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http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=173465&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa14%5cOpinion
Motion for Rehearing Denied, Affirmed, and Substitute Memorandum Opinion filed March 5, 2020. In The Fourteenth Court of Appeals NO. 14-18-00929-CV THE METHODIST HOSPITAL D/B/A HOUSTON METHODIST HOSPITAL, Appellant V. WILLIE HARVEY, Appellee On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2018-29940 SUBSTITUTE MEMORANDUM OPINION Appellant’s motion for rehearing is denied. We withdraw our memorandum opinion of January 28, 2020, and issue the following memorandum opinion in its stead. In this accelerated interlocutory appeal, appellant The Methodist Hospital d/b/a Houston Methodist Hospital challenges the denial of its motion to dismiss under the Texas Citizens Participation Act (“TCPA”).1 Appellee Willie Harvey is a former Houston Methodist employee. One of Harvey’s subordinates, Jason Lazo, notified Harvey’s supervisor that Harvey had solicited gifts from one of Houston Methodist’s vendors. Houston Methodist investigated Lazo’s allegations and ultimately terminated Harvey. Harvey then filed suit against Houston Methodist and Lazo, alleging, in pertinent part, that Lazo defamed Harvey and that Houston Methodist was vicariously liable for Lazo’s statements. Contending that Harvey’s defamation claim is based on, relates to, or is in response to Lazo’s exercise of free speech, Houston Methodist filed a motion to dismiss under the TCPA.2 Harvey opposed the motion on the grounds that: (1) the TCPA does not apply; and (2) clear and specific evidence supports a prima facie case for each element of his defamation claim. The trial court did not rule on Houston Methodist’s motion, so it was denied by operation of law.3 We conclude that the TCPA does not apply to Harvey’s lawsuit because the communications at issue do not involve a matter of public concern. Accordingly, we affirm the trial court’s denial of Houston Methodist’s TCPA motion to dismiss. Background Harvey is a former manager in Houston Methodist’s Facilities Maintenance Department. Lazo, Harvey’s subordinate, reported to a manager Lazo’s belief that 1 See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (West 2015). The TCPA was amended in 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. The 2019 amendments do not apply to this case, which was filed on May 3, 2018. See id. §§ 11-12, 2019 Tex. Gen Laws at 687 (providing that amendments apply to actions filed on or after September 1, 2019). All references to the TCPA are to the version that applies to this dispute. 2 See Tex. Civ. Prac. & Rem. Code § 27.003(a). 3 See id. § 27.008(a). 2 Harvey improperly solicited gifts from a hospital vendor.4 Houston Methodist investigated Lazo’s report and thereafter terminated Harvey’s employment. Harvey filed suit against Houston Methodist and Lazo, asserting claims for, as is relevant here, defamation and tortious interference with an employment relationship.5 Harvey asserted that he did not instruct Lazo to request personal gifts from a vendor, and that Lazo’s contrary statements to Harvey’s supervisor were false and defamatory. Houston Methodist filed a motion to dismiss under the TCPA. Houston Methodist alleged that Harvey’s defamation allegations fall within the TCPA’s scope because they are based on, related to, or in response to a party’s exercise of the right of free speech, which means a communication in connection with a “matter of public concern.” Houston Methodist further asserted that the alleged statements forming the basis of the claim concerned the public because they “centered on an issue related to a good, product, or service in the marketplace and/or health, safety, environmental, or economic concerns.” Houston Methodist attached an affidavit, in which Lazo averred that he emailed Houston Methodist’s Facilities Maintenance Services supervisor and detailed numerous instances when he overheard Harvey requesting personal gifts from a vendor. According to Lazo, Harvey’s requests occurred during the time period when the vendor’s performance or contract with Houston Methodist was under discussion. Houston Methodist argued that Harvey’s 4 According to Harvey’s allegations, Lazo told the supervisor that Lazo was instructed by Harvey to solicit gifts. Lazo, in his affidavit, stated that he overheard Harvey soliciting gifts. This minor factual discrepancy is not material to the outcome. 5 Harvey also filed claims for negligence and wrongful termination, and he sought to hold Houston Methodist vicariously liable for Lazo’s statements and conduct. Harvey filed an amended petition on December 7, 2018, adding more factual allegations, but we do not consider the facts contained in his amended petition because he filed it after Houston Methodist’s motion to dismiss was overruled by operation of law. See Tex. Civ. Prac. & Rem. Code § 27.006(a); cf. also Bacharach v. Garcia, 485 S.W.3d 600 , 602-03 (Tex. App.—Houston [14th Dist.] 2016, no pet.). 3 alleged requests for “personal kickbacks” pertained to an issue related to a product or service in the marketplace because Houston Methodist’s “vendor contracts are bid upon in an open market.” Houston Methodist further urged that Lazo’s reported statements pertained to matters of economic concern and community well-being, such as the potential for Houston Methodist to suffer economic losses if it became publicly known as a business “where kickbacks are solicited.” Finally, Houston Methodist alleged that Harvey could not establish a prima facie case for every element of his defamation claim. In response to Houston Methodist’s motion, Harvey argued that “soliciting a vendor for personal kickbacks” is not a matter of public concern. Because his defamation claim is not based on, related to, or in response to a matter of public concern, Harvey continued, the TCPA does not apply to his claim and the burden did not shift to him to present prima facie proof supporting his claims.6 Alternatively, Harvey purported to present prima facie proof on each element of his defamation and tortious interference claims in an attached affidavit. The trial court did not rule on Houston Methodist’s TCPA motion to dismiss, resulting in its denial by operation of law. Tex. Civ. Prac. & Rem. Code § 27.008(a). Houston Methodist appeals. Analysis A. Standard of Review and Applicable Law The TCPA contemplates an expedited dismissal procedure when a “legal action” is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code 6 See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re Lipsky, 460 S.W.3d 579 , 586-87 (Tex. 2015) (orig. proceeding). 4 § 27.003(a). Only the right of free speech is at issue here. The TCPA defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). A “matter of public concern” is defined in relevant part as including “an issue related to . . . environmental, economic, or community well-being; [or] a good, product, or service in the marketplace.” Id. § 27.001(7)(B), (E). A “‘[c]ommunication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). The Texas Supreme Court has held that the Act may protect both public and private communications. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 , 899 (Tex. 2016) (per curiam) (discussing Lippincott v. Whisenhunt, 462 S.W.3d 507 , 509 (Tex. 2015) (per curiam)). In enacting the TCPA, the legislature explained that its overarching purpose is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. “To effectuate the statute’s purpose, the Legislature has provided a two- step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of these First Amendment rights.” Coleman, 512 S.W.3d at 898 . In the first step, the party filing a motion to dismiss under section 27.003 of the TCPA bears the burden to show by a “preponderance of the evidence” that the “legal action” is “based on, relates to, or is in response to,” as relevant to this appeal, the party’s “exercise of the right of free speech.” Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b); see also Coleman, 512 S.W.3d at 898 . If the movant satisfies this burden, the trial court must dismiss the lawsuit unless the nonmovant “establishes by clear and specific evidence a prima facie case for each essential 5 element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c); see Coleman, 512 S.W.3d at 899 . In determining whether to dismiss an action, the trial court must consider “the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We construe the TCPA liberally to effectuate its purpose and intent fully. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 , 894 (Tex. 2018); Coleman, 512 S.W.3d at 899 ; Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d 850 , 859 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Tex. Civ. Prac. & Rem. Code § 27.011(b). However, we cannot ignore the legislature’s purpose for enacting the TCPA, particularly when this purpose is expressly included in the statute. See Jardin v. Marklund, 431 S.W.3d 765 , 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A court’s determination of whether communications are matters of public concern under the TCPA is subject to a de novo standard of review. See Adams, 547 S.W.3d at 894 . Under the de novo standard, we “make an independent determination and apply the same standard used by the trial court in the first instance.” Joselevitz, 524 S.W.3d at 859 . B. Application Houston Methodist argues first that Lazo’s statements are a matter of public concern because they relate to the products and services of one of its vendors, Schindler Elevator Corp., in that Harvey allegedly requested Houston Rodeo Bar-B- Q Cookoff tickets and Houston Rockets playoff tickets from Schindler and told or suggested that Schindler needed to “outdo” a previous Christmas gift. See Tex. Civ. Prac. & Rem. Code § 27.001(7)(E). According to Houston Methodist, these communications “generally occurred during discussions concerning Schindler’s performance on projects and Schindler’s contract with Houston Methodist.” 6 We conclude, however, that the statements forming the basis of Harvey’s claims do not relate to products or services “in the marketplace.” “The words ‘good, product, or service in the marketplace’ . . . do not paradoxically enlarge the concept of ‘matters of public concern’ to include matters of purely private concern. [T]he ‘in the marketplace’ modifier suggests that the communication must have some relevance to a public audience of potential buyers or sellers.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, No. 18-0656, —S.W.3d—, 2019 WL 6971659 , at *5-7 (Tex. Dec. 20, 2019). Harvey’s alleged solicitation of gifts from Schindler do not involve a public audience of potential buyers or sellers. Instead, these matters relate to only Harvey’s, Houston Methodist’s, and (potentially) Schindler’s private concerns. Houston Methodist relies on Camp v. Patterson, No. 03-16-00733-CV, 2017 WL 3378904 , at *5 & n.6 (Tex. App.—Austin Aug. 3, 2017, pet. denied) (mem. op.), but we are unpersuaded that Camp compels a different conclusion. The facts of Camp are easily distinguished. There, Camp, a former employer of Patterson, drafted emails and text messages to third-party customers accusing Patterson of billing the third-party customers with fraudulent invoices. Id. at *2-4. After Patterson discovered the texts and emails, “Patterson brought suit for defamation, business disparagement, tortious interference with prospective business relations, and intentional infliction of emotional distress, all predicated on the text and email messages.” Id. at *5. Camp moved to dismiss Patterson’s claims under the TCPA, alleging that Patterson’s claims were based on Camp’s exercise of free speech, specifically, communications related to goods, products, or services in the marketplace. Id. The Austin Court of Appeals held that the communications on which Patterson’s claims were based were made in connection with issues related to goods and products sold “in the marketplace.” Id. In today’s case, Lazo reported 7 that he overheard Harvey requesting personal gifts from a vendor. There is no connection to goods or services “in the marketplace,” as was present in Camp. Next, Houston Methodist asserts that the TCPA applies because Lazo’s statements—even though made privately among Houston Methodist employees— were a matter of public concern because they were made in connection to issues related to Houston Methodist’s economic and community well-being. According to Houston Methodist, the statements “concerned [Harvey’s] alleged wrongdoing and related economic and perhaps legal risks from [Harvey’s] conduct”, and “Lazo’s statements also concern the community well-being as he reported unethical (violating Houston Methodist’s policies) and possibly illegal conduct.” Houston Methodist cites Coleman, in which the supreme court held that the TCPA applied to a defamation claim by a former employee based on statements between supervisors and an investigator that led to his termination. Coleman, 512 S.W.3d at 901 . Coleman involved statements by Coleman’s supervisors in internal reporting documents and to an investigator that Coleman, a terminal technician, violated company policy by failing to gauge a tank and then reporting otherwise. See id. at 897-98. Coleman sued ExxonMobil and his two supervisors for defamation, alleging that their statements were untrue. Id. at 897. Although no harm resulted from Coleman’s alleged failure to gauge the tank, one of the supervisors offered affidavit testimony that failure to gauge tanks can create serious safety and environmental risks, endanger employees’ health, and affect ExxonMobil’s economic interests. Id. at 898. The Texas Supreme Court held that, although the statements were private and among ExxonMobil employees, they related to a matter of public concern “because they concerned Coleman’s alleged failure to gauge [a] tank . . . , a process completed, at least in part, to reduce the potential environmental, 8 health, safety, and economic risks associated with noxious and flammable chemical overfilling and spilling onto the ground.” Id. at 901. In addition to Coleman, the supreme court held in Lippincott that disparaging remarks by hospital administrators were subject to the TCPA because they concerned issues related to whether a certified nurse anesthetist properly provided medical services to patients, and the provision of medical services by a healthcare professional constitutes a matter of public concern. See Lippincott, 462 S.W.3d at 509-10 . The statements in Lippincott included emailed reports that the nurse anesthetist, Whisenhunt, represented himself to be a doctor, endangered patients for his own financial gain, and sexually harassed employees. Id. at 509. Again, we disagree with Houston Methodist that the statements here at issue are sufficiently connected to a matter of public concern. First, “not every communication related somehow to one of the broad categories set out in section 27.001(7) always regards a matter of public concern.” Creative Oil & Gas, 2019 WL 6971659 , at *7. Moreover, although the Supreme Court of Texas has “previously held that private communications are sometimes covered by the TCPA[,] . . . . [t]hese prior cases involved environmental, health, or safety concerns that had public relevance beyond the pecuniary interests of the private parties involved.” Id. (citing Coleman, 512 S.W.3d at 898 , 901; Lippincott, 462 S.W.3d at 509-10 ). For this reason, Coleman and Lippincott are distinguishable. Here, unlike Coleman and Lippincott, there exists no comparable overarching and publicly relevant environmental, health, or safety concerns. Cf. Creative Oil & Gas, 2019 WL 6971659 , at *7 (explaining that a private “dispute affecting only the fortunes of the private parties involved is simply not a ‘matter of public concern’ under any tenable understanding of those words”). 9 Houston Methodist asserts that Lazo’s statements concerned Harvey’s alleged wrongdoing and related economic or legal risks from Harvey’s alleged conduct. But there is nothing to show that Harvey’s alleged conduct had any potentially wider impact on the community as a whole, nor did Lazo’s statements include an allegation that Harvey violated the law. Houston Methodist suggests that Lazo’s report of Harvey’s conduct could be construed as involving “potentially criminal” conduct and cites a Penal Code subsection criminalizing commercial bribery. See Tex. Penal Code § 32.43(b). Subsection (b) provides: A person who is a fiduciary commits an offense if, without the consent of his beneficiary, he intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another person on agreement or understanding that the benefit will influence the conduct of the fiduciary in relation to the affairs of his beneficiary. Id. However, Lazo did not tell his supervisor that he believed Harvey committed commercial bribery or broke any other law.7 To the extent that Houston Methodist asserts that Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 , 896 (Tex. 2018), supports its position, we disagree. There, Adams’s emails alleged that a homeowner’s association “did not follow city ordinances.” Id. The Supreme Court of Texas explained, “The allegation that the HOA repeatedly violated the law in caring for land that is open to the public is a matter of public concern . . . .” Id. Additionally, the court stated, “[I]n the context of a small residential community like Normandy Estates, any allegation of malfeasance and criminality by the developer and the HOA likely concerns the well-being of the community as a whole.” Id. 7 For this reason, Houston Methodist’s reliance on rehearing on this court’s opinion in Deaver v. Desai, 483 S.W.3d 668 , 673 (Tex. App.—Houston [14th Dist.] 2015, no pet.), is misplaced. In Deaver, this court held that statements calling for criminal charges against an attorney for identity theft related to both economic and community well-being. See id. Here, in contrast, Lazo did not state that Harvey committed bribery or call for his criminal prosecution. 10 Neither of these concerns are present here, and the facts of this case are more akin to those in Creative Oil & Gas, as we have explained. Houston Methodist has not established that the communications at issue have any “public relevance beyond the pecuniary interests of the private parties involved.” See Creative Oil & Gas, 2019 WL 6971659 , at *7. In sum, we conclude that Houston Methodist failed to show that the communications upon which Harvey’s claims are sufficiently connected to a “matter of public concern,” and thus the action is not based on, related to, or in response to the exercise of the right of free speech. Accordingly, Houston Methodist did not establish that the TCPA applies to this dispute. We overrule Houston Methodist’s first issue. Because of our ruling, the burden did not shift to Harvey to present prima facie proof of each element of his claims, so we need not reach Houston Methodist’s second issue. See Tex. R. App. P. 47.1. Conclusion For the foregoing reasons, we affirm the trial court’s denial of Houston Methodist’s TCPA motion to dismiss. /s/ Kevin Jewell Justice Panel consists of Justices Wise, Jewell, and Poissant. 11
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2020-03-05 23:10:41.212848+00
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http://www.tsc.state.tn.us/sites/default/files/rayalvinopn.pdf
03/05/2020 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 11, 2020 Session ALVIN RAY ET AL. v. ANTHONY WILLOUGHBY Appeal from the Circuit Court for Shelby County No. CT-003486-17 Robert Samual Weiss, Judge ___________________________________ No. W2019-00646-COA-R3-CV ___________________________________ A pro se defendant appeals a judgment entered against him on a promissory note. Because the defendant failed to file a transcript or statement of evidence, we presume that the trial court’s findings are supported by the evidence. In light of that presumption, we affirm the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined. Anthony Willoughby, Germantown, Tennessee, pro se appellant. George F. Higgs and Brittan Webb Robinson, Memphis, Tennessee, for the appellees, Alvin Ray and Carla Ray. MEMORANDUM OPINION1 We only have the technical record before us. We glean from that and the briefs of the parties that Alvin Ray and Anthony Willoughby were business partners. The partnership purchased a fourplex shopping center using $87,500 borrowed from First Alliance Bank. The shopping center served as collateral on the loan. Sometime later, the partners discovered an issue with the title to the shopping center. So they agreed to dissolve their partnership. This left the issue of the outstanding debt to First Alliance, which was now unsecured due to the title issue. Mr. Ray and 1 Under the rules of this Court, as a memorandum opinion, this opinion may not be published, “cited[,] or relied on for any reason in any unrelated case.” Tenn. Ct. App. R. 10. Mr. Willoughby each signed separate promissory notes for one-half of the $52,160 balance of the debt. Mr. Ray’s spouse joined him in his note, and they also jointly agreed to guarantee Mr. Willoughby’s note. In 2016, the Rays purchased Mr. Willoughby’s note from First Alliance. First Alliance sent notice of the transfer to Mr. Willoughby and advised him to make payments to the Rays. Later that year, the Rays sued Mr. Willoughby in general sessions court. Mr. Willoughby, acting pro se, counterclaimed and asserted third-party claims against First Alliance and two bank employees. Mr. Willoughby alleged that the Rays had conspired with First Alliance to change the structure of his loan without his knowledge. The general sessions court dismissed Mr. Willoughby’s claims and awarded the Rays a judgment of $33,333.23. Mr. Willoughby appealed to the circuit court. After conducting a trial, the court awarded the Rays a judgment against Mr. Willoughby of $30,666, which included $5,667 in attorney’s fees. The court also dismissed Mr. Willoughby’s counterclaim and third- party claims. Mr. Willoughby moved to set aside the court’s order without success. Mr. Willoughby appeals. As an initial matter, the Rays complain that Mr. Willoughby has not complied with Rule 27(a) of the Tennessee Rules of Appellate Procedure, which specifies the requirements for an appellant’s brief. See Tenn. R. App. P. 27(a). They submit that Mr. Willoughby’s issues on appeal should be deemed waived and that his appeal should be dismissed. Even as a pro se appellant, Mr. Willoughby “must comply with the same standards to which lawyers must adhere.” Watson v. City of Jackson, 448 S.W.3d 919 , 926 (Tenn. Ct. App. 2014). As we have previously explained: Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe. Hessmer v. Hessmer, 138 S.W.3d 901 , 903 (Tenn. Ct. App. 2003) (internal citations omitted). Yet, “[t]he Tennessee Rules of Appellate Procedure should be construed to afford all parties a hearing on the merits.” Paehler v. Union Planters Nat. Bank, Inc., 971 S.W.2d 393 , 397 (Tenn. Ct. App. 1997). So we “give pro se litigants who are untrained 2 in the law a certain amount of leeway in drafting their pleadings and briefs.” Young v. Barrow, 130 S.W.3d 59 , 63 (Tenn. Ct. App. 2003) (citing Whitaker v. Whirlpool Corp., 32 S.W.3d 222 , 227 (Tenn. Ct. App. 2000); Paehler, 971 S.W.2d at 397 ). And “we measure the papers prepared by pro se litigants using standards that are less stringent than those applied to papers prepared by lawyers.” Id. We agree with the Rays that Mr. Willoughby’s brief fails to comply with the requirements of the Tennessee Rules of Appellate Procedure. The brief also fails to comply with the rules of this Court. See Tenn. Ct. App. R. 6(a) (listing the requirements for written argument in briefs). But here we exercise our discretion to consider the merits of Mr. Willoughby’s appeal despite the deficiencies in his appellate brief. See Tenn. R. App. P. 2 (allowing this Court to suspend the requirements of the Tennessee Rules of Appellate Procedure “[f]or good cause”). We do so because our review is limited to a technical record of less than 100 pages and because there is another problem with Mr. Willoughby’s appeal that we cannot excuse. Mr. Willoughby raises four issues for our review. We quote them verbatim below: 1. On the 22nd day of March, 2019, Alvin Ray a Board Director of First Alliance Bank while under sworn oath in his Testimony committed Perjury that he had never borrowed $11,800 from Anthony Willoughby in the Circuit Court proceedings CT-003486-17 2. On the 22nd day of March, 2019, Hunt Campbell, President-First Alliance Bank while under sworn oath in his Testimony committed Perjury that he did not meet and conspire with Alvin Ray-a Board Director, to purchase a Bank note and file suit against Anthony Willoughby in the Circuit Court proceedings CT-003486-17 3. On the 22nd day of March, 2019, Melanie Cooley, Vice President-First Alliance Bank while under sworn oath in her Testimony committed Perjury that she did not attend a meeting with Hunt Campbell, First Alliance Bank President, Alvin Ray, First Alliance Bank Director, John Luke, First Alliance Bank Loan Officer as Hunt Campbell advised Alvin Ray to purchase a First Alliance Bank note with Anthony Willoughby as Borrower and then file suit against Anthony Willoughby in the Circuit Court proceedings CT-003486-17 4. On the 15th day of December 2016 Alvin and Carla Ray filed in Shelby County General Sessions Court at Memphis a Civil Warrant No. 1829670 on a single Bank note and that on the 29th day of March 2019 the Circuit Court of Tennessee at Memphis confirmed a Judgment for more than one Bank note to the Plaintiff, Alvin Ray in the amount of $30,666.00 3 As we perceive the issues and as he explained at oral argument, Mr. Willoughby contends that the trial court’s judgment is not supported by the evidence. In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court’s determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 , 91 (Tenn. 1993). The trial court’s conclusions of law are afforded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26 , 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857 , 859 (Tenn. 1993). Tennessee Rule of Appellate Procedure 24 requires an appellant to prepare a record conveying a “fair, accurate, and complete account” of what happened at trial so that we may evaluate the issues raised on appeal. Tenn. R. App. P. 24; In re M.L.D., 182 S.W.3d 890 , 894 (Tenn. Ct. App. 2005). “[T]o demonstrate that evidence preponderates against the judgment of the trial court,” the appellant must “provide . . . a transcript of the evidence or a statement of the evidence from which we can determine whether the evidence preponderates for or against the findings of the trial court.” In re M.L.D., 182 S.W.3d at 894-95 . The recitation of facts and arguments contained in briefs do not constitute evidence that we may consider in lieu of evidence properly entered into the record. Reid v. Reid, 388 S.W.3d 292 , 295 (Tenn. Ct. App. 2012); Flack v. McKinney, No. W2009-02671-COA-R3-CV, 2011 WL 2650675 , at *2 (Tenn. Ct. App. July 6, 2011). If a transcript or statement of the evidence is unavailable, we must conclusively presume that the trial court’s findings are supported by the evidence. In re M.L.D., 182 S.W.3d at 895 ; Word v. Word, 937 S.W.2d 931 , 932 (Tenn. Ct. App. 1996); Leek v. Powell, 884 S.W.2d 118 , 121 (Tenn. Ct. App. 1994); Flack, 2011 WL 2650675 , at *3. Thus, when the issues raised on appeal turn on the facts presented at trial, the lack of a transcript or a statement of the evidence is generally “fatal” to the appeal. Piper v. Piper, No. M2005- 02541-COA-R3-CV, 2007 WL 295237 , at *4 (Tenn. Ct. App. Feb. 1, 2007). Here, Mr. Willoughby provided neither a transcript nor a statement of the evidence. Because Mr. Willoughby’s issues turn on the facts presented at trial, our hands are tied. See Chandler v. Chandler, No. W2010-01503-COA-R3-CV, 2012 WL 2393698 , at *6 (Tenn. Ct. App. June 26, 2012) (“The absence of either a transcript or a statement of the evidence significantly ties the hands of the appellate court.”). In light of the presumption that the trial court’s findings are supported by the evidence, we must affirm the trial court’s judgment. _________________________________ W. NEAL MCBRAYER, JUDGE 4
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2020-09-04 20:00:42.239991+00
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http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0298p-06.pdf
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0298p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CHERRYL KIRILENKO-ISON; SUSAN BAUDER-SMITH, ┐ Plaintiffs-Appellants, │ │ > No. 19-5767 v. │ │ │ BOARD OF EDUCATION OF DANVILLE INDEPENDENT │ SCHOOLS, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:18-cv-00435—Danny C. Reeves, Chief District Judge. Argued: June 9, 2020 Decided and Filed: September 4, 2020 Before: CLAY, ROGERS, and DONALD, Circuit Judges. _________________ COUNSEL ARGUED: Edward E. Dove, Lexington, Kentucky, for Appellants. Elizabeth A. Deener, LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee. ON BRIEF: Edward E. Dove, Lexington, Kentucky, for Appellants. Elizabeth A. Deener, LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee. _________________ OPINION _________________ CLAY, Circuit Judge. Plaintiffs Cherryl Kirilenko-Ison and Susan Bauder-Smith appeal the district court’s order granting summary judgment in favor of their former employer, No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 2 Defendant Board of Education of Danville Independent Schools (“School Board”). Plaintiffs assert that the School Board illegally retaliated against them for their advocacy on behalf of two disabled students, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 701 et seq., and the Kentucky Civil Rights Act (“KCRA”), Ky. Rev. Stat. § 344. Plaintiffs also claim that the School Board violated the Kentucky Whistleblower Act, Ky. Rev. Stat. § 61.102, by retaliating against them for reporting a parent’s suspected child neglect to Kentucky’s Cabinet for Families and Children. Plaintiff Kirilenko-Ison further asserts that the School Board failed to accommodate her disability and constructively discharged her, in violation of the ADA and the KCRA. For the reasons that follow, we affirm in part and reverse in part the district court’s grant of summary judgment. BACKGROUND A. Factual Background Plaintiffs in this case are two nurses who were employed by the Board of Education of Danville Independent Schools at all relevant times. Plaintiff Kirilenko-Ison was a registered nurse, Medicaid billing coordinator, and the health services coordinator for the School Board. Plaintiff Bauder-Smith was a part-time school nurse employed by the School Board. In 2014, the School Board hired Bauder-Smith and another part-time nurse, Nancy Nye, to fill the nursing positions funded by a three-year grant for physical and health education. The crux of Plaintiffs’ complaint is that the School Board retaliated against them for advocating for the rights of two students who are disabled within the meaning of the ADA, Section 504, and the KCRA. 1. Plaintiffs’ Advocacy on Behalf of D.M. In the 2015–2016 school year, Plaintiffs allegedly advocated for the rights of D.M., a middle school student with type-1 diabetes. According to Plaintiffs, they assisted the school in developing an accommodation plan for D.M. pursuant to Section 504 of the Rehabilitation Act (“§ 504 plan”). However, they say that they were unable to adequately care for D.M.’s health because the child’s parent neglected her diabetic needs. D.M.’s mother was allegedly noncompliant with the child’s health plan at home and would not provide supplies that were No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 3 necessary for D.M.’s care at school. Because of the mother’s noncompliance with the child’s medical plan, Kirilenko-Ison and Bauder-Smith discussed filing a complaint with the Cabinet for Families and Children. Plaintiffs say that they told the School Board about their concerns regarding D.M.’s care but that they received little or no support. The superintendent of the school system, Keith Look, told them not to file a complaint with the Cabinet. In May 2016, D.M.’s mother requested that Plaintiffs no longer be allowed to provide care for D.M. Plaintiffs then filed a complaint with the Cabinet, in which they reported D.M.’s mother for suspected neglect. In response, D.M.’s mother submitted a complaint to the School Board regarding Plaintiffs. This triggered an informal inquiry into the situation regarding D.M.’s care, in which Superintendent Look asked Plaintiffs to write a report about what happened. Following the situation with D.M., the School Board did not take any immediate retaliatory actions against Plaintiffs. At the end of the 2015–2016 school year, Kirilenko-Ison’s annual contract was renewed for the upcoming 2016–2017 school year and Bauder-Smith’s three-year contract remained intact. 2. Plaintiffs’ Advocacy on Behalf of C.J. During the 2016–2017 school year, Plaintiffs assisted with the medical care of C.J., an elementary school student who had recently been diagnosed with diabetes. In September 2016, Plaintiffs attended a meeting with C.J.’s mother to develop a § 504 plan for C.J. (“first § 504 meeting”). Robin Kelly (the principal of the school), Lindsay Carpenter (the student’s teacher), and Nye also attended the meeting. The attendees formulated a § 504 plan in accordance with C.J.’s Diabetic Management Plan (“DMMP”), which had been developed by his doctors. Following this first § 504 meeting, Plaintiffs and C.J.’s mother began to have various disagreements about how to implement the plan. There were two primary points of disagreement between Plaintiffs and C.J.’s mother: one relating to the child’s ability to eat breakfast at school and another relating to his ability to ride the school bus. In her deposition, Kirilenko-Ison explained that C.J.’s meals should be at least four hours apart or else there is a risk of “insulin stacking, which causes harm to the child and causes low— No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 4 extremely low blood sugar, which was occurring in the afternoons.” (Kirilenko-Ison Dep., R. 30-2, Pg. ID 149.) C.J. would usually arrive late to school without having eaten breakfast, and there was not enough time to permit him to eat breakfast at school and then have a four-hour block of time without insulin before lunch. Plaintiffs therefore encouraged C.J.’s mother to have him eat breakfast at home before arriving to school. However, C.J.’s mother insisted that C.J. be allowed to “eat a regular breakfast at school.” (Id.) Defendant says that permitting C.J. to eat breakfast at school was in full compliance with C.J.’s § 504 plan and DMMP. But Plaintiffs say that allowing C.J. to eat breakfast at school would have been detrimental to his health due to the risk of insulin stacking and would have placed their nursing licenses in jeopardy. Plaintiffs and C.J.’s mother also disagreed about C.J.’s participation in various school activities, including riding the school bus. It appears that Plaintiffs did not want C.J. to ride the bus if his glucose levels were low because he could go into a hypoglycemic episode. However, according to Plaintiffs, C.J.’s mother insisted that he be permitted to ride the bus “no matter what his blood glucose levels were,” and that he be able to go to his other school activities “while in a hypoglycemic state.” (Id.) On October 14, 2016, a second meeting was held to revise C.J.’s § 504 plan (“second § 504 meeting”). Plaintiffs, Nye, Kelly, Carpenter, and C.J.’s mother again attended the meeting. During the meeting, Bauder-Smith presented a hypothetical to C.J.’s mother, in which she asked “if [C.J.’s] blood sugar is low and he goes back to class and falls down and is unconscious, then who is going to be responsible because he was allowed to go back to class.” (Id. at Pg. ID 159.) C.J.’s mother then abruptly left the meeting, and no new § 504 plan was developed. At that point, Kelly reprimanded Plaintiffs. According to Kirilenko-Ison, Kelly “was screaming at [her] about doing what the parent wants and she didn’t care about [her] nursing license, which really she was talking to all the nurses, and that we’re going to do what the parent wants.” (Id.) According to Bauder-Smith, “Robin Kelly sided with the mother and said directly to [Kirilenko-Ison], but meaning all three of [the nurses], that we’re going to do what the parent No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 5 wants, that she’s in the district, [the parent is] not going anywhere.” (Bauder-Smith Dep., R. 30- 3, Pg. ID 202.) After the second § 504 meeting, C.J.’s mother wrote a detailed complaint against Kirilenko-Ison, and Kirilenko-Ison was taken off the case. The school staff then held a third § 504 meeting with C.J.’s mother, but neither Plaintiff was invited to attend the meeting (“third § 504 meeting”). The third meeting resulted in a new § 504 plan for C.J., which Plaintiffs reviewed and, subsequent to revisions, effectively approved. At some point in November 2016, Nancy Nye resigned from her part-time nursing position with the school. Her resignation letter lists several reasons why she felt compelled to resign: I feel it is my obligation to inform the School Board of the environment which has surfaced that has made it necessary for this resignation. ▪ There is a standard of care each and every nurse is required to meet. The district has asked the nurses to work contrary to this. ▪ Nurses are required, by law to work under orders from doctors. They are limited as to what they can do within these orders. . . . The district has asked nurses to overstep these limits. .... ▪ The district has hired some of the nurses for particular hours. The nurses have been as accommodating as possible. However, when members of the administration give verbal threats to pressure nurses into changing their hours, I will not standby [sic]. ▪ I will not be a part of one person’s vendetta against another by using her son as a reason. ▪ The environment of distrust created by this issue has become more than I am willing to put up with. (Nye Letter, R. 34-7, Pg. ID 427.) In an email to Ed McKinney in December 2016, Bauder-Smith said that she would no longer provide care to C.J.: I am no longer asking to be removed from this case. According to the last time we met about my hours, I now fall into the spectrum you stated. “I can loose [sic] my job, or Dr Look can have empathy for me, or he can do something in between No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 6 that spectrum.” “If the district who writes my checks” disapproves I am ready to face the consequences. .... So, this is no longer a request. I will service lunch today and I’m done unless the doctor’s orders are followed to the letter, meaning breakfast at home for proper timing of insulin. Splitting correction and carbs in morning takes things out of my control. Last week [C.J.’s mother] didn’t cover carbs at home, this week she [is] not checking blood sugars! (Bauder-Smith Email, R. 34-6, Pg. ID 426.) Also in December 2016, Ed McKinney and David Davis were assigned to investigate C.J.’s mother’s complaint regarding Kirilenko-Ison. Kirilenko-Ison, represented by counsel, met with Superintendent Look to discuss the investigation. On February 7, 2017, Superintendent Look summarized the investigation’s findings in a seven-page memorandum that he provided to Kirilenko-Ison. Look in his memorandum concluded that Kirilenko-Ison’s conduct placed C.J.’s rights to a free appropriate public education (“FAPE”) into jeopardy “and certainly undermined the spirit of FAPE” by treating C.J. differently from other students with regard to his meals, activities, and transportation. (See Suspension Letter, R. 30-14, Pg. ID 255.) Look also found that Kirilenko-Ison’s conduct violated the 2015 New Code of Ethics for Nurses and an Advisory Opinion Statement from the Kentucky Board of Nursing (“KBN”) on the role of nurses in implementing patient care orders. Kirilenko-Ison was then suspended for five days without pay from February 9, 2017 through February 15, 2017. 3. Kirilenko-Ison’s Accommodations Request Following her five-day suspension in February, Kirilenko-Ison took leave under the Family and Medical Leave Act (“FMLA”) for the remainder of the school year. Kirilenko-Ison has “autonomic nervous system dysfunction[,] . . . lupus, Parkinsonism, POTS, and adjustment disorder with mixed emotion, and polyneuropathy.” (Kirilenko-Ison Dep., R. 30-2, Pg. ID 166.) In May 2017, Kirilenko-Ison submitted an accommodations request to the School Board in preparation for her upcoming return to work. She requested accommodations including “[t]ime off work to treat condition,” “[f]requent or longer breaks if necessary,” “[d]ress code: No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 7 [c]ompression pants can be worn,” and “[w]ork reassignment to decrease stress, work load,” among others. (Accommodations Request, R. 30-15, Pg. ID 261.) Kirilenko-Ison and the School Board provisionally entered into an employment contract for the 2017–2018 school year. In July 2017, a month and a half after Kirilenko-Ison had submitted her accommodations request and returned to work, she and Look met to discuss her accommodations request. The parties reviewed her requests, but the meeting broke down when Look asked for verification of Kirilenko-Ison’s disabilities. According to Kirilenko-Ison, the interactive process broke down when Defendant demanded that she provide information about her disability diagnosis, to which Kirilenko-Ison objected. Defendant also allegedly placed a clause in Plaintiff’s contract requiring that Plaintiff sign two medical release forms for Defendant to have her medical records by August 15, 2017, or her contract would be terminated. Kirilenko- Ison claims Dr. Look threatened to terminate her if she did not sign the release. Kirilenko-Ison did not sign the release, and the School Board neither approved nor denied her accommodations request. Kirilenko-Ison applied for disability benefits and voluntarily resigned from her position in August 2017. 4. Bauder-Smith’s Non-Renewal Bauder-Smith’s three-year contract ended on June 30, 2017. There was no guarantee of continued employment after the 2017 school year, but according to Plaintiffs’ complaint, Bauder-Smith “had the belief that she would be rehired the next school year if funds were available.” (Compl., R. 1-2, Pg. ID 12.) In August 2017, Defendant offered Bauder-Smith a substitute nursing position that would entail “only a few hours” of work. (Id.) Bauder-Smith turned it down because she was hoping for full-time employment. In November 2017, Defendant announced that it was seeking applicants for a full-time nurse. Bauder-Smith applied but was not hired. B. Procedural History Plaintiffs Kirilenko-Ison and Bauder-Smith sued Defendant for illegal retaliation in violation of the ADA; Section 504; the KCRA; and the Kentucky Whistleblower Act, Ky. Rev. No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 8 Stat. § 61.102. Kirilenko-Ison also sued Defendant for failing to accommodate her disabilities, in violation of the ADA and the KCRA. Following discovery, Defendant moved for summary judgment on each of Plaintiffs’ claims and the district court granted the motion in its entirety. Plaintiffs now appeal the district court’s grant of summary judgment in favor of Defendant. DISCUSSION A. Standard of Review “We review the district court’s grant of summary judgment de novo.” George v. Youngstown State Univ., 966 F.3d 446 , 458 (6th Cir. 2020). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute of a material fact is genuine so long as ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769 , 775 (6th Cir. 2016) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545 , 551 (6th Cir. 2002)). When evaluating a motion for summary judgment, this Court views the evidence in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 587 (1986). “This includes drawing ‘all justifiable inferences’ in the nonmoving party’s favor.” George, 966 F.3d at 458 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 255 (1986)). Moreover, “[i]n reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365 , 374 (6th Cir. 2009) (quoting Bennett v. City of Eastpointe, 410 F.3d 810 , 817 (6th Cir. 2005)). B. Plaintiffs’ Retaliation Claims under the ADA, Section 504, and the KCRA Plaintiffs assert that the School Board’s decisions to suspend Kirilenko-Ison and to not rehire Bauder-Smith were in retaliation against Plaintiffs because of their advocacy on behalf of D.M. and C.J., in violation of the ADA, Section 504, and the KCRA. This Court analyzes claims under the ADA and Section 504 together. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687 , 696–97 (6th Cir. 2013). We also interpret the KCRA in accordance with the federal laws. No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 9 Banks v. Bosch Rexroth Corp., 610 F. App’x 519, 531–32 (6th Cir. 2015); see Howard Baer, Inc. v. Schave, 127 S.W.3d 589 , 592 (Ky. 2003) (“The Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith.”). Because Plaintiffs’ retaliation claims are based on indirect evidence, we analyze them under the familiar McDonnell Douglas burden-shifting paradigm. Shelby Cty., 711 F.3d at 697 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under that paradigm, a plaintiff must first demonstrate a prima facie case of retaliation by showing that (1) she engaged in protected activity under the ADA and Section 504, (2) the defendant knew of the protected activity, (3) the defendant took an adverse action against the plaintiff, and (4) there was a causal connection between the adverse action and the plaintiff’s protected activity. Id. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Id. (quoting Nguyen v. City of Cleveland, 229 F.3d 559 , 563 (6th Cir. 2000)). If the plaintiff demonstrates her prima facie case, the burden of production shifts to the defendant to show that it had “a legitimate, non-discriminatory basis” for the adverse action. Id. If it does so, the burden then shifts back to the plaintiff to show by a preponderance of the evidence that the defendant’s reasons “‘were not its true reasons, but were a pretext for’ retaliation.” Id. (quoting DiCarlo v. Potter, 358 F.3d 408 , 414–15 (6th Cir. 2004)). “On a motion for summary judgment, a district court considers whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651 , 661 (6th Cir. 2000). The district court found that Plaintiffs engaged in protected activity under the ADA and Section 504 by advocating for the rights of disabled children. However, with regard to Bauder- Smith, the court held that she failed to demonstrate a causal connection between her protected activity and the School Board’s failure to rehire her, or even interview her for an open position, after the completion of her contract. Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs., No. CV 5:18-435-DCR, 2019 WL 3068448 , at *8 (E.D. Ky. July 12, 2019). Therefore, the district court granted summary judgment to Defendant on the ground that Bauder-Smith failed to establish her prima facie case of retaliation, and it did not reach the other steps of the McDonnell Douglas inquiry. Id. With regard to Kirilenko-Ison, the district court held that she had No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 10 established her prima facie case, but it determined that Kirilenko-Ison had failed to demonstrate a genuine factual dispute as to whether the School Board’s reasons for suspending her were a pretext for retaliation. Id. at *7. For the reasons that follow, we find that the district court correctly held that Plaintiffs engaged in protected activity under the relevant statutes. However, we hold that Plaintiff Bauder-Smith did demonstrate a genuine factual dispute as to causation for purposes of satisfying her easy burden at the prima facie stage, and therefore reverse the district court’s resolution of Bauder-Smith’s claim on that ground. See Nguyen, 229 F.3d at 563 (emphasizing that a plaintiff’s burden at the prima facie stage is “one easily met”). We do not reach the issue of pretext with respect to Bauder-Smith because the School Board did not move for summary judgment on that issue and the district court likewise did not reach it. With regard to Kirilenko- Ison, we hold that she demonstrated a genuine factual dispute at each stage of the McDonnell Douglas inquiry sufficient to overcome Defendant’s motion for summary judgment. We therefore reverse the district court’s judgment and remand to allow both Plaintiffs’ retaliation claims to proceed. 1. Bauder-Smith a. Protected Activity The School Board challenges the district court’s finding that Plaintiffs engaged in protected activity under the ADA, Section 504, and the KCRA. The ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.” 42 U.S.C. § 12203(a); see also 29 U.S.C. § 794(a), (d); 29 C.F.R. § 33.13. In accordance with this provision, this Court and others have held that advocating for members of a protected class is a protected activity for purposes of retaliation claims. See Barrett v. Whirlpool Corp., 556 F.3d 502 , 513 (6th Cir. 2009) (Title VII); Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126 , 1132 (10th Cir. 2010) (Section 504 and ADA). The district court, relying on Reinhardt, held that Plaintiffs had engaged in protected activity by “[a]dvocating for the rights of No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 11 disabled students.” Kirilenko-Ison, 2019 WL 3068448 , at *6 (citing Reinhardt, 595 F.3d at 1132 ). The School Board argues that Plaintiffs did not engage in protected activity because the Board was not discriminating against D.M. or C.J. It says that Plaintiffs “confuse disagreement with a parent over services requested by the parent and approved by the child’s doctor with discrimination against the child. . . . Contrary to [Plaintiffs’] contentions, permitting a child to engage in an activity provided to all students, such as school breakfast, is not discriminatory. Preventing a child, or discouraging a child, from participating in such activities, solely because the child has Type I diabetes, is discriminatory and a denial of free appropriate education [‘FAPE’].” (Appellee Br. at 21 (emphasis in original).) In the School Board’s view, Plaintiffs had not “opposed any act or practice made unlawful by” the ADA or Section 504 because the School Board was not engaged in any illegal activity under either statute. See 42 U.S.C. § 12203(a). This argument is not supported by the case law. In Reinhardt v. Albuquerque Public School Board of Education, the primary case on which the district court relied, the Tenth Circuit held that a speech-language pathologist engaged in protected activity under the ADA and Section 504 when she complained that the school was not providing her with accurate and timely caseload lists of students who were entitled to special education services. 595 F.3d at 1130 , 1132. She also filed a complaint with the state under the Individuals with Disabilities Education Act (“IDEA”), claiming that the inaccurate lists prevented qualified students from receiving speech and language services. Id. at 1130. At another point, the teacher advocated on behalf of a particular special education student, saying that he should have a neuropsychological evaluation and special reading instruction. Id. The Tenth Circuit held that “[a]ll three forms of Ms. Reinhardt’s advocacy on behalf of disabled students constitute protected activity” under the ADA and Section 504 because the public school was required “to provide a ‘free appropriate public education’ by providing education and related services that ‘are designed [to] meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons.’” Id. at 1132 (quoting 34 C.F.R. § 104.33(a), (b)(1) (2003)). No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 12 By challenging the school’s failure to provide a FAPE to certain qualified students, the teacher in Reinhardt engaged in protected advocacy under the statutes. The same is true here with regard to Plaintiffs’ conduct, at least for purposes of demonstrating their prima facie cases. Kirilenko-Ison and Bauder-Smith were clearly disagreeing with the School Board about the accommodations that should be provided to D.M. and C.J. under their respective § 504 plans. With regard to D.M., Plaintiffs allege that they were not able to adequately render health services to the child because the child’s parent was refusing to cooperate. They say that D.M.’s mother was noncompliant with D.M.’s § 504 plan. When Plaintiffs lodged their concerns about the student’s health with Superintendent Look, he refused to assist them. When they told the Board that they were considering filing a complaint against the parent to the Cabinet of Families and Children in the interest of the child’s health, Superintendent Look did not want them to file the complaint. After Plaintiffs filed the report, they received various threats from D.M.’s mother, including that Kirilenko-Ison “would pay” for filing the report, but Defendant did not assist them in responding to the student’s mother. (See Pl.’s Resp. Def.’s Mot. Summ. J., R. 34, Pg. ID 401 (quoting Ex. 1, R. 34-1, Pg. ID 419).) The situation with regard to C.J. was even more clearly about the provision of his § 504 plan. In that instance, Plaintiffs were again disagreeing with the student’s parent over his medical needs. According to Plaintiffs, C.J. was consistently late to school and yet the parent insisted that he be permitted to eat breakfast at school. In Plaintiffs’ view, however, this was dangerous to C.J.’s health because it risked insulin stacking whereby C.J.’s blood sugar would drop to extremely low levels in the afternoons. Plaintiffs allege that Kirilenko-Ison spoke with McKinney and told him that the mother’s request would put the child at risk. Nevertheless, C.J.’s mother was informed that C.J. would be permitted to eat breakfast at school even on the days when there was a risk of insulin stacking. Plaintiffs were also concerned about the mother’s request that C.J. be permitted to participate in school activities when his blood sugar was low. They say that doing so would again be dangerous to C.J.’s health because an incident might occur if he goes into a hypoglycemic episode. Once again however, upon voicing these concerns to Defendant, Plaintiffs were told that they had to follow the parent’s orders—even if, in Plaintiffs’ view, this No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 13 was contrary to the best interests and health needs of the child. Nye’s resignation letter and Bauder-Smith’s email notifying Defendant that she would no longer render care to C.J. further support Plaintiffs’ argument that they were advocating in the interests of the children against Defendant staff, who were determined to side with the children’s parents at all costs. Overall, the picture that Plaintiffs paint is one in which they were not able to do their jobs as requested by the School Board without causing harm to the two disabled students. Therefore, they advocated against the School Board’s policies with regard to the § 504 plans and in support of the children’s interests. In this way, this case is analogous to Reinhardt and other cases in which courts have found that a plaintiff engaged in protected activity by challenging the school’s deficient administration of a free appropriate public education. See Reinhardt, 595 F.3d at 1132 ; see also, e.g., S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69 , 75–76, 78 (4th Cir. 2016) (stating in dictum that the plaintiff engaged in protected activity by criticizing the school’s insufficient efforts to prevent harassment of a disabled student and raising concerns at a parents’ forum about the school’s lack of harassment reporting options); Barker v. Riverside Cty. Office of Educ., 584 F.3d 821 , 823, 828 (9th Cir. 2009) (holding that a plaintiff has standing to bring a retaliation claim under the ADA and Section 504 where she filed a class discrimination complaint against the county education office for denying certain disabled students a free appropriate public education); see also Montanye v. Wissahickon Sch. Dist., 218 F. App’x 126, 130–31 (3d Cir. 2007) (holding that a plaintiff-teacher did not engage in protected activity by scheduling therapy sessions for a disabled student and noting that “protected activity does not include mere assistance of special education students, but, rather, requires affirmative action in advocating for, or protesting discrimination related to, unlawful conduct by others”). This picture demonstrates a genuine factual dispute about whether Plaintiffs engaged in protected activity which is sufficient to establish their prima facie cases. See Nguyen, 229 F.3d at 563 (“The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.”). b. Causation Because Bauder-Smith has sufficiently demonstrated that she engaged in protected activity and that the School Board knew of the protected activity, we turn to the other elements No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 14 of her prima facie case: whether the School Board took an adverse action against her; and whether there was a causal connection between the adverse action and Bauder-Smith’s protected activity. Shelby Cty., 711 F.3d at 697 . Bauder-Smith has shown that Defendant took an adverse action against her by failing to rehire her when she applied for a full-time nursing position in November 2017. See, e.g., Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367 , 379, 381 (6th Cir. 2002) (stating that the defendant’s failure to rehire the plaintiff is an adverse employment action); Dixon v. Gonzales, 481 F.3d 324 , 333 (6th Cir. 2007) (stating that the defendant’s decision not to reinstate the plaintiff is an adverse employment action). The parties only meaningfully dispute the last element. The School Board argues, and the district court found, that Bauder-Smith failed to show causation because there was an eleven-month gap between Bauder-Smith’s advocacy (which took place from May to December 2016) and the School Board’s failure to rehire her (which occurred in November 2017). However, the School Board’s argument overlooks a key component of Bauder-Smith’s retaliation claim: that fall 2017 was the first meaningful opportunity the School Board had to retaliate against her. This allegation creates a genuine factual dispute as to causation and thus defeats the School Board’s motion for summary judgment. “To show causation, ‘a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken’ in the absence of the protected conduct.” Weigel, 302 F.3d at 381 (quoting Nguyen, 229 F.3d at 563 ). In some circumstances, an inference of causation may arise solely from the closeness in time between the point at which an employer learns of an employee’s protected activity and the point at which it takes an adverse action against that employee. Id. We have accordingly denied summary judgment where a defendant took adverse action against a plaintiff just a few months after learning of his or her protected activity. See, e.g., Dye v. Office of the Racing Comm’n, 702 F.3d 286 , 306 (6th Cir. 2012) (holding that a lapse of two months was sufficient to show a causal connection based on temporal proximity); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555 , 563 (6th Cir. 2004) (holding that a lapse of three months was sufficient to show a causal connection based on temporal proximity). No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 15 The flipside of these cases is that the absence of temporal proximity can be “fatal” to a plaintiff’s prima facie case. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668 , 675–76 (6th Cir. 2013). Thus, in Fuhr, we held that a “multi-year gap” of two years between the plaintiff’s protected activity and the employer’s adverse action defeated an inference of causation. Id. Relying on the Supreme Court’s holding in Clark County School District v. Breeden, 532 U.S. 268 , 273–74 (2001), and our holding in Dixon v. Gonzales, 481 F.3d 324 , 334 (6th Cir. 2007), we held that “multiyear gaps between the protected conduct and the first retaliatory act [are] insufficient to establish the requisite causal connection.” Fuhr, 710 F.3d at 676 . However, there are two situations in which even a long lapse of time is not fatal to a plaintiff’s causation showing. First, a court may still draw an inference of causation where the defendant took advantage of its first meaningful opportunity to retaliate against the plaintiff, even if that opportunity did not arise until several months after the plaintiff’s protected conduct. George, 966 F.3d at 460 –61; Dixon, 481 F.3d at 335 . Second, “even if enough time passes between the protected activity and the adverse action so as to preclude a finding of causation based on the close timing alone, an employee can still prevail if she ‘couple[s] temporal proximity with other evidence of retaliatory conduct to establish causality.’” George, 966 F.3d at 460 (alteration in original) (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 , 525 (6th Cir. 2008)); see also Little v. BP Expl. & Oil Co., 265 F.3d 357 , 364 (6th Cir. 2001) (holding that “there are circumstances where temporal proximity considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection”). Bauder-Smith’s causation showing succeeds under either of these paths. Bauder-Smith was hired pursuant to a three-year physical education grant that expired in July 2017. Following the expiration of her employment contract pursuant to that grant, the School Board did not reinstate her for the 2017–2018 school year. In August 2017, just one month after the expiration of her contract, the Board offered Bauder-Smith a substitute nursing position that would entail “only a few hours” of work. (Compl., R. 1-2, Pg. ID 12.) Bauder- Smith turned it down because she was hoping for full-time employment. In November 2017, the Board announced that it was seeking applicants for a full-time nurse. Bauder-Smith applied but was not hired. This was the first opportunity that the School Board had to refuse to rehire No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 16 Bauder-Smith after the termination of her contract, which supports an inference of causality based on temporal proximity. See, e.g., George, 966 F.3d at 460 (holding that an inference of causality based on temporal proximity is raised “when the alleged retaliation occurs at the first chance the employer had to take the adverse action in question”). The fact that the School Board did not fire Bauder-Smith prior to the termination of the three-year grant does not defeat Bauder-Smith’s prima facie case. A reasonable juror could conclude that Defendant would not want to terminate Bauder-Smith prior to the expiration of this grant, which provided a financial benefit to Defendant. Because “there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.” Dixon, 481 F.3d at 335 (quoting Porter v. Cal. Dep’t of Corr., 419 F.3d 885 , 895 (9th Cir. 2005)); see also id. (“This is especially true in the context of a reinstatement case, in which the time lapse between the protected activity and the denial of reinstatement is likely to be lengthier than in a typical employment-discrimination case.”). Indeed, it would be reasonable for a juror to conclude that the School Board took the first adverse action that it had the opportunity to take against Bauder- Smith after the expiration of her contract in July 2017. But even if this temporal proximity alone were not enough to demonstrate causation under our precedent, Bauder-Smith has sufficiently raised an inference of causation by offering other circumstantial evidence of retaliatory conduct. See Mickey, 516 F.3d at 525 (“[W]here some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”). Bauder-Smith has offered evidence suggesting that her supervisor, Ed McKinney, told her that she might lose her job as a result of her advocacy for C.J. Her email to McKinney permits an inference that McKinney told Bauder-Smith that “she needed to remember where her check came from.” (Appellants Br. at 22; see Bauder-Smith Email, R. 34-6, Pg. ID 426.) Nye’s resignation letter further suggests that Bauder-Smith and Kirilenko-Ison were being threatened by Defendant’s staff at the time of their advocacy for D.M. and C.J. No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 17 This circumstantial evidence of retaliatory motive, coupled with the temporal proximity between Bauder-Smith’s contract ending in July 2017 and the School Board’s failure to rehire her for the 2017–2018 school year, is sufficient at the prima facie stage to create a genuine dispute as to causation. See, e.g., Mickey, 516 F.3d at 525 ; Little, 265 F.3d at 364 ; see also Dixon, 481 F.3d at 333 (“The burden of proof at the prima facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity.”). c. Pretext The School Board moved for summary judgment on Bauder-Smith’s retaliation claim only on the ground that she had failed to demonstrate her prima facie case. On appeal as well, the School Board does not seriously argue that Bauder-Smith failed to meet her burden at the other stages of the McDonnell Douglas inquiry. We therefore decline to reach these questions in the first instance and reverse the district court on the ground that Bauder-Smith demonstrated a prima facie case of retaliation. See George, 966 F.3d at 468 n.6 (explaining that the forfeiture rule is “especially important in the summary judgment context” because the nonmoving party must be given the chance to develop the record in order to demonstrate a genuine factual dispute (citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 , 552 (6th Cir. 2008))). 2. Kirilenko-Ison Much of the analysis regarding Kirilenko-Ison’s retaliation claim mirrors the above analysis with regard to Bauder-Smith. However, we analyze Kirilenko-Ison’s claim separately because the district court’s resolution of her claim rested on a different ground. The district court determined that Kirilenko-Ison demonstrated her prima facie case, but the court granted summary judgment to the School Board on the ground that Kirilenko-Ison failed to demonstrate a genuine factual dispute as to pretext. Kirilenko-Ison, 2019 WL 3068448 , at *7. While we agree that Kirilenko-Ison demonstrated her prima facie case, we disagree that she failed to show a genuine factual dispute regarding pretext. We therefore reverse the district court on Kirilenko- Ison’s claim as well. No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 18 a. Prima Facie Case For the same reasons discussed above with regard to Bauder-Smith, Kirilenko-Ison has alleged that she engaged in protected activity under the ADA and Section 504 by advocating on behalf of D.M. and C.J., see, e.g., Reinhardt, 595 F.3d at 1132 , and that the School Board knew of her protected advocacy. The School Board does not deny that it subjected Kirilenko-Ison to a five-day suspension without pay because of her advocacy on behalf of C.J. This was an adverse employment action within a few months of Kirilenko-Ison’s advocating for the child and a complaint being filed as a result. See White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789 , 800–03 (6th Cir. 2004) (holding that a suspension without pay is an adverse employment action even when the employee’s pay is later reinstated). Kirilenko-Ison has therefore established her prima facie case. b. Legitimate, Nondiscriminatory Reason The School Board asserts a “legitimate, non-discriminatory basis” for Kirilenko-Ison’s suspension. Shelby Cty., 711 F.3d at 697 . It says that it suspended Kirilenko-Ison because her conduct placed C.J.’s rights to a free appropriate public education in jeopardy “and certainly undermined the spirit of FAPE” by treating C.J. differently from other students with regard to his meals, activities, and transportation. (Suspension Letter, R. 30-14, Pg. ID 255.) Kirilenko- Ison’s conduct also, supposedly, violated the New Code of Ethics for Nurses and an Advisory Opinion Statement from KBN on the role of nurses in implementing patient care orders. c. Pretext Because the School Board has satisfied its burden of articulating a non-discriminatory reason for Kirilenko-Ison’s suspension, the burden of production shifts back to Kirilenko-Ison to show that the Board’s proffered justification is pretextual for unlawful retaliation. See Shelby Cty., 711 F.3d at 697 . Of course, this shift in the burden of production under McDonnell Douglas does not increase Kirilenko-Ison’s burden under Rule 56. All that a plaintiff must show in order to overcome a defendant’s motion for summary judgment at this stage is that a reasonable juror could find that the defendant’s reasons were pretextual. The plaintiff does not need to prove pretext; she only needs to show that the question of pretext is a genuine factual No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 19 dispute. See Provenzano v. LCI Holdings, Inc., 663 F.3d 806 , 813 (6th Cir. 2011) (cautioning that “in the context of summary judgment . . . the [McDonnell Douglas] burden-shifting analysis can obfuscate the appropriate question—whether there exists a genuine issue of material fact”); George, 966 F.3d at 462 (explaining that a plaintiff’s burden to show pretext “is not heavy . . . as summary judgment is warranted only if no reasonable juror could conclude that the employer’s offered reason was pretextual”). Kirilenko-Ison points to numerous pieces of evidence that would allow a juror to find that the School Board suspended her in retaliation for her advocacy on behalf of D.M. and C.J. See Chen v. Dow Chem. Co., 580 F.3d 394 , 400 n.4 (6th Cir. 2009) (“At the summary judgment stage, the issue is whether the plaintiff has produced evidence from which a jury could reasonably doubt the employer’s explanation.”). In fact, she alleges that Defendant staff directly threatened her and Plaintiff Bauder-Smith in response to their advocacy. For example, after the second § 504 meeting with C.J.’s parent, Robin Kelly (the principal of the school) allegedly screamed at Plaintiffs and told them to do what the parent wants, despite protests from Kirilenko- Ison that this could jeopardize the child’s health and Plaintiffs’ nursing licenses. Also, according to Bauder-Smith’s email to Ed McKinney, McKinney threatened that Bauder-Smith could lose her job if she continued advocating for C.J., thereby lending credence to Kirilenko-Ison’s allegation that nurses at her school were retaliated against for speaking out. Nye’s resignation letter also raises an inference that Plaintiffs and Nye were threatened by Defendant staff with adverse action as a result of their advocacy. In accordance with these threats, Kirilenko-Ison argues that Superintendent Look “was motivated by his own personal vendetta against Kirilenko- Ison because she dared to question his authority.” (Appellants Br. at 19); see also M.L. v. Williamson Cty. Bd. of Educ., 772 F. App’x 287, 292 (6th Cir. 2019) (“The same evidence can support both a finding of causation for the plaintiff's prima facie case of retaliation and a finding of pretext.”). In addition to the above, Kirilenko-Ison argues that her long work history with the School Board and the fact that she had never had any disciplinary issues with the Board prior to her advocacy for D.M. and C.J. demonstrates that the Board’s explanation for her suspension “was not the actual reason” or was “insufficient to explain the employer’s action.” White v. Baxter No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 20 Healthcare Corp., 533 F.3d 381 , 393 (6th Cir. 2008). She also points to the timing of her suspension as evidence of pretext, arguing that she began the 2016–2017 school year on good terms with the Board, and she was investigated for misconduct and subsequently suspended only after advocating for the rights of disabled students. See, e.g., Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274 , 285 (6th Cir. 2012) (“[S]uspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.” (quoting Bell v. Prefix, Inc., 321 F. App’x. 423, 431 (6th Cir. 2009))). In response, the School Board emphasizes what, in its view, establishes the legitimacy of its suspension. The Board reasserts all of its proffered justifications: the detailed complaint from C.J.’s mother; McKinney’s findings that Kirilenko-Ison’s actions endangered C.J.’s access to a FAPE; and Look’s conclusion that Kirilenko-Ison did not behave professionally when disagreeing with C.J.’s mother. But the School Board’s argument here misses an important point: we are prohibited from weighing this evidence against Plaintiff’s on a motion for summary judgment. Biegas, 573 F.3d at 374 . By simply reasserting the supposed legitimacy of its proffered justification, the School Board does nothing to undermine Kirilenko-Ison’s concrete evidence of retaliatory motive. Certainly, a jury could find that the School Board’s reasons were legitimate and that they were its true reasons for suspending Kirilenko-Ison. But based on Kirilenko-Ison’s evidence discussed above—particularly her allegations of threats and open hostility from the Board with regard to her advocacy on behalf of D.M. and C.J.—a jury could instead “reasonably doubt” the School Board’s explanation for suspending Kirilenko-Ison, and find that it suspended her, at least in part, for her protected advocacy. Chen, 580 F.3d at 400 n.4. Therefore, the School Board is not entitled to judgment as a matter of law. C. Plaintiffs’ Retaliation Claims under the Kentucky Whistleblower Act Plaintiffs next assert retaliation claims under the Kentucky Whistleblower Act, Ky. Rev. Stat. § 61.102, based on their reporting D.M.’s mother to the Cabinet for Families and Children. “[Section] 61.102 prohibits employers from subjecting public employees to reprisal for reporting information relating to the employers [sic] violation of the law, alleged fraud, or abuse, etc.” Petrilli v. Silberman, Nos. 2009-CA-001925-MR, 2009–CA–002050–MR, 2011 WL 846520 , at *10 (Ky. Ct. App. Mar. 11, 2011) (emphasis in original) (quoting Cabinet for Families No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 21 & Children v. Cummings, 163 S.W.3d 425 , 428 (Ky. 2005)). In Petrilli, the Kentucky Court of Appeals interpreted § 61.102 as prohibiting retaliation against an employee for reporting her employer’s violation of law, but not the violations of an outside third party. Id. at *10–11. Relying on Petrilli, the district court correctly granted summary judgment in favor of the School Board on Plaintiffs’ whistleblower claims because Plaintiffs only allege that they reported D.M.’s mother of possible neglect. Critically, they do not allege that they reported any violation of law by the School Board (i.e., their employer) to a state agency. Therefore, their whistleblower claims fail under current Kentucky law. See id. at *11 (“Without a violation of the law, there can be no whistleblower claim.”). D. Kirilenko-Ison’s Failure to Accommodate Claim In the final claim on appeal, Kirilenko-Ison argues that she submitted a reasonable accommodations request to the School Board but it failed to accommodate her disabilities, in violation of the ADA and the KCRA. The ADA prohibits an employer from “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C. § 12112(b)(5)(A). As noted above, we interpret the KCRA in accordance with the ADA. Banks, 610 F. App’x at 531–32; Howard Baer, 127 S.W.3d at 592 . In order to establish a prima facie case for failure to accommodate, a plaintiff must show that (1) she was disabled within the meaning of the ADA, (2) she was otherwise qualified for her position, with or without reasonable accommodation; (3) the defendant knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the defendant failed to provide the necessary accommodation. Brumley v. United Parcel Serv., Inc., 909 F.3d 834 , 839 (6th Cir. 2018). Moreover, “[u]nder the ADA, an employer must engage in an ‘informal, interactive process’ with the employee to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.’” Id. at 840 (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 , 871 (6th Cir. 2007)); see also 29 C.F.R. § 1630.2(o)(3) (describing the interactive process). “Even though the interactive process is not described in the statute’s text, the interactive process is mandatory, and both No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 22 parties have a duty to participate in good faith.” Kleiber, 485 F.3d at 871 . Generally “an employer is not responsible for a breakdown in the interactive process unless the employer actually failed to offer a reasonable accommodation.” Lockard v. Gen. Motors Corp., 52 F. App’x 782, 788 (6th Cir. 2002). Kirilenko-Ison concedes that she did not provide the School Board with any documentation about her disability diagnosis during the interactive process. She also admits that the School Board neither approved nor denied her accommodations request following her meeting with Superintendent Look. Instead, Kirilenko-Ison applied for disability benefits and voluntarily resigned from her position on August 17, 2017. These facts defeat Kirilenko-Ison’s accommodations claim and entitle the School Board to summary judgment. We have consistently held that an employer is “not obligated to provide accommodation until [the] plaintiff had provided a proper diagnosis of [her disability] and requested specific accommodation.” Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432 , 437 (6th Cir. 1998); see also, e.g., Kennedy v. Superior Printing Co., 215 F.3d 650 , 656 (6th Cir. 2000) (“An ‘employer need not take the employee’s word for it that the employee has an illness that may require special accommodation. Instead, the employer has the ability to confirm or disprove the employee’s statement.’” (quoting E.E.O.C. v. Prevo’s Family Mkt., Inc., 135 F.3d 1089 , 1094–95 (6th Cir. 1998))). Further, we have held that when a plaintiff voluntarily withdraws from the interactive process based on a defendant’s request for verification, the plaintiff fails to show that the defendant denied her requests for accommodations. See, e.g., Brumley, 909 F.3d at 840 –41. And although Kirilenko-Ison argues that she did not provide her medical information because the School Board asked her to sign a “blanket release,” (Pl.’s Resp. Def.’s Mot. Summ. J., R. 34, Pg. ID 405; see also Kirilenko-Ison Dep., R. 30-2, Pg. ID 171), the district court correctly held that the School Board “did not require such a broad release of information” based on the plain language of Kirilenko-Ison’s contract. Kirilenko-Ison, 2019 WL 3068448 , at *4. Kirilenko-Ison’s contract provided that she would submit medical forms relating to her accommodations request and ability to perform her job, information to which an employer is entitled during the interactive process. See id. (citing Employment Contract, R. 34-5; Medical Information Request, R. 30-16). No. 19-5767 Kirilenko-Ison, et al. v. Bd. of Ed. Danville Independent Page 23 For these reasons, Kirilenko-Ison has not demonstrated a genuine factual dispute as to the School Board’s failure to participate in the interactive process in good faith. She also has not shown that she was constructively discharged because of the Board’s failure to accommodate her disabilities. Instead, the School Board has proven (by demonstrating the absence of a genuine factual dispute) that Kirilenko-Ison failed to provide verification of her diagnosis and that she voluntarily withdrew from the interactive process and resigned from her position. CONCLUSION For the reasons set forth above, we REVERSE the district court’s grant of summary judgment in favor of the School Board on Plaintiffs’ retaliation claims under the ADA, Section 504, and the KCRA. We AFFIRM the district court’s grant of summary judgment in favor of the School Board on Plaintiffs’ whistleblower claims and Kirilenko-Ison’s claim for failure to accommodate her disabilities. We REMAND the case for further proceedings consistent with this opinion.
