misconduct for abuse of discre-
tion. United States v. Bolton, 908 F.3d 75, 93 (5th Cir. 2018); United States v.
Rice, 607 F.3d 133, 138−39 (5th Cir. 2010). Unpreserved allegations of prose-
3
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No. 19-20154
cutorial misconduct are reviewed for plain error only. Bolton, 908 F.3d at 93;
United States v. Romans, 823 F.3d 299, 315 (5th Cir. 2016); United States v.
Isgar, 739 F.3d 829, 839 (5th Cir. 2014).
Generally, to establish prosecutorial misconduct of a constitutional
nature, the defendant must show that the prosecutor’s improper conduct or
remarks affected her substantial rights. See Bolton, 908 [email protected]. To estab-
lish a violation based on the government’s use of fabricated or misleading
testimony, Gassaway must show that the testimony in question was (1) actu-
ally false and (2) material and (3) that the prosecution knew it was false.
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997). Gassaway has not
demonstrated that the government knowingly relied on any false testimony.
The prosecutor is afforded wide latitude during closing arguments, see
United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995), and is permitted
to discuss properly admitted evidence and any reasonable inferences or con-
clusions that can be drawn from it, see United States v. Bowen, 818 F.3d 179,
191 (5th Cir. 2016). Moreover, Gassaway was convicted after a bench trial,
and as an experienced trier of fact, the district judge is presumed to have
reached a verdict based only on permissible and admissible evidence and to
have disregarded any improper statements. See United States v. Cardenas, 9
F.3d 1139, 1156 (5th Cir. 1993); United States v. Hughes, 542 F.3d 246, 248−49
(5th Cir. 1976). Because the outcome of the trial was not in Gassaway’s favor,
she cannot raise a malicious-prosecution claim. See Castellano v. Fragozo,
352 F.3d 939, 954 (5th Cir. 2003).
The legality of a restitution order is reviewed de novo, and the amount
is reviewed for abuse of discretion. United States v. Mathew, 916 F.3d 510,
516−17 (5th Cir. 2019); United States v. Sharma, 703 F.3d 318, 322 (5th Cir.
2012). The Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C.
§ 3663A, governs certain restitution awards and makes restitution mandatory
4
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No. 19-20154
for certain crimes, “including any offense committed by fraud or deceit.”
United States v. DeCay, 620 F.3d 534, 539 (5th Cir. 2010) (internal quotation
marks and citation omitted); 18 U.S.C. §§ 3556, 3663A(a)(1), (c)(1)(A)(ii)).
Gassaway’s offense of conviction is wire fraud in violation of § 1343, in which
a scheme to defraud is an element. See United States v. Beacham, 774 F.3d
267, 271, 278−80 (5th Cir. 2014); United States. v. Inman, 411 F.3d 591, 593,
595 (5th Cir. 2005).
A defendant sentenced under the MVRA is responsible for providing
restitution to victims “directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered, . . . including
any person directly harmed by the defendant’s criminal conduct in the course
of the scheme . . . .” § 3663A(a)(2); United States v. Dickerson, 909 F.3d 118,
129 (5th Cir. 2018); Sharma, 703 [email protected]. Section 3663(b) provides that,
in a case of an offense resulting in loss of property of a victim, the court may
require the defendant to return the property to its owner. § 3663A(b)(1)(A).
Where the return of the property is impossible or impractical, the court may
order the defendant to pay an amount equal to the value of the property on
the date of the loss or the date of sentencing, whichever is greater, less the
value of the property that is returned. 18 U.S.C. § 3663(b)(1)(A),
(b)(1)(B)(i)-(ii).
Based on the record evidence, the district court properly ordered that
Gassaway pay restitution for the actual monetary loss, $324,840, directly
incurred by Bank of America arising from the underlying fraudulent conduct
of the offense of conviction as charged in the indictment. See Hughey v. United
States, 495 U.S. 411, 412−13 (1990). Gassaway’s assertion that Bank of Amer-
ica is not a victim because she did not intend to defraud it is without merit
because her fraudulent activity resulted in a loss to Bank of America. More-
over, it is immaterial that the district court also entered an order of forfeiture.
Restitution and forfeiture serve different purposes. United States v. Sanjar,
5
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No. 19-20154
876 F.3d 725, 751 (5th Cir. 2017). “[B]oth restitution and criminal forfeiture
are mandatory features of criminal sentencing that a district court does not
have authority to offset.” Id. Gassaway has not demonstrated that the
district court abused its discretion by ordering restitution. See United States
v. Mahmood, 820 F.3d 177, 196 (5th Cir. 2016).
We review a district court’s application of the guidelines de novo and
its findings of fact at sentencing for clear error. United States v. Klein, 543
F.3d 206, 213 (5th Cir. 2008). Although a district court’s loss calculation is
generally a factual finding reviewed for clear error, we review “de novo how
the court calculated the loss, because that is an application of the guidelines,
which is a question of law.” Id. Under § 2B1.1(b)(1), the amount of loss
resulting from a fraud offense is a specific offense characteristic that in-
creases the base offense level. § 2B1.1(b)(1); United States v. Isiwele, 635 F.3d
196, 202 (5th Cir. 2011). The guidelines instruct the district courts to calcu-
late the “greater of actual loss or intended loss” resulting from the offense.
§ 2B1.1(b)(1), comment. (n.2(A)). An “actual loss” is “the reasonably fore-
seeable pecuniary harm that resulted from the offense.” § 2B1.1(b)(1), com-
ment. (n.3(A)(i)).
The evidence reveals that Bank of America suffered an actual mone-
tary loss of $324,840. See § 2B1.1(b)(1), comment. (n.3(A)(iv)). Accord-
ingly, the district court did not err in applying a 12-level enhancement based
on a loss amount of more than $250,000. See § 2B1.1(b)(1)(G).
The judgment is AFFIRMED. Gassaway’s motion to correct or
amend the sentence is therefore DENIED. Her motion to vacate the judg-
ment is DENIED as moot. The motion to remand is DENIED.
6
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Exhibit 99.4 Unaudited Reconciliation of Certain Non-IFRS Financial Information Some of the financial information presented in Exhibits 99.1, 99.2 and 99.3 to the Report on Form 6-K dated February 4, 2015 contains non-IFRS financial measures, including Operational EBIT, Operational EBITDA, Operational Revenues, ROCE, NIBD/Equity, Operational EBIT % (Margin) and Underlying EPS. We discuss below how we define and calculate these non-IFRS measures. Non-IFRS Financial Measures Operational EBIT and Operational EBITDA. Operational EBIT is a non-IFRS financial measure, calculated by excluding each of the following items from EBIT as set forth in our consolidated statement of income prepared in accordance with IFRS: change in unrealized salmon derivatives (at Group level only), fair value uplift on harvested fish, fair value adjustment on biological assets, provision for onerous contracts, restructuring costs, income/loss from associated companies, impairment losses, unrealized profit adjustments and other non-operational items (accrual for contingent liabilities and provisions). We exclude these items from our EBIT as we believe they affect the comparability of our operational performance from period to period, given their non-operational or non-recurring nature. Operational EBITDA is a non-IFRS financial measure, calculated by adding depreciation to Operational EBIT. Operational EBIT and Operational EBITDA are used by management, analysts, rating agencies and investors in assessing our performance. Accordingly, we believe that the presentation of Operational EBIT and Operational EBITDA provides useful information to investors. Our use of Operational EBIT and Operational EBITDA should not be viewed as an alternative to EBIT or to profit or loss for the year, which are measures calculated in accordance with IFRS. Operational EBIT and Operational EBITDA have limitations as analytical tools in comparison to EBIT or other profit and loss measures prepared in accordance with IFRS. Some of these limitations are: (i) these measures do not reflect the impact of earnings or charges that we consider not to be indicative of our on-going operations, (ii) these measures do not reflect interest and income tax expense; and (iii) other companies, including other companies in our industry, may calculate Operational EBIT and Operational EBITDA differently than we do, limiting its usefulness as a comparative measure. Our Operational EBIT and Operational EBITDA at Group level and by country of origin are reconciled to EBIT below. Our Operational EBIT at segment level is reconciled in footnotes to our financial statements included in documents incorporated herein by reference. Operational Revenue. Operational Revenue is a non-IFRS financial measure, calculated by excluding change in unrealized salmon derivatives from revenue and other income as set forth in our consolidated statement of income prepared in accordance with IFRS. We exclude change in unrealized salmon derivatives from our revenue and other income as we believe it affects the comparability of our operational performance from period to period, given its non-operational nature. Our use of Operational Revenue should not be viewed as an alternative to revenue and other income, which is a measure calculated in accordance with IFRS. Operational Revenue has limitations as an analytical tool in comparison to revenue. Some of these limitations include the fact that changes in unrealized salmon derivatives may need to be cash settled at a future date. Our Operational Revenue is reconciled to revenue and other income in footnotes to our financial statements included in documents incorporated herein by reference. ROCE. ROCE is a non-IFRS financial measure, calculated by dividing Adjusted EBIT by average capital employed. Adjusted EBIT is calculated as EBIT, as set forth in our consolidated statement of income prepared in accordance with IFRS, adjusted for fair value uplift on harvested fish, fair value adjustment on biological assets, provision for onerous contracts and other non-operational items (accrual for contingent liabilities and provisions). Average capital employed is calculated as average of the beginning of the period and end of the period capital employed except when there are material transactions during the year. Capital employed is the sum of net interest bearing debt, or NIBD, as of the end of the period plus equity as of the end of the period adjusted for fair value adjustment on biological assets, provision for onerous contracts and, for the period from January 1, 2013 until September 30, 2013, our investment in Morpol. The investment in Morpol was excluded from the calculation of capital employed as until the acquisition of Morpol was cleared by the relevant competition authorities, we were unable to consolidate Morpol's financial results into our financial statements. Our NIBD as of the end of a period (for purposes of calculating average NIBD) is equal to our total non-current interest-bearing debt minus our total cash and plus our current interest-bearing debt. We use ROCE to measure the return on capital employed, regardless of whether the financing is through equity or debt. In our view, this measure provides useful information for both management and our investors about our performance during periods under evaluation. We believe that the presentation of ROCE provides useful information to investors because ROCE can be used to determine whether capital invested in us yields competitive returns. In addition, achievement of predetermined targets relating to ROCE is one of the factors we take into account in determining the amount of performance-based compensation paid to our management. Our use of ROCE should not be viewed as an alternative to EBIT or to profit or loss for the year, which are measures calculated in accordance with IFRS or ratios based on these figures. The usefulness of ROCE is also inherently limited by the fact that it is a ratio and thus does not provide information as to the absolute amount of our income, debt or equity. It also excludes certain items from the calculation and other companies may use a similar measure but calculate it differently. A table setting forth our calculation of ROCE is set forth below. NIBD/equity. NIBD/equity is a non-IFRS financial measure. Management employs NIBD divided by total equity, as set forth in our consolidated financial statements, to assess our liquidity and financial position. Our NIBD as of the end of a period is equal to our total non-current interest-bearing debt minus our total cash and plus our current interest-bearing debt, in each case as set forth in our consolidated statement of financial position. Management, analysts, rating agencies and investors use our NIBD/equity ratio to assess our liquidity and measure our cash flow. The usefulness of NIBD/ equity is inherently limited by the fact that it is a ratio and thus does not provide information as to the absolute amounts of our debt or equity. A table setting forth our calculation of NIBD/equity is set forth below. Operational EBIT % (Margin).Operational EBIT % is a non-IFRS financial measure. We calculate Operational EBIT % by dividing Operational EBIT by Operational Revenue, each a non-IFRS financial measure. Management employs Operational EBIT % to assess operational performance of some of our segments, disregarding certain non-recurring and non-operational items, excluded from Operational EBIT and Operational Revenue. The usefulness of Operational EBIT % is inherently limited as further described in Operational EBIT and Operational Revenue paragraphs above. A table setting forth our calculation of Operational EBIT % is set forth below. Underlying EPS. Underlying Earnings per Share, or Underlying EPS, is a non-IFRS financial measure. We calculate Underlying EPS by dividing Adjusted Operational EBIT, calculated as Operational EBIT net of accrued payable interest (net), minority share of profit and tax expense calculated based on estimated weighted tax rate, divided by the average number of shares outstanding during the period. Management employs Underlying EPS to assess our operational performance, disregarding non-operational items like net currency effects and net other financial items with the exception of cash costs, and not reflecting permanent and temporary differences in the computation of taxes. We view Underlying EPS as a useful tool reflecting our operational performance per ordinary share outstanding. The usefulness of Underlying EPS is inherently limited. Some of these limitations are that Underlying EPS does not reflect the impact of earnings or charges that we consider not to be indicative of our on-going operations and Underlying EPS. A table setting forth our calculation of Underlying EPS is set forth below. Operational EBITDA and EBIT The following table reconciles our Group Operational EBITDA and Group Operational EBIT to EBIT in NOKmillion for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: Three months ended December 31, Year ended December 31, (inNOKmillion) (Unaudited) Group Operational EBITDA Depreciation - 268 -235 -967 -762 Group Operational EBIT Change in unrealized internal margin feed -56 0 -92 0 Change in unrealized salmon derivatives 36 -12 54 -30 Fair value uplift on harvested fish -1,278 -1,410 -5,518 -4,324 Fair value adjustment on biological assets Provision for onerous contracts -126 -142 24 -125 Restructuring costs -3 -34 -53 -273 Other non-operational items 0 0 -168 -74 Income/loss from associated companies 55 Impairment losses -25 -57 -24 -65 Group earnings before interest and taxes (EBIT) 2 The following table reconciles Operational EBIT to EBIT for salmon of Norwegian origin in NOKmillion for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014: Three months ended December 31, Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Norwegian Origin Change in unrealized salmon derivatives Fair value uplift on harvested fish - 918 - 1,040 - 3,670 Fair value adjustment on biological assets Provision for onerous contracts - 127 - 110 - 20 Restructuring cost 0 0 0 Income/loss from associated companies 63 Impairment losses - 7 - 1 - 7 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Norwegian Origin The following table reconciles Operational EBIT to EBIT for salmon of Scottish origin in NOKmillion for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014: Three months ended December 31, Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Scottish Origin -22 Change in unrealized salmon derivatives Fair value uplift on harvested fish -124 -186 -719 Fair value adjustment on biological assets Provision for onerous contracts 1 -33 44 Restructuring cost 0 0 0 Income/loss from associated companies -8 0 1 Impairment losses 0 0 0 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Scottish Origin 14 The following table reconciles Operational EBIT to EBIT for salmon of Canadian origin in NOK million for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014: 3 Three months ended December 31, Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Canadian Origin 25 58 Change in unrealized salmon derivatives Fair value uplift on harvested fish -68 -74 -377 Fair value adjustment on biological assets 32 Provision for onerous contracts 0 0 0 Restructuring cost 0 -4 0 Income/loss from associated companies 0 0 0 Impairment losses 0 -2 0 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Canadian Origin -10 96 The following table reconciles Operational EBIT to EBIT for salmon of Chilean origin in NOKmillion for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014: Three months ended December 31. Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Chilean Origin 6 35 Change in unrealized salmon derivatives Fair value uplift on harvested fish -86 -94 -482 Fair value adjustment on biological assets -148 Provision for onerous contracts 0 0 0 Restructuring cost -2 0 -2 Income/loss from associated companies 0 0 0 Impairment losses 0 0 0 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Chilean Origin -229 67 91 The following table reconciles Operational EBIT to EBIT for salmon of Irish origin in NOKmillion for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014: 4 Three months ended December 31. Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Irish Origin 9 -36 33 Change in unrealized salmon derivatives Fair value uplift on harvested fish -30 6 -77 Fair value adjustment on biological assets 9 -7 91 Provision for onerous contracts 0 0 0 Restructuring cost 0 0 0 Income/loss from associated companies 0 0 0 Impairment losses 0 0 0 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Irish Origin -12 -37 47 The following table reconciles Operational EBIT to EBIT for salmon of Faroese origin in NOKmillion for the three months ended December 31, 2014 and 2013, and for the year ended December 31, 2014: Three months ended December 31. Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Salmon of Faroese Origin 44 27 Change in unrealized salmon derivatives Fair value uplift on harvested fish -53 -22 -193 Fair value adjustment on biological assets 5 86 Provision for onerous contracts 0 0 0 Restructuring cost 0 0 0 Income/loss from associated companies 0 0 0 Impairment losses 0 0 0 Unrealized profit adjustment 0 0 0 Other non-operational items 0 0 0 EBIT - Salmon of Faroese Origin -5 57 The following table reconciles Operational EBIT to EBIT for other including allocation to third party in NOKmillion for the three months ended December 31, 2014 and 2013, and for the year ended December 31, 2014: 5 Three months ended December 31. Year ended December 31, (in NOK million) (Unaudited) Operational EBIT - Other incl alloc 3rd pty 89 6 -28 Change in unrealized salmon derivatives 36 -12 54 Fair value uplift on harvested fish 0 0 0 Fair value adjustment on biological assets 1 6 3 Provision for onerous contracts 0 0 0 Restructuring cost -1 -31 -51 Income/loss from associated companies 0 0 0 Impairment losses -18 -54 -17 Unrealized profit adjustment -56 0 -92 Other non-operational items 0 0 -168 EBIT - Other incl alloc 3rd pty 51 -85 -299 The sum of the reconciliation tables by origin (Norwegian, Scottish, Canadian, Chilean, Irish and Faroese) and Other including allocation to third party equals the Group total. Operational EBIT: NOK per Kilogram The following table reconciles Group level Operational EBIT to EBIT in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Group Operational EBIT Change in unrealized salmon derivatives -0.12 -0.09 Fair value uplift on harvested fish -12.16 -13.64 -13.17 -12.58 Fair value adjustment on biological assets Provision for onerous contracts -1.20 -1.38 -0.36 Restructuring cost -0.03 -0.33 -0.13 -0.79 Income/loss from associated companies Impairment losses -0.24 -0.55 -0.06 -0.19 Unrealized profit adjustment -0.53 -0.22 Other non-operational items -0.40 -0.22 Group EBIT The following table reconciles Operational EBIT to EBIT for salmon of Norwegian origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: 6 Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Norwegian Origin Change in unrealized salmon derivatives Fair value uplift on harvested fish -13.12 -15.16 -14.23 -13.03 Fair value adjustment on biological assets Provision for onerous contracts -1.81 -1.60 -0.08 -0.44 Restructuring cost Income/loss from associated companies Impairment losses -0.10 -0.01 -0.03 -0.03 Unrealized profit adjustment Other non-operational items EBIT - Salmon of Norwegian Origin The following table reconciles Operational EBIT to EBIT for salmon of Scottish origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013:’ Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Scottish Origin -3.42 Change in unrealized salmon derivatives Fair value uplift on harvested fish -19.38 -15.90 -14.72 -16.99 Fair value adjustment on biological assets Provision for onerous contracts -2.79 -0.53 Restructuring cost Income/loss from associated companies -1.23 Impairment losses Unrealized profit adjustment Other non-operational items EBIT - Salmon of Scottish Origin The following table reconciles Operational EBIT to EBIT for salmon of Canadian origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: 7 Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Canadian Origin Change in unrealized salmon derivatives Fair value uplift on harvested fish -9.98 -12.94 -14.11 -10.90 Fair value adjustment on biological assets Provision for onerous contracts Restructuring cost -0.66 -0.13 Income/loss from associated companies Impairment losses -0.37 -0.06 Unrealized profit adjustment Other non-operational items EBIT - Salmon of Canadian Origin -1.52 The following table reconciles Operational EBIT to EBIT for salmon of Chilean origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Chilean Origin -2.32 Change in unrealized salmon derivatives Fair value uplift on harvested fish -5.16 -6.66 -7.14 -4.38 Fair value adjustment on biological assets -8.89 Provision for onerous contracts Restructuring cost -0.12 -0.03 Income/loss from associated companies Impairment losses Unrealized profit adjustment Other non-operational items -2.63 EBIT - Salmon of Chilean Origin -13.81 The following table reconciles Operational EBIT to EBIT for salmon of Irish origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: 8 Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Irish Origin -26.76 -5.02 Change in unrealized salmon derivatives Fair value uplift on harvested fish -14.57 -12.26 -7.03 Fair value adjustment on biological assets -5.14 Provision for onerous contracts Restructuring cost Income/loss from associated companies Impairment losses Unrealized profit adjustment Other non-operational items EBIT - Salmon of Irish Origin -5.90 -27.59 -4.58 The following table reconciles Operational EBIT to EBIT for salmon of Faroese origin in NOK per kilogram for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: Three months ended December 31. Year ended December 31, (in NOK per kg) (Unaudited) Operational EBIT - Salmon of Faroese Origin Change in unrealized salmon derivatives Fair value uplift on harvested fish -16.07 -+1-667-990-2966 Fair value adjustment on biological assets Provision for onerous contracts Restructuring cost Income/loss from associated companies Impairment losses Unrealized profit adjustment Other non-operational items EBIT - Salmon of Faroese Origin -1.55 NIBD, ROCE, Adjusted EBIT The following tables set forth our calculation of ROCE, requiring reconciliation of Adjusted EBIT to EBIT and NIBD to Non-current interest-bearing debt, for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013: 9 Three months ended December 31. Year ended December 31, (in NOK million) (Unaudited) Adjusted EBIT Fair value uplift on harvested fish - 1,278 - 1,410 - 5,518 - 4,324 Fair value adjustment on biological assets Provision for onerous contracts -126 -142 24 -125 Other Non-operating legal items 0 0 -168 -74 EBIT Net interest-bearing debt (NIBD) Cash - 1,408 -606 - 1,408 -606 Current interest bearing debt 7 7 Non-current interest bearing debt NIBD Investment in Morpol -19 -869 -19 -869 Total Equity Fair value on biological assets - 2,258 - 2,743 - 2,258 - 2,743 Provision for onerous contracts Capital employed as of the end of the period Average capital employed 1) Adjusted EBIT ROCE 2) % Calculated as the average capital employed as of the beginning and the end of the period, except when there are material transactions during the year. Morpol is included fromSeptember 31, 2013. ROCE for the three months ended December 31 2014 and 2013 is calculated as annualized adjusted EBIT (Adjusted EBIT times four) divided by the average capital employed for the quarter. The following table sets forth our calculation of NIBD/equity as of December 31, 2014 and 2013: Year ended December 31. (in NOK million) (Unaudited) NIBD Cash Current interest-bearing debt -7 -687 Non-current interest-bearing debt NIBD Total Equity NIBD/equity % % Underlying EPS The following tables set forth our calculation of Underlying EPS for the three months ended December 31, 2014 and 2013 and the year ended December 31, 2014 and 2013. 10 Three month ended Year ended December 31, (in NOK million, except number of shares and Underlying EPS) (Unaudited) Operational EBIT Accrued payable interest (net) -91 -107 -375 -455 Calculated tax expense -248 -247 -998 -743 Minority share of profit -0.5 -3.9 -7.4 Op EBIT adj for above items Shares outstanding (average) Underlying EPS (NOK per share) The number of shares is retroactively adjusted to reflect the 10:1 share consolidation that was carried out in January 2014. Operational EBIT % (Margin) The following table sets forth our calculation of Group Operational EBIT % for the three months ended December 31, 2014 and 2013, and the year ended December 31, 2014 and 2013.Our Operational Revenue is reconciled to revenue and other income in footnotes to our financial statements included in documents incorporated herein by reference. Three months ended December 31, Year ended December 31, (in NOK million, except for Operational EBIT %) (Unaudited) Group Operational EBIT Operational revenues Group Operational EBIT % The following table sets forth our calculation of Operational EBIT % for the VAP Europe division for the three months ended December 31, 2014 and 2013: Three months December 31, (in NOK million, except for Operational EBIT %) (Unaudited) Operational EBIT—VAP Europe 36 -37 Operational revenues Operational EBIT %—VAP Europe % -2.7 % The following table sets forth our calculation of Operational EBIT % for the Morpol division for the three months ended December 31, 2014 and 2013: 11 Three months ended December 31, (in NOK million, except Operational EBIT %) (Unaudited) Operational EBIT—Morpol 81 63 Operational revenues Operational EBIT %—Morpol % % The following table sets forth our calculation of Operational EBIT % for the Markets division for the three months ended December 31, 2014 and 2013: Three months ended December 31, (in NOK million, except Operational EBIT %) (Unaudited) Operational EBIT—Markets Operational revenues Operational EBIT %—Markets % % The following table sets forth our calculation of Operational EBIT % for the Farming segment for the three months ended December 31, 2014 and 2013: Three months ended December 31, (in NOK million, except Operational EBIT %) (Unaudited) Operational EBIT—Farming Operational revenues Operational EBIT %—Farming % % The following table sets forth our calculation of Operational EBIT % for the Feed segment for the three months ended December 31, 2014: Three months ended December 31, (in NOK million, except Operational EBIT %) (Unaudited) Operational EBIT—Feed 61 Operational revenues Operational EBIT %—Feed % 12
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00748-CV
EX PARTE Christopher GUERRERO
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: November 5, 2014
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On October 27, 2014, relator Christopher Guerrero filed an original pro se habeas corpus
proceeding contending he is being illegally confined after the trial court found him in contempt
for failure to pay previously ordered child support and ordered him confined for 180 days.
Specifically, Guerrero asserts: (1) the trial court failed to inform him of his right to counsel under
the Texas Family Code; (2) the trial court failed to make a determination of his ability to purge
himself of the child support obligation; and (3) Sheriff Susan Pamerleau has failed to give him
“good time” credit in violation of his right to equal protection under the law. See TEX. FAM. CODE
ANN. §§ 157.008(c), 157.163 (West 2014).
1
This proceeding arises out of Cause No. 1999EM503566, styled In the Interest of A.G., K.A.G., P.G., Children,
pending in the 224th Judicial District Court, Bexar County, Texas, the Honorable Eric Rodriguez presiding.
04-14-00748-CV
This court received from the trial court clerk copies of the trial court’s Order on
Appointment of Counsel and Setting Cause for Trial, and Order Enforcing Child Support and
Medical Support Obligation. The Order on Appointment of Counsel, which was signed by
Guerrero, indicates that a hearing was conducted on September 12, 2013, and reflects the trial
court’s finding that Guerrero “is not indigent and not entitled to the appointment of an attorney.”
A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty
without due process of law, or if we conclude the judgment ordering confinement is void. See In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In re Alexander, 243 S.W.3d 822,
824 (Tex. App.—San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding
is not to determine the relator’s guilt or innocence, but to ascertain if the relator has been
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding);
Alexander, 243 [email protected].
In family law enforcement proceedings, the Family Code requires the trial court to
determine whether the proceeding is one in which incarceration may result and, if so, the court is
obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed
attorney. See TEX. FAM. CODE ANN. § 157.163(a), (b). In the present case, Guerrero’s signature
appears on the Order on Appointment of Counsel. The Order provides, “this is a proceeding in
which incarceration of the Respondent may result” and reflects the trial court’s finding that
Guerrero “is not indigent and not entitled to the appointment of an attorney.” Guerrero also signed
the separate Order Enforcing Child Support and Medical Support Obligation, entered on the same
date, which reflects that Guerrero “appeared in person Pro Se and was advised of his rights,
including the right to a court appointed attorney if found indigent. The Court finds that
CHRISTOPHER GUERRERO knowingly and intelligently waived his rights and proceeded Pro
Se and agreed to the entry of these orders.” We conclude the trial court properly admonished
-2-
04-14-00748-CV
Guerrero of his right to counsel in accordance with the Family Code. See TEX. FAM. CODE ANN.
§ 157.163.
Guerrero also complains the trial court failed to make a determination of his ability to purge
himself of the child support obligation. The Family Code provides that an obligor may plead as an
affirmative defense to an allegation of contempt that he lacked the ability and resources to provide
support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008(c). However, it is Guerrero’s
burden in the trial court to conclusively establish the affirmative defense. See Ex parte Rojo, 925
S.W.2d 654, 656 (Tex. 1996) (orig. proceeding). It is also his burden as relator in this proceeding
to provide this court with a record sufficient to establish his right to habeas corpus relief. See TEX.
R. APP. P. 52.7(a); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The
trial court’s Order Enforcing Child Support and Medical Support Obligation includes its findings
that Guerrero “could have timely paid the above specified child support in full” and “could have
provided the required medical support during each specified time period.” Guerrero has failed to
provide this court with a record supporting his claim that he is entitled to habeas corpus relief on
the basis of conclusively establishing an affirmative defense in the trial court.
Finally, Guerrero contends he is being denied equal protection under the law by the denial
of “good time” credits on his sentence when such credits are available to prisoners serving
sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives
the sheriff discretion to award “good time” credit to those being punished by criminal contempt
orders, the statute does not apply to those being punished by coercive civil contempt orders. See
TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2014); Ex parte Acly, 711 S.W.2d 627,
628 (Tex. 1986) (orig. proceeding). The trial court’s order in this case imposes both punitive
contempt and coercive civil contempt findings. Guerrero would not be entitled to consideration for
“good time” credit under the statute for the criminal contempt portion of the order until he has
-3-
04-14-00748-CV
satisfied the coercive contempt portion of the order. See Acly, 711 [email protected]. The record does
not demonstrate that Guerrero has satisfied the coercive contempt requirements of the trial court’s
order. Accordingly, we are unable to say that there is any abuse of discretion in the failure to award
“good time” credits in this instance. TEX. R. APP. P. 52.7(a); Walker, 827 [email protected]. Guerrero
has not established that he is entitled to habeas corpus relief on this ground. See TEX. CODE CRIM.
PROC. ANN. art. 42.032 § 2; Ex parte Acly, 711 [email protected].
Relator’s petition for writ of habeas corpus is denied.
PER CURIAM
-4-
|
Exhibit 10.27
ASSIGNMENT OF AGREEMENT OF SALE
This Assignment of Agreement of Sale (this Assignment) is made to be effective
as of August 19, 2009, by BEHRINGER HARVARD MULTIFAMILY OP I LP, a Delaware
limited partnership (Assignor), and BEHRINGER HARVARD NOHO, LLC, a Delaware
limited liability company (Assignee).
BACKGROUND
A. Assignor, as Purchaser, entered into an Agreement of Sale with SF
NO HO LLC, a California limited liability company, as Seller, dated effective
August 12, 2009 (the Agreement), covering the property located in North
Hollywood, California, commonly known as The Gallery at NoHo Commons, and more
particularly described in the Agreement.
B. Assignor wants to assign all of its interest in the Agreement to
Assignee and Assignee wants to accept the assignment.
AGREEMENT
For good and valuable consideration, the receipt of which is acknowledged,
Assignor assigns to Assignee all of Assignor’s right, title and interest in, to
and under the Agreement, including, without limitation, all of Assignor’s
interest in the Earnest Money Deposit (as defined in the Agreement). Assignee
accepts the assignment and assumes and shall perform all of Assignor’s duties
and obligations under the Agreement. Notwithstanding the foregoing assignment
and assumption, Assignor shall remain liable for all of the obligations, as
Purchaser, under the Agreement.
ASSIGNOR:
BEHRINGER HARVARD MULTIFAMILY OP I LP,
a Delaware limited partnership
By:
BHMF Inc.,
a Delaware corporation,
its general partner
By:
/s/ Gerald J. Reihsen, III
Name:
Gerald J. Reihsen, III
Title:
Executive Vice President
ASSIGNMENT OF AGREEMENT OF SALE — The Gallery at NoHo Commons
1
--------------------------------------------------------------------------------
ASSIGNEE:
BEHRINGER HARVARD NOHO, LLC,
a Delaware limited liability company
By:
/s/ Gerald J. Reihsen, III
Name:
Gerald J. Reihsen, III
Title:
Executive Vice President-Corporate
Development & Legal and Secretary
2
-------------------------------------------------------------------------------- |
Citation Nr: 0101597
Decision Date: 01/22/01 Archive Date: 01/31/01
DOCKET NO. 98-08 367 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased evaluation for service connected
mature cataract of the right eye, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Associate Counsel
INTRODUCTION
The appellant served on active duty from July 1962 to May
1966.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 1998 rating decision of the
San Juan, Puerto Rico, Department of Veterans Affairs (VA)
Regional Office (RO).
The Board notes that the appellant has filed a claim seeking
service connection for loss of vision of his left eye as
secondary to the service connected disability of mature
cataract of the right eye, and has filed to reopen a claim of
service connection for glaucoma on the basis of new and
material evidence. These claims were the subject of a rating
decision dated in July 2000 and they have not been appealed.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's claim has been obtained.
2. The appellant has visual acuity of the right eye of being
able to count fingers three feet and non service connected
corrected vision of 20/80 in the left eye. The right eye
has not been enucleated and is not shown to have a serious
cosmetic defect.
3. The veteran has not submitted evidence tending to show
that his right eye disability is unusual, requires
frequent periods of hospitalization or causes unusual
interference with work other than that contemplated within
the schedular standards.
CONCLUSION OF LAW
1. The criteria for a disability rating in excess of 30
percent for service connected mature cataract of the right
eye have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 3.321, Part 4 including §§ 4.75-4.84a,
Diagnostic Codes 6070, 6074, 6077 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking an increased disability rating for
his service-connected cataract of the right eye. On November
9, 2000, the President signed into law the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat
2096 (2000). This law rewrites that 38 U.S.C. §§ 5100-5107
"duty to assist" provisions, to eliminate the well-grounded
claim requirement, and requires the Secretary to provide
additional assistance in developing all facts pertinent to a
claim for benefits under title 38 of the United States Code.
Although the RO did not readjudicate the veteran's claim
subsequent to the enactment of VCAA, the claimant was
provided a VA vision examination in June 1999. Additionally,
the RO collected all identified medical records. There is no
indication in the record that there is any additional
evidence that has not been associated with the claims file,
and the Board finds he is not prejudiced by appellate review.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Ratings Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Ratings Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(2000).
Consideration of factors wholly outside the rating criteria
constitutes error as a matter of law. Massey v. Brown, 7
Vet. App. 204, 207-08 (1994). Evaluation of disabilities
based upon manifestations not resulting from service-
connected disease or injury is prohibited. 38 C.F.R. § 4.14
(2000).
In order to evaluate the level of disability and any changes
in condition, it is nevertheless necessary to consider the
complete medical history of the appellant's conditions.
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 (1994).
In deciding claims for VA benefits, "when there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant."
38 U.S.C.A. § 5107(b) (West 1991).
It is noteworthy at the outset that only the right eye
disability is service connected, and that for purposes of
applying the rating schedule (because the veteran is not
blind in both eyes) the left eye vision is considered normal.
See 38 C.F.R. § 3.383 (2000).
The Ratings Schedule provides a 30 percent rating for
blindness in one eye, having only light perception. 38 C.F.R.
Part 4, Code 6070. A higher rating is warranted only where
there is enucleation of the eye or serious cosmetic defect.
38 C.F.R. § 4.80.
The Ratings Schedule also provides a 30 percent rating for
vision of 5/200 in one eye. 38 C.F.R. Part 4, Code 6074
(2000). Additionally, a 30 percent rating is provided for
vision of 10/200 in one eye. 38 C.F.R. Part 4, Code 6077
(2000).
In this case, the appellant was first granted service
connection for a cataract in his right eye by rating decision
dated in September 1966. A non-compensable rating was
initially assigned because VA examination showed correctable
vision of the right eye to 20/30. This rating was confirmed
and continued by rating decisions dated in July 1980 and
October 1984.
In 1990, the disability evaluation was increased to 10
percent based on VA examination that showed the appellant's
corrected vision in his right eye had worsened to 20/100.
This rating of 10 percent was assigned as of December 1989.
In 1994, the disability evaluation was again increased to 30
percent based on VA examinations in November 1991 and January
1993 that showed the appellant's corrected vision in his
right eye had worsened to 20/400. A disability rating of 30
percent was assigned effective in November 1991. This rating
has been confirmed and continued to date.
In December 1997, the appellant filed a claim seeking an
increase in his disability evaluation for his loss of vision
and cataracts of his right eye. A January 1998 private
medical report reflects that he has bilateral cataracts and
(corrected) visual acuity of 20/400 in the right eye and
20/70 in the left eye. The appellant underwent a VA vision
examination in June 1999 that showed corrected vision in the
right eye to be only finger counting at 3 feet. Corrected
vision of the left eye was shown to be 20/80.
Applying the facts to the rating schedule, the Board finds
that entitlement to a disability rating in excess of 30
percent is not warranted. Absent any enucleation or serious
cosmetic defect of the right eye, and absent blindness of the
left eye, the highest rating available for loss of vision in
one eye is 30 percent. The appellant is entitled to a rating
of 30 percent for loss of vision in one eye if his vision is
5/200. 38 C.F.R. Part 4, Code 6074 (2000). Similarly, the
appellant would be entitled to 30 percent if he was blind in
one eye having only light perception. 38 C.F.R. Part 4, Code
6070. The appellant's vision is slightly better than total
blindness with only light perception. He is able to count
fingers at 3 feet. The Ratings Schedule does not provide for
any higher rating than 30 percent, since the appellant does
not have a service connected disability of the other eye.
Additionally, application of the extraschedular provisions is
also not warranted in this case. 38 C.F.R. § 3.321(b).
There is no objective evidence that this
service-connected disability presents such an exceptional or
unusual disability picture, with such factors as marked
interference with employment or frequent periods of
hospitalization, as to render impractical the application of
the regular schedular standards. Hence, referral by the RO
to the Chief Benefits Director of VA's Compensation and
Pension Service, under the above-cited regulation, was not
required. See Bagwell v. Brown, 9 Vet. App. 337 (1996).
The preponderance of the evidence is against the appellant's
claim, hence the benefit of the doubt doctrine does not
apply. 38 U.S.C.A. § 5107 (West 1991).
Therefore, the Board finds that the criteria for a disability
evaluation in excess of 30 percent for service connected
cataracts of the right eye have not been met.