4,638,494
2020-12-01 18:01:48.602634+00
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https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0054-60-0
In the United States Court of Federal Claims No. 19-54C (E-Filed: December 1, 2020) ) D.P., et al., ) ) Motion to Dismiss; RCFC 12(b)(6); Plaintiffs, ) Fair Labor Standards Act (FLSA), 29 ) U.S.C. §§ 201-19; Anti-Deficiency Act v. ) (ADA), 31 U.S.C. §§ 1341-42 ; ) Government Employees Fair THE UNITED STATES, ) Treatment Act of 2019 (GEFTA); Pub. ) L. No. 116-1, 133 Stat. 3 (2019). Defendant. ) ) Nicholas M. Wieczorek, Las Vegas, NV, for plaintiff. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19 , by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 4 at 1, 4-5 (amended complaint, hereinafter referred to as the complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief may be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42 , prohibited the government from paying employees. See ECF No. 23. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 4; (2) defendant’s motion to dismiss, ECF No. 23; (3) plaintiffs’ response to defendant’s motion, ECF No. 26; (4) defendant’s reply in support of its motion, ECF No. 34; (5) defendant’s first supplemental brief in support of its motion, ECF No. 36; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 39; (7) defendant’s second supplemental brief in support of its motion, ECF No. 47; (8) plaintiffs’ response to defendant’s second supplemental brief, ECF No. 51; (9) defendant’s third supplemental brief in support of its motion, ECF No. 55; and (10) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 56. The motion is now fully briefed and ripe for ruling. 1 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background Beginning at 12:01 a.m. on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 4 at 1, 3. The named plaintiffs in this case were, at the time of the shutdown, employees of “the Federal Air Marshal Service, which is a component of the Transportation Security Administration, which is a component of the Department of Homeland Security.” 2 Id. at 2 . Plaintiffs further allege that they were “directed to work” during the shutdown without pay, because “they were classified as ‘essential employees’ or ‘excepted employees.’” Id. at 1, 3 . Defendant’s failure to timely pay plaintiffs, they allege, is a violation of the FLSA. See id. at 3 . 1 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure to state a claim upon which relief may be granted.” ECF No. 23 at 6. In one of its supplemental briefs, defendant suggests that a recent decision issued by the Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” ECF No. 55 at 2. In the same brief, defendant acknowledges binding precedent from the United States Court of Appeals for the Federal Circuit to the contrary. See id. (citing Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was made for the first time in defendant’s third supplemental brief, and which defendant acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction to continue exercising its authority in this case, it may file a motion properly raising the issue. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 2 Defendant argues, in a footnote, that claims made by FLSA-exempt employees and employees who have asserted the same claims in another court should be dismissed from this action. See ECF No. 23 at 15 n.4. The court does not evaluate these assertions in this opinion because defendant neither identifies any such plaintiffs in this case, nor sufficiently briefs the issue to the court. 2 Plaintiffs assert that defendant “did not act in good faith and did not have reasonable grounds to violate the FLSA,” and “[a]s a result, [d]efendant willfully violated the FLSA.” Id. at 5 . “Plaintiffs bring this action on behalf of the themselves, all similarly situated Federal Air Marshals, and all other similarly situated Transportation Security Administration employees, and/or other federal employees,” id. at 2 , and seek “all available relief under [the FLSA], including payment of wages lost and an additional amount as liquidated damages,” id. at 5 . II. Legal Standards When considering a motion to dismiss brought under RCFC 12(b)(6), the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373 , 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271 , 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252 , 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). III. Analysis A. Relevant Statutes This case fundamentally concerns the intersection of two statutes, the ADA and the FLSA. The ADA states that “an officer or employee” of the federal government “may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341 (a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342 . In 2019, Congress amended the ADA, adding, in relevant part, the following: [E]ach excepted employee who is required to perform work during a covered lapse in appropriations[3] shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in 3 The statute defines “covered lapse in appropriations” to mean “any lapse in appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341 (c)(1)(A). 3 appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341 (c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of “not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. § 1350 . And federal employees who violate the ADA “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. § 1349 (a). Defendant separately has obligations to its employees pursuant to the FLSA, which governs minimum wage and overtime wage compensation for certain employees. 4 See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 , 707 (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay provisions, the employer is “liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 U.S.C. § 216 (b). The employer may also be liable “in an additional equal amount as liquidated damages,” id., unless “the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. § 260 . B. The Court’s Reasoning in Martin Applies In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees—even excepted employees who were required to work. See ECF No. 23 at 12-14. This mandate, in defendant’s view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues: 4 The FLSA initially applied only to the private sector when enacted in 1938, but was amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). 4 When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] would result in additional compensation as damages to federal employees. Id. at 13 . The court has previously ruled on the intersection of the ADA and the FLSA in the context of a lapse in appropriations. See Martin v. United States, 130 Fed. Cl. 578 (2017). In Martin, plaintiffs were “current or former government employees who allege[d] that they were not timely compensated for work performed during the shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the right to liquidated damages with regard to both the government’s failure to timely pay minimum wages and its failure to pay overtime wages. See id. In its motion for summary judgment, the government argued that “it should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly scheduled pay days during the shutdown] because it was barred from making such payments pursuant to the ADA.” See id. at 582 . The government summarized its argument in Martin as follows: The FLSA and the Anti-Deficiency Act appear to impose two conflicting obligations upon Federal agencies: the FLSA mandates that the agencies “shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206 (a) (emphasis added), which has been interpreted by the courts to include a requirement that the minimum wage be paid on the employees’ next regularly scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 707 n.20 [ 65 S. Ct. 895 , 89 L. Ed. 1296 ] (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund for the expenditure . . . .” 31 U.S.C. § 1341 (A)(1)(A) (emphasis added). Thus, when Federal agencies are faced with a lapse in appropriations and cannot pay excepted employees on their next regularly scheduled payday, the question arises of which statutory mandate controls. Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in original). 5 After reviewing applicable precedent and persuasive authority, the court concluded that “the issue is more complex than simply a choice between whether the FLSA or the ADA controls.” Id. at 583 . In the court’s view: the appropriate way to reconcile the [ADA and the FLSA] is not to cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied. Rather, the court would require that defendant demonstrate a good faith belief, based on reasonable grounds, that its actions were appropriate. As such, the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages. Id. at 584 . The court noted that plaintiffs’ claims survived a motion to dismiss because they had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly scheduled payday.” Id. at 584 . On summary judgment, the court concluded that plaintiffs had proven this claim. See id. The court then concluded that the evidence supported an award of liquidated damages because the government failed to satisfy the court that it acted in good faith and on reasonable grounds when it failed to make the payments required under the FLSA. 5 See id. at 585-86 . Both parties acknowledge that the plaintiffs in Martin were “situated similarly to plaintiffs here.” ECF No. 23 at 14 (defendant’s motion to dismiss); see also ECF No. 26 at 9-13 (plaintiff’s response urging the court to follow its reasoning in the Martin decision). In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they were required to work during the shutdown, or that the plaintiffs were not paid during that time due to the lapse in appropriations. See ECF No. 23. Defendant characterizes the issue now before the court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7 . In arguing its position, defendant reiterates the arguments advanced in Martin, but does not present any meaningful distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States concluded that plaintiffs situated similarly to plaintiffs here could recover 5 In Martin, the defendant also argued that it should avoid liability for liquidated damages with regard to overtime wages due to its inability to calculate the correct amounts due. See Martin v. United States, 130 Fed. Cl. 578 , 586-87 (2017). This argument was based on a bulletin from the Department of Labor, and involves an issue that has not been raised in the present case. The absence of this argument, however, has no bearing on the application of the court’s reasoning in Martin with regard to the structure of the proper analysis in this case. 6 liquidated damages under FLSA,” but states that it “respectfully disagree[s] with that holding.” Id. at 14 . Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here. 6 As it did in Martin, “the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.” 7 Martin, 130 Fed. Cl. at 584. The court will, of course, consider the GEFTA amendment to the ADA as part of its analysis. C. Waiver of Sovereign Immunity Before analyzing the sufficiency of plaintiffs’ allegations, the court must address defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign 6 Defendant also argues that its obligations under the FLSA are limited by the ADA because “a congressional payment instruction to an agency must be read in light of the [ADA].” ECF No. 23 at 16. In support of this argument, defendant cites to Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166 , 1171 (Fed. Cir. 1995). See id. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171 . The United States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was consistent with statutory requirements.” Id. The case did not address FLSA claims, and found that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the analysis in this case. The United States District Court for the District of Columbia’s combined decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its supplemental filings, see ECF No. 47, is likewise unhelpful. Although it involved facts that arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 7 The parties both claim that the Supreme Court of the United States’ decision in Maine Community Health, 140 S. Ct. 1308 , supports their position in this case. See ECF No. 55, ECF No. 56. Maine Community Health does not address the FLSA, and only includes a limited discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the decision does not dictate the outcome here. To the extent that the case informs the present discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that “the [ADA] confirms that Congress can create obligations without contemporaneous funding sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs pursuant to the normal operation of the FLSA even when funding is not available. 7 immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.’” ECF No. 23 at 19 (quoting Lane v. Pena, 518 U.S. 187 , 192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor of the sovereign.’” Id. (quoting Lane, 518 U.S. at 192 ). Defendant concedes that the FLSA includes a waiver of sovereign immunity, but argues that the claims made by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. United States, 112 Fed. Cl. 396 , 399 (2013) (stating that “there is no question that sovereign immunity has been waived under the FLSA”). Defendant argues that the FLSA “does not require that employees be paid on their regularly scheduled pay date or make damages available when compensation is not received on a pay date.” ECF No. 23 at 19. As a result, defendant contends, the scope of the FLSA’s waiver of sovereign immunity does not extend to the category of claims alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ claims in this case. See id. at 20-21 . According to defendant, the GEFTA confirms its long-standing belief that the government’s payment obligations under the FLSA are abrogated by a lack of appropriations: The [GEFTA] provides that “each excepted employee who is required to perform work during a . . . lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. No. 116-1, 133 Stat. 3 . Congress has thus spoken directly to the question of when compensation should be paid. There can be no basis for inferring that compensation made in accordance with that explicit directive subjects the United States to liquidated damages. Id. at 21 . Defendant also asserts, without citation to any authority, as follows: Given that the [ADA] not only prohibits federal agencies from paying excepted employees on their regularly scheduled paydays during a lapse in appropriations, but also specifically addresses when and at what rate wages are to be paid following a lapse in appropriations, the government’s waiver of sovereign immunity under the FLSA must be strictly construed against liability for the delayed (but always forthcoming) payment of wages because of a lapse in appropriations. ECF No. 34 at 12-13. 8 The court disagrees. The claims brought by plaintiffs in this case are straightforward minimum wage and overtime claims under the FLSA. See ECF No. 26 at 5; ECF No. 4 at 4-5. Because the FLSA does not specify when such claims arise, courts have interpreted the statute to include a requirement that employers make appropriate wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . Contrary to defendant’s suggestion, the court is unpersuaded that this judicially-imposed timing requirement transforms ordinary FLSA claims into something analytically distinct, and beyond the scope of the statute’s waiver of sovereign immunity. Accordingly, the court finds that defendant has waived sovereign immunity as to plaintiffs’ claims, as it has with all FLSA claims, and the court will review the sufficiency of plaintiffs’ allegations as it would in any other FLSA case. D. Plaintiffs State a Claim for FLSA Violations As noted above, the FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). And although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . In their complaint, plaintiffs allege that during the lapse in appropriations, they were each “classified as FLSA non-exempt” and “as an [e]xcepted [e]mployee and performed work during the partial government shutdown for which [they were] not compensated on the scheduled paydays.” ECF No. 4 at 2. Plaintiffs allege specific facts demonstrating how the allegations apply to each plaintiff. See id. Defendant does not contest any of these allegations, and in fact, concedes that “plaintiffs [were] employees of agencies affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” ECF No. 23 at 12, 13. Defendant also admits that “[p]laintiffs are federal employees who performed excepted work during the most recent lapse in appropriations.” Id. at 15. In short, defendant does not claim that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully complied with its statutory obligations to plaintiffs.” Id. at 16. The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274 ). 9 E. Liquidated Damages Defendant insists that its failure to pay plaintiffs was a decision made in good faith, in light of the ADA. See ECF No. 34 at 13. It further urges the court to find that its good faith is so clear that the recovery of liquidated damages should be barred at this stage in the litigation. See id. at 13-15. But as the court held in Martin: [I]t would be inappropriate to determine, on motion to dismiss, whether the government had reasonable grounds and good faith. It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at trial. Moreover, even if the court were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled. Martin v. United States, 117 Fed. Cl. 611 , 627 (2014). Accordingly, the court declines to rule at this time on the issue of whether defendant can establish a good faith defense against liability for liquidated damages in this case. IV. Conclusion Accordingly, for the foregoing reasons: (1) Defendant’s motion to dismiss, ECF No. 23, is DENIED; (2) On or before January 29, 2021, defendant is directed to FILE an answer or otherwise respond to plaintiffs’ complaint; and (3) On or before January 29, 2021, the parties are directed to CONFER and FILE a joint status report informing the court of their positions on the consolidation of this case with any other matters before the court. IT IS SO ORDERED. s/Patricia E. Campbell-Smith PATRICIA E. CAMPBELL-SMITH Judge 10
4,638,495
2020-12-01 18:01:49.838305+00
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https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv1108-44-0
CORRECTED In the United States Court of Federal Claims Nos. 20-1108C and 20-1290C (Filed: November 30, 2020) ) THE TOLLIVER GROUP, INC., ) Solicitation cancellation; Small ) Business Act; Rule of Two; set-aside; and ) withdrawal; Federal Supply Schedule PEOPLE, TECHNOLOGY AND ) (FSS); multiple award contract; IDIQ; PROCESSES, LLC, ) RAMCOR; SRA Int’l; Federal ) Acquisition Streamlining Act (FASA); Plaintiffs, ) Administrative Dispute Resolution v. ) Act of 1996 (ADRA); Competition in ) Contracting Act (CICA); GAO protest THE UNITED STATES, ) jurisdiction; Tucker Act jurisdiction; ) FAR Part 8; FAR Part 14; FAR Part 15; Defendant. ) FAR Part 19. ) Jon D. Levin, Maynard, Cooper & Gale, PC, Huntsville, AL, for Plaintiff, The Tolliver Group, Inc. With him on the briefs were W. Brad English, Emily J. Chancey, and Michael W. Rich. Craig A. Holman, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff, People, Technology and Processes, LLC. With him on the briefs was Nathaniel E. Castellano. David R. Pehlke, United States Department of Justice, Civil Division, Washington, DC, for Defendant. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC. OPINION AND ORDER SOLOMSON, Judge. This case presents the question of whether, or under what circumstances, an agency – in this case, the Department of the Army (“Army” or the “agency”) – may cancel a Federal Acquisition Regulation (“FAR”) Part 8 procurement for the express purpose of moving it from a service disabled veteran-owned small businesses (“SDVOSB”) set-aside under a General Service Administration (“GSA”) Federal Supply Schedule (“FSS”) to a multiple award indefinite delivery indefinite quantity 1 (“MAIDIQ”) vehicle, a contract that the Plaintiffs in this case do not hold. Additionally, the Court must address the source, if any, of this Court’s jurisdiction to decide complaints challenging an agency’s cancellation of a FAR Part 8 procurement. Plaintiffs, The Tolliver Group, Inc. (“TTGI” or “Tolliver”), and People, Technology and Processes, LLC (“PTP”), claim that the agency’s decision to cancel two GSA FSS support staffing solicitations fails the Administrative Procedure Act (“APA”) standard of review applicable in actions brought pursuant to 28 U.S.C. § 1491 (b)(1), which requires that an agency action must not be arbitrary, capricious, or otherwise contrary to law. Plaintiffs allege the agency’s cancellation decisions fail the APA standard of review based on the extreme brevity of the analysis underlying the agency’s decision and, in Plaintiffs’ view, the agency’s ipse dixit conclusions. More significantly, Plaintiffs assert that the agency’s decision and supporting rationale – namely, to move the solicitations at issue to a recently awarded MAIDIQ – violates FAR 19.502-2(b), commonly known as the “Rule of Two.” Plaintiffs seek permanent injunctive relief, including an order preventing the Army from cancelling the set-aside solicitations and resoliciting the work under the MAIDIQ until the agency complies with the Rule of Two and other relevant regulations. Defendant, the United States, counters that the agency acted reasonably under the APA review standard, or, in the alternative, because the agency’s power to cancel a FAR Part 8 solicitation is virtually plenary, the decision should be reviewed only for “bad faith,” which, the government claims is unsupported based on the record. The government further contends that Plaintiffs’ Rule of Two claim is foreclosed by the Federal Acquisition Streamlining Act (“FASA”) task order protest bar and, that on the merits, an agency is not required to perform a Rule of Two analysis before soliciting work under an existing MAIDIQ. For the reasons explained below, the Court holds: (1) in the context of the facts of this case, this Court has jurisdiction based upon an “alleged violation of statute or regulation in connection with a procurement or a proposed procurement[,]” 28 U.S.C. § 1491 (b)(1); (2) the FASA task order bar does not pose a jurisdictional hurdle to Plaintiffs’ respective causes of action, including the Rule of Two arguments; and (3) pursuant to the APA review standard, which applies here, the agency’s decision is inadequate, both in terms of the dearth of its analysis and because the agency has not complied with the FAR’s Rule of Two and other provisions of law. Consequently, the Court holds that Plaintiffs are entitled to the equitable relief that they seek. 2 I. Factual and Procedural Background 1 TTGI and PTP are both Florida-based SDVOSBs which provide, among other things, staffing and technical support services. ECF 21 (“TTGI Am. Compl.”) at ¶ 5; People, Technology and Processes, LLC, v. United States, Fed. Cl. No. 20-1290, ECF No. 1 (“PTP Compl.”) at ¶¶ 15–17. The Army maintains the Fires Center of Excellence (“FCoE”), 2 a field artillery school located at Fort Sill, Oklahoma, that “trains soldiers, officers, and marines in tactics, techniques, and procedures for the use of fire support systems in combat.” PTP Compl. at ¶ 16. From 2010 until 2016, the Army had utilized a long-term omnibus multiple award IDIQ (“OMNIBUS MAIDIQ”) contract to procure training and instructor services at Fort Sill. ECF No. 25 (“Administrative Record” or “AR”) at 617–20 (AR 613–16). 3 Following the expiration of those contracts, the Army utilized a series of short-term contracts to procure those services. Id. at 617 (AR 613). This case arises out of the Army’s issuance of two solicitations in early 2020 — the 13F and Joint Fires Observer Course (“JFOC”) Solicitations — for procuring training instructors for fire support specialists at Fort Sill, awarding contracts pursuant to those solicitations, and subsequently cancelling both the contracts and the solicitations, the latter for the purpose of transferring their scopes of work to an existing MAIDIQ. This section summarizes this matter’s factual background and procedural history. A. The 13F And JFOC Solicitations And Award Of The Contracts On April 3, 2020, the Army’s Mission and Installation Contracting Command (“MICC”) 4 at Fort Sill issued Solicitation No. W9124L-20-R-0016 (the “13F Solicitation”) pursuant to the GSA Multiple Award Schedule (“MAS”) 5 as a 100% SDVOSB set-aside using primarily the procedures outlined in FAR 8.4 and incorporating certain FAR Part 15 provisions. ECF No. 25 at 5–7, 346 (AR 1–3, 342). Specifically, the 13F Solicitation sought to procure “20 fully qualified personnel to instruct 13F [Advanced Individual 1 See, infra, Section III.A. 2 See Fort Sill Fire Center of Excellence, Fort Sill Values, https://sill-www.army.mil/index.html (last visited Nov. 11, 2020). 3Throughout this opinion, the dual citations to the Administrative Record account for discrepancy between the page number indicated in the Court’s CM/ECF stamp on the PDF document and the AR page cite. 4The MICC “provides contracting support for Soldiers across Army commands, installation and activities” and is “responsible for contracting goods and services in support of Soldiers as well as readying trained contracting units for the operating force and contingency environment when called upon.” See https://www.army.mil/micc#org-locations (last visited Nov. 15, 2020). 5GSA Schedules are referred to as a Multiple Award Schedules (“MAS”) and Federal Supply Schedules (“FSS”). See https://www.gsa.gov/buying-selling/purchasing-programs/gsa- schedules (last visited Nov. 25, 2020); see also FAR Part 8. 3 Training] courses” regarding “[p]lanning and coordinating fire support for the maneuver commander, locate and engage targets utilizing calls for indirect fire to mortars, field artillery and naval surface fire support assets and battlefield information reporting.” Id. at 40, 44, 83 (AR 36, 40, 79). This solicitation contemplated the award of a contract with a “twelve (12) month base period [of performance] to include a 90 day [sic] phase-in period, followed by one (1), one-year option period.” Id. at 40 (AR 36). On April 6, 2020, the MICC separately issued Solicitation No. W9124L-20-R-0020 (the “JFOC Solicitation”), pursuant to the GSA MAS, also as a 100% SDVOSB set-aside. Id. at 386–88 (AR 382–384). Specifically, the JFOC Solicitation sought to procure “14 qualified personnel” to provide “JFOC instruction to multi-service and coalition students attending Field Artillery Basic Officer Leader Course.” Id. at 428–29 (AR 424– 25). This solicitation contemplated the award of a contract with a “twelve (12) month base period [of performance] to include a 90 day [sic] phase-in period, followed by one (1), one-year option period.” Id. at 428 (AR 424). In sum, both the 13F and JFOC Solicitations contemplated relatively short-term contracts that the agency designated as 100% SDVOSB set-asides. 6 Several eligible small businesses submitted timely proposals under both solicitations, including TTGI and PTP, the latter which was the incumbent provider of these services at Fort Sill. TTGI Am. Compl. at ¶ 14; PTP Compl. at ¶¶ 26, 34. On April 30, 2020, the agency awarded the 13F contract to TTGI. TTGI Am. Compl. at ¶ 16; ECF No. 25 at 244–49 (AR 240–45). On May 18, 2020, the agency awarded the JFOC contract to Navigation Development Group, Inc. (“NDGI”), another SDVOSB. Id. at 565, 576 (AR 561, 572). B. Bid Protests And Corrective Actions 1. PTP’s 13F GAO Protest 7 On July 17, 2020, PTP filed a post-award bid protest with GAO, challenging the 6The Veterans Benefit Act of 2003 (“the Act”), amending the Small Business Act, created the SDVOSB program to facilitate the participation of service-disabled veteran-owned small businesses in federal contracting. Pub. L No. 108-183, 117 Stat. 2651 . The Act contemplates the use of “set asides,” which permits federal agencies to limit certain procurements for exclusive competition among SDVOSBs. See 15 U.S.C. § 657f. This program is implemented via FAR provisions and Small Business Administration (“SBA”) regulations. See FAR 6.206, 19.1401– 19.1408; 13 C.F.R. §§ 125.11 –125.33. 7 On May 8, 2020, PTP filed its first post-award protest before GAO, alleging that the agency did not reasonably evaluate its price proposal and that certain provisions in the 13F Solicitation were ambiguous. See ECF No. 25 at 327, 343 (AR 323, 339). The Army took corrective action on May 21, 2020 and, after re-evaluating the relevant proposals, on July 9, 2020, once again, awarded the task order to TTGI. Id. at 342–57 (AR 338–53). For purposes of the pending motions, however, the particulars of PTP’s first GAO protest is not relevant. 4 agency’s award of the 13F contract to TTGI. ECF No. 25 at 358–81 (AR 354–77). PTP alleged, among other things, that the method the agency employed to evaluate PTP’s professional compensation, in comparison to that of TTGI, was improper and that, in awarding the task order to TTGI, the agency had “departed from the Solicitation's required evaluation process, held PTP and Tolliver to unequal standards, and conducted a[] flawed price realism evaluation.” Id. at 359 (AR 355). On July 29, 2020, Contracting Officer (“CO”) Pauline K. Abraham issued a Notice of Corrective Action. Id. at 382 (AR 378). CO Abraham acknowledged that “[t]he Army believes that taking corrective action would better serve the procurement process” and identified the measures that the agency would take, as follows: a. Cancel the task order award to The Tolliver Group, Inc. b. Re-evaluate the requirement and acquisition strategy to ensure that it accurately reflects the Army’s current need. c. Once the reevaluation is complete, the solicitation will either be cancelled or amended. d. If the solicitation is amended, the Army will evaluate revised proposals, conduct discussions if necessary, and make a new award decision. Id. (emphasis added). While the Notice of Corrective Action did not elaborate on what considerations the agency would weigh as part of its re-evaluation, CO Abraham, in an internal agency memorandum (dated July 29, 2020), further explained that the rationale behind the agency’s “reevaluat[ing] its acquisition strategy” was that “[o]n 21 July 2020, MICC-Fort Eustis awarded the Training Management Support (‘TMS’) Multiple Award Indefinite Delivery Indefinite Quantity contract, which may provide a potentially better procurement vehicle for this requirement than the [current GSA MAS].” Id. at 383 (AR 379) (emphasis added). Following the Army’s July 29, 2020 Notice of Corrective Action, the GAO dismissed PTP’s bid protest “as academic.” Id. at 385 (AR 381). 2. PTP’s JFOC GAO Protest A similar situation unfolded with the JFOC contract. On May 28, 2020, PTP filed a post-award bid protest before the GAO, challenging the agency’s award of the JFOC contract to NDGI. ECF No. 25 at 581 (AR 577). PTP alleged that the agency’s price evaluation did not comply with the solicitation, that the agency had conducted an improper best value decision, and that the agency had evaluated PTP’s past performance in an unreasonable manner. Id. at 582–602 (AR 578–98). 5 On July 29, 2020, CO Lisa Slagle 8 issued a Notice of Corrective Action that was similar to the one CO Abraham had issued in response to PTP’s 13F bid protest. Id. at 612 (AR 608). CO Slagle’s Notice of Corrective Action outlined the same steps that the agency intended to take in response to the JFOC bid protest as the agency did for the 13F bid protest: cancel the contract award, re-evaluate the Army’s needs, and either amend the solicitation or cancel it. Id. CO Slagle also authored an internal agency memorandum (dated July 29, 2020), which similarly explained that the agency’s re- evaluation of its acquisition strategy was based on the availability of the recently awarded TMS MAIDIQ. Id. at 613–14 (AR 609–10). The GAO also dismissed PTP’s bid protest of the JFOC award as “academic.” Id. at 615–16 (AR 611–12). C. The TMS MAIDIQ As noted above, the Army previously had procured training and instructor services using the OMNIBUS MAIDIQ, which expired in 2016, thus necessitating the use of the GSA MAS contracts. ECF No. 25 at 617–20 (AR 613–16). On October 31, 2017, the Army approved the creation of a new contractual vehicle – the TMS MAIDIQ – for the purpose of procuring these services. Id. at 618 (AR 614). While the Army initially intended the TMS MAIDIQ to be a small business set-aside, the Army determined, after conducting market research, that – given the breadth of the MAIDIQ’s anticipated scope of work – none of the small business proposals could meet the requirements; the set- aside plan for the TMS MAIDIQ thus was abandoned in coordination with the SBA. Id. at 618 , 1194–1212 (AR 614, 1190–1208). On September 13, 2018, the Army issued the TMS MAIDIQ Solicitation as a full and open competition. Id. at 618, 1207 (AR 614, 1203). After numerous delays in the evaluation process, the agency, on July 21, 2020, awarded TMS MAIDIQ contracts to five companies, all of which were large businesses. Id.; ECF No. 21 at ¶ 26. Plaintiffs in this case do not hold a TMS MAIDIQ contract. D. The Army’s Cancellation Of The 13F And JFOC Contracts On August 10, 2020, CO Abraham – presumably as part of the agency’s correction action processes – authored an internal agency Memorandum For Record (the “August 10 MFR”), “[t]he purpose” of which was “to capture the background for the recently award Training Management Support (TMS) Multiple Award Indefinite Delivery Indefinite Quantity Contract awarded by MICC-Fort Eustis.” ECF No. 25 at 617 (AR 613); see generally ECF No. 25 at 617–20 (AR 613–16). In her four-page memorandum, CO Abraham detailed the history of the 13F and JFOC Solicitations, as well as the TMS MAIDIQ, and in the last paragraph concluded: Based upon the above information, I believe the Government’s best interests can be met by competing the JFO, 13F and KMS 8Apparently, CO Slagle retired, two days later, on July 31, 2020, and was replaced by another as the cognizant contracting officer for the JFOC procurement. ECF No. 40 at 5. 6 requirements under the MICC-Fort Eustis recently awarded TMS MAIDIQ. Both time and money can be saved by the Government in pursuit of this avenue. Time and money are expended on soliciting and awarding interim short term contract actions to support on-going requirements. Contract periods can be adjusted to support a Base and Four Option periods on most requirements thus saving manpower and costs tied to phase-in and certification of new contractor employees. Longer periods of performance also support the Government’s ability to successfully recruit and retain qualified personnel on existing requirements, thereby ensuring continuity of the training mission. Id. at 620 (AR 616) (emphasis added). Her memorandum also referenced 11 enclosures that further detailed the development and scope of the TMS MAIDIQ, but that did not otherwise address, in any way, the corrective action or any cancellation decisions. Id. at 621–862 (AR 617–858). 9 The August 10 MFR does not itself purport to be a solicitation cancellation decision, nor is it a recommendation to another agency official. E. Procedural History On August 31, 2020, TTGI filed its initial complaint against the United States, in this Court. See ECF No. 1. On September 3, 2020, PTP filed an Unopposed Motion to Intervene, pursuant to Rule 24 of the Rules of the United States Court of Federal Claims (“RCFC”), which the Court granted. Minute Order (Sep. 3, 2020). On September 4, 2020, TTGI filed an amended complaint. TTGI Am. Compl. at 1. 9 Subsequently, on August 21, 2020 – presumably based on her August 10 MFR – CO Abraham authored an additional internal agency memorandum, documenting that “a reevaluation of the acquisition strategy has resulted in the decision to solicit [the 13F Solicitation] requirement under the recently awarded [TMS] Contract awarded by the [MICC] Fort Eustis” as “[t]he requirements addressed by this specific task order were included within the scope of the TMS and support the long term, continuous service need of Fort Sill.” Id. at 1235 (AR 1231). That same day, the Army notified PTP and TTGI that “after thoughtful review, the decision has been made to utilize [the TMS MAIDIQ] contract to support [the 13F Solicitation] requirement.” Id. at 1236–37 (AR 1232–33) (August 21, 2020 letter to PTP); ECF No. 1 Appendix A (August 21, 2020 letter to TTGI). Regarding the JFOC Solicitation, however, the Administrative Record does not appear to contain any materials documenting the agency’s final decision to utilize the TMS MAIDIQ instead of the JFOC Solicitation (i.e., subsequent to the August 10 MFR). The Administrative Record also does not appear to contain any actual cancellation of the 13F or JFOC Solicitations. Nevertheless, the parties do not dispute – and the Court agrees – that, as a practical matter, the agency’s decision to abandon the 13F and JFOC Solicitations constitutes a final agency decision that is ripe for review. 7 In the amended complaint, TTGI maintains that the Army’s decision to cancel the 13F Solicitation was not rationally related to the “alleged procurement defect” which had been raised in PTP’s GAO protest and was instead a “decision solely because [the Agency] likes the New Ft. Sill IDIQ better than the GSA schedule contract it used originally.” TTGI Am. Compl. at ¶¶ 30, 33. Moreover, TTGI contends that by “mov[ing] the unchanged requirements to the New Ft. Sill IDIQ, where only large businesses are eligible for award” the Army violated the “Rule of Two.” Id. at ¶¶ 36–38. Accordingly, TTGI asks that this Court “permanently enjoin the Agency proceeding with its corrective action as implemented.” Id. at 10–11. Although PTP initially entered this case as an intervenor, PTP sought leave to file a separate complaint and requested that its new case be consolidated with TTGI’s case. ECF No. 26. On September 29, 2020, the Court granted PTP’s motion to file its own complaint. ECF No. 28. 10 PTP’s complaint advances similar claims to those of TTGI. Specifically, PTP alleges that the Army’s decision to cancel the 13F and JFOC Solicitations was arbitrary and capricious because “there is no documented cancellation decision for either procurement. And, to the extent there are any record materials that shed light on the Agency’s decision, the record materials do not justify cancellation.” PTP Compl. at ¶¶ 5, 45–48. Further, PTP contends that, by cancelling the 13F and JFOC Solicitations for the purpose of reissuing the requirements using the TMS MAIDIQ, the Army violated the Rule of Two. Id. at ¶¶ 87–90, 104–08. Accordingly, PTP seeks injunctive relief, ordering the Army to refrain from cancelling (or to reinstate) the 13F or JFOC Solicitations and from resoliciting those requirements “absent Agency compliance with the Rule of Two and all other applicable regulations.” Id. at ¶¶ 66, 78, 95, 111 . On September 18, 2020, the government filed the Administrative Record. ECF No. 25. On October 5, 2020, TTGI and PTP filed motions for judgment on the Administrative Record (“MJAR”) and the government filed a cross-motion for judgment on the Administrative Record. ECF No. 29-1 (“PTP MJAR”); ECF No. 30 (“Def. MJAR”); ECF No 31 (“TTGI MJAR”). On October 12, 2020, the parties filed their respective response briefs. ECF No. 32 (“PTP Resp.”); ECF No. 33 (Def. Resp.”); ECF No. 34 (“TTGI Resp.”). On October 16, 2020, the Court held oral argument. ECF No. 35. Following oral argument, the Court ordered the parties to file supplemental briefs addressing a variety of specific issues that had not been covered in the parties’ briefs or at oral argument. ECF No. 39. In particular, the Court ordered supplemental briefing for the parties to address several issues, including the application of 10 U.S.C. § 2305 (b)(2) to the agency’s cancellation decision. ECF No. 39; see 10 U.S.C. § 2305 (b)(2) (“[A] solicitation may be 10The caption in this case has been revised to reflect PTP’s position as a plaintiff only, given the nature of PTP’s claims in its complaint and the arguments in PTP’s motion for judgment on the administration record. 8 rejected if the head of the agency determines that such action is in the public interest.”). On October 28, 2020, the government filed its supplemental brief, ECF No. 40 (“Def. Supp. Br.”), and, on November 2, 2020, both PTP and Tolliver filed their respective supplemental briefs. ECF No. 41 (“PTP Supp. Br.”); ECF No. 42 (“TTGI Supp. Br.”). II. Jurisdiction Both Plaintiffs seek relief pursuant to 28 U.S.C. § 1491 (b)(1). TTGI Am. Compl. at ¶ 2; PTP Compl. at ¶ 18. In that regard, the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996 (“ADRA”), Pub. L. No. 104-320, 110 Stat. 3870 , provides this Court with “jurisdiction to render judgment on an action by an interested party objecting [1] to a solicitation by a Federal agency for bids or proposals for a proposed contract or [2] to a proposed award or [3] the award of a contract or [4] any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491 (b)(1) (emphasis and alterations added). 11 The government concedes that this “Court’s jurisdiction extends to an agency’s decision to cancel a solicitation.” Def. MJAR at 15 (citing Madison Servs., Inc. v. United States, 92 Fed. Cl. 120 , 125–26 (2010), and FFTF Restoration Co., LLC v. United States, 86 11This Court reads the statute as the United States Court of Appeals for the Federal Circuit, our appellate court, interpreted it in Sys. Application & Techs., Inc. v. United States, where the Federal Circuit counted four separate causes of action: “On its face, the statute grants jurisdiction over [1] objections to a solicitation, [2] objections to a proposed award, [3] objections to an award, and [4] objections related to a statutory or regulatory violation so long as these objections are in connection with a procurement or proposed procurement.” 691 F.3d 1374 , 1380–81 (Fed. Cir. 2012); see also Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 173 , 174 (2011) (explaining that “this provision [§ 1491(b)(1)] grants the Court jurisdiction over [objections to] (1) a ‘solicitation,’ (2) a ‘proposed award’ (3) an ‘award’ or (4) ‘any alleged violation of statute or regulation in connection with a procurement or a proposed procurement’”). The government, on occasion, also has counted four separate prongs. FFTF Restoration Co., LLC v. United States, 86 Fed. Cl. 226 , 234 (2009) (“The government further contends that, because 28 U.S.C. § 1491 (b)(1) only allows for objections to (1) ‘a solicitation by a Federal agency for bids or proposals for a proposed contract,’ (2) ‘a proposed award,’ (3) ‘the award of a contract,’ or (4) ‘any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,’ see 28 U.S.C. § 1491 (b)(1) . . . .”). Although some decisions group the statute into just three prongs, Angelica Textile Servs., Inc. v. United States, 95 Fed. Cl. 208 (2010), the critical point, as explained infra, is that the objection “to a solicitation” prong or cause of action is distinct from the others, and the first two or three prongs – again, depending on how they are counted – are themselves distinct from the final prong, permitting an objection to “any alleged violation” of law in connection with a procurement. 95 Fed. Cl. at 212 (“The first two portions of Section 1491(b)(1) address pre-award and post-award bid protests” while “the third portion of the Section concerns protests involving ‘any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.’”). 9 Fed. Cl. 226 , 236–37 (2009)). This Court has a duty, however – as does every Federal court – to assure itself of jurisdiction over any complaint or cause of action. Folden v. United States, 379 F.3d 1344 , 1354 (Fed Cir. 2004) (“Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.”); RCFC 12(h)(3). Thus, although the Court generally agrees with both Plaintiffs and the government with regard to jurisdiction here, we write at greater length to address the unique aspects of a FAR Part 8 procurement, generally, and the facts and circumstances of the procurements at issue here, in particular. A. Source Of Jurisdiction For Challenges To Cancellation Of FAR Part 8 Procurements We begin, as always, with the plain language of the applicable jurisdictional statutory provision, in this case 28 U.S.C. § 1491 (b)(1). A plaintiff’s claim that a government agency improperly has cancelled a solicitation is plainly not a challenge “[1] to a solicitation . . . or [2] to a proposed award or [3] the award of a contract…” (alterations added). For the reasons explained in this subsection, this Court concludes, however, that it possesses jurisdiction to decide Plaintiffs’ claims that the agency improperly decided to cancel the solicitations at issue, pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1); Plaintiffs sufficiently have alleged “[a] violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491 (b)(1). In that regard, “[a] non-frivolous allegation of a statutory or regulatory violation in connection with a procurement or proposed procurement is sufficient to establish jurisdiction.’’ Distributed Sols., Inc. v. United States, 539 F.3d 1340 , 1345 n.1 (Fed. Cir. 2008)). That standard is easily met here. TTGI Am. Compl. at ¶¶ 31–38; PTP Compl. at ¶¶ 64–66, 76–78, 81–95; see also TTGI Supp. Br. at 3; PTP Supp. Br. at 6–7. In particular, Plaintiffs’ respective complaints regarding the agency’s cancellation decisions sufficiently allege a violation of FAR 1.602-2(b) and 10 U.S.C. § 2305 (b)(2). 12 1. FAR 1.602–2(b) The basis for this Court’s jurisdiction to decide a challenge to an agency’s cancellation of a procurement solicitation is not unambiguous; it is certainly not explicit 12This subsection only addresses the Court’s jurisdiction to review the merits of the agency’s solicitation cancellation decisions. The Court separately has jurisdiction – pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1) – to consider Plaintiffs’ independent claims that the government violated FAR 19.502-2 and FAR 19.502-9, provided that the FASA task order protest bar does not apply to such allegations. See, infra, Section II.B. The Court recognizes that the question of whether Plaintiffs may obtain relief for the government’s alleged violation of any of these provisions may be more accurately viewed as merits issues, Perry v. United States, 149 Fed. Cl. 1 , 10-14 (2020), but that distinction is not critical here given the outcome. 10 in the text of 28 U.S.C. § 1491 . While the Federal Circuit has upheld this Court’s jurisdiction to consider challenges to an agency’s allegedly improper cancellation of a solicitation, those decisions involved solicitations issued pursuant to FAR Part 14 or 15, which contain specific provisions governing cancellation. For example, in Croman Corp. v. United States, 724 F.3d 1357 , 1359, 1363 (Fed. Cir. 2013), the Federal Circuit reviewed the reasonableness of the cancellation of a FAR Part 15 (“Contracting By Negotiation”) procurement, where the regulations require that “[t]he source selection authority may [only] reject all proposals received in response to a solicitation, if doing so is in the best interest of the government.” FAR 15.305(b) (emphasis added). More recently, in Veterans Contracting Grp., Inc. v. United States, 920 F.3d 801 , 806 (Fed. Cir. 2019), the Federal Circuit addressed whether an agency acted reasonably in cancelling a FAR Part 14 (“Sealed Bidding”) procurement, where the regulations mandate that after the opening of bids there must be “a compelling reason to reject all bids and cancel the invitation.” FAR 14.404-1(a)(1) (emphasis added); see FAR 14.404-1(c). In such cases, the Federal circuit has invoked the APA standard of review applicable to § 1491(b)(1) claims, explaining that “[u]nder this standard, a procurement decision may be set aside if it lacked a rational basis or if the agency’s decision-making process involved a clear and prejudicial violation of statute, regulation, or procedure.” Croman, 724 F.3d at 1363. In particular, in Croman, the Federal Circuit observed that “[i]n reviewing [an agency’s] exercise of discretion, this court has articulated relevant factors as general guidelines in determining whether [the agency’s] actions were arbitrary, capricious, or an abuse of its discretion.” 724 F.3d at 1365. “‘[R]elevant factors include: subjective bad faith on the part of the officials; the absence of a reasonable basis for the administrative decision; the amount of discretion entrusted to the procurement officials by applicable statutes and regulations; and proven violation of pertinent statutes or regulations.’” Id. (quoting Prineville Sawmill Co., Inc. v. United States, 859 F.2d 905 , 911 (Fed. Cir. 1988) (quoting Keco Indus., Inc. v. United States, 492 F.2d 1200 , 1203–04 (Ct. Cl. 1974))). 13 In neither Croman nor Veterans Contracting, however, did the Federal Circuit identify which prong of § 1491(b)(1) was at issue, but, notably, both Prineville Sawmill 13 There is a difference in the requirements applicable to the cancellation of a sealed bidding procurement as compared to a negotiated procurement. “In contrast to sealed bidding, in a negotiated procurement . . ., [GAO] decisions have found that ‘the contracting officer need only have a reasonable basis for cancellation after receipt of proposals, as opposed to the cogent and compelling reason required for cancellation of a solicitation after sealed bids have been opened [,] ... because in sealed bidding competitive positions are publicly exposed as a result of the public opening of bids, while in negotiated procurements there is no public opening.’” DCMS- ISA, Inc. v. United States, 84 Fed. Cl. 501 , 511 (2008) (quoting Cantu Servs., Inc., B–219998, 89-1 CPD ¶ 306, 1989 WL 240549 , *1 (Mar. 27, 1989) (internal quotations omitted)). 11 and Keco Indus., Inc. involved a prior version of the Tucker Act, pursuant to which this Court’s predecessor had jurisdiction under § 1491(a) to decide whether the government breached an implied contractual duty to fairly consider responsive bids or proposals. Prineville Sawmill, 859 F.2d at 909 (“An invitation for bids issued by the government carries, as a matter of course, an implied contractual obligation to fairly and honestly consider all responsive bids.”); see also Parcel 49C Ltd. P'ship v. United States, 31 F.3d 1147 , 1153 (Fed. Cir. 1994) (holding that plaintiff “showed that GSA had no rational basis for the cancellation” in case brought pursuant to § 1491(a) and the prior version of the Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 133(a), 96 Stat. 25 (emphasis added)). This, of course, tends to demonstrate that our jurisdiction to decide such procurement cancellation cases was imported into § 1491(b), following ADRA. Res. Conservation Grp., LLC v. United States, 597 F.3d 1238 , 1246 (Fed. Cir. 2010) (holding that “[t]he legislative history makes clear that the ADRA was meant to unify bid protest law in one court under one standard” and that “it seems quite unlikely that Congress would intend that statute to deny a pre-existing remedy without providing a remedy under the new statute”). Turning back to 28 U.S.C. § 1491 (b)(1), while the case law makes clear that a plaintiff’s challenge to the rationality of an agency’s cancellation of a solicitation may be brought as an alleged violation of FAR 14.404-1 or FAR 15.305(b) in, respectively, a sealed bid (FAR Part 14) or negotiated procurement (FAR Part 15), the jurisdictional (and merits) questions in this case are complicated by the fact that the cancelled solicitations were issued pursuant to FAR Part 8, under the FSS program, and thus are not subject to either FAR Part 14 or FAR Part 15 cancellation provisions. See 28 U.S.C. § 1491 (b)(1) (covering an “alleged violation of statute or regulation in connection with a procurement or a proposed procurement”). In other words – given the absence of any analogous FAR Part 8 provision governing an agency’s solicitation cancellation – does our Court possess jurisdiction to decide a challenge to an agency’s cancellation of a solicitation issued under FAR Part 8? Judge Wolski decided that precise question in MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503 (2011). In that case, Judge Wolski held that “the protest of a cancellation of a solicitation is not an ‘objecti[on] to a solicitation ... for bids or proposals for a proposed contract or to a proposed award or the award of a contract.’” 102 Fed. Cl. at 523 (quoting 28 U.S.C. § 1491 (b)(1)). Therefore, the statutory “phrase ‘or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,’ . . . must be the vehicle by which the remainder of our pre- existing jurisdiction over procurement protests was preserved.” 102 Fed. Cl. at 523. This Court concurs with MORI that the fourth-prong of 28 U.S.C. § 1491 (b)(1) – covering an alleged violation of law in connection with a procurement or a proposed 12 procurement – provides the necessary ballast for solicitation cancellation cases, 14 but, as Judge Wolski correctly observed, and as noted above, FAR 15.305(b) “does not apply to FSS procurements such as the . . . procurement cancelled” in the instant case. Id. (citing FAR 8.404(a) and rejecting various “provisions plaintiff cites from the FSS subpart of the FAR” as a basis for such jurisdiction). In the absence of a specific cancellation provision, “[the Court] should look for a regulation codifying the duty to fairly consider bids, as the repository of the remainder of our bid protest jurisdiction.” 102 Fed. Cl. at 523 (explaining that pre-ADRA, “our court’s jurisdiction over challenges to solicitation cancellations was not based on the violation of a regulation specifically addressing cancellation, but rather on the implied contract to fairly and honestly consider bids”). In that regard, MORI “holds that that the FAR section 1.602–2(b) requirement that contracting officers shall ‘[e]nsure that contractors receive impartial, fair and equitable treatment’ is, among other things, the codification of the government’s duty, previously implicit, to fairly and honestly consider bids.” 102 Fed. Cl. at 523–24 (concluding that “numerous opinions of our court have treated FAR section 1.602–2(b) as a binding requirement the violation of which may be reviewed in a bid protest”). In other words, just as this Court, pre-ADRA, would have been able to hear a challenge to the cancellation of a solicitation under the FSS program pursuant to 28 U.S.C. § 1491 (a), we may continue to do so under the fourth prong of § 1491(b) as an alleged violation of FAR 1.602-2(b). Despite the government’s initial concession in its motion for judgment on the Administrative Record, acknowledging our jurisdiction to review the solicitation cancellation decisions at issue, see Def. MJAR at 15, 15 the government later “disagree[d] 14See also Def. Supp. Br. at 6 (“An action challenging a cancelation decision does not challenge a solicitation for bids or proposals or a proposed award.”). This appears to be the government’s consistent position, and the Court concurs that the government is correct. See MCI Diagnostic Ctr., LLC v. United States, 147 Fed. Cl. 246 , 270 (2020) (noting the government’s argument that plaintiff “challenges only the VA’s decision to cancel the solicitation ... and the protest of a cancellation is not an ‘objecti[on] to a solicitation ... for bids or proposals for a proposed contract or to a proposed award or the award of a contract’”). 15 The government in its MJAR relied upon Madison Servs., Inc., 92 Fed. Cl. at 125–26, and FFTF Restoration Co., 86 Fed. Cl. at 236–37, in conceding that the Court of Federal Claims possesses jurisdiction to review an agency’s decision to cancel a solicitation. Def. MJAR at 15. In FFTF Restoration, Judge Firestone – in addition to relying upon FAR 15.305(b) – “reject[ed] the government’s attempt to carve out challenges to negotiated procurement cancellations from this court’s bid protest jurisdiction” because “ 28 U.S.C. § 1491 (b)(1) authorizes this court to review cancellations of negotiated procurements to ensure compliance with the requirements of ‘integrity, fairness, and openness’ in FAR 1.102(b)(3) and the requirement that ‘[a]ll contractors and prospective contractors shall be treated fairly and impartially’ in FAR 1.102–2(c)(3).” FFTF Restoration, 86 Fed. Cl. at 237 & n.15. In Madison Servs., this Court held that “the decision to 13 with the conclusion in MORI that FAR 1.602-2(b) confers jurisdiction upon this Court over any general allegation of an arbitrary decision to cancel a solicitation that is not instead based on a specific violation of statute or regulation.” Def. Supp. Br. at 6. According to the government in its supplemental brief, “a contracting officer cannot violate FAR 1.602-2(b) by taking an action that a plaintiff deems ‘unfair,’ unless the contracting officer violated another, specific substantive provision of the FAR.” Id. at 7. The government’s contentions must be rejected for several reasons. First, a recent Federal Circuit decision all but precludes the government’s position. Office Design Grp. v. United States, 951 F.3d 1366 , 1372 (Fed. Cir. 2020) (“The [FAR] requires an agency to treat offerors fairly and impartially. [FAR] 1.602–2(b) . . . . This obligation necessarily encompasses an agency’s obligation to fairly and impartially evaluate all proposals.”). 16 Second, apart from the Federal Circuit’s decision in Office Design Grp., the great weight of authority supports Plaintiffs’ position that FAR 1.602-2(b) is indeed “substantive” and supports a claim under the fourth prong of 28 U.S.C. § 1491 (b)(1). MORI, 102 Fed. Cl. at 524 (cataloging decisions that “reinforce[] the Court’s conclusion that FAR section 1.602–2(b) is the place where the formerly implied contract now expressly resides” and holding “that this provision is violated by government actions which would have breached the implied duty to fairly and honestly consider bids, and thus such actions—including arbitrary cancellations of solicitations—would be the ‘violation of ... regulation in connection with a procurement’”); R. Nash, FAIR TREATMENT OF CONTRACTORS: Do FAR Provisions Confer Rights?, 27 NO. 7 Nash & Cibinic Rep. ¶ 35 (noting that “[t]here are numerous Court of Federal Claims decisions relying on FAR 1.602-2(b) to find a substantive right of a contractor” and commenting that “it is good to see the Court of Federal Claims finding that the FAR confers a right of contractors to fair treatment”). 17 cancel a negotiated procurement remains subject to the court’s review, pursuant to 28 U.S.C. § 1491 (b) and the APA standard.” 92 Fed. Cl. at 125; see Def. Tech., Inc. v. United States, 99 Fed. Cl. 103 , 114–15 (2011) (surveying the prior case law, and “conclud[ing] that Judge Firestone’s decision in FFTF Restoration is on point and should be followed by this Court.”). 16 See also Krygoski Const. Co. v. United States, 94 F.3d 1537 , 1542–43 (Fed. Cir. 1996) (“CICA mandates impartial, fair, and equitable treatment for each contractor. This competitive fairness requirement, with its bid protest remedies, restrains a contracting officer’s contract administration. If, for instance, a contracting officer discovers that the bid specifications inadequately describe the contract work, regulations promulgated under CICA may compel a new bid.” (emphasis added) (citing 10 U.S.C. §§ 2304 and 2305 (1994), and FAR 1.602–2)). 17See also, e.g., MCI Diagnostic Ctr., 147 Fed. Cl. at 272 (“It is, therefore, consistent with Resource Conservation Group to hold that this court continues to have jurisdiction over alleged arbitrary cancellations of procurement solicitations. Moreover, given this court's pre-ADRA jurisdiction to address procurement cancellation issues, it follows that whether or not protestor alleges the 14 2. 10 U.S.C. § 2305 (b)(2) Even if FAR 1.602–2(b) were construed not to provide a basis for this Court’s review of a challenge to a solicitation cancellation in a FAR Part 8, FSS procurement, the Court holds that, in this case, 10 U.S.C. § 2305 (b)(2) does provide such a predicate for this Court’s jurisdiction, again pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1). In that regard, and as noted above, the Court ordered the parties to submit supplemental briefs addressing 10 U.S.C. § 2305 (b)(2), which provides that “[a]ll sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest” (emphasis added). Given that FAR 15.305(b) may serve as a jurisdictional predicate where applicable, the Court has no trouble concluding that almost identical language in 10 U.S.C. § 2305 (b)(2) similarly provides jurisdiction here. Although FAR Part 15 provisions do not apply wholesale to the procurements at issue, the referenced Title 10 statutory provision does apply by its terms. The Court further notes that the statutory provision contains a heightened procedural requirement of a determination by the “head of the agency” and a heighted substantive requirement that a cancellation be “in the public interest” and not merely “in the best interest of the government” as in FAR 15.305(b). See 10 U.S.C. § 2305 (b)(2). The government contends that 10 U.S.C. § 2305 (b)(2) is inapplicable to the cancelled solicitations because the agency did not seek “competitive proposals.” Def. Supp. Br. at 1–2. According to the government, the FAR distinguishes between violation of a specific statute or regulation, this court continues to be able to address cancellation issues.”); B & B Med. Servs., Inc. v. United States, 114 Fed. Cl. 658 , 660 (2014) (“Given our long history of entertaining such [arbitrary procurement cancellation] protests, the Court does not find subject-matter jurisdiction to be absent merely because the particular regulation that is violated by arbitrary cancellation is absent from the complaint.”); Sigmatech, Inc. v. United States, 141 Fed. Cl. 284 , 313 (2018) (“The [FAR] requires that contracting officers ‘[e]nsure that contractors receive impartial, fair, and equitable treatment.’” (quoting FAR 1.602-2(b))); Centerra Grp., LLC v. United States, 138 Fed. Cl. 407 , 413 (2018) (holding that “[f]airness in government procurements is enshrined in a number of FAR provisions[,]” including FAR 1.602–2(b)); BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502 , 512 (2013) (“Contracting officers are required to ‘ensure that contractors receive impartial, fair, and equitable treatment.’” (quoting FAR 1.602–2(b))); Serco Inc. v. United States, 81 Fed. Cl. 463 , 482 (2008) (noting “agency’s fundamental duty to ‘[e]nsure that contractors receive impartial, fair and equitable treatment’” (quoting FAR 1.602–2))); Precision Images, LLC v. United States, 79 Fed. Cl. 598 , 619 (2007) (“The [FAR] impose[s] upon the Air Force the affirmative duty to ‘[e]nsure that contractors receive impartial, fair, and equitable treatment’ during the procurement process.” (citing FAR 1.602–2(b)) (emphasis added)), aff’d, 283 F. App’x 813 (Fed. Cir. 2008); Jacobs Tech. Inc. v. United States, 131 Fed. Cl. 430 , 445 (2017) (holding that plaintiff “sufficiently alleged that the Army violated applicable regulations in connection with the . . . procurement” (citing FAR 1.602–2(b))). 15 procurements seeking “competitive proposals” and those involving “competitive procedures”: FAR 6.102(d)(3) provides that the “[u]se of multiple award schedules issued under the procedures established by the Administrator of General Services consistent with the requirement of 41 U.S.C.152(3)(A) for the multiple award schedule program of the General Services Administration is a competitive procedure” (emphasis added). FAR 6.102(b) explicitly defines “competitive proposal” as “other” than a subsection (d) “competitive procedure[.]” Def. Supp. Br. at 2. The Court rejects the government’s argument for two reasons: (1) the hypothesized dichotomy between a procurement requesting “competitive proposals” and a procurement involving “competitive procedures” is false – there is no inherent contradiction or distinction; and (2) the cancelled solicitations at issue here in fact sought competitive proposals. This is evident from statutory language, as well as the mechanics of a typical FAR Part 8 procurement, the latter which the agency did not follow in this case. First, Title 10 of the U.S. Code consistently uses the term “competitive proposals” not in contrast with “competitive procedures” but rather only in contrast with sealed bids. For example, 10 U.S.C. § 2302 (3)(D) incorporates the definition of the term “full and open competition” found “in chapter 1 of title 41.” The latter statutory section, in turn, defines “full and open competition” to “mean[] that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement.” 41 U.S.C. § 107 (emphasis added). Similarly, 10 U.S.C. § 2304 (a)(2)(B) provides that “the head of an agency . . . shall request competitive proposals if sealed bids are not appropriate . . . .” Cf. 41 U.S.C. § 3701 (a) (“An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation.” (emphasis added)). The solicitations at issue were not invitations for sealed bids. Second, although the government relies on FAR 6.102, as explained above, to argue that “competitive proposals” are synonymous with FAR Part 15 procurements, that thread quickly unravels as the Court follows it through. For example, FAR 6.401 indicates that “[s]ealed bidding and competitive proposals, as described in parts 14 and 15, are both acceptable procedures for use under subpart[] 6.1,” which, of course, includes FAR 6.102. Furthermore, FAR 6.401(b) covers “competitive proposals” and references FAR Part 15 “for procedures”; but, FAR 15.000 itself – similar to the statutory provisions discussed above – distinguishes only between negotiated procurements and sealed bidding. See FAR 15.000 (noting that “[t]his part prescribes policies and procedures governing competitive and noncompetitive negotiated acquisitions” and providing that “[a] contract awarded using other than sealed bidding procedures is a 16 negotiated contract”). The cancelled solicitations in this case contemplated negotiated procurements and did not follow “sealed bidding procedures.” Id. Accordingly, while the Court agrees with the government that the cancelled solicitations at issue were not subject to FAR Part 15 per se, Def. Supp. Br. at 3–5, the Court agrees with the PTP that the solicitations nevertheless constituted “negotiated procurements” that solicited “competitive proposals” pursuant to a Request for Proposals (“RFP”). See PTP Supp. Br. at 8–9 (“Although the Agency may have had the authority to structure the Solicitations as RFQs seeking only responsive quotes, the Agency here issued unmistakable RFPs, seeking competitive proposals that the Agency could evaluate and accept.” (emphasis in original)). The Administrative Record thoroughly supports PTP’s position in that regard. For example, the July 10, 2020 Task Order Decision Document (“TODD”) for the 13F procurement, signed by the Contracting Officer, see ECF No. 25 at 346–55 (AR 342–51), admits that the “solicitation was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive action using order procedure under [FAR] 8.405-2 in conjunction with FAR Part 15-Contract by Negotiation and FAR Part 12-Acquisition of Commercial Items.” Id. at 346 (AR 342) (emphasis added). Moreover, the Administrative Record confirms that the agency engaged in negotiations insofar as “[p]roposal revisions were allowed and offerors could submit a final offer based on changes provided on solicitation amendments.” Id. at 348 (AR 344) (also citing FAR 15.404-1 regarding price analysis); see also AR 350 (citing FAR 15.403 regarding “adequate price competition”). Similarly, the JFOC Past Performance Questionnaire explicitly informed prospective references that the agency’s planned “schedule will allow sufficient time to analyze the data prior to the start of negotiations.” Id. at 499 (AR 495) (emphasis added). The JFOC TODD indicated that the FAR Part 8 RFP “was placed against the GSA MAS . . . as a 100% [SDVOSB] set-aside competitive action using FAR Part 15-Contract by Negotiation and FAR Part 12-Acquisition of Commercial Items.” Id. at 565 (AR 561) (emphasis added). As part of the JFOC procurement, the agency conducted discussions and permitted final proposal revisions. AR 563 (indicating that “[t]wo of the four offerors made changes and submitted Final Offers”). As this Court has noted, “the acid test for deciding whether an agency has engaged in discussions is whether the agency has provided an opportunity for proposals to be revised or modified.” Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16 , 44 (2010) (quoting Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215 , 230 (2008)). A solicitation that contemplates the submission of proposals and the possibility of discussions is a negotiated procurement. The government itself further admits that the procurements at issue in this case are “negotiated procurement[s].” Def. MJAR at 15 (acknowledging that “[i]n the context of a negotiated procurement like this one,” the contracting officer’s cancellation decision is subject to the APA review standard in § 1491(b)(4) (emphasis added)); id. at 16 (addressing the “Court’s review of a cancellation decision in the course of a 17 negotiated procurement” and arguing that “[b]ecause the contracting officer has the discretion to cancel a negotiated procurement,” a plaintiff must show the decision “had no rational basis”). As demonstrated above, a negotiated procurement involves competitive proposals. See PHT Supply Corp. v. United States, 71 Fed. Cl. 1 , 12 (2006) (“This federal statute provides that, in negotiated procurements, agencies ‘shall evaluate ... competitive proposals and make an award based solely on the factors specified in the solicitation.’” (quoting 10 U.S.C. § 2305 (b)(1))). The government’s attempt to distinguish the solicitations at issue from a procurement seeking competitive proposals is particularly unavailing where, as here, the government did not follow normal FAR Part 8 procedures. In that regard, the government is correct that, typically, there is a distinction between procurements conducted pursuant to FAR Parts 14 and 15, on the one hand, and FAR Part 8 procurements, on the other: the former solicit bids or proposals from bidders or offerors, respectively, while the latter solicits quotations. FAR 2.101 delineates the difference: Offer means a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract. Responses to invitations for bids (sealed bidding) are offers called “bids” or “sealed bids”; responses to requests for proposals (negotiation) are offers called “proposals”; however, responses to requests for quotations (simplified acquisition) are “quotations”, not offers. FAR 2.101 (emphasis added). 18 The GAO also helpfully has explained that a request for quotation (“RFQ”) is nothing more than a request for information: The submission of a bid or proposal constitutes, by its very nature, an offer by a contractor that, if accepted, creates a binding legal obligation on both parties. Because of the binding nature of bids and offers, they are held open for acceptance within a specified or reasonable period of time . . . . 18Cf. FAR 13.004(a) (“A quotation is not an offer and, consequently, cannot be accepted by the Government to form a binding contract. Therefore, issuance by the Government of an order in response to a supplier's quotation does not establish a contract. The order is an offer by the Government to the supplier to buy certain supplies or services upon specified terms and conditions. A contract is established when the supplier accepts the offer.”). 18 A quotation, on the other hand, is not a submission for acceptance by the government to form a binding contract; rather, vendor quotations are purely informational. In the RFQ context, it is the government that makes the offer, albeit generally based on the information provided by the vendor in its quotation, and no binding agreement is created until the vendor accepts the offer. FAR § 13.004(a). A vendor submitting a price quotation therefore could, the next moment, reject an offer from the government at its quoted price. Because vendors in the RFQ context hold the power of acceptance and their submissions are purely informational, there is nothing for vendors to hold open. Sea Box, Inc., B-405711, 2012 CPD ¶ 116, 2012 WL 924951 , *2–*3 (Mar. 19, 2012) (internal citations omitted) (emphasis added). 19 In this case, in contrast, the agency did not merely solicit quotes resulting in a purchase order to the putative awardees. Rather, the agency solicited competitive proposals pursuant to RFPs, contemplated negotiations, and awarded contracts based upon those proposals. 20 ECF No. 25 at 5 (AR 1) (13F Solicitation); id. at 386 (AR 382) (JFOC Solicitation); id. at 244-45 (AR 240-41) (F13 TODD consistently using the term “proposals”); id at 565-66 (AR 561-62) (JFOC TODD consistently using the term “proposals”). Because the solicitations at issue here were RFPs seeking competitive proposals as part of a negotiated procurement – and were neither Invitations for Bids (“IFBs”) nor Requests for Quotations (“RFQs”), see PTP Supp. Br. at 8 – the Court concludes that the agency had to comply with 10 U.S.C. § 2305 (b)(2). The FAR’s definition of “solicitation” 19“Though GAO opinions are not binding on this court, . . . this court may draw on GAO’s opinions for its application of this expertise.” Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320 , 1331 n.1 (Fed. Cir. 2011) (citing Honeywell, Inc. v. United States, 870 F.2d 644 , 648 (Fed. Cir. 1989)); see Tech. Innovation All. LLC v. United States, 149 Fed. Cl. 105 , 140 n.6 (2020) (“GAO decisions are not binding on the Court but may be treated as persuasive authority in light of GAO’s expertise in the bid protest arena.”). 20The GSA itself warns against using an RFP for FSS purchases, but that is exactly what the agency did here. https://interact.gsa.gov/wiki/its-rfq-quote-rather-rfp-offer-when-talking- about-orders-against-schedules-far-84 (“It is inappropriate and contrary to FAR SubPart 8.4 to call a Schedule order request for quotation an ‘RFP.’ The FAR never recognizes ‘RFP’ as a suitable substitute for a Schedule order’s ‘RFQ.’ As the FAR (as well as the Government Contracts Reference Book and other sources) point out, ‘RFP’ and ‘RFQ’ are not interchangeable. They differ in when offer and acceptance occurs. When talking about Schedule orders, only ‘RFQ’ is recognized by the FAR.”) (last visited Nov. 25, 2020). 19 proves the point: “Solicitation means any request to submit offers or quotations to the Government. Solicitations under sealed bid procedures are called ‘invitations for bids.’ Solicitations under negotiated procedures are called ‘requests for proposals.’” FAR 2.101 (emphasis added). Accordingly, in this case, the cancelled solicitations were not IFBs or RFQs, but rather were RFPs – that is, “requests for proposals” as part of negotiated procurements conducted under FAR Part 8. Id. That is all that is necessary for 10 U.S.C. § 2305 (b)(2) to apply, and the government cannot now, for the purposes of litigation, recharacterize the procurements as typical FSS purchases seeking only quotations. Aiken v. United States, 4 Cl. Ct. 685 , 694 (1984) (“party characterizations or mere contract formalisms cannot alter the substance of a transaction”); Burstein v. United States, 622 F.2d 529 , 537 (Ct. Cl. 1980) (“[W]e must look to the substance of the transaction; the true nature of the arrangement cannot be altered by mere contractual formalisms.”); see IBM U.S. Fed., A Div. of IBM Corporation, B-409806, 2014 CPD ¶ 241, 2014 WL 4160022 , *6 (Aug. 15, 2014) (“Where, as here, an agency . . . uses an approach more akin to a competition in a negotiated procurement than to a simple FSS buy, GAO will review the record to ensure that the procurement was conducted on a fair and reasonable basis and consistent with standards generally applicable to negotiated procurements.”); Omniplex World Servs. Corp., B-291105, 2002 CPD ¶ 199, 2002 WL 31538212 , *3 (Nov. 6, 2002) (“[W]hile the provisions of FAR Part 15, which govern contracting by negotiation, do not directly apply, . . . we analyze [the protestor’s] contentions by the standards applied to negotiated procurements.”); Allied Tech. Grp., Inc., B-402135, 2010 CPD ¶ 152, 2010 WL 2726056 , *4 n.8 (Jan. 21, 2010) (“The procurement here was conducted under the FSS provisions of FAR subpart 8.4, and thus the negotiated procurement provisions of FAR part 15 do not directly apply. However, our Office has held that where agencies use the negotiated procurement techniques of FAR part 15 in FSS buys, such as discussions, we will review the agency's actions under the standards applicable to negotiated procurements.”). 21 * * * * Plaintiffs also allege violations of FAR 19.502-2 and FAR 19.502-9, TTGI Am. Compl. at ¶¶ 36–38; PTP Compl. at ¶¶ 87–90, 104–08, independently vesting this Court 21The Court acknowledges that the GAO’s decision in The MIL Corp., B-297508, 2006 CPD ¶ 34, 2006 WL 305965 (Jan. 26, 2006), may be read to have reached a contrary conclusion, in part in reliance upon this Court’s decision in Systems Plus, Inc. v. United States, 68 Fed. Cl. 206 , 209–210 (2005). Both cases are distinguishable, however, because while they involved FSS procurements having elements of negotiated procedures, they involved RFQs and not RFPs. The MIL Corp., B- 297508 at *5 (“Here, the procurement was not conducted pursuant to the negotiated procedures of FAR Part 15, nor did it involve the issuance of a request for proposals. Rather, the procurement here was conducted under the FSS program, pursuant to the procedures set forth in FAR Subpart 8.4 and using a request for quotations.” (emphasis added)); Sys. Plus, Inc., 68 Fed. Cl. at 20 with jurisdiction to consider those claims pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1). Finally, even if Plaintiffs were unable to rely on any particular statute or regulation to challenge the cancellation of the solicitations at issue pursuant to 28 U.S.C. § 1491 (b)(1), the Court still would have jurisdiction under 28 U.S.C. § 1491 (a), although the available relief would include only proposal costs, and not injunctive relief. See Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 6 , 41–42 (2013) (“[E]quitable relief is . . . unavailable in implied contract bid protests pursued under section 1491(a).”). B. The FASA Task Order Protest Bar The FASA task order protest bar provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order . . . .” 41 U.S.C. § 4106 (f)(1) (emphasis added). The government does not contend that the FASA task order protest bar precludes this Court’s jurisdiction over Plaintiffs’ claim generally challenging the propriety of the agency’s solicitation cancellation decisions (i.e., even though the agency intends to utilize a task order vehicle for the replacement procurement). The government argues, however, that this Court is precluded from deciding Plaintiffs’ claims to the extent that they depend upon this Court’s ruling on the application of the Rule of Two. Def. MJAR at 30–33. Relying on Federal Circuit precedent in SRA Int’l, Inc. v. United States, 766 F.3d 1409 (Fed. Cir. 2014), where that court held that “nothing in FASA’s language automatically exempts actions that are temporally disconnected from the issuance of a task order,” id. at 1413 , the government asserts that SRA “affirms the broad reach of FASA and establishes that a protest of the failure to conduct a rule of two analysis prior to issuing a task order [under an IDIQ] is not a colorable basis to avoid the statutory 206 (noting that the procurement at issue was an RFQ). Moreover, the GAO in The MIL Corp. explicitly agreed with our determination here that “the use of negotiated procedures in accordance with [FAR] Part 15 and as evidenced by the issuance of a request for proposals, constitutes a procurement conducted on the basis of competitive proposals.” The MIL Corp., B-297508 at *5 (emphasis added) (citing cases in which the GAO equated “a negotiated procurement with a procurement conducted on the basis of competitive proposals”); see also Comfort Inn South, B- 270819, 96-1 CPD ¶ 225, 1996 WL 251441 , *2 (equating the term “competitive proposals” in 10 U.S.C. § 2304 (a)(2)(B) with “negotiated procedures”). On another note, the Court finds it very hard to believe that the government would argue that Plaintiffs’ proposals are subject to public disclosure. See 41 U.S.C. § 4702 (“Prohibition on release of contractor proposals”) (providing that “[a] proposal in the possession or control of an executive agency may not be made available to any person under [the Freedom of Information Act,] section 552 of title 5” where “proposal” is defined as “including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal” (emphasis added)); see also 10 U.S.C. § 2305 (g) (same). 21 [task order protest] bar.” Def. Mot. at 30–31. 22 Furthermore, the government notes that the Federal Circuit in RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286 , 1289 (Fed. Cir. 1999), has interpreted broadly the phrase “in connection with” in the Tucker Act, 28 U.S.C. § 1491 (b)(1). 23 Def. Resp. at 8–9. Accordingly, the question that the government fairly raises is whether Plaintiffs’ claims that the Army failed to perform the Rule of Two analysis (before deciding to move the 13F and JFOC scopes of work to the TMS MAIDIQ) constitute a “protest” that is “in connection with the issuance or 22 Candidly, the Court notes that the government’s position is far more persuasive than the Court at oral arguments gave the government credit for and, thus, the Court addresses the relevant issues at greater length. 23The filing of a protest with the General Accounting Office (“GAO”) may trigger an automatic stay of a procurement under the provisions of the Competition in Contracting Act (“CICA”), 31 U.S.C. §§ 3551 –56, prohibiting an agency from awarding a new contract pending a decision on the protest. See 31 U.S.C. § 3553 (c)(1). CICA, however, also allows an agency to override the automatic stay if it issues a written finding that “urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting” for the bid protest decision. 31 U.S.C. § 3553 (c)(2); see RAMCOR, 185 F.3d at 1287 . In RAMCOR, the Federal Circuit addressed the question of “whether an objection to a [31 U.S.C.] § 3553(c)(2) override can serve as a jurisdictional basis under § 1491(b)(1).” Id. at 1289. The Federal Circuit thus had “to determine whether § 3553(c)(2) is a statute ‘in connection with a procurement,’ as required by § 1491(b)(1).” Id. While the Court of Federal Claims had held that a plaintiff protestor “could only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the underlying contract award” – and that this Court accordingly lacked jurisdiction to decide an override challenge – the Federal Circuit reversed. Id. The Federal Circuit explained its reasoning as follows: The language of § 1491(b) . . . does not require an objection to the actual contract procurement, but only to the “violation of a statute or regulation in connection with a procurement or a proposed procurement.” The operative phrase “in connection with” is very sweeping in scope. As long as a statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction. Section 3553(c)(2) fits comfortably in that broad category. After all, [the agency’s] § 3553(c)(2) override allowed it to procure immediately [the awardee’s] services. Moreover, under that procurement, [the contact awardee] could have immediately commenced work. Where an agency’s actions under a statute so clearly affect the award and performance of a contract, this court has little difficulty concluding that that statute has a “connection with a procurement.” Id. (emphasis added). 22 proposed issuance of a task or delivery order.” Def. MJAR at 30 (discussing 41 U.S.C. § 4106 (f)(1)). 24 According to the government, “[t]here simply is no way to view the protests of the TMS MAIDIQ as anything other than the protest of a proposed task order.” Id. at 32–33 (emphasis added). This Court disagrees that Plaintiffs are protesting either the TMS MAIDIQ itself or even the “proposed issuance” of a task order. The Court further disagrees with the government that the FASA protest bar is at all applicable here. The Court must first appropriately frame Plaintiffs’ Rule of Two arguments. All of the parties (and the Court) appear to agree that the Army’s decision to cancel the solicitations at issue depends upon the availability of the TMS MAIDIQ as a viable alternative under which the procurements may be conducted. In other words, there is no question about the agency’s continuing need for the precise services sought pursuant to the 13F and JFOC Solicitations. Accordingly, there are several possible ways to view Plaintiffs’ Rule of Two arguments. One possible way is that the agency’s cancellation decisions are irrational to the extent the agency has not performed a Rule of Two analysis in order to know whether the TMS MAIDIQ is, in fact, a viable alternative. Another possible way to view Plaintiffs’ claims is that because the agency has selected the TMS MAIDIQ vehicle as part of a revised acquisition strategy, that selection itself violated the Rule of Two, irrespective of the rationale offered in the agency’s August 10 MFR. 25 The first view ties the Rule of Two issue to the propriety or legality of the agency’s cancellation decisions, while the latter view constitutes a challenge to the legality of an independent agency action. Viewed either way, Plaintiffs’ actions before this Court do not constitute a “protest . . . in connection with the issuance or proposed 24 In terms of the FASA task order protest bar, the government relies exclusively upon the provision in Title 41, notwithstanding the government’s contention in its supplemental brief that “Section 3701(b) of Title 41 does not apply here because nothing in Title 41, Subtitle I, Division C (§§ 3101 – 4714) applies to the Department of Defense.” Def. Supp. Br. at 2 (citing 41 U.S.C. § 3101 (c)(1)(A)). The government nowhere addresses 10 U.S.C. § 2304c(e), the task order protest bar applicable to Department of Defense (“DOD”) procurements. The difference between the two statutes is the dollar value of the GAO jurisdictional threshold; for DOD procurements, the applicable threshold is $25 million. 10 U.S.C. § 2304c(e)(1)(B). Because there is no practical difference between the two provisions for the purposes of this decision, the instant decision discusses 41 U.S.C. § 4106 (f), the statutory provision upon which the government has relied in its briefs. 25Even on that point, however, the government is noncommittal, in one sentence asserting that “there is no uncertainty as to what contracting vehicle would be selected,” and then in the very next sentence asserting that “the administrative record demonstrates that the agency has decided already to use the TMS MAIDIQ.” Def. MJAR at 32 (emphasis added). 23 issuance” of a task order, nor does the Court agree with the government that Plaintiffs are protesting the TMS MAIDIQ itself (or the proposed issuance of a task order). For the reasons explained below, the Court finds that the FASA task order bar does not apply to the present case because: (1) FASA only applies to a “protest” but that term does not necessarily encompass an action alleging an independent “violation of statute or regulation in connection with a procurement or proposed procurement”; (2) even where an action properly may be considered a “protest,” FASA only applies where there is some relationship to a “proposed issuance or issuance of a task order” – that is, where a plaintiff is, in effect, a disappointed bidder or offeror; and (3) a challenge to an agency’s alleged failure to conduct a Rule of Two analysis is not “in connection with” a task order, no matter how Plaintiffs’ claims are viewed or how the other operative language in FASA is interpreted or parsed. As with any question of statutory analysis, this Court starts, as it must, with the applicable statutory language. 26 The FASA task order protest bar provides, in its entirety, as follows: “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for—(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000.” 41 U.S.C. § 4106 (f)(1) (emphasis added). With respect to the latter exception, the GAO has exclusive jurisdiction to decide such claims. Id. § 4106(f)(2). The interpretative difficulty is that FASA does not provide any further definitional clarity regarding its operative terms. Solving this puzzle requires paying close attention to the entirety of the FASA’s statutory language. While decisions from this Court and the Federal Circuit generally have focused on the “in connection with” language 27 – and that phrase’s “very sweeping . . . scope,” RAMCOR, 185 F.3d at 1289 – that is but one-third of the FASA statutory equation. The remaining operative language that remains to be unpacked is (a) “protest” and (b) “issuance or proposed issuance of a task or delivery order,” 41 U.S.C. § 4106 (f)(1), both of which, in this Court’s view, considerably narrow the FASA’s jurisdictional bar. Cf. Maracich v. Spears, 570 U.S. 48 , 60 (2013) (“[T]he phrase ‘in connection with’ provides little guidance without a limiting principle consistent with the structure of the statute and its other provisions.”). 26Dyer v. Dep't of the Air Force, 971 F.3d 1377 , 1380 (Fed. Cir. 2020) (quoting Kingdomware Techs., Inc. v. United States, –– U.S. ––, 136 S. Ct. 1969 , 1976 (2016), for the proposition that “[i]n statutory construction, we begin with the language of the statute” (internal quotes omitted)). 27BayFirst Sols., LLC v. United States, 104 Fed. Cl. 493 , 502 (2012) (“There seems to be some variation in this court’s approach to interpreting the term ‘in connection with’ when applying the ban on task order protests in particular cases.”). 24 1. FASA Does Not Necessarily Bar Claims Alleging A “Violation Of Statute Or Regulation In Connection With A Procurement Or Proposed Procurement” The FASA task order bar applies only to “protest[s].” This Court therefore must decide whether Plaintiffs’ claims in this case – specifically with respect to the agency’s alleged violation of the Rule of Two – constitute a “protest.” The Court is unconcerned with how that word is employed colloquially to describe § 1491(b) actions generally; instead, the Court focuses on the language that Congress actually enacted in its statutes. Azar v. Allina Health Servs., 587 U.S. ––, 139 S. Ct. 1804 , 1812 (2019) (“This Court does not lightly assume that Congress silently attached different meanings to the same term in . . . related statutes.”). In that regard, on the one hand, neither the FASA task order protest bar provision nor the Tucker Act defines the term “protest” and the question of what that term includes is not straightforward. On the other hand, the GAO’s bid protest jurisdictional statute, the Competition in Contracting Act (“CICA”), 28 defines that term as follows: The term “protest” means a written objection by an interested party to any of the following: (A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services. (B) The cancellation of such a solicitation or other request. (C) An award or proposed award of such a contract. (D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract. (E) Conversion of a function that is being performed by Federal employees to private sector performance. 31 U.S.C.A. § 3551 (1); see also FAR 33.101 (defining “protest” similarly to CICA). 29 28 Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified, as amended, at 31 U.S.C. §§ 3551-3557 ). 29Notably, the CICA’s definition of “protest” explicitly distinguishes between an objection to a solicitation, an objection to a solicitation’s cancellation, and an objection to “[a]n award or proposed award.” 25 Focusing on CICA’s definition of the word “protest,” a Tucker Act cause of action may be “in connection with” the issuance (or proposed issuance) of a task order, but not subject to the FASA task order protest bar because the cause of action simply does not qualify as a “protest.”30 As a more obvious practical analogy demonstrating the accuracy of that conclusion, the government could not contend that a Contract Disputes Act (“CDA”) claim qualifies as a “protest” subject to the FASA task order protest bar. Kellogg Brown & Root Servs., Inc. v. United States, 117 Fed. Cl. 764 , 770 (2014) (holding that “this matter is not within our bid protest jurisdiction, but instead involves questions of contract administration that must be brought under the CDA”); Itility, LLC v. United States, 124 Fed. Cl. 452 , 458 (2015) (noting that “a long line of our cases has held that the ‘interested party’ standing to bring a bid protest does not extend to the complaints of contractors concerning the administration of contracts they have been awarded and performing”); Digital Techs., Inc. v. United States, 89 Fed. Cl. 711 , 722, 728– 29 (2009) (“By its terms, the FASA prohibition on bid protests does not apply to a breach of contract case” or CDA claims). 31 A further comparison of the FASA task order protest bar to the Tucker Act language (and RAMCOR’s interpretation of the latter) is instructive and demonstrates that not all § 1491(b)(1) claims qualify as a “protest.” For starters, the Tucker Act nowhere employs the term “protest” but rather refers repeatedly to “an action” (or “any action”). 28 U.S.C. § 1491 (b). 32 As noted previously, the Tucker Act, as amended by ADRA, provides for four distinct causes of action related to the procurement process: “an action by an interested party objecting [1] to a solicitation by a Federal agency for bids or proposals for a proposed contract or [2] to a proposed award or [3] the award of 30“The CICA and the ADRA are, after all, different statutes, with different definitions of bid protest.” Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510 , 517 (2001). 31Cf. Cont'l Serv. Grp., Inc. v. United States, 722 F. App’x 986, 992 (Fed. Cir. 2018) (noting government’s position that a particular claim, dismissed by the trial court, was “a contract administration claim subject to the [CDA] over which the Claims Court had no bid protest jurisdiction”). 32CICA explicitly distinguishes between an “action” in this Court and a “protest” before the GAO. 31 U.S.C. § 3556 (explaining that “nothing contained in this subchapter shall affect the right of any interested party to file a protest with the contracting agency or to file an action in the United States Court of Federal Claims”); see also 41 U.S.C. § 2101 (6) (“The term ‘protest’ means a written objection by an interested party to the award or proposed award of a Federal agency procurement contract, pursuant to subchapter V of chapter 35 of title 31.”); 31 U.S.C. § 1558 (distinguishing between a “protest filed under subchapter V of chapter 35 of this title,” on the one hand, and “an action commenced . . . for a judicial remedy” involving a “a challenge to-- (i) a solicitation for a contract; (ii) a proposed award of a contract; (iii) an award of a contract; or (iv) the eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract” (emphasis added)). 26 a contract or [4] any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” Id. § 1491(b)(1) (emphasis added). The first three causes of action are what we typically refer to as bid “protests,” as that term is defined in CICA – i.e., challenges, respectively, to a solicitation or to the merits of a contract award (or a proposed award). In contrast, the fourth prong of § 1491(b)(1) – pursuant to which a plaintiff may allege a “violation of statute or regulation in connection with a procurement or a proposed procurement” – is not necessarily a “protest,” at least as that term is defined in CICA. 33 Indeed, although “ADRA covers primarily pre- and post-award bid protests,” the Federal Circuit in RAMCOR explicitly reversed this Court’s determination “that a [plaintiff] could only invoke § 1491(b)(1) jurisdiction by including in its action an attack on the merits of the underlying contract award” or the solicitation. RAMCOR, 185 F.3d at 1289 (emphasis added). Put differently, “[t]he language of § 1491(b) . . . does not require an objection to the actual contract procurement, but only to the ‘violation of a statute or regulation in connection with a procurement or a proposed procurement.’” RAMCOR, 185 F.3d at 1289 . The Federal Circuit further explained that construing § 1491(b)(1) to require a plaintiff to object to the merits of a procurement effectively would eliminate the fourth prong of the statute, as “[a] challenge on the merits would, for example, amount to an objection to ‘a proposed award or the award of a contract.’” Id. (emphasis added) (“If § 1491(b) required a challenge to the merits of the contract award, the contractor would never need to use the ‘violation’ prong but could always rely on other jurisdictional grants in § 1491(b)(1).”). Simply put, an action under the last prong of § 1491(b) is not a “protest” because it is not a challenge to a solicitation or to the proposed award or award of a contract. In that regard, an axiomatic canon of statutory interpretation is that “[w]hen construing a statute, this court must, if at all possible, give effect to all its parts.” 185 F.3d at 1289 (citing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 , 633 (1973), and noting that “[t]he trial court’s proposed interpretation of § 1491(b)(1) would violate this basic tenet of statutory construction”). Accordingly, 33Thus, while “the Federal Circuit has made clear that a RAMCOR-type action may be brought independent of whether the plaintiff objects to the actual contract procurement[,] CICA’s definition of ‘protest’ is more limited than the scope of actions described by the Tucker Act and does not include an independent ‘violation of statute or regulation in connection with a procurement or a proposed procurement’ prong[.]” M. Solomson & J. Handwerker, Subcontractor Challenges To Federal Agency Procurement Actions, 06-3 Briefing Papers 1, *6 (Feb. 2006). That is not to say that the GAO’s protest jurisdiction precludes its consideration of alleged violations of statutes or regulations, see 31 U.S.C. § 3552 (a), but rather the GAO may only consider such allegations as part of a “written objection by an interested party” that meets the definition of “protest” in 31 U.S.C. § 3551 . 27 § 1491(b)(1) must be construed to permit a cause of action which is neither a “protest” of a solicitation, nor of a contract award (or proposed award). 34 The question, then, is what is the nature of Plaintiffs’ Rule of Two claims in this case? Does an alleged violation of the Rule of Two challenge a solicitation or otherwise object to an award or proposed award of a contract (i.e., are Plaintiffs’ claims “protests”)? Or, are Plaintiffs’ claims properly considered only under the fourth prong of § 1491(b)(1)? Before answering those questions, the Court returns to the statutory language of the FASA task order protest bar, and concludes that it applies, by its plain terms, only to the first three causes of action identified in § 1491(b)(1), where CICA’s definition of “protest” and the Tucker Act overlap. 35 In that regard, this Court concludes that the in 34As RAMCOR confirms, the protest of a “proposed award” concerns the merits of the agency’s presumptive award (prior to the actual award), but in any event is not the same thing as a solicitation protest. 185 F.3d at 1289 (“[a] challenge on the merits would, for example, amount to an objection to ‘a proposed award or the award of a contract’”); see also, e.g., CGI Fed., Inc., B- 418807, 2020 CPD ¶ 276, 2020 WL 4901733 , *4 (Aug. 18, 2020) (holding that although “[u]nder CICA, protests are defined to include challenges involving solicitations, and awards made or proposed under those solicitations[,]” the putative protestors did not allege grounds within the GAO’s jurisdiction “because they do not object to the terms of a solicitation and do not otherwise concern the award of a contract”); Litton Sys., Inc., B-229921, 88-1 CPD ¶ 448, 1988 WL 227107 , *6 (May 10, 1988) (explaining that GAO “generally see[s] nothing improper in an agency requirement that a proposed award selection be reviewed by higher agency officials” (emphasis added)). A typical “proposed award,” for example, is an agency’s announcement of its intent to award a sole-source contract. See, e.g., Wamore, Inc., B-417450, 2019 CPD ¶ 253, 2019 WL 3214259 (July 9, 2019) (“Wamore filed its protest challenging the Army’s planned sole-source contract award to Airborne Systems.”); eFedBudget Corp., B-298627, 2006 CPD ¶ 159, 2006 WL 3347953 (Nov. 15, 2006) (“eFedBudget Corporation protests the proposed award of a contract on a sole- source basis to RGII Technologies, Inc.”). 35Alphapointe v. Dep’t of Veterans Affairs, -- F. Supp. 3d --, 2020 WL 4346914 , at *6–*7 (D.D.C. July 29, 2020) (transferring case to the Court of Federal Claims, and rejecting, consistent with other cases, plaintiff’s argument that § 1491(b)(1) only covers “a bid protest or ‘a dispute over an individual contract solicitation or award.’” (quoting Pub. Warehousing Co. K.S.C. v. Defense Supply Ctr., 489 F. Supp. 2d 30 , 39–40 (D.D.C. 2007)). In Public Warehousing Co., the District Court correctly explained that the notion of a “‘bid protest’ limitation was squarely rejected in RAMCOR” because “[l]imiting the ‘violation of statute or regulation’ prong to bid protest cases would render it superfluous.” 489 F. Supp. 2d at 40 (holding that if “section 1491(b)(1) were limited to claims challenging the merits of a specific solicitation or contract award, the ‘violation of statute or regulation’ clause would serve no purpose because the other clauses in section 1491(b)(1) vesting jurisdiction in the Court of Federal Claims would suffice” (citing RAMCOR, 185 F.3d at 1289 )). Thus, although the term “bid protest” is generally used to refer to actions brought pursuant to 28 U.S.C. § 1491 (b)(1), it more accurately describes only the first three prongs of that statutory section. 489 F.2d at 40 (rejecting plaintiff’s contention that “Congress intended the matters described [in § 1491(b)(1)] to be limited to bid protests,” and citing cases 28 pari materia canon of statutory interpretation 36 should be applied here such that FASA’s usage of the term “protest” must be read as Congress defined the term in CICA. First, the Federal Acquisition Streamlining Act of 1994 expressly incorporated the CICA’s definition of “protest.” See Pub. L. No. 103-355, 108 Stat. 3243 §§ 1004 (“Task and Delivery Order Contracts”), 1054 (“Task and Delivery Order Contracts”), 1401 (“Protest Defined”), 1438 (“Definition of Protest”). There is no reason to go searching for another definition of “protest” in FASA (or elsewhere) where Congress literally defined the term in context. Second, binding Federal Circuit precedent requires us to apply CICA’s definition of “interested party” to § 1491(b), and both “interested party” and “protest” are defined in the very same statutory provision. See 31 U.S.C. § 3551 ; see also Am. Fed’n of Gov’t Employees, AFL–CIO v. United States, 258 F.3d 1294 (Fed. Cir. 2001). 37 There is no plausible justification for applying CICA’s definition of “interested party” to § 1491(b), while ignoring CICA’s definition of “protest” in interpreting a jurisdictional limit on § 1491(b). Third, the current FASA task order protest bar itself provides GAO with “exclusive jurisdiction” over a “protest of an order valued in excess of $10,000,000.” 41 U.S.C. § 4106 (f)(1)(B) & (F)(2). 38 The term “protest” in the jurisdictional bar must be read as coterminous with what that term means at the GAO. Viewed from the other for the proposition that “every court to address the ‘violation of statute or regulation’ clause outside of a traditional bid protest setting—in plaintiff’s words, ‘some other challenge’—has concluded that the breadth of that clause covers even non-traditional disputes arising from the procurement process as long as the violation is ‘in connection with a procurement or a proposed procurement’” (emphasis added)). “Thus, although it is true that litigation under the ADRA traditionally has developed around pre- and post-award bid protests, no inference can be drawn that the ADRA covers only those types of cases.” 489 F. Supp. 2d at 41 (footnote omitted). The Federal Circuit favorably cited Public Warehousing Co. K.S.C. in Distributed Sols., Inc. v. United States, 539 F.3d 1340 , 1345 (Fed. Cir. 2008). 36 “Under this canon, courts should interpret statutes with similar language that generally address the same subject matter together, “‘as if they were one law.’” Strategic Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 1317 , 1330 (Fed. Cir. 2010) (quoting Erlenbaugh v. United States, 409 U.S. 239 , 243 (1972) (internal quotes omitted)). 37See also Banknote Corp. of Am. v. United States, 365 F.3d 1345 , 1352 (Fed. Cir. 2004); Rex Serv. Corp. v. United States, 448 F.3d 1305 , 1307 (Fed. Cir. 2006) (noting that “the term ‘interested party’ in section 1491(b)(1) is construed in accordance with the [CICA], 31 U.S.C. §§ 3551 –56”); Digital Techs., Inc., 89 Fed. Cl. at 722 n.15 (“The United States Court of Appeals for the Federal Circuit has applied the CICA definition of ‘interested party’ in bid protests . . . .”); Wildflower Int'l, Ltd. v. United States, 105 Fed. Cl. 362 , 377 (2012) (discussing 41 U.S.C. § 4106 (f), and CICA’s definition of “protest”); Technatomy Corp., B–405130, 2011 WL 2321836 , at *4 (June 14, 2011) (employing CICA’s definition of protest in GAO’s analysis of § 4106(f)). 38 Or $25 million for DOD procurements. 10 U.S.C. § 2304c(e)(1)(B). 29 end of the telescope, the word “protest” cannot be read to mean one thing in the task order protest bar, but something else in the jurisdictional grant to the GAO, as both provisions are contained within 41 U.S.C. § 4106 (f). Henson v. Santander Consumer USA Inc., –– U.S. ––, 137 S. Ct. 1718 , 1723 (2017) (unanimous decision) (explaining that a court must have a “persuasive reason” to “abandon our usual presumption that ‘identical words used in different parts of the same statute’ carry ‘the same meaning’” (quoting IBP, Inc. v. Alvarez, 546 U.S. 21 , 34 (2005))). With the CICA’s definition of “protest” in mind, the Court concludes that the FASA task order protest bar does not preclude Plaintiffs’ respective claims that the agency failed to comply with the Rule of Two, particularly to the extent that such an alleged violation may be viewed as distinct from the solicitation cancellation decisions themselves. Although we recognize that CICA’s definition of “protest” includes an objection to “[t]he cancellation of . . . a solicitation[,]” 31 U.S.C. § 3551 (1)(B), and thus such a claim (or cause of action) is plausibly within the ambit of FASA’s task order protest bar, (1) the Tucker Act does not even authorize that same, independent action per se, as demonstrated supra (and as the government itself argues), 39 and (2) the government itself attempts to disengage the Rule of Two issue here from the challenged cancellation decisions. Again, the government does not argue that the FASA task order protest bar generally precludes Plaintiffs’ challenges to the cancellation decisions; indeed, the government’s FASA protest bar argument is focused entirely upon Plaintiffs’ Rule of Two argument standing alone and makes no mention of the cancelled procurements. See Def. MJAR at 30–31 (arguing for the “broad reach of FASA” such that “a protest of the failure to conduct a rule of two analysis prior to issuing a task order is not a colorable basis to avoid the statutory bar”); Def. Resp. at 11. The Court is not surprised by the government’s approach because the cancellation decisions themselves are far removed from the selection of a replacement acquisition vehicle, and the government no doubt prefers to target something more likely to be considered “in connection with” a task order process. To repeat: the government does not argue that Plaintiffs’ challenge to the solicitation cancellations are barred per se by FASA. Thus, the government’s strategy, understandably, is to tie the Rule of Two claims directly to the agency’s putative selection of a task order vehicle, and then rely upon the breadth of FASA’s “in connection with” language to argue for the application of the FASA protest bar. If the government’s view of the Rule of Two claims is correct, however – i.e., that it is segregable from the challenge to the solicitation cancellations as such – that means that Plaintiffs’ “action” alleging a violation of various statutory or regulatory provisions does not fit within any of CICA’s “protest” categories. And, thus, this Court properly 39That is why, pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1), Plaintiffs must ground their case here upon an alleged violation of statute or regulation. 30 may consider Plaintiffs’ Rule of Two claims, as explained above, only under the fourth prong of 28 U.S.C. § 1491 (b)(1), just as this Court must for the direct cancellation decision challenge. Again, the fourth prong of 28 U.S.C. § 1491 (b)(1) constitutes an independent cause of action that is best understood as “cover[ing] even non-traditional disputes arising from the procurement process as long as the violation is ‘in connection with a procurement or proposed procurement[.]’” Validata Chem. Servs. v. Dep't of Energy, 169 F. Supp. 3d 69 , 78 (D.D.C. 2016) (quoting Pub. Warehousing Co. K.S.C. v. Defense Supply Ctr., 489 F. Supp. 2d 30 , 40 (D.D.C. 2007) (quoting 28 U.S.C. § 1491 (b)(1))). Again, CICA’s definition of protest contains no analog to that prong of § 1491(b)(1). 40 The Court can demonstrate this conclusion by viewing the problem from yet another, slightly different, angle. As explained above, the word “protest” cannot mean one thing in the FASA provision precluding this Court’s jurisdiction over a particular class of actions, but another thing in conferring exclusive jurisdiction on the GAO for the very same objections (or “protests”). Accordingly, the FASA statutory provision only precludes this Court from hearing actions over which GAO would itself have exclusive jurisdiction were the task order award (or proposed award) valued in excess of $10 million (or $25 million for DOD procurements). 41 U.S.C. § 4106 (f)(2); 10 U.S.C. § 2304c(e)(1)(B). The GAO does not have jurisdiction over RAMCOR-type actions brought pursuant to the final prong of 28 U.S.C. § 1491 (b)(1), 41 and, thus, to the extent Plaintiffs’ respective actions here may be properly considered under that final prong, but not by the GAO under its jurisdictional statute, the FASA task order protest bar cannot apply to preclude them. 42 That Plaintiffs’ allegations are properly considered 40To the extent Plaintiffs object to the solicitation cancellations, our jurisdiction to consider such a challenge is also covered by the fourth prong of 28 U.S.C. § 1491 (b)(1), but at least that cause of action fits comfortably within CICA’s definition of “protest,” although the government does not argue that the FASA bar applies to such an objection here. 31 U.S.C.A. § 3551 (1)(B) (solicitation cancellation). In contrast, a challenge to an agency’s selection of a replacement acquisition vehicle as contrary to law, while squarely within 28 U.S.C. § 1491 (b)(1), is not covered per se by CICA’s definition of “protest.” 41See Aerosage, LLC, B-417289, 2019 CPD ¶ 151 n.10 (Apr. 24, 2019) (“A protester desiring to seek enforcement of CICA’s stay provisions must request relief from a court of competent jurisdiction-currently the U.S. Court of Federal Claims.”); Aerosage, LLC, B-415267.13, 2018 CPD ¶ 114, 2018 WL 1392945 n.7 (Mar. 19, 2018) (“our Office has no jurisdiction to consider whether an agency improperly failed to comply with a stay of performance”). A challenge to an agency’s override of a CICA automatic stay is not characterized as a “protest.” Any interpretation of the word “protest” in the FASA task order protest bar must come to grips with the fact that RAMCOR-type actions are not protests. 42Again, even though the CICA’s definition of “protest” does include a challenge to the “cancellation of . . . a solicitation,” 31 U.S.C. § 3551 (1)(B), Plaintiffs here do not challenge the cancellation of a solicitation “in connection with the issuance or proposed issuance of a task . . . order” – which language concerns the merits of a task order award (or proposed award), as explained infra. Moreover, § 1491(b)(1) does not even independently identify 31 under the final prong of § 1491(b)(1) is a conclusion all but compelled by the Federal Circuit’s decision in PDS Consultants, Inc. v. United States, 907 F.3d 1345 , 1356 (Fed. Cir. 2018) (“PDS Consultants alleged a statutory violation—namely, that the VA acted in violation of [statute] by awarding contracts without first conducting the Rule of Two analysis. . . . As an ‘alleged violation of statute or regulation in connection with a procurement or a proposed procurement,’ PDS Consultants’ action arises under the Claims Court’s jurisdiction.”); see Glob. Computer Enterprises, Inc. v. United States, 88 Fed. Cl. 350 , 445–49 (2009) (rejecting government’s contention that if plaintiff “can overcome the jurisdictional bar simply by alleging that a regulation was violated, then that just eviscerates the jurisdictional bar”). In sum, our point is only that, even assuming the Rule of Two issue may be disconnected entirely from the cancellation challenges themselves, as the government suggests, the FASA task order bar would not apply here because it does not necessarily reach “actions” brought pursuant to the fourth prong of 28 U.S.C. § 1491 (b)(1). Unisys Corp. v. United States, 90 Fed. Cl. 510 , 517 (2009). The Court quotes Unisys at length because it is particularly instructive in the context of the instant case: This court therefore reviews an agency’s compliance with § 3553 “independent of any consideration of the merits of the underlying contract award.” Planetspace Inc. v. United States, 86 Fed. Cl. 566 , 567 (2009). Although “the Comptroller General of the United States” has “exclusive jurisdiction” over protests of task orders valued in excess of $10 million, this lawsuit does not concern the task order itself, but merely whether TSA wrongfully failed to comply with 31 U.S.C. § 3553 . National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110–181, § 843, 122 Stat. 3 , 236 (codified at 10 U.S.C. § 2304c); see also Digital Techs. v. United States, No. 08– 604C, 2009 WL 4785451 (Fed. Cl. Dec. 9, 2009). This Court thus possesses jurisdiction to review the alleged violation of § 3553. 90 Fed. Cl. at 517 (emphasis added). In terms of the language of § 1491(b)(1), Plaintiffs allege that, in cancelling the solicitations at issue, based primarily upon the agency’s solicitation cancellations as a separate category of claims, and, thus, any such challenge under the Tucker Act, as amended by ADRA, must rely upon the final prong of § 1491(b)(1) in any event. Validata Chem. Servs., 169 F. Supp. 3d at 84 (explaining that “any arguable parallel between CICA and ADRA breaks down, as explained above, where the plaintiff’s cause of action falls under the [final] prong of ADRA’s ‘objecting to’ test, which does not require that the plaintiff object to a federal contract solicitation or award” (citing § 1491(b)(1) and RAMCOR, 185 F.3d at 1289 )); Alaska Cent. Exp., Inc. v. United States, 50 Fed. Cl. 510 , 517 (2001) (“The CICA and the ADRA are, after all, different statutes, with different definitions of bid protest.”). 32 intent to use the TMS MAIDIQ, the agency has violated FAR 1.602–2(b), FAR 19.502-2 and FAR 19.502-9 – all of which are regulations “in connection with a procurement or proposed procurement” under the Tucker Act. TTGI Am. Compl. at ¶¶ 36–38; PTP Compl. at ¶¶ 98–111; TTGI MJAR at 20–22; PTP MJAR at 21–28. In any event, neither the terms or parameters of the TMS MAIDIQ itself nor any specific task order solicitation is at issue. Indeed, at least as of the time of filing of Plaintiffs’ respective complaints, there was no pending task order solicitation, let alone a task order award (or proposed award). TTGI Am. Compl. at ¶ 27; PTP Compl. at ¶ 51. 43 2. FASA Only Bars Challenges Related To The “Proposed Issuance Or Issuance” Of A Task Order Further supporting the Court’s conclusion that the FASA bar does not apply to Plaintiffs’ Rule of Two claims is the fact that the FASA task order protest bar – again, by its terms – only applies to a “protest . . . in connection with the issuance or proposed issuance of a task . . . order . . . .” 41 U.S.C. § 4106 (f)(1) (emphasis added). The latter phrase further limits the scope of the protest bar insofar as it virtually mirrors only the second and third prongs of § 1491(b)(1) – i.e., “a proposed award or the award of a contract” – but with FASA replacing the Tucker Act’s reference to “award” and “contract” with, respectively, “issuance” and “task order.” As demonstrated, supra, however, the second and third prongs of § 1491(b)(1), properly understood, include challenges to the results or merits of a procurement – an award or proposed award of a contract – but do not cover solicitation protests, the latter which is a distinct cause of action under both the Tucker Act, as amended by ADRA, and CICA’s definition of “protest.” 43 The government, in its response brief, notified this Court that: [t]he agency recently issued a request for task order proposals in order to be prepared to proceed with the procurement in the event the Court dismisses plaintiffs’ protest of that procurement. This precautionary step was taken subsequent to the filing of the complaints in this action. However, in accordance with the agency’s voluntary stay to October 20, 2020, no awards will be issued. Def. Resp. at 8 n.2 (emphasis added). Following a status conference with the parties on November 12, 2020, Minute Order (Nov. 12, 2020), the government agreed to delay the task order proposal deadline until November 30, 2020. Because this request for proposals was issued following the initiation of this action, this Court’s analysis remains limited to the facts as alleged in Plaintiffs’ complaints. See Walton v. United States, 80 Fed. Cl. 251 , 264 (2008) (“[I]t appears that binding Federal Circuit law has not departed from the established rule that jurisdiction is determined on the basis of the facts that existed at the time the complaint was filed.” (emphasis added)), aff’d, 551 F.3d 1367 (Fed. Cir. 2009). 33 Accordingly, just as a challenge to a solicitation is distinct from the challenge to a proposed award of contract, so too a challenge to the selection (or planned selection) of a particular (task order) contracting vehicle does not equate to the “proposed issuance” of a task order. The fact that the agency here has “proposed” to use a MAIDIQ is not the same as the “proposed issuance” of a task order. 44 Again, FASA’s reference to the “proposed issuance” of a task order mirrors § 1491(b)(1)’s use of “proposed award” – the former does not cover an agency’s “proposed issuance” of a task order solicitation any more than the latter includes an agency’s mere issuance of a standard solicitation. A close reading of FASA’s task order protest bar thus suggests that it is inapplicable even to a claim explicitly challenging an agency’s selection of a task order vehicle for a procurement, assuming that is one way to characterize Plaintiffs claims in this case. To be clear, however, Plaintiffs here challenge neither the terms of a solicitation, the issuance of a task order solicitation, nor the award (or proposed award) of a task order. Validata Chem. Servs., 169 F. Supp. 3d at 78 (explaining that where plaintiff “is not objecting ‘to a [government] solicitation,’ ‘to a proposed award,’ or to an actual ‘award of a [government] contract,’ . . . neither the first nor the second prong of 44See supra n.36. It bears repeating that if a “proposed award” were interpreted to cover the same cause of action as a challenge to a solicitation, the first prong of the § 1491(b)(1) would be rendered meaningless, just as the Federal Circuit in RAMCOR explained with respect to the “violation of a statute or regulation in connection with a procurement or a proposed procurement” language. RAMCOR, 185 F.3d at 1289 ; Jacobs Tech. Inc., 100 Fed. Cl. at 175 (critiquing the “conflat[ion] [of] the separate jurisdiction grounds of solicitation, proposed award or award, on the one hand, and violation of a statute or regulation, on the other”); Nat'l Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281 , 288–89 (2016) (noting that the Court “must address whether the protestor is objecting to a solicitation, proposed award, award, or violation of law ‘in connection with a procurement or a proposed procurement’” – all distinct categories). While this Court has often grouped the first two prongs of § 1491(b)(1) into pre- or post-award protest categories, as noted supra, the statute clearly distinguishes between an action that is an objection to a solicitation and one that constitutes a challenge to a proposed award of a contract. Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474 , 482 (2006) (explaining that “[t]he statute’s use of the conjunction ‘or’ makes it clear that the Court has jurisdiction over each of the . . . identified types of actions” and citing RAMCOR, 185 F.3d at 1289 , for the proposition that the “violation of statute or regulation prong” of 28 U.S.C. § 1491 (b)(1) provides a grant of jurisdiction separate and apart from “an objection to ‘a proposed award or the award of a contract’”). Indeed, Advanced Sys. Tech. specifically referenced “[t]he plain language of the first prong of 1491(b)(1)” as “provid[ing] that this Court has jurisdiction over ‘an action brought by an interested party objecting to a solicitation[.]’” Id.; see also DMS All–Star Joint Venture v. United States, 90 Fed. Cl. 653 , 661 n.10 (2010) (noting the protestor challenged not the terms of the solicitation but the proposed award to a particular offeror). The Federal Circuit similarly has distinguished between the different categories of § 1491(b)(1) protest-type actions. Res. Conservation Grp., 597 F.3d at 1245 (referencing “a challenge to an award, proposed award, or solicitation”). 34 ADRA’s ‘objecting to’ test is implicated”). Instead, Plaintiffs’ focus is on the agency’s allegedly improper cancellation of two completed procurements. As explained above, Plaintiffs allege that the agency’s decision to cancel those solicitations fails the APA standard of review, at least in part because the agency erred in concluding that it could utilize the TMS MAIDIQ vehicle to procure the work at issue. In turn, whether the agency correctly (or incorrectly) reached that latter conclusion depends at least in-part on whether the agency complied with the Rule of Two. But whether this Court addresses the Rule of Two question simply as a subsidiary issue in deciding the propriety of the agency’s cancellation decisions or whether we view Plaintiffs’ Rule of Two claim as a stand-alone allegation of a regulatory violation, as explained supra, the action in either case is not a “protest . . . in connection with the issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106 (f)(1) (emphasis added). Again, Plaintiffs’ action here properly is considered pursuant to the last prong of § 1491(b)(1) – an alleged “violation of a statute or regulation in connection with a procurement or a proposed procurement.” Acetris Health, LLC v. United States, 949 F.3d 719 , 728 (Fed. Cir. 2020) (“The reference to ‘proposed procurements’ likewise broadly encompasses all contemplated future procurements by the agency.”). Put yet differently, while all “proposed” awards of either contracts or task orders may be subsumed within the “in connection with a procurement” language, not all alleged violations of a statute or regulation “in connection with a procurement or proposed procurement” involve an award or a proposed award. 45 Any contrary interpretation would read a statutory phrase out of existence. 45Indeed, the phrase “proposed award” in 28 U.S.C. § 1491 (b)(1) appears to be a term of art employed due to this Court’s prior, more limited, pre-ADRA jurisdiction over “bid protests” pursuant to § 1491(a). Prior to ADRA, this Court had jurisdiction to consider implied contract claims exclusively from “disappointed bidders” but could only order injunctive relief in pre- award cases. That meant there was no jurisdiction over solicitation challenges brought prior to the submission of proposals because such a plaintiff could not be a “disappointed bidder” – no implied contract to fairly consider a proposal would yet exist. And, once an award was actually made, a plaintiff might be a “disappointed bidder” but could not obtain injunctive relief. For a “proposed award,” however, a plaintiff could file a bid protest claim pursuant to § 1491(a) and obtain injunctive relief. The critical point here is that the phrase “proposed award” – whether in 28 U.S.C. § 1491 or in FASA – is not intended to cover some future result of a solicitation that has not been issued or even the future result of an ongoing procurement process, in general. See, e.g., United States v. John C. Grimberg Co., 702 F.2d 1362 , 1367 (Fed. Cir. 1983) (“Thus [§ 1491](a)(3) made an equitable remedy available when a claim over which the court has jurisdiction (implied contract under (a)(1)) is filed in the court before a contract has been awarded.”); Central Ark. Maintenance, Inc. v. United States, 68 F.3d 1338 , 1341 (Fed. Cir. 1995) (pre-ADRA § 1491(a) “jurisdictional grant . . . extends to suits brought by disappointed bidders, commonly called bid protests, challenging the proposed award of contracts based on alleged improprieties in the procurement process” (emphasis added)). “Proposed award” was never understood, pre-ADRA, to encompass pre-solicitation agency decisions or even solicitation challenges for the simple reason that “[v]iolations of law, rule, or regulation in the structuring 35 The government’s interpretive approach would rewrite the FASA task order protest bar as applying “in connection with a task order” generally or “in connection with a task order procurement or proposed procurement.” Congress’ selection of the phrase “issuance or proposed issuance,” however, must be given meaning. In sum, while the phrase “in connection with” must be interpreted broadly per the directions of the Federal Circuit, the Court concludes that the neighboring language in 41 U.S.C. § 4106 (f)(1) – the phrases “protest” and “issuance or proposed issuance of a task . . . order” – serve to limit the reach of the FASA task order protest bar. 46 3. The Failure To Conduct A “Rule Of Two” Analysis Challenge Is Not “In Connection With” A Task Order Finally, while the Federal Circuit often has recognized that the phrase “in connection with” should be interpreted broadly, this Court recognizes that the Supreme Court has cautioned that “a non-hyperliteral reading [of this term] is needed to prevent the statute from assuming near-infinite breadth.” FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760 , 774 (2016); see Maracich, 570 U.S. at 59–60 (citing cases). Although the government relies upon SRA Int’l, Inc. v. United States, 766 F.3d 1409 (Fed. Cir. 2014), Def. Mot. at 30–31, that case is distinguishable in a manner that supports jurisdiction here (even putting aside this Court’s foregoing analysis of the other parts of the FASA statutory language). In SRA Int’l, the protestor appealed this Court’s dismissal of a protest, which alleged that the agency improperly had waived a conflict of interest following the award of a task order. Id. at 1410 . This Court held the waiver was not in connection with the task order because the waiver was issued after the award and was “a matter left to agency discretion.” Id. at 1412 (quoting SRA Int'l, Inc. v. United States, 114 Fed. Cl. 247 , 255–56 (2014)). The Federal Circuit reversed, holding that neither the of a solicitation . . . are breaches of statutory or regulatory obligations, not contractual ones, and this court does not have the authority to redress them either in law or equity through a disappointed bidder suit.” Eagle Const. Corp. v. United States, 4 Cl. Ct. 470 , 476–77 (1984) (emphasis added) (explaining that pursuant to pre-ADRA § 1491(a) jurisdiction, “the court's jurisdiction over the implied contract of fair dealing in disappointed bidder cases embraces neither claims challenging terms, conditions, or requirements of solicitations, nor policies and activities which preceded and resulted in the solicitations”). On the other hand, where offerors had submitted bids or proposals, “Congress intended 28 U.S.C. § 1491 (a)(3) to [provide] . . . an unsuccessful bidder [with] standing to challenge a proposed contract award on the ground that in awarding the contract the government violated statutory and procedural requirements.” C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567 , 1574 (Fed. Cir. 1983) (emphasis added). In this case, there is no “proposed award” at issue. 46Glob. Computer Enterprises, Inc., 88 Fed. Cl. at 414–15 (“If Congress intended to prohibit protests stemming from any action related to a task order contract, then it could have explicitly drafted a statute that barred any protest in connection with a task order. It did not do so. Instead, Congress prohibited bid protests in connection with either the issuance or proposed issuance of a task order.” (emphasis added)). 36 temporal disconnect between the task order and the waiver, nor the latter’s discretionary nature, adequately separated the protest from the underlying task order. 766 F.3d at 1413. Thus, in SRA Int’l, the Federal Circuit concluded that an “OCI waiver was directly and causally connected to the issuance of [a task order], despite being executed after issuance.” 766 F.3d at 1413 (emphasis added). Indeed, “[t]he GSA issued the waiver in order to go forward with [the selected awardee].” Id. Substitute “solicitation cancellation” for “OCI waiver,” and the government’s position here – at least on the surface – would seem to be correct. Critically, however, the Federal Circuit cautioned that while “nothing in FASA’s language automatically exempts actions that are temporally disconnected from the issuance of a task order[,] . . . a temporal disconnect may, in some circumstances, help to support the non-application of the FASA bar . . . .” 766 F.3d at 1413 (emphases added). In this case, as previously explained, Plaintiffs’ respective complaints may be read as contending that the agency’s failure to follow the Rule of Two (1) renders the solicitation cancellations arbitrary and capricious, and/or (2) independently violated FAR 19.502-2(b). Either way, for the reasons explained further below, the Rule of Two issue in the instant case is both conceptually and sufficiently “temporally disconnected from the issuance of a task order” to avoid it. Id. Plaintiffs essentially contend that an agency must apply the Rule of Two before an agency can even identify the possible universe of procurement vehicles which may be utilized for a particular scope of work. TTGI Am. Compl. at ¶ 36; PTP Compl. at ¶¶ 95, 111; TTGI MJAR at 26; PTP MJAR at 25–27. The Court agrees. Where an agency refuses to perform the Rule of Two analysis or otherwise disregards the results of such an analysis, that does not mean an agency necessarily will select an unrestricted vehicle or a task order vehicle. Indeed, the agency still may solicit the work utilizing procurement vehicles that have nothing to do with task orders (e.g., a standalone solicitation contemplating a single awardee but that is not set-aside for small business). In other words, there is no necessary connection between the Rule of Two analysis (or the failure to conduct such an analysis) and the issuance of a task order. Proxtronics Dosimetry, LLC v. United States, 128 Fed. Cl. 656 , 680 (2016) (“Necessarily, the decision to set aside an acquisition for a small business must be made prior to issuing the solicitation.” (citing FAR 19.508)). In contrast, in SRA Int'l, the agency simply could not proceed with a task order that the agency already had awarded, absent the challenged conflict waiver. The conflict waiver thus was necessary to the actual task order award (and the plaintiff had challenged a specific task order award). To further illustrate the distinction, consider a hypothetical case in which an agency purports to have applied the Rule of Two. As a result of the agency’s analysis, the agency determines that a set-aside is not required. Instead of immediately proceeding with a particular procurement strategy, however, the agency issues a request for information (“RFI”), in which the agency indicates that it is considering various unrestricted vehicles with no set-aside component: e.g., a stand-alone, new 37 solicitation with a single-awardee; an existing MAIDIQ; or the issuance of a new MAIDIQ. At that stage, following the issuance of the RFI, may a dissatisfied small business file suit in the Court of Federal Claims, pursuant to 28 U.S.C. §1491 (b)(1), challenging the agency’s decision not to set-aside the procurement? In the Court’s view, the answer to that question is a straightforward “yes” based upon a simple syllogism: (1) the RFI is part of the procurement process; (2) the RFI includes the agency’s decision not to set-aside the procurement; (3) a small business protestor’s allegation that the agency’s decision violates the Rule of Two constitutes an alleged “violation of statute or regulation in connection with a procurement or a proposed procurement”; and, thus, (4) the allegation is unquestionably within this Court’s jurisdiction. Distributed Sols., Inc., 539 F.3d at 1346 (“The statute explicitly contemplates the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in the Court of Federal Claims over ‘proposed procurements.’ A proposed procurement, like a procurement, begins with the process for determining a need for property or services.”). In the hypothetical case outlined above, the FASA task order protest bar clearly would not apply because, at a minimum, 47 the agency has not yet selected any contract vehicle (task order or otherwise). Moreover, if the small business were to file suit in this Court, the government could not subsequently divest this Court of jurisdiction merely by selecting an IDIQ vehicle. See GAF Bldg. Material Corp. v. Elk Corp., 90 F.3d 479 , 483 (Fed. Cir. 1996) (“[J]urisdiction must be determined on the facts existing at the time the complaint under consideration was filed.”) Nor, for that matter, should jurisdiction depend upon whether the small business beats the agency to the punch, and files suit to challenge the set-aside analysis, or whether the agency quickly makes a decision to utilize a task order vehicle prior to the filing of a suit. In both cases, the agency’s Rule of Two decision simply has no necessary connection to the selection of the particular vehicle. 48 See McAfee, Inc. v. United States, 111 Fed. Cl. 696 , 709–10 (2013) (holding that 47Pursuant to the Court’s interpretation of the FASA task order protest bar, supra, an objection to an agency’s selection of a task order vehicle is not, in any event, a “protest . . . in connection with the issuance or proposed issuance of a task . . . order[.]” 41 U.S.C. § 4106 (f)(1). The Court’s point here is that, even if our statutory interpretation were rejected, SRA Int’l is consistent with “the non-application of the FASA bar” in this case. 766 F.3d at 1413. 48Again, this assumes, arguendo, that the challenge to an agency’s selection of a task order vehicle itself would be within the ambit of the FASA task order protest bar, a proposition with which the Court disagrees. In any event, the Court’s view of the correct result in the hypothetical fits well with the Court’s interpretation of the FASA statutory language. In particular, a challenge to an agency’s failure to comply with the Rule of Two is not a “protest” as that term is defined in CICA. In this case, for example, it is a challenge neither to a particular solicitation nor to the merits of an award or to a proposed award of a task order. Similarly, in the Court’s hypothetical case involving the RFI, the small business would be challenging the agency’s decision not to set-aside the procurement, but would not be objecting to the agency’s decision to proceed with any particular procurement strategy because none has been selected. 38 “McAfee’s complaint falls under the [final] prong of Section 1491(b)(1), concerning an alleged ‘violation of statute or regulation in connection with a procurement or a proposed procurement’” and that “the protested decision is not directly connected to the award of any particular delivery order”); BayFirst Sols., LLC v. United States, 104 Fed. Cl. 493 , 499, 507–08 (2012) (holding that the FASA jurisdictional bar did not apply to the agency’s decision to cancel a solicitation, and that although the cancellation of the solicitation and issuance of the task order were temporally connected, the cancellation of the solicitation can be viewed as “a discrete procurement decision and thus could have been the subject of a separate protest”); cf. MORI Assocs., Inc. v. United States, 113 Fed. Cl. 33 , 38 (2013) (citing the Court’s earlier decision in MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503 , 533 (2011), for the proposition that “[d]iscrete, preliminary matters that may not necessarily lead to the proposed issuance of a task order may still be protested” such as “a ‘Rule of Two’ determination under 48 C.F.R. § 19.502 –2(b)” which is “required prior to the selection of a particular procurement vehicle, since whether the work must be set aside for small business must be known before an agency can select the means of fulfilling its needs”). 