ORDER
An increased evaluation for service connected mature cataract
of the right eye, currently evaluated as 30 percent disabling
is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
|
317 F.2d 9
Mrs. Sam ROTOLO, Appellant,v.The HALLIBURTON COMPANY, Appellee.
No. 20176.
United States Court of Appeals Fifth Circuit.
May 8, 1963.
Edward C. Alker, New Orleans, La., Milton W. Janssen, Alker & Janssen, New Orleans, La., for plaintiff-appellant.
P. A. Gaudet, New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., of counsel, for appellee.
Before PHILLIPS,* CAMERON and WISDOM, Circuit Judges.
PHILLIPS, Circuit Judge.
1
Mrs. Sam Rotolo brought this action against the Halliburton Company to recover damages for the alleged wrongful death of her husband, Sam Rotolo,1 resulting from injuries sustained by him while in the employ of Halliburton and engaged in the course of his work in welding cracks in the hull of one of its vessels. The action was brought under the Jones Act (46 U.S.C. § 688) and the General Maritime Law and relief was also sought in the alternative under the Louisiana Workmen's Compensation Act.
2
The case came on for trial before a court and jury. At the close of the plaintiff's evidence in chief, Halliburton moved for a directed verdict on the ground, among others, that there was no evidence that Rotolo, at the time of the accident, was a seaman on any of its vessels. The trial court sustained the motion and directed a verdict in favor of Halliburton, under the Jones Act and General Maritime Law.
3
Halliburton then moved for summary judgment dismissing the alternative demand under the Louisiana Workmen's Compensation Act, on the ground that the evidence clearly showed that Rotolo's injuries occurred on navigable waters of the United States and therefore the exclusive remedy of Rotolo's beneficiaries is under the Federal Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.). The court sustained such motion.
4
The evidence adduced by the plaintiff below, viewed in the light most favorable to her, showed these facts:
5
On March 11, 1961, the date when the accident occurred, and for a number of years prior thereto, Halliburton was engaged in the business of servicing oil wells. It had a base at Harvey, Louisiana, where it maintained a district office, repair shops and repairing equipment, and also kept trucks, station wagons, and portable repairing equipment. From such base and over a substantial area, Halliburton rendered its oil well services, both to oil wells on land and oil wells drilled or being drilled in the Gulf of Mexico, known as offshore wells. It employed trucks and other automotive equipment for land transportation and boats for water transportation. It maintained a fleet of 15 vessels and seven barges. Some of its vessels were used to transport material and equipment from the Harvey base to offshore drilling sites for the purpose of rendering oil well servicing. Other of its boats were used to transport its workmen from the shore to such sites and to return them to the shore. Among such boats was Crew Boat No. 503, so called because it was used to transport crews of workmen engaged in rendering such oil well services. Boat No. 503 was a steel boat. It was 38 feet long and its beam was approximately 12 feet. It had no crew quarters, that is, sleeping quarters, and no place where food could be prepared or served. Some canned goods were stored in a locker on the boat.
6
Halliburton maintained a force of approximately 14 men in its maintenance and repair department at its Harvey base. At least five of such workmen, including Rotolo, who performed substantially the same work, were welders. They did general welding repairs and were known as shop welders. Included in their work was the welding of cracks in steel hulls of Halliburton's boats, welding patches on such hulls, cutting out weakened or damaged areas, and welding, over the holes so made, new metal plates or patches.
7
When a boat needed repairs and it could be repaired by tying it to a wharf and hoisting that portion of the boat requiring repairs up out of the water, repairs were made at a wharf. When it could not be so repaired, it was moved to the Harvey base for repairs. By far the larger portion of boat repairs was made at the Harvey base. Employees who performed substantially the same services as Rotolo testified that they did from 80 to 90 per cent of their work at the Harvey base and approximately 10 to 20 per cent of their work away from such base. Neither Rotolo nor other repairmen were assigned to a particular boat. On the contrary, when a boat needed repairs the foreman selected a repairman and directed him to make the particular repairs on that boat. In other words, he was assigned and directed to perform a particular job and on its completion to report for assignment to other work, or if done away from the base, to return to the base.
8
When Rotolo or any other repairman was directed to repair a boat, he decided, after examining the part to be repaired, whether the repairs could be made away from the base, or whether they would have to be made in the repair yard at the base. The captain, or boat operator, had no authority over the repairman. The latter was solely in charge of the repairs.
9
On the morning of the accident, Boat No. 503 was tied up to Halliburton's Barge 101 at its dock in Leeville, Louisiana. There were two cracks below the water line in the hull of the boat, forward of the beam or center, which caused the boat to leak. Boat No. 503 was in the charge of Weston J. Smith, as the operator thereof. He had been such operator for two and one-half years. Boat No. 503 had only one crew man, the operator. Smith had reported the cracks and requested that the boat be repaired. He had made temporary repairs by cementing the cracks and the boat was not leaking when it was tied up at Leeville, or during the time it was repaired by Rotolo. Smith had also pumped the water out of the hull, so that only about a gallon of water remained therein.
10
On March 11, 1961, Rotolo, in accordance with directions from his superior, had proceeded to Leeville by truck with a portable electric welding machine, there to repair Boat No. 503, if repairs could be made without bringing it to the Harvey base.
11
When Rotolo arrived, Smith advised him with respect to the leaks and their location. Rotolo decided the repairs could be made away from the base, but that the bow of the boat would have to be raised out of the water with a winch boom. Such a boom was available at the Gulf Oil Company's nearby wharf. Boat No. 503 was moved from the Halliburton dock to the Gulf Oil Company's wharf and there tied up. Rotolo moved his truck and welding machine from the dock to the wharf and also went to another Halliburton boat, No. 204, for coffee. By means of the winch boom, Rotolo, Smith, and one Guidry raised the boat out of the water, so about three-fifths of the hull was above the water, including the portion where the cracks were located. Smith removed the cement and cleaned the area to be welded. There were no blowers on Boat No. 503 to dry out the hull and there was dampness in the hull. The principal part of the welding machine remained in the truck. The machine was equipped with two cables, known as whips or leads, of sufficient length to reach from the machine in the truck to the place where the welding was to be done. A holder was attached at the end of the cables and the welding rod was inserted in such holder. The working space was limited and cardboard was laid down for Rotolo to lie on while carrying out the welding operations and Smith held a flashlight to assist Rotolo in seeing, as he carried out the welding. After Rotolo had welded one crack, he proceeded with the welding of the other crack. He had intended to return to the first crack and do additional welding when the first weld had cooled. Smith heard Rotolo moving on the cardboard and asked Rotolo what was the matter and Rotolo did not answer. Smith took the welding rod holder out of Rotolo's hand and received a shock when he did so. Rotolo had suffered serious injuries, which caused his death. Smith stated that he observed that Rotolo's eyes "were popped out of his head." Photographs of Rotolo after his death showed a badly puffed and swollen eyeball and injury to the eyelid. The welding rod, in some unexplained manner, had penetrated through Rotolo's eyeball and into his brain, causing abrasions, bone fractures, and massive hemorrhages.
12
There was evidence that during the two years preceding the accident repairmen went sent out from the base on several occasions to repair Boat No. 503 and that on each of these occasions the boat was moored to a wharf or dock and was partly raised out of the water and that none of such repairs were made while it was under way. There was no evidence that Boat No. 503 was ever repaired while under way and one witness testified that it would have been impossible so to do. There was no evidence that Rotolo or any other repairman ever assisted Smith or any other Halliburton boat operator in running, moving or navigating Boat No. 503, or any other Halliburton boat. If a boat had to be taken to the Harvey base for repairs, the boat operator, not the repairman, took it to the base. One witness testified that the repairmen, when repairing boats away from the base, did the same work as a worker at a shipyard. Repair jobs on boats done away from the base were of short duration and were usually accomplished in a few hours. One witness characterized such a repair job that took eight hours as a "long job". Had the unfortunate accident not occurred, Rotolo would have finished the repair of Boat No. 503 in about four hours.
13
Certain of Halliburton's boats were used to transport cement from docks to the drilling barges, to be used in servicing operations. Two witnesses called by the plaintiff below, who performed substantially the same work as Rotolo, testified that they never performed repair services on any boat or barge when it was under way, and that when they performed repairs on a boat or barge it was either tied up at a dock or a wharf or was in the repair yard at the Harvey base. Two of the witnesses called by the plaintiff below testified that there were occasions when such cement boats were under way that they made repairs on the unloading equipment in such boats used to expel the cargo of cement from the cement boat to the drilling barge. However, there was no evidence that Rotolo at any time ever engaged in such repairs on a cement boat while it was under way.
14
In his brief, counsel for plaintiff below states that plaintiff's position rests entirely upon the contention that "there was a serious question * * * brought out by the testimony, as to whether * * Rotolo, was in fact a seaman" and therefore the trial judge should have allowed the case to go to the jury.
15
While the question whether a person injured in the course of his employment was a seaman within the meaning of that term, as used in the Jones Act, is one of fact, and the trend of the decisions in this and other courts has been to expand the meaning of such term,2 it does not follow that in every case involving the question whether the injured person was a seaman, there is an issue of fact which must be submitted to the jury for determination.3
16
In Offshore Company v. Robison, 5 Cir., 266 F.2d 769, 778, 75 A.L.R. 2d 1296, this court said:
17
"* * * the traditional function of court and jury still obtains, in spite of the Gianfala to Grimes — Butler series of cases, and * * * a court, trial or appellate, may in the proper case hold that there is no reasonable evidentiary basis to support a jury finding that an injured person is a seaman and member of a crew of a vessel under the Jones Act. * * *"
18
In its opinion in the Offshore Company case, at page 779, of 266 F.2d, this court also laid down criteria for determining whether under the evidence there is presented an issue of fact for determination of the jury as to whether the person was a seaman under the Jones Act, as follows:
19
"* * * there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips."
20
In Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 280 F.2d 523, 528, this court reiterated the requirement that the injured person be assigned permanently to a particular vessel or several specified vessels, or to perform a substantial part of his work on the particular vessel or several specific vessels. It further held that the relationship between the individual and a particular vessel or several specific vessels must not be spasmodic and must be substantial in point of time and work.
21
Here, Rotolo, from time to time, was assigned to do and did a single repair job on a single designated boat. At no given time was he assigned to repair two or more boats. Rather, each of his repair job assignments was always directed to a single repair job on a single boat. While he was assigned to repair different boats, he was not at any time charged with the duty of keeping two or more specified boats in repair. Nor was he ever charged with the duty of keeping a single boat in repair.
22
Rotolo's connection with a Halliburton boat or boats, by reason of being assigned to do and doing, from time to time, a single repair job on a single designated boat, had no element of permanency. In each instance, his assignment to repair and his repair job on a particular boat was wholly transitory in character. In short, at no time was Rotolo permanently assigned to or connected with a specified boat, or two or more specified boats. And Rotolo did not do a substantial part of his work on a specified boat, or two or more specified boats. And the relation of the repairs which he performed on a boat, if any, to the functioning of the boat, or the accomplishment of its mission, was extremely tenuous. It was substantially different from day-to-day maintenance of a particular boat or boats.
23
The instant case is clearly distinguishable from a case where the injured person regularly performed a substantial part of his work on every one of several specified vessels, like, for example, a company pilot regularly employed and who customarily and regularly boarded every one of several vessels to dock and undock it.
24
It is likewise distinguishable from the Braniff case, supra, where the injured person, a master mechanic, was assigned to keep in repair a specific group of ferries and each morning boarded each of the ferries to ascertain whether any maintenance or repair work needed to be done on it, and then proceeded with his helper and a gang of workmen to do such maintenance or repair work as was needed, either while the ferries were under way or withdrawn from service.
25
We conclude that there was no reasonable evidentiary basis to support a jury finding that Rotolo, at the time of his injury, was a seaman and member of a crew of a vessel under the Jones Act.
26
Affirmed.
Notes:
*
Of the Tenth Circuit, sitting by designation
1
Hereinafter referred to as Rotolo
2
See review of cases in Offshore Company v. Robison, 5 Cir., 266 F.2d 769
3
Offshore Company v. Robison, 5 Cir., 266 F.2d 769, 778; Thibodeaux v. J. Ray McDermott & Co., 5 Cir., 276 F.2d 42, 46
|
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0218p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
KAREN WAESCHLE, individually and on
Plaintiff-Appellant, --
behalf of others similarly situated,
-
No. 11-1878
,
>
-
v.
LJUBISA J. DRAGOVIC, M.D., Oakland County -
-
-
Medical Examiner, individually and in his
-
-
official capacity as Medical Examiner of
Defendants-Appellees. -
Oakland County, Michigan; et al.,
N
Appeal from the United States District Court
for the Eastern District of [email protected].
No. 2:08-cv-10393—Victoria A. Roberts, District Judge.
Decided and Filed: July 16, 2012
Before: ROGERS and GRIFFIN, Circuit Judges; and HOOD, District Judge.*
_________________
COUNSEL
ON BRIEF: John H. Metz, Cincinnati, Ohio, Patrick J. Perotti, DWORKEN &
BERNSTEIN CO., Painesville, Ohio, for Appellant. William H. Horton,
GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, Keith J. Lerminiaux,
OAKLAND COUNTY CORPORATION COUNSEL, Pontiac, Michigan, for Appellees.
_________________
OPINION
_________________
PER CURIAM. Plaintiff Karen Waeschle, the daughter of a decedent whose
brain was retained and disposed of pursuant to a lawful criminal investigation, appeals
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 11-1878 Waeschle v. Dragovic, et al. Page 2
the district court’s grant of summary judgment in favor of Defendants on Waeschle’s
claim under 42 U.S.C. § 1983. Defendants seek sanctions pursuant to Fed. R. App. P.
38 and 28 U.S.C. §§ 1912 and 1927. After reviewing the record and considering the
arguments presented on appeal, we AFFIRM the district court’s grant of summary
judgment.
I. Factual and Procedural Background
Following the death of Waeschle’s mother, the Oakland County, Michigan
Medical Examiner performed an autopsy to determine the cause of her death. While the
mother’s remains were returned to Waeschle, the Medical Examiner retained the brain
for further study without Waeschle’s knowledge. After Waeschle discovered that her
mother’s brain had been retained and later incinerated as medical waste, she sued
Oakland County and the Medical Examiner, alleging that the Medical Examiner had
violated the Due Process Clause of the Fourteenth Amendment by denying her the right
to dispose of her mother’s brain as she saw fit.
This case was filed in district court in early 2008 and, in June of that year,
Defendants moved to dismiss Waeschle’s complaint or, in the alternative, asked the
district court to certify to the Michigan Supreme Court the issue of a next-of-kin’s
property interest in a decedent’s organs following an autopsy. The court dismissed
Waeschle’s state law claims but denied Defendants’ motion with respect to Waeschle’s
due process claim, finding that certification to the state supreme court was unnecessary
since, in the district court’s mind, under “Michigan’s clearly established law . . . next-of-
kin have an interest in their deceased relative’s remains/body parts.” When Defendants
appealed that finding, a panel of this Court found that Waeschle’s property interest in
her mother’s brain was not clearly established and that certification to the Michigan
Supreme Court was warranted. See Waeschle v. Dragovic, 576 F.3d 539 (6th Cir. 2009).
On October 29, 2010, the Michigan Supreme Court issued its answer to the certified
question:
Assuming that a decedent’s brain was removed by a medical examiner
to conduct a lawful investigation into the decedent’s cause of death, the
No. 11-1878 Waeschle v. Dragovic, et al. Page 3
decedent’s next of kin does not have a right under Michigan law to
possess the brain in order to properly bury or cremate the same after the
brain is no longer needed for forensic examination.
In re Certified Question from U.S. District Court for Eastern Dist. Of Mich., 793 N.W.2d
560, 561 (Mich. 2010). In January 2011, Defendants filed a renewed motion for
summary judgment, based on the Michigan Supreme Court’s answer to the certified
question, which the district court granted in March 2011. Waeschle then filed a motion
for relief from judgment under Fed. R. Civ. P. 59(e), which was denied in June 2011.
This appeal followed.
II. Discussion
A. The District Court Did Not Err in Granting Summary Judgment for
Defendants
We review a district court’s grant of summary judgment de novo. Braun v. Ann
Arbor Charter Twp., 519 F.3d 564, 569 (6th Cir. 2008). Summary judgment is
appropriate where “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).
This matter presents only a question of law because, rather than suggesting that there is
a genuine issue of material fact, Waeschle and her attorneys continue to make the same
legal arguments that have been rejected repeatedly by this Court and others. Because
our decision in Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010) – a case nearly identical
to the one sub judice – controls nearly all of the issues raised, little discussion of
Waeschle’s arguments is necessary. First, as pointed out in Albrecht, 617 F.3d at 895,
state law defines property rights. See also Logan v. Zimmerman Brush Co.,
455 U.S. 422, 430 (1982) (“The hallmark of property . . . is an individual entitlement
grounded in state law.”). Under Michigan law, a next of kin does not have a property
interest in a decedent’s brain that was removed and retained pursuant to a lawful
investigation. See In re Certified Question from U.S. District Court for Eastern Dist. of
Mich., 793 N.W.2d 560. In ruling on the certified question in this matter, the Michigan
Supreme Court did not “overrule” the Sixth Circuit’s decision in Whaley v. County of
No. 11-1878 Waeschle v. Dragovic, et al. Page 4
Tuscola, 58 F.3d 1111 (6th Cir. 1995), as Waeschle argues. Prior to its decision on the
question certified in this matter, the Michigan Supreme Court had not had occasion to
state the legal rule applicable to the precise [email protected]. Further, in Whaley, this Court
did not craft substantive law regarding Michigan property interests. Rather, it made its
best prediction as to what the Michigan Supreme Court would say about the matter,
given the opportunity. Accordingly, the Michigan Supreme Court, in its response to the
certified question, did not overrule existing law but, instead, provided clarification as to
Michigan property law as it always was. Further, as in Albrecht, the issue of
retroactivity is irrelevant since the Michigan Supreme Court’s decision did not alter
Michigan law. And while Appellant argues that the district court’s decision is
irreconcilable with this Court’s decision in Whaley, as has been explained repeatedly,
the two cases are distinguishable. Whaley, like Brotherton v. Cleveland, M.D., 923 F.2d
477 (6th Cir. 1991), involved the unauthorized harvesting of eyes and corneas for
donation purposes, whereas this case concerns the removal of an organ for a lawful
investigation.
Waeschle also suggests that the Court should recognize a new, constitutionally-
protected, fundamental right to dispose of the remains of a deceased loved one, but she
failed to raise this argument before the district court. In her response to Appellees’
motion for sanctions, Waeschle contends that she has “consistently argued that she has
a fundamental right to receive and dispose of the body of her deceased mother.”
However, we have closely inspected the district court record and can find no such
argument, nor did the district court ever consider or rule upon this issue. Despite
Waeschle’s occasional use of the phrase “fundamental right” in her filings before the
district court, she never developed an argument on this front, despite several
opportunities to do so. See Washington v. Glucksburg, 521 U.S. 702, 720-21 (1997)
(describing “fundamental right” analysis). This Court’s “function is to review the case
presented to the district court, rather than a better case fashioned after a district court’s
unfavorable order.” DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448
F.3d 918, 922 (6th Cir. 2006). Because Waeschle did not raise her substantive-due-
process argument before the district court and no exceptional circumstances warranting
No. 11-1878 Waeschle v. Dragovic, et al. Page 5
our consideration of the issue exist, we decline to entertain the argument now.
See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (internal quotations
omitted) (Court has occasionally “deviated from the general rule in exceptional cases or
particular circumstances or when the rule would produce a plain miscarriage of
justice.”).
B. Sanctions
Following Waeschle’s appeal to this Court, Defendants filed a motion for
sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. §§ 1912 and
1927, arguing that the appeal is frivolous. Section 1912 provides that, where a judgment
is affirmed by a court of appeals, the court, in its discretion, may award the prevailing
party “just damages for his delay, and single or double costs.” Fed. R. App. P. 38 is
similar, allowing a court of appeals to “award just damages and single or double costs
to the appellee” in the event the court determines that an appeal is frivolous. This Court
deems an appeal to be frivolous when “the appellant’s arguments ‘essentially had no
reasonable expectation of altering the district court’s judgment based on law or fact.’”
Tareco Props, Inc. v. Morriss, 321 F.3d 545, 550 (6th Cir. 2003) (quoting Wilton Corp.
v. Ashland Castings Corp., 188 F.3d 670, 677 (6th Cir. 1999)). The Court also has
discretion, under 28 U.S.C. § 1927, to assess excess costs, expenses, and attorney fees
directly against an attorney “who so multiplies the proceedings in any case unreasonably
and vexatiously.” 28 U.S.C. § 1927. This standard is satisfied “when an attorney knows
or reasonably should know that a claim pursued is frivolous.” Tareco Props, Inc.,
321 F.3d at 550 (quoting Jones v. Cont’l Corp., 789 F.2d 1225, 1230 (6th Cir. 1986)).
Based on this Court’s decision in Albrecht, 617 F.3d 890, the current appeal, as
argued by Waeschle, had no chance of success when filed. Accordingly, Waeschle,
through counsel, pursued this appeal in the face of clear circuit precedent that rendered
her arguments meritless. In her brief, Waeschle fails to acknowledge our decision in
Albrecht – let alone to attempt to distinguish it from the facts of this case, an extremely
troubling omission since Waeschle’s counsel represented the appellants in Albrecht.
Clearly, Waeschle was entitled to make a good-faith argument for a change in the law.
No. 11-1878 Waeschle v. Dragovic, et al. Page 6
In doing so, however, counsel, as officers of the court, were obligated to acknowledge
that they were doing just that and to deal candidly with the obvious authority that is
contrary to appellant’s position. Because, at the time this appeal was filed, there was no
clear requirement from this Court that he do so, we are hesitant to impose sanctions.
Today’s opinion shall serve as an admonition, however, that future failures to
acknowledge clear precedent may result in the imposition of sanctions.
III. CONCLUSION
We AFFIRM the district court’s grant of summary judgment for Defendants and
DENY the Defendants’ motion for sanctions under Fed. R. App. P. 38 and 28 U.S.C.
§§ 1912 and 1927.
|
Fourth Court of Appeals
San Antonio, Texas
March 16, 2021
No. 04-20-00108-CR
Genene JONES,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR5730
Honorable Frank J. Castro, Judge Presiding
ORDER
Appellee’s motion for an extension of time to file its brief is GRANTED. Appellee’s
brief was filed on March 12, 2021.
It is so ORDERED on March 16, 2021.
PER CURIAM
ATTESTED TO: _______________________
Michael A. Cruz
Clerk of Court
|
*404OPINION.
Steenhagen :
The petitioners are, and during the year 1922 were, the trustees of an active trust taxable for 1922 under section 219, Bevenue Act of 1921. During 1922, having held for the. investment purposes of the trust, 5,534 shares of the common stock of Eastman Kodak Co., the income of which had been used for distribution under the trust, they exchanged such stock for Federal, State, municipal and railway bonds and thereafter used the income therefrom in the same way. None of the primary facts are in dispute; the only controversy is as to whether the gain of $1,175,975 escapes recognition and its consequent tax because of section 202 (c) (1), Bevenue Act 1921. This provision is as follows:
(c) For the purposes of this title, on an exchange of property, real, personal or mixed, for any other such property, no gain or loss shall be recognized unless the property received in exchange has a readily realizable market value; but even if the property received in exchange has a readily realizable market value, no gain or loss shall be recognized—
(1) When any such property held for investment, or for productive use in trade or business (not including stock-in-trade or other property held primarily for sale), is exchanged for property of a like kind or use.
It is clear that this was an exchange of property held for investment for other property held for investment. Not only was this proven in fact by the testimony of one of the executors and trustees, but this was the obvious necessity of the trust under its terms. The refusal of the respondent to treat the exchange as within section 202 (c) (1) is based on his view, clearly expressed in his Begulations 62, article 1566, that bonds are not property “ of a like kind ” as stock. In thus narrowing the question he also treats the words “ or use ” as not applicable to investment property but applicable only to productive business property.
■ We think there is no support for respondent’s refusal to apply the words “ or use ” to investment property. However logical it might otherwise be to treat the word “ use ” as if its meaning were the same in each of its two places in the single sentence, the history of the provision in Congress destroys this construction and shows that the words “ like kind or use ” were intended by Congress to be applied to all the property received in any such exchange as is covered by the *405paragraph. As the provision appeared in the original House Bill, H. R. 8245, section 202 (d), it was in the form as finally enacted. The House Committee on Ways and Means, to which the bill was referred, said in its report:
The bill (subdivision (d), p. 6) provides new and explicit rules for determining gain .or loss where property is exchanged for other property. Under existing law, “ when property is exchanged for other property, the property received in exchange shall for the purpose of determining gain or loss be treated as the equivalent of cash to the amount of its fair market value, if any * »• * Probably no part of the present income-tax law has been productive of so much uncertainty and litigation or has more seriously interfered with those business readjustments which are peculiarly necessary under existing conditions. Under existing law the presumption is in favor of taxation. The proposed bill modifies that presumption by providing that on an exchange of property for property no gain or loss shall be recognized unless the property received in exchange has a definite and readily realizable market value; and specifies in addition certain classes of exchanges on which no gain or loss is recognized even if the property received in exchange has a readily realizable market value. The preceding amendments, if adopted, will by removing a source of grave uncertainty, not only permit business to go forward with the readjustments required by existing conditions but will also considerably increase the revenue by preventing taxpayers from taking colorable losses in wash sales and other fictitious exchanges. Proper safeguards are found in subdivisions (e) and (f), which provide that where property is exchanged for other property and no gain or loss is recognized the property received shall be treated as taking the place of the property exchanged, for the purpose of determining gain or loss and for the purpose of determining certain important deductions, such as those for depreciation.
The Senate received the bill in this form and struck out the words “ investment or for,” leaving the provision as follows:
(1) When any such property held for investment,' er fer productive use in trade or business (not including stock-in-trade or other property held primarily for sale), is exchanged for property of a like kind or use.
The Finance Committee in its report to the Senate said:
Section 202 (subdivision c) provides for those exchanges or “trades” in which, although a technical “ gain ” may be realized under the present law, the taxpayer actually realizes no cash profit.
Under existing law “ when property is exchanged for other property, the property received in exchange shall, for the purpose of determining gain or loss, be treated as the equivalent of cash to the amount of its fair market value, if any * * * .” Probably no part of the present income tax law has been productive of so much uncertainty or has more seriously interfered with necessary business readjustments. The existing law makes a presumption in favor of taxation. The proposed act modifies that presumption by providing that in the case of an exchange of property for property no gain or loss shall be recognized unless the propérty received in exchange has a readily realizable market value, and specifies in addition certain classes of exchanges on which no gain or loss is recognized even if the property received in exchange has a readily realizable market value. These classes comprise the cases where productive property (other than stock in trade or property held primarily *406for sale) used in a trade or business is exchanged for property of a like kind or use; where in any corporate reorganization or readjustment stock or securities are exchanged for stock or securities of a corporation which is a party to or results from such reorganization; and where an individual or individuals transfer property to a corporation and after such transfer are in control of such corporation.
•The preceding amendments, if adopted, will, by removing a source of grave uncertainty and by eliminating many technical constructions which are economically unsound, not only permit business to go forward with the readjustments required by existing conditions but also will considerably increase the revenue by preventing taxpayers from taking colorable losses in wash sales and other fictitious exchanges.
Proper safeguards are found in subdivision (d), which provides that where property is exchanged for other property or where property is involuntarily converted into cash and the proceeds of such conversion are used to replace the property converted, or where a wash sale is not recognized, the property received in exchange shall be treated as taking the place of the original property.
The bill then went to conference and the Conference Committee of both houses restored the stricken words and in its report said:
Amendment 41: The House bill provided that when property held for investment is exchanged for property of a like kind or use no gain or loss shall be recognized even if the property received in exchange has a readily realizable market value. The Senate amendment strikes out this provision; and the Senate recedes.
Thus the Act was passed.
This indicates unmistakably that all the words “ like kind or use ” were intended to be applied indifferently to property received in exchange for investment property and for property held for productive use. Since this is a fair and reasonable interpretation of the language used, the statute must be so construed. Thus the words “like kind or use,” which in their ordinary meaning are of broad scope, are found to elucidate each other and to aid in effectuating the general purpose of the statute.
We are also of opinion that the transactions before us are within the language and purpose of the statute. We see no justification for saying as, a matter of law that for the purpose of this statute stocks and bonds are fer se not property of like kind or use. The words can not fairly be regarded as importing distinctions which have no relation to the purpose of the statute. Stocks and bonds are both commonly regarded as investment property, and if in any case they are not so in fact it must be because the evidence so indicates. While their legal incidents are different, such differences are not controlling of the scope and purpose of this ^statutory- provision, although they may be of great importance when involved in another statute. Because the Supreme Court held in Marr v. United States, 263 U. S. 536, that stock in an old corporation was “an essentially different *407thing from stock of the same general kind in the new,” it does not follow that investment in one would not have been held of like kind or use as investment in the other, had this statute been under consideration. Both the language and the purpose of the two statutes are different, and the two questions require different methods of approach.
If the test lies in an identity of legal rights inherent in the property, the provision could be practically nullified. Is preferred stock only to be exchanged for preferred stock, and if so, is all preferred stock to be treated as of like kind? Suppose that instead of exchanging the Eastman stock for several classes of bonds, these trustees had taken in part some common or preferred stock, see Applegate, Executor, 10 B. T. A. 705; it is not reasonable to say that Congress intended by a method of apportionment or otherwise to tax a part of the gain in the year of exchange and leave the remaining gain unrecognized until a future sale, when the old basis is to be used. Such a distinction would be wholly arbitrary and have no sensible relation to the plan or purpose of the statute. It was apparently intended to ignore the usual gain or loss if an undoubted investor merely shifted his investment into other property — to soften the sharp lines of the law not only so as to relieve from tax a technical gain but also to prevent the deduction of “ colorable losses.” To interpret this by setting up a rigid classification as between stocks and bonds would merely change the standard of gain or loss from one technical test to another. By virtue of what test is investment property to be classified, if, as respondent’s regulation, article 1566, indicates, all real estate is treated as of a kind, such as city lots and a ranch, E. R. Braley, 14 B. T. A. 1153, or a city office building and a suburban apartment house, Pearce, Trustee, 13 B. T. A. 150, while securities are to be classified according to their “ nature,” so that stocks of all classes are of like kind, such as common and prefex-red, Frank Filer, 14 B. T. A. 1084, but are not of like kind with debenture bonds, Margaret M. Edson, 11 B. T. A. 621 ? To say that industi'ial bonds, on the one hand, and municipal, State, and Federal bonds, on the other, differ only in “ grade or quality ” and not in “ kind or class ” as in respondent’s ruling, GCM 1637, VI-1 CB 166, creates a strained distinction. Congress has laid doAvn no such test in the Act and nothing in its legislative reports indicates such a restriction upon the ordinary meaning of the language used. The regulation goes further than the statute and is in our opinion unauthorized. Morrill v. Jones, 106 U. S. 466.
If it be asked, what is the scope of the language used, it can only be said that no classification can be laid down in advance which in any instance would defeat the intendment of the statute. The *408amending Act of March 4, 1923, has removed both stocks and bonds from the operation of the provision and thus has narrowed the field of difficulty.
We conclude that the exchange shown by the evidence is within the description of section 202(c) (1) and hence that there was no recognizable or taxable gain. The decision in Margaret M. Edson, 11 B. T. A. 621, is pro tanto overruled.
Beviewed by the Board.
Judgment will be entered for the petitioner.
Trammell dissents.
|
182 Conn. 344 (1980)
EVELYN B. CARABETTA
v.
JOSEPH F. CARABETTA
Supreme Court of Connecticut.
Argued October 8, 1980.
Decision released November 25, 1980.
COTTER, C. J., BOGDANSKI, PETERS, HEALEY and PARSKEY, JS.
*345 James R. Greenfield, with whom was Louise C. LaMontagne, for the appellant (plaintiff).
William A. Jacobs, with whom were Irving H. Perlmutter and, on the brief, Gary P. Sklaver, for the appellee (defendant).
PETERS, J.
This is an appeal from the dismissal of an action for the dissolution of the marriage between the plaintiff, Evelyn B. Carabetta, and the defendant, Joseph F. Carabetta. The trial court, Reynolds, J., determined that the parties had never been legally married and thereupon granted the defendant's motion to dismiss for lack of jurisdiction over the subject matter. From the judgment rendered against her, the plaintiff has appealed.
Neither the plaintiff nor the defendant presently disputes the facts found in the trial court's memorandum of decision, which establish the following. The plaintiff and the defendant exchanged marital vows before a priest in the rectory of Our Lady of Mt. Carmel Church of Meriden, on August 25, 1955, according to the rite of the Roman Catholic Church, although they had failed to obtain a marriage license. Thereafter they lived together as husband and wife, raising a family of four children, all of whose birth certificates listed the defendant as their father. Until the present action, the defendant had no memory or recollection of ever having denied that the plaintiff and the defendant were married.
The issue before us is whether, under Connecticut law, despite solemnization according to an appropriate religious ceremony, a marriage is void where there has been noncompliance with the statutory requirement of a marriage license. This is a question *346 of first impression in this state. The trial court held that failure to obtain a marriage license was a flaw fatal to the creation of a legally valid marriage and that the court therefore lacked subject matter jurisdiction over an action for dissolution. We disagree with the court's premise and hence with its conclusion.
The determinants for a legally valid marriage are to be found in the provisions of our statutes. "At least since Maynard v. Hill, 125 U.S. 190, 210-14, 8 S. Ct. 723, 31 L. Ed. 654 (1888), it has been clear that the legislature has plenary power to determine the circumstances under which a marital relationship is created and terminated. Morgan v. Morgan, 103 Conn. 189, 195, 130 A. 254 (1925); Starr v. Pease, 8 Conn. 541, 546-47 (1831)." Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979). Although a marital relationship is in its origins contractual, depending as it does upon the consent of the parties, "a contract of marriage is sui generis. It is simply introductory to the creation of a status, and what that status is the law determines." Gould v. Gould, 78 Conn. 242, 245, 61 A. 604 (1905); Hames v. Hames, 163 Conn. 588, 592-93, 316 A.2d 379 (1972); Perlstein v. Perlstein, 152 Conn. 152, 156, 204 A.2d 909 (1964).
In determining the status of a contested marriage, we are bound therefore to examine with care the relevant legislative enactments that determine its validity. Such an examination must be guided by the understanding that some legislative commandments, particularly those affecting the validity of a marriage, are directory rather than mandatory. "The policy of the law is strongly opposed to regarding an attempted marriage ... entered into in *347 good faith, believed by one or both of the parties to be legal, and followed by cohabitation, to be void." Hames v. Hames, supra, 599.
The governing statutes at the time of the purported marriage between these parties contained two kinds of regulations concerning the requirements for a legally valid marriage. One kind of regulation concerned substantive requirements determining those eligible to be married. Thus General Statutes (Rev. 1949) § 7301[1] declared the statutorily defined degrees of consanguinity within which a "marriage shall be void." As this court has indicated in Hames v. Hames, supra, 598, this substantive condition is not necessarily exclusive; lack of consent to a marriage, for example, would also be a substantive defect, derived from the common law, sufficient to avoid a marriage. For present purposes, it is enough to observe that, on this appeal, no such substantive defect has been alleged or proven. The other kind of regulation concerns the formalities prescribed by the state for the effectuation of a legally valid marriage. These required formalities, in turn, are of two sorts: a marriage license and a solemnization. In Hames v. Hames, supra, 599, we interpreted our statutes not to make void a marriage consummated after the issuance of a license but deficient for want of due solemnization. Today we examine the statutes in the reverse case, a marriage duly solemnized but deficient for want of a marriage license.
As to licensing, the governing statute in 1955 was a section entitled "Marriage licenses." It provided, in subsection (a): "No persons shall be joined in marriage until both have joined in an application *348... for a license for such marriage." Its only provision for the consequence of noncompliance with the license requirement was contained in subsection (e): "... any person who shall join any persons in marriage without having received such [license] shall be fined not more than one hundred dollars." General Statutes (Rev. 1949) § 7302, as amended by §1280b (1951 Sup.) and by § 2250c (1953 Sup.).[2] Neither this section, nor any other, described as void a marriage celebrated without a license.
As to solemnization, the governing section, entitled "Who may join persons in marriage," provided in 1955: "All judges and justices of the peace may join persons in marriage ... and all ordained or licensed clergymen belonging to this state or any other state so long as they continue in the work of the ministry may join persons in marriage and all marriages attempted to be celebrated by any other person shall be void; but all marriages which shall be solemnized according to the forms and usages of any religious denomination in this state shall be valid." General Statutes (Rev. 1949) §7306, as amended by § 1281b (1951 Sup.) and by § 2251c (1953 Sup.).[3] Although solemnization is not at issue in the case before us, this language is illuminating since it demonstrates that the legislature has on occasion exercised its power to declare expressly that failure to observe some kinds of formalities, e.g., the celebration of a marriage by a person not authorized by this section to do so, renders a marriage void. We have enforced the plain mandate of this injunction. State ex rel. Felson v. Allen, 129 Conn. 427, 431, 29 A.2d 306 (1942).