49 The actual Plaintiffs in this case are similarly situated to the hypothetical small business; their complaint may be read as challenging the agency’s solicitation cancellation decision and its refusal to set aside the work at issue, but not the decision to use a task order contact per se. In contrast, in SRA Int'l, the protestor had filed a post-award bid protest, challenging the issuance of a task order on the grounds of a conflict (and an improper waiver) – that clearly is a “protest” that is “directly and causally connected” to the issuance of a task order in way that a challenge to a Rule of Two violation is not. 49 But cf. Insap Servs., Inc. v. United States, 145 Fed. Cl. 653 , 654 (2019). In that case, Judge Wheeler rejected plaintiff’s argument “that this Court has jurisdiction to hear its protest because it is challenging the conditions antecedent to the solicitation, not the solicitation itself” and because “the decision to bundle [certain] services under a single solicitation is not connected to the solicitation, as it occurs ‘prior to’ and is not ‘mutually dependent on’ the issuance of the task order.” Id. Insap is distinguishable insofar as it involved a challenge to a bundling decision where a “Request for Task Order Proposals” already had been issued at the time of the protest. Id. In any event, the undersigned admittedly does not share Insap’s capacious view of the Federal Circuit’s decision in SRA Int’l, particularly to the extent Insap relied upon “[p]olicy considerations[,]” including the assessment that this Court should not “allow a protest to be heard at this Court after already being heard by GAO” as that “would burden the Government and negate Congress's intent to streamline.” Id. at 655 . Although Insap concluded that “[i]t would defeat Congress’s purpose if would-be protestors could make an end run around the FASA’s plain meaning by claiming that they are challenging the conditions of the solicitation, but not the task order itself[,]” id., this Court disagrees with such an interpretation of the FASA task order protest bar for the reasons explained herein. See BayFirst Sols., 104 Fed. Cl. at 507–08 (“The cancellation of the Solicitation may be viewed as a discrete procurement decision and one which could have been the subject of a separate protest. This approach is not unlike the one employed by the court in MORI, where a preliminary procurement decision, one which should have occurred before any contract vehicle was selected, was held to be subject to challenge and 39 Finally, at least one GAO decision supports the Court’s view of the jurisdictional question and the FASA task order protest bar. In LBM, Inc., the protestor challenged the Army’s decision to acquire certain services under the Logistical Joint Administrative Management Support Services (“LOGJAMSS”) contracts, when those services previously had been provided exclusively by small businesses. B-290682, 2002 CPD ¶ 157, 2002 WL 31086989 , *1. After the Army decided to transfer the services at issue to the LOGJAMSS contracts, the agency solicited proposals from LOGJAMSS contractors, but “did not coordinate with, or notify, the SBA of its intent to withdraw . . . services from exclusive small business competition and to transfer these services to LOGJAMSS contracts.” Id. at *3 . The GAO sustained the protest. Id. at *8 . In so doing, the GAO rejected the Army’s contention that the FASA task order protest bar divested the GAO of jurisdiction because the protestor challenged the proposed issuance of a task order under the LOGJAMSS contract; the GAO explained as follows: LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS. . . . This is a challenge to the terms of the underlying LOGJAMSS solicitation and is within our bid protest jurisdiction. Id. at *3 . 50 The GAO further held that the FASA “was not intended to, and does not, preclude protests that timely challenge the transfer and inclusion of work in ID/IQ contracts without complying with applicable laws or regulations,” id., and explained that Small Business Act requirements “were applicable to acquisitions prior to the enactment of [the] FASA, and nothing in that statute authorizes the transfer of acquisitions to ID/IQ contracts in violation of those laws and regulations.” Id. at *4 . The GAO indicated that the “Rule of Two” applied “to ‘any acquisition over $100,000,’” id. at *7 (quoting 48 C.F.R. § 19.502 –2(b)), and therefore determined that the Army was required to comply with FAR § 19.502–2(b) and conduct the appropriate “Rule of Two” analysis. Id. (“Whatever the outcome of the FAR § 19.502–2(b) analysis, ... the agency’s intent to use a task order under LOGJAMSS as the contract vehicle did not eliminate the legal requirement that the agency undertake that analysis.”). not barred by § 4106(f), even though the agency eventually issued a task order to fulfill its needs. 102 Fed. Cl. at 533–34.”). And, again, in any event, Plaintiffs in this case do not challenge the conditions of any solicitation. 50To be clear, although this Court agrees with the GAO’s view of the scope of task order bar as applied (or, more accurately, not applied) in LBM, the Court does not concur with the GAO’s view that a challenge to the agency’s selection of an IDIQ task order contract vehicle constitutes a solicitation protest. 40 Accordingly, in LBM, Inc., the GAO declined to apply the FASA task order protest bar even where the protestor directly challenged the agency’s selection of a task order vehicle and after the agency had issued a task order solicitation under that vehicle – the latter which, the Court again notes, had not occurred in this case at the time Plaintiffs filed their respective complaints. Apparently, then, the GAO’s view of the FASA task order protest bar is consistent with this Court’s reasoning, supra, that even an objection to a solicitation – a “protest” within the GAO’s jurisdiction – does not equate to a protest “in connection with” the proposed issuance of a task order. See Glob. Computer Enter., Inc., 88 Fed. Cl. at 448 (“Although the protest in LBM, Inc. concerned the underlying contracts . . ., the court nevertheless finds it instructive” because the protestor “did not challenge the issuance or proposed issuance of a task order under the existing contract.”). **** In sum, this Court holds that the FASA task order protest bar is not an obstacle to considering Plaintiffs’ challenge to the cancellation of a solicitation, even where this Court will have to reach the merits of their Rule of Two claims – whether because the rationality of the agency’s cancellation depends upon the availability of the preferred MAIDIQ vehicle, or because the alleged failure to conduct a Rule of Two analysis constitutes an independent basis for our jurisdiction pursuant to the last prong of § 1491(b)(1). III. Standards of Review A. Motion For Judgment On The Administrative Record Judgment on the Administrative Record, pursuant to RCFC 52.1, “is properly understood as intending to provide for an expedited trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346 , 1356 (Fed. Cir. 2005). The rule requires the Court “to make factual findings from the record evidence as if it were conducting a trial on the record.” Id. at 1354 . The Court asks whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record. See id. at 1356–57. B. Challenge To Cancellation Decision Generally, in an action brought pursuant to § 1491(b) of the Tucker Act, the Court reviews “the agency’s actions according to the standards set forth in the Administrative Procedure Act, 5 U.S.C. § 706 .” See Nat’l Gov't Servs., Inc. v. United States, 923 F.3d 977 , 981 (Fed. Cir. 2019) (citing 28 U.S.C. § 1491 (b)(4)). “In applying this standard of review, we determine whether ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of 41 regulation or procedure.’” Id. (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352 , 1358 (Fed. Cir. 2009)). “When a challenge is brought on the first ground, the test is ‘whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345 , 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 , 1332–33 (Fed. Cir. 2001)). “When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Impresa Construzioni, 238 F.3d at 1333 . To establish prejudice, a protestor must further demonstrate “that there was a ‘substantial chance’ it would have received the contract award but for the . . . errors in the bid process.” Bannum, Inc., 404 F.3d at 1357 (quoting Infro. Tech. & Applications Corp. v. United States, 316 F.3d 1312 , 1319 (Fed. Cir. 2003)); see Kiewit Infrastructure West Co. v. United States, 147 Fed. Cl. 700 , 707 (2020) (requiring a showing of prejudice in challenge to cancellation decision). In some cases, a statute or regulation may provide a substantive yardstick against which an agency’s exercise of discretion may be measured or impose a related procedural requirement. For example, as noted above, in the context of a sealed bid procurement, FAR 14.404-1 (“Cancellation of invitations after opening”) provides that “after bids have been opened, award must be made to that responsible bidder who submitted the lowest responsive bid, unless there is a compelling reason to reject all bids and cancel the invitation.” FAR 14.404-1(a)(1) (emphasis added). The FAR further defines what constitutes a “compelling reason” in FAR 14.404-1(c) and imposes a procedural requirement that “the agency head determine[] in writing” that such a reason exists. See, e.g., Veterans Contracting Grp., 920 F.3d at 806–07 (framing the issue as “whether the contracting officer’s decision to cancel the . . . solicitation lacked any rational basis,” citing Parcel 49C Ltd. P’ship, 31 F.3d 1153 –54, for the proposition that “the government cannot cancel a solicitation solely to satisfy an agency’s whim, we held that the cancellation was arbitrary and capricious[,]” and holding that the contracting officer “had a compelling reason to request cancellation”); Nat'l Forge Co. v. United States, 779 F.2d 665 , 668 (Fed. Cir. 1985) (explaining, in a pre-ADRA case, that “[t]he Claims Court correctly restricted its legal review to whether the contracting officer’s interpretation of, and later decision to cancel, the solicitation was unreasonable or an abuse of discretion under the requirements for cancellation set forth in 48 C.F.R. § 14.404 –1(c)”). Here, the 13F and JFOC Solicitations were issued as FAR Part 8, FSS procurements, which, as the government correctly notes, Def. Supp. Br. at 1–5, do not contain any provisions providing substantive considerations for, or constraints on, 42 cancellation decisions, similar to those contained in FAR 14.404-1 regarding sealed bidding. While the government in its initial briefs conceded that the agency’s cancellation decision nevertheless should be reviewed pursuant to the standard APA rational basis test, Def. MJAR at 15–17, 25; Def. Resp. at 1, 5, the government takes the position in its supplemental brief that the agency action should only be reviewed for “bad faith” because the procurements were solicited pursuant to FAR Part 8, which does not contain any substantive yardstick for limiting an agency decision to cancel a procurement. Def. Supp. Br. at 9-10. While a finding of bad faith may be sufficient, it is not necessary for the Court to determine that an agency decision is arbitrary and capricious. Croman Corp. v. United States, 724 F.3d 1357 , 1365 (Fed. Cir. 2013) (holding that “Croman has failed to show that the partial cancellation of the 2011 Solicitation was in bad faith or lacking in rational basis” (emphasis added)); see also Prineville Sawmill Co., 859 F.2d at 911 . In this case, even though FAR Part 8 does not specify substantive cancellation considerations, the Tucker Act, as amended by ADRA, “explicitly imports the APA standard of review into the Court of Federal Claims’ review of agency [procurement-related] decisions.” RAMCOR, 185 F.3d at 1290 ; cf. Strategic Tech. Inst., Inc., B-408005.2, 2013 CPD ¶ 229, 2013 WL 5754966 , *3 (Oct. 21, 2013) (“Under FAR subpart 8.4 procedures, an agency need only advance a reasonable basis to cancel a solicitation.”). 51 Moreover, as explained above, see supra Section II, FAR 1.602–2(b) permits this Court to conduct an APA review, while 10 U.S.C. § 2305 (b)(2) supplies a procedural requirement and a substantive yardstick, against which we may evaluate the agency’s decisions here. IV. The Court Grants Plaintiffs’ Motions For Judgment On The Administrative Record And Denies The Government’s Cross-Motion For Judgment On The Administrative Record Plaintiffs’ motions for judgment on the Administrative Record present two primary arguments: (1) the agency acted in an irrational and unreasonable manner when it cancelled the 13F and JFOC Solicitations due, in part, to the agency’s plan to resolicit the requirements under the TMS MAIDIQ; and (2) the agency violated the “Rule of Two” (see FAR 19.502-2(b)) and FAR 19.502-9 when cancelling the solicitations for the purpose of recompeting the requirements under the TMS MAIDIQ. See TTGI MJAR at 13–22; PTP MJAR at 21–24. The government, in its cross-motion for judgment on the Administrative Record, contends that (1) the agency decision to cancel the 13F 51TTGI counters that because the cancellation decision arose in the context of a corrective action, the Court should apply a more demanding review to determine whether the corrective action was “’rationally related’ to an alleged procurement defect.” TTGI MJAR at 13–14 (emphasis added) (citing Dell Fed Sys., L.P. v. United States, 906 F.3d 982 , 955 (Fed. Cir. 2018)). In either event, whether the cancellation decision is reviewed on its own merits or as part of a corrective action, this Court ultimately reviews the agency’s decision for “reasonableness.” 43 and JFOC Solicitations for the purpose of transferring the procurements to the TMS MAIDIQ was rational, and (2) the “Rule of Two” does not apply to the facts of this case. ECF No. 30 at 17. For the reasons explained below, the Court agrees with Plaintiffs. A. The Agency Failed To Provide A Reasonable Explanation For The Cancellation Of The Solicitations In determining whether the agency adequately explained the reasoning behind its decision to cancel the 13F and JFOC Solicitations, we turn to the explanation provided by the agency at the time of its decision-making. See WHR Group, Inc. v. United States, 115 Fed. Cl. 386 , 399 (2014) (noting that the agency decision must be supported by the reasoned basis the agency actually provided). The Court notes that in this case there is no formal cancellation decision or memorandum regarding the 13F and JFOC Solicitations; rather, the only document that proports to show the agency’s rationale behind its decision to cancel those solicitations is CO Abraham’s August 10 MFR. ECF No. 25 at 617–20 (AR 613–16). In that four-page memorandum, CO Abraham describes the GSA MAS solicitations’ requirements and history at length, and outlined the features of the TMS MAIDIQ that the agency could use as a replacement. Id. In discussing the previous solicitations, the memo explained: After extensive use of the GSA OASIS MAIDIQ and GSA Multiple Award Schedule, it was determined the contract vehicles did not meet FCoE mission needs as world events unfolded. Events included emerging worldwide requirements due to short notice missions, [Training Resource Arbitration Panels] requirements, and lack of capability to provide the subject matter expertise. . . . As conveyed above, GSA OASIS MAIDIQs and Multiple Award Schedules did not provide the support required by FCoE to support emerging and known requirements.” Id. at 617–18 (AR 613–14) (emphasis added). But, concluding that the prior MAIDIQ and GSA MAS vehicles were not sufficient for the entire breadth of work contemplated by the new TMS MAIDIQ is not the same thing as concluding that the latter vehicle is somehow superior to the GSA MAS vehicles for the purposes of the statements of work at issue. In that regard, following additional historical details about the awarding of the GSA MAS, the August 10 MFR concluded with what is the only excerpt of any agency memoranda in the Administrative Record that reasonably might be characterized as representing the agency’s rationale for planning to cancel the 13F and JFOC Solicitations: 44 Based on the above information, I believe the Government’s best interest can be met by competing the JFO, 13F and KMS requirements under the MICC-Fort Eustis recently awarded TMS MAIDIQ. Both time and money can be saved by the Government in pursuit of this avenue. Time and money are expended on soliciting and awarding interim short term contract actions to support on-going requirements. Contract periods can be adjusted to support a Base and Four Option periods on most requirements thus saving manpower and costs tied to phase-in and certification of new contractor employees. Longer periods of performance also support the Government’s ability to successfully recruit and retain qualified personnel on existing requirements, thereby ensuring continuity of the training mission. Id. at 620 (AR 616) (emphasis added). In sum, the agency justified the cancellation on the basis of the assertion that by transitioning the procurements at issue to the TMS MAIDIQ, the agency would get a more flexible and longer term of performance while saving time and money. This explanation, however, without more information – and in the absence of any supporting citations in the underlying record – does not satisfy the agency’s burden. Although the Court is mindful that the APA rational basis standard of review is “highly deferential” and “the court should not substitute its judgment for that of the agency,” CW Government Travel, Inc. v. United States, 110 Fed. Cl. 462 , 479 (2013), that “does not mean that this [Court’s] review is ‘toothless.’” Orchard Hill Bldg. Co. v. United States Army Corps of Engineers, 893 F.3d 1017 , 1024 (7th Cir. 2018) (quoting Pioneer Trail Wind Farm, LLC v. FERC, 798 F.3d 603 , 608 (7th Cir. 2015)). More specifically, courts are authorized to set aside agency action where the record fails to articulate a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 , 43 (1983)); see Starry Assoc., Inc. v. United States, 127 Fed. Cl. 539 , 548–49 (2016) (“Where the agency fails to undertake a review or fails to document such review, we must conclude that it acted irrationally.”). Here, the August 10 MFR is bereft of any specific context or factual details that would support its generalized assertions and naked conclusions about the GSA MAS solicitations not meeting agency needs or how the agency would be better served by transferring the solicitations from the GSA MAS to the TMS MAIDIQ. See, e.g., Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656 , 663 (4th Cir. 2017) (“[T]he dispute here arises from a problem that has become all too common among administrative decisions challenged in court – a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math class: Show your work.”); Highway J Citizens Grp., U.A. v. Dep’t of Trans., 2010 WL 1170572 , *2 (E.D. Wis. Mar. 23, 2010) (“Defendants cannot simply list cursory comments or other information 45 and then assert a conclusion; rather, they must demonstrate the path of their reasoning from whatever data they rely on to their conclusion . . . .”). Take, for example, the August 10 MFR’s first assertion as to the inefficiency of the GSA MAS to meet the agency’s needs “as world events unfolded.” ECF No. 25 at 617 (AR 613). While this conceivably could be a legitimate concern with the GSA MAS solicitations justifying cancellation, 52 without factual support for this contention, this Court cannot evaluate whether there is a rational basis for the assertion. See Kirwa v. Dep’t of Defense, 285 F. Supp. 3d 257 , 270 (D.D.C. 2018) (“APA review may be limited, but it involves more than a court rubberstamping action based on bare declarations from the agency amounting to “trust us, we had good . . . reasons for what we did.”). Again, even if the GSA MAS generally is insufficient to meet the agency’s needs in some long-term, strategic sense – as compared to the breadth of the new TMS MAIDIQ – that says nothing about the suitability of the GSA MAS to meet the agency’s current needs with respect to the 13F and JFOC procurements at issue. Moreover, consider the August 10 MFR’s naked assertion that “time and money can be saved by the Government in pursuit of this avenue.” ECF No. 25 at 620 (AR 616). If the Court were to accept this rationale at face value without asking for supporting details, the government could always include this attractive catch-all at the end of its decision document to justify almost any solicitation cancellation. Meaningful judicial review requires more than just accepting such a bald assertion. See Bagdonas v. Dep’t of Treasury, 93 F.3d 422 , 426 (7th Cir. 1996) (“The statement of reason need not include detailed findings of fact but must inform the court and the petitioner of the grounds of decision and the essential facts upon which the administrative decision was based.” (emphasis added)). In this case, the agency does not explain how the TMS MAIDIQ will save the agency “time and money” in comparison with finalizing procurements that were all but completed, nor is there any support in the record for that conclusion beyond the statement itself. The government, in its cross-motion for judgment on the Administrative Record, argues that the “supporting materials to the August 10 memorandum documented multiple benefits that the TMS MAIDIQ was designed to provide” and “the fact that the current acquisition strategy did not provide those benefits.” Def. MJAR at 12, 22. But those putative “benefits” reflect the long-term strategic advantages of the TMS MAIDIQ overall; the government cannot simply point to its general justification for that MAIDIQ, without more, to support the proposition that it will better meet the agency’s needs with respect to the precise statements of work at issue. Moreover, although the agency asserts that the TMS MAIDIQ will provide a longer period of performance than 52See, e.g., Tien Walker, B-414623.2, 2017 CPD ¶ 218, 2017 WL 2954445 , *2 (July 10, 2017) (“A reasonable basis to cancel exists when, for example, an agency concludes that a solicitation does not accurately reflect its needs.”) 46 the present “short term contract actions,” ECF No. 25 at 620 (AR 616), nowhere does the agency address the possibility of extending the duration of those contracts beyond the originally planned 12-month period of performance or why that would be more difficult than utilizing the TMS MAIDIQ. The government also points the Court to the following examples of the agency’s “key finding[s]”: • The agency “necessitates the use of an IDIQ to meet contract execution in a timely manner due to MICC staffing shortfalls.” • “Using other contract mechanism as opposed to a FCoE IDIQ will add a minimum of 120 days to the procurement timeline, potentially eliminate the ability for an expedited contract action for unforecasted organizational needs, and put existing requirements at increased risk for gaps on contracted services.” • “Costs for the use of non-IDIQ contract mechanism will increase significantly.” • “FCoE’s ability to support short term, emerging training requirements to meet Army demands will be greatly reduced.” • “FCoE’s ability to rapidly provide training, experimentation, analytic, and simulation support will be reduced. Fires-led experiments and the TRADOC Campaign of Learning will be interrupted and/or degraded.” Id. at 12–13, 22–23 (quoting ECF No. 25 at 675 (AR 671)). These generalized conclusions, however, do little to provide actual factual support for the agency’s cancellation decisions at issue here. Rather than engaging in a factual contrast between the cancelled procurements at issue and the TMS MAIDIQ, the supporting material’s conclusory assertions fail to provide a meaningful factual roadmap for the agency’s decision. 53 For example, although the Court has no basis to 53The government also asserts that “[a]n additional benefit of the TMS MAIDIQ is that the issues that continued to snag the GSA MAS solicitations and send them into bid protests are eliminated as an issue. . . . This ensured that the TMS MAIDIQ was not subject to a protest and automatic stay at GAO . . . and it would also provide some comfort that a protest direct to this Court was not likely . . . .” Def. MJAR at 24 (emphasis added, internal citations omitted). Rather than 47 question the agency’s conclusion that it generally requires a MAIDIQ due to staffing shortfalls, there is zero record evidence indicating that any such shortfall would impact the agency’s proceeding with the 13F and JFOC procurements or that moving such work to the TMS MAIDIQ would improve any putative staffing difficulties for the work at issue. The timeline comparison also is not specific to the already-completed (albeit protested) 13F and JFOC procurements; nowhere in the Administrative Record does it appear that the agency compared the timeline of continuing with those procurements as opposed to starting from scratch under the MAIDIQ. The agency’s concern about increased costs for a non-MAIDIQ procurement seems plausible, in general, but CO Abraham never compares the cost of proceeding with the cancelled procurements, as opposed to starting a new task order procurement under the preferred TMS MAIDIQ. And the final two conclusions above regarding the ability of the FCoE to support Army needs has nothing whatsoever to do with the 13F and JFOC procurements. To be clear, CO Abraham does not conclude in any way that the proceeding with those procurements would jeopardize the FCoE’s mission or abilities. Rather, the point is that the materials upon which she relies merely demonstrates the agency’s general interest in utilizing the TMS MAIDIQ. Although there is no universal test for what constitutes an agency’s failure to provide a sufficient justification for its actions and no one factor is dispositive, see Sierra Nevada v. United States, 107 Fed Cl. 735, 751 (2012), a cursory review of relevant caselaw from this Court is illustrative. Compare FMS Investment Corp. v. United States, 139 Fed. Cl. 221 , 223–25 (2018) (finding that the Department of Education acted unreasonably when it cancelled solicitation for student loan debt collection services because, in part, the cancellation notice relied on a brief Administrative Record and failed to contain detailed information to support important assertions made in that notice), and Applied Business Mgmt. Solutions v. United States, 117 Fed Cl. 589, 605–06 (2014) (holding, in part, that GSA’s conclusory assertions about “budgetary concerns” and “need to reduce personnel” failed to provide a rational basis for cancellation decision), with Inverness Technologies, Inc. v. United States, 141 Fed. Cl. 243 , 248, 251–53 (2019) (emphasizing that Department of Labor’s cancellation of solicitation for veterans job transition program “provid[ing] some comfort,” this Court is quite troubled by the government’s assertion that the agency’s decision-making was influenced by a desire to avoid bid protest litigation. See ECF No. 37 at 22-24 (“Hearing Transcript”) (raising this concern with the government); see also California Indus. Facilities Resources, Inc. v. United States, 100 Fed. Cl. 404 , 412 (2011) (holding that government conduct taken to “avoid possible bid protests was arbitrary and capricious”). Notwithstanding the government’s troubling assertion, it is a “foundational principle of administrative law” that this Court’s role in this context is limited to reviewing “the grounds that the agency invoked when it took the action.” Oracle America, Inc. v. United States, 975 F.3d 1279 , 1290 (Fed. Cir. 2020) (quoting Michigan v. EPA, 576 U.S. 743 , 758 (2015)). Here, the agency in its August 10 MFR does not mention this rationale. Rather, the first mention of this rationale is in the government’s brief in this case. Def. MJAR at 24. Accordingly, this rationale does not play a role in this Court’s determination that the Army acted unreasonably. 48 services was reasonable because the agency’s memorandum was “comprehensive, well- considered and logical” and “outlined, in chart form, key differences between the solicitation and the new requirements”). Some decisions from the GAO also have found that an agency acts unreasonably when it fails to provide sufficient documentation of its decision-making. See, e.g., Walker Development & Trading Grp., Inc., B-413924, 2017 CPD ¶ 21, 2017 WL 134346 , *4–*5 (Jan. 12, 2017) (“We find that the agency failed to produce agency report that coherently addressed the agency’s rationale for the cancellation of the solicitation.”); Pro-Fab, Inc., B-243607, 91-2 CPD ¶ 128, 1991 WL 162538 , *3 (Aug. 5, 1991) (“The agency’s speculation that increased competition or cost savings will result from [the cancellation and] solicitation of the identical requirements is not supported by the record[.]”). In sum, this Court concludes that although it is not irrational per se for an agency to prefer one contractual vehicle over another or even for the TMS MAIDIQ to be more suitable for the Army’s needs in this case, the government here did not provide a sufficiently documented rationale or meaningful analysis for cancelling the original 13F and JFOC Solicitations for the purpose of transitioning the work to the TMS MAIDIQ. B. The Agency’s Cancellation Decision Violates The Law Plaintiffs argue that the TMS MAIDIQ cannot be leveraged for the work at issue because doing so would violate the Rule of Two. As explained supra, see Section II.B., whether we view Plaintiffs’ argument as merely addressing the rationality of the cancellation decision or whether we view the agency’s cancellation as representing an independent decision with respect to its putative set-aside obligations (as the government appears to do), the result is the same: the central rationale for the agency’s cancellation of the solicitations at issue depends upon whether the agency may leverage the TMS MAIDIQ to meet the agency’s needs. In either case, the Court agrees with Plaintiffs that the agency’s failure to conduct a Rule of Two analysis vitiates the cancellation decision. 1. The Agency Improperly Failed To Comply With The Rule Of Two, Which Applies To The Work At Issue The Rule of Two – as the Court already has explained – is straightforward, and provides that “[t]he contracting officer shall set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that – (1) Offers will be obtained from at least two responsible small business concerns; and (2) Award will be made at fair market prices.” FAR 19.502-2(b) (“Total small business set-asides”) (emphasis added). The government’s 49 decision to procure the services at issue is itself part of an acquisition 54 – the cancelled solicitations constitute part of that acquisition – and the agency’s continued decision to procure those services is part of an acquisition (whether viewed as a continuation of the same acquisition, under a newly proposed strategy, or whether viewed as an entirely new acquisition). 55 Nor does the government dispute that, in light of the acquisition history thus far, there are at least two responsible business concerns capable of performing the work at fair market prices, 56 or that, in general, the Rule of Two is mandatory. Mgmt. & Training Corp. v. United States, 115 Fed. Cl. 26 , 44 n.13 (2014) (“this 54 FAR 2.101 (“Acquisition begins at the point when agency needs are established”). 55Although the Court hesitates to further belabor the jurisdictional question, the Federal Circuit’s decision in Distributed Solutions is worth another brief discussion here. In that case, this Court had granted the government’s motion to dismiss, but the Federal Circuit reversed, concluding that two agencies had “initiated ‘the process for determining a need,’” Distributed Solutions, 539 F.3d at 1346 , in that an RFI “was a market survey to gather data to determine an acquisition strategy, and the beginning of a procurement process, within the procurement protest jurisdiction granted to the Court of Federal Claims by the Tucker Act.” Distributed Sols., Inc. v. United States, 104 Fed. Cl. 368 , 375 (2012) (on remand). The Federal Circuit reasoned that the plaintiffs in that case, “as potential competitors under a direct procurement,” id., with the government – an acquisition strategy the agencies sought to avoid – were objecting to “alleged violation[s] of statute[s] or regulation[s] in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491 (b)(1) (emphasis added). The Federal Circuit previously had concluded that the phrase “‘in connection with a procurement or a proposed procurement’” is “‘very sweeping in scope.’” 539 F.3d at 1345 (quoting RAMCOR, 185 F.3d at 1289 ). Because a “procurement includes all stages of the process of acquiring property or services, beginning with the process of determining a need for property or services and ending with contract completion and closeout,” id. (emphasis in original) (internal quotation marks omitted), the Federal Circuit concluded that “plaintiffs’ grievances [regarding the RFI and planned acquisition strategy] fell in that continuum.” 104 Fed. Cl. at 375; see 41 U.S.C. § 111 (defining “procurement”). Accordingly, “[w]hile the government ultimately decided not to procure software itself from the vendors, but rather to add that work to [an] existing contract …, the statute does not require an actual procurement.” 539 F.3d at 1346 . Instead, “[t]he statute explicitly contemplates the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in the Court of Federal Claims over ‘proposed procurements.’” Id. Summarized, “[p]laintiffs possessed jurisdictional standing because they: (1) were prospective bidders; (2) had a direct and significant economic interest in the proposed direct procurement that was eliminated; and (3) alleged a number of statutory and regulatory violations in the decision to forego a direct procurement.” 104 Fed. Cl. at 375. Plaintiffs in this case are similarly situated to those in Distributed Solutions, and the central allegations here are similar to those at issue in that case, as well. 56PTP Resp. at 9 (“The Agency does not dispute that multiple small businesses (SDVOSBs) stand ready and willing to submit offers to perform the 13F and JFOC requirements at fair market prices.”). 50 court has consistently held that the Rule of Two is mandatory” (citing cases)); Analytical Graphics, Inc. v. United States, 135 Fed. Cl. 378 , 411 (2017). 57 Notably, in Analytical Graphics, the government argued at length that while “[t]here are many competition statutes and regulations, . . . they are structured in such a way to give priority to the application of the small business set-aside[,]” and thus “[o]ther competition regulations may be applied to the subsequent competition between small businesses.” Defendant’s Cross-Motion for Judgment on the Administrative Record, 2017 WL 2722839 (March 7, 2017) (filed in Case No. 116CV01453, Analytical Graphics, Inc. v. United States, 135 Fed. Cl. 378 (2017)). Indeed, the government in that case argued that “[t]he expedited procedures associated with a Rule of Two determination further confirm the intention to make the set-aside determination at the very start of procurement decision-making.” Id. (explaining that “the mandatory term ‘shall’ . . . requires the Government to set-aside acquisitions when the Rule of Two is satisfied” and noting that Supreme Court’s decision in Kingdomware Technologies, 136 S. Ct. at 1976–77 (interpreting the term “shall” in the context of a different small business preference)). 58 This Court agrees with the government’s position in Analytical Graphics, and the government does not really make an effort to contend otherwise here. Rather the government argues only that “the 2010 statutory and regulatory changes . . . are fatal to [Plaintiffs’] attempt to challenge the ability to issue task orders under the TMS MAIDIQ.”59 Def. MJAR at 26. According to the government, pursuant to those changes 57In Analytical Graphics, 135 Fed. Cl. at 411, the Court quoted Proxtronics Dosimetry, LLC v. United States, 128 Fed. Cl. 656 , 680 (2016) (quoting 48 C.F.R. § 19.501 (c)): “As noted by another Judge of the United States Court of Federal Claims, ‘[C]ontracting officers are required to ‘review acquisitions to determine if they can be set aside for small business,’ and must ‘perform market research’ before concluding that an acquisition should not be set aside for a small business.’” See FAR 19.203(e) (“Small business set-asides have priority over acquisitions using full and open competition.”). 58In Kingdomware, the Supreme Court addressed a similar Rule of Two contained in The Veterans Benefits, Health Care, and Information Technology Act of 2006, requiring the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses. 38 U.S.C. § 8127 . In finalizing the regulations to implement the Act, the Department indicated in a preamble that § 8127’s procedures “do not apply to [Federal Supply Schedule] task or delivery orders.” VA Acquisition Regulation, 74 Fed. Reg. 64624 (Dec. 8, 2009) (quoted in Kingdomware, 136 S. Ct. at 1974 ). Nevertheless, because of the mandatory nature of the statute, the Court rejected the government’s argument that “the mandatory provision does not apply to ‘orders’ under ‘pre-existing FSS contracts.’” 136 S. Ct. at 1978 (quoting the government’s brief). The government also challenges our jurisdiction to decide any Rule of Two issue here, see Def. 59 MJAR at 26, but the Court rejected that argument, supra, see Section II.B. 51 “as implemented in the FAR and the Small Business Act, contracting officers have the discretion to make use of a multi-award contract without first conducting a rule of two analysis to determine whether the task order should be set aside for small business.” Id. at 28; see id. at 26–30 (relying upon 15 U.S.C. § 644 (r), FAR 19.502-4, and FAR 16.505(b)(2)(i)(F)). The Court rejects the government’s interpretation of the provisions upon which it relies. First, as PTP correctly notes, “[t]he Rule of Two unambiguously applies to ‘any’ ‘acquisition,’ FAR 19.502-2, without any loophole for MAIDIQ task orders . . . .” PTP Resp. at 9. Second, the government misreads the statutory and FAR provisions. We begin, once again, with the statutory language. Section 644(r) of Tile 15 of the United States Code mandates the issuance of regulations to provide agencies “at their discretion” to take several actions. The government focuses on the word “discretion,” but then conspicuously only summarizes the remaining statutory language. Def. MJAR at 26–27 (ECF No. 30 at 30–31). The actual statutory words, however, demonstrate the government’s summary is wrong; we must be precise about what “discretion” agencies gained. Pursuant to 15 U.S.C. § 644 (r), agencies may: (1) set aside part or parts of a multiple award contract for small business concerns . . . ; (2) notwithstanding the fair opportunity requirements under section 2304c(b) of title 10 and section 4106(c) of title 41, set aside orders placed against multiple award contracts for small business concerns. . .; and (3) reserve 1 or more contract awards for small business concerns under full and open multiple award procurements . . . . 15 U.S.C. § 644 (r)(1) – (3). This language is straightforward. The first subparagraph means that an agency, when awarding a multiple award contract, may designate particular portions of the scope of work to be performed only by small business. The second paragraph means that even though, normally, every multiple award contract holder must be permitted – pursuant to “fair opportunity requirements” – to compete for every task order, agencies may set aside particular task orders for which only small business multiple award contract holders may compete. And the final paragraph means that, of the multiple awards to be made in a multiple award contract procurement, some contact award slots may be set aside for small business concerns, even though the overall procurement is generally full and open. FAR 19.502-4 supports our reading given that it covers “Partial set-asides of multiple-award contracts” and 52 specifically provides that “contracting officers may, at their discretion, set aside a portion or portions of a multiple-award contract” under certain circumstances. 60 Accordingly, that statute only tells an agency how a multiple award contract may be structured or how a task order competition under a multiple award contract may be competed. In contrast, none of those provisions answers the question, one way or the other, of whether an agency – when deciding the foundational, prerequisite question of what type of procurement vehicle to use for a planned acquisition (i.e., to satisfy a particular agency need) – may avoid the Rule of Two merely because a MAIDIQ already has been awarded and the agency prefers to use that vehicle. Again, the fact that an agency has the discretion to partially set-aside “a portion” of a multiple award contract for small business does not lead to the ineluctable conclusion that having decided not to engage in a partial set-aside, an agency may thereafter dispense with the Rule of Two. The latter does not follow from the former. To the contrary, the grant of discretion applies even where the Rule of Two does not require a set-aside, but the grant of discretion does not somehow, by negative implication, eliminate the Rule of Two requirement. In sum, what the government really seems to be arguing is that the agency, having awarded its preferred TMS MAIDIQ without any set-aside component, is now exempt from applying the Rule of Two to any proposed procurement (or acquisition) of services that might be obtained using the TMS MAIDIQ. Put yet differently, the government asserts that, having exercised its discretion not to set-aside any portion of the TMS MAIDIQ scope or any of the TMS MAIDIQ‘s contract awards for small business, the agency can utilize the TMS MAIDIQ for any acquisition – and avoid the 60Further support for this understanding can be found in a Proposed Rule notice issued by the SBA: [T]he Jobs Act amended the Small Business Act (Act) to permit Federal agencies to: • Set-aside part or parts of multiple award contracts for small business concerns . . . ; • Set-aside orders placed against multiple award contract (notwithstanding the fair opportunity requirements set forth in 10 U.S.C. 2304c and 41 U.S.C. 253j) for small business concerns . . .; and • Reserve one or more contract awards for small business concerns under full and open competition, where the agency intends to make multiple awards . . . . Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation, 77 Fed. Reg. 29130 - 01 (May 16, 2012). 53 Rule of Two – so long as the contemplated scope of work is within the TMS MAIDIQ’s scope. No statutory or regulatory language, however, supports such a sweeping inference. PTP, for its part, argues that “19.502-4 plainly does not relieve agencies from applying the Rule of Two, as the first of five conditions stated in FAR 19.502-4 is that: ‘Market research indicates that a total set-aside is not appropriate [pursuant to the Rule of Two].’” PTP Resp. at 10 (quoting FAR 19.502-4(1)). In that regard, PTP asserts that, pursuant to that subparagraph’s “plain language, the discretion to set aside orders described does not apply unless the Agency has first engaged in market research and confirmed that the Rule of Two does not mandate total set aside.” PTP Resp. at 11 (underline in original, bold text added). On that point, however, the Court parts ways with PTP, as well. Although PTP reads FAR 19.502-4(1) as applying to “orders,” the regulation – as demonstrated above – only addresses how and when an agency may “set aside a portion or portions of a multiple-award contract.” Thus, all FAR 19.502-4(1) provides is that, with respect to a scope of work, the agency cannot create a multiple award contract with only a partial set aside “portion” where that overall scope of work should be entirely set-aside (i.e., at “total set-aside”) pursuant to the Rule of Two. Again, however, that does not answer the question of whether the agency has any obligation to apply the Rule of Two to a particular scope of work that is covered by the scope of an already-issued multiple-award contract. 61 Nor does FAR 16.505(b)(2)(i)(F) advance the interpretive ball. That provision is simply one of many “[e]xceptions to the fair opportunity process” under an IDIQ contract. FAR 16.505(b)(2). In the absence of an applicable exception, “[t]he contracting officer shall give every awardee a fair opportunity to be considered for a delivery-order or task-order exceeding $3,500….” FAR 16.505(b)(2)(i) (emphasis added). In other words, “contracting officers may, at their discretion, set aside orders” under an IDIQ without violating the fair opportunity to compete requirement that normally applies. FAR 16.505(b)(2)(i)(F). But that, too, tells us nothing about whether a procuring agency 61FAR 19.504 covers “Orders under multiple-award contracts” but also does not deal with this case. Rather, FAR 19.504 presumes a multiple-award contract for which a partial set-aside of scope has been made already, or where small businesses hold an unrestricted contract slot. See FAR 19.504(a)(1) (“The contracting officer shall state in the solicitation and resulting contract whether order set-asides will be discretionary or mandatory when the conditions in 19.502-2 are met at the time of order set-aside . . . .”); see also FAR 19.504(b) (“Orders under partial set-aside contracts.”). If, under a particular multiple award contract, there is no small business contractor, the agency cannot set aside a task order. See PTP Resp. at 11 (“discretionary authority ‘obviously works only if there are small business awardees on the multiple award contract’” (quoting 78 Fed. Reg. 61123 (Oct. 2, 2013))). 54 must apply the Rule of Two to a scope of work before deciding whether to leverage an existing multiple award contract. In sum, none of the updates to the various small business set-aside provisions resolve the question before this Court: whether the agency must apply the Rule of Two to a discrete scope of work before deciding to use an existing MAIDIQ. This Court answers that question in the affirmative, once again following the same reasoning as the GAO in LBM, Inc. In that case, LBM, Inc., a small business concern, protested the Army’s decision to acquire transportation motor pool services under the LOGJAMSS contracts. LBM, Inc., B-290682 at *1. The GAO found that the “Army violated FAR § 19.502-2(b) when the agency did not consider continuing to acquire the Fort Polk motor pool services under a total small business set-aside, and . . . sustain[ed] LBM’s protest on this basis.”). Id. at *8. The GAO reasoned as follows: Acquisition is defined by the FAR to mean: the acquiring by contract with appropriated funds of supplies or services (including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated, and evaluated. Acquisition begins at the point when agency needs are established and includes the description of requirements to satisfy agency needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling agency needs by contract. FAR § 2.101. Under this broad definition, the agency’s purchasing the Fort Polk motor pool services by contract with appropriated funds is an “acquisition,” subject to FAR § 19.502-2(b), regardless of the fact that the agency anticipated acquiring those services through their transfer to the LOGJAMSS scope of work. . . . Had the agency complied with the requirements of FAR § 19.502-2(b), it might have concluded that the LOGJAMSS contracts were not the appropriate vehicle for this acquisition. Whatever the 55 outcome of the FAR § 19.502-2(b) analysis, though, the agency’s intent to use a task order under LOGJAMSS as the contract vehicle did not eliminate the legal requirement that the agency undertake that analysis. Id. at *7. Notably, the GAO reached that conclusion notwithstanding that there were “four small business concerns that [held] LOGJAMSS contracts.” Id. at *8 n.7. Indeed, the agency thereafter asked the GAO to modify its recommendation so that the agency could compete the work at issue amongst only the small business LOGJAMSS contractors. The GAO rejected the agency’s request, explaining: The Army apparently now concedes that under FAR § 19.502- 2(b) these services should be set aside for exclusive small business competition. As discussed above, any such competition must be a full and open competition among the eligible small businesses; there is no legal authority in such circumstances to limit this competition to certain designated small businesses. Dep’t of the Army--Request for Modification of Recommendation, B-290682.2, 2003 CPD ¶ 23, 2003 WL 103408 , *5–*6 (Jan. 9, 2003) (“[W]hat the Army has requested is not consistent with the statutory and regulatory scheme applicable to small business set-asides. The Army is essentially asking us to waive statutory requirements for what the Army views as strong policy reasons.”). 62 The bottom line from this Court’s perspective is that the cancelled solicitations at issue here are themselves acquisitions. The government’s identification of a need – of a scope of work – that it must procure itself begins an acquisition. Accordingly, we view 62Although the GAO “agreed to hear LBM’s contention despite the (then in-place) limitation on [GAO’s] jurisdiction to hear protests involving the placement of task and delivery orders” it did so because the GAO “treated LBM’s complaint as a timely solicitation challenge to the LOGJAMSS contract.” Delex Sys., Inc., B-400403, 2008 CPD ¶ 181, 2008 WL 4570635 , *7 (Oct. 8, 2008) (discussing LBM, B-290682 at *5–*6). In contrast, we view jurisdiction as proper in this case either as a challenge to the cancellation of a solicitation or as a violation of the Rule of Two; either way, this Court properly considers Plaintiffs’ claims under the last prong of 28 U.S.C. § 1491 , as explained supra, see Section II, and not as a challenge to the TMS MAIDIQ. Even if we were to consider Plaintiffs’ claims as a challenge to the TMS MAIDIQ, however, we would follow LBM’s approach to the task order protest bar, and not apply it here. LBM, B-290682 at *3 (“Contrary to the Army’s arguments, LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS, without regard to the Federal Acquisition Regulation (FAR) § 19.502-2(b) requirements pertaining to small business set-asides.”). 56 the identification of the continued need for 13F and JFOC requirements as either part of in-process acquisition or a new acquisition. Either way – no matter how the acquisition is viewed – PTP is correct that the “Rule of Two unambiguously applies” to “any acquisition,” FAR 19.502-2, “and just because the Agency may have satisfied its small business set aside obligations with respect to the TMS MAIDIQ acquisition in 2018 does not mean the Agency has also satisfied its set aside obligations with respect to the separate acquisitions of the 13F and JFOC requirements in 2020.” PTP Resp. at 12. Nothing in the updated small-business regulations provides otherwise. 63 Moreover, where the FAR intends to make the Rule of Two entirely inapplicable to the selection of a particular procurement vehicle, the FAR knows how to do so. See FAR 8.404(a) (“Use of Federal Supply Schedules”) (providing that FAR “Parts 13 (except 13.303-2(c)(3)), 14, 15, and 19 (except for the requirements at 19.102(b)(3) and 19.202-1(e)(1)(iii)) do not apply to BPAs or orders placed against Federal Supply Schedules contracts (but see 8.405-5)”). Accordingly, there is no requirement for an agency to apply the Rule of Two prior to an agency’s electing to use a FAR Part 8 FSS procurement, although the agency has the discretion to set-aside such procurements after deciding to utilize FAR Part 8, just as the Army did here with respect to the 13F and JFOC Solicitations. See FAR 8.405-5(a) (“Although the preference programs of part 19 are not mandatory in this subpart, in accordance with section 1331 of Public Law 111-240 (15 U.S.C. 644(r)) - (1) Ordering activity contracting officers may, at their discretion - (i) Set aside orders for any of the small business concerns identified in 19.000(a)(3)”). 63Later GAO decisions are not to the contrary. In Delex Systems, Inc., B–400403, the GAO merely “concluded that the set-aside provisions of FAR §19.502–2(b) applied to competitions for task and delivery orders issued under multiple-award contracts” (emphasis added); and, in Aldevra, the GAO explained that it had “subsequently found that [its] holding in Delex had been superseded by the passage of section 1331 of the Jobs Act.” Aldevra, B-411752, 2015 CPD ¶ 339, 2015 WL 6723876 n.4 (Oct. 16, 2015) (citing Edmond Scientific Co., B–410179, 2014 CPD ¶336, 2014 WL 6199127 , *8 n.10 (Nov. 12, 2014)). None of those decisions address the precise question at issue in this case. For example, in Edmond, the protestor simply “allege[d] that the agency was required to use the Rule of Two to decide whether to set aside [a] task order” – that is, “whether the Army abused its discretion in not reserving this task order for small business participation” under a particular multiple award contract. B–410179 at *3, *5. The GAO reached the same conclusion this Court did, above: the applicable FAR provisions “grant discretion to a contracting officer about whether to set aside for small business participation task orders placed under multiple-award contract.” Id. *5 (discussing FAR §§19.502–4, 16.505(b)(2)(i)(F)). In short, none of those GAO cases, except LBM, addresses the precise issue of an agency moving work currently performed by a small business to a MAIDIQ where the incumbents are ineligible to compete for an award. 57 In contrast, no provision similar to FAR 8.404(a) – exempting the selection of an FSS procurement from FAR Part 19 – exists in FAR part 16, generally, or FAR 16.5, in particular. 64 To the extent the agency argues that Plaintiffs’ claims with regard to the Rule of Two are nothing more than untimely challenges to the TMS MAIDIQ solicitation, the Court rejects that contention. The Court, instead, once again, agrees with PTP: “Had [Plaintiffs] protested the TMS MAIDIQ Solicitation on the basis that the Agency might one day issue task orders for 13F and JFOC work (not even specified in the TMS MAIDIQ), the Agency would have challenged the action as unripe (speculative as to whether the task orders would issue and whether the MAIDIQ would include small business contractors).” PTP Resp. at 14; see also LBM, B-290682 at *3–*5 (rejecting solicitation protest timeliness argument). Given that there is no evidence that the incumbent Plaintiffs had reason to believe that the work would be consolidated into the TMS MAIDIQ at the time the TMS MAIDIQ solicitation was issued, the Court will not apply waiver. Cf. Boeing Co. v. United States, 968 F.3d 1371 , 1382 (Fed. Cir. 2020). In sum, the government’s failure to apply the Rule of Two prior to deciding to cancel the solicitations at issue is fatal to that decision, whether because that failure undermines the central rationale of the cancellation decision or whether because the decision to move the work to the TMS MAIDIQ prior to conducting a Rule of Two analysis constitutes an independent violation of law. 2. Additional Violations Of Law The Court further concludes that the agency violated FAR 19.502-9 (“Withdrawing or modifying small business set-asides”). That provision permits a contracting officer to “withdraw [a] small business set-aside” only where “before award of a contract involving a total or partial small business set-aside, the contracting officer 64If FAR Subpart 16.5 contained a provision similar to FAR 8.404(a), perhaps this Court would reach a different conclusion. See FAR 16.000 (“This part describes types of contracts that may be used in acquisitions. It prescribes policies and procedures and provides guidance for selecting a contract type appropriate to the circumstances of the acquisition.”); FAR 16.5 (“Indefinite- Delivery Contracts”). Indeed, FAR 16.500(e) instructs its readers to “[s]ee subpart 19.5 for procedures [1] to set aside part or parts of multiple-award contracts for small businesses; [2] to reserve one or more awards for small business on multiple-award contracts; and [3] to set aside orders for small businesses under multiple-award contracts.” Notably, this Court interpreted the various provisions discussed above (e.g., 15 U.S.C. § 644 (r), FAR 19.502-4, FAR 19.504, and FAR 16.505(b)(2)(i)(F)) as governing precisely the actions specified in FAR 16.500(e). None of those procedures, however, answer the preliminary, more basic question of whether the Rule of Two must be applied in an acquisition before deciding whether a particular MAIDIQ may be used at all. 58 considers that award would be detrimental to the public interest (e.g., payment of more than a fair market price)[.]” FAR 19.502-9. 65 Where such a decision is made, “[t]he contracting officer shall initiate a withdrawal of an individual total or partial small business set-aside, by giving written notice to the agency small business specialist and the SBA PCR . . . stating the reasons.” Id. (emphasis added). 66 The Court holds that the agency’s decision to cancel the solicitations at issue and move the scopes of work to the TMS MAIDIQ constitutes a withdrawal of a set-aside. Nutech Laundry & Textile, Inc. v. United States, 56 Fed. Cl. 588 , 592 (2003); Aviation Enterprises, Inc. v. United States, 8 Cl. Ct. 1 , 27 (1985) (“After the solicitation was cancelled and the Air Force opted to utilize aircraft under an existing lease, such actions can arguably be considered a withdrawal of the unilateral set-aside.”). This unexplained violation of law independently justifies judgment for Plaintiffs. 67 Had the agency complied with the above-quoted FAR 19.502-9 and related procedures, the agency may not have cancelled the solicitations in favor of the TMS MAIDIQ. See, e.g., Gear Wizzard, Inc. v. United States, 99 Fed. Cl. 266 , 275 (2011) (noting the government’s explanation that “one of the reasons the contracting officer sought a new procurement was because of [the agency’s] failure to properly withdraw the set- aside requirement in accordance with FAR 19.506[,]” the prior version of FAR 19.502-9); id. at 276 (“According to defendant, ‘Based on these and other errors, the contracting officer determined it was necessary to start over with a new procurement.’”). 68 65Although this FAR provision applies “before award of a contract,” the Court finds it applicable, as the solicitation cancellations were, in fact, “before award of a contract.” Since the agency had cancelled the contracts, the 13F and JFOC Solicitations were pending at the time of cancellation, the agency was in receipt of responsive proposals, and the agency could have made a new award as part of its corrective action. The fact that one set of awards had been made and cancelled does not make this FAR requirement in applicable. In any event, the agency cannot be permitted to evade FAR 19.502-9 merely by awarding a contract, cancelling it, and then cancelling the solicitation. 66SBA PCR is short for Small Business Administration Procurement Center Representatives, “who are generally located at Federal agencies and buying activities which have major contracting programs” and “may review any acquisition to determine whether a set aside or sole-source award to a small business under one of SBA’s program is appropriate.” 13 C.F.R. § 125.2 ; see FAR 19.402. 67The government does not address this issue at all in its briefs. Any further response is therefore waived. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 , 1320 (Fed. Cir. 2006) (“’When a party includes no developed argumentation on a point . . . we treat the argument as waived under our sell established rule.’” (quoting Anderson v. City of Boston, 375 F.3d 71 , 91 (1st Cir. 2004))). 68In Aviation Enterprises, Inc., the plaintiff asserted that the government “failed to comply with the notice provisions of section 19.506[,]” the predecessor provision to FAR 19.502-9. 8 Cl. Ct. at 59 The Court also concludes that the agency violated 10 U.S.C. § 2305 (b)(2), which provides that “competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest.” Based on the Administrative Record, the Court was unable to find the involvement of the agency head in a cancellation decision, any delegation of authority by the head of agency to the contracting officer to make a cancellation decision, or that the contracting officer is delegated such authority under the applicable regulations governing a FAR Part 8 procurement seeking competitive proposals pursuant to an RFP. See AFARS Appendix GG (Delegations). Moreover, nowhere does the agency conclude that the cancellation of the 13F and JFOC Solicitations is in the “public interest.” 69 V. The Court Grants Plaintiffs’ Request For Injunctive Relief The Tucker Act vests this Court to award “any relief that the court considers proper, including . . . injunctive relief.” 28 U.S.C. § 1491 (b)(2); see RCFC 65. In evaluating whether permanent injunctive relief is warranted in a particular case, a court must consider (1) whether the plaintiff has succeeded on the merits; (2) whether the plaintiff has shown irreparable harm without the issuance of the injunction; (3) whether the balance of the harms favors the award of injunctive relief; and (4) whether the injunction serves the public interest. PGBA v. United States, 389 F.3d 1219 , 1228-29 (Fed. Cir. 2004); see Kiewit Infrastructure West Co., 147 Fed. Cl. at 712 (applying these four factors to an agency cancellation decision). As this Court explained at length above, Plaintiffs have succeeded on the merits. 29. Although just as here, “[i]t [was] uncontradicted that neither the contracting officer nor any [ ] procuring official ever notified a SBA representative of the decision to utilize existing” leases. Id. The Claims Court concluded that “[t]hough this failure to give notice may have been a minor technical violation of the regulation, assuming the regulation to be applicable, the court finds that such a minor violation does not warrant injunctive relief” because “[n]ot every violation of a regulation mandates a right to relief.” Id. (citing Keco Indus., Inc. v. United States, 203 Ct. Cl. 566 , 573–74, 492 F.2d 1200 , 1203–4 (Ct. Cl. 1974)). The undersigned respectively disagrees with Aviation Enterprises, particularly given its reliance on a pre-ADRA case. See Impresa Construzioni, 238 F.3d at 1333 (“cases such as Keco . . . are based on the implied contract theory of recovery and do not govern APA review of contracting officer decisions”). 69The closest that the agency comes to making such a conclusion is CO Abraham’s assertion that “the Government’s best interest can be met by competing the JFO, 13F and KMS requirements under the MICC-Fort Eustis recently awarded TMS MAIDIQ.” ECF No. 25 at 620 (AR 616) (emphasis added). That the TMS MAIDIQ “can meet” the “government’s” “best interest” may simply mean that the TMS MAIDIQ is one option to meet the agency’s needs, and, in any event, is not the same as a determination that a solicitation cancellation is in the public’s interest. 60 In evaluating irreparable harm, “[t]he relevant inquiry . . . is whether plaintiff has an adequate remedy in the absence of an injunction.” Magellan Corp. v. United States, 27 Fed. Cl. 446 , 447 (1993). Moreover, in the bid protest context, “the loss of the opportunity to fairly compete for future government contracts constitutes irreparable harm.” ViroMed Laboratories, Inc. v. United States, 87 Fed. Cl. 493 , 503 (2009). Here, with regard to TTGI, the agency cancelled TTGI’s 13F contract award and then, instead of reevaluating proposals or re-soliciting the requirement with an amended solicitation, the agency cancelled the 13F Solicitation for the purpose of moving the work to the MAIDIQ, under which TTGI is not a contract holder and therefore is ineligible to bid on any task order procurement. TTGI’s loss of anticipated profits from the 13F contract award, in addition to its inability to compete for that work on the MAIDIQ, establishes the immediate and irreparable harm that TTGI would suffer in the absence of an injunction. Turning to PTP, following the agency’s cancellation of the 13F and JFOC contract awards, PTP, the prior incumbent on both contracts – having successfully induced corrective action following GAO protests – once again stood to have an opportunity to have its proposal considered for award or to submit a proposal on an amended solicitation. Instead, PTP’s protests resulted in its losing the opportunity to compete. While PTP’s harm is arguably more speculative than that of TTGI (insofar as PTP had not been awarded the now-cancelled contracts and solicitations), nonetheless, “it is well-established that the potential profits that are lost to offerors when arbitrary procurement actions would deprive them of the opportunity to compete for a contract will normally be sufficient to constitute irreparable injury.” MORI Assoc., Inc., 102 Fed. Cl. at 553. As PTP also is not a contract holder on the TMS MAIDIQ, PTP faces similar irreparable harm should the procurement be solicited on the TMS MAIDIQ without the agency first conducting a Rule of Two analysis, the results of which may permit PTP to bid on the work at issue. For these reasons, this Court finds Plaintiffs meet the second factor for equitable relief. In balancing the harms, the agency has not shown that the continued use of the GSA MAS contracts will be onerous. While the government asserts that “the primary harm to the Government” is its inability to “finally use a long-planned IDIQ designed for these requirements, and to leave behind the ill-fitting stop-gaps of the GSA MAS task orders, as it always intended to do,” Def. MJAR at 36, this Court, as discussed above, is unable ascertain the factual basis for the agency’s decision that the GSA MAS contracts were “ill-fitting” and, as such, cannot conclude that the harm to the government would outweigh the clear harm to Plaintiffs. The government’s further contention that “delay will also harm the FCoE, as it threatens to leave it with an inability to secure the necessary training for artillery personnel,” id., suffers from the same defect. In addition, crediting the government’s assertion here would be tantamount to punishing PTP, in particular, for having filed a GAO protest, the effect of which was to secure corrective action. The agency should not be permitted to conduct a 61 procurement, inducing would-be contractors to expend time and money preparing and submitting proposals, only to have the rug pulled out from underneath them when an offeror points out putative flaws in the agency’s process. This is not a case where the agency has shown that its substantive needs have changed, and a different vehicle is more capable of meeting those changed needs. Moreover, the Court’s decision here does not even preclude the agency from proceeding, per se, with an alternative procurement vehicle that better meets the agency’s needs. Rather, the injunctive relief ordered here merely reinstates the status quo prior to the cancellation decisions and requires the agency to follow the law consistent with this decision. The public interest also favors this Court’s granting an injunction, as “the public always has an interest in the integrity of the federal procurement system.” Starry Assoc., 127 Fed. Cl. at 550 (citing Hosp. Klean of Tex, Inc. v. United States, 65 Fed. Cl. 618 , 624 (2005)); MVM, Inc. v. United States, 46 Fed. Cl. 137 , 143 (2000) (“Many cases have recognized that the public interest is served when there is integrity in the public procurement system.”). This is particularly applicable to the present case where the agency’s cancellation and planned movement of work to the TMS MAIDIQ violated statutory and regulatory requirements. CONCLUSION The Court GRANTS Plaintiffs’ respective motions for judgment on the Administrative Record and DENIES the government’s cross-motion for judgment. The Court further GRANTS Plaintiffs’ request for equitable relief and orders as follows: 1. To the extent formal cancellations of Solicitation Nos. W9124L-20-R-0016 and W9124L-20-R-0020 have not been issued already, the agency is enjoined from cancelling them in the absence of a new cancellation decision. 2. To the extent the agency already has cancelled those solicitations, the cancellation decisions hereby are set-aside as unlawful, and the agency is instructed to reinstate the solicitations. 3. The agency is enjoined from transitioning the 13F and JFOC requirements to the TMS MAIDIQ (or any other procurement vehicle) without complying, at a minimum, with FAR 19.502-2, FAR 19.502-9, and 10 U.S.C. § 2305 (b)(2). 4. Should the agency determine, however, that a change in acquisition vehicle is still warranted, the agency shall issue new cancellation decisions not inconsistent with this opinion and order. 62 If Plaintiffs believe they are also entitled to proposal preparation costs under the facts of this case, see, e.g., TTGI Am. Compl. at 11 (¶ F), they shall file a motion for such on or before December 14, 2020. See CNA Corp. v. United States, 83 Fed. Cl. 1 , 8–12 (2008), aff’d, 332 Fed. Appx. 638 (Fed. Cir. 2009). IT IS SO ORDERED. s/Matthew H. Solomson Matthew H. Solomson Judge 63
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https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016vv0748-88-0