*349 In the absence of express language in the governing statute declaring a marriage void for failure to observe a statutory requirement, this court has held in an unbroken line of cases since Gould v. Gould, 78 Conn. 242, 247, 61 A. 604 (1905), that such a marriage, though imperfect, is dissoluble rather than void. Hames v. Hames, supra, 598; Perlstein v. Perlstein, 152 Conn. 152, 157-58, 204 A.2d 909 (1964); Vendetto v. Vendetto, 115 Conn. 303, 305, 161 A. 392 (1932). We see no reason to import into the language "[n]o persons shall be joined in marriage until [they have applied for] a license," a meaning more drastic than that assigned in Gould v. Gould, supra, to the statute that then provided that "[n]o man and woman, either of whom is epileptic ... shall intermarry." Although the state may well have a legitimate interest in the health of those who are about to marry, Gould v. Gould held that the legislature would not be deemed to have entirely invalidated a marriage contracted in violation of such health requirements unless the statute itself expressly declared the marriage to be void. Then as now, the legislature had chosen to use the language of voidness selectively, applying it to some but not to all of the statutory requirements for the creation of a legal marriage. Now as then, the legislature has the competence to choose to sanction those who solemnize a marriage without a marriage license rather than those who marry without a marriage license. In sum, we conclude that the legislature's failure expressly to characterize as void a marriage properly celebrated without a license means that such a marriage is not invalid.
The plaintiff argues strenuously that our statutes, far from declaring void a marriage solemnized without a license, in fact validate such a marriage whenever *350 it has been solemnized by a religious ceremony. The plaintiff calls our attention to the language of § 7306, as amended, that "all marriages ... solemnized according to the forms and usages of any religious denomination in this state shall be valid." To the extent that this language suggests greater validity for a marriage solemnized by a religious ceremony than for one solemnized by a civil ceremony, it is inconsistent with other provisions of the statutes with regard to solemnization and licensing. It has long been clear that, under our laws, all authority to join parties in matrimony is basically secular. In Hames v. Hames, supra, 594-95, we recently reaffirmed the holding of Goshen v. Stonington, 4 Conn. 209, 218-19 (1822), that "[a] clergyman in the administration of marriage, is a public civil officer, and in relation to this subject, is not at all distinguished from a judge ... or a justice of the peace, in the performance of the same duty." Neither counsel nor this court has been able to discover the legislative history attending the enactment of this puzzling language. Whatever may be its antecedents, for present purposes it is sufficient to note that § 7306 at the very least reenforces our conclusion that the marriage in the case before us is not void.
The conclusion that a ceremonial marriage contracted without a marriage license is not null and void finds support, furthermore, in the decisions in other jurisdictions. See, e.g., DePotty v. DePotty, 226 Ark. 881, 884, 295 S.W.2d 330 (1956); Haderaski v. Haderaski, 415 Ill. 118, 120, 112 N.E.2d 714 (1953); Feehley v. Feehley, 129 Md. 565, 568, 99 A. 663 (1916); Johnson v. Johnson, 235 S.C. 542, 551-52, 112 S.E.2d 647 (1960); contra, see, e.g., Edwards v. Franke, 364 P.2d 60, 63 (Alaska 1961); *351 Abbott v. Abbott, 282 N.W.2d 561, 566 (Minn. 1979); see also annot., 61 A.L.R. 2d 847 (1958). In the majority of states, unless the licensing statute plainly makes an unlicensed marriage invalid, "the cases find the policy favoring valid marriages sufficiently strong to justify upholding the unlicensed ceremony. This seems the correct result. Most such cases arise long after the parties have acted upon the assumption that they are married, and no useful purpose is served by avoiding the long-standing relationship. Compliance with the licensing laws can better be attained by safeguards operating before the license is issued, as by a more careful investigation by the issuing authority or the person marrying the parties." Clark, Domestic Relations, p. 41 (1968).
Since the marriage that the trial court was asked to dissolve was not void, the trial court erred in granting the motion to dismiss for lack of jurisdiction over the subject matter. We need not decide whether the plaintiff's cause of action should have been an action for annulment rather than an action for dissolution. That question should have been raised by a motion to strike; see Practice Book, 1978, § 152; not by a motion to dismiss for lack of subject matter jurisdiction. Hames v. Hames, supra, 598-99; Perlstein v. Perlstein, supra, 155. In either case the trial court had subject matter jurisdiction.
There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.
In this opinion COTTER, C. J., HEALEY and PARSKEY, Js., concurred.
*352 BOGDANSKI, J. (concurring). I concur but would hold that the present marriage is valid and subject to an action for dissolution on the ground that the court had jurisdiction over the parties and the subject matter, i.e., an existing marriage for twenty-five years. Indeed, the domicil of even one of the parties is sufficient to bestow jurisdiction upon the court. Mazzei v. Cantales, 142 Conn. 173, 112 A.2d 205 (1955). Moreover, recently in Hames v. Hames, 163 Conn. 588, 596, 316 A.2d 379 (1972), we quoted 1 Swift, Digest, p. 20, with approval, which stated, "[a]ny form of words which explicitly constitute a contract and engagement from the parties to each other, and published in presence of, and by the officer appointed by the Statute, will be a valid marriage."
It is undisputed that the parties were married in the rectory of Our Lady of Mt. Carmel Church in Meriden, on August 25, 1955, according to the rites of the Roman Catholic Church; that they thereafter lived together as husband and wife, raising a family of four children, all of whose birth certificates listed the defendant as their father. There is no statutory enactment in Connecticut which holds that a solemnized marriage is invalid because of the absence of a license. Indeed, General Statutes (Rev. 1949) § 7306 expressly provided that "... all marriages which shall be solemnized according to the forms and usages of any religious denomination in this state shall be valid...." To solemnize is "to unite a couple in (marriage) with religious ceremony." Webster, Third New International Dictionary.
Marriage is strongly favored by the law; Sanders v. Sanders, 52 Ariz. 156, 79 P.2d 523 (1938); Dunham v. Dunham, 162 Ill. 589, 44 N.E. 841 (1896); Kelley v. Kelley, 51 R.I. 173, 153 A. 314 (1931); *353 annot., 74 A.L.R. 138; and existing marriages are presumed to be valid and that presumption has been described by the courts as very strong. Sy Joe Lieng v. Sy Quia, 228 U.S. 335, 33 S. Ct. 514, 57 L. Ed. 862 (1913); see annots., 77 A.L.R. 729; 34 A.L.R. 464, 470. It is a presumption that grows stronger with the passage of time, is especially strong when the legitimacy of children is involved, and can only be negated by disproving every reasonable possibility that it is valid. Reed v. Reed, 202 Ga. 508, 43 S.E.2d 539 (1947).
NOTES
[1] Now General Statutes § 46b-21.
[2] Now General Statutes § 46b-24.
[3] Now General Statutes § 46b-22.
|
748 F. Supp. 2d 354 (2010)
ETHYPHARM S.A. FRANCE, Plaintiff,
v.
ABBOTT LABORATORIES, Defendants.
Civil Action No. 08-126-SLR-MPT.
United States District Court, D. Delaware.
November 2, 2010.
*356 Gregory Brian Williams, Sophia Siddiqui, Fox Rothschild LLP, Wilmington, DE, for Plaintiff.
David J. Margules, Sean M. Brennecke, Bouchard, Margules & Friedlander, P.A., Wilmington, DE, Benjamin S. Litman, Jeffrey I. Weinberger, Mark R. Conrad, Michelle W. Cohen, Stuart N. Senator, Thomas W. Pippert, Pro Hac Vice, for Defendants.
MEMORANDUM ORDER
MARY PAT THYNGE, United States Magistrate Judge.
I. INTRODUCTION
Plaintiff Ethypharm S.A. France ("Ethypharm") and defendant Abbott Laboratories ("Abbott") manufacture drugs containing fenofibrate. Fenofibrate is used to reduce cholesterol levels in patients at risk of cardiovascular disease. Ethypharm, a privately-held French company, manufactures a brand name fenofibrate called Antara. Ethypharm does not directly sell or distribute Antara in the United States; instead, Ethypharm contracted with Reliant Pharmaceuticals, Inc. ("Reliant") to market and distribute the drug in 2001. Abbott manufactures, markets, and sells another brand name fenofibrate called TriCor within the United States. Abbott licenses the exclusive rights to manufacture and sell TriCor in the United States from Laboratories Fournier ("Fournier"), a French company credited with the drug's discovery. Abbott lists five TriCor-related patents in the Orange BookNos. '726, '670, '405, '552, and '881.
II. BACKGROUND
On June 1, 2004, Reliant filed a declaratory action in the United States District Court for the District of Delaware seeking a declaration of non-infringement regarding Abbott's fenofibrate patents. Reliant claimed that Abbott's fenofibrate patents were unenforceable due to inequitable conduct during their prosecution before the United States Patent and Trademark Office ("USPTO"). Abbott filed a counterclaim alleging infringement of the '405 and '881 patents.
On or about April 3, 2006, Abbott and Reliant entered into a series of agreements, including a "Settlement Term Sheet" ("STS"). The STS allowed Reliant to sell and distribute Antara without the risk of infringement. In exchange, the STS barred Reliant from selling the rights to Antara to a select list of competitors capable of more efficiently expanding Antara sales. Additionally, the STS imposed a 7% royalty on Antara sales, restrained Reliant from making any new formulations or combination products containing fenofibrate formulations, and prevented Reliant from co-promoting Antara with specific companies without Abbott's written consent. The court dismissed the declaratory action by stipulation of the parties on April 19, 2006. Later that year, Reliant sold the exclusive rights to market and sell Antara to Oscient Pharmaceutical Company ("Oscient").
Ethypharm filed this suit against Abbott on March 3, 2008. In its amended complaint, Ethypharm alleges that Oscient has limited resources and a relatively small sales force, preventing the ability of Antara to compete with TriCor. Ethypharm claims that the STS, and therefore *357 Abbott, wrongfully interfered with Ethypharm and Reliant's licensing agreement in a manner equivalent to an "output restraining agreement." Ethypharm asserts that Abbott's contractual restrictions rise to the level of anticompetitive conduct prohibited by Sections 1 and 2 of the Sherman Act.[1] Ethypharm further claims that Abbott's infringement counterclaims during Reliant's declaratory action constituted sham litigation in violation of Section 1 of the Sherman Act. Ethypharm also alleges violations of the common laws of unfair competition, tortious interference with prospective economic advantage, and unlawful restraint of trade.
On February 15, 2010, Abbott acquired complete ownership of Fournier as part of Abbott's purchase of Solvay Pharmaceuticals. As a result of this ownership, Ethypharm argues that Abbott has also acquired Fournier's document production responsibilities as well as the responsibility to produce certain current and former Fournier employees living outside of the United States for deposition. The parties differ regarding the proper procedure by which Ethypharm must request the production of these foreign witnesses. Ethypharm argues that it may proceed under the Federal Rules of Civil Procedure ("Federal Rules"), while Abbott argues that Ethypharm's request must comport with the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Convention"). Because the discovery deadline in this case is scheduled for December 17, 2010, the court instructed the parties, on September 9, 2010, to prepare letters of request pursuant to the requirements of the Hague Convention while the discovery jurisdictional issue is resolved.
On September 21, 2010, Ethypharm filed a motion to issue letters of request for international judicial assistance regarding production for deposition of at least six current or former Fournier employees. Ethypharm also submitted two draft letters of request written on behalf of the court and in accordance with the requirements expressed in Article 3 of the Hague Convention. The first, addressed to the French judicial authorities, requests judicial assistance to compel the appearance of five former or current Fournier employees for deposition. The second, addressed to judicial authorities in Switzerland, requests assistance in the production of a former Fournier CEO currently residing in Switzerland. Abbott filed a partial opposition on October 5, 2010 and Ethypharm submitted a reply brief in support of its original motion on October 18, 2010. In its partial opposition, Abbott contends that the topic of inequitable conduct during the prosecution of Abbott's '726 patent is an inappropriate subject matter for discovery in this action because Ethypharm's sham litigation claim is unrelated to the '726 patent.
This is the court's decision on Ethypharm's September 21, 2010 motion. The court recognizes that this decision may be rendered moot by its decision regarding the application of the Federal Rules or the Hague Convention to the [email protected]. The court further recognizes that Ethypharm's efforts to begin the issuance of Hague Convention letters of request will not prejudice Ethypharm's concurrent claim that Abbott is obliged to produce the requested witnesses pursuant to the Federal Rules. Finally, the court acknowledges that Abbott does not challenge the relevance of any discovery regarding the '726 patent and its disclosure as prior art in the '670, '405, '552, and '881 patents.
III. DISCUSSION
Rule 28(b) of the Federal Rules provides that a deposition may be taken in a foreign *358 country: (1) under an applicable treaty or convention; (2) under a letter of request, whether or not captioned a "letter rogatory"; (3) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (4) before a person commissioned by the court to administer any necessary oath and take testimony.[2]
The United States, France, and 15 other nations entered into the Hague Convention on March 18, 1970.[3] The Convention "prescribes certain procedures by which a judicial authority in one contracting state may request evidence located in another contracting state."[4] Article 1 of the Convention provides that "[i]n civil or commercial matters a judicial authority of a Contracting State may ... request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act."[5] 28 U.S.C. § 1781(b)(2) permits the court to transmit letters of request to a foreign or international tribunal, officer, or agency.[6] "[A] letter rogatory is the request by a domestic court to a foreign court to take evidence from a certain witness."[7] Courts have found "that some good reason must be shown by the opposing party for a court to deny an application for a letter rogatory."[8]
Through its proposed letters rogatory, Ethypharm seeks discovery on the "prosecution of some or all of the TriCor patents before the USPTO," and "issues of inequitable conduct and sham litigation in connection with each of the TriCor Patents." In its partial opposition to Ethypharm's motion, Abbott requests the court insert a restriction stating: "This court has reviewed Ethypharm's requested topics for questioning and has determined that there should be no questioning regarding the procurement or prosecution of the '726 patent." According to Abbott, the enforceability of the '726 patent is not an issue in this litigation, and as a result, any questioning about the prosecution of the '726 patent is irrelevant and inappropriate under both the Hague Convention and the Federal Rules.
Article 1 of the Hague Convention provides that a letter of request "shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated."[9] Under the liberal discovery provisions of the Federal Rules, parties may inquire through deposition as to a matter whose admissibility is not immediately apparent, provided the inquiry is reasonably calculated to lead to the discovery of admissible evidence.[10]*359 That discovery, however, must nevertheless comport with Federal Rule 26, which requires that discoverable evidence be "relevant to [a] party's claim or defense."[11] Rule 28(b), authorizing foreign discovery, "must be read together with Rule 26(c), which permits a court to make any order `which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'"[12]
A. Ethypharm's Claims Regarding the STS and Related Agreements
In its amended complaint, Ethypharm alleges that, via the STS and other allegedly unlawful agreements, Abbott "planned and executed a sustained strategy to monopolize and attempt to monopolize the [fenofibrate] market ... by entering [into] illegal and anticompetitive agreements with Ethypharm's exclusive licensee and distributor in the United States."[13] Under the STS, Abbott and Fournier agreed to "grant Reliant a non-exclusive license ... under the Stamm Patents ... to exploit the Reliant Products in the United States and its territories and possessions."[14] In exchange for this right to exploit products that may infringe upon the Stamm Patents, Reliant agreed to certain restrictions regarding the distribution and sale of those products.[15] The "Stamm Patents" as defined within the STS consist of '726, '670, '405, '552, and '881 patents.[16] Ethypharm claims that the restrictions imposed by the STS and other related agreements were unlawful under antitrust law because the scope of the restrictions exceeded Abbott and Fournier's patent rights. Ethypharm argues that Abbott exceeded the scope of its legitimate patent rights because each of these patents, including the '726 patent, were unenforceable due to Abbott and Fournier's inequitable conduct.
Federal Rule 9(b) requires that a party alleging fraud or mistake "must state with particularity the circumstances constituting fraud or mistake."[17] "[T]o plead the `circumstances' of inequitable conduct with the requisite `particularity' under Rule 9(b), the pleading must identify the specific who, what, when, where, and how of the material misrepresentation or omission committed before the PTO."[18] Further, a pleading of inequitable conduct "must include sufficient allegations of underlying facts from which a court may reasonably infer that a specific individual (1) knew of the withheld material information or of the falsity of the material misrepresentation, and (2) withheld or misrepresented this information with a specific intent to deceive the PTO."[19] Regarding the '726 patent, Ethypharm's amended complaint does not specify any inequitable conduct related to its prosecution.
Among the purposes behind the particularity requirement of Rule 9(b) is "to deter the filing of charges of fraud as a pretext for discovery of unknown wrongs."[20] Although this and other courts have held that, under the Rule 16(b) requirements for good cause to amend an answer, a *360 party may conduct discovery before making any allegations of inequitable conduct,[21] where a party requests discovery to determine whether it has any basis for inequitable conduct, it is improper to use discovery in search of a factual predicate required to be pled in the first instance.[22] The court therefore finds that any inequitable conduct during the '726 patent prosecution is not relevant to Ethypharm's claims related to the STS and related agreements.
B. The '726 Patent and Ethypharm's Sham Litigation Claims
Abbott notes that, with regard to Ethypharm's sham litigation claims, the only patents at issue are those asserted against Reliant in response to Reliant's declaratory actionthe '405 and '881 patents. Abbott reasons that because the '726 patent is in a different family than any of the other Stamm Patents ("PharmaPass patents"), and has different inventors and no priority relationship with the PharmaPass patents, any alleged inequitable conduct in connection with the prosecution of the '726 patent has no relevance to Ethypharm's sham litigation claims.
Ethypharm avers that at the time of the Reliant litigation, Abbott was aware that Abbott and/or Fournier had misrepresented the dissolution profile of a new version of TriCor, for which the PharmaPass patents were sought. Ethypharm suggests that Abbott aggressively, and improperly, pursued the PharmaPass patents because it was aware of the vulnerability of the unenforceable '726 patent.[23] In April 2000, as part of a reexamination of the '726 patent, Fournier submitted a forged affidavit to the USPTO, purportedly signed by Bernard Curtet, one of the inventors listed on the '726 patent, that had not been prepared or reviewed by Curtet. Fournier withdrew that forged declaration in December of that year.
Ethypharm argues that these events coincided with the prosecution of the PharmaPass patents and that the timing is important to the relevance inquiry of the instant motion.[24] Ethypharm contends that inequitable conduct relating to one patent is relevant to the questions of (1) whether the patent applicant was simultaneously engaging in inequitable conduct in connection with other patents for a different version of the same product, for which the first patent was prior art; (2) whether the same Abbott or Fournier personnel that may have committed inequitable conduct during the prosecution of the'726 patent may have done the same in the prosecution of the PharmaPass patents; and, (3) whether the history of the '726 patent may have motivated Abbott or Fournier to engage in inequitable conduct in the prosecution of the PharmaPass patents.
*361 Ethypharm's argument amounts to an accusation of unclean hands surrounding the prosecution of the entirety of the Stamm Patents. The Supreme Court, however, has found that misconduct unrelated to the matter at litigation is not relevant to the demonstration of inequitable conduct during the prosecution of the [email protected].[25] Ethypharm argues that the relationship between the '726 patent and the PharmaPass patents distinguish this case from previous holdings.[26] This argument finds credence in the Federal Circuit's findings, in dicta, that inequitable conduct "early in the prosecution may render unenforceable all claims which eventually issue from the same or related application,"[27] where the inequitable conduct has an "immediate and necessary relation" to the enforcement of the related patents.[28]
In the case sub judice, Ethypharm has not claimed in its amended complaint, nor argued in either of its briefs in support of this motion, that the '726 patent, or any inequitable conduct during its prosecution, bears such an "immediate and necessary relation" to the enforcement of the PharmaPass patents that a demonstration of inequitable conduct in the prosecution of the '726 patent will render the '405 and '881 patents unenforceable. Ethypharm only alleges that because Abbott and/or Fournier may have acted improperly during the prosecution of one patent, because of the temporal relationship between the '726 reexamination and the '405 and '881 prosecutions, and because of the personnel involved, Abbott and/or Fournier may have also acted improperly during the prosecution of '405 and '881 patents. To allow discovery regarding any inequitable conduct during the prosecution of the '726 patent in the absence of a claim concerning the enforceability of that patent or an allegation regarding the relationship between the enforceability of the '726 patent and the enforceability of the PharmaPass patents would authorize a fishing expedition beyond that which is nominally permitted by the Federal Rules.[29]
IV. CONCLUSION
For the foregoing reasons, Ethypharm's motion to issue letters of request for international judicial assistance (France and Switzerland) (D.I. 114) is hereby GRANTED in-part and DENIED in-part.
NOTES
[1] 15 U.S.C. § 1-7.
[2] FED.R.CIV.P. 28(b).
[3] See Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 524, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987).
[4] Id.
[5] Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, art. 1, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444.
[6] 28 U.S.C. § 1781(b)(2) (permitting "the transmittal of a letter rogatory or request directly from a tribunal in the United States to [a] foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner.").
[7] Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 248, 124 S. Ct. 2466, 159 L. Ed. 2d 355 (2004).
[8] DBMS Consultants Ltd. v. Computer Assocs. Int'l, Inc., 131 F.R.D. 367, 369 (D.Mass.1990).
[9] Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, art. 1, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444.
[10] DBMS Consultants Ltd., 131 F.R.D. at 369.
[11] FED.R.CIV.P. 26(b)(1).
[12] Evanston Ins. Co. v. OEA, Inc., No. CIV S-02-1505, 2006 WL 1652315, at *2 (E.D.Cal. June 13, 2006) (quoting FED.R.CIV.P. 26(c)(1)).
[13] D.I. 28 at ¶ 122.
[14] D.I. 132, Exhibit C at 8.
[15] Id.
[16] Id. at 7.
[17] FED.R.CIV.P. 9(b).
[18] Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1328 (Fed.Cir.2009).
[19] Id. at 1328-29.
[20] G&H Tech., Inc. v. U.S., 8 Cl.Ct. 572, 574 (Cl.Ct.1985).
[21] See Enzo Life Sciences, Inc. v. Digene Corp., 270 F. Supp. 2d 484, 487-90 (D.Del.2003); Ormco Corp. v. Align Tech., Inc., No. SACV 03-16, 2008 WL 4501805, at *10 (C.D.Cal. Oct. 3, 2008).
[22] See e.g. Segan v. Dreyfus Corp., 513 F.2d 695, 696 (2d Cir.1975); Leonard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 64 F.R.D. 432, 435 (S.D.N.Y.1974); see also FED.R.CIV.P. 26(b)(1) advisory committee's note ("The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.") (emphasis added).
[23] The European equivalent of the '726 patent, the '532 patent, was revoked on prior art grounds by the European Patent Organisation on August 5, 1999. Fournier sought reexamination of the '726 patent before the USPTO shortly thereafter.
[24] Abbott filed an application that would become the '405 patent in May 2000, and an application that would become the '881 patent in November 2002.
[25] Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S. Ct. 146, 78 L. Ed. 293 (1933) ("[Courts] do not close their doors because of plaintiff's misconduct ... that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication."); see also FMC Corp. v. Hennessy Indus., Inc., 836 F.2d 521, 524 (Fed.Cir.1987) (finding alleged inequitable conduct associated with unasserted patent irrelevant in infringement action).
[26] The '726 patent is cited as prior art for the PharmaPass patents.
[27] Fox Indus., Inc. v. Structural Preservation Sys., 922 F.2d 801, 804 (Fed.Cir.1990).
[28] Consol. Aluminum Corp. v. Foseco Intern. Ltd., 910 F.2d 804, 810-11 (Fed.Cir.1990) (noting in dicta that inequitable conduct in the prosecution of a patent with an immediate and necessary relation to a patent at issue may demonstrate the unenforceability of the latter patent).
[29] See Bastin v. Fed. Nat'l Mortgate Ass'n, 104 F.3d 1392, 1396 (D.C.Cir.1997) (denial of discovery is not abuse of discretion where a plaintiff is "unable to offer anything but rank speculation to support" a claim and if discovery "would amount to nothing more than a fishing expedition.").
|
165 N.J. Super. 84 (1978)
397 A.2d 712
JEWISH CENTER OF SUSSEX COUNTY, PLAINTIFF,
v.
CHAIM WHALE, ALSO KNOWN AS LOUIS R. WOLFISH, DEFENDANT.
Superior Court of New Jersey, Chancery Division.
Decided December 8, 1978.[*]
*86 Mr. Lewis Stein for plaintiff (Messrs. Nusbaum, Stein & Goldstein attorneys).
Mr. Anthony M. Mahoney for defendant (Messrs. Bernstein & Mahoney attorneys).
POLOW, J.S.C.
On this motion for summary judgment, plaintiff Jewish Center of Sussex County seeks rescission of a January 1, 1978 contract pursuant to which defendant was employed as its rabbi and spiritual leader. Plaintiff also demands dismissal of defendant's counterclaim for specific performance and compensatory and punitive damages, which claims are based upon plaintiff's alleged breach. The real issue is whether, during negotiations leading up to execution of the agreement, defendant had a duty to disclose his prior criminal record and disbarment as an attorney and whether his failure to make such disclosures amounts to equitable fraud justifying rescission by plaintiff congregation.
Certain relevant facts have been stipulated. Plaintiff, as a religious corporation, has the responsibility for the conduct of religious services in its synagogue in Newton, New Jersey, and operates a part-time religious school for the children of the congregation. In response to plaintiff's advertisement for a rabbi, defendant submitted his resume. Therein he listed his address, telephone number, place and year of birth, and his education, including a bachelor of arts degree, ordination as a rabbi in 1956 and experience in that calling from 1956 to 1977. The resume further indicated that references would be furnished on request. No such request was made.
After an initial interview defendant conducted Friday night and Saturday morning services at plaintiff's synagogue. On those occasions he met and spoke with many members of the congregation. Following several additional telephone conversations between defendant and an authorized officer of the congregation, the terms and salary were resolved and the parties executed an employment contract dated January *87 1, 1978. The contract provided, among other things, that in addition to a fixed salary the congregation would provide the rabbi with the use of a specified home at no cost, plus necessary utilities and payment of moving expenses.
In April 1978 information came to plaintiff's attention indicating that defendant had also been known as Louis R. Wolfish and that he had been convicted for devising a scheme to defraud an insurance company of $200,000 through the use of the mails. Plaintiff further ascertained that defendant had been disbarred as an attorney in the State of New York for bribing a police officer. These facts are admitted by defendant. Accordingly, plaintiff, by letter dated April 17, 1978, sought to rescind defendant's contract of employment as its rabbi and spiritual leader.
Plaintiff now moves for summary judgment pursuant to R. 4:62-1 and 2. The role of the judge on a summary judgment application, as stated by Justice Brennan in Judson v. People's Bank & Trust Co. of Westfield, 17 N.J. 67, 73 (1954), "is to determine whether there is a genuine issue as to a material fact * * *." Defendant resists the motion, arguing that there are at least two factual issues which require resolution by plenary trial. He first asserts that whether or not his actions constitute fraud requires a determination of intent, his state of mind, which must be resolved as a question of fact and that such a determination is contingent upon whether, also as a matter of fact, there was a duty to disclose. Next, he insists that a factual issue must be resolved to determine whether any such failure to disclose, if it was fraudulent, resulted in damage or prejudice to plaintiff or provided defendant an undue or unconscientious advantage.
Defendant cites Weiland v. Tuckelson, 38 N.J. Super. 239 (App. Div. 1956), for the proposition that generally a party owes no obligation to disclose to another, matters of which such other party has actual or constructive knowledge or as to which both parties' information or means of acquiring information is equal. Defendant asserts by affidavit that the matters which plaintiff urges defendant had a duty to *88 disclose are matters of public record and were readily available to plaintiff for the asking. Weiland is concerned with the establishment of an easement and the reluctance of the court to estop a party from denying that claimed right merely because that party failed to object when certain improvements had been made. That proposition was drawn from an earlier easement decision, Sanders v. Reid, 131 N.J. Eq. 407 (Ch. 1942), in which the court went on to say:
* * * In general, a person is required to speak only when common honesty and fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or is about to act as he would not act otherwise. [at 412]
Hence, defendant concludes that his intent in remaining silent and his reason to suppose that plaintiff would be deceived thereby are questions of fact which may not be resolved by summary judgment.
It has long been recognized in this State that arrangements between a pastor and his congregation are matters of contract subject to enforcement in the civil court. Jennings v. Scarborough, 56 N.J.L. 401, 409 (Sup. Ct. 1849). Contracts in general are subject to rescission when they are obtained by fraud. Merchants Indem. Corp. v. Eggleston, 37 N.J. 114 (1962). That fraud may be either legal or equitable. Legal fraud consists of a material misrepresentation of a presently existing or past fact made with knowledge of its falsity, with the intention that the other party rely thereon, and he does so rely to his damage. Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585-586 (1956); Lopez v. Swyer, 115 N.J. Super. 237, 250 (App. Div. 1971), aff'd 62 N.J. 267 (1973). In equitable fraud knowledge of its falsity is not required. Foont-Freedenfeld Corp. v. Electro Protective Corp., 126 N.J. Super. 254 (App. Div. 1973), 64 N.J. 197 (1974).
*89 The fact that no affirmative misrepresentation of a material fact has been made does not bar relief. The suppression of truth, the withholding of the truth when it should be disclosed, is equivalent to the expression of falsehood. Costello v. Porzelt, 116 N.J. Super. 380, 383 (Ch. Div. 1971). The question under those circumstances is whether the failure to volunteer disclosure of certain facts amounts to fraudulent concealment, or, more specifically, whether the defendant is bound in conscience and duty to recognize that the facts so concealed are significant and material and are facts in respect to which he cannot innocently be silent. Where the circumstances warrant the conclusion that he is so bound and has such a duty, equity will provide relief. Nicholson v. Janeway, 16 N.J. Eq. 285, 287 (Cy. 1863).
Fraud in * * * equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. [Howard v. West Jersey and Seashore R.R. Co., 102 N.J. Eq. 517, 521 (Ch. 1928), aff'd 104 N.J. Eq. 201 (E. & A. 1928)]
St. John the Baptist Church v. Jenson, 118 N.J. Eq. 467, 494-495 (Ch. 1935).
Professor Pomeroy sums up fraud in equity in his classic work, Equity Jurisprudence, Pt. II, c. III, § 873 at 422, as follows:
The following description is perhaps as complete and accurate as can be given so as to embrace all the varieties recognized by equity; Fraud in equity includes all willful or intentional acts, omissions, and concealments which involve a breach or either legal or equitable duty, trust, by which an undue or unconscientious advantage over another is obtained.
Defendant urges that plaintiff's reliance on the exceptionally sparse resume provided by him, without seeking details of his prior employment or exploring his offer to provide references, gives rise to an issue of material fact concerning whether a duty to disclose existed and whether the *90 plaintiff was prejudiced by his nondisclosure. However, the failure of plaintiff to investigate cannot relieve defendant of the consequences of his own undeniably misleading conduct under the circumstances in failing to disclose obviously material information. See Gallagher v. New England Mut. Life Ins. Co. of Boston, 33 N.J. Super. 128, 136 (App. Div. 1954) aff'd 19 N.J. 14 (1955), in which it was held that where a relationship of utmost good faith exists, or should exist, one who is a recipient of fraudulent misrepresentations is justified in relying upon them, even though he might have ascertained the falsity of the representations had he made an investigation.
The same principle has been most recently restated in Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 342 (App. Div. 1978), aff'd o.b. 78 N.J. 320 (1978): "`One who engages in the kind of conduct here involved [intentional nondisclosure] may not urge that his victim should have been more circumspect or astute."
If the relationship between insurer and insured requires the existence of utmost good faith, how much more demanding must we be of the ultimate integrity of the parties in the relationship between a pastor and his flock, or a minister and his congregation, or a rabbi and his synagogue? The contract itself speaks of the "spiritual leadership" expected of defendant, not only within the congregation but in the [email protected].
Defendant also argues that plaintiff has not been damaged as he is indeed ordained and is fully capable of performing the religious services required by the contract. However, our courts have held that the very existence of a fraudulently procured document causes damage, so that where fraud is found damage may be presumed. See Hagen v. Gallerano, 66 N.J. Super. 319, 332-333 (App. Div. 1961); Landriani v. Lake Mohawk Country Club, 26 N.J. Super. 157, 173 (App. Div. 1953).
The contract here under consideration characterizes the relationship between the congregation and its rabbi as that of a *91 religious community and its chosen spiritual leader in the following statement:
A Rabbi is the spiritual leader of the congregation and as such is called to serve the religious, educational, spiritual and pastoral needs of its membership as well as to serve his congregation through his spiritual leadership in the community at large, both Jewish and non-Jewish.
Concealment by defendant of his criminal record and disbarment undoubtedly can be and probably has already been the source of considerable embarrassment and humiliation to plaintiff's congregation. Under the circumstances plaintiff has no obligation to continue defendant as spiritual leader pursuant to an employment contract procured as a result of defendant's fraudulent conduct.
An Illinois appellate court faced an analogous situation in Fuller v. De Paul Univ., 293 Ill. App. 261, 12 N.E.2d 213 (App. Div. 1938). There plaintiff concealed from defendant university, a well known Catholic institution of higher learning, that some 25 years earlier he had been ordained as a Catholic priest but after 17 years in the priesthood had broken his vows, married, disappeared and suffered a funeral rite, only to be living in Europe and later teaching at another university. That court held as a matter of law that the concealment of material background information vitiated the contract of employment as a teacher:
The concealment by plaintiff that he had been a priest of the Catholic Church, taking the vows of poverty, obedience, and chastity, and had officiated as a priest for many years and had subsequently left the priesthood, marrying and becoming the father of two children and what is termed a "fugitive", amounted to a material and fraudulent misrepresentation. His silence as to these things was a deception which induced defendant to employ him. The general rule is that concealment must relate to a matter material to the transaction involved. As stated in 13 C.J. p. 309 § 294, "It may be stated as a rule that it is always material if, had it been known to be false, the contract would not have been entered into." It is undisputed in the instant case *92 that there would have been no contract of employment if the facts about plaintiff had been known. * * *
The experience of hundreds of years past has shown, that a teacher, to be qualified to perform his duties, must possess such a character that he may be a good example to pupils and create character in them. The teacher must be honest and honorable not performing his duties under the cloak of honesty, but genuine, and beyond suspicion as to his character. The defendant, De Paul University, is surrounded by an unusual religious atmosphere, and to have injected plaintiff, an apostate priest, into this would have been disastrous. In Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118, it was held that the interest of the Congregational College required the removal of a teacher who was out of harmony with the recognized religious atmosphere of the school.
One must conclude that a man of the cloth, hired to give spiritual and religious as well as educational leadership must possess qualifications no less demanding than those described in the foregoing passage.
I find that, as a matter of law, a prior criminal record and disbarment from the practice of law must be disclosed by one seeking a rabbinical post involving the spiritual, religious and educational leadership of a religious congregation. Similarly, I am satisfied that, as a matter of law, failure to disclose such information results in damage and prejudice to the employer congregation and provides an undue, unconscientious advantage to the applicant. Hence, there is no genuine issue as to any material fact challenged. Judson v. Peoples Bank & Trust Co. of Westfield, supra.
Lastly, defendant's claim to rights and privileges as a tenant under our Landlord and Tenant Acts (N.J.S.A. 46:8-1 et seq. and 2A:18-51 et seq.) is without merit. Since the contract itself is void, defendant cannot claim any rights or benefits therefrom. Furthermore, N.J.S.A. 2A:18-61.1(m) allows for removal of a tenant when the tenancy has been conditioned upon the tenant's employment by the landlord.
Plaintiff's motion for summary judgment rescinding the contract and dismissing defendant's claims for specific performance and damages, will be granted.
NOTES
[*] (This opinion is submitted pursuant to R. 2:5-1(b) to amplify the prior oral decision rendered by the court on September 15, 1978.)
|
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0202
State of Minnesota,
Respondent,
vs.
Louis Duane Bennett,
Appellant.
Filed December 27, 2016
Affirmed
Reilly, Judge
Steele County District Court
File No. 74-CR-15-1063
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges his felony domestic assault conviction on the ground that the
district court abused its discretion by admitting evidence of a prior domestic conduct
incident as relationship evidence under Minnesota Statutes section 634.20. Because the
probative value of the evidence was not outweighed by its danger for unfair prejudice, we
affirm.
FACTS
This appeal arises out of appellant Louis Duane Bennett’s conviction of felony
domestic assault (fear) against his then-girlfriend, K.B. Appellant and K.B. attended a
party at a friend’s home. During the course of the evening, appellant became angry with
K.B. and punched her in the right eye, causing her to briefly lose her vision and fall to the
floor. K.B. left the party and drove to a Rochester women’s shelter with her daughter.
K.B. went to the hospital the following day, where a police officer observed that she had
bruising and “fresh scratches” on the right side of her forehead and her scalp, bruising
around her right eye, and scratches and abrasions on her forehead.
The state charged appellant with one count of felony domestic assault (fear) and one
count of felony domestic assault (harm). Appellant entered a plea of not guilty and the
matter was tried to a jury. Prior to trial, appellant stipulated to the existence of two prior
domestic abuse-related convictions within the past ten years. The state also sought to
introduce relationship evidence of numerous past instances of domestic assault between
appellant and K.B., spanning the course of approximately a year and a half. The defense
objected on the ground that the prejudicial effect of the relationship evidence substantially
outweighed its probative value. The district court determined that evidence of a single
domestic assault incident from approximately two weeks before the party was admissible
as relationship evidence because it was “relevant to the State in establishing whether or not
the events alleged [in the present case] would have put [K.B.] in fear of bodily harm.”
2
The district court read a cautionary instruction prior to admitting K.B.’s testimony:
The State is about to introduce evidence of conduct by
[appellant]. . . . This evidence is being offered for the limited
purpose of demonstrating the nature and extent of the
relationship between [appellant] and [K.B.] in order to assist
you in determining whether [appellant] committed those acts
with which he is charged in the complaint. [Appellant] is not
being tried for and may not be convicted of behavior other than
the two charged offenses at issue in trial. You are not to convict
[appellant] on the basis of any conduct from [the earlier
incident].