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-748V (Filed: November 6, 2020) * * * * * * * * * * * * * * * CONSTANCE KOHL, * UNPUBLISHED * Petitioner, * v. * Decision on Interim Attorneys’ Fees and * Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * Mark Sadaka, Esq., Mark T. Sadaka, LLC, Englewood, NJ, for petitioner. Debra Begley, Esq., U.S. Department of Justice, Washington, DC, for respondent. DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On June 24, 2016, Constance Kohl (“Ms. Kohl” or “petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq.2 (“Vaccine Act” or “the Program”). Petitioner alleges that a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination she received on June 28, 2013 caused her to develop a “frozen shoulder, stiffness, numbness, tingling, swelling, redness, and reduced range of motion.” Petition, ECF No. 1. Petitioner now requests an award of interim attorneys’ fees and costs. Petitioner’s Motion is hereby DENIED. 1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107- 347, 116 Stat. 2899 , 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision will be available to anyone with access to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 . Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). I. Procedural History The petition was filed on June 24, 2016. ECF No. 1. This matter was originally assigned to the Special Processing Unit (“SPU”). ECF No. 4. Petitioner filed medical records on June 28, 2016 and a Statement of Completion on July 1, 2016. Petitioner’s Exhibits (“Pet. Ex.”) 1-6, ECF No. 5; ECF No. 7. A status conference was held on August 16, 2016. Scheduling Order at 1-2, ECF No. 9. At that conference, respondent requested, and petitioner was ordered to produce, all chiropractic treatment records, any medical records corroborating petitioner’s diagnosis of frozen shoulder, any evidence showing that petitioner suffered residual injuries in excess of six months, and an affidavit explaining the two-year gap in treatment between August 15, 2013 and April 19, 2016. Id. Following an unopposed Motion for Extension of Time, which was granted, petitioner filed medical records from Rosemeyer Jones Chiropractic and witness statements from Todd Fischer3 and Dennis Paulius on December 16, 2016. See Motion, ECF No. 10; Non-PDF Order, issued Oct. 17, 2016; Pet. Ex. 7-9, ECF No. 11. Petitioner also filed a Statement of Completion that day. ECF No. 12. Respondent was then ordered to file a status report by January 30, 2017, indicating how he wished to proceed. Non-PDF Order, issued Dec. 16, 2016. On December 23, 2016, petitioner filed an additional statement from Todd Fischer. Pet. Ex. 10, ECF No. 13. On January 30, 2017, respondent filed a status report requesting 30 days to file his Rule 4(c) Report. Status Report at 1, ECF No. 14. An order was issued setting the deadline for respondent’s report for March 2, 2017. Non-PDF Order, issued Jan. 30, 2017. Respondent filed his Rule 4(c) Report on March 1, 2017, stating that “this case was not appropriate for compensation under the terms of the Act because petitioner has not established six months of sequela as required by 42 U.S.C. § 300aa-11(c)(1)(D)(i-ii).” Rule 4 at 1, ECF No. 16. Petitioner was ordered to file a detailed affidavit addressing the gap in treatment between August 15, 2013 and April 19, 2016. Scheduling Order at 1, ECF No. 17. Following a Motion for Extension of Time, which was granted, petitioner filed her affidavit on April 17, 2017. See Motion, ECF No. 19; Order, ECF No. 20; Pet. Ex. 11, ECF No. 21. During a status conference on May 2, 2017, respondent requested that petitioner file additional documentation from her employer supporting her claim that she experienced residual effects of her alleged injury for longer than six months. Scheduling Order at 1-2, ECF No. 22. Petitioner’s counsel stated that it was unlikely that petitioner’s employer, a relatively small dairy farm in rural Wisconsin, would have such sophisticated record keeping. Id. at 2. Petitioner’s 3 The evidence filed in this matter uses “Fischer” and “Fisher” interchangeably; they both refer to Todd Fischer, his wife Julie Fischer, and their business, Fischer Dairy Farm. 2 counsel requested a fact hearing. Id. After further discussion, petitioner’s counsel agreed to try and secure additional evidence by June 1, 2017. Id. Petitioner subsequently filed a notice from the Workers Compensation Board showing that she had not made any claims, billing and employee records for petitioner, and a letter indicating the absence of any Medicaid lien. Pet. Ex. 12, ECF No. 23; Pet. Ex. 13-14, ECF No. 26; Pet. Ex. 15, ECF No. 28. Respondent filed a status report (“Resp. S.R.”) on August 7, 2017, advising that he intended to continue defending this case and requesting a status conference to discuss how to proceed. Resp. S.R., ECF No. 29. On August 8, 2017, this matter was reassigned to me. ECF No. 32. The issues in this case were discussed during a status conference on August 29, 2017, including the fact that there was a gap of two years and eight months between petitioner’s last treatment for her alleged left shoulder injury on August 15, 2013, and when she presented to Crossing Rivers Health on April 19, 2016 for treatment of her left shoulder pain. Scheduling Order at 1, ECF No. 33; Pet. Ex. 5 at 66-68. In her affidavit, petitioner stated that she did not visit a physician for her alleged injury because she did not have health insurance. Pet. Ex. 11 at 1. However, she consistently received chiropractic treatment from 2013 through 2016 for treatment of neck, thoracic, and lower back pain. See generally Pet. Ex. 7. The chiropractic records did not reflect any complaints of left shoulder pain throughout that time period. See generally id. Petitioner filed affidavits from her employer and co- workers about how her duties needed to be adjusted as a result of her left shoulder injury, but the affidavits did not address how long the duties were adjusted. See Pet. Ex. 8-10. Additional evidence was filed, including tax returns that showed no lost income. See Pet Ex. 13. Petitioner’s counsel stated that the record was complete, and he was granted 30 days in which to consult with his client. Scheduling Order at 2. Petitioner was ordered to file a status report by September 28, 2017 indicating how she intended to proceed. Id. Petitioner filed a status report (“Pet. S.R.”) on September 28, 2017, requesting 30 days to brief her case and asking that a ruling be issued as to whether petitioner satisfied the six-month requirement. Pet. S.R. at 1, 5, ECF No. 34. A status conference was held on October 4, 2017, to discuss petitioner’s status report. Scheduling Order at 1, ECF No. 35. During the conference, respondent requested additional information from Mr. Fischer on how petitioner’s work duties were adjusted to accommodate her injuries. Id. Petitioner was ordered to file an affidavit from Mr. Fischer by November 3, 2017. Id. Petitioner filed an affidavit from Mr. Fischer on October 31, 2017. Pet. Ex. 16, ECF No. 36. Respondent filed an unopposed Motion for Extension of Time within which to file her status report, which was granted. Motion, ECF No. 37; Non-PDF Order, issued Dec. 5, 2017. On December 20, 2017, respondent filed a status report advising that he intended to continue defending this case. Resp. S.R. at 1, ECF No. 38. During a status conference on February 7, 2018, respondent’s counsel explained that Mr. Fischer’s affidavit was inconsistent with the records filed. Scheduling Order at 1, ECF No. 39. 3 Petitioner’s records showed that after her alleged injury, she exceeded the number of hours that she previously worked; however, after injuring her right shoulder in a fall in 2016, petitioner’s work hours were drastically reduced. Id. Respondent’s counsel questioned why petitioner could continue working normal hours after her alleged vaccine injury, but not after her shoulder injury from a fall in 2016. Id. Petitioner’s counsel clarified that, although petitioner did not need surgery for her 2016 shoulder injury, it was more serious than her alleged vaccine injury. Id. Counsel for both parties advised that they were willing to participate in a fact hearing via video conference in order to hear testimony from petitioner and Mr. Fischer about the extent of petitioner’s alleged injury and the accommodations made to her work duties. Id. However, respondent’s counsel suggested that a fact hearing may not be necessary if petitioner could provide more detailed information via affidavit. Id. Petitioner was ordered to file her Facebook record by March 9, 2018, and respondent was ordered to file a list of questions for petitioner to answer and a request for documents by no later than April 9, 2018. Id. Petitioner filed her Facebook timeline on March 20, 2018. Pet. Ex. 17, ECF No. 41. Respondent filed his status report on April 9, 2018 containing a list of questions to be answered and additional documents to be produced by petitioner. Resp. S.R. at 1-2, ECF No. 42. Petitioner was ordered to file a response by June 8, 2018. Scheduling Order at 1, ECF No. 43. Petitioner filed a letter and documents from Julie Fischer on June 4, 2018. Pet. Ex. 18-20, ECF No. 45. Petitioner filed a status report on June 7, 2018, indicating that she had fulfilled the requests made by respondent to the best of her ability and that no further records existed. Pet. S.R. at 1, ECF No. 46. Petitioner filed a status report on July 3, 2018, advising that she tried to secure records or a statement from Dr. Jones, her chiropractor, but was unable to do so. Pet. S.R. at 1, ECF No. 47. She requested a fact hearing at this time. Id. The parties were ordered to file a joint status report suggesting dates for a fact hearing to be held in February of 2019. Scheduling Order at 1, ECF No. 48. Petitioner filed a joint status report on August 23, 2018. Joint Status Report, ECF No. 47. On August 24, 2018, a pre-hearing order was issued, scheduling this matter for a fact hearing on Wednesday, February 6, 2019. Pre- Hearing Order, ECF No. 50. During a lapse in government appropriations, respondent filed a Motion to Stay the Fact Hearing until after appropriations were restored to the Department of Justice. Motion, ECF No. 52. A status conference was held on January 25, 2019 to discuss this Motion; it was agreed that the hearing would go forward as scheduled. Order at 1, ECF No. 53. Respondent’s motion was denied. Id. On the eve of the hearing, petitioner filed a letter from her chiropractor, Dr. Jones, dated September of 2017, which stated that he had treated her during the timeframe at issue, but could not admit or deny her shoulder injury since he treated her for spinal issues. Pet. Ex. 21, ECF No. 54. Petitioner contemporaneously filed a status report advising that Dr. Jones’ letter was inadvertently misfiled by his office and therefore had not been filed in this case. Pet. S.R. at 1, ECF No. 55. He requested that the letter be permitted for use during the hearing. Id. 4 A fact hearing was held on Wednesday, February 6, 2019. Petitioner filed updated primary care records on March 29, 2019. Pet. Ex. 23, ECF No. 58. No post-hearing briefs were ordered. A fact ruling was issued on August 21, 2019 determining petitioner satisfied the statutory six-month requirement. Decision, ECF No. 66. This decision was subsequently withdrawn following a motion for reconsideration filed by respondent. See Motion, ECF No. 67. A factual evaluation of this matter is currently ongoing. On January 31, 2020, petitioner filed the instant interim fees and costs application, requesting $49,004.35 in attorneys’ fees and $487.30 in costs, for a total of $49,491.65. Motion for Interim Fees, Ex. A-B, ECF No. 72. Respondent filed a response to petitioner’s application on February 14, 2020, in which he “defer[red] to the special master as to whether the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2, ECF No. 76. Petitioner filed a reply to respondent’s response on the same day, reiterating her interim fees and costs request. Reply, ECF No. 77. This matter is now ripe for determination. II. Applicable Law and Analysis The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petition results in compensation, petitioner is entitled to reasonable attorneys’ fees and costs (“fees” or “fee award”). Id.; see Sebelius v. Cloer, 133 S. Ct. 1886 , 1891 (2013). Where a petitioner does not prevail on entitlement, a special master has discretion to award reasonable fees if the petition was brought in “good faith” and with a “reasonable basis” for the claim to proceed. § 15(e)(1). A petitioner’s good faith is presumed “in the absence of direct evidence of bad faith.” Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114 , 121 (1996). Where no evidence of bad faith exists and respondent does not challenge petitioner’s good faith, good faith requires no further analysis. Reasonable basis is an objective inquiry, irrespective of counsel’s conduct or looming statute of limitations, that evaluates the sufficiency of petitioner’s available medical records at the time a claim is filed. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632 , 636 (Fed. Cir. 2017); see Turpin v. Sec’y of Health & Human Servs., No. 99-564, 2005 WL 1026714 at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005). A special master’s evaluation of reasonable basis is to focus on the requirements for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient objective evidence to make a feasible claim for recovery. Santacroce v. Sec’y of Health & Human Servs., No. 15-555V, 2018 WL 405121 at *7 (Fed. Cl. 2018). Reasonable basis is satisfied when available objective evidence, such as medical records or medical opinions, support a feasible claim prior to filing. See Chuisano v. Sec'y of Health & Human Servs., 116 Fed. Cl. 276 , 286 (2014) (citing McKellar v. Sec'y of Health & Human Servs., 101 Fed. Cl. 303 , 303 (2011)); see Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401 , 405 (2012). Where causation is a necessary element to petitioner’s claim, petitioner must provide some objective support of a causal relationship between administration of the vaccine and the petitioner’s injuries in order to establish that a claim was feasible. See Bekiaris v. Sec’y of Health & Human Servs., 140 Fed. Cl. 108 , 114 (2018). 5 Determination of feasibility is limited to the objective evidence submitted, Santacroce, 2018 WL 405121 at *7, but a special master is not precluded from considering objective factors such as “the factual basis of the claim, the novelty of the vaccine, and the novelty of the theory of causation.”Amankwaa v. Sec’y of Health & Human Servs., 138 Fed. Cl. 282 , 289 (2018). In Cottingham, the Federal Circuit expressly clarified that special masters are permitted to utilize a totality of the circumstances inquiry in evaluating reasonable basis, including, but not exclusively limited to, objective factors such as those identified in Amankwaa. See Cottingham ex. rel. K.C. v. Sec’y of Health & Hum. Servs., 971 F.3d 1337 , 1344 (Fed. Cir. 2020). The Court reiterated that counsel conduct is subjective evidence, not to be considered when evaluating reasonable basis. Cottingham, 971 F.3d at 1345. While incomplete records do not strictly prohibit a finding of reasonable basis, Chuisano, 116 Fed. Cl. At 288, an overwhelming lack of objective evidence will not support reasonable basis. See Simmons, 875 F.3d at 634-36 (holding that reasonable basis was not satisfied where 1) petitioner’s medical record lacked proof of vaccination and diagnosis and 2) petitioner disappeared for two years prior to filing a claim). Additionally, a petitioner’s own statements are not “objective” for purposes of evaluating reasonable basis and cannot alone support reasonable basis. See, e.g., Chuisano, 116 Fed. Cl. at 291; Foster v. Sec’y of Health & Human Servs., No. 16-1714V, 2018 WL 774090 , at *3 (Fed. Cl. Spec. Mstr. Jan. 2, 2018). A claim may lose reasonable basis as it progresses, if further evidence is unsupportive of petitioner’s claim. See R.K. v. Sec’y of Health & Hum. Servs., 760 F. App’x 1010, 1012 (Fed. Cir. 2019) (citing Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375 , 1376-77 (Fed. Cir. 1994)). Despite broad discretion, a special master may not abuse their discretion in denying reasonable basis and fees. The Federal Circuit articulated, “failure to consider objective evidence presented in support of a reasonable basis for a claim would constitute an abuse of discretion” by the special master. Cottingham, 971 F.3d at 1345. The petitioner in Cottingham submitted an affidavit, a vaccine package insert, and several medical records showing that petitioner suffered adverse reactions listed on the package insert after receiving the vaccine. See id. at 1345-46. The Court found that the materials constituted such objective evidence that denying reasonable basis because of “no evidence” was clearly erroneous. Id. at 1346-47. Denial of reasonable basis for lack of causation in Cottingham constituted an abuse of discretion. Id. at 1347. The Court reminded that the burden of proof required for reasonable basis is not as high as that required for causation— “more than a mere scintilla but less than a preponderance of proof could provide sufficient grounds for a special master to find reasonable basis.” Id. at 1346. However, the Court held that the special master may make factual determinations as to the weight of evidence. Id. at 1347. The key dispute in this matter is whether petitioner’s alleged injury meets the six-month severity requirement pursuant to 42 U.S.C. § 300aa-11(c)(1)(D)(i). Petitioner continues to work to substantiate her claim with additional evidence. Until petitioner has completed the record and a determination has been made on whether petitioner’s alleged injury meets the six-month requirement, this application for fees is premature. Once a decision on the six-months severity requirement has been issued, petitioner may refile her application for attorneys’ fees and costs. 6 Based on the foregoing, petitioner’s Motion for Interim Attorneys’ Fees and Costs is DENIED. The Clerk of the Court is directed to enter judgment accordingly.4 IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special master 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review. 7
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https://www.courts.ca.gov/opinions/nonpub/C089399.PDF
Filed 12/1/20 P. v. Webster CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C089399 Plaintiff and Respondent, (Super. Ct. No. 18FE019482) v. BRYAN THOMAS WEBSTER, Defendant and Appellant. Defendant Bryan Thomas Webster appeals from his conviction of making a criminal threat, contending the verdict is not supported by substantial evidence. Defendant also contends, and the People agree, that his one-year prior prison enhancement imposed pursuant to Penal Code section 667.5, subdivision (b)1 must be 1 Undesignated statutory references are to the Penal Code. 1 stricken because of changes in the underlying statutory authority. We affirm the verdict but modify the judgment to strike the enhancement. FACTUAL AND PROCEDURAL HISTORY The First Threat One afternoon, defendant and a female entered a sandwich shop to pick up an order for a food delivery service. Jerry, the proprietor, watching the security monitor from the back, saw the female put several bags of chips in her bag without paying. After defendant and the female left the shop, Jerry followed them to their car and asked for the chips back. The female denied taking the chips, but when Jerry told her he had seen her on camera, she threw the chips at Jerry. Defendant then slammed the car door, turned back towards Jerry with an aggressive demeanor, began to take off his shirt, and got into a combative stance. He approached Jerry, asking him, “what did you say mother fucker?” He also shouted that he had been in jail before, was not afraid of Jerry just because he was big, and he would “fuck [him] up.” In response, Jerry threatened to call the food delivery service to get defendant fired. While defendant and Jerry were yelling at each other, Jerry’s employee, Jessica, arrived in the parking lot. Defendant was “aggressive, angry,” and like “a loose cannon.” Jessica tried, unsuccessfully, to intervene in the dispute. Defendant then walked around his car and yelled to the female, “Hon, get my gun. Get my gun.” Over and over, defendant said “Babe, get my gun. Baby, get my gun.” Defendant and the female appeared to look around for something inside his car for approximately one minute. Jerry told defendant he needed to make good adult decisions and repeated, “Don’t play with guns, son,” until they drove away. Jerry interpreted defendant’s repeated statement “Get my gun” as a threat because “You’re getting a gun. You want to use it. That’s how I understood that to be.” He said he found it “a little unnerving that somebody would want to get a gun over a couple bags of chips” and “absolutely” feared for his safety based on defendant’s statements at the 2 time. The entire encounter, from the time defendant slammed the car door and began yelling at Jerry until he drove away, lasted approximately three minutes. The Second Threat Shortly after defendant left, the shop’s phone rang. Jessica answered it. The caller’s voice matched defendant’s voice. Defendant asked for Jerry and Jessica told him that Jerry was not there. Jessica initially told the police that when she asked for defendant’s name, he responded, “this was the nigga that’s going to shoot Jerry in the head” and then hung up. At trial, Jessica testified that defendant told her, “Well, tell that nigga I’m gonna shoot him.” Jerry recalled the statement, relayed through Jessica at the time, was “this is the nigga’ that’s going to come shoot him.” Three days later, defendant returned to the shop and asked Jessica if Jerry was there. He appeared agitated, nervous, and upset. She said no, and defendant seemed to become increasingly angry. Defendant stayed in the shop for another minute, looked around the lobby, and left. Jury Verdict and Sentencing The jury was given a unanimity instruction with respect to the two separate threats made to Jerry: (1) the repeated statement, “Get my gun” and (2) the statement to Jessica over the phone, relayed by Jessica to Jerry, that defendant was going to shoot Jerry. The jury found defendant guilty of making a criminal threat (§ 422), and the trial court subsequently found that defendant had a prior strike (§§ 667, subds. (a), (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). The trial court imposed a seven- year sentence, comprised of the upper term of three years for the criminal threat, three years for the strike enhancement, and one year for the prison prior. 3 DISCUSSION I Substantial Evidence On appeal, defendant challenges the sufficiency of the evidence to support his criminal threats conviction. He contends: (1) as to the parking lot incident, there is insufficient evidence as to all five elements of making a criminal threat; and, (2) as to the phone call, there is insufficient evidence he intended Jessica to convey his telephonic threat to Jerry. General Legal Background To sustain a conviction for criminal threats, the prosecution must establish that: (1) the defendant willfully threatened to commit a crime which would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that the statement was to be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat was on its face and under the circumstances in which it was made so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety; and (5) that the threatened person’s fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221 , 227-228.) In reviewing a defendant’s challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence is evidence that is credible, reasonable, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1 , 11.) We do not reassess the credibility of witnesses, and we draw all inferences from the evidence that supports the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355 , 1382.) Unless it is physically impossible or inherently improbable, the testimony 4 of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149 , 1181.) If substantial evidence supports the verdict, we defer to the trier of fact and do not substitute our evaluation of witness credibility for that of the jury. (People v. Snow (2003) 30 Cal.4th 43 , 66.) If the record supports the jury’s findings, our belief that the circumstances might also reasonably support a contrary finding does not warrant a reversal of the judgment. (People v. Abilez (2007) 41 Cal.4th 472 , 504.) A. Parking Lot Statements Regarding Gun Defendant argues that there was insufficient evidence to conclude that defendant’s repeated statements to “Get my gun” constituted a criminal threat. Specifically, he argues, the statement was not a threat of a specific crime, directed at Jerry, and made with the specific intent to be taken as a threat; and, that the statement did not convey the requisite immediacy and was not sufficiently unequivocal, unconditional, or specific. Defendant also disputes the sufficiency of the evidence that Jerry was in sustained fear for his own safety. He notes that in addition to claiming he was afraid, Jerry testified he did not believe the threat was real until the phone call to the shop, did not call law enforcement until after the phone call, and did not act “particularly afraid” of defendant. “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning. [Citation].” (In re George T. (2004) 33 Cal.4th 620 , 635.) The relevant surrounding circumstances include the defendant’s proximity to the victim, expressed anger, or use of curse words. (See People v. Martinez (1997) 53 Cal.App.4th 1212 , 1220.) Further, “[i]n determining whether conditional, vague, or ambiguous language constitutes a violation of section 422, the trier of fact may consider ‘the defendant’s mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.’ ” (People v. Wilson (2010) 186 Cal.App.4th 789 , 808, quoting People v. Solis (2001) 90 Cal.App.4th 1002 , 1013.) “Defendant’s activities after the threat give 5 meaning to the words and imply that he meant serious business when he made the threat.” (Martinez, at p. 1221, fn. omitted.) During the confrontation with the victim, defendant was “aggressive” and “combative.” Defendant began removing his shirt, cursed at Jerry, warned him that he had been in jail, boasted he was not afraid of Jerry in spite of his size, and threatened to “fuck [Jerry] up.” After defendant threatened to “fuck [Jerry] up,” he repeatedly demanded his gun from the female. Defendant and the female both appeared to search for the gun in the car. It was reasonable for the jury to infer that defendant’s statement that he had been in jail and threat to “fuck [Jerry] up” was a threat to seriously injure the victim. This is particularly so given defendant’s subsequent phone call and threat to shoot Jerry, which further reveals defendant’s actual intent to shoot Jerry. It was also reasonable to infer from the entirety of the incident and the surrounding circumstances, including defendant’s persistent and repeated demand for his gun and his apparent search for the gun during the height of his conflict with Jerry, that he intended to use the gun to carry out his threat to seriously injure Jerry. And, the fact that defendant was actively looking for the gun, particularly after Jerry warned that he would get defendant fired, supports the inference that this threat to injure Jerry was specific and immediate, and he intended it to be taken as a threat to injure or kill Jerry by shooting him. And again, defendant’s intent to shoot Jerry is further illuminated by his statement on the phone that he did, in fact, intend to shoot Jerry, as well as his agitated appearance at the shop several days later, when he asked to see Jerry. There is also sufficient evidence that Jerry suffered sustained and reasonable fear. Fear “describes the emotion the victim experiences.” (People v. Fierro (2010) 180 Cal.App.4th 1342 , 1349.) “Sustained” means “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149 , 1156.) “Even if the encounter lasts only one minute, a person who is confronted with a firearm held by an angry perpetrator and who believes his or her death is 6 imminent, suffers sustained fear.” (People v. Culbert (2013) 218 Cal.App.4th 184 , 190- 191, citing Fierro, at p. 1349.) Jerry believed defendant was looking for his gun because he wanted to use it. He was unnerved and absolutely afraid during the confrontation. Further, the entire incident, taken from the time defendant began yelling at the victim in the parking lot until the time they drove away, was approximately three minutes. This is evidence from which the jury could reasonably conclude that Jerry experienced sustained fear. A reasonable trier of fact could find that a victim, confronted by an aggressive, combative defendant calling for, and actively searching for, his gun, while threatening to seriously injure him with the gun, and who believes that defendant intends to use that gun on him, reasonably suffers sustained fear. Thus, there was sufficient evidence to support defendant’s conviction for criminal threats based on the parking lot threat. B. Phone Call As to the telephonic threat, defendant argues the evidence fails to show that defendant intended Jessica to convey his threat to Jerry. Defendant attacks the sufficiency of the evidence here on two grounds: (1) that no reasonable jury could have believed Jessica’s trial testimony, which included the specific directive to tell Jerry of the threat, over her other statements, which did not include that directive; and, (2) without that explicit directive to tell Jerry of the threat, the surrounding circumstances of the phone call do not support the conclusion he intended to convey the threat to Jerry. Legal Background Section 422 does not require the threat be directly communicated by the threatener, to the victim. (In re David L. (1991) 234 Cal.App.3d 1655 , 1659.) Rather, section 422 is also violated “when a threat is relayed through a third party intermediary selected by the threatener.” (David L., at p. 1660.) However, the statute was not intended to “to punish emotional outbursts, it targets only those who try to instill fear in others.” (People v. Felix (2001) 92 Cal.App.4th 905 , 913.) Thus, “mere angry utterances 7 or ranting soliloquies, however violent,” are not punishable under section 422. (People v. Teal (1998) 61 Cal.App.4th 277 , 281) “Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed.” (David L., at p. 1659.) Analysis Defendant impliedly concedes Jessica’s testimony at trial—that defendant instructed her to “tell that nigga I’m gonna shoot him”—would, if true, be sufficient evidence of defendant’s intent to convey the threat. However, he argues that no reasonable jury would believe Jessica’s recollection at trial over her initial statement to the police, or Jerry’s recollection of her statement at the time, neither of which included defendant’s explicit instruction to “tell” Jerry of the threat. We disagree. “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young, supra, 34 Cal.4th at p. 1181.) “The standard for rejecting a witness’s statements on this ground requires ‘ “ ‘either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences and deductions.’ ” ’ ” (People v. Thompson (2010) 49 Cal.4th 79 , 124.) The concept of inherently improbable goes to the content of the testimony, “i.e., could that have happened?—rather than the apparent credibility of the person testifying.” (People v. Ennis (2010) 190 Cal.App.4th 721 , 729.) Jessica’s trial testimony is largely consistent with her other accounts of defendant’s statements in the phone call. Defendant’s argument that her trial testimony was unreliable and could not have been believed by the jury relies on inferences drawn from the circumstances of her other statements. This we cannot do. It is not inherently 8 improbable or physically impossible that defendant told her to tell Jerry of his threat to shoot Jerry. Accordingly, Jessica’s testimony that defendant told her to tell Jerry of his intent to shoot him was substantial evidence to support the criminal threat conviction. Even if the jury relied on Jessica’s prior statements, which did not include defendant explicitly instructing her to relay the threat to Jerry, this evidence would still be sufficient to affirm their verdict. Section 422 does not require that the threatener directly instruct the third party to convey the threat to the victim. (See, e.g., In re David L., supra, 234 Cal.App.3d at p. 1659 [“The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim”].) Indeed, the cases addressing the defendant’s intent that a third party convey the threat to the victim examines the entirety of the circumstances, including the defendant’s knowledge of the relationship between the parties and the parties’ prior interactions. (Id. at pp. 1658-1659 [intent to convey where third party witnessed prior altercations between alleged victim and minor and where the defendant knew alleged victim and third party were friends]; People v. Roles (2020) 44 Cal.App.5th 935 , 944-945 [no intent to where the defendant was unaware the alleged victim and third party communicated with each other and where the parties had previously convened at a single court hearing without incident]; People v. Felix, supra, 92 Cal.App.4th at pp. 913-914 [no intent where the defendant confessed his plan to kill his girlfriend to his therapist in confidential session]; In re Ryan D. (2002) 100 Cal.App.4th 854 , 862-865 [no intent where minor submitted painting of himself shooting a specific police officer for school credit, where officer did not work at the school].) Here, like in In re David L., Jessica had observed the altercation that preceded the threat. She then received defendant’s phone call on the sandwich shop’s phoneline shortly thereafter. Even if defendant was not aware that he was speaking to the same employee who witnessed the parking lot altercation, he called Jerry’s shop, asked for him 9 by name, and called specifically to make a threat to shoot Jerry, just a few minutes after the dispute in which he threatened to injure Jerry with a gun. Defendant’s actions were therefore not consistent with an emotional outburst, but rather with a purposeful and deliberate intent to threaten Jerry. This evidence supports the conclusion, consistent with In re David L., that defendant intended Jessica to convey the message to Jerry, even if the jury did not believe that he directly instructed her to “tell” Jerry of his threat. Accordingly, substantial evidence supports the criminal threats conviction. II Prior Prison Term Enhancement Defendant contends his one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.), and the People agree. On October 8, 2019, the Governor signed Senate Bill No. 136 into law. The new law, which became effective on January 1, 2020, amends section 667.5, subdivision (b), which formerly imposed a one-year sentence enhancement for each separate prior prison term or county jail term imposed under section 1170, subdivision (h) where a defendant had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Pursuant to Senate Bill No. 136, a one-year prison prior enhancement now applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.) Because his sentence was not final when Senate Bill No. 136 took effect and because his prior offense was not for a sexually violent felony, we agree with the parties that the amended law applies to defendant retroactively. (See People v. Vieira (2005) 35 Cal.4th 264 , 306 [defendant entitled to retroactive application of criminal statute that takes effect during the time the defendant has to appeal to the United States Supreme Court]; In re Estrada (1965) 63 Cal.2d 740 , 742; People v. Lopez (2019) 42 Cal.App.5th 10 337, 341-342.) Therefore, we modify the judgment to strike defendant’s one-year prior prison term enhancement and otherwise affirm. We need not remand this matter for resentencing, as the trial court already imposed the maximum sentence available. (See Lopez, at p. 342.) DISPOSITION The judgment is modified to strike the one-year prior prison term enhancement. (§ 667.5, subd. (b).) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. /s/ RAYE, P. J. We concur: /s/ HOCH, J. /s/ RENNER, J. 11
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https://www.courts.ca.gov/opinions/nonpub/B303989.PDF
Filed 12/1/20 P. v. Lieberman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B303989 (Super. Ct. No. 2013039320) Plaintiff and Respondent, (Ventura County) v. AARON BENJAMIN LIEBERMAN, Defendant and Appellant. Aaron Benjamin Lieberman appeals from the judgment entered after he pled no contest to possession for sale of more than four kilograms of MDMA (count 1; Health & Saf. Code, §§ 11378, 11370.4, subd. (b)(1))1, transportation of a controlled substance (count 3; § 11379, subd. (a)), sale of a controlled substance (count 4; § 11379, subd. (a)), and selling, transporting or offering to sell a controlled substance (count 5; § 11379, subd. (a)). Three months after the change of plea, appellant brought a motion to withdraw his plea which was denied by the trial court. The trial court suspended imposition of sentence, granted 1 All statutory references are to the Health and Safety Code. probation with 365 days county jail, and ordered appellant to pay various fines, fees, and restitution. We appointed counsel to represent appellant in this appeal. After counsel’s examination of the record, he filed a brief raising no issues. On October 13, 2020, we advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received. The record reflects that appellant sold MDMA to a confidential informant in two controlled buys. The third controlled buy was a “jump bust” at the Walmart parking lot in Simi Valley. Officers found 718 grams of MDMA and $360 on appellant’s person. Ventura County Sheriff’s deputies conducted a probation search of appellant’s house and found MDMA (4,000 grams), marijuana, steroids, pill presses, narcotics paraphernalia (cutting agents), $38,920 cash, and ammunition. We have reviewed the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436 , 443; People v. Kelly (2006) 40 Cal.4th 106 , 126.) The judgment is affirmed. NOT TO BE PUBLISHED. YEGAN, Acting P.J. We concur: PERREN, J. TANGEMAN, J. 2 Derek D. Malan, Judge Superior Court County of Ventura ______________________________ Richard B. Lennon, Executive Director, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
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https://www.courts.ca.gov/opinions/nonpub/B299491.PDF
Filed 12/1/20 P. v. Cubel CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B299491 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BA466184) v. FRANCISCO CUBEL, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, William N. Sterling, Judge. Affirmed. Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ Francisco Cubel appeals his conviction for making criminal threats (Pen. Code, § 422)1 on the grounds (1) the court failed to give a unanimity instruction; (2) the evidence was insufficient to support the conviction; and (3) the court erred in admitting evidence of prior uncharged conduct. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Cubel was charged with making criminal threats against his wife Petrona F. in 2016 and raping her in 2017. (§ 262, subd. (a)(1).) As Cubel was convicted of making criminal threats only, we omit evidence pertaining to the rape charge. I. Petrona F.’s Testimony Petrona F. testified she and Cubel were married in 1999 and had four children. Their marriage was unhappy and Cubel was often violent. She said Cubel had begun raping her when she was 14 years old, and all their sexual contact for the duration of their relationship had been against her will. She behaved affectionately with Cubel in front of the children and others so they would think she and Cubel were happy. Petrona F. testified about one uncharged incident. On a Saturday in 2013 Cubel insulted her, hit her, and kicked her in the abdomen. He threatened to hurt her and her mother and to take the children if Petrona F. called the police. Petrona F. asked why he had to hurt her family; Cubel told her to “shut up” and kicked her leg. Petrona F. was scared and felt ill at the thought Cubel would harm her family. Later that day, Cubel offered Petrona F. money for sex. When she declined, he forced her to have sex with him 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Petrona F. did not go to the police immediately. It was the weekend and Cubel was around constantly. She was afraid all weekend and Cubel continued to mistreat her. Monday morning, once Cubel had left for work, Petrona F. took the children to a friend’s home and reported Cubel to the police. She reported Cubel had kicked her leg but did not tell the police he had raped her. Petrona F. and the children stayed with her friend for two weeks, but she and the children returned home when Cubel promised to change. On September 23, 2016, Petrona F. was in the kitchen and the three younger children were in the bedroom of the family’s one-bedroom apartment when Cubel called Petrona F. into the bathroom to talk. She did not want to go into the bathroom but complied when Cubel told her it would “get worse for” her if she did not. Cubel attempted to force Petrona F. to ingest drugs, but she refused. While the couple was in the bathroom their oldest child Brandon and Cubel’s brother David2 arrived home and knocked on the bathroom door. Cubel opened the door, told David not to get involved, grabbed and shoved him, and attempted to stab him with a kitchen knife. Petrona F. intervened, took the knife away from Cubel, and threw it into the kitchen. Cubel retrieved the knife, but Brandon approached him, crying and asking why he was behaving this way. Petrona F. attempted to calm Brandon, David and Cubel exchanged words, and David left. Cubel turned his attention 2 Because the appellant, the children, and David share a surname, we refer to the children and David by their first names for clarity. 3 back to Petrona F., saying, “If you call the police, remember you have your mom in Guatemala. I’m going to tear her apart. Once I’m done with your mother, I’m going to go ahead with your sisters. You’ll get me killed in jail. I’m not the only person around. My family is also around.” He also said, “You have hurt how many people in Guatemala and them hanging from the trees?” Petrona F. took Brandon into the bedroom, where the younger children were, because Cubel continued to threaten to hurt her “with any object, like, for example, hammer.” Cubel began to kick the door, trying to enter the room. Petrona F. blocked the door with a couch and called 911. The recording of the 911 call was played for the jury. While Petrona F. was on the phone she could hear Cubel rummaging in the kitchen. She was scared Cubel would hurt her with a knife and afraid he would harm her in front of the children. Cubel left the apartment when he heard Petrona F. call the police. He returned the following day and apologized, saying he had been drunk. About a week later, Petrona F. unsuccessfully attempted to get a restraining order against Cubel because she was still afraid. On cross-examination, Petrona F. admitted a prior petty theft conviction. She had learned in a domestic violence class that undocumented domestic violence survivors could obtain a “U” visa if they cooperated with law enforcement. Petrona F. denied applying for a “U” visa or speaking with anyone about them outside of class. She denied offering to help David’s girlfriend obtain one. Petrona F. also testified on cross-examination Cubel was visibly drunk during the incident and was nearly falling down. 4 Because Cubel was threatening her, Petrona F. later told the police she did not want to pursue criminal proceedings against him. II. Brandon’s Testimony Brandon, who often heard his parents argue, confirmed Cubel was verbally abusive to Petrona F. Cubel yelled and called Petrona names, kicked her, punched her, and sometimes dragged her by the hair. Cubel threatened Petrona F. not to call the police: “ ‘If you do that, I will kill you. I’ll kill your family members. I will mix your blood,’ or stuff like that; any kind of threat that has to do with killing.” It happened “[p]retty often,” “[l]ike, five times a week.” Brandon was 17 or 18 years old in 2016. He and his uncle David came home around 9:00 p.m. or 10:00 p.m. and found the other children crying. Brandon could hear Cubel yelling in the bathroom and Petrona F. saying, “No, I don’t want to do it.” He listened to his parents for about three minutes before he asked David to intervene. David knocked on the door, and Cubel demanded to know what he wanted. David said he needed to use the bathroom. Cubel opened the door, came out of the bathroom, and “got right up in [David’s] face.” They argued for about five minutes. Cubel went to the kitchen and returned holding a knife. He approached David threateningly as if to stab him. David left the apartment. After David left, Brandon took the knife away from Cubel and hid it. Cubel retrieved another knife from the kitchen. Brandon took that knife too and threw it across the kitchen. Petrona F. was scared, the younger children were screaming, and they were all crying. Petrona F. went into the kitchen to prepare food for the children, but she went into the living room when 5 Cubel began calling her names. Cubel yelled, “ ‘If you call the police, I’m going to mix your blood,’ or something like that, ‘I’m going to drink it. I’m going to cut you up into small little pieces just like I’m going to do to your family.’ ” Petrona F. sent the younger children into the bedroom. Brandon stayed with his parents, “trying to reason with [Cubel], telling him to calm down, to maybe possibly leave, just leave us alone.” Petrona F. also attempted to calm Cubel down. Cubel said if Petrona F. called the police, he would hurt her and “cut [her] in little pieces.” Brandon continued to try to calm Cubel and to reason with him, but Cubel kept yelling at Petrona F. Brandon estimated he and Petrona F. spent almost an hour trying to calm Cubel down. Cubel was “just saying more nonsense.” Eventually Cubel went into the bathroom. Petrona F. and Brandon went into the bedroom and locked the door. They pushed a couch against the door and then Petrona F. called 911. She was crying and shaky, her eyes were red, her hair was disheveled, and her voice cracked as she spoke. Cubel kicked the door, and then Brandon heard him moving things in the kitchen. Cubel returned and announced if they did not open it he would find a way in. Brandon’s siblings were scared, shaking, and silent. Brandon was afraid of what Cubel would do to Petrona F. if he managed to enter the bedroom. Petrona F. looked worried while she waited for the police. Cubel left before the police arrived. The police spoke primarily with Petrona F. and asked Brandon only a few questions. He told the police what had happened but did not mention the knives. 6 Cubel came back to the apartment later in the night or early morning. To Brandon’s knowledge Petrona F. did not call the police when he returned. Brandon understood a “U” visa would allow him to travel internationally, and he had talked with his mother about how nice it would be to have one because he wanted to go to Guatemala to visit his grandmother. His grandmother had recently taken ill, leading Brandon to ask the investigating officer on the case about “U” visas shortly before trial. Petrona F. had told Brandon getting a “U” visa was not a priority for her. Brandon acknowledged telling a social worker after the 2016 incident that Cubel was not abusive and he was not afraid of Cubel. The following year he told another social worker there was no physical abuse in the home. Brandon had lied and failed to disclose information to the social workers at his parents’ direction. Cubel had instructed the children never to say anything bad about him to a social worker and to deny abuse and neglect. Petrona F. told them to lie because she feared they would be taken away. III. Other Testimony Cubel and Petrona F.’s daughter, Susan, age 11 at the time of trial in 2019, recalled she was helping her mother in the kitchen when her father became angry and yelled at her mother. Susan did not remember what he was screaming about. Susan and Petrona F. went in the bedroom. Petrona F. locked the door and they moved a couch. Cubel banged on the door. Petrona F. called the police and said, “[H]e is coming. And she just start[ed] screaming.” Susan, who tried not to listen to her parents’ arguments and often played music when they argued, lay on the bed with 7 her brother and sister and listened to music while Brandon talked with their mother. Her sister Juana looked at her phone. Cubel eventually left, and the police arrived. Susan did not recall later telling a social worker she was not scared of her parents, this was the first time she saw her parents fight, and she felt safe with her father. Juana, age 14 at trial, testified she went into the bedroom that night because Cubel was yelling at Petrona F. Juana did not remember words her father used, but his voice was angry and it scared her. They moved a couch in front of the door. Cubel yelled angrily and kicked the door hard. He told Petrona F., “Get outside because I’m gonna hurt you.” Juana did not remember how Cubel said he was going to hurt Petrona F. Petrona F. was scared, shaking and crying, and Brandon hugged her. Juana and her siblings were in the bed. She did not remember how long they were in the bedroom, whether they listened to music, or whether she used her phone. She did not recall telling a social worker she was not afraid of Cubel, he was a good dad, and she had never seen violence between her parents before. A police officer who responded to Petrona F.’s 911 call testified Petrona F. was nervous and shaking, and she had visible redness and swelling on her right arm and right leg. Brandon said Cubel had grabbed Petrona F. by the arm and kicked her leg. Brandon did not describe Cubel threatening to kill Petrona F., pulling out a knife, or threatening to drink Petrona F.’s blood. A detective spoke with Petrona F. in October 2016. Petrona F. confirmed the information the responding police officers had put in their report, but she did not want to pursue criminal proceedings against Cubel. She said Cubel was “a nice guy as long as he wasn’t drunk,” and he had not bothered her 8 since the incident. It was not uncommon for a victim of domestic violence to downplay or minimize the perpetrator’s actions. An employee of the Los Angeles Police Department testified two U visa applications had been filed for Petrona F. in 2014. Both were denied because Petrona F. had failed to cooperate with law enforcement. The defense called the police officer who took Petrona F.’s report in 2013 to testify. The officer testified Petrona F. had reported Cubel kicked her leg when she refused him sex. She did not mention threats to kill, being kicked in the stomach, or being raped, and she also said she left the home the same day rather than a few days later. Petrona F. had a visible bruise above her right knee. David testified Cubel and Petrona F. had a “normal” and “fine” relationship until Petrona F. was unfaithful. David once heard Cubel curse at Petrona F. after she told him she did not love him anymore and to leave. Petrona F. and Cubel were disrespectful to each other when they argued. Petrona F. would tell him to shut up or she would call the police and he would go to jail and lose his home. She would provoke Cubel, they would argue, Petrona F. would ask forgiveness, and things would return to normal. They held hands, hugged, and spent time with family. David testified about the 2016 incident. He found Petrona F. and Cubel angrily arguing through the bathroom door about their marriage. Petrona F. was yelling, and Cubel was asking her personal questions. Petrona F. told Cubel, “Don’t ask me things. Leave from the house or else I’ll call the police.” The younger children were in the living room but Brandon was in the room while they argued. 9 Cubel left the restroom when David said he needed to use it. Cubel, frustrated and angry, told David he wanted to fix things with his wife but she would not communicate. Cubel did not try to attack David that day and there was no confrontation. Cubel simply went into the living room and sat down to play with the children. This took place around 7:00 p.m. David left later in the evening. While David was there he did not see Cubel pull out a knife. Cubel’s sister testified she believed Petrona F. was unfaithful, although she also defined infidelity so broadly as to include a woman speaking with a man other than her husband. She had seen Petrona F. talking with another man and believed Petrona F. was cheating because she stopped talking to the man when she noticed Cubel’s sister watching. Cubel’s sister had seen Cubel and Petrona F. argue and she had seen them behave affectionately. Petrona F. had never told her Cubel forced her to have sex with him. Petrona F. had once said she wanted to get rid of Cubel and get her “papers.” She had mentioned something about U visas before 2017, possibly in 2014. Petrona F. said, “This man does not have any money. And one day he’ll go to jail.” David’s girlfriend testified she had only seen Petrona F. happy; Petrona F. never told her about the 2013 or 2016 incidents, said Cubel raped her, or said she was scared to call the police or tell anyone about Cubel. In 2017 Petrona F. had advised her if she ever had problems with David, Petrona F. could help her get the information she needed in order to get a U visa. In 2017 she heard Petrona F. call Cubel a “fucking idiot”; he did not respond. Petrona F. had once, in 2017, asked her to lie to Cubel while Petrona F. went to see her lover. 10 A detective testified that in 2018 Juana said she had never observed Cubel being violent, and in 2019 Susan said she did not recall her father ever hurting her mother or speaking to her mother about hurting her. A social worker who had interviewed members of the family in 2017 testified that Brandon had said he was not afraid of anyone in the home, sometimes his parents argued but had never been physical, and the first time an argument between his parents became physical was in 2017. Juana said she had never witnessed physical violence in the home. It was not unusual for children to be reticent to discuss problems in the home due to fear, guilt, a sense of responsibility to their parents, or safety concerns. During deliberations, the jury asked for readback of two pieces of evidence, one of which was Brandon’s testimony about the 2016 incident, “specifically describing any verbal threats from the defendant.” The jury found Cubel guilty of making criminal threats and was unable to reach a verdict on the spousal rape charge. The court declared a mistrial on the rape charge, and it was subsequently dismissed. Cubel appeals. DISCUSSION I. Absence of an Unanimity Instruction Cubel argues the trial court erred in not instructing the jury it must unanimously agree upon which of Cubel’s September 23, 2016 threats against Petrona F. was the basis for the criminal threats charge. We review this instructional issue de novo (People v. Covarrubias (2016) 1 Cal.5th 838 , 919) and conclude there was no error. 11 “A unanimity instruction is required if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count.” (People v. Grimes (2016) 1 Cal.5th 698 , 727 (Grimes).) A prosecutor’s express election of acts upon which he or she intends to rely as proof of each charged offense may relieve the trial court of the obligation to instruct on the unanimity requirement if the prosecutor’s election is communicated to the jury “with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (People v. Melhado (1998) 60 Cal.App.4th 1529 , 1539.) The People assert they made an election when the prosecutor in closing argument relied on threats to hurt Petrona F. and her family in a grotesque manner, but while the prosecutor did refer to Cubel’s statements about hanging people from trees and drinking blood, he did not inform the jury it could not rely on other evidence and it had to agree unanimously as to the facts underlying each count. The prosecutor’s argument was insufficient to establish an election. Cubel argues there was evidence of a wide variety of acts the jury could have found constituted a criminal threat, and it cannot be determined whether the jury agreed unanimously on any one as the basis for liability. He argues the jury could have found the criminal threat to be his comment he would “make it worse” for Petrona F. if she did not come into the bathroom; his pledge to tear apart her mother and sisters if she called the police; his threat to hurt her with an object; his statement he would mix Petrona F.’s blood and cut her and her family into small pieces if she called the police; the death threat she reported 12 to 911; or, more generally, the near-daily threats of physical harm Brandon reported Cubel making. We disagree the statement Cubel would make it worse for Petrona F. if she did not enter the bathroom could have supported a separate conviction for making criminal threats. This statement, while undoubtedly menacing, is so non-specific that no reasonable jury could have concluded it was a threat to commit a “crime which will result in death or great bodily injury,” nor could a reasonable jury have found it “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.” (§ 422, subd. (a).) Similarly, the record offers no reason to believe the jury may have convicted Cubel of making criminal threats based on Brandon’s brief testimony that Cubel threatened Petrona F. most days of the week. Not only was the date of the offense clearly identified by the People, there was no evidence these nonspecific frequent threats were to kill or cause great bodily injury. Nor were they so clear, immediate, unconditional and specific that they communicated to Petrona F. a serious intention and the immediate prospect they would be carried out, or caused Petrona F. to be in sustained fear. Accordingly, these acts, while threatening in the colloquial sense, fall short of the legal standard for a criminal threat and could not have offered a basis for conviction here. We “ ‘presume that jurors are intelligent and capable of understanding and applying the court’s instructions.’ ” (People v. Mora and Rangel (2018) 5 Cal.5th 442 , 515.) That leaves Cubel’s promise to tear apart Petrona F.’s mother and sisters if she called the police; Petrona F.’s testimony Cubel said he would hurt her with an object; her report in the 13 911 call that Cubel was threatening to kill her; and the threat reported by Brandon that Cubel would cut Petrona F. and her family into small pieces if she called the police. To the extent these were distinct threats rather than variations across accounts or a later report of a threat already made, no unanimity instruction was required. A unanimity instruction “is not required ‘ “where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.” ’ ” (Grimes, supra, 1 Cal.5th at p. 727.) A defendant’s separate acts do not suggest more than one discrete crime—and thus do not necessitate a unanimity instruction—if they “are so closely connected,” including closely connected in time, “as to form part of one transaction.” (People v. Stankewitz (1990) 51 Cal.3d 72 , 100; People v. Crandell (1988) 46 Cal.3d 833 , 875, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346 , 364–365.) Courts are more likely to view separate acts as forming part of one transaction “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (Stankewitz, at p. 100.) Contrary to Cubel’s argument the various threatening statements he made were “distinct incidents separated by time and space,” Cubel’s threats were so closely connected spatially, temporally, and contextually that they constituted part of one transaction. Cubel’s statements were closely connected in time: over the course of an hour he threatened physical injury to his wife and her family until she was able to usher her children to relative safety and call for help. All the events occurred within a one-bedroom apartment, and they were all part of a single incident in which an enraged Cubel threatened to kill Petrona F. 14 while she attempted to defuse the situation and extricate herself and her four children from the danger he posed. After they disarmed the ranting Cubel, Petrona F. and Brandon attempted to calm him, and Petrona F. directed the three younger children into the bedroom. When Cubel stepped away to use the bathroom, Petrona F. and Brandon seized their opportunity and fled to the bedroom as well. There Petrona F. locked the door, barricaded herself and her children inside, and summoned police. Cubel’s threats were all of a piece: They were directed to one person, Petrona F., although he at least once expansively threatened to harm Petrona F.’s family in another country in addition to killing her; and to the extent the statements indicated a motive, they had the same apparent motive of dissuading Petrona F. from calling the police. Additionally, Cubel offered one defense—the threats, if they were made at all, did not place Petrona F. in sustained fear, and he was voluntarily intoxicated. There was no reasonable basis for the jury to distinguish between the threats. On analogous facts, courts have consistently concluded no unanimity instruction was necessary. (E.g., People v. Percelle (2005) 126 Cal.App.4th 164 , 182 [defendant’s acts occurred during a little over a one-hour period; no unanimity instruction required]; People v. Dieguez (2001) 89 Cal.App.4th 266 , 275 [multiple false statements to fraudulently obtain benefits made during a single medical visit; no unanimity instruction required]; People v. Haynes (1998) 61 Cal.App.4th 1282 , 1296 [defendant’s acts occurred “just minutes and blocks apart and involved the same property”; no unanimity instruction required]; People v. Mota (1981) 115 Cal.App.3d 227 , 233 [multiple sexual assaults over the course of one hour; no unanimity instruction required].) There was no error here. 15 II. Sufficiency of the Evidence Cubel claims the evidence was insufficient to support his conviction for making criminal threats because the prosecution failed to prove the threat was so clear, immediate, unconditional and specific that it communicated a serious intention and immediate prospect that it would be carried out. “ ‘ “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192 , 1212–1213.) “ ‘[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.’ [Citation.] We do not reweigh the evidence or resolve conflicts in the testimony when determining its legal sufficiency. [Citation.] Rather, before we can set aside a judgment of conviction for insufficiency of the evidence, ‘it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support [the jury’s finding].’ ” (People v. Garcia (2020) 46 Cal.App.5th 123 , 144–145.) 16 The evidence was sufficient to support the conviction. Both Petrona F. and Brandon testified to Cubel’s threats and the fear they caused her. Given Cubel’s prior domestic violence and the fact he had just armed himself with a knife in a physical confrontation with his own brother, a jury could easily conclude Cubel’s threats to kill Petrona F. and to cut her and her family into small pieces if she called the police were so clear, immediate, and specific that they communicated to her a serious intention and the immediate prospect the threat would be carried out. Petrona F.’s statements to the police and her 911 call indicated she feared Cubel and believed he would carry out his threat. Cubel points out Petrona F. and Brandon had “credibility problems,” but we neither reweigh the evidence nor reevaluate witness credibility. (People v. Lindberg (2008) 45 Cal.4th 1 , 27.) He asserts neither Brandon nor Petrona F. “seemed concerned about appellant’s alleged threats” while the incident was taking place, but there was evidence that during this time Petrona F. removed her three younger children from Cubel’s immediate presence; she and Brandon attempted to reason with and calm Cubel as he raved; and she and Brandon escaped to and barricaded themselves in the bedroom as soon as Cubel turned his attention away from them. The jury could reasonably have understood the events not as a display of indifference but as an attempt to defuse the situation and to devise an escape for Petrona F. and her children. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (Ibid.) 17 Cubel’s final challenges to the sufficiency of the evidence concern Brandon and Petrona’s conduct after the incident. He argues Brandon’s later statements to the police and a social worker “undermined []his testimony” Petrona F. appeared afraid of Cubel when she called 911, and Petrona F.’s desire not to prosecute and her description of Cubel as a “nice guy” when he was not drinking “were indicative that she did not perceive appellant’s alleged threats as a ‘clear, immediate, unconditional, and specific’ communication that he ‘seriously’ intended to immediately carry out his threat.” Here again Cubel invites the court to reevaluate credibility and reweigh the evidence. “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People v. Lee (2011) 51 Cal.4th 620 , 632.) The evidence was sufficient to support Cubel’s conviction. III. Admission of Uncharged Acts Over defense objection, the trial court admitted evidence of the uncharged 2013 rape, threats, and domestic violence. Cubel argues the evidence was inadmissible as propensity evidence; and even if it was admissible under Evidence Code section 1109, it should nonetheless have been excluded as more prejudicial than probative under Evidence Code section 352. We review the court’s ruling on the admissibility of evidence for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610 , 637), and conclude the evidence was properly admitted. 18 Although evidence of a person’s past conduct is generally not admissible to prove a propensity to commit the charged crime (Evid. Code, § 1101, subd. (a)), Evidence Code section 1109, subdivision (a)(1) provides, “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” For the purposes of Evidence Code section 1109, domestic violence “has the meaning set forth in Section 13700 of the Penal Code,” and if the act occurred no more than five years prior to the charged offense, as here, it also has the broader meaning set forth in Family Code section 6211. (Evid. Code, § 1109, subd. (d)(3).) Both section 13700 and Family Code section 6211 define domestic violence as abuse committed against specified categories of people, including spouses. (§ 13700, subd. (b); Fam. Code, § 6211.) Section 13700, subdivision (a) defines abuse as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” Family Code section 6203 defines abuse for purposes of Family Code section 6211 and the Domestic Violence Prevention Act (DVPA), stating it is “not limited to the actual infliction of physical injury or assault.” (Fam. Code, § 6203, subd. (b).) Abuse under the DVPA includes not only “intentionally or recklessly caus[ing] or attempt[ing] to cause bodily injury,” sexual assault, and “plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or to another” (Fam. Code, § 6203, subd. (a)(1)-(3)), but also conduct that may be enjoined under Family Code section 6320, including “molesting, attacking, 19 striking, stalking, threatening, sexually assaulting, [and] battering.” (Fam. Code, §§ 6320, subd. (a), 6203, subd. (a)(4).) Cubel’s 2013 uncharged conduct clearly falls within these statutory definitions of domestic violence. (See, e.g., People v. Ogle (2010) 185 Cal.App.4th 1138 , 1144–1145 [prior stalking of wife was domestic violence admissible under Evid. Code, § 1109]; People v. Kovacich (2011) 201 Cal.App.4th 863 , 892–896 [evidence of assault on family dog in front of family was domestic violence admissible under Evid. Code, § 1109].) Based on People v. Zavala (2005) 130 Cal.App.4th 758 , in which the court ruled stalking is not domestic violence within the meaning of Evidence Code section 1109, Cubel argues making criminal threats is not a crime of domestic violence. Zavala is inapposite. The Zavala court concluded stalking was not domestic violence as defined by section 13700 because stalking “does not require that the threat induced the victim to fear great bodily injury or death.” (Zavala, at p. 771.) But a “reasonable apprehension of imminent serious bodily injury to himself or herself” (§ 13700, subd. (a)) is required for the offense of making criminal threats: To constitute a criminal threat, the threat must be to commit a crime “which will result in death or great bodily injury to another person,” it must “convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” and the victim must reasonably be in sustained fear for his or her own safety or that of his or her immediate family. (§ 422, subd. (a).) Additionally, the Zavala court considered only whether stalking was domestic violence under section 13700, not under Family Code section 6211. Making criminal threats against a spouse falls within the 20 definition of domestic violence under both statutory definitions of domestic violence contemplated by Evidence Code section 1109. Cubel argues even if the evidence was admissible under Evidence Code section 1109, it should have been excluded because it was uncorroborated, Petrona F.’s testimony was contradictory, it was placed in front of the jury first to bolster the People’s weak case on the charged offenses, and it was inadmissible under Evidence Code section 352. The trial court did not abuse its discretion. The 2013 uncharged conduct was highly probative because it involved similar threats and was relevant to the element of sustained fear. It was not remote, as it occurred just a few years before the charged offenses, nor was it particularly inflammatory, as the conduct alleged was comparable to the charged offenses. The chronological presentation gave the jury context for Petrona F.’s description of her feelings and behavior in later incidents. Petrona F.’s credibility, the absence of corroborating evidence, the circumstances of her report of the incident, and inconsistencies in her testimony were all factors for the jury to consider in evaluating the value and weight to accord the evidence, but they do not demonstrate an abuse of discretion in admitting it. 21 DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS STRATTON, J. We concur: GRIMES, Acting P. J. WILEY, J. 22