Following this instruction, the prosecutor asked K.B. if “this [was] the first time that
[appellant] had been violent” with her. K.B. testified that approximately two weeks before
the party, appellant “got into a rage” and hit her on the back of her head. K.B. and her
daughter went to the Rochester women’s shelter, where she was living at the time of the
present offense.
The jury convicted appellant of both offenses and the district court imposed the
guidelines sentence, from which appellant now appeals.
DECISION
“Evidence of domestic conduct by the accused against the victim of domestic
conduct . . . is admissible unless the probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issue, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Minn. Stat. § 634.20 (2014). This evidence, known as “relationship evidence,”
is distinct from rule 404(b) bad-acts evidence because it evinces “prior conduct between
the accused and the alleged victim and it may be offered to illuminate the history of the
3
relationship, that is, to put the crime charged in the context of the relationship between the
two.” State v. McCoy, 682 N.W.2d 153, 159 (Minn. 2004). A defendant is presumed to
be “aware that his prior relationship with the victim, particularly in so far as it involves ill
will or quarrels,” may be offered against [email protected]. Id. at 159-60 (quotation omitted).
We review a district court’s decision to admit relationship evidence for an abuse of
discretion. State v. Lindsey, 755 N.W.2d 752, 755 (Minn. App. 2008), review denied
(Minn. Oct. 29, 2008). Appellant bears the burden of establishing that the district court
abused its discretion and that he was prejudiced. Id.
Appellant challenges the district court’s admission of the prior domestic assault
incident as relationship evidence, arguing that the probative value of the evidence was
outweighed by the danger of its prejudicial effect. “When balancing the probative value
against the potential prejudice, unfair prejudice is not merely damaging evidence, even
severely damaging evidence; rather, unfair prejudice is evidence that persuades by
illegitimate means, giving one party an unfair advantage.” Id. at 757 (quotation omitted).
Here, the state sought to introduce evidence of several domestic assault incidents between
appellant and K.B. over the course of nearly a year and a half. The district court permitted
the state to make only a “limited inquiry” into a single incident, and did not allow the state
to present any other relationship evidence because the court “[did not] want the trial to
devolve into some free-for-all of generic allegations from unspecified old dates, that really
derails the process in finding the facts in this particular case.” The district court later
reiterated that the state was limited to one incident because:
4
[The earlier incident] was close enough in time that it could
impact the reasonableness of her fear, if in fact she testifies that
there was fear. Also, it’s a very specific event because a
criminal complaint was filed. I think the parties are on good
notice as to what the parameters are of the allegations there.
Some of the other events that the State has referenced are more
diffuse in terms of what happened. . . . I am concerned that we
get too far [afield] from what the business is at hand, but at that
point then it can become confusing for the jury and we don’t
want things confusing.
The evidence offered by the state of a prior act of domestic violence committed by
appellant against K.B. was highly probative of their relationship history and provided
context for the events leading up to the current offense. See, e.g., McCoy, 682 N.W.2d at
161 (recognizing that relationship evidence “assist[s] the jury by providing a context with
which it could better judge the credibility of the principals in the relationship”); State v.
Meyer, 749 N.W.2d 844, 850 (Minn. App. 2008) (“Minnesota courts have recognized the
inherent probative value of evidence of past acts of violence committed . . . by the same
defendant against the same victim.”).
Moreover, the probative value of the evidence was not substantially outweighed by
its prejudicial effect. The district court limited the evidence to a single event and further
minimized any potential prejudice to appellant by providing a cautionary instruction to the
jury. A limiting instruction to the jury mitigates the potential for unfair prejudice, State v.
Kennedy, 585 N.W.2d 385, 392 (Minn. 1998), and we assume that the jury follows the
district court’s instructions, State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). Prior
to K.B.’s testimony, the district court instructed the jury that her testimony was offered for
the “limited purpose” of assisting the jury in its deliberations and “for the limited purpose
5
of demonstrating the nature and extent of the relationship” between appellant and K.B.
The district court cautioned that the evidence could not be used to prove appellant’s
character or that he acted in conformity with that character. The district court’s cautionary
instruction “lessened the probability of undue weight being given by the jury to the
evidence.” Lindsey, 755 N.W.2d at 757 (quotation omitted).
In sum, we conclude that the probative value of the relationship evidence
outweighed any unfair prejudice. The district court did not abuse its discretion in admitting
relationship evidence under Minnesota Statutes section 634.20.
Affirmed.
6
|
Citation Nr: 1447186
Decision Date: 10/23/14 Archive Date: 10/30/14
DOCKET NO. 02-11 373 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a back disorder, including as secondary to the service-connected right knee disability.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Lindio, Counsel
INTRODUCTION
The Veteran served on active duty from February 1969 to January 1971.
In pertinent part, this matter originally came before the Board of Veterans' Appeals (Board) from a November 2000 rating decision by the RO in Philadelphia, Pennsylvania. The RO denied service connection for a back condition as secondary to his service-connected right knee disability.
In March 2004, the Veteran, accompanied by his representative, testified at a hearing conducted before the undersigned Veterans Law Judge (formerly known as a Member of the Board) in Washington, D.C.
This matter was previously before the Board in July 2004 and May 2010. At those times, the Board remanded the claims on appeal for additional development. In a July 2012, the Board finally adjudicated the claims for increased ratings for the right knee and remanded the current claim for service connection for a back disorder, as well as, a claim for entitlement to an earlier effective date for a rating for a service-connected right knee scar.
The Board notes that in an April 2014 rating decision, the RO granted an earlier effective date for a compensable rating for a right knee scar. That matter is no longer before the Board.
In addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in such files reveals that they are either duplicative or are irrelevant to the issues on appeal.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998).
In prior remands, including the most recent one in July 2012, the Board directed the AOJ to obtain a VA medical opinion to determine whether the Veteran's back disorder was caused or aggravated by his service-connected right knee disability. As noted in prior remands, the record contains evidence that the Veteran's current back problems could be the result of independent incidents, including being hit by a 900 to 1,000 pound bundle that knocked him to the ground, several slip and fall accidents, and lifting heavy objects and boxes in connection with his employment. (August 1996 medical report by Dr. C.D.S). Also, a March 1997 report in the Vocational Rehabilitation and Education (VRE) folder reflects a history of a work-related back injury in the 1970s, as do the VA medical records from the 1970s.
The AOJ obtained a VA examination in June 2013 (with an additional March 2014 addendum opinion), but neither opinion adequately addressed the question of aggravation. (June 2013 VA examination, March 2014 VA addendum opinion and September 2014 Informal Hearing Presentation). A new opinion is necessary.
Additionally, the Veteran receives VA treatment through the Philadelphia VA Medical Center. The most recent such records are dated in February 2014. Therefore, while on remand, any unassociated VA treatment records should also be obtained for consideration in the appeal.
Also, the Veteran should be given an opportunity to identify any relevant non-VA healthcare provider. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
Accordingly, the case is REMANDED for the following actions:
1. The AOJ should give the Veteran an opportunity to identify any non-VA healthcare provider who treated him for a claimed disorder. After securing any necessary authorization from him, the AOJ should obtain all identified treatment records. All reasonable attempts should be made to obtain such records, consistent 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e).
2. The AOJ should obtain VA treatment records from the Philadelphia VA Medical Center, dated from February 2014 to the present. All reasonable attempts should be made to obtain such records, consistent with 38 U.S.C.A. § 5103A (b)(2) and 38 C.F.R. § 3.159(e).
3. After the record development has been accomplished, the AOJ should request that the June 2013 VA examiner (who also provided the March 2014 VA addendum opinion) review the records and provide another addendum to his medical opinion to address whether the Veteran has a back disorder due to service or that was caused or aggravated by his service-connected right knee disability. If the June 2013 VA examiner is unavailable, a new VA medical opinion should be provided addressing the claim.
The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.
Based on any examination findings of record, including any necessary diagnostic studies, as well as a review of the claims file - specifically including those records listed herein, the Veteran's statements, and a copy of this REMAND, the examiner is requested to render opinions as to the following:
(a) Does the Veteran currently have a back disorder?
(b) Did any currently diagnosed back disorder have its onset during service; or, was such disorder caused by an incident or event that occurred during service?
(c) Was any currently diagnosed back disorder caused by the service-connected right knee disability?
(d) Was any currently diagnosed back disorder aggravated (permanently worsened beyond that due to the natural disease process) by the service-connected right knee disability?
If the examiner finds that a back disorder was aggravated by the service-connected right knee disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder.
- The examiner should also comment on: (i) the March 1997 report in the Vocational Rehabilitation folder; (ii) August 1996 private medical record by Dr. C.D.S., (iii) the August 1975 VA medical record reflecting a work-related back injury in the 1970s; and (iv) any other pertinent medical evidence of record.
- The examiner should further specifically comment on (i) the May 4, 2000 VA PT note wherein the physical therapist opined that the Veteran's right knee disability contributed to his back condition and (ii) the July 5, 2000 VA OT/PT note (signed July 6, 2000) wherein the provider found that right knee dysfunction contributed to the back condition.
A complete explanation should be given for EACH opinion and conclusion. Explain what evidence, medical findings, and medical principles were used to reach EACH opinion. The medical opinion provider should also reconcile his/her findings with any other contradictory ones of record, including those listed above.
4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record 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. 2013).
_________________________________________________
DEBORAH W. SINGLETON
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) (2013).
|
Title: Can I be sued for telling the (confidential) truth about a Sheriff during an election?
Question:Tl;dr: Work for a slightly corrupt Sheriff and don’t know how to expose this without legal ramifications.
Post: I work at as an Internal Affairs investigator in a county with an elected Sheriff. As such, I see all the dirt that goes on.
The current Sheriff was elected a couple of years ago and is due for election again in 2020. Competitors within the agency are already gearing up for it.
I’m privy to a lot of information that the other deputies are not. The general public has no idea how blasé the current Sheriff is when it comes to the questionable behavior of his employees.
For example, I know that we had a deputy that was attempting to solicit an underage girl for sex, after encountering her on patrol. I know that the current Sheriff ordered me not to investigate it from a criminal perspective. That’s not within my scope anyway.
I disobeyed this order, somewhat, and encouraged the mother of the minor to engage the deputy in casual conversation. The deputy eventually invited the minor (portrayed by her mother) over to get drunk and spend the night. When informed of this information, the Sheriff informed me to “try to get him to resign; I don’t wanna have to fire someone.” Unbeknownst to me, the Sheriff then called the deputy, warned him that I was looking where I shouldn’t, and told him that he should cease all communication to the minor, thereby preventing any criminal conduct before it could be investigated by the state agency I’d referred it to. By the way, this was the FOURTH time that same deputy had been complained on for stalking women/girls he’d encountered on patrol (and the Sheriff knew that).
This Sheriff has continued to employ and REFUSE to suspend deputies who have had upwards of 15 individual sustained search and seizure, excessive force, and dereliction of duty complaints through my office. He doesn’t want to lose any votes by implying we have deputies that are problematic.
Can I release any of this information in order to inform the public prior to the next election? Can I be sued for slander/libel if the information I release is true, but confidential??
According to the Whistleblower Act, I don’t seem to be protected. Furthermore, my agency is protected by Texas Local Government Code 143. This means that internal investigations are completely private unless they result in suspensions (which the Sheriff refuses to do.)
The public needs to know what is going on in their law enforcement agency, but I’m worried that I’ll get sued by releasing what I know. There are 20 more stories like this and I’m sick to my stomach thinking that this will continue.
Topic:
Other Civil Matters
Answer #1: How about you take all of your proof to your State Police Agency? Or take your proof to a federal agency?
Why not work on getting the bad cops prosecuted instead of attempting to do an anonymous media/public release that will be met with skepticism from one side and treated as the gospel truth by the other side?
IF you turn over what you have to the next level of investigators, they may be able to get enough probable cause to charge the fuckers. I know you say you have already turned over some things to a state agency, but turn over EVERYTHING.
Edit*
Also, I am sure you know, but I feel it needs to be said. There is a big difference between an administrative investigation involving Garrity and criminal investigations involving Miranda. Answer #2: If you google for whistleblower lawyers in the Washington DC area, they might be able to help you. They typically work on federal cases, but perhaps.
Stay safe OPAnswer #3: Not a lawyer, You could attempt to speak with the FBI public corruption unit. They handle investigations into government officials including local governments. They mainly handle federal law violator investigations, but it wouldn’t hurt to reach out to the field office in your area and see what they can do/if they will do anything.
Answer #4: NAL, so bear with me if this doesn't make sense.
Is this something that could be revealed by a public request for information? Like a Freedom of Information Act thing?
If so, you may just need to encourage someone to request this info from your office or the the Sheriff's office - obviously not someone who can be tied too closely to you, like a family member. |
855 S.W.2d 741 (1993)
Saundra Harris MITCHELL and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants,
v.
CITY OF DALLAS, Appellee.
No. 05-91-01416-CV.
Court of Appeals of Texas, Dallas.
March 31, 1993.
*743 Kristina Bline Dial, Harrison & Dial, Burleson, for appellants.
Patricia Medrano, Asst. City Atty., Dallas, for appellee.
Before LAGARDE, KINKEADE and BARBER[1], JJ.
OPINION
BARBER, Justice.
This is a premises liability case. Saundra Harris Mitchell and Jan P. Mitchell sued the City of Dallas for damages sustained by their minor son when he fell from his bicycle at a municipal park. The City moved for summary judgment. The trial court rendered judgment in favor of the City. We reverse and remand.
FACTUAL BACKGROUND
Ashley Harris suffered serious injuries when he fell from his bicycle into a creek bed at Hamilton Park. The park is owned *744 and maintained by the City of Dallas. The accident occurred at a part of the creek where there is a fifteen to twenty-five foot drop-off. This condition was created by a gabion wall constructed by the City for erosion control. The wall consists of rocks wired together. Ashley fell over the edge of the drop-off onto the rocks below.
The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They also allege that the City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area.
ISSUES ON APPEAL
The Mitchells attack the trial court's summary judgment on two broad grounds. First, they contend that this case is governed by common-law principles because the establishment and maintenance of public parks are proprietary functions. Alternatively, the Mitchells argue that their claims against the City are within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They assert that fact issues exist concerning gross negligence in the construction and maintenance of the gabion wall and the City's negligent failure to warn of or correct this dangerous condition.
LIABILITY UNDER COMMON LAW
In their fourth point of error, the Mitchells contend that the Texas Tort Claims Act does not apply to this case. Rather, the Mitchells argue that the City is liable under common-law principles because the establishment and maintenance of public parks are proprietary functions.
Under common law, the establishment and maintenance of public parks were deemed proprietary functions. See Dancer v. City of Houston, 384 S.W.2d 340, 342 (Tex.1964); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, 499 (1928). These common-law classifications have been redefined under the Texas Tort Claims Act. Section 101.0215 of the Act now provides that the operation of parks and zoos is a governmental function. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215(a)(13) (Vernon Supp.1993).
The Mitchells argue that section 101.0215(a) does not reclassify all actions taken by a city regarding public parks. We refuse to adopt such a restrictive interpretation of the statute. To the contrary, the legislature specifically provided that the proprietary functions of a municipality do not include those governmental activities listed in section 101.0215(a). See TEX.CIV. PRAC. & REM.CODE ANN. § 101.0215(c) (Vernon Supp.1993).
We conclude that the claims against the City made the basis of this suit involve governmental functions. The Mitchells do not have any common-law cause of action against the City. We overrule the fourth point of error.
LIABILITY UNDER THE TEXAS TORT CLAIMS ACT
The Mitchells next contend that the trial court erred in granting summary judgment because they stated a cause of action within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They allege that the City is not immune from liability for negligent construction and maintenance of the gabion wall along the creek bank. See, e.g., City of Watauga v. Taylor, 752 S.W.2d 199, 202 (Tex.App. Fort Worth 1988, no writ); Stanford v. State Dep't of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex.App.Dallas 1982, writ ref'd n.r.e.).
The City argues that these allegations involve the design, upgrading, and placement of an erosion control device. The City contends that it is immune from liability because these activities involve discretionary functions. See, e.g., City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.El Paso 1990, writ denied); Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex.App.Fort Worth 1989, writ denied).
1. Governmental Immunity
A municipality performing a governmental function is afforded sovereign immunity *745 unless immunity has been waived under the Texas Tort Claims Act. See TEX.CIV. PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp.1993). A governmental unit is liable for personal injuries proximately caused "by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1986).
2. Discretionary Functions
The Texas Tort Claims Act creates certain exceptions to the waiver of governmental immunity. Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on:
(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.056 (Vernon 1986); see generally Lee M. Larkin, Comment, The "Policy Decision" Exemption of the Texas Tort Claims Act: State v. Terrell, 32 Baylor L.Rev. 403 (1980) [hereinafter Larkin].[2]
The discretionary function exception to the waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.Fort Worth 1991, no writ). Thus, a governmental entity is immune from liability if an injury results from the formulation of policy. However, a governmental unit is not immune if an injury is caused by the negligent implementation of that policy. See Terrell, 588 S.W.2d at 787-88; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex.App. Austin 1982, writ ref'd n.r.e.); [email protected]. This distinction is often stated in terms of actions taken at the planning or policy-making level, which are immune, and actions taken at the subordinate or operational level, which are not immune. See McKinney, 814 S.W.2d at 866; Crossland, 781 S.W.2d at 433; [email protected].
Design decisions made by the City are discretionary and therefore immune from liability. See Crossland, 781 S.W.2d at 433; Taylor, 752 S.W.2d at 202; Stanford, 635 [email protected]. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985); Taylor, 752 S.W.2d at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex.App.Beaumont 1986, writ ref'd n.r.e.). There is some conflict in the case law regarding the characterization of construction activities. Compare Smith, 687 S.W.2d at 303, and Ayoub, 787 S.W.2d at 554 (indicating that city is not immune from liability for construction and maintenance activities), with Taylor, 752 S.W.2d at 202 (indicating that planning and construction are immune activities).
We hold that construction activities are not discretionary functions. These activities involve the implementation of planning or policy-making decisions at the operational level. Therefore, the City is not immune from liability for claims based on the negligent construction and maintenance of the gabion wall.
STANDARD OF CARE
We next determine the standard of care owed by the City to park users. The City argues that it only owes the duty owed to a trespasser. The Mitchells contend that the City owes the same duty as *746 owed to an invitee because they paid for use of the premises through the payment of taxes and because of the nature of the premises defect.
1. Statutes
Section 101.022 of the Texas Tort Claims Act provides:
(a) If a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.022 (Vernon 1986) (emphasis added).
Section 75.002 of the Civil Practice and Remedies Code provides:
If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
....
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises.
TEX.CIV.PRAC. & REM.CODE ANN. § 75.002 (Vernon 1986) (emphasis added).
These two statutes are in apparent conflict in cases where the owner or occupier of the premises is a governmental unit that gives implied permission to persons to enter the property for recreational purposes. We must resolve this conflict by examining the case law and implementing well-settled rules of statutory construction.
2. Case Law
One court has held that the statutory predecessor to section 75.002, article 1b of the Revised Civil Statutes, should apply only if the injured party was a trespasser. It held the statute did not apply in a governmental tort liability context by simply stating that the persons who used the premises were not trespassers. Trinity River Auth. v. Williams, 659 S.W.2d 714, 720 (Tex.App.Beaumont 1983), aff'd in part and rev'd in part on other grounds, 689 S.W.2d 883 (Tex.1985); see TEX.REV.CIV. STATE.ANN. art. 1b, § 1 (Vernon 1969). It should be noted that the statute did not declare that recreational users are trespassers but merely provided that the duty owed to such users is the same as that owed to trespassers. Another court has held that section 75.002 did apply to governmental units. Noting that section 101.022(a) provides that the governmental entity owes "only the duty that a private person owes to a licensee on private property," the court held that the section 75.002 duty standard applied to the State. Crossland, 781 [email protected]. Although the Crossland court purported to rely on section 101.022(a) in reaching its result, it ignored the fact that such provision states the governmental unit owes the duty that a private person owes to a licensee.
3. Statutory Analysis
We are not persuaded by the reasoning of either Williams or Crossland. Instead, we look to the legislative history of sections 75.002 and 101.022(a).
Article 1b of the Texas Revised Civil Statutes preceded section 75.002. See Act of May 29, 1965, 59th Leg., R.S., ch. 677, 1965 Tex.Gen.Laws 1551, 1551-52. Until this statute was codified in the Texas Civil Practice and Remedies Code, it was contained in the "General Provisions" of Title 1. See Tex.Rev.Civ.Stat.Ann. art. 1b, § 1 (Vernon 1969). The statutory predecessor to section 101.022(a) of the Texas Tort Claims Act was article 6252-19, section 18(b) of the Texas Revised Civil Statutes. Article 6252-19 was first enacted in 1969, four years after the enactment of article 1b. See Texas Tort Claims Act, 61st Leg., R.S., ch. 292, 1969 Tex.Gen.Laws 874, 878-79; TEX.REV.CIV.STAT.ANN. art. 6252-19, § 18(b) (Vernon 1970).
We conclude that section 75.002 and its predecessor, article 1b, were intended *747 to be laws of general application. Section 101.022(a) and its predecessor, section 18(b) of article 6252-19, were specific laws applicable to governmental owners and occupiers of real property. When two statutes conflict, the specific controls over the general. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 496, 198 S.W.2d 879, 881 (1947); see also Tex.Gov't Code Ann. § 311.026(b) (Vernon 1988); Carr v. Hunt, 651 S.W.2d 875, 882 (Tex.App.Dallas 1983, writ ref'd n.r.e). Further, a more recent statutory enactment prevails over an earlier one. Tex.Gov't Code Ann. § 311.025(a) (Vernon 1988); State v. McKinney, 803 S.W.2d 374, 376 (Tex. App.Houston [14th Dist.] 1990, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex.Civ.App.Austin 1968, no writ).
4. Conclusion
We hold that section 101.022(a) controls over section 75.002. The duty owed by the City to park users under the Texas Tort Claims Act is the duty that a private person owes to a licensee. An owner or occupier of land must refrain from injuring a licensee by willful, wanton, or gross negligence. An owner or occupant must also warn a licensee of any dangerous condition, or make the condition reasonably safe, if the land owner has actual knowledge of the dangerous condition and the licensee does not. State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974).
EXCEPTIONS TO THE STANDARD OF CARE UNDER THE TORT CLAIMS ACT
The Mitchells argue that the duty owed by the City in this case is the same duty owed to an invitee. The Mitchells contend that the Texas Tort Claims Act creates a higher standard of care because: (1) they paid for use of the park through the payment of taxes; and (2) the steep drop-off created by the gabion wall constituted a special defect.
1. Taxpayer Status
The Mitchells first contend that their son was an invitee because they paid for use of the park through the payment of city taxes.
A similar argument was recently rejected by the San Antonio Court of Appeals in Garcia v. State, 817 S.W.2d 741 (Tex. App.San Antonio 1991, writ denied). The plaintiff in Garcia sued the State of Texas under the Texas Tort Claims Act for damages sustained in a highway accident. He claimed invitee status because he paid for use of the highway through driver's license fees and fuel taxes. The court held that the payment of fees and taxes does not confer invitee status for several reasons: (1) invitee status requires payment of a specific fee for entry onto and use of public premises; (2) the plaintiff's contention would result in a lesser duty owed to nonresident users who did not pay taxes; and (3) the legislature did not intend such a broad grant of invitee status under section 101.022(a) of the Tort Claims Act. See Garcia, 817 [email protected].
We adopt the reasoning of Garcia. We hold that section 101.022(a) of the Tort Claims Act does not confer invitee status on park users based on the payment of taxes alone.
2. Special Defect
The Mitchells next contend that the City owed a higher standard of care because the steep drop-off created by the gabion wall constituted a special defect.
A governmental unit has a duty to warn of or protect against special defects. TEX.CIV.PRAC. & REM.CODE ANN. § 101.022(b) (Vernon 1986); see City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ.App.Houston [1st Dist.] 1974, writ ref'd n.r.e.). The duty to warn of a special defect is the same duty owed to an invitee. County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex.1978). A special defect must be distinguished by some unusual quality outside the ordinary course of events. Crossland, 781 S.W.2d at 433; Sutton v. State Highway Dep't, 549 S.W.2d 59, 61 (Tex.Civ.App.Waco 1977, writ ref'd *748 n.r.e.). A condition is a special defect only if it presents an unexpected and unusual danger to ordinary users of a roadway. State Dep't of Highways & Pub. Transp. v. Kitchen, 1993 WL 82675, 36 Tex.Sup. Ct.J. 678, 679 (March 24, 1993); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238-39 n. 3 (Tex. 1992) (op. on mot. for reh'g). A longstanding, routine, or permanent condition is not a special defect. Crossland, 781 [email protected].
The Mitchells do not argue that the condition created by the gabion wall was unusual or outside the ordinary course of events. The summary judgment evidence establishes that the drop-off near the creek bank was longstanding and permanent. We hold that the premises defect made the basis of this claim was not a special defect.
MOTION FOR SUMMARY JUDGMENT
We now consider the summary judgment rendered in favor of the City in light of our holding that (1) construction and maintenance activities are not discretionary functions, and (2) the duty owed to park users is the same duty owed to a licensee.
1. Standard of Review
Summary judgment may be rendered only if the record shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989). A summary judgment seeks to eliminate patently unmeritorious claims and defenses, not to deny a party its right to a full hearing on the merits of any real fact issue. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).
A defendant who moves for summary judgment must show that the plaintiff has no cause of action. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976). A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991), or (2) conclusively proving all elements of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).
In reviewing a summary judgment, we must take all evidence favorable to the nonmovant as true in deciding whether a fact issue exists. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We must indulge every reasonable inference and resolve any doubt in favor of the nonmovant. Id.
2. Application of Law to the Facts
a. Negligent Construction and Maintenance
The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They specifically pleaded that the City was negligent in constructing the wall for erosion control "in such a manner so as to result in a dangerous condition by creating a 15 to 25 foot steep cliff drop-off ... when the City should have built the creek bank in a non-cliff manner." The Mitchells also alleged that "[c]onstruction and maintenance of a 15 to 25 foot drop-off behind a public restroom in a public park without a fence and warning signs demonstrates a lack of due care and conscious indifference to the health, safety, and welfare of those affected by it."[3]
The City characterizes these allegations as defective design claims. It correctly notes that design claims are discretionary functions for which governmental entities are immune from liability. However, the City has failed to conclusively demonstrate that design defect is the sole basis for the Mitchells' claim.
*749 The City argues it is entitled to judgment as a matter of law because there is no specific pleading or proof that the premises were unreasonably dangerous or that it breached any duty owed to park users. The City misconstrues the burden of proof in a summary judgment proceeding. It is incumbent upon a defendant as movant to conclusively negate at least one essential element of the plaintiff's case. Citizens First Nat'l Bank, 540 [email protected]. A plaintiff as nonmovant is not required to establish his right to prevail. Ramirez v. Bagley Produce Co., 614 S.W.2d 582, 584 (Tex.Civ.App.Corpus Christi 1981, no writ). A nonmovant has no duty or burden whatsoever in a summary judgment case until the movant establishes its right to a judgment as a matter of law. Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 232 (Tex.App.Tyler 1982, writ ref'd n.r.e.).
The City presented no evidence of the original design of the gabion wall. The City did not show that the gabion wall was constructed and maintained pursuant to its original design and that the design of the wall was not otherwise modified. The City, therefore, failed to show that the Mitchells' allegations were defective design claims and, thereby, failed to meet its burden of negating an essential element of the Mitchells' case.
The Mitchells alleged that Ashley was injured when he fell from his bicycle down a steep cliff drop-off. The area was unfenced and located adjacent to the sidewalk. The Mitchells contend that this constitutes a dangerous condition. Ashley's deposition testimony reflects that there was erosion of the ground underneath the sidewalk where he fell.[4] The City did not conclusively negate these allegations. The pleadings and deposition testimony are sufficient to create a fact issue regarding negligent and grossly negligent maintenance and construction.
b. Failure to Warn or Make Safe
The Mitchells alleged that the City failed to warn of a dangerous condition in the area of the restrooms and sidewalk adjacent to the creek. They also claimed that the City failed to construct a fence or other barrier in the area or otherwise correct the dangerous condition.
The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge. The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. The question of knowledge is a fact issue. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992). An affidavit from a civil engineer states the drop-off should have been fenced off from the public area of the park. The engineer's affidavit concludes that in failing to fence off or otherwise obstruct public movement into the area, "the City has failed to protect the public or give adequate warning to the public of a defect which created a dangerous condition."
The City argues that Ashley must be charged with knowledge of any dangerous condition because the alleged premises defect was open and obvious. The duty to warn or make safe applies when the licensee lacks actual knowledge. State v. Payne, 838 S.W.2d at 237; Tennison, 509 [email protected]. The City contends that the Mitchells have conceded that Ashley had actual knowledge of the condition of the premises. The response to the summary judgment motion recites that Ashley was aware of the existence of the creek. The response recites that Ashley, "being unaware... that the ground had eroded under the sidewalk next to this drop-off ... fell over the edge and onto the rocks below." *750 The Mitchells never stated that Ashley was aware of the drop-off next to the sidewalk. The record does not conclusively establish that Ashley had actual knowledge of a dangerous condition. The lack of knowledge is an element of appellant's claim that when disputed should be submitted to the fact finder. See Payne, 838 [email protected].
SUMMARY
The establishment and maintenance of municipal parks are governmental functions under the Texas Tort Claims Act. The City is immune from liability for any claims involving the design of the gabion wall at Hamilton Park. However, the City is not immune from liability for claims based on the construction or maintenance of the wall. The duty owed by the City to park users is the same duty owed by a private person to a licensee.
We hold that the trial court erred in granting summary judgment. There are genuine fact issues concerning (1) gross negligence[5] in the construction and maintenance of the gabion wall, and (2) the failure to warn of or correct a dangerous condition.[6] We sustain the Mitchell's second and third points of error.
We reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.
NOTES
[1] Justice Will Barber succeeds Justice Jeff Kaplan, a member of the original panel. Justice Barber has reviewed the briefs and record in this case.
[2] The Larkin comment and several cases cited in this opinion involve the interpretation of the original Tort Claims Act contained in the Revised Civil Statutes. See Tex.Rev.Civ.Stat.Ann. art. 6252-19 (Vernon 1970) (repealed 1985). The codification of the prior statute in the Civil Practice and Remedies Code did not effect any substantive change, and the language of the current version of the Texas Tort Claims Act is virtually identical to the prior statute. See TEX. CIV.PRAC. & REM.CODE ANN. § 1.001 (Vernon Supp. 1993).
[3] Gross negligence is defined as "such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected." TEX.CIV.PRAC. & REM.CODE ANN. § 41.001(5) (Vernon Supp.1993). Absent a special exception, the allegation of "lack of due care and conscious indifference" contained in the Mitchell's petition is sufficient to plead the duty owed by the City to park users.
[4] Ashley's testimony on this point is not very clear, but it is susceptible to the interpretation advanced by the Mitchells. In a summary judgment case, all inferences and doubts must be resolved in favor of the nonmovant. See Nixon, 690 [email protected].
[5] The duty owed to licensees being a duty to refrain from injuring by willful, wanton, or gross negligence.
[6] The licensor must also warn of a dangerous condition, or make it reasonably safe, if the licensor has actual knowledge of the condition and the licensee does not have such knowledge.
|
Argued October 12, 1933.
This was an action in assumpsit, tried before a judge without a jury. It was brought to recover the damages alleged to have been sustained by the plaintiff through the negligence of the defendant in transporting a carload of celery from Washington to Philadelphia, by reason of which the celery decayed and deteriorated in value $359.80.
The car, containing 350 crates of celery, was loaded by Florida Vegetable Corporation and delivered to Atlantic Coast Line Railroad on March 3, 1925, at Brissons, Florida, to be carried and delivered to the shipper at Potomac Yards, Virginia. The bill of lading specifically provided "Do not re-ice in transit. See Rule 240 P.P. Tariff No. 2"; thereby relieving the railroad company of any duty relative to seeing that the bunkers were kept filled with ice. Plaintiff's own witness testified that under Rule 240 the railroad company is "not obliged nor supposed to replenish the ice," and there would be no occasion for it "to *Page 537
make any inspection of the condition of the contents of the bunkers." A witness for plaintiff testified that the celery was packed by the shipper in the field, brought in and put through a pre-cooling plant, and loaded in a refrigerator car, equipped with bunkers, which were filled with ice, and hatch covers and plugs over ice bunkers closed. He said that this has been found to keep celery in good condition for the ordinary time needed for transit; and obtained a lower cost to the shipper than when the railroad company is required to re-ice during transportation.
The car of celery was sold in transit to the plaintiff. It arrived at Potomac Yards of the Richmond, Fredericksburg and Potomac Railroad at 1:40 o'clock A.M. on March 7, 1925. It remained there until 3:00 o'clock P.M. on March 10, 1925, when it was delivered to the defendant by the Richmond, Fredericksburg and Potomac Railroad pursuant to a diversion order of the plaintiff, (received by it an hour previously), for carriage and delivery to the plaintiff at 30th and Market Streets, Philadelphia. It arrived at 30th and Market Streets, Philadelphia, at 8:40 o'clock P.M. on March 11, 1925. The plaintiff was duly notified and ordered the car unloaded, which was done, beginning at 12:40 A.M. and finishing at 1:15 A.M. on March 12, 1925. The uncontradicted evidence is that when the car was delivered by the Richmond, Fredericksburg and Potomac Railroad to the Pennsylvania Railroad at Washington on March 10, 1925 the hatches were closed and the plugs tight.
As this shipment was made two years before the Amendment of March 4, 1927, (c. 510, sec. 3, 44 Stat. 1448) to section 20 of the Transportation Act of February 4, 1887, (c. 104, 24 Stat. 386 and its amendments), the law prior to the amendment of 1927 applies, and the defendant company, the delivering carrier, *Page 538
can be held responsible only for negligence in handling the car on its own line.
We have read the evidence in the case carefully and find no competent evidence of negligence or default on the part of the defendant which would justify a submission of the case to a jury, or sustain a finding against it by a judge sitting without a jury.
The evidence is undisputed that the defendant received the car at Washington on March 10th at 3:00 o'clock P.M. and delivered it at 30th and Market Streets, Philadelphia, on March 11th at 8:40 o'clock P.M. and that this was a proper and reasonable time for transporting the car. The plaintiff does not claim that there was any unreasonable delay in transportation. He could scarcely do so with good grace for he himself kept the car in the Potomac Yards awaiting diversion orders for three days and a half as against the day and a quarter consumed in transporting the car from Washington to Philadelphia.
The plaintiff's whole case is based on the assumption that the defendant company negligently opened the hatches and plugs after the car came into its possession, and that the warmer outside air coming into the car through these openings caused the ice to melt and the celery to decay and deteriorate; but there is no competent proof on which to base the assumption. The evidence of plaintiff's witness, Cooper, that an adjuster of the defendant company, who was dead at the time of trial, had informed him, "that in and out of Baltimore the vents were closed and inspection of the bunkers showed about one-quarter full," was wholly hearsay, and incompetent, and should not have been received in evidence over the defendant's objection. It was, moreover, contradicted by the positive evidence of defendant's witness, that the car did not stop at all in Baltimore.
The report of Goodwin, who inspected the celery *Page 539
for the plaintiff, which was received in evidence with the same effect as if he had testified to its contents, did not set forth when the inspection was made, beyond that it was on the "A.M." of March 12th, nor whether made before or after the celery was unloaded. Mr. Jackson, the president of the plaintiff company, testified that he first saw the celery at six o'clock in the morning of March 12th, after it had been unloaded, and that he did not know whether it was inspected by Goodwin, before or after it was unloaded. The condition of the hatches and plugs after the celery was unloaded would be immaterial. Mr. Jackson also testified that for the celery to have become in the condition in which he found it on the morning of March 12th — provided it had been properly packed, pre-cooled and shipped with the bunkers full of ice on March 3d — the vents would have to have been open probably three or four days; and when the celery was inspected by Goodwin the outside temperature was 36 degrees as against the temperature of the car, 54 to 56 degrees.
There was therefore no competent evidence whatever to sustain a finding that the defendant company was negligent in the handling of this car or that the deterioration of the celery and its resultant damage was due to or chargeable against the defendant.
The plaintiff, however, invokes the rule applied by this court in Vuille v. Penna. R.R. Co., 42 Pa. Super. 567 and Wray, Moore Co. v. American Ry. Exp. Co., 75 Pa. Super. 425, that when goods are shown to have been delivered to the first carrier in good order and are afterwards delivered by the last carrier in a damaged condition, it will generally, and in the absence of evidence to the contrary, be presumed that they were injured by the delivering carrier. The rule is confined to ordinary merchandise, which does not deteriorate from a cause not within the *Page 540
control of the carrier. It has no application to perishable goods shipped under a contract which expressly relieves the carrier of the duty of examining or replenishing the bunkers with ice while in transit. In the Vuille case the merchandise shipped was an automobile which was in good condition when securely packed in the car in Florida and was in such a damaged condition on arrival at its destination at Huntingdon, Pennsylvania, as to be practically worthless. In the Wray, Moore Co. case a shipment of cheese in boxes was made in Wisconsin consigned to the plaintiff at Altoona, Pennsylvania. The boxes were in apparent good order when received by the express company; were in transit from July 30 to August 21, and when delivered, the boxes were broken and the cheese unfit for sale. Judge LINN pointed out in the opinion in that case that the defendant had offered no evidence that the damage resulted "from a defect or vice in the property"; in other words, there was not only proof that the boxes had been broken, showing affirmative evidence of negligence, but, in addition, there was no evidence in the case that the goods were perishable and subject to inherent deterioration. In this case the perishable character of the shipment was frankly admitted.
The assignments of error are sustained. The judgment is reversed and is now entered for the defendant. |
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