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50 F.3d 1038 Williams v. Redd* NO. 94-6534 United States Court of Appeals, Eleventh Circuit. Mar 14, 1995 1 Appeal From: M.D.Ala., No. 94-00091-CV-A-N 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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Filed 12/1/20 P. v. Clark CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ---- THE PEOPLE, C089935 Plaintiff and Respondent, (Super. Ct. No. 18MH000001) v. MISHAKAL CLARK, Defendant and Appellant. Defendant, Mishakal Clark, appeals from his commitment as a sexually violent predator (SVP) following a court trial. He argues substantial evidence does not support that: (1) he was currently unable to control his dangerous sexual behavior, and (2) he could not be safely treated within the community. Disagreeing, we will affirm. 1 BACKGROUND On January 25, 2018, the People filed a petition to commit defendant as an SVP. (Welf. & Inst. Code, § 6600 et seq.)1 Following a probable cause hearing on April 19, 2018, defendant was committed to a state hospital pending trial. Defendant waived his right to a jury trial and the matter was tried to the court. At trial, the parties stipulated to the expertise of the People’s experts, Dr. Robert M. Owen and Dr. Steven Lovestrand, and agreed to enter their previous reports and supplemental reports into evidence. The parties also stipulated to the admission of the packet concerning defendant’s previous juvenile adjudication and the court took judicial notice of defendant’s convictions for failing to comply with sex offender registration requirements and possession of child pornography. Dr. Owen testified to interviewing defendant twice, first on October 30, 2017, and then on March 22, 2019. The first interview was to determine whether defendant met the criteria as an SVP and the second interview was to determine whether substantial changes altered Dr. Owen’s original conclusion, which they had not. In conducting his assessment, Dr. Owen also reviewed defendant’s records, including his prison file and abstracts of judgment. Defendant’s records showed that in 2001 he had committed an aggravated sexual assault. Defendant, then 16 years old, took a three-year-old child into the bushes at a swimming hole. He penetrated her and attempted sexual intercourse before removing her bathing suit and rubbing his penis on her vagina until he ejaculated, and then he let her go. Defendant was placed at the California Youth Authority (CYA) for approximately five years for this offense. Following his parole from the CYA, defendant did not comply with his release conditions and absconded. He was arrested at a campground 1 Undesignated statutory references are to the Welfare and Institutions Code. 2 with his wife and her three-year-old daughter2 and was sent to prison. After his release from prison in 2013, defendant was again placed on parole. A search of defendant’s phone by his parole officer uncovered 43 images of child pornography. Defendant also acknowledged hiding two thumb drives outside the parole office containing videos of child sexual abuse, including a video of 1 hour and 40 minutes depicting the sexual abuse of a six-year-old girl.3 Defendant was arrested, convicted, and sentenced to a new prison term for possession of child pornography. Dr. Owen opined that defendant currently suffered from pedophilic disorder.4 He based this opinion on defendant’s 2001 sexual abuse of a three year old wherein he ejaculated, the child pornography, and defendant’s admission that he found child pornography arousing, and as of March 2019, still had “pop-up thoughts of [an] erotic nature involving children, although he [was] getting better at suppressing those thoughts.” Dr. Owen also thought it noteworthy that defendant had sex with his 10-year- old brother when he was 14 years old, and had sexual contact with animals. While defendant mostly masturbated to adult females, he admitted to sometimes thinking about children under the age of eight. “He would think about them, fantasize about them and masturbate. And that really buttresses the diagnosis of pedophilic disorder when you 2 There was no evidence defendant abused this child, but Dr. Owen testified this did not mean he would not abuse a stranger child and could also have been explained if that particular child was not attractive to him. Further, Dr. Lovestrand testified that most pedophiles either abuse individuals they know or strangers (incest versus extrafamilial), and that extrafamilial offenders are more likely to reoffend. 3 Dr. Lovestrand testified there were also nearly 500 pornographic images on these flash drives of children between the ages of one and eight. 4 Dr. Owen defined pedophilic disorder as “involv[ing] at least six months of fantasies, urges or behaviors involving a child under the age of 13 and the perpetrator must be [16] years or older and it has to result in some kind of impairment in the individual, either a legal consequence as we have here or distress about the individuals actions.” 3 have these fantasies paired with masturbation, paired with ejaculation.” Defendant acknowledged still thinking about children even after going to prison for child pornography.5 Dr. Owen also performed assessments to evaluate defendant’s risk. Defendant’s score on the Static-99 indicated a high risk of reoffense. Defendant’s score was an eight, while an average sex offender would score a two. The assessment rated defendant’s likelihood of being caught and charged for a new sexual offense as 36 percent over five years and 48 percent over 10 years. Defendant also scored high on the dynamic risk evaluation, which considered his sexual deviance, failure to have long-term, meaningful relationships, and poor impulse control. He did, however, register low on the psychopathy assessment. Dr. Owen opined defendant posed a substantial risk of sexually reoffending in a predatory way due to his mental disorder without appropriate in-custody treatment. Dr. Owen further opined that defendant’s pedophilic disorder impaired his volition and put him at risk of acting on his impulses. That defendant was forthcoming concerning his sexual proclivities, including the hidden flash drives, was not tied to whether he is more or less dangerous. In fact, his failure to cooperate with supervision on parole strongly indicated a high risk of reoffense. Nonetheless, if defendant completed the treatment program at the state hospital,6 he could be one-third less likely to be arrested for a reoffense, even though pedophilia is a lifelong condition. 5 On cross-examination, Dr. Owen stated that defendant told him he no longer masturbates when children pop into his head (occurring about once a month), but rather “he had learned to stop masturbating to those.” However, Dr. Lovestrand relayed that defendant had admitted that he still had thoughts about children when masturbating, which he tries to redirect. 6 As of April 2019, defendant was in the “early phases of treatment,” although his progress was “steady.” 4 Dr. Lovestrand also conducted a section 6600 evaluation of defendant, reviewing his records and interviewing him twice, the first time for his initial evaluation in November 2017 and the second approximately a month before trial to evaluate defendant’s continuing risk. Dr. Lovestrand recounted defendant’s personal and criminal history and then opined defendant had three diagnosable mental disorders that predisposed him to commit criminal sexual acts: pedophilic disorder, alcohol use disorder, and marijuana use disorder, the latter two being in remission. Defendant actively suffered from pedophilic disorder, as he was still having fantasies involving children and that disorder would remain stable absent effective treatment to counteract it. In assessing defendant’s ongoing risk, Dr. Lovestrand performed the Structured Risk Assessment Forensic Version to measure dynamic risk factors and the Static-99 assessment. Both tests placed him in an above-average risk for reoffense, and defendant’s score of eight on the Static-99 assessment placed him in the 99th percentile. Defendant’s above-average dynamic risk, his high static risk, combined with his poor impulse control and history of absconding placed defendant at high risk of reoffense without appropriate treatment and custody.7 While defendant was actively engaging in the SVP program at Coalinga State Hospital, defendant had not made sufficient progress through that program to alter Dr. Lovestrand’s diagnosis and opinion. When asked about community treatment, Dr. Lovestrand opined that defendant could not “be safely and effectively treated in the community instead of in a locked, secure facility” and that community treatment was not “the best option for him.”8 7 Dr. Lovestrand’s report observed defendant’s volitional impairment in his viewing child pornography after having served time for a prior sex offense and in his repeated returns to these pornographic sites, despite his attempts to stop thinking about children sexually. 8 Dr. Owen’s report also rejected the appropriateness of community-based treatment. 5 Following its review of all the reports and in light of the expert testimony, the court found that defendant was an SVP who could not be safely treated within the community at this time. Accordingly, the court sustained the petition and committed him to a state hospital for treatment for an indefinite term. Defendant timely appealed. STANDARD OF REVIEW We review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the factfinder’s determination that defendant currently suffers from a diagnosed mental disorder as described by the statute. (People v. Mercer (1999) 70 Cal.App.4th 463 , 466.) To be substantial, the evidence must be “ ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid value.” ’ ” (Ibid.) “ ‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ ” (People v. Poulsom (2013) 213 Cal.App.4th 501 , 518 (Poulsom).) If substantial evidence supports the verdict, “ ‘we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ [Citation.] This is true even in the context of expert witness testimony.” (Ibid.) The credibility of an expert and his or her conclusions are to be resolved by the factfinder; “ ‘[w]e are not free to reweigh or reinterpret [that] evidence.’ ” (Ibid.) DISCUSSION I Defendant contends insufficient evidence supports the trial court’s determination that he was currently unable to control his dangerous sexual behavior because the experts’ conclusory opinions are not substantial evidence. We disagree. The requirements for classifying someone as an SVP are set forth in section 6600. The statute defines a “ ‘[s]exually violent predator’ ” as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of 6 others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) The phrase “ ‘[d]iagnosed mental disorder’ ” includes “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) Thus, to commit defendant as an SVP, the factfinder had to determine that defendant was previously convicted of a violent sexual offense and that he suffered from a mental disorder affecting his volitional or emotional capacity, thereby making him a danger to others because he was likely to engage in sexually violent criminal behavior. (Poulsom, supra, 213 Cal.App.4th at p. 517.) Defendant does not dispute that his prior convictions qualify as sexually violent offenses within the meaning of the statute. (§ 6600, subd. (b) [defining “ ‘[s]exually violent offense’ ”].) He only challenges the sufficiency of the evidence bearing on the latter requirement. According to defendant, one cannot decide whether a mental disorder makes the person a danger unless there is testimony concerning the etiology of that condition. But the root cause of defendant’s mental disorder is not relevant under the statute. Instead, section 6600 requires only that defendant’s mental disorder causes him to be a danger to others in that he is likely to engage in sexually violent predatory behavior. (§ 6600, subd. (a)(1).) The underlying etiology of the mental disorder—or what made him a pedophile in the first instance—is simply not in question. When viewed in the proper context, then, the issue is whether the record contains sufficient evidence that defendant is a danger to society because his diagnosed pedophilia makes it likely he will commit predatory acts of sexual violence if released. We are satisfied that the People’s expert testimony and reports constitute substantial evidence that defendant is a danger to others because he was likely to engage in sexually violent criminal behavior. (Poulsom, supra, 213 Cal.App.4th at p. 517; 7 People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 , 924 (Ghilotti) [due process requires a showing there is a “substantial danger of committing similar new crimes”].) As explained at length above, both Dr. Owen and Dr. Lovestrand opined defendant then suffered from pedophilic disorder, which may endure for a lifetime unless aggressively treated. During his qualifying offense, defendant, then 16 years old, took a three-year-old child into the woods, removed her swimsuit, penetrated her, attempted sexual intercourse, and then rubbed his penis against her vagina to masturbate to climax. Defendant’s victim was a stranger child, and extrafamilial offenders are more likely to reoffend. Defendant participated in sex offender treatment at the CYA, but was unable or unwilling to control his sexually deviant thoughts following his release and was rearrested for possession of child pornography. This behavior and his inability to stop viewing child pornography, despite his attempts to stop thinking about children sexually, showed defendant’s poor volitional control. While defendant was actively participating in treatment at the state hospital, he was only in the early stages. Defendant himself admitted to still having pop-up fantasies concerning children, at least some of which occurred during masturbation. Further, assessment testing by both doctors put defendant at an extremely high risk for reoffense. Defendant’s above-average dynamic risk, his high static risk, combined with his poor impulse control, and history of absconding from authorities placed defendant at high risk of reoffense without appropriate treatment and custody. In light of this information, both doctors opined defendant posed a substantial risk of reoffending in a predatory way due to his mental disorder without appropriate custodial treatment. This is substantial evidence supporting the trial court’s SVP commitment. II Defendant further challenges his SVP commitment arguing that substantial evidence does not support the trial court’s determination that he could not be safely treated within the community. We disagree. 8 While amenability to treatment within the community is one factor that the trial court must consider in determining whether to commit an individual as an SVP (see People v. Shazier (2014) 60 Cal.4th 109 , 131 [trial court must consider whether an individual’s dangerous mental condition requires confinement or whether outpatient treatment could eliminate the substantial risk of reoffense]; Ghilotti, supra, 27 Cal.4th at pp. 926-928 [same]), here, we find substantial evidence supports the conclusion that defendant could not be safely treated within the community. Defendant failed parole on two occasions by absconding and in one instance reoffending through possession of a sizable cache of child pornography that included around 500 pornographic images of prepubescent girls and two videos of sexual abuse of girls around six years of age. Defendant admitted he still had pop-up sexual thoughts about children, some of which occurred during masturbation, although he was trying to alter this behavior. Defendant also had extremely high-risk-for-reoffense scores from assessments conducted by both Dr. Owen and Dr. Lovestrand. Dr. Lovestrand opined that community treatment was not “the best option” for defendant and that without appropriate “treatment and custody,” defendant would be at high risk to reoffend. Dr. Lovestrand worried that defendant lacked the motivation to voluntarily pursue sex offender treatment that was not affirmatively required of him. Dr. Owen likewise rejected the appropriateness of community-based treatment. He noted defendant’s postrelease plans included parole outpatient treatment, but not a formal sex offender treatment program. Dr. Owen was also concerned that defendant’s lack of resources, including his history of homelessness and unemployment, would preclude him from obtaining community-based treatment. Thus, even though defendant expressed an interest in treatment, was participating in treatment in a custodial setting at the state hospital, and there was no affirmative evidence offered that there were no outpatient treatment programs in defendant’s community, defendant’s poor performance on parole, combined with his continuing 9 pedophilia, and high-risk assessments constituted substantial evidence supporting the court’s determination that custodial treatment was necessary. (See People v. Shazier, supra, 60 Cal.4th at pp. 131-133 [factfinder has latitude to consider external factors bearing on the ultimate issue: whether the individual is likely to reoffend without confinement].) We are unpersuaded by defendant’s arguments that he had not committed a new offense against a child since 2001. As explained by Dr. Owen, defendant spent the majority of that time in prison, did not have the opportunity to reoffend against children in prison, and thus, his lack of reoffense merely goes to his outward behavior in a custodial setting. (See, e.g., People v. Sumahit (2005) 128 Cal.App.4th 347 , 353 [absence of assault of staff merely shows the defendant’s behavior in controlled setting].) Further, that defendant appears not to have reoffended with his three-year-old stepdaughter is not dispositive of whether he would reoffend against another stranger child. Finally, defendant’s possession of sizeable amounts of child pornography of prepubescent girls in 2013 following his completion of sex offender treatment in the CYA further supports defendant’s continuing risk to the community. DISPOSITION The judgment is affirmed. /s/ RAYE, P. J. We concur: /s/ BLEASE, J. /s/ KRAUSE, J. 10
4,539,194
2020-06-05 07:03:43.754914+00
null
https://efast.gaappeals.us/download?filingId=eb97ce7b-e9a9-4042-9ac3-3a0f4d2fa224
SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules). June 3, 2020 In the Court of Appeals of Georgia A20A0482. DENHARDT v. SPARKS. MILLER, Presiding Judge. This appeal concerns excess funds generated from a tax sale of real property. Eddie Denhardt appeals from the trial court’s grant of Carolyn Sparks’ motion to dismiss, arguing that the trial court erred in dismissing his claim to the excess funds on the basis that his judgment lien did not entitle him to receive a distribution under OCGA § 48-4-5. We determine that Denhardt was not entitled to a distribution under OCGA § 48-4-5, and we therefore affirm the trial court’s grant of the motion to dismiss. “Whether [Denhardt] has a priority interest in the [f]unds under the relevant statutes is a question of law, which we review de novo.” Bridges v. Collins-Hooten, 339 Ga. App. 756 , 758 (1) (792 SE2d 721) (2016). In October 2018, the Sheriff of Fulton County held a non-judicial tax sale of real property, for which Carolyn Sparks was the record owner. Sparks became the record owner by virtue of a 2014 quitclaim deed from Vernard Thomas, Jr. Prior to this conveyance, Thomas had executed a 2008 security deed for the same property in favor of American General Financial Services, Inc.1 In 2010, SLS Recovery, Inc. won a money judgment against American General Finance, Inc., that was unrelated to the property, and SLS recorded its lien in Fulton County in 2011. Then, in January 2017, SLS assigned its judgment and writ of fi. fa. to National Title Clearing, LLC. The 2018 tax sale of the real property generated $21,986.59 in excess funds, and the sheriff filed a petition for interpleader in the Superior Court of Fulton County under OCGA §§ 48-4-5 and 23-3-90, requesting that the superior court determine which person or entity was entitled to the excess funds. The petition indicated that Sparks may have a claim to the excess funds by virtue of her ownership interest in the property at the time of the tax sale. The petition further noted that National Title Clearing had also asserted a claim to a portion of the excess funds, as the holder of 1 American General Finance, Inc. was the predecessor to American General Financial Services, Inc. American General Financial Services, Inc. then changed its name in 2011, before becoming known as OneMain Financial Services, Inc. in 2016. OneMain has not asserted any claim to the excess funds, though the record shows that OneMain was named in the sheriff’s petition and was served. 2 an assignment of judgment against “American General Finance,” which held a security interest in the property at the time of the tax sale. National Title Clearing, Sparks, and Fulton County responded to the sheriff’s petition. National Title Clearing claimed that, after the payment of any unpaid ad valorem taxes and solid waste fees, it held the highest priority interest in the excess funds. Thereafter, Denhardt filed a motion requesting that he be substituted in the place of National Title Clearing because National Title Clearing had assigned him its judgment and writ of fi. fa. National Title Clearing consented to Denhardt’s motion to substitute, and the trial court allowed Denhardt to be substituted in National Title Clearing’s place. Eventually, only Sparks’ and Denhardt’s competing claims to the excess funds remained, and the trial court ordered both parties to appear at a scheduled hearing. Sparks filed a motion to dismiss Denhardt’s claim, raising three arguments: (1) the sheriff’s interpleader action was brought under OCGA § 48-4-5 and Denhardt was not entitled to distribution of the excess funds under the statute; (2) Denhardt’s judgment lien was invalid; and (3) even if Denhardt’s judgment lien had been valid at the time it was entered, it had since lost its lien powers in Fulton County. The trial court then granted Sparks’ motion to dismiss Denhardt’s claim and awarded the 3 excess funds to Sparks. The trial court reasoned that Denhardt’s judgment was against a corporate entity, and not the property that had been sold, and that Denhardt’s judgment lien was merely “against a predecessor in interest to a grantee of a security deed.” Therefore, the trial court concluded that Denhardt was not in fact an “interested party” under OCGA § 48-4-5, and could not receive any of the excess funds under the statute. Denhardt then filed a timely appeal. In his sole enumeration of error, Denhardt argues that the trial court erred by dismissing his claim to the excess funds. We determine that Denhardt was not entitled to a distribution of any portion of the excess funds under OCGA § 48-4-5. “When a tax sale generates additional funds more than those necessary to satisfy the tax lien, OCGA § 48-4-5 (a) governs the payment of excess tax sale proceeds.” Bridges, supra , 339 Ga. App. at 759 (1). According to this statute, [i]f there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. . . . The notice shall state that the excess funds are available for distribution 4 to the owner or owners as their interests appear in the order of priority in which their interests exist. (Emphases supplied.) OCGA § 48-4-5 (a). The subsection following provides that “[s]uch excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.” (Emphasis supplied.) OCGA § 48-4-5 (b). Denhardt does not argue that he is an “intended party” under OCGA § 48-4-5 (b). Nowhere in his appellate briefs does he claim to own any interest prescribed in OCGA § 48-4-5 (a) or any interest whatsoever that affects the real property so as to bring him within the ambit of the OCGA § 48-4-5 (b). Rather, his argument is that after the tax sale occurred, the excess funds transmuted into personal property belonging to a priority lienholder, presumably the holder of the 2008 security deed against the real property, and this personal property, in turn, is subject to his lien. The language of OCGA § 48-4-5 (b), however, is unequivocal: the superior court “shall” distribute the excess funds “to the intended parties.” And OCGA § 48-4-5 simply does not contemplate the superior court’s distribution of the excess funds to persons without an interest in the real property. See, e.g., Bridges, supra , 339 Ga. App. at 761 (1) (where lienholder no longer retained a priority lien on the property, lienholder was 5 not entitled to receipt of excess funds under OCGA § 48-4-5 (b)); Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 185 (787 SE2d 245) (2016) (appellant’s right to the excess funds under OCGA § 48-4-5 was established at the time of the tax sale, at which time it “held an interest in the property”); see also Performance Food Grp., Inc. v. Davis, 346 Ga. App. 487 , 491 (2) (816 SE2d 468) (2018) (because the Bank did not provide proof of an outstanding balance on the security deed for the property, the Bank failed to show that it had a valid priority interest in the excess funds under OCGA § 48-4-5 (b)).2 If we were to hold otherwise, we would effectively rewrite the statute, and that we cannot do. Jackson v. Sluder, 256 Ga. App. 812 , 818 (2) (569 SE2d 893) (2002) (“Under the guise of construing a statute, we are not at liberty to rewrite it.”) (citation omitted). Thus, Denhardt’s judgment lien, without more, does not entitle him to a distribution of the excess funds under OCGA § 48-4-5. 2 We note that our decision in Barrett v. Marathon Inv. Corp., 268 Ga. App. 196 , 197-198 (1) (601 SE2d 516) (2004), on which Denhardt relies, does not dictate our conclusion in this case. In Barrett, we analyzed a prior and considerably broader version of OCGA § 48-4-5, under which the excess funds were distributed to “the person authorized to receive the excess.” Id. at 197 (1). The legislature had not defined what that phrase meant. Id. The legislature thereafter overhauled OCGA § 48- 4-5, the current version of which applies here. 6 To the extent that Denhardt relies on various more general statutes to buttress his contentions that he has an enforceable judgment lien that has attached to the excess funds and that the superior court is obligated to assist him in collecting on his judgment as a matter of equity, “it is axiomatic that the terms of a specific statute govern over those of a more general statute[.]” (Citation omitted.) Newton v. Lawson, 313 Ga. App. 29 , 33 (2) (720 SE2d 353) (2011). Therefore, the more specific provisions of OCGA § 48-4-5 — which directly govern the superior court’s distribution of excess funds after a tax sale of real property — control in this case. Because Denhardt was not entitled to a distribution of the excess funds under OCGA § 48-4-5, the trial court properly granted Sparks’ motion to dismiss. Judgment affirmed. Mercier and Coomer, JJ., concur. 7
4,489,046
2020-01-17 22:01:38.373604+00
Littleton
null
*1057OPINION. Littleton: A claim for personal service classification witb its special method of tax must be clearly proved and can not be loosely granted. Simon Agency, 6 B. T. A. 432. Since the petitioner is seeking to overturn the determination of the Commissioner, the burden is upon it clearly to establish by competent and satisfactory evidence that it comes within the class of corporations referred to. Commercial Reference Co., 7 B. T. A. 384. To entitle a corporation to be classified as a personal service corporation, the income thereof must be ascribed primarily to the activities of the principal owners or stockholders, such principal owners or stockholders must themselves be regularly engaged in the active conduct of the affairs ,of the corporation, and capital (whether invested or borrowed) must not be a material income-producing factor. Failure to come within any one of the requirements of these is fatal to the claim that a corporation is a personal service corporation. It is not necessary, therefore, to consider whether the petitioner fails to’meet all the requirements of the statute, if the evidence shows that any one of them has not been met. The only stockholder who devoted all his time to the business of the company was its president, E. P. Kenyon, and under cross-examination he testified as follows: Q. Now, in your income tax report for the year 1917 you state that these master cards are the principal asset of your business; is that a fact? A. We regard them so; we could not do business without them; if they were to become lost, we would not know where to .look for the origin of our records. Q. Well, are they pretty costly? A. Not necessarily costly, but the maintenance of them, the value that you place on them is the result of them being the .only record that you have leading to a logical source of information. In his testimony he compared the master card record system and the rendering of reports from information contained on such cards to the work of an abstractor in preparing his records and serving his clients. Calkins, the assistant secretary and a nonstockholder, appears to have been responsible for the keeping of the card record system, as is indicated by the testimony of Kenyon, the president of petitioner, which was as follows: Q. You used those cards all during this period? A. Yes. Q. And prepared them each year? A. They are prepared right along; we probably have got a million of them. Q. And that is the work that Calkins does? A. He supervisé that; it is a department that he is responsible for. *1058The total sum expended or invested in the card system from 1909 to 1917 was $38,637.97. Other sums were, after 1917, spent on or in connection with the master card system. The master cards, continually added to and kept current, constituted an important if not the main asset of the business. In St. Paul Abstract Go., 6 B. T. A. 1225, 1231, we stated: It is clear that the abstract records constituting its plant were capital. While we do not know the amount invested in such assets, we do know that they were used by the petitioner in producing its income. They had been built up over a long period of years. It was necessary to keep them posted from day to day from the public records. Appeal of Record, Abstract Co., 2 B. T. A. 628. The amount of capital used in the business is not important if what was used was a material factor in producing the income. We think that the recoi’ds and books of the petitioner which it used in making its abstracts of title were a material factor in the production of the income. It was testified that the same service could not have been rendered without them; that petitioner could not have made as much money and that without these records it would have taken at least 25 per cent longer time to prepare the abstracts. Even if. it be conceded that it was not necessary to use these records in carrying on the business, the fact is they were actually used with great advantage. The saving of 25 per cent of time by their use is itself a material element of advantage and was a material income-producing factor. The fact also appears that the same service could not have been rendered without them. There is no doubt but that the card records, on which so much had been expended and which were utilized so constantly, were a material income-producing factor and these records were very important in the carrying on of petitioner’s business. The evidence shows the business could not have been carried on without them. The facts of this case are similar to those in the case of the Commercial Reference Co., B. T. A. 384, in which the Board stated: * * * It is shown in the evidence that the files and “ Red Book ” described were used by petitioner and were necessary to enable it to render the services from which it received its income. While the investigators and reporters were subject to the instructions of the officers of the corporation who were stockholders, it can not be said that the income of the petitioner resulting from the services of such investigators and reporters was primarily due to the activities of the stockholders. The Board is of the opinion that during the taxable years the capital invested by petitioner was a material income-producing factor and also that the income of petitioner cannot be ascribed primarily to the activities of the principal stockholders who were regularly engaged in the active conduct of its business affairs. Matteson Co. v. Willcuts, 12 Fed. (2d) 447; Record Abstract Co., 2 B. T. A. 628; Home Insurance Agency, 5 B. T. A. 1020; Patterson-Andress Co., 6 B. T. A. 392; Cuyahoga Abstract Title & Trust Co., 7 B. T. A. 95. The case of Cuyahoga Abstract Title & Trust Co., 7 B. T. A. 95, in which the Board denied personal service, was gifirmed by the Court of Appeals of the District of Columbia, in which the court stated: *1059* * * The abstract plant which was maintained at the office of the corporation was indispensable in the operation of its business. In the making of an abstract the data relative to a title would be obtained from the corporation’s records by competent employees, and the abstract when completed would be passed upon by one of the principal stockholders of the company, or under his inspection. * * * The other persons employed in producing the output of the plant greatly outnumbered the principal stockholders and were paid annually an aggregate sum three to five times as much as the principal stockholders. Moreover these employees were as indispensable to the operation of the plant as were the principal stockholders themselves. See Metropolitan Business College v. Blair, 24 Fed. (2d) 176. We think it -equally certain that the corporation was not one in which invested capital was not a material income-producing factor. The plant above described constituted a productive investment capital without ■ which the corporation’s business could not be operated. * * * In our opinion capital in the instant case was a material income-producing factor in the petitioner’s business, which could not have been carried on but for the master card system and there was, therefore, no error committed in denying personal service classification to petitioner. We think also that it can not be said that the income of the petitioner may be ascribed primarily to the activities of the principal stockholder and, such being true, petitioner does not come within the scope of section 200 of the Revenue Acts of 1918 and 1921. An alternative claim for special assessment for 1919, 1920, and 1921 was waived at the hearing. «Judgment will he entered for the respondent.
4,638,501
2020-12-01 18:02:42.698527+00
null
https://www.courts.ca.gov/opinions/nonpub/B299749.PDF
Filed 12/1/20 P. v. Antonelli CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B299749 (Super. Ct. No. CR27515) Plaintiff and Respondent, (Ventura County) v. TIMOTHY PATRIC ANTONELLI, Defendant and Appellant. In the companion case of (People v. Johnson and People v. Baker-Riley (2020) __ Cal.App.5th __ [2020 Cal.App. LEXIS 1060) (Johnson/Baker-Riley) we held that the provocative act murder theory survives Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437) and no evidentiary hearing was required. In the instant case, we again so hold. What is different here, is that there was a full evidentiary hearing. Thus, in appellate parlance, this appeal has now morphed into a “substantial evidence” case. And substantial evidence supports the trial court’s express “major participant” and “reckless indifference” findings. Timothy Patric Antonelli appeals a postjudgment order denying his petition to vacate his 1991 first degree murder conviction and 25-year-to-life state prison sentence. (Pen. Code, § 1170.95, subd. (d)(3).)1 At the hearing the prosecution proved beyond a reasonable doubt, that petitioner was ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The trial court denied the petition factually finding that petitioner was a major participant in a home invasion robbery who acted with reckless indifference to human life. (§189, subd. (e)(3).) We affirm. In 1991, a jury convicted petitioner of, inter alia, provocative act murder after his accomplice was shot and killed by a victim during a home invasion robbery. Petitioner concedes in his opening brief: “The [trial] court did not instruct on felony- murder.”2 We affirmed the judgment of conviction in 1993 with sentence modifications. (People v. Antonelli (Sept. 28, 1993, B059426) [nonpub. opn.].) S.B. 1437, now permits defendants convicted of murder pursuant to the felony murder rule or natural and probable consequences doctrine to petition for resentencing based on changes to Penal Code sections 188 and 189. Section 188, subdivision (a)(3) was amended to provide that malice, the quintessential element for murder, “shall not be imputed to a person based solely on his or her participation in a crime.” (See 1 All further statutory references are to the Penal Code. 2 A provocative act murder case necessarily involves at least three people: the perpetrator of the underlying offense, an accomplice, and a victim of their crime. (People v. Gonzalez (2012) 54 Cal.4th 643 , 654 (Gonzalez).) 2 People v. Munoz (2019) 39 Cal.App.5th 738 , 749 [S.B. 1437 “‘redefined “malice” in section 188’”].) In People v. Lee (2020) 49 Cal.App.5th 254 (Lee), review granted July 15, 2020, S262459, our colleagues in Division One held that provocative act murder survives S.B. 1437. Here, petitioner and two armed accomplices committed a home invasion robbery, during which a victim fought back and killed one accomplice. We agree with the rule and rationale of Lee. And, based thereon, we affirm. But, there is a separate and distinct reason why we affirm. Even if petitioner had been convicted of felony murder and/or the natural and probable consequences theory, and even if provocative act murder is a “subset” of these two theories, appellant would still not prevail. As we shall explain, it took no leap in logic for the trial court to find that petitioner was a major participant in the robbery and acted with reckless indifference to human life. Factual and Procedural History After issuing an order to show cause (§ 1170.95, subds. (c) & (d)) the superior court conducted an evidentiary hearing. The following evidence was introduced: On January 1, 1991, Phil Shine called Leslie Phipps in the early morning hours and asked Phipps to come to a New Year’s eve party at Melody Hatcher’s and Paul Blair’s house in Ojai. Shine asked her to bring marijuana. Phipps declined but told her roommate, petitioner, about the party. Petitioner called Shine 20 minutes later, asked for directions, and said he would bring marijuana. Petitioner and Frank Stoddard hatched a plan to rob everyone at the party. Phipps overheard Stoddard say something 3 about two guns and splitting something three ways. Stoddard told appellant they would “‘pick up Ronnie [Brown] and go on up there.’” Brown told his roommate, Shane Allen, he was going with Stoddard and petitioner to “‘hit a party in Ojai.’” Petitioner and Stoddard picked up Ron Brown. Stoddard and Brown armed themselves with a .30-06 semiautomatic rifle and a .22 semiautomatic pistol. Petitioner knocked on the front door and looked to his right outside the doorway as Melody Hatcher opened the door. Wearing ski masks, Stoddard and Brown burst into the house brandishing the rifle and pistol. Petitioner cleared the doorway, threw Hatcher down on a couch and got down next to her. Party guests Billie Joe Gregory, August Howard and John Schommer were sitting at the dining room table. Scott Blair was in the bedroom. Shouting “‘police, everybody down,’” Stoddard and Brown herded everyone into the living room and demanded money, drugs, and jewelry. Stoddard ordered John Schommer to turn over his valuables. Schommer had nothing. Stoddard yelled “‘then you’re just going to die’” and repeatedly kicked Schommer in the head. Fearing for his life, Gregory turned over his wallet with five dollars in it. Stoddard hit Gregory in the head with the rifle, knocking him unconscious. Angry about the paucity of the take, Stoddard yelled “‘if this is all the money you guys could come up with, we’ll just go over here [and] blow this fucking bitch’s [Hatcher’s] brains out.’” Stoddard dragged Hatcher by the hair into the kitchen. August Howard tried to rescue Hatcher but was shot in the eye by Stoddard. Shrine thought they were all going to die 4 and grabbed for Stoddard’s pistol. A melee ensued. It was petitioner and his armed cohorts versus six or more angry partygoers. Brown hit Shine with the rifle as Stoddard stood close by with the pistol. Shine fought back and grabbed the rifle and pistol barrels, as Brown bit down on Scott Blair’s thumb. Gregory jumped into the fray, grabbed the rifle, and clubbed Brown with it until Brown released Blair’s thumb. Brown and Schommer fought one another until Brown held a buck knife to Schommer’s neck. Fearing that Schommer would be killed, Gregory fired two shots, killing Brown. Someone called 911. The gun shots were so loud they could be heard on the 911 dispatcher tape. The fighting continued. Shrine and Stoddard struggled to get control of the .22 pistol. Gregory shot a round at Stoddard, ran out of bullets, and beat Stoddard with the rifle stock until it broke. Stoddard let go of the pistol and ran. A white Ford Escort was outside the house with the engine running. As Gregory ran toward it, petitioner drove away and left Stoddard behind. The Subset Theory Petitioner claims that a provocative act murder is a subset of the felony murder doctrine and, like the felony murder doctrine, was “eliminated” by S.B. 1437. The argument is based on the theory that petitioner cannot be convicted of felony- murder because he harbored no malice to kill his accomplice, Brown. That is the holding of People v. Washington (1965) 62 Cal.2d 777 (Washington) which predates S.B. 1437 and focuses on a well-known exception to the felony-murder rule. Malice will not be imputed to the robber if the killing is committed by the victim 5 rather than the robber or his accomplice. (Id. at p 781.) “The provocative act doctrine is not so limited. Under the provocative act doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.]” (Gonzalez, supra, 54 Cal.4th at p. 655.) “‘In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.’ [Citation.]” (Ibid.) Petitioner argues that S.B. 1437 eliminates the provocative act murder doctrine. But S.B. 1437 does not use the phrase “provocative act murder.” We held to the contrary in Johnson/Baker-Riley, and pointed out that we do not add language and/or unarticulated theories to a statue. S.B. 1437 says it was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f), italics added; see People v. Martinez (2019) 31 Cal.App.5th 719 , 723.) S.B. 1437 does this by amending section 188 to provide that, except as stated in section 189, subdivision (e) all principals to murder must act with express or implied malice to be convicted of murder. (Stats. 2018, ch. 1015, § 2.) “Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) As amended, section 189, subdivision (e)(3) provides that if the defendant is not the actual killer or a direct aider and abettor, the defendant 6 must be a major participant in the underlying felony and act with reckless indifference to human life to be liable for murder. (Stats. 2018, ch. 1015, § 3.) The S.B. 1437 Allows a Murder Conviction Where the Defendant is a Major Participant and Acts With Reckless Indifference to Human Life Petitioner does not argue that he was convicted of murder based on the reasonable and probable consequences doctrine theory. But he does argue that he is automatically entitled to S.B. 1437 resentencing. That is not determinative. Regardless of what murder theory was used to convict before the enactment of S.B. 1437, a defendant is not eligible for resentencing if he or she was a major participant in the underlying dangerous felony and acted with reckless indifference to human life. (§§ 189, subd. (e)(3), 1170.95, subd. (d)(2).) This equates to malice, and more specifically implied malice. “Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(2); see CALCRIM No. 522 [“provocation does not apply to a prosecution under a theory of felony murder”].) Petitioner claims that a provocative act murder is a combination of felony murder and natural and probable consequence murder. A similar argument was rejected in Lee, supra, 49 Cal.App.5th at page 266. Provocative act murder is not a subset of either felony murder or natural and probable consequences murder because a provocative act murder requires proof of malice. (Ibid.) The provocative act murder requires that “the defendant personally harbor[] the mental state of malice, and either the defendant or an accomplice intentionally commit[] 7 a provocative act that proximately caused an unlawful killing. [Citations.]” (Gonzalez, supra, 54 Cal.4th at p. 655.) Petitioner was tried and convicted for provocative act murder based on the 1991 version of CALJIC No. 8.12 which instructed on implied malice and told the jury that the provocative act can be committed by defendant or a surviving accomplice. He argues that S.B. 1437 changes the law of provocative act murder liability and now requires that the robber-defendant commit the provocative act by brandishing a firearm, as was the case in Lee, supra, 49 Cal.App.5th 254 . A major participant to a home invasion robbery doesn’t have to wield a firearm or even be at the crime scene. We so held in People v. Johnson (2013) 221 Cal.App.4th 623 , 627: “The ‘mastermind’ of an armed home-invasion robbery who sends his accomplices to do his bidding can be convicted of first degree murder if one of his accomplices engages in provocative conduct and the victim kills in reasonable response to that conduct.” (Ibid.) In affirming petitioner’s conviction in 1993, we stated: “The jury determined that [petitioner] planned an armed robbery. [He was the “mastermind.”] He knew that his accomplices were carrying weapons to the robbery site, that multiple persons would be victimized, that the guns would naturally and probably would be used to assault the victims. The jury could also [draw the rational inference] that victim resistance to these aggravated assaults would be likely, especially where, as here, the victims outnumbered the robbers.” All of this makes petitioner a major participant who acted with reckless indifference to human life. (See, e.g., In re Bennett (2018) 26 Cal.App.5th 1002 , 1018 [major participant is 8 one of the more important members of the group].) Petitioner conceived and planned the home invasion robbery, drove his comrades with firearms to the house, facilitated the entry, and threw the party host, Hatcher, on the couch before she was dragged into the kitchen and threatened with her life. It set in motion a horrific home invasion. Stoddard and Brown beat the victims with a rifle, knocked Gregory unconscious, shot Howard in the eye, and nearly bit off Blair’s thumb. It was highly likely that the victims would fight back and someone would be killed. The jury was instructed there was no murder liability if Brown’s “provocative conduct alone” got him killed. (See Washington, supra, 62 Cal.2d at p. 781; Gonzalez, supra, 54 Cal.4th at p. 654.) But there was a second accomplice, Stoddard, and he was also a major participant. We observe if not for petitioner, there would be no home invasion robbery, and no death. Banks and Clark Taking his cue from a line of death penalty cases, petitioner claims that the prosecution failed to prove that he acted with reckless indifference to human life for purposes of S.B. 1437. Being a major participant in a dangerous felony and acting with reckless indifference to human life often overlap. (People v. Clark (2016) 63 Cal.4th 522 , 614-615 (Clark).) In People v. Banks (2015) 61 Cal.4th 788 , our Supreme court set forth a non- exclusive list of factors in determining whether the defendant was a major participant: defendant’s role in planning the criminal enterprise; his role in supplying or using lethal weapons; his awareness of the dangers posed by the crime; his presence at the scene; his actions or inactions in the death; and what defendant did after lethal force was used. (Id. at p. 803.) “No one 9 of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently significant to be considered ‘major’ [citations].” (Ibid.; see also In re Scoggins (2020) 9 Cal.5th 667 , 677.) In Clark, supra, 63 Cal.4th 522 , our Supreme Court described the reckless indifference to human life factors: defendant’s knowledge that weapons would be used; how the weapons were used; the number of weapons used; defendant’s proximity to the crime, his opportunity to stop the killing or aid the victims; the duration of the crime; defendant’s knowledge of the killer’s (accomplice’s) propensity to kill; and defendant’s efforts to minimize the possibility of violence during the crime. (Id. at pp. 616-623; see In re Taylor (2019) 34 Cal.App.5th 543 , 546 [Banks and Clark “clarified” what it means for an aiding and abetting defendant to be a major participant who acts with reckless indifference to human life].)3 Reckless indifference “encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.” (Clark, supra, at p. 617.) The evidence and the extant case law was considered by the trial judge at the S.B. 1437 hearing. The trial court sits as a trier of fact at a S.B. 1437 evidentiary hearing. It factually 3The Banks and Clark factors are derived from the United States Supreme Court’s death penalty opinions in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida (1982) 458 U.S. 782 . (See In re Taylor, supra, 34 Cal.App.5th at pp. 551- 554.) 10 found that petitioner was a major participant and acted with a reckless indifference to human life. This factual finding is subject to review by the well-settled substantial evidence rule. (See, e.g., People v. Morales (2020) 10 Cal.5th 76 , 88.) Substantial evidence supports the trial court’s ruling. Conclusion The judgment is affirmed. NOT TO BE PUBLISHED. YEGAN J. I concur: GILBERT, P. J. 11 TANGEMAN, J., Concurring: The majority hold that “the provocative act murder theory survives Senate Bill No. 1437 . . . and no evidentiary hearing [is] required.” (Maj. opn. ante, at. p. 1.) They accordingly affirm the trial court’s order denying Senate Bill No. 1437 (S.B. 1437) relief to appellant. Because I question that underlying premise but agree with the result reached here, I concur. An important issue presented by this case is whether provocative act murder liability attaches after passage of S.B. 1437 where, as here, the defendant did not commit the provocative act. Appellant contends it does not. This precise question has not been resolved. (See People v. Lee (2020) 49 Cal.App.5th 254 , review granted July 15, 2020, S262459 (Lee) [S.B. 1437 not applicable to provocative act murder conviction of defendant who committed the provocative act]; cf. CALJIC No. 8.12 and CALCRIM No. 561.) The jury here was instructed that appellant is guilty of murder if “a perpetrator of the crime” “intentionally committed a provocative act” “with knowledge of the danger to and with conscious disregard for human life.” (Former CALJIC No. 8.12.) Thus, appellant could have been convicted based solely on the actions, and the implied malice, of his accomplice, Stoddard. The question thus arises whether appellant could now be convicted of murder under the amended statutes pursuant to the provocative act theory if he was (1) not the killer, (2) had no intent to kill, and (3) was not a major participant who acted with reckless indifference to human life. Section 1 of S.B. 1437 provides in subdivision (f): “It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to 1 ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1.) S.B. 1437 does not mention provocative act murder, but Penal Code section 1881 was amended to broadly provide that except as stated in section 189, subdivision (e), all principals to murder must act with express or implied malice to be convicted of murder. (Stats. 2018, ch. 1015, § 2.) And under current law, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Moreover, section 189, subdivision (e)(3) now provides that if the defendant was not (like appellant) the actual killer or one who acted with intent to kill, then the defendant must have been a major participant in the underlying felony who acted with reckless indifference to human life to incur murder liability. These statutory amendments are incongruent with the rule that murder liability continues for actors who are neither present at, nor participating in, a melee in which an accomplice is unexpectedly killed by a robbery victim. We need not answer that question because the evidence clearly meets the applicable standard even if S.B. 1437 applies, as appellant contends. The facts of this case are similar to those in People v. Bascomb (2020) 55 Cal.App.5th 1077 (Bascomb), which involved two codefendants who planned and executed a midday home invasion robbery of a drug dealer. After barging into the dealer’s home with guns, they forced a victim to the ground and brandished their weapons “to threaten the residents and keep them pinned down throughout the duration of 1 Further statutory references are to the Penal Code. 2 the robbery.” (Id. at p. 1089.) The appellant’s accomplice accosted the murder victim in the adjoining bedroom and killed him. They then fled without rendering aid. On these facts, the court concluded that “this sort of conduct easily meets our state’s standard for what constitutes being a major participant who acted with reckless indifference to human life.” (Ibid.) In reaching this conclusion, the Bascomb court contrasted “‘garden-variety’” robberies such as those involving convenience stores or persons on the street, where “‘resistance, if any, would be slight, and armed resistance likely nonexistent,’” and “‘the planned, armed robbery of a known drug dealer at his residence.’” (Bascomb, supra, 55 Cal.App.5th at pp. 1087, 1090.) As in Bascomb, we are confronted here with the latter, not the former. The same result follows here. Appellant cites as mitigating factors that he was unarmed and fled the scene at some unknown time, so he could not have restrained his accomplices or rendered aid after his departure. But he planned the home invasion for the early morning hours when multiple victims were known to be present and likely intoxicated, he knew his two accomplices were armed, and he assisted the robbery by pinning one victim to the ground while his cohorts threatened and pistol-whipped the other victims. This conduct is nearly identical to that in Bascomb and is sufficient to establish reckless indifference to human life. Accordingly, I join in affirming the postjudgment order. NOT TO BE PUBLISHED. TANGEMAN, J. 3 Gilbert A. Romero, Judge Superior Court County of Ventura ______________________________ Todd W. Howeth, Public Defender, William M. Quest, Snr. Deputy Public Defender, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee, Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
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2020-12-01 18:02:59.810624+00
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http://courts.delaware.gov/Opinions/Download.aspx?id=313670
COURT OF CHANCERY OF THE STATE OF DELAWARE 417 S. State Street JOSEPH R. SLIGHTS III Dover, Delaware 19901 VICE CHANCELLOR Telephone: (302) 739-4397 Facsimile: (302) 739-6179 Date Submitted: November 24, 2020 Date Decided: December 1, 2020 Kenneth J. Nachbar, Esquire Thomas E. Hanson, Jr., Esquire Miranda N. Gilbert, Esquire William J. Burton, Esquire Morris, Nichols, Arsht & Tunnell LLP Barnes & Thornburg LLP 1201 North Market Street 1000 North West Street, Suite 1500 Wilmington, DE 19801 Wilmington, DE 19801 Re: Epic/Freedom, LLC, et al. v. Aveanna Healthcare, LLC, et al. C.A. No. 2020-0908-JRS Dear Counsel: I have Defendants’ Motion for Reconsideration of Scheduling Order Granting Expedited Proceedings (D.I. 24) (the “Motion”) and Plaintiffs’ Opposition to the Motion (D.I. 30). The Motion is denied. “A motion for reargument under Court of Chancery Rule 59(f) will be denied unless the court has overlooked a controlling decision or principle of law that would have controlling effect, or the court has misapprehended the law or the facts so that the outcome of the decision would be Epic/Freedom, LLC, et al. v. Aveanna Healthcare, LLC, et al. C.A. No. 2020-0908-JRS December 1, 2020 Page 2 different.”1 Reargument “is only available to re-examine the existing record,”2 not to consider new evidence, entertain arguments not raised previously or rehash arguments already made.3 In other words, reargument motions may not be used to re-litigate matters already fully litigated or to present arguments or evidence that could have been presented before the court entered the order from which reargument is sought. 4 The Motion fails to identify any controlling precedent or principal of law the Court overlooked in granting expedited scheduling. Instead, it offers new 1 Those Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. Servs., Inc., 2008 WL 2133417 , at *1 (Del. Ch. May 21, 2008). 2 Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL 4644708 , at *1 (Del. Ch. Dec. 31, 2007) (citing Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505 , 506 (Del. Ch. 1995)). 3 Id. (“Reargument under Court of Chancery Rule 59(f) is only available to re-examine the existing record; therefore, new evidence generally will not be considered on a Rule 59(f) motion.”); Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581 , at *1 (Del. Ch. Mar. 4, 2010) (“[A] motion for reargument is ‘not a mechanism for litigants to relitigate claims already considered by the court,’ or to raise new arguments that they failed to present in a timely way.” (quoting Am. Legacy Found. v. Lorillard Tobacco Co., 895 A.2d 874 , 877 (Del. Ch. 2005)); Miles, 677 A.2d at 506 (“Where . . . the motion for reargument represents a mere rehash of arguments already made at trial and during post- trial briefing, the motion must be denied.”). 4 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1 (2020). Epic/Freedom, LLC, et al. v. Aveanna Healthcare, LLC, et al. C.A. No. 2020-0908-JRS December 1, 2020 Page 3 arguments, based on purportedly new developments, that could have been advanced in opposition to Plaintiffs’ Motion to Expedite had Defendants elected to withdraw their opposition/defenses to the so-called Tax Audit claim prior to the presentation of that motion. A motion for reargument (or “reconsideration”) is not the proper vehicle through which to present Defendants’ new arguments. Defendants have moved to transfer the so-called Tax Refund claim back to the Superior Court (D.I. 29). The Court will consider Defendants’ arguments with respect to this Court’s subject matter jurisdiction in connection with that motion. For the foregoing reasons, Defendants’ Motion for Reconsideration is DENIED. IT IS SO ORDERED. Very truly yours, /s/ Joseph R. Slights III
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2020-12-01 18:03:43.503688+00
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http://www.illinoiscourts.gov/Opinions/SupremeCourt/2019/124641.pdf
Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Supreme Court Date: 2020.12.01 10:40:17 -06'00' Raab v. Frank, 2019 IL 124641 Caption in Supreme KIRK RAAB v. KENNETH FRANK, Appellee (David A. Grossen Court: et al., Appellants). Docket No. 124641 Filed November 21, 2019 Decision Under Appeal from the Appellate Court for the Second District; heard in that Review court on appeal from the Circuit Court of Jo Daviess County, the Hon. William A. Kelly, Judge, presiding. Judgment Appellate court judgment affirmed in part and reversed in part. Circuit court judgment affirmed. Counsel on Stephanie R. Fueger and McKenzie R. Blau, of O’Connor & Thomas, Appeal P.C., of Dubuque, Iowa, for appellants. Timothy B. Zollinger and Lucas M. Brainerd, of Ward, Murray, Pace & Johnson, P.C., of Sterling, for appellee. Justices JUSTICE GARMAN delivered the judgment of the court, with opinion. Chief Justice Burke and Justices Thomas, Kilbride, Karmeier, Theis, and Neville concurred in the judgment and opinion. OPINION ¶1 Plaintiff Kirk Raab sued defendant Kenneth Frank in the circuit court of Jo Daviess County for violations of the Illinois Domestic Animals Running at Large Act (Animals Running Act) (510 ILCS 55/1 (West 2010)), seeking damages for injuries sustained when his vehicle collided with a cow owned by Frank that escaped its confining fence and wandered onto the highway. Frank filed a third-party complaint against the owners of the neighboring parcel of land, David and Virginia Grossen, seeking contribution pursuant to the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2 (West 2010)) based on negligence, breach of duty under the Fence Act (765 ILCS 130/3 (West 2010)), and breach of contract. Frank and Raab reached a settlement, and Raab’s claim against Frank was subsequently dismissed with prejudice. The Grossens then filed a motion for summary judgment (735 ILCS 5/2-1005 (West 2012)) on all claims against them. The circuit court granted the Grossens’ motion for summary judgment on the negligence and Fence Act claims. After initially denying summary judgment on the breach of contract claim, the circuit court ultimately dismissed that claim as well, accepting the Grossens’ argument that they owed no duty to Raab under the contract. ¶2 The appellate court affirmed the dismissal of the Fence Act claim and reversed the circuit court’s grant of summary judgment on both the negligence claim and the breach of contract claim. 2019 IL App (2d) 171040 . The Grossens then filed a petition for leave to appeal, which we allowed pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2018). ¶3 BACKGROUND ¶4 The Grossens are owners of a parcel of real estate (Parcel A) in rural Jo Daviess County adjacent to a parcel leased by Kenneth Frank (Parcel B). Virginia Grossen inherited Parcel A from her mother in 2005 and executed a quitclaim deed to convey the property to herself and her husband jointly in 2006. The Grossens do not live on this parcel. A common fence runs between Frank’s and the Grossens’ parcels. ¶5 Frank uses Parcel B for pasturing cattle and has done so since 2009. The terms of Frank’s oral lease provide that he is responsible for maintaining the fences on the parcel. Upon renting the property, Frank inspected the fencing on Parcel B to ensure that it was suitable for containing cattle. Frank also learned of a signed agreement between the prior owners of Parcels A and B regarding fence maintenance responsibilities. Prior to 2011, the Grossens were not aware of this agreement or that Frank was using Parcel B to pasture cattle. 1 ¶6 Since renting, Frank has inspected the fence every Sunday. In July 2009, July 2010, and July 2011, heavy rainstorms damaged portions of the common fence between Parcels A and 1 The record does not reveal how the Grossens became aware of the fence agreement. -2- B, necessitating repairs. Following each storm, Frank repaired the damaged fence. He did not enlist the Grossens’ aid in the repairs or contact them to notify them of any damage. Frank believed each of his repairs was adequate for containing his livestock. ¶7 In November 2011, Frank’s cattle escaped his parcel and entered onto a nearby road. Raab was driving on the road and collided with one of Frank’s cattle. ¶8 In November 2013, Raab filed a one-count lawsuit against Frank for personal injuries suffered in the collision. Raab contended that Frank had failed to use reasonable care to restrain his livestock, in violation of the Animals Running Act. ¶9 In August 2014, Frank filed a three-count, third-party complaint against the Grossens, seeking contribution under the Contribution Act based on theories of breach of duty under the Fence Act, negligence, and breach of contract. Frank alleged that the cow that injured Raab escaped through a portion of fence the Grossens were obligated to maintain. The parties do not dispute that the alleged exit location is the Grossens’ responsibility under the contract. ¶ 10 In June 2016, the circuit court approved a $225,000 settlement agreement between Raab and Frank. Subsequently, the Grossens moved for summary judgment on all counts of Frank’s third-party complaint. The Grossens argued that the negligence count was barred by the Animals Running Act, no duty arose under the Fence Act, and the contract claim was barred because the fence agreement did not run with the land. ¶ 11 In September 2016, in partially granting the Grossens’ motion for summary judgment, the circuit court determined that the Animals Running Act barred any contribution from nonowners or nonkeepers of livestock and granted summary judgment on the Fence Act due to Frank’s failure to notify the Grossens of any known deficiencies in the fence. See 765 ILCS 130/11 (West 2010) (a party must give 10 days’ notice that reparation of an adjoining fence is necessary prior to undertaking repairs on his own in order to hold nonrepairing party liable for damages). The court denied the Grossens summary judgment as to the breach of contract count, however, finding that the fence agreement indeed ran with the land. ¶ 12 In August 2017, the Grossens filed a second motion for summary judgment, arguing that, under the Contribution Act, the basis for a contributor’s responsibility to share in the payment of damages is his liability in tort to the injured party. The circuit court held that a breach of the fence contract could not create that liability in tort to Raab. Therefore, following the dismissal of Frank’s other third-party claims, the contract could not be the sole basis for contribution. The court thus dismissed the final surviving claim against the Grossens. Frank filed a timely notice of appeal. ¶ 13 On appeal, Frank argued that the circuit court erred in granting the Grossens summary judgment on each of the counts of his complaint. Reasserting his initial arguments, Frank contended that a basis for contribution lies in either the Animals Running Act, the Fence Act, or the fence agreement signed by the parties’ predecessors in interest. ¶ 14 The appellate court reversed the circuit court’s grant of summary judgment as to the Animals Running Act, holding that Raab’s inability to pursue an action against the Grossens as nonowners of cattle under that act had no bearing on Frank’s ability to seek contribution from the Grossens under the Contribution Act. 2019 IL App (2d) 171040 , ¶ 29. The appellate court affirmed the circuit court’s ruling on the Fence Act, holding summary judgment proper due to Frank’s failure to provide the Grossens notice of known fence defects. Id. ¶ 34. Finally, the court reversed summary judgment on Frank’s breach of contract claim, holding that, -3- although the Grossens were not liable in tort, the fence agreement established a relationship between the parties such that contribution would be equitable. Id. ¶ 43. ¶ 15 This court granted the Grossens’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018). ¶ 16 ANALYSIS ¶ 17 The first issue before this court is whether a party may bring an action against nonowners or nonkeepers of livestock belonging to neighboring landowners pursuant to the Contribution Act, based on breach of a duty at common law. The second issue is whether the Animals Running Act immunizes nonowners and nonkeepers from potential common-law liability. Finally, we consider whether a breach of contract creates “liability in tort” or otherwise serves as the basis for a contribution claim under the Contribution Act. ¶ 18 The fundamental goal of statutory construction is to ascertain and give effect to the intent of the legislature. LaSalle Bank National Ass’n v. Cypress Creek 1, LP, 242 Ill. 2d 231 , 237 (2011). The best indicator of that intent is the plain language of the statute, given its ordinary meaning. Wisniewski v. Kownacki, 221 Ill. 2d 453 , 460 (2006). Where the language is clear and unambiguous, we will apply it as written. Only where the language is ambiguous do we turn to extrinsic sources to determine legislative intent. Id. Questions of statutory construction are questions of law and reviewed de novo. People v. Perry, 224 Ill. 2d 312 , 324 (2007). ¶ 19 The Contribution Act ¶ 20 We turn first to the Contribution Act, which provides redress for a joint tortfeasor to seek contribution against fellow joint tortfeasors who have not paid their pro rata share of the common liability. 740 ILCS 100/2 (West 2010). ¶ 21 The Contribution Act provides, in part: “Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Id. § 2(a). The basis for a contributor’s obligation rests on his liability in tort to the injured party. J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447 , 462 (1987). In the contribution context, liability in tort has been interpreted to mean “potential” tort liability, determined at the time of the injury to the initial plaintiff. Doyle v. Rhodes, 101 Ill. 2d 1 , 10- 11 (1984). Potential for tort liability exists until a defense is established. Id. If the underlying claim does not create liability in tort, a third-party plaintiff may not recover on a contribution claim. People v. Brockman, 143 Ill. 2d 351 , 372 (1991). ¶ 22 Frank’s complaint alleges liability in tort under the common law or alternatively under breach of contract. We must therefore determine whether the Grossens are potentially liable under either basis. -4- ¶ 23 I. Negligence ¶ 24 A. Common Law ¶ 25 Frank first argues that common-law negligence provides a basis for potential tort liability. He contends that, rather than being the source of liability for livestock owners and keepers for estray 2 damage, the Animals Running Act merely operates as an immunity or affirmative defense to nonowners and nonkeepers. As such, he posits that the statute shields the Grossens from liability to Raab but not from the “potential tort liability” necessary for third-party contribution. ¶ 26 None of Frank’s cited case law supports the proposition of common-law liability for nonowners or nonkeepers of livestock. First, Frank cites Bulpit v. Matthews, 145 Ill. 345 (1893), where the plaintiff sued to recover damages to his crops inflicted by Matthews’s escaped livestock. In explaining the motives and circumstances that led to the enactment of the Animals Running Act, this court stated, “ ‘[h]owever well adapted the rule of common law may be to a densely populated country like England, it is surely but illy adapted to a new country like ours’ ”; “ ‘it does not, and never has prevailed in Illinois.’ ” Id. at 350-51 (quoting Seeley v. Peters, 10 Ill. 130 , 142 (1848)); see also Boyer v. Sweet, 4 Ill. 120 (1841). Upon examining the Illinois statutes in place that expressly allowed the owners of domestic animals to permit them to run at large, the court surmised “[i]t followed *** that the common law rule was not in force.” Bulpit, 145 Ill. at 351. The Bulpit court further stated that “[p]rior to the passage of [the Animals Running Act], as we have seen, the territory in which [animals] were prohibited from running at large, were exceptions out of the general rule.” Id. at 354. ¶ 27 Despite Frank’s assertion that the case proves the existence of a common-law cause of action for estray damage, the Bulpit court actually held that the English common-law rule, mandating that “ ‘every man must keep his cattle from his neighbor’s premises’ ” “has, since the passage of the [Animals Running Act] been in force in this State.” (Emphasis added.) Id. at 356 (quoting Lee v. Burk, 15 Ill. App. 651 , 652-53 (1884)). ¶ 28 Frank additionally relies on McKee v. Trisler, 311 Ill. 536 (1924), as representative of the same premise. However, the McKee court’s discussion of the common law existing before the Animals Running Act was based upon this court’s decision in McCormick v. Tate, 20 Ill. 334 (1858), also cited by Frank. McCormick held that, although there was a common law as to fences within a parcel, “there was no general law in this state prohibiting cattle from running at large in the highway and commons.” Id. at 337. Consequently, neither case supports Frank’s argument. Moreover, reliance on case law prior to the Act’s enactment, such as McCormick, is not particularly helpful to the case at bar. ¶ 29 Frank also cites Ward v. Brown, 64 Ill. 307 , 310 (1872), asserting that the court’s dicta that “[t]here is nothing indicating that appellants were guilty of negligence, either in the selection of the bailee or in placing the cattle in his field, or in fact the omission of any duty that devolved upon them” is inconsistent with liability under the Animals Running Act and, therefore, demonstrative of a common-law cause of action. We disagree. An owner being potentially liable for negligent selection of a bailee or pasture is in complete accord with both the plain language of the Animals Running Act, encompassing only owners and keepers, and with Estray: “a valuable domestic animal found wandering away from its home or enclosure.” 2 Webster’s Third New International Dictionary 779 (2002). -5- subsequent appellate decisions examining bailor/bailee liability under that act. See, e.g., Moreno v. Beckwith, 77 Ill. App. 2d 443 (1967) (the term “keeper” held to impose liability on a bailee for injuries resulting from animals that are the subject of a bailment); Heyen v. Willis, 94 Ill. App. 2d 290 (1968) (landowner lessor of pasture not subject to liability for estray damage appropriately attributed to “keeper” lessee). ¶ 30 Indeed, the appellate court has consistently held that “[p]rior to the enactment of the Animal[s Running] Act there was no liability in Illinois for injury or damage caused by an animal running at large. *** But in making a change [the legislature] limited the liability for damage by estrays to their owner or keeper.” Heyen, 94 Ill. App. 2d at 296. ¶ 31 Frank’s position is that the Grossens remain liable until the Animals Running Act is asserted as an affirmative defense or immunity from a common-law duty. This argument is misplaced. While the amended Animals Running Act does provide a respite for owners and keepers in the form of a negligence standard as opposed to strict liability, we have found no cases that support the existence of a common-law cause of action against nonowners or nonkeepers for estray damage, nor does Frank cite any. ¶ 32 As explained, Illinois courts have consistently recognized that liability for damage from escaped livestock stems from the Animals Running Act. The Grossens, as nonowners and nonkeepers, are thus not potentially subject to liability under common law. ¶ 33 B. The Animals Running Act ¶ 34 The Animals Running Act affords a source of recovery for estray damage by mandating that owners and keepers of cattle use reasonable care in restraining their livestock to prevent them from running at large. Originally, the Animals Running Act imposed a strict liability standard on an owner or keeper of livestock for damages caused by unrestrained animals. As amended in 1931, the Animals Running Act was modified from the strict liability standard to provide innocent owners relief from harsh consequences where an owner acted within reason and did not know of the animal’s escape. Nevious v. Bauer, 281 Ill. App. 3d 911 , 915 (1996). Turning to the pertinent language of the Animals Running Act, it states: “No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.” 510 ILCS 55/1 (West 2010). ¶ 35 The text of the statute is unambiguous. It does not refer to nonowners or nonkeepers and cannot be declared to create the defense or immunity Frank asserts. Instead, the Act establishes a reasonable duty for owners and keepers to confine their livestock. ¶ 36 To reiterate, the Animals Running Act has been analyzed by the appellate court in varying iterations of possessory control of livestock, held to impose liability on a bailee, while held not to extend liability to a landowner leasing land to a third-party livestock owner. See, e.g., Moreno, 77 Ill. App. 2d 443 ; Heyen, 94 Ill. App. 2d 290 . However, under any examined scenario, the Animals Running Act has not been held to apply to nonowners or nonkeepers of -6- livestock. Thus, neither the plain language nor case law provides authority that the statute is an affirmative defense or immunity. ¶ 37 II. Breach of Contract (Fence Agreement) ¶ 38 Again, “[i]f the parties are not subject to liability in tort for the plaintiff’s injuries at issue in the underlying action, there is no right of contribution between those parties.” Giordano v. Morgan, 197 Ill. App. 3d 543 , 548 (1990); see also Brockman, 143 Ill. 2d 351 . Although a breach of contract is a nontort theory, that alone is not determinative as to whether parties might also be subject to liability for contribution. Giordano, 197 Ill. App. 3d at 548. Thus, Frank alternately asserts that, even if the Grossens are not liable in tort to Raab under the Animals Running Act or the common law, they should be liable in tort through breach of contract. ¶ 39 As established, liability in tort governing contribution has been interpreted to mean “potential” tort liability of the party, determined at the time of the injury to the initial plaintiff. Doyle, 101 Ill. 2d at 10-11 . At the time of Raab’s injury, Frank asserted two potential bases for liability—the Animals Running Act and the Fence Act. As discussed above, a cause of action against the Grossens as nonowners and nonkeepers of cattle does not exist under the Animals Running Act. ¶ 40 The Fence Act was also presented as a potentially viable source of liability, but even if Frank had raised that issue on appeal before this court, which he did not, both the circuit court and appellate court held that, having failed to provide the Grossens with the requisite notice of a fence defect, Frank could not sustain an action under the statute. ¶ 41 Frank contends that, if the Animals Running Act operates as a defense to common law, the Grossens remain subject to potential liability for injuries occurring before they established immunity under the Act. Accordingly, Frank would therefore maintain his right to contribution. However, we find his construing the Animals Running Act as either an affirmative defense or immunity unfounded. ¶ 42 Under the Contribution Act, although no requirement exists that the bases for liability among contributors be the same, some basis for liability to the original plaintiff must exist. Vroegh v. J&M Forklift, 165 Ill. 2d 523 , 529 (1995). Contribution is predicated upon tort, not contract, liability. Cosey v. Metro-East Sanitary District, 221 Ill. App. 3d 205 , 209 (1991). Neither the Animals Running Act nor common law exposes nonowners or nonkeepers of livestock to tort liability for damage caused by neighbors’ cattle. The Grossens, as neither owners nor keepers, are accordingly not “liable in tort” under either basis for purposes of the Contribution Act. Frank asserts that the Grossens may be held liable for contribution because Raab was an incidental third-party beneficiary of the fence agreement. We disagree. Absent potential liability in tort, a breach of contract claim does not warrant third-party contribution. See, e.g., Cosey, 221 Ill. App. 3d at 210 (finding third-party claims brought pursuant to the Contribution Act that alleged only breach of contractual obligations were properly dismissed by trial court). Accordingly, we reject Frank’s contention that his claim for contribution may be premised on the Grossens’ contractual obligations under the fence agreement. -7- ¶ 43 CONCLUSION ¶ 44 For the reasons discussed above, we hold that the common law does not provide a basis to hold a nonowner or nonkeeper of livestock liable in tort for damage caused by a neighbor’s animals. Further, the Animals Running Act is not a source of a duty for nonowners and nonkeepers to restrain neighboring cattle. ¶ 45 Since Frank has not otherwise established potential liability in tort, breach of contract alone does not give rise to liability under the Contribution Act. ¶ 46 Appellate court judgment affirmed in part and reversed in part. ¶ 47 Circuit court judgment affirmed. -8-
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Valdez v City of New York (2020 NY Slip Op 07150) Valdez v City of New York 2020 NY Slip Op 07150 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 22612/16E Appeal No. 12498 Case No. 2019-04167 [*1]Adan R. Valdez, Plaintiff-Respondent, v The City of New York et al., Defendants-Appellants. Cozen O'Connor, New York (Jacqueline Pena of counsel), for appellants. The Weinstein Law Group, PLLC, New York (Steven M. Weinstein of counsel), for respondent. Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about September 11, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs. Plaintiff testified that he was injured while pointing bricks at defendants' school when the inverted milk crate on which he was standing atop planks of a scaffold shifted unexpectedly, causing him to fall backward and strike his head on a bar of the scaffold. This testimony establishes prima facie that plaintiff's pointing work exposed him to an elevation-related risk [*2]against which defendants failed to provide him with proper protection, as required by Labor Law § 240(1) (see Ferguson v Durst Pyramid, LLC, 178 AD3d 634 [1st Dept 2019]; Mutadir v 80-90 Maiden Lane Del LLC, 110 AD3d 641 [1st Dept 2013]). In opposition, defendants failed to raise an issue of fact as to whether plaintiff was a recalcitrant worker and therefore the sole proximate cause of his accident because he failed to use a ladder or the scaffold's bicycle to raise the scaffold to an appropriate height. They submitted no evidence that plaintiff was ever specifically instructed to use either of those devices and refused to do so instead of standing atop an inverted milk crate (see e.g. White v 31-01 Steinway, LLC, 165 AD3d 449, 451-452 [1st Dept 2018]; see also Mutadir, 110 AD3d at 642). The remaining factual disputes cited by defendants are insufficient to rebut plaintiff's showing, because they do not "relate to material issues" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312 [2004]). Even if plaintiff were the only witness to his accident — which the record shows he was not — he would still be entitled to summary judgment, "since nothing in the record controverts his account of the accident or calls his credibility into question" (Rroku v West Rac Contr. Corp., 164 AD3d 1176, 1177 [1st Dept 2018]; see e.g. McCann v Central Synagogue, 280 AD2d 298, 298-299 [1st Dept 2001]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Shear Enters., LLC v Cohen (2020 NY Slip Op 07149) Shear Enters., LLC v Cohen 2020 NY Slip Op 07149 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Moulton, JJ. Index No. 154608/19 Appeal No. 12301 Case No. 2020-01394 [*1]Shear Enterprises, LLC, Plaintiff-Respondent, v Sam Cohen, et al., Defendants-Appellants. Heller Horowitz & Feit, P.C., New York (Eli Feit of counsel), for appellant. Louis Fogel & Associates, New York (Louis Fogel of counsel), for respondent. Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about December 17, 2019, which denied defendants' CPLR 3211(a)(7) motion to dismiss the amended complaint, unanimously modified, on the law, to grant the motion to dismiss the cause of action for unjust enrichment, and otherwise affirmed, without costs. The court properly denied defendants' motion to dismiss the cause of action for breach of contract. Contrary to defendants' contention, the complaint sufficiently alleges that plaintiff did not agree to a novation (see Griggs v Day, 136 NY 152, 160 [1892]; Wasserstrom v Interstate Litho Corp., 114 AD2d 952, 954 [2d Dept 1985]). In the original complaint, plaintiff made clear [*2]that it intended to recoup the original down payment and clarified in the amended complaint that it did not pay the additional $110,000 in order to relieve defendants of the obligation to repay the original down payment. On a motion to dismiss the complaint, we must accept plaintiff's allegations as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). The court also properly denied the motion to dismiss plaintiff's tortious interference claim against defendants Sam and Isaac Cohen, the owners of codefendant Tres Joli Accessories, Ltd. A claim of tortious interference with contract requires that four elements be pleaded: "(1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional procuring of the breach; and (4) damages" (Foster v Churchill, 87 NY2d 744, 749-750 [1996]; Hoag v Chancellor, Inc., 246 AD2d 224, 228 [1st Dept 1998]). "To establish a corporate officer's liability for inducing a breach of a contract between the corporation and a third party, the complaint must allege that the officers' acts were taken outside the scope of their employment or that they personally profited from their acts" (Hoag, 246 AD2d at 228 [internal quotation marks omitted]). Here, plaintiff alleges that the Cohens, with the full knowledge that Tres Joli was out of business and unable to complete its orders, solicited cash down payments from plaintiff in order to enrich themselves by using the funds from plaintiff's down payments to reduce their personal guarantees to Tres Joli's factor. Thus, plaintiff alleges that, separate and apart from acting in the best interests of Tres Joli, the Cohens sought to personally profit by deceiving plaintiff and causing Tres Joli to breach its contract with plaintiff, without any legitimate business reason. The court should not have dismissed the cause of action for fraud as duplicative of the cause of action for breach of contract. The gravamen of the allegations supporting the claim is not, as in Cronos Group, Ltd. v XComIP, LLC (156 AD3d 54, 62 [1st Dept 2017]), that defendants "made a promise while harboring the concealed intent not to perform it." Rather, plaintiff asserts that defendants misrepresented their very "ability to perform," an allegation that supports a non-duplicative fraudulent inducement claim (Man Advisors, Inc. v Selkoe, 174 AD3d 435, 435 [1st Dept 2019]). Defendants argue that, in any event, because the damages are the same under either theory, the fraud claim must give way. We hold that, under the circumstances, and given this early procedural stage of the action, plaintiff should be permitted to plead the cause of action in the alternative pursuant to CPLR 3014 (id.). However, the court should have dismissed as duplicative the cause of action for unjust enrichment. That cause of action repeats the same allegations as the cause of action for breach of contract almost verbatim (see Ullmann-Schneider v Lacher & Lovell Taylor, P.C., 123 AD3d 415, 416 [1st Dept 2014). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Santos v Townsend Ave. Enters. Ltd. Partnership (2020 NY Slip Op 07148) Santos v Townsend Ave. Enters. Ltd. Partnership 2020 NY Slip Op 07148 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 301185/16 Appeal No. 12497 Case No. 2019-03326 [*1]Luis Santos, Plaintiff-Appellant, v Townsend Avenue Enterprises Limited Partnership et al., Defendants-Respondents. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (Jessica M. Erickson of counsel), for respondents. Order, Supreme Court, Bronx Count (Alison Y. Tuitt, J.), entered on or about July 8, 2019, which, insofar as appealed from as limited by the briefs, granted defendants' cross motion for leave to amend their answer and to dismiss the complaint, unanimously affirmed, without costs. In 2013, plaintiff commenced an action against Townsend Avenue Enterprises Limited Partnership, the Mount Hope Housing Company, Inc., Isaac Rawle, Brown Radiance, and Laura Rivera Brokerage (LRB) to recover damages for injuries he sustained on April 21, 2013 when he [*2]tripped and fell on the sidewalk adjacent to 1735 Townsend Avenue in the Bronx (2013 Action). LRB moved pursuant to CPLR 3126 to strike plaintiff's complaint for failure to appear for a deposition. The court granted the motion to the extent of ordering plaintiff to appear for deposition on or before a date certain or he would be precluded from testifying at trial. When plaintiff did not appear for the deposition, LRB again moved to strike the complaint. The motion court granted the unopposed motion and dismissed the complaint after determining that because plaintiff had failed to comply with its prior order, he was precluded from testifying at trial and would be unable to prove the allegations in his complaint. On March 16, 2016, while the second motion to strike was pending in the 2013 Action, plaintiff commenced this action against the same defendants as in the 2013 Action with the exception of LRB and added two other defendants, Townsend Avenue Enterprise, Townsend Avenue Enterprises, to recover for the injuries he sustained in the aforementioned trip and fall. Plaintiff identified the two new defendants as owners or managers of the premises along with Townsend Avenue Enterprises Limited Partnership. Defendants moved to amend their answer to assert affirmative defenses of res judicata and collateral estoppel and to dismiss the complaint based on those defenses. The court granted the motion. We decline to consider plaintiff's arguments that the court erred when it dismissed the 2013 Action. Plaintiff failed to raise these arguments in the 2013 Action by way of an appeal, a motion for leave to renew and reargue, or a motion to vacate his default in opposing LRB's motion to strike the complaint. Plaintiff also failed to raise these arguments to the motion court in this action. Res judicata bars plaintiff from litigating this action (see generally Matter of Josey v Goord, 9 NY3d 386, 389-390[2007]; Rojas v Romanoff, 186 AD3d 103, 108 [1st Dept 2020]). The dismissal of the 2013 Action was on the merits (see Tejeda v 750 Grand Props. Corp., 272 AD2d 124, 125 [1st Dept 2000]; see also Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737, 738-39 [1983]), and plaintiff cannot reasonably argue that the two new defendants in this action are not in privity with Townsend Avenue Enterprises Limited Partnership, a named defendant in the 2013 Action (see Rojas, 186 AD3d at 111-112). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Ramos v Goldberg, Schudieri & Lindenberg, P.C. (2020 NY Slip Op 07147) Ramos v Goldberg, Schudieri & Lindenberg, P.C. 2020 NY Slip Op 07147 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 160837/16 Appeal No. 12505 Case No. 2020-03229 [*1]Raymond Ramos, Plaintiff-Appellant, v Goldberg, Schudieri & Lindenberg, P.C. et al., Defendants-Respondents. Ballon Stoll P.C., New York (Sholom J. Prager of counsel), for appellant. Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., New York (Karen M. Lager of counsel), for respondents. Order, Supreme Court, New York County (Anthony Cannataro, J.), entered January 7, 2020, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7), unanimously affirmed, without costs. In the underlying matter, a not-for-profit housing cooperative brought a holdover proceeding against plaintiff that sought past use and occupancy as well as challenged his rights to the unit he occupied. Plaintiff commenced a separate action in Supreme Court seeking a declaration that he was the owner of the cooperative unit in question. The housing cooperative [*2]counterclaimed in the Supreme Court action for a declaration that plaintiff's claim of right to ownership in the apartment was invalid. The holdover proceeding was stayed pending a determination of the Supreme Court action pursuant to the parties' stipulation. Defendants attorneys represented plaintiff in the Supreme Court action, which ultimately was resolved adversely to plaintiff, as the court granted the relief sought by the housing cooperative in its counterclaim. Plaintiff then commenced this legal malpractice action against defendants alleging that he suffered damages in the form of his loss of rights to the cooperative unit. Plaintiff claimed his damages were proximately caused by defendants' negligence in failing to call the cooperative board's attorney to testify in the Supreme Court action as to her knowledge of the alleged closing at which plaintiff purportedly acquired his shares and proprietary lease to the subject unit. Plaintiff also alleged that defendants wrongfully advised him to agree to the stipulation that made the Supreme Court action outcome determinative as to the stayed holdover proceeding. Plaintiff's factual allegations fail to establish that but for defendants' alleged negligence in not calling the cooperative's attorney to testify in the Supreme Court action, the attorney's testimony would have established that the unit was validly transferred to him at a July 1995 closing (see generally Ambase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Plaintiff's complaint offers no factual allegations as how or why the testimony from the attorney could have established the validity of a transfer of the unit to plaintiff. Moreover, it is speculative to state that the cooperative attorney's testimony could have established the validity of the transfer when the real participants that had the authority to effect the transfer (i.e., the cooperative's board members) either denied having participated in such a transfer and/or that the signatures alleged to be by theirs on the transferring documents were in fact their signatures. Accordingly, testimony from the cooperative's attorney would not have altered the outcome of the Supreme Court action. Furthermore, there are no factual allegations in the complaint to demonstrate that plaintiff would have been successful in the holdover proceeding, and would not have sustained any damages in such proceeding, but for defendants alleged negligence in having plaintiff stipulate to making the holdover proceeding dependent upon the outcome of the Supreme Court action. The issues in the two proceedings were interrelated. As recognized by the motion court, the question of whether plaintiff was subject to eviction in the holdover proceeding necessarily depended upon whether plaintiff was found to be a shareholder of the cooperative corporation, the very issue being litigated in the Supreme Court. Where, as here, the breach of fiduciary claim arises out of the same facts and seeks the same damages as the legal malpractice claim, the breach of fiduciary duty claim will be dismissed as duplicative (see Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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People v Feliciano (2020 NY Slip Op 07145) People v Feliciano 2020 NY Slip Op 07145 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Gesmer, Kern, Kennedy, JJ. Ind No. 2327/14 Appeal No. 12340 Case No. 2018-2907 [*1]The People of the State of New York, Respondent, v Jose Feliciano, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent. Judgment, Supreme Court, Bronx County (Robert A. Neary, J.), rendered May 10, 2017, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 37 years to life, unanimously reversed, on the law, and the matter remanded for a new trial. Appellant Jose Feliciano and a codefendant, Michael Roberts, were charged with murder in the second degree (Penal Law §125.25[3]), three counts of robbery in the first degree (Penal Law §160.15) and three counts of robbery in the second degree (Penal Law §160.10). These charges stemmed from allegations that Feliciano and Roberts, acting in concert, robbed and [*2]fatally shot one victim in his apartment and in immediate flight therefrom, robbed another victim. After the People's motion to consolidate the indictments was granted, Roberts moved for a severance, arguing that a joint trial would threaten both defendants' rights to a fair trial since their defenses were antagonistic. Feliciano intended to, and did, argue at trial that he was merely present and unaware of Roberts' intent to rob and shoot the victim, whereas Roberts' position was that he did not participate in the charged crimes and that they were committed by Feliciano and an unidentified male. Feliciano joined in this application. The court denied the motion and instead implemented a "dual jury" procedure (see e.g. People v Ricardo B., 73 NY2d 228 [1989]). Separate openings were employed. The trial proceeded with both juries hearing the People's evidence common to the charges against both defendants and both hearing cross examination of the People's witnesses, conducted by Feliciano's and Roberts' counsels, respectively. One jury, however, was excused when the People presented evidence that was admissible only before the other, and during cross examination concerning the same. Separate defense cases, summations and jury charges were also employed. After the dual jury trial, Feliciano was found guilty of second degree murder and first degree robbery, whereas Roberts was acquitted. As a threshold matter, we have considered and reject the People's preservation argument. Feliciano joined Roberts' application for a severance. Nor does the record establish that, after the severance motion was denied, that Feliciano acquiesced to the dual jury procedure as an alternative to severance. In reviewing Feliciano's claim on appeal that he was entitled to a severance, we are required to consider the entire record, including, retrospectively, the full trial record (People v Cardwell, 78 NY2d 996, 998 [1991]). Feliciano must demonstrate that he was unduly prejudiced by the severance and that a joint trial "substantially impair[ed defendant's] defense" (People v Mahboubian, 74 NY2d 174, 184 [1989]). "[T]he level of prejudice required to override the strong public policy favoring joinder" exists "where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (id.). A trial before dual juries, which constitutes a modified form of severance, is to be used sparingly and is evaluated under standards for reviewing severance motions generally, as set forth above (People v Warren, 20 NY3d 393, 397 [2013]). Based on a retrospective review of the full trial record (Cardwell, 78 NY2d at 998), the court should have severed Feliciano's trial from that of his codefendant, Roberts, rather than conducting a joint trial before separate juries. In order to establish that both defendants participated in the crimes, the People were necessarily required to establish that both defendants were present. However, Roberts' cross examinations, mostly presented to both juries, undermined Feliciano's defense, that he was merely present with Roberts and did not share Roberts' intent to commit robbery or murder, which was antagonistic to, and irreconcilable with, Roberts' defense that he was not there at all. Feliciano's jury simply "could not have credited both defenses" (People v Figueroa, 193 AD2d 452, 454 [1st Dept 1993][citing Mahboubian, 74 NY2d at 185]). Notably, Noel Mota, the People's witness, testified that he was the boyfriend of Feliciano's stepdaughter, Stephanie Rivera, who both lived with Feliciano. On the night in question, he observed Feliciano, Roberts and the victim casually hanging out in Feliciano's [*3]apartment. He testified that Feliciano, Rivera and the victim left to get money from the victim's apartment. While they were gone, Roberts received a phone call, said that he would "be over there right now" and then left. After some time, Rivera came back and was followed a few minutes later by Feliciano and Roberts. According to Mota, Feliciano was visibly shaking, upset and red faced, while Roberts appeared calm. Mota testified that when Feliciano and Roberts arrived, Feliciano's clothes appeared to be blood spattered and that they both took off their clothes and placed them in a bag. Mota further heard Feliciano ask Roberts why he had to "kill the guy." On cross examination, Roberts' counsel attacked this testimony and Mota's credibility. He repeatedly asked whether Mota was fabricating his testimony to protect Feliciano, directly asked whether it was Mota who was with Feliciano and who committed the murder, supporting his theory that Roberts was not present, and suggested that Mota had a motive to commit the murder because the victim was acting inappropriately towards his girlfriend, Rivera. Mariano Figueroa, Feliciano's cousin, testified that Roberts gave him a gun, which he later sold to a confidential informant. The bullet casings found at the victim's apartment matched that gun, supporting the theory that Roberts participated in the crime. Roberts' counsel again used much of the cross examination to attempt to tarnish this witness's credibility by highlighting his criminal record and suggesting that his testimony was fabricated to protect Feliciano and frame Roberts. Jonathan Kui, a criminalist with the Office of the Chief Medical Examiner, testified that Feliciano's DNA was uncovered at the scene. Roberts' counsel's cross examination highlighted the lack of Roberts' DNA at the scene and questioned whether Mota's DNA was profiled against the DNA recovered, again suggesting that he could have been the individual with Feliciano that night. Special Agent Wendell Cosenza reviewed cellular phone records and testified as to the location of Feliciano's and Roberts' phones on the night in question. Roberts' cross examination highlighted that the data did not place Roberts' phone at the scene that night. Additionally, as a result of the dual jury trial, Feliciano's jury had access to a written statement made by Rivera, which was admitted during Roberts' counsel's cross examination of Rivera, in the absence of Feliciano's jury, and therefore was not part of the case against Feliciano. The statement, which the prosecutor projected on a screen and quoted from during summation, and which was part of the only exhibit that Feliciano's jury reviewed during deliberations, contained language that cast Feliciano in a negative light and, significantly, stated that Feliciano told Rivera that "you better not say[] nothing" and instructed her to "[a]ct like nothing happened." The foregoing testimony and evidence was unsolicited by the People and would never have been presented to Feliciano's jury, but for Roberts' cross examination. Roberts' counsel's pursuit of his client's defense, contemporaneously undermined Feliciano's. Accordingly, he effectively became a "second prosecutor" and was able to impeach the foregoing witnesses to Feliciano's detriment in a manner that the People were unable to. Under these circumstances, a dual jury trial was improper as it did not prevent Feliciano from being prejudiced by Roberts' antagonistic defense (see Cardwell,78 NY2d at 998). A severance should have been granted (id.). We do not find that the error was harmless (see People v Crimmins, 36 NY2d 230, 241 [1975]). The People presented a strong circumstantial case that Feliciano acted in concert in a robbery, and thus was guilty of felony murder. However, where so much turned on the jury's assessment of the credibility of Feliciano's testimony that he did not share the shooter's intent to [*4]commit a robbery, there is a reasonable possibility that the outcome of a separate trial against Feliciano would have differed from that of the two-jury trial he actually had. Accordingly, Feliciano is entitled to a new trial. In light of this determination, we find it unnecessary to reach defendant's remaining contentions. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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https://www2.ca3.uscourts.gov/opinarch/201474np.pdf
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1474 __________ SERGEI KOVALEV, Appellant v. CITY OF PHILADELPHIA; PHILADELPHIA DEPARTMENT OF REVENUE; PHILADELPHIA TAX REVIEW BOARD; PHILADELPHIA OFFICE OF ADMINISTRATIVE REVIEW; PHILADELPHIA SHERIFFS OFFICE; PHILADELPHIA LAW DEPARTMENT; PAULA WEISS; YOLANDA KENNEDY; ANGELINEL BROWN; FRANCIS BRESLIN; AGOSTINO J. FANELLI; NANCY A. KAMMERDEINER; MEGHAN E. CLAIBORNE; SHANNON G. ZABEL; AS-YET-UNKNOWN JOHN AND JANE DOES 1-25 INCLUSIVE ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:19-cv-05790) District Judge: Honorable Mark A. Kearney ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 21, 2021 Before: AMBRO, PORTER and SCIRICA, Circuit Judges (Opinion filed: January 26, 2021) ___________ OPINION * ___________ PER CURIAM Sergei Kovalev sued the City of Philadelphia (“the City”) and three of its employees, asserting that his constitutional rights were violated during administrative review of commercial refuse-collection fees assessed against property owned by his purported house of worship (named “House of Worship”). Most of Kovalev’s claims were dismissed as a result of dispositive motions; a jury rejected the remainder after a three-day trial. Kovalev appealed, and we affirmed. See Kovalev v. City of Philadelphia, 775 F. App’x 72, 77 (3d Cir. 2019) (per curiam). Also unsuccessful was Kovalev’s subsequent suit challenging the authenticity of an exhibit used by the defense at trial. See Kovalev v. Claiborne, 829 F. App’x 592, 593 (3d Cir. 2020) (per curiam). In the present litigation, Kovalev claims that his waste-collection woes resulted from widespread, coordinated criminal activity by the City and various City departments and employees. He filed his complaint pro se and invoked, primarily, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 . The District * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Court dismissed Kovalev’s complaint—sua sponte and without leave to amend—under 28 U.S.C. § 1915 (e)(2)(B)(ii), for failure to state a claim. The District Court first determined that to the extent Kovalev was attempting to litigate on behalf of House of Worship, he could not do so because he is not an attorney. See DC ECF No. 7 (Op.) at 5 (“Mr. Kovalev lacks standing to pursue claims on behalf of others even if he is the person running the House of Worship. He is not a house of worship.”). The District Court next determined that Kovalev failed to plead an injury cognizable under RICO. See Op. at 6 (“His Complaint is devoid of allegations Mr. Kovalev made payments out of his own pocket. * * * Physical or emotional harm to a person is insufficient to show a person is injured in his business or property under RICO.”). The District Court also determined: that Kovalev’s claims, insofar as they concerned a 2015 administrative proceeding and related litigation, were barred by the principle of res judicata, see Op. at 7; that Kovalev could not rely on a criminal statute as an independent cause of action, see Op. at 8; that it would decline to exercise supplemental jurisdiction over Kovalev’s state law claim, see Op. at 8-9; and that offering Kovalev leave to amend his complaint would be futile, see Op. at 9. Kovalev appealed. We have jurisdiction under 28 U.S.C. § 1291 , and our review of a dismissal under § 1915(e)(2)(B)(ii) is de novo. See Allah v Seiverling, 229 F.3d 220 , 223 (3d Cir. 2000). We review the decision to decline leave to amend for abuse of discretion but review the District Court’s “determination that amendment would be 3 futile” de novo. U.S. ex. rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837 , 849 (3d Cir. 2014). We have carefully considered the arguments raised by Kovalev in his brief on appeal. 1 None of them is persuasive. In particular, we reject Kovalev’s efforts to reconcile his assertions that (1) he is not litigating on behalf his purported church, (2) the House of Worship owns the property for which commercial refuse-collection fees were imposed by the City, (3) Kovalev does not derive any compensation from his management of the House of Worship, and (4) he somehow was “injured in his business or property,” 18 U.S.C. § 1964 (c), as a result of the City’s fee-imposition and related conduct, in a way that establishes standing to maintain a civil RICO action. 2 To the District Court’s well-reasoned analysis we also add that Kovalev’s RICO claims against the City and its departments were improper as a matter of law. See Genty v. Resolution Tr. Corp., 937 F.2d 899 , 914 (3d Cir. 1991) (holding “that a civil claim brought 1 The first twenty or so pages of Kovalev’s brief is little more than a list of grievances that were raised and rejected in prior litigation. See, e.g., Br. at 29 (“RICO Defendants were intentionally creating false documents and false evidence to deny Mr. Kovalev fair trial, to obstruct justice and derail judicial machinery.”). 2 This is not the first time Kovalev has attempted to use a civil RICO action to remedy his grievances. See Kovalev v. City of Philadelphia, DC Civ. No. 07-cv-4875, 2008 WL 5377625 (E.D. Pa. Dec. 23, 2008); see also, Kovalev v. Stepansky, No. 20-1473, 2020 WL 6746985 , at *1 (3d Cir. Nov. 17, 2020) (“Kovalev maintains that [his dentist] is engaged in a criminal enterprise involving ‘intentional human body mutilations and health insurance fraud.’”). 4 under section 1964(c) of the RICO Act . . . cannot be maintained against a municipal corporation”). For those reasons, we will affirm the judgment of the District Court. Kovalev’s motion to correct on our docket the spelling of the name of one of the defendants is granted. The correct spelling appears in the caption for this opinion and will be corrected on the docket in due course. 5
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http://www.courts.ca.gov/opinions/documents/D076426.PDF
Filed 1/26/21 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA ATLAS CONSTRUCTION SUPPLY, D076426 INC., Cross-complainant and Appellant, (Super. Ct. No. 37-2017- 00029572-CU-PO-CTL) v. SWINERTON BUILDERS, Cross-defendant and Respondent. APPEAL from orders of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed; appeal dismissed in part. Dunn Desantis Walt & Kendrick, Kevin DeSantis, Zachariah H. Rowland, David D. Cardone; Greines, Martin, Stein & Richland, Laurie J. Hepler and Geoffrey B. Kehlmann for Cross-complainant and Appellant. G&P Schick, Malcolm D. Schick and Sean E. Smith for Cross-defendant and Respondent. I INTRODUCTION A construction worker was killed when a concrete column formwork toppled over at a construction worksite. The worker’s surviving family members (hereafter, plaintiffs) brought this wrongful death action against general contractor Swinerton Builders (Swinerton) and formwork supplier Atlas Construction Supply, Inc. (Atlas). Atlas cross-complained against Swinerton for equitable indemnity, contribution, and declaratory relief. The trial court entered summary judgment in favor of Swinerton as to plaintiffs’ wrongful death complaint. Thereafter, Swinerton—in lieu of seeking entry of judgment on the summary judgment order—settled with plaintiffs. Under the settlement, plaintiffs agreed to dismiss their case against Swinerton and Swinerton waived its costs. Swinerton then requested, and the trial court granted, a good faith settlement determination under Code of Civil Procedure section 877.6.1 Apparently under the shared belief that the good faith settlement determination barred Atlas’s cross- complaint against Swinerton, Atlas and Swinerton stipulated to the dismissal of Atlas’s cross-complaint against Swinerton. Atlas appeals the summary judgment order in favor of Swinerton, the good faith settlement determination, and the dismissal of Atlas’s cross- complaint. Atlas asserts the trial court erroneously ruled that Atlas lacked standing to oppose Swinerton’s motion for summary judgment and, on that basis, the court did not consider a meritorious opposition brief filed by Atlas. Atlas argues that if the court had considered the opposition brief, it is reasonably likely the court would have denied Swinerton’s motion for summary judgment, plaintiffs and Swinerton never would have settled plaintiffs’ wrongful death complaint, the court never would have made the good faith settlement determination, and Swinerton and Atlas never would have stipulated to the dismissal of Atlas’s cross-complaint. 1 All further statutory references are to the Code of Civil Procedure. 2 We conclude Atlas was not aggrieved by the trial court’s exoneration of Swinerton in the wrongful death action. Therefore, Atlas lacks standing to appeal the summary judgment order in favor of Swinerton. As for the good faith settlement determination and the dismissal of Atlas’s cross-complaint, we conclude Atlas waived its challenge to those orders by failing to make substantive legal arguments specific to those orders. Therefore, we dismiss the appeal insofar as it pertains to the summary judgment order and affirm the remaining challenged orders. II BACKGROUND A The Accident Swinerton was the general contractor for the construction of a residential development in San Diego. It hired subcontractor J.R. Construction, Inc. (J.R. Construction) to perform concrete work and subcontractor Brewer Crane & Rigging, Inc. (Brewer) to perform crane work for the project. J.R. Construction, in turn, rented a concrete column formwork—a vertical structure that wraps around metal rebar and holds liquid concrete in place—from Atlas for use during the project. The formwork was approximately 10 feet tall and weighed 300 to 400 pounds. One day at the construction worksite, J.R. Construction employee Marcelo Develasco, Sr. and another crewmember climbed the formwork to modify its size. Brewer had placed the formwork at the worksite and the formwork was positioned upright and unsupported by braces. The crewmember stepped off the formwork and Develasco’s weight caused the unsecured formwork to topple over. Develasco was attached to the formwork by a clip and suffered fatal injuries when the formwork fell over. 3 B The Lawsuit Plaintiffs filed a wrongful death action against Atlas, Swinerton, and Brewer.2 They asserted products liability causes of action against Atlas and a negligence cause of action against all three defendants. Atlas filed a cross-complaint against Doe defendants for equitable indemnity, contribution, and declaratory relief. Atlas later substituted Swinerton as one of the Doe defendants. C Summary Judgment Swinerton moved for summary judgment as to plaintiffs’ complaint on grounds that the common law Privette doctrine precluded Swinerton from being held liable to plaintiffs. Under the Privette doctrine, the hirer of a contractor generally may not be held liable in tort when the contractor is hired to do inherently dangerous work and an employee of the contractor suffers work-related injuries due to the contractor’s negligence. (Privette v. Superior Court (1993) 5 Cal.4th 689 , 698–700 (Privette).) Plaintiffs opposed Swinerton’s motion for summary judgment. They argued the Privette doctrine was inapplicable because they did not allege the negligence of a contractor caused its own employee to suffer injuries; instead, they alleged the negligence of a contractor (Brewer) harmed an employee of a different contractor (J.R. Construction). Atlas filed a separate brief opposing Swinerton’s motion for summary judgment. It asserted an argument plaintiffs did not raise—that Swinerton could be held liable to plaintiffs under an exception to the Privette doctrine 2 Plaintiffs separately sought and obtained recovery under J.R. Construction’s workers’ compensation policy. 4 established in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 . Under the Hooker exception, a hirer may be held liable for injuries suffered by a contractor’s employee when the hirer retains control over safety conditions at a worksite and the hirer’s retained control affirmatively contributes to the employee’s injuries. (Id. at p. 202.) The trial court issued a tentative order granting Swinerton’s motion for summary judgment. It rejected plaintiffs’ argument concerning the Privette doctrine and expressly declined to consider the opposition brief filed by Atlas. In pertinent part, the court found Atlas lacked standing to oppose summary judgment because an order “granting the motion [for summary judgment] would not necessarily extinguish” Atlas’s cross-complaint against Swinerton. After issuing its tentative order, the court directed the parties to file supplemental briefs on whether Atlas had standing to oppose Swinerton’s motion for summary judgment. In its supplemental brief, Atlas made two arguments as to why it had standing. First, Atlas argued it was adverse to Swinerton because it had substituted Swinerton as a Doe defendant in its cross-complaint. Second, Atlas claimed it was adverse to Swinerton because the entry of summary judgment in favor of Swinerton would preclude Atlas from attributing fault to Swinerton during trial under a provision of the summary judgment statute, section 437c, subdivision (l). Swinerton did not contest Atlas’s standing to oppose its motion for summary judgment. On March 1, 2019, the court issued a final order granting Swinerton’s motion for summary judgment. The court adhered to its tentative ruling that the Privette doctrine precluded Swinerton from being held liable to plaintiffs. It also adhered to its tentative ruling that Atlas lacked standing to oppose the summary judgment motion. As to that issue, the court found there was no “specific authority for the proposition that [Atlas] should be considered 5 adverse to Swinerton for the purposes of [the] motion.” The court noted the summary judgment statute did not require a court to “consider multiple oppositions to a motion for summary judgment” because the statute “identifies ‘opposition’ in the singular.” The court opined it was “not reasonable for a trial judge to be required to consider multiple separate statements and multiple oppositions in a single summary judgment motion.”3 D Good Faith Settlement Determination Swinerton did not seek entry of judgment on the order granting summary judgment. Rather, it negotiated a settlement with plaintiffs whereby plaintiffs agreed to dismiss their claims against Swinerton with prejudice and Swinerton agreed to waive its costs totaling $5,349.63, subject to a good faith settlement determination. Swinerton filed a motion for a good faith settlement determination under section 877.6, subdivision (a)(1), as well as dismissal of Atlas’s cross- complaint under section 877.6, subdivision (c). In its motion, Swinerton argued it had no proportionate liability to plaintiffs based on the Privette doctrine and, furthermore, Swinerton did not affirmatively contribute to the fatal incident—i.e., the Hooker exception did not apply. Swinerton argued other factors weighed in favor of the good faith settlement determination as well, including the amount of the settlement (a waiver of costs totaling $5,349.63), the minimal liability Swinerton would face even if plaintiffs were to successfully appeal the summary judgment ruling, and the absence of any collusive, fraudulent, or tortious conduct in connection with the settlement. 3 The court found Brewer also lacked standing to oppose Swinerton’s motion for summary judgment and therefore declined to consider an opposition brief filed by Brewer. That ruling is not part of this appeal. 6 Atlas opposed Swinerton’s motion for a good faith settlement determination. It estimated plaintiffs’ recovery at trial would be approximately $2.7 million. For many of the same reasons set forth in Atlas’s summary judgment opposition, Atlas argued Swinerton could be held liable to plaintiffs for a least a portion of plaintiffs’ recovery under the Hooker exception. Atlas estimated Swinerton would be responsible for 75–85% of the recovery—i.e., $2–2.3 million. Based on the disparity between plaintiffs’ estimated recovery against Swinerton and the consideration plaintiffs received in the settlement (a waiver of costs totaling $5,349.63), Atlas argued the motion for a good faith settlement determination should be denied. The trial court granted Swinerton’s motion for a good faith settlement determination in tentative and final orders dated May 3, 2019, and June 14, 2019, respectively. The court declined to dismiss Atlas’s cross-complaint, however, finding Swinerton did not meet its “burden [of establishing] that [Atlas’s] claims in the cross-complaint [were] barred by the granting of the good faith settlement” determination. Thereafter, Swinerton and Atlas executed a stipulated request for dismissal of Atlas’s cross-complaint against Swinerton. The stipulation stated the June 14, 2019 order granting Swinerton’s motion for a good faith settlement determination “eliminated any and all rights Atlas may have had to recover under [the] cross-complaint,” and “there [was] no legal basis for a trial of Atlas’[s] cross-complaint against Swinerton ….” On July 1, 2019, the court dismissed Atlas’s cross-complaint without prejudice, per the parties’ stipulation. On July 23, 2019, plaintiffs filed a request for dismissal with prejudice of their wrongful death complaint as to Swinerton. The court entered the requested dismissal with prejudice. 7 III DISCUSSION A Jurisdictional Issues Atlas challenges three orders in this appeal: (1) the order granting Swinerton’s motion for summary judgment, dated March 1, 2019; (2) the good faith settlement determination, dated June 14, 2019; and (3) the stipulated order dismissing Atlas’s cross-complaint, dated July 1, 2019. Swinerton filed a motion to dismiss the appeal on grounds that we lack jurisdiction to consider the challenged orders. In the following section, we address each challenged order in reverse chronological order.4 1 Dismissal of Atlas’s Cross-Complaint We begin with the stipulated order dismissing Atlas’s cross-complaint against Swinerton. Atlas asserts the order should be deemed an appealable judgment because it is a final adjudication of Atlas’s rights against Swinerton. Swinerton claims the order should not be deemed an appealable judgment because Atlas is still a defendant in plaintiffs’ underlying wrongful death action. We conclude Atlas has the better argument. “ ‘Where a defendant cross-complains against a third party or against a codefendant, the dismissal of the cross-complaint is a final adverse adjudication of the cross-complainant’s rights against a distinct party, and 4 Atlas’s notice of appeal also purported to appeal the tentative good faith settlement determination, dated May 3, 2019, and the order dismissing plaintiffs’ complaint against Swinerton, dated July 23, 2019. However, the tentative good faith settlement determination is a nonappealable tentative order (Estate of Sapp (2019) 36 Cal.App.5th 86 , 99), and Atlas has abandoned its appeal as to the order dismissing plaintiffs’ complaint by failing to make arguments regarding the appealability or merits of the dismissal order. 8 the order is appealable.’ ” (Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177 , 181, fn. 1; see Herrscher v. Herrscher (1953) 41 Cal.2d 300 , 303 [“Where the parties to the cross-complaint are not identical with the parties to the original action, the order amounts to a final adjudication between the cross-complainants and cross-defendants and is appealable.”]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939 , 945, fn. 3 (Cahill) [dismissal of cross-complaint after good faith settlement determination was appealable].) The dismissal of a cross- complaint can be a final adjudication of the rights of the parties to the cross- complaint even where, as here, one of those parties is still a party to the original action.5 (See Cahill, at p. 945, fn. 3; Paragon, at p. 181, fn. 1.) As Swinerton notes, Atlas remains a defendant in plaintiffs’ underlying wrongful death action. However, the order dismissing Atlas’s cross-complaint resolved all pending causes of action between cross-complainant Atlas and cross-defendant Swinerton. Though the trial court denominated the order as a dismissal without prejudice, the parties did not stipulate to toll the statutes of limitations applicable to the cross-complaint or otherwise agree to facilitate future litigation of the cross-complaint. Thus, the dismissal order is sufficiently final for purposes of the one final judgment rule. (Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650 , 665–667.) Because the order disposed of all causes of action between the parties to the cross- complaint, and those parties did not preserve the voluntarily-dismissed cross- 5 Oak Springs Villas Homeowners Association v. Advanced Truss Systems Inc. (2012) 206 Cal.App.4th 1304 does not suggest otherwise. In that case, the court concluded a good faith settlement determination is not an appealable interlocutory ruling. (Id. at p. 1307.) Here we address a different question—that is, whether an order dismissing all pending claims between the parties to a cross-complaint may be deemed a final judgment. 9 complaint for future litigation, the dismissal order is appealable as a final adjudication of Atlas’s rights against Swinerton. (§ 904.1, subd. (a)(1).) 2 Good Faith Settlement Determination Next, we consider the appealability of the good faith settlement determination. Atlas claims the good faith settlement determination is an intermediate ruling that is reviewable as part of Atlas’s appeal from the order dismissing its cross-complaint, which we deem to be a final appealable judgment for the reasons just discussed. Swinerton contends the good faith settlement determination cannot be appealed because Atlas did not seek writ review of the good faith settlement determination under section 877.6, subdivision (e). Once again, we conclude Atlas has the better argument. Section 877.6, subdivision (e)—a provision in the good faith settlement determination statute—permits an aggrieved party to seek immediate appellate review of a good faith settlement determination by filing a petition for writ of mandate. It states as follows: “When a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate. The petition for writ of mandate shall be filed within 20 days after service of written notice of the determination, or within any additional time not exceeding 20 days as the trial court may allow. [¶] (1) The court shall, within 30 days of the receipt of all materials to be filed by the parties, determine whether or not the court will hear the writ and notify the parties of its determination…. [¶] (3) The running of any period of time after which an action would be subject to dismissal [for delay of prosecution] … shall be tolled during the period of review of a determination pursuant to this subdivision.” (§ 877.6, subd. (e).) 10 There is a split of authority as to whether section 877.6, subdivision (e) supplies the sole method by which a party may seek appellate review of a good faith settlement determination. One line of authority has its genesis in Main Fiber Products, Inc. v. Morgan & Franz Insurance Agency (1999) 73 Cal.App.4th 1130 (Main Fiber). In Main Fiber, the court noted that the policy underpinning section 877.6, subdivision (e) is to encourage settlement by guaranteeing finality for the settling tortfeasor. (Id. at p. 1135.) The court reasoned “[t]he same policy reasons which prompted the Legislature to afford parties aggrieved by good[-]faith determinations the right to review by writ of mandate also militate in favor of a construction of the statute which renders a pretrial petition for a writ of mandate the exclusive means of review.” (Ibid., italics added.) Additionally, the court noted that other features of the statute—including the default 20-day deadline for a party to seek writ review, the 30-day deadline for a court to decide whether it will hear the matter, and the tolling of time periods for dismissal for want of diligent prosecution—suggested the Legislature intended good faith settlement determinations “to be finally resolved before the trial between the remaining litigants.” (Main Fiber, at p. 1136; see O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491 , 499 [following Main Fiber].) In Cahill, supra, 194 Cal.App.4th 939 , our court parted ways with Main Fiber and sided with a competing line of authority standing for the proposition that the writ procedure set forth in section 877.6, subdivision (e) is not the exclusive means by which to seek appellate review of a good faith settlement determination. We noted section 877.6, subdivision (e) states an aggrieved party “may” petition for writ review and concluded the statute’s use of the word “may” demonstrated that writ review is “a permissive, not mandatory, means of challenging a good faith settlement determination ….” 11 (Cahill, at p. 955; see Maryland Casualty Co. v. Andreini & Co. of Southern California (2000) 81 Cal.App.4th 1413 , 1420 [section 877.6, subdivision (e)’s “use of the words ‘may petition,’ together with ‘shall be filed,’ suggests that a writ petition might not be the exclusive means of reviewing a good faith settlement determination.”].) In addition, we cited a legislative analysis of a bill that formed the basis for section 877.6, subdivision (e), in which the Senate Judiciary Committee stated the bill would have no impact on a party’s ability to appeal a good faith settlement determination. (Cahill, at p. 953.) Based on these and other considerations, we concluded writ review under section 877.6, subdivision (e) is not the sole means by which a good faith settlement determination may be challenged. (Id. at pp. 955–956.) Swinerton attempts to distinguish this case from Cahill on grounds that the party seeking review of the good faith settlement determination in Cahill timely sought and was denied writ review under section 877.6, subdivision (e) before it later appealed the good faith settlement ruling as part of an appeal from an order deemed to be a final judgment. (Cahill, supra, 194 Cal.App.4th at pp. 945, 956.) Here, by contrast, Atlas never sought writ review of the good faith settlement determination. We believe this is a distinction without a difference. A close reading of Cahill discloses that in that case, the appealing party’s filing of an earlier petition for writ of mandate was not determinative of whether it was entitled to challenge the good faith settlement determination on appeal from the order deemed to be a final judgment. Instead, after considering the “language and legislative history” of section 877.6, subdivision (e), we broadly concluded the appealing party was entitled to appeal the good faith settlement determination because “the availability of writ review [in section 877.6, subdivision (e)], or the summary denial of a writ petition, does 12 not preclude an appeal after a final judgment.” (Cahill, supra, 194 Cal.App.4th at pp. 955–956.) To the extent Swinerton reads Cahill as implying that the filing of a petition for writ of mandate is a prerequisite to a challenge of a good faith settlement determination after a final judgment, Swinerton misinterprets Cahill, which imposes no such requirement. In accordance with Cahill, we conclude Atlas is not barred from appealing the good faith settlement determination merely because it did not file a petition for writ of mandate under section 877.6, subdivision (e). 3 Summary Judgment Order Finally, we assess whether Atlas may appeal the summary judgment order, which Atlas contends is an interlocutory ruling reviewable on appeal from the order dismissing its cross-complaint. Atlas asserts it was aggrieved by the summary judgment order because, “[a]s a co-defendant of Swinerton, Atlas shared an interest with plaintiffs in establishing Swinerton’s negligence.” It claims it was also aggrieved by the grant of summary judgment because, according to Atlas, it will be unable to attribute fault to Swinerton during the wrongful death trial. Swinerton claims we lack jurisdiction to consider the summary judgment order because Atlas was not aggrieved by the ruling. This time, we conclude Swinerton has the better argument. Section 902, the statute governing a party’s standing to appeal, states in pertinent part as follows: “Any party aggrieved may appeal in the cases prescribed in this title.” (Italics added.) “For purposes of section 902, a party is aggrieved if an order ‘injuriously affect[s]’ its rights or interests. [Citation.] The injured interest must be ‘recognized by law’ [citation], and the injury must be ‘immediate, pecuniary, and substantial’; it cannot be nominal or be ‘a 13 remote consequence of the judgment.’ [Citation.] The injured interest also must belong to the party: ‘a would-be appellant “lacks standing to raise issues affecting another person’s interests.” ’ ” (Six4Three, LLC v. Facebook, Inc. (2020) 49 Cal.App.5th 109 , 115; see In re J.Y. (2018) 30 Cal.App.5th 712 , 717 [“ ‘An aggrieved person … is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.’ ”].) Standing to appeal is a jurisdictional requirement and may not be waived. (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875 , 888, fn. 7.) “It is well settled in California … that the exoneration of a joint tortfeasor from liability does not ‘aggrieve’ the other individually liable tortfeasor(s) insofar as that word is understood to apply to a party’s standing to appeal.” (Holt v. Booth (1991) 1 Cal.App.4th 1074 , 1080 (Holt); see, e.g., Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581 , 608 (Diamond Springs) [“[A] defendant having independent liability has no standing to appeal from a judgment exonerating his codefendant, even where a potential right of contribution exists.”]; Cook v. Superior Court (1969) 274 Cal.App.2d 675 , 679 (Cook) [“A defendant who is individually liable is not aggrieved by the exoneration, even though erroneous, of a codefendant.”]; Swails v. General Electric Co. (1968) 264 Cal.App.2d 82 , 86 (Swails) [“It is established law that a defendant who is himself liable is not aggrieved by the exoneration of a codefendant. [Citations.] This rule was not changed by the enactment of [the statutory scheme] relating to contribution among joint tortfeasors.”].) Applying these principles here, we conclude Atlas was not aggrieved by the summary judgment order, which merely exonerated Atlas’s codefendant, Swinerton. 14 Atlas claims it was aggrieved because the summary judgment order went beyond mere exoneration of a codefendant—it “caused the dismissal of Atlas’[s] cross-complaint” for equitable indemnity, contribution, and declaratory relief. This argument is unavailing, as “an individually liable tortfeasor is not aggrieved by the exoneration of a joint tortfeasor even when that exoneration defeats what would otherwise be an actionable cause for contribution.” (Holt, supra, 1 Cal.App.4th at p. 1080; see also Diamond Springs, supra, 16 Cal.App.3d at p. 608; Cook, supra, 274 Cal.App.2d at p. 679; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 2:289 [“Whereas contribution rights between joint contract debtors exist ‘prior to and quite apart from the judgment’ [citation], contribution rights do not arise in favor of joint tortfeasors until they have paid a joint judgment or more than their pro rata share [citation]; as such, individually liable joint tortfeasors are not ‘aggrieved’ for appeal purposes by the exoneration of a codefendant.”], italics added.) In any event, the dismissal of the cross-complaint was not “caused” by the summary judgment ruling, as Atlas contends. After the court granted summary judgment in favor of Swinerton, Swinerton and plaintiffs entered into an intervening settlement that became the subject of a good faith settlement determination. It was that determination that resulted in the stipulated order dismissing Atlas’s cross-complaint, as the parties themselves stated in their request for dismissal of the cross-complaint. Thus, while the court’s summary judgment ruling likely influenced plaintiffs and Swinerton’s settlement, as well as the good faith settlement determination, the summary judgment order—which was never reduced to a judgment—did not “cause” the dismissal of Atlas’s cross-complaint in any direct sense. 15 As an alternative argument, Atlas claims it was aggrieved by the summary judgment order because, under section 437c, subdivision (l), the summary judgment order will preclude Atlas from attributing fault to, or commenting on, the absence or involvement of Swinerton during trial. Section 437c, subdivision (l), the statutory provision on which Atlas relies, provides as follows: “In an action arising out of an injury to the person or to property, if a motion for summary judgment is granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to, or comment on, the absence or involvement of the defendant who was granted the motion.” We are not convinced the mere possibility of future harm to Atlas renders Atlas aggrieved for purposes of section 902. In short, Atlas’s argument rests on a series of ifs—(1) if the wrongful death action proceeds to trial, plaintiffs may move in limine to exclude Atlas from attributing fault to, or commenting on, the absence or involvement of Swinerton; (2) if the plaintiffs file this anticipated motion in limine, the trial court may find that its prior order granting Swinerton’s motion for summary judgment under the Privette doctrine was a determination that Swinerton was “without fault” (§ 437c, subd. (l)), and the court may grant plaintiffs’ motion in limine on that basis; and (3) if Atlas is unable to attribute fault to, or comment on the absence of, Swinerton during trial, it may be found liable to plaintiffs. Assuming without deciding that an erroneous ruling precluding a defendant from attributing fault to, or commenting on, the absence or involvement of a codefendant can in some cases injure the defendant, it is clear such an injury is too uncertain and remote in this case. Atlas may never suffer the alleged injury of which it complains if, for example, the case is dismissed or otherwise resolved prior to trial. Or plaintiffs may not file a 16 motion in limine pursuant to section 437c, subdivision (l). Or they may move in limine, but the trial court may deny the motion on grounds that Swinerton’s dismissal under the Privette doctrine was not a determination that Swinerton was “without fault” (an issue that has not been briefed and on which we express no opinion). Or if the court grants the motion in limine, Atlas may prevail in the wrongful death action and owe plaintiffs nothing at all. (See Cook, supra, 274 Cal.App.2d at p. 679 [“[O]ne who is not himself liable cannot be prejudiced by a judgment for or against a codefendant.”].) As each of these hypothetical scenarios has not come to pass, Atlas’s alleged injury is mere speculation. It is neither immediate nor substantial, as required by section 902. Thus, Atlas does not have standing to appeal the summary judgment order in favor of its codefendant, Swinerton. (See Pacific Merchant Shipping Assn. v. Board of Pilot Commissioners etc. (2015) 242 Cal.App.4th 1043 , 1062 [“The [defendant] cites no authority that a person potentially liable for satisfaction of a judgment against another party has standing to appeal the judgment. In fact, the authority is to the contrary.”]; Hensley v. Hensley (1987) 190 Cal.App.3d 895 , 899 [“Although the [defendants] will have to defend the case on its merits, the possibility of an adverse judgment in the future does not make them ‘aggrieved’ parties.”].) 4 Conclusion In light of our determination that we have jurisdiction to review the dismissal of Atlas’s cross-complaint and the good faith settlement determination, we deny Swinerton’s motion to dismiss the appeal to the extent it is based on those orders. However, Atlas does not have standing to appeal the summary judgment order. Therefore, we grant Swinerton’s 17 motion to dismiss the appeal insofar as it pertains to the summary judgment order. (See In re D.M. (2012) 205 Cal.App.4th 283 , 294–295.) B Merits In the previous section, we concluded we have jurisdiction to consider the merits of two orders—the good faith settlement determination and the stipulated dismissal of Atlas’s cross-complaint against Swinerton. Our consideration will be short. Atlas devotes substantial attention in its appellate briefing to the merits of the order granting Swinerton’s motion for summary judgment, yet virtually no attention to the merits of the good faith settlement determination or the dismissal of its cross-complaint. In its opening appellate brief, for instance, Atlas argues only that the good faith settlement determination and cross-complaint dismissal order must be reversed because the dismissal order “flowed directly from the good-faith settlement determination, which flowed directly from the order granting summary judgment.” In its reply brief, it claims its “arguments about the good-faith settlement ruling are necessarily coupled with its arguments about summary judgment because the good-faith settlement ruling flowed directly from the erroneous summary judgment.” Atlas does not address the factors a trial court must consider when determining whether to make a good faith settlement determination. It does not apply each of those factors to the facts of the present case. It does not discuss the evidence the parties filed in support, or in opposition, to Swinerton’s motion for a good faith settlement determination. Nor does it reference the standard of review we should apply to the trial court’s good faith settlement determination or the dismissal of its cross-complaint. 18 Atlas’s bare assertion that we must reverse these orders based on the alleged flaws in the summary judgment ruling is not substantive legal analysis. Because Atlas has not provided substantive legal analysis, reasoned argument, or citations to authority as to the good faith settlement determination and the dismissal of its cross-complaint, we conclude Atlas has waived its claims of error as to these orders. (Cahill, supra, 194 Cal.App.4th at p. 956 [“ ‘ “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ’ ”]; Keyes v. Bowen (2010) 189 Cal.App.4th 647 , 656 [“It is the appellant’s responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant’s behalf.”].) IV DISPOSITION The appeal is dismissed to the extent it concerns the summary judgment order. In all other respects, the challenged orders are affirmed. Swinerton is entitled to its costs on appeal. McCONNELL, P. J. WE CONCUR: HALLER, J. AARON, J. 19
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01/26/2021 IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 19, 2020 Session CLARISSA BIDWELL EX REL. JAMES BIDWELL, ET AL. v. TIMOTHY A. STRAIT M.D., ET AL. Appeal by Permission from the Court of Appeals Circuit Court for Hamilton County No. 17-C-832 Kyle E. Hedrick, Judge ___________________________________ No. E2018-02211-SC-R11-CV ___________________________________ HOLLY KIRBY, J., concurring separately. I concur in the well-reasoned majority opinion but write separately on the issue of “extraordinary cause” to excuse failure to give pre-suit notice under Tennessee Code Annotated section 29-26-121(b) (“The court has discretion to excuse compliance with this section only for extraordinary cause shown.”). The majority concludes that the physician Defendants’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(5), in and of itself, does not constitute extraordinary cause under section 29-26-121(b) that would excuse the Plaintiff from providing pre-suit notice to Erlanger. I concur with this holding under the specific circumstances of this case. In future cases, however, failure to comply with section 29-26- 121(a)(5) could constitute extraordinary cause. The majority says, correctly, that it is not extraordinary for Plaintiffs to unknowingly rely on misinformation about the defendant physicians’ employer and send pre-suit notice to misidentified potential defendants. Section 29-26-121(a)(5) anticipates that very scenario. It also provides the remedy. If a plaintiff sends a pre-suit notice that omits or misnames a potential party, section 29-26-121(a)(5) creates a duty for potential defendants who received pre-suit notice to give notice of others who may be properly named defendants. That is the statutory fix for the common situation in which plaintiffs omit or misidentify potential defendants, such as a healthcare provider’s employer. It allows plaintiffs to timely bring in other properly named defendants and proceed with the action. The physician Defendants in this case argue that their duty to comply with this provision was not clear because the statute is ambiguous. As an issue of first impression, the majority rejects this argument and holds that the physician Defendants failed to comply with a clear and unambiguous statutory duty. Under the specific circumstances of this case, the majority agrees with the trial court that extraordinary cause did not exist. I agree based on the slender thread that, until this Court clarified section 29-26-121(a)(5) by its holding, there may have been some uncertainty about that duty. In the wake of the majority’s holding, there is no longer any uncertainty. The majority observes that a trial court in another case could conclude that a defendant’s failure to comply with section 29-26-121(a)(5) constitutes extraordinary cause. To expound on that point, in the future, when a plaintiff incorrectly gives pre-suit notice to the wrong person or entity, if the defendant clearly has knowledge of the correct person or entity and chooses not to give the required section 29-26-121(a)(5) notice, that defendant’s choice not to comply with its statutory duty could constitute extraordinary cause. The majority notes there is no statutory definition of “extraordinary cause.” In lieu of one, we have previously referenced various dictionary definitions of “extraordinary,” such as “very unusual” or “exceptional” or “remarkable.” Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 , 310–11 (Tenn. 2012) (citations omitted).1 It is not a stretch to say that a defendant’s deliberate decision to flout its manifest statutory duty is both exceptional and remarkable. To hold otherwise would be to affirmatively reward the offending defendant for ignoring its duty under section 29-26-121(a)(5). Indeed, if there is no consequence or remedy, it may even become “malpractice for defense counsel to inform their opponents of” other properly named defendants “until it is too late” for plaintiffs to bring them into the lawsuit. Martin v. Rolling Hills Hosp., LLC, 600 S.W.3d 322 , 346 (Tenn. 2020) (Kirby, J., concurring in part and dissenting in part). This would create a perverse mandate for defense counsel to purposefully disregard the statutory duty the majority now holds is clear and unambiguous. Such a result would be contrary to the legislative intent behind section 29-26- 121(a)(5). The statute specifically places a duty on defendants to send written notice of others who may be properly named defendants. It does not compel us to reward defendants for failing to fulfill that duty. In this case, the physician Defendants knew, with no uncertainty, that the Plaintiffs’ pre-suit notice misidentified their employer. They knew—without question—that Erlanger should have been included. The majority holds today that their duty to give written notice 1 Examples given in Myers refer to illness or death, but nothing in the statute limits extraordinary cause to those situations. Myers, 382 S.W.3d at 311 (citation omitted). 2 under section 29-26-121(a)(5) was unequivocal. In future cases with similar facts, a deliberate decision to disregard this statutory duty should constitute extraordinary cause to excuse a plaintiff’s failure to give pre-suit notice to the omitted defendant. ______________________________ HOLLY KIRBY, JUSTICE 3
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01/26/2021 IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 19, 2020 Session CLARISSA BIDWELL EX REL. JAMES BIDWELL ET AL. v. TIMOTHY A. STRAIT, M.D. ET AL. Appeal by Permission from the Court of Appeals Circuit Court for Hamilton County No. 17-C-832 Kyle E. Hedrick, Judge ___________________________________ No. E2018-02211-SC-R11-CV ___________________________________ SHARON G. LEE, J., concurring in part and dissenting in part. I agree with the majority that the Defendants, Dr. Timothy Strait and Dr. Jeffrey Colburn, are entitled to summary judgment. It is a harsh and unfortunate result. The Defendants did not comply with the notice requirement of Tennessee Code Annotated section 29-26-121(a)(5) and gained a tactical advantage which allowed them to win this case. While I agree with the result, I disagree that the Defendants sufficiently alleged comparative fault in their answers so that the Plaintiff had ninety days to amend his complaint under Tennessee Code Annotated section 20-1-119. The Defendants worked for the Chattanooga-Hamilton County Hospital Authority, known as Erlanger, when the alleged negligence occurred that caused the death of the Plaintiff’s wife. The Plaintiff mistakenly named the Defendants’ previous employers instead of Erlanger in the mandatory pre-suit notice letters sent to the Defendants. Under Tennessee Code Annotated section 29-26-121(a)(5),1 the Defendants were required to notify the Plaintiff of any other entity that may be a properly named defendant. Yet the Defendants remained silent, never telling the Plaintiff about Erlanger. When the Plaintiff 1 In the event a . . . health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the . . . health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant. Tenn. Code Ann. § 29-26-121 (a)(5) (Supp. 2020) (emphasis added). filed suit, he sued the Defendants’ former employers—not Erlanger. Still playing hide the ball, the Defendants answered the complaint, not alleging under Tennessee Code Annotated section 20-1-1192 that Erlanger, as their employer, caused or contributed to the death of the Plaintiff’s wife or was vicariously liable for the Defendants’ actions. See Browder v. Morris, 975 S.W.2d 308 , 312–13 (Tenn. 1998) (holding that section 20-1-119 applied to defendants who could be vicariously liable for the conduct of a defendant who caused or contributed to the plaintiff’s injury). After suit was filed, the Defendants finally notified the Plaintiff—in the form of motions for summary judgment—that Erlanger, as their employer, was not only a properly named defendant but also an indispensable party. Not surprisingly, the Defendants prevailed on summary judgment after arguing that, under the Governmental Tort Liability Act, the Plaintiff could not obtain a judgment against them because he did not sue Erlanger. The Defendants got away with this because even though section 29-26-121(a)(5) requires a health care provider who receives pre-suit notice to give a plaintiff notice of another entity that may be a properly named defendant, there is no penalty for noncompliance. Thus, the Defendants were rewarded for ignoring a statutory obligation.3 This cannot be what the Legislature intended by enacting section 29-26-121(a)(5). 2 In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations . . . alleges in an answer or amended answer to the . . . complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff’s cause . . . of action against that person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging that person’s fault, either: (1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ. P. 15 and cause process to be issued for that person; or (2) Institute a separate action against that person by filing a summons and complaint. Tenn. Code Ann. § 20-1-119 (a)(1)–(2) (2012). 3 The Defendants argue that their noncompliance is not material because the Plaintiff gave them notice of his claim less than thirty days before the statute of limitations ran on any claims against Erlanger. Under section 29-26-121(a)(5), the Defendants had thirty days to notify the Plaintiff of other potential parties. But notice under section 29-26-121(a)(5) does not depend on whether a plaintiff has time to receive notice and then bring potential defendants into a suit. The statute states that defendants “shall . . . provide written notice . . . of any other person, entity, or health care provider who may be a properly named defendant.” Tenn. Code Ann. § 29-26-121 (a)(5) (emphasis added). The Defendants failed to comply with this statutory mandate. -2- By the time the Plaintiff learned that the Defendants worked for Erlanger, it was too late to sue Erlanger. There was no 120-day extension of the statute of limitations under Tennessee Code Annotated section 29-26-121(c)4 because the Plaintiff did not give pre- suit notice to Erlanger. Thus, by April 2017, the Plaintiff’s claim against Erlanger was time-barred.5 Without Erlanger as a defendant, the Plaintiff’s case against the Defendants was doomed. Because the Defendants did not allege in their answers that Erlanger caused or contributed to the Plaintiff’s wife’s death, Tennessee Code Annotated section 20-1-119— which allows a plaintiff ninety days to bring an action that would otherwise be time- barred—was never triggered. Each of the Defendants merely included in their answers the customary generic statement reserving their right to assert comparative fault against anyone else who might be found to have caused the Plaintiff’s wife’s death. Defendant Strait’s answer, filed in August 2017, identified Erlanger as his employer and stated: This defendant reserves the right, should discovery or evidence, including that presented at trial, indicate it appropriate, to plead the comparative negligence of the decedent or any other person or entity, as a proximate or contributing cause of all or a portion of the alleged injuries and damages, and to take into account such evidence in apportioning or comparing negligence or fault, causation or damages, whether in apportionment or mitigation. At this time, this defendant has no knowledge of any persons except the parties identified and as set forth in the plaintiff’s Complaint to which this doctrine would apply. (Emphasis added). Defendant Colburn’s answer, filed in September 2017, did not identify Erlanger as his employer and stated: 4 “When notice is given to a provider as provided in this section, the applicable statute[] of limitations . . . shall be extended for a period of one hundred twenty (120) days from the date of the expiration of the statute of limitations . . . applicable to that provider.” Tenn. Code Ann. § 29-26-121 (c) (2012 & Supp. 2020). 5 In April 2016, the Plaintiff’s wife died at Erlanger. In March 2017, the Plaintiff gave pre-suit notice of his health care liability claim to the Defendants. In July 2017, the Plaintiff sued the Defendants. This suit was timely because the Plaintiff had given pre-suit notice to the Defendants before the one-year statute of limitations expired and thus gained a 120-day extension of the one-year statute of limitations. See Tenn. Code Ann. §§ 29-26-116 (a)(1), -121(c) (2012 & Supp. 2020). -3- To avoid waiver and pending further investigation and discovery, Dr. Colburn raises the affirmative defense of comparative fault. Should the evidence, as developed through the course of investigation and discovery, or at trial, indicate that others, including but not limited to the other parties in this matter, were guilty of negligence that caused or contributed to the injuries and damages alleged in the Complaint, if any, then Dr. Colburn reserves the right to amend his Answer and to show the same at trial. (Emphasis added). Under section 20-1-119(a), a defendant’s answer must provide reasonable notice of another potential defendant. For example, in Austin v. State, 222 S.W.3d 354 (Tenn. 2007), a county alleged in its answer that the State, not the county, was responsible for the placement and management of the stop sign where the plaintiffs’ accident happened. Id. at 356 . This Court held that the county had specifically identified the State as a potential nonparty at fault, and allegations in the county’s answer “reasonably support[ed] a conclusion that the State [was] responsible for the [plaintiffs’] injuries.” Id. at 358 . Similarly, in Romine v. Fernandez, 124 S.W.3d 599 (Tenn. Ct. App. 2003), the defendant doctor denied that he was negligent and generally asserted comparative fault, alleging that hospital staff administered the medicine that caused the plaintiff’s injuries but not based on an order from the defendant doctor. Id. at 601 . The Romine court found that although the defendant doctor did not specifically identify the hospital staff members who administered the medication, his answer provided reasonable notice of another person or entity’s involvement. Id. at 604–05. A defendant need not assert comparative fault in a formulaic manner or allege fault of the nonparty explicitly, but the defendant must still “allege[] facts that reasonably support a conclusion that the nonparty caused or contributed to the plaintiff’s injury.” Austin, 222 S.W.3d at 357–58. While both Defendants admitted that they treated the Plaintiff’s wife at Erlanger, neither Defendant “alleg[ed] facts that reasonably support a conclusion that [Erlanger] caused or contributed to the [Plaintiff’s wife’s death].” See id. at 358 . Instead, the Defendants stated in their answers that they were raising comparative fault in case they discovered at some point that another party was guilty of negligence that caused or contributed to the Plaintiff’s wife’s death. This standard preservation of an affirmative defense––that may or may not develop––is not the same as alleging that Erlanger (or anyone else) caused or contributed to the death of the Plaintiff’s wife. Thus, because the Defendants did not allege any facts that reasonably support a conclusion that Erlanger was responsible for the Plaintiff’s wife’s death, the ninety-day window provided by Tennessee Code Annotated section 20-1-119 for the Plaintiff to amend and name Erlanger as a party was never opened. Accordingly, the Plaintiff’s claims against Erlanger were barred by the one-year statute of limitations and could not be saved by the ninety-day extension. -4- The Defendants’ failure to notify the Plaintiff about Erlanger is not extraordinary cause that would excuse the Plaintiff from providing Erlanger pre-suit notice. See Tenn. Code Ann. § 29-26-121 (b).6 “Extraordinary cause” is not defined in the statute, but this Court has provided examples of extraordinary cause, including the plaintiff’s lawyer’s illness or a death in the lawyer’s immediate family. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 , 311 (Tenn. 2012) (quoting John A. Day, Med Mal Makeover 2009 Act Improves on ’08: The New New Medical Malpractice Notice and Certificate of Good Faith Statutes, 45 Tenn. B.J. 14, 17 (July 2009)). These examples of extraordinary cause, while not exhaustive, involve unusual and untimely difficulties faced by a plaintiff’s counsel and not the failure of a defendant to comply with a statutory requirement. The Legislature carved out an exception to the pre-suit notice requirement in section 29-26-121(c) for parties who are identified after the expiration of the statute of limitations as parties who caused or contributed to a plaintiff’s injury.7 But that statutory exception works in conjunction with another statutory exception—the ninety-day window provided by Tennessee Code Annotated section 20-1-119 for suing defendants alleged to be comparatively at fault. For a defendant to rely on the defense of another party’s comparative fault, the defendant must identify that party in an answer or an amended answer. See Tenn. R. Civ. P. 8.03.8 Once an answer or an amended answer identifies a party as being comparatively at fault, the ninety-day window provided by section 20-1-119 applies. Unfortunately, the Legislature has not created any statutory mechanism for bringing in a party after expiration of the statute of limitations whose comparative fault was not alleged. Nor has the Legislature created a statutory remedy for a defendant’s failure to comply with section 29-26-121(a)(5). Even though there is no statutory penalty for noncompliance with section 29-26-121(a)(5), defendants should not feel free to ignore a statute when it helps them win a case. We should not condone, reward, or tolerate a violation of a statutory obligation to disclose information. In sum, the Plaintiff’s failure to give notice to Erlanger was fatal to the Plaintiff’s claims against Erlanger and also against the Defendants. I disagree with the majority’s 6 “The court has discretion to excuse compliance with [the statutory notice requirements of section 29-26-121] only for extraordinary cause shown.” Tenn. Code Ann. § 29-26-121 (b) (2012 & Supp. 2020). 7 “Once a complaint is filed alleging a claim for health care liability, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant’s alleging comparative fault.” Tenn. Code Ann. § 29-26-121 (c). 8 “In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute . . . comparative fault (including the identity or description of any other alleged tortfeasors) . . . .” Tenn. R. Civ. P. 8.03. -5- conclusion that the Defendants’ general statements preserving the affirmative defense of comparative fault but not asserting the comparative fault of another person or entity was enough to trigger section 20-1-119. Thus, even if the Plaintiff had filed an amended complaint to bring in Erlanger within ninety days after the Defendants filed their answers, the Plaintiff’s claims against Erlanger were time-barred because the Plaintiff was not entitled to section 20-1-119’s ninety-day extension. It is for these reasons that I agree that the Defendants are entitled to summary judgment but disagree with part of the majority’s analysis. _______________________________ SHARON G. LEE, JUSTICE -6-
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01/26/2021 IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 19, 2020 Session1 CLARISSA BIDWELL EX REL. JAMES BIDWELL, ET AL. v. TIMOTHY A. STRAIT M.D., ET AL. Appeal by Permission from the Court of Appeals Circuit Court for Hamilton County No. 17-C-832 Kyle E. Hedrick, Judge ___________________________________ No. E2018-02211-SC-R11-CV ___________________________________ James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—The Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga- Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121 (a)(5). Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310 (b). Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace 1 We heard oral argument through videoconference under this Court’s emergency orders restricting court proceedings due to the COVID-19 pandemic. period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with pre- suit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part and Reversed in Part; Judgment of the Trial Court Reinstated CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J., and ROGER A. PAGE, J., joined. SHARON G. LEE, J., filed an opinion concurring in part and dissenting in part. HOLLY KIRBY, J., filed a concurring opinion. Joshua A. Powers, Travis B. Holly, and Alexandra E. Weiss, Chattanooga, Tennessee, for the appellant, Jeffrey Colburn, M.D. Laura Beth Rufolo, Keith H. Grant, and Philip Aaron Wells, Chattanooga, Tennessee, for the appellant, Timothy A. Strait, M.D. -2- Jimmy W. Bilbo, Cleveland, Tennessee, for the appellee, James Bidwell, Next of Friend and surviving spouse of Clarissa Bidwell, deceased, and on behalf of the estate of Clarissa Bidwell. Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the Amicus Curiae, Tennessee Defense Lawyers Association. W. Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C., and Brian G. Brooks, Greenbrier, Arkansas, for the Amicus Curiae, Tennessee Trial Lawyers Association. OPINION I. Factual and Procedural Background James Bidwell (“the Plaintiff”) is the surviving husband of Decedent, Clarissa Bidwell (“the Decedent”), who, at all relevant times, was a citizen of Meigs County, Tennessee. On March 28, 2016, the Decedent was hospitalized at Starr Regional Medical Center (“Starr Regional”) with complaints of generalized aches, nausea, blurred vision, and right-side numbness. A computed tomography (“CT”) scan performed at Starr Regional revealed “a nine (9) [millimeter] rounded density just lateral to the pituitary, which was concerning for an aneurysm.” Based on these results, the Decedent was transferred by ambulance to the emergency department at Chattanooga-Hamilton County Hospital Authority (“Erlanger”) for a neurosurgical consultation with Dr. Timothy A. Strait (“Dr. Strait”). There, the Decedent underwent diagnostic and interventional studies and testing by Dr. Strait and Dr. Blaise Baxter (“Dr. Baxter”). On March 30, 2016, upon a determination that her condition had not worsened, the Decedent was released from Erlanger by her attending physician, Dr. Jeffrey Colburn (“Dr. Colburn”), with instructions to “follow-up with an interventional radiologist the following week.” On the way home from Erlanger, the Decedent began experiencing stroke-like symptoms, including sudden onset slurred speech, left-side weakness, right-gaze preference, and disorientation. The Plaintiff drove to the nearest hospital, Tennova Healthcare in Cleveland,2 where the Decedent underwent a CT scan that “revealed an acute, right frontal intracranial hemorrhage.” A helicopter ambulance then returned the Decedent to Erlanger. The Decedent was admitted to Erlanger’s Intensive Care Unit (“ICU”), and the next day, April 1, 2016, she underwent emergency brain surgery. She died on April 6, 2016. 2 Tennova Healthcare was formerly known as SkyRidge Medical Center. -3- Tennessee Code Annotated section 29-26-121(a)(1) (2012 & Supp. 2020) requires persons who intend to bring a health care liability action to provide pre-suit notice to “each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability.” On March 24, 2017,3 the Plaintiff provided pre-suit notices to Drs. Colburn and Strait (“the physician Defendants”). The Plaintiff also provided pre-suit notices to The Neurosurgical Group of Chattanooga, P.C. (“The Neurosurgical Group”), EmCare, Inc. (“EmCare”), and Envision Healthcare Corporation (“Envision”).4 The Plaintiff believed that these entities employed the physician Defendants after conducting “a targeted investigation for the purpose of ascertaining the proper identity of all potential defendants, including [Dr.] Strait [and Dr. Colburn] and [their] employer[s]/principal[s].” In his motions for leave to amend his complaint, the Plaintiff asserted that, as part of the “targeted investigation,” Plaintiff’s counsel searched online databases. The Plaintiff asserted that this search, as it related to Dr. Strait, revealed the online physician listings for Chattanooga Neurosurgery & Spine, which identified Dr. Strait as an employee under the “‘Our Doctors’ tab.” A business entity search through the State of Tennessee Secretary of State’s business services website further identified Chattanooga Neurosurgery & Spine “as an active, assumed name for the principal corporate entity ‘The Neurosurgical Group of Chattanooga, P.C.’” As the search pertained to Dr. Colburn, the Plaintiff asserted in his second motion for leave to amend his complaint that his counsel was unable to locate Dr. Colburn’s practice address on the Tennessee Department of Health, Board of Medical Examiners’ website, but that further online investigation revealed a current business address at CHI Memorial Medical Group. The Plaintiff further asserted that, “out of an overabundance of caution,” his counsel contacted Erlanger “to further inquire as to [the] identity of [Dr.] Colburn’s employer.” According to the Plaintiff, counsel “was advised that [Dr.] Colburn provided emergency physician services at [Erlanger] through [EmCare] (a division of [Envision])[,] and that [EmCare] [w]as in the business of contracting with hospitals to staff and manage their emergency department.” Based on this information, Dr. Colburn “was believed to be an employee and/or agent of [EmCare], a division of [Envision,]” and pre-suit notices were delivered to both entities. The Plaintiff did not send pre-suit notice to Erlanger. Dr. Strait, Dr. Colburn, The Neurosurgical Group, 3 Constable Brent Runyon personally delivered pre-suit notice to Dr. Colburn on March 24, 2017. Counsel for Mr. Bidwell mailed pre-suit notice to Dr. Strait on March 24, 2017, and it was received by Dr. Strait, or his authorized agent, on March 27, 2017. 4 The Plaintiff further provided pre-suit notices to Dr. Baxter and Tennessee Interventional & Imaging Associates, PLLC, who were subsequently named as Defendants in the Plaintiff’s complaint. Those defendants are not parties to this appeal, and, because the facts pertaining to them do not impact our decision, we do not address them in this opinion. -4- EmCare, and Envision did not provide the Plaintiff notice “of any other person, entity, or health care provider who may be a properly named defendant” pursuant to Tennessee Code Annotated section 29-26-121(a)(5) (Supp. 2020). That provision provides: In the event a person, entity, or health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the person, entity, or health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant. On July 24, 2017,5 the Plaintiff filed suit against Dr. Strait, Dr. Colburn, The Neurosurgical Group, EmCare, and Envision. The Plaintiff did not sue Erlanger. As against The Neurosurgical Group, EmCare, and Envision, the Plaintiff alleged that, “at all times relevant to the subject matter of this Complaint, [Dr.] Strait was an actual, apparent and/or ostensible agent and/or employee of [The Neurosurgical Group,]” that Dr. Colburn “was an actual, apparent and/or ostensible agent and/or employee of defendants [EmCare] and/or [Envision,]” that The Neurosurgical Group was “vicariously liable for the negligent acts and/or omissions of [Dr.] Strait,” and that either or both EmCare and Envision were “vicariously liable for the negligent acts and/or omissions of [Dr.] Colburn.” The Plaintiff further alleged direct negligence against The Neurosurgical Group, EmCare, and Envision for alleged negligent conduct related to Drs. Strait and Colburn, including negligent hiring, training, and supervision, in addition to negligent failure to formulate, enforce, or otherwise ensure compliance with appropriate policies and procedures. On August 28, 2017, Dr. Strait filed his answer. Dr. Strait admitted that he provided medical treatment to the Decedent but denied that he was an employee or agent of The Neurosurgical Group. Instead, Dr. Strait asserted that “at all material times, [he] was employed by [Erlanger] and provided healthcare services to [the Decedent] in the course and scope of his employment with [Erlanger].” Dr. Strait further averred that The Neurosurgical Group “sold its assets to [Erlanger] and ceased conducting business” in April 2015. Dr. Strait also asserted as follows: This defendant reserves the right, should discovery or evidence, including that presented at trial, indicate it appropriate, to plead the comparative negligence of the decedent or any other person or entity, as a 5 There is no dispute that the Plaintiff’s complaint was timely filed against the physician Defendants within the 120-day extension of the statute of limitations provided by Tennessee Code Annotated section 29-26-121(c) (2012 & Supp. 2020). -5- proximate or contributing cause of all or a portion of the alleged injuries and damages, and to take into account such evidence in apportioning or comparing negligence or fault, causation or damages, whether in apportionment or mitigation. At this time, this defendant has no knowledge of any persons except parties identified and as set forth in the plaintiff’s Complaint to which this doctrine would apply. On September 11, 2017, Dr. Colburn filed his answer. In his answer, Dr. Colburn admitted that he provided medical care to the Decedent and that the Plaintiff properly listed his current work address, but Dr. Colburn denied being an employee or agent of EmCare or Envision at the relevant times. Unlike Dr. Strait, Dr. Colburn did not identify his employer in his answer. Dr. Colburn also asserted the following: To avoid waiver and pending further investigation and discovery, Dr. Colburn raises the affirmative defense of comparative fault. Should the evidence, as developed through the course of investigation and discovery, or at trial, indicate that others, including but not limited to the other parties in this matter, were guilty of negligence that caused or contributed to the injuries and damages alleged in the Complaint, if any, then Dr. Colburn reserves the right to amend his Answer and to show the same at trial. EmCare and Envision also each filed an answer on September 11, 2017. They both denied that Dr. Colburn was their employee or agent and asserted comparative fault against the other named defendants. On October 19, 2017, Dr. Strait moved for summary judgment. As he did in his answer, Dr. Strait asserted that he was employed by Erlanger at all relevant times. In addition, he contended that Erlanger was a governmental entity governed by the Tennessee Governmental Tort Liability Act (“GTLA”), see Tenn. Code Ann. §§ 29-20-101 – 408, which provides, in part, that [n]o claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for health care liability brought against a health care practitioner. No claim for health care liability may be brought against a health care practitioner or judgment entered against a health care practitioner for damages for which the governmental entity is liable under this chapter, unless the amount of damages sought or judgment entered exceeds the minimum limits set out in [section] 29-20-403 or the amount of insurance coverage actually carried by the governmental entity, whichever is greater, and the governmental entity is also made a party defendant to the action. -6- Tenn. Code Ann. § 29-20-310 (b) (2012 & Supp. 2020) (emphasis added). Consequently, Dr. Strait asserted that he was immune from suit for alleged health care liability because Erlanger “was not made a party defendant” in accordance with Tennessee Code Annotated section 29-20-310(b), and that, therefore, the claims against him should be dismissed. On November 3, 2017, the Plaintiff filed a motion for leave to amend his complaint to “substitute[e] the originally named defendant-employer [of Dr. Strait]: ‘[The Neurosurgical Group,]’ with the properly named defendant-employer: ‘[Erlanger]’” and assert claims against it on this basis.6 The Plaintiff also simultaneously provided notice of his voluntary dismissal of The Neurosurgical Group, EmCare, and Envision. In support of his motion, the Plaintiff contended that Dr. Strait had failed to comply with the requirements of Tennessee Code Annotated section 29-26-121(a)(5), because “[a]t no time prior to the filing of the Complaint, did [Dr. Strait] . . . notify counsel for [the Plaintiff] ‘of any other person, entity, or health care provider who may be a properly named defendant’, or that [Dr. Strait] was actually employed by and/or an agent of Erlanger.” (Citation omitted). The Plaintiff also argued that Dr. Strait “placed comparative fault at issue . . . by alleging in his Answer to the original Complaint that an entity not a party to the suit[, Erlanger,] caused or contributed to the injury or damage for which [the Plaintiff] is seeking recovery.” Specifically, the Plaintiff highlighted the portion of Dr. Strait’s answer that asserted he was employed by Erlanger and “provided healthcare services to [the Decedent] in the course and scope of his employment with Erlanger.” For these reasons, the Plaintiff averred that he was entitled to timely amend his complaint to add Erlanger pursuant to Tennessee Rules of Civil Procedure 15.01 and 15.03 and Tennessee Code Annotated section 20-1-119, which allows a plaintiff to amend his complaint within ninety days to add “a person not a party to the suit” who a timely sued defendant alleges in an answer “caused or contributed to the injury or damage for which the plaintiff seeks recovery.” On November 14, 2017, Dr. Colburn filed a motion for summary judgment on the same grounds asserted by Dr. Strait. In his affidavit in support of his motion, Dr. Colburn stated that he was employed by Erlanger at all relevant times. On November 20, 2017, the Plaintiff filed a second motion for leave to amend seeking to further amend his complaint to allege that Erlanger was the employer of Dr. Colburn as well as Dr. Strait 6 While the Plaintiff’s motion to amend states that the “proposed Amended Complaint is filed herewith,” it is not included in the record on appeal. There is also no evidence in the record on appeal that the Plaintiff “cause[d] process to be issued” as to Erlanger after filing his first motion to amend. -7- and to substitute Erlanger and assert claims against it on this basis.7 In his motion, the Plaintiff specifically highlighted the portion of Dr. Colburn’s answer in which he admitted that the Plaintiff had “properly listed his current work address,” and the portion of Dr. Colburn’s affidavit in support of his motion for summary judgment stating that “[b]etween August 28, 2015 and February 16, 2017, [he] was employed by [Erlanger] and received [his] paycheck and benefits from Erlanger.” Otherwise, the Plaintiff’s grounds and contentions were the same as in his original motion to amend. After a hearing, the trial court denied the Plaintiff’s motions to amend and granted the Defendants’ motions for summary judgment. By memoranda and orders filed on September 25 and 28, 2018, the trial court held that under the relevant and applicable provisions of the GTLA and the HCLA, [Erlanger] is a proper and necessary defendant to this case and its absence as a party defendant, as is required under the [GTLA], makes Plaintiff’s case fatally defective. Furthermore, the pre-suit notice requirement of the HCLA and Plaintiff’s failure to conform therewith prevents the Plaintiff from curing [Erlanger’s] absence by adding it as a party via amendment. . . . [B]ecause Plaintiff cannot amend the complaint to add [Erlanger] as a named defendant without violating the explicit pre-suit requirements of the HCLA, [the trial court] denies Plaintiff’s motion for leave to amend and grants summary judgment in favor of the [physician Defendants]. On October 25, 2018, the Plaintiff filed a motion to amend the trial court’s findings. The trial court denied that motion and entered an order designating its orders as final, appealable judgments on November 12, 2018. The Plaintiff appealed. The Court of Appeals vacated the judgment of the trial court and remanded the case for further proceedings. Bidwell ex rel. Bidwell v. Strait, No. E2018-02211-COA-R3-CV, 2019 WL 4464815 , at *11 (Tenn. Ct. App. Sept. 18, 2019). The intermediate appellate court held, first, that Dr. Colburn and Dr. Strait failed to comply with Tennessee Code Annotated section 29-26-121(a)(5), as neither identified Erlanger as a known and necessary party within thirty days after receiving pre-suit notice as required by that section; second, that the Plaintiff was entitled to the additional ninety days to amend his complaint in order to add Erlanger as a defendant following the filing 7 As in his first motion for leave to amend his complaint, the Plaintiff states in his second motion that his “proposed Second Amended Complaint is filed herewith.” Although the record on appeal does not reflect that the amended complaint was separately filed with the trial court, it is included in the record immediately following his second motion. There is also no evidence in the record on appeal that the Plaintiff “cause[d] process to be issued” as to Erlanger after filing his second motion to amend. -8- of the first answer alleging its fault pursuant to section 20-1-119; and third, that the Plaintiff’s failure to provide Erlanger with pre-suit notice was not fatal to his proposed amendments because section 29-26-121(c) states that the pre-suit notice requirement does not apply to a party added after a lawsuit is filed as a result of a defendant’s allegation of comparative fault. We granted the physician Defendants’ application for permission to appeal. II. Standard of Review This case is on appeal from the trial court’s grant of the physician Defendants’ motions for summary judgment and denial of the Plaintiff’s motions for leave to amend his complaint to add Erlanger as a defendant. Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The parties do not dispute any material fact in this case. Rather, the issues presented are purely questions of law, which this Court reviews de novo with no presumption of correctness. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42 , 46 (Tenn. 2012) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362 , 366 (Tenn. 2012)). A trial court’s decision to grant or deny a motion to amend is reviewed under an abuse of discretion standard. Runions v. Jackson-Madison Cnty. Gen. Hosp. Dist., 549 S.W.3d 77 , 84 (Tenn. 2018) (citing Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.2d 727 , 741 (Tenn. 2013)). “A court abuses its discretion when it applies an incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to the complaining party.” Id. The question of whether a plaintiff has demonstrated extraordinary cause that would excuse compliance with the pre-suit notice requirements is a mixed question of law and fact, and our review of that determination is de novo with a presumption of correctness applying only to the trial court’s findings of fact and not to the legal effect of those findings. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 , 307-08 (Tenn. 2012). This case also involves issues of statutory interpretation. “The construction of a statute is a question of law, which is [likewise] reviewed de novo with no presumption of correctness.” Moreno v. City of Clarksville, 479 S.W.3d 795 , 802 (Tenn. 2015) (citing Austin v. State, 222 S.W.3d 354 , 357 (Tenn. 2007); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799 , 802 (Tenn. 2000)). Our primary purpose when construing a statute is to give effect to the legislative intent. Austin, 222 S.W.3d at 357 . When a -9- statute is unambiguous, “‘[w]e determine legislative intent from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute’s meaning.’” Id. (quoting State v. Flemming, 19 S.W.3d 195 , 197 (Tenn. 2000)); see also Myers, 382 S.W.3d at 311-12. III. Analysis There are two primary issues in this appeal. The first is the effect of the physician Defendants’ failure to notify the Plaintiff, within thirty days of receiving pre-suit notice, that Erlanger was their employer. See Tenn. Code Ann. § 29-26-121 (a)(5). The second is whether the physician Defendants sufficiently asserted comparative fault in their answers such that the Plaintiff had ninety days to amend his complaint pursuant to Tennessee Code Annotated section 20-1-119, and whether the Plaintiff satisfied the statutory requirements of section 20-1-119. We begin our analysis by addressing the effect of the physician Defendants’ failure to notify the Plaintiff of Erlanger as their employer within thirty days of receiving pre-suit notice pursuant to Tennessee Code Annotated 29-26-121(a)(5). A. Tennessee Code Annotated § 29-26-121(a)(5) As discussed above, the Plaintiff sought leave to amend his complaint to add Erlanger as a defendant on the basis that he is entitled to amend, and was excused from providing Erlanger with pre-suit notice, in part, pursuant to Tennessee Code Annotated section 29-26-121(a)(5), section 29-26-121(b), and Tennessee Rules of Civil Procedure 15.01 and 15.03. Tennessee Rule of Civil Procedure 15.01 provides: A party may amend the party’s pleadings once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party’s pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires. For amendments adding defendants pursuant to [Tennessee Code Annotated section] 20-1-119, however, written consent of the adverse party or leave of court is not required. (Emphasis added). “Factors the trial court should consider when deciding whether to allow amendments include ‘[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by pervious amendments, undue prejudice to the opposing party, and futility of amendment.’” Cumulus Broad., Inc., v. Shim, 226 S.W.3d 366 , 374 (Tenn. 2007) (emphasis added) (quoting Merriman v. Smith, 599 S.W.2d 548 , 559 (Tenn. Ct. App. 1979)). - 10 - In his motions for leave to amend in the trial court, the Plaintiff asserted that “none of the factors . . . appl[ied] to the proposed amendment.” As is particularly relevant when considering futility of amendment, the Plaintiff argued, in part, that the physician Defendants’ noncompliance with Tennessee Code Annotated 29-26-121(a)(5) constituted extraordinary cause under section 29-26-121(b), thereby excusing his failure to provide Erlanger with pre-suit notice.8 Additionally, the Plaintiff asserted that his amended complaint should relate back to the original filing of the complaint pursuant to Tennessee Rule of Civil Procedure 15.03.9 Relying, in part, on this Court’s holding in Runions v. Jackson-Madison County General Hospital District, 549 S.W.3d 77 (Tenn. 2018), the trial court concluded, in pertinent part, that the pre-suit notice requirement of the HCLA and [the] Plaintiff’s failure to conform therewith prevents the Plaintiff from curing [Erlanger’s] absence by adding it as a party via amendment. . . . [B]ecause [the] Plaintiff cannot amend the complaint to add [Erlanger] as a named defendant without violating the explicit pre-suit notice requirements of the HCLA, this Court denies the Plaintiff’s motion for leave to amend . . . . Addressing the Plaintiff’s argument related to extraordinary cause, the trial court noted that “the extraordinary circumstances necessary to overcome the notice requirement have been found in only a few, limited situations.” The court further noted that, while the misinformation the Plaintiff had discovered during his pre-suit investigation into the employer of the physician Defendants “created difficulty,” it did not qualify as 8 Although this argument was not clearly raised in his motions to amend, during the hearing on the motions for summary judgment and motions to amend in the trial court on February 23, 2018, the judge asked the Plaintiff’s counsel: “is . . . the extraordinary cause that they didn’t send you notice? What’s the extraordinary cause you’re asking me to look at to excuse compliance [with the pre-suit notice requirement]?” The Plaintiff’s counsel responded: “Number 1, we fully complied with the statute the best that we could based on records to the world; and, secondly, they didn’t send the notice within thirty days.” The Plaintiff has continued to assert this argument before the Court of Appeals and this Court. 9 Tennessee Rule of Civil Procedure 15.03 provides: Whenever the claim or defense asserted in amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. - 11 - extraordinary under existing law “for purposes of excusing noncompliance with the pre-suit notice requirement.” 1. Compliance with § 29-26-121(a)(5) We begin our review of the trial court’s conclusion by turning to the language of Tennessee Code Annotated section 29-26-121(a)(5). Enacted by the General Assembly in 2015, section 29-26-121(a)(5) provides: In the event a person, entity, or health care provider receives notice of a potential claim for health care liability pursuant to this subsection (a), the person, entity, or health care provider shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or health care provider who may be a properly named defendant. When the statutory language is clear and unambiguous, “we accord the language its plain meaning and ordinary usage in the context within which it appears, without a forced interpretation.” Runions, 549 S.W.3d at 86. The physician Defendants argue that the lack of a stated remedy or penalty for noncompliance renders the statute ambiguous. We disagree. A statute requiring action is not ambiguous simply because it lacks a consequence or remedy for any noncompliance. See e.g., Stevens ex rel. Stevens v. Hickman Comm. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013). Here, the language of section 29-26-121(a)(5) is clear. It instructs that a person “shall, within thirty (30) days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of any other person, entity, or healthcare provider who may be a properly named defendant.” Tenn. Code Ann. § 29-26-121 (a)(5) (emphasis added). As explained by the intermediate appellate court, the word “other” is used as an adjective modifying “person, entity, or health care provider.” This term is not technical and is commonly understood and defined as “being the one (as of two or more) remaining or not included; being the one or ones distinct from that or those first mentioned; not the same; additional.” See Merriam-Webster Dictionary, Other, (Oct. 21, 2020) merriam- webster.com/dictionary/other (adjectival definition). We agree with the Court of Appeals that, by modifying the word “other” with “any,” “the enacted language clarifies that the recipients of pre-suit notice are to provide the claimant with what amounts to a complete and total identification of all those ‘who may be a properly named defendant’ based upon ‘the reasonable knowledge and information available’ to the party that received pre-suit notice.” Bidwell ex rel. Bidwell, 2019 WL 4464815 , at *5. - 12 - In the case on appeal, it is undisputed that the physician Defendants failed to provide the Plaintiff with written notice of Erlanger, their employer. Although other circumstances may arise that require us to examine whether defendants had “any reasonable knowledge and information available” that triggered their notice obligation under section 29-26-121(a)(5), that question is not presented by this appeal. Here, it is not disputed that the physician Defendants had “reasonable knowledge and information available” that Erlanger was their employer and, therefore, that Erlanger was another entity or health care provider who may be not just a “properly named defendant,” but a necessary party under the GTLA. Therefore, we conclude that the physician Defendants failed to comply with Tennessee Code Annotated section 29-26-121(a)(5). 2. Extraordinary Cause Although section 29-26-121(a)(5) does not include a remedy for a defendant’s failure to satisfy its notification requirement, the Plaintiff argued in the courts below, and argues before this Court, that the physician Defendants’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(5) constitutes extraordinary cause that excuses the Plaintiff from providing pre-suit notice to Erlanger. See Tenn. Code Ann. § 29-26-121 (b) (“The court has discretion to excuse compliance with this section only for extraordinary cause.”). Therefore, he asserts that his motions to amend were not futile and his amended complaint naming Erlanger as a Defendant should relate back to the date of the original complaint. Tennessee Code Annotated section 29-26-121 does not define “extraordinary cause.” In Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 , 310-11 (Tenn. 2012), we analyzed this language using its plain and ordinary meaning, noting: “Extraordinary” is commonly defined as “going far beyond the ordinary degree, measure, limit, etc.; very unusual; exceptional; remarkable.” Webster's New World Dictionary of the American Language, 516 (1966); see also State v. Vikre, 86 N.C. App. 196 , 356 S.E.2d 802 , 804 (1987) (adopting dictionary definition of extraordinary cause as “going beyond what is usual, regular, common, or customary . . . of, relating to, or having the nature of an occurrence or risk of a kind other than what ordinary experience or prudence would foresee”). One legal scholar, commenting on Tennessee Code Annotated sections 29-26-121 and [-]122, has noted that possible examples of “extraordinary cause” might include “illness of the plaintiff’s lawyer, a death in that lawyer’s immediate family, [or] illness or death of the plaintiff's expert in the days before the filing became necessary.” [John A. Day, Med Mal Makeover 2009 Act Improves on ‘08: The New New Medical Malpractice Notice and Certificate of Good Faith Statutes, 45 Tenn. Bar J. 14, 17 (July 2009).] - 13 - The Plaintiff asserts that the physician Defendants’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(5) alone constitutes extraordinary cause. However, he does not support this statement with any further discussion or argument. Although the trial court did not directly address this argument when ruling on whether extraordinary cause existed, it did note that, while the misinformation the Plaintiff found during his pre-suit investigation may have caused confusion and “created difficulty for the Plaintiff,” the facts did not give rise to extraordinary cause. We agree. Even if we accept the Plaintiff’s assertion that its failure either to provide Erlanger with pre-suit notice or name it as a defendant resulted from the physician Defendants’ failure to comply with their statutory notification requirement, we cannot agree that this is enough, standing alone, to constitute extraordinary cause in this case. While this leads to harsh results for the Plaintiff, had the General Assembly intended for noncompliance with section 29-26-121(a)(5) to excuse a plaintiff from providing pre-suit notice, it could have said so. See Stevens ex rel. Stevens, 418 S.W.3d at 560 (citing State v. Harkins, 811 S.W.2d 79 , 82 (Tenn. 1991) (“[I]t is a rule of statutory construction which is well recognized by our courts, that the mention of one subject in a statute means the exclusion of other subjects that are not mentioned.”)); see e.g., Tenn. Code Ann. § 29-26-121 (c) (noting that the pre-suit notice requirements do not apply to any person or entity that is made a party to an action as a result of a defendant’s alleging comparative fault). Although a trial court may conclude in another case that a defendant’s failure to comply with section 29-26-121(a)(5) constitutes extraordinary cause, we agree with the trial court’s determination that extraordinary cause did not exist in the case on appeal. Therefore, although we conclude that the physician Defendants failed to comply with Tennessee Code Annotated section 29-26-121(a)(5), because the Plaintiff has not established extraordinary cause sufficient to excuse compliance with the pre-suit notice requirements, and in the absence of a remedy or penalty for noncompliance with section 29-26-121(a)(5), the trial court did not abuse its discretion when it denied the Plaintiff’s motions to amend based on futility.10 For these reasons, we must turn to the Plaintiff’s second argument—that he is entitled to amend his complaint, and was excused from providing Erlanger with pre-suit notice, pursuant to Tennessee Code Annotated section 20-1-119 and section 29-26- 121(c). 10 Because we reach this conclusion, we need not address the Plaintiff’s arguments pertaining to Tennessee Rule of Civil Procedure 15.03. - 14 - B. Tennessee Code Annotated § 20-1-119 1. Alleging Comparative Fault Under § 20-1-119 This Court adopted the doctrine of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 , 56 (Tenn. 1992), for a more just apportionment of fault between plaintiffs and defendants. Austin, 222 S.W.3d at 357 . In keeping with this intent, we stated in McIntyre that fairness and efficiency require that defendants called upon to answer allegations [of] negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury or damage for which recovery is sought. In cases where such a defense is raised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible. However, in order for a plaintiff to recover a judgment against such additional person, the plaintiff must have made a timely amendment to his complaint and caused process to be served on such additional person. Thereafter, the additional party will be required to answer the amended complaint. 833 S.W.2d at 58 . In other words, this Court recognized that allowing a defendant to shift some or all of the fault to a nonparty would result in a “predicament for some plaintiffs because a defendant could plead the fault of a nonparty after the statute of limitations had run against that nonparty, thus preventing the plaintiff from adding the nonparty to the suit.” Mann, 380 S.W.3d at 47 (quoting Browder v. Morris, 975 S.W.2d 308 , 310 (Tenn. 1998)). Shortly after our decision in McIntyre, the General Assembly enacted Tennessee Code Annotated section 20-1-119, which addresses the predicament that McIntyre hypothesized. This statute provides in pertinent part: (a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations . . . alleges in an answer . . . to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff’s cause or causes of action against that person would be barred by any applicable statute of limitations but for the operation of this - 15 - section, the plaintiff may, within ninety (90) days of the filing of the first answer . . . alleging that person’s fault, either: (1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ. P. 15 and cause process to be issued for that person; or (2) Institute a separate action against that person by filing a summons and complaint. .... (g) Notwithstanding any law to the contrary, this section applies to suits involving governmental entities.11 Section 20-1-119 provides a ninety-day “grace period” for a plaintiff to amend a complaint to add as a defendant any unnamed person alleged by a defendant to have caused or contributed to the plaintiff’s injury, even if the statute of limitations applicable to the plaintiff’s cause of action has expired. Tenn. Code Ann. § 20-1-119 ; see also Owens v. Truckstops of Am., 915 S.W.2d 420 , 427 (Tenn. 1996); Mills, 360 S.W.3d at 370. In other words, it “provides ‘an injured party with a fair opportunity to bring before the court all persons who caused or contributed to the party’s injur[y].’” Austin, 222 S.W.3d 357 (citing Townes v. Sunbeam Oster Co., 50 S.W.3d 446 , 451 (Tenn. Ct. App. 2001), cited with approval in McNabb v. Highways, Inc., 98 S.W.3d 649 , 654 (Tenn. 2003)); see also Mann, 380 S.W.3d at 47 (explaining that Tennessee Code Annotated section 20-1-119 “preserves a plaintiff’s prerogative to select defendants in the same manner as before”). Given this purpose, Tennessee courts have consistently “rejected arguments that narrowly construe [section 20-1-119] and have applied the statute in a manner consistent with the concepts of fairness and efficiency that underlie the comparative fault system.” Austin, 222 S.W.3d at 357 (citing Browder, 975 S.W.2d 312 ); see also Mann, 380 S.W.3d at 50 (“We have repeatedly held that section 20-1-119 must be construed liberally to effectuate its remedial purpose.” (emphasis added)); Becker v. Ford Motor Co., 431 S.W.3d 588 , 592 (Tenn. 2014) (“This Court has stated repeatedly that [the statute] should not be construed narrowly because it is an integral part of a comparative fault system that is built on the concepts of fairness and efficiency.” (emphasis added)); Moreno, 479 S.W.3d at 806 (citing Becker, 431 S.W.3d at 592); Townes, 50 S.W.3d at 451, 453-54 (“In light of the statute’s purpose . . . we have determined that it is remedial and should be construed liberally . . . [and] to enable plaintiffs to have their claims 11 It is undisputed that this provision applies to Erlanger. See Chattanooga-Hamilton Hosp. Auth. v. Bradley Cnty., 249 S.W.3d 361 , 363 n.1 (Tenn. 2008) (“Erlanger is a governmental hospital authority created by Private Act in 1976.”). - 16 - adjudicated on the merits.” (emphasis added)); Romine v. Fernandez, 124 S.W.3d 599 , 604 (Tenn. Ct. App. 2003) (“[T]his statute is not to be construed narrowly, but should be construed liberally.” (emphasis added)), perm. app. denied, (Tenn. Dec. 22, 2003); Swearengen v. DMC-Memphis, Inc., 488 S.W.3d 774 , 780 (Tenn. Ct. App. 2015) (“[T]he statute is to be construed to afford an injured party a ‘fair opportunity to bring before the court all persons who caused or contributed to the party’s injuries.’” (quoting Townes, 50 S.W.3d at 451 )), perm. app. denied, (Tenn. Aug. 13, 2015). This liberal construction of the statute applies when a court is determining whether a defendant has sufficiently “allege[d] in an answer . . . to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery.” Tenn. Code Ann. § 20-1-119 (a). Liberally construing this portion of the statute is also consistent with the liberal pleading standards of the Tennessee Rules of Civil Procedure. Austin, 222 S.W.3d at 358 . Under Rule of Civil Procedure 8.03, a defendant may successfully raise comparative fault by “set[ting] forth affirmatively facts in short and plain terms relied upon to constitute . . . comparative fault (including the identity or description of any other alleged tortfeasors).” “A defendant is not required to allege the fault of the nonparty explicitly or use the words ‘comparative fault.’” Id. Tennessee courts have applied this liberal standard in several prior decisions. For example, in Romine v. Fernandez, 124 S.W.3d 599 , 600 (Tenn. Ct. App. 2003), cited with approval in Austin, 222 S.W.3d at 357 , Mr. Romine and his wife filed a medical malpractice suit against Dr. Morris, who was Mr. Romine’s physician, The Office of Bone & Joint Surgery, P.C., and Methodist South relating to contraindicated prescription medication administered to Mr. Romine after knee surgery. In their answer, Dr. Morris and the Office of Bone & Joint Surgery acknowledged that Mr. Romine was administered the medication, “but not at Dr. Morris’ order.” Id. at 601. Dr. Morris denied that he was guilty of any negligent conduct that resulted in Mr. Romine’s injury. Id. He further asserted: Dr. Morris has no knowledge of any act of medical negligence committed by any other defendant or third party in the care and treatment of the plaintiff. However, in the event that the plaintiff’s allegations of negligence on the part of co-defendants are true, and if the plaintiffs are successful in presenting a factual basis for those allegations, then in that instance Dr. Morris invokes the doctrine of comparative fault and says that under no circumstance would he be liable for more than a proportionate share of the total fault. Id. However, Dr. Morris did not name or identify any party to which the doctrine of comparative fault would apply. - 17 - Nevertheless, pointing to the statements contained in Dr. Morris’ answer, the plaintiffs filed a motion to amend their complaint to add an anesthesiologist and a certified registered nurse anesthetist as defendants pursuant to Tennessee Code Annotated section 20-1-119. Id. Dr. Morris responded, arguing that he “did not invoke ‘the doctrine of comparative fault against unnamed third parties.’” Id. The Romines filed a supplemental answer to support their motion to amend and alleged “that they ‘could not have been aware of who ordered the [medication] until Dr. Morris indicated in his answer that it was not he who did so.’” Id. The Court of Appeals held that “the statements contained in Dr. Morris’ answer were sufficient to put the Romines on notice that someone other than Dr. Morris administered the [medication].” Id. at 604. The intermediate appellate court further reasoned that [a]lthough Dr. Morris did not specifically state the names of [the previously unnamed defendants], Dr. Morris’ answer provided “reasonable notice of a third party claim and, coupled with the available . . . discovery tools, the plaintiff had more than adequate opportunity and time to discover the third party’s identity” and to amend their complaint to add [the unnamed defendants] within the ninety (90) days following the filing of Dr. Morris’ answer. Id. at 604-05 (quoting Soper v. Wal-Mart Stores, Inc., 923 F. Supp 1032, 1038 (M.D. Tenn. 1996)). Lastly, the court emphasized that whether the plaintiffs “knew or should have known” of the unnamed defendants “and their status as potential defendants [was] irrelevant to the application of [section 20-1-119].” Id. at 605 (citing Townes, 50 S.W.3d at 452-53 ). In Austin v. State, 222 S.W.3d 354 , 355 (Tenn. 2007), this Court directly addressed the issue of whether Tennessee Code Annotated section 20-1-119 provides a plaintiff with ninety days to amend his complaint “when a [named] defendant does not explicitly allege the fault of a nonparty” in his answer. In Austin, the plaintiffs were injured in a car accident after they drove through a stop sign without stopping. Id. at 355-56 . The plaintiffs filed a complaint against the county alleging that their injuries were the result of its negligence. Id. at 356 . In its answer, the county alleged that the traffic sign in question was not placed there by the [county]; that it is in the right of way of the State of Tennessee; that it is under the control of the State of Tennessee; that [the county] has no control over said stop sign, its placement, maintenance, etc. and that it cannot be held liable for the stop sign regardless of its condition. - 18 - Id. As a result of these allegations, the plaintiffs filed a complaint with the Tennessee Claims Commission, asserting the same negligence claims against the State as they made against the county. Id. The State filed a motion for summary judgment, arguing that the plaintiffs’ complaint against it was filed after the one-year statute of limitations and, therefore, the plaintiffs’ claims against it were barred. Id. The plaintiffs responded, asserting that the county had alleged the State’s comparative fault in its answer, and, therefore, Tennessee Code Annotated section 20-1-119 provided the plaintiffs with ninety days to file suit against the State. Id. After reviewing the history and purpose of the statute, we held that a plaintiff will not be denied the benefit of section 20-1-119 simply because the defendant failed to assert comparative fault in a formulaic manner. Austin, 222 S.W.3d at 357-58 (“[A] plaintiff should not be denied an opportunity to recover against [a] potential tortfeasor simply because a defendant’s answer did not follow a precise legal formula.” (citing Romine, 124 S.W.3d at 604-05 ) (“holding that a defendant who gave plaintiff sufficient notice of a nonparty tortfeasor had raised the defense of comparative fault even though he did not explicitly allege the fault of the nonparties”)). We specified that a defendant is “not required to allege the fault of the nonparty explicitly or use the words ‘comparative fault.’” Id. at 358. Instead, a defendant’s answer need only give a plaintiff “notice of the identity of a potential nonparty tortfeasor and allege[] facts that reasonably support a conclusion that the nonparty caused or contributed to the plaintiff’s injury.” Id. This Court also determined it is “irrelevant whether a defendant alleges that the nonparty is totally or partially responsible for the plaintiff’s injury.” Id. at 359. For these reasons, this Court concluded that the county’s answer identified the State and alleged facts that reasonably supported a conclusion that it was at fault for the plaintiffs’ injuries. Id. Therefore, the plaintiffs’ complaint against the State was proper. Id. Additionally, and relevant to this case, in Browder v. Morris, 975 S.W.2d 308 , 309 (Tenn. 1998), this Court granted review to determine whether Tennessee Code Annotated section 20-1-119 applies when a defendant raises the comparative fault of vicariously liable nonparties. Noting that section 20-1-119 “was enacted in response to this Court’s adoption of comparative fault, and that the concepts of fairness and efficiency form the basis of such a system,” and that “[i]t is neither fair nor efficient in a comparative fault scheme to permit a defendant to identify a financially or legally responsible nonparty after the statute of limitations has run against that nonparty, yet deny the plaintiff an opportunity to join them as a defendant,” we answered that question affirmatively. Id. at 312 . Therefore, when, in an answer or amended answer, a named defendant raises the issue of the comparative fault of a nonparty who may be either directly or vicariously - 19 - liable, a plaintiff is entitled to amend the complaint according to the ninety-day grace period of section 20-1-119. Based on the foregoing authorities, the physician Defendants’ arguments that their answers did not trigger Tennessee Code Annotated section 20-1-119 are without merit. In his complaint, the Plaintiff asserted claims of both direct and vicarious liability against The Neurosurgical Group, EmCare, and Envision—the entities which he believed employed the physician Defendants. In his answer filed on August 28, 2017, Dr. Strait clearly stated that “at all material times, [he] was employed by [Erlanger] and provided healthcare services to [the Decedent] in the course and scope of his employment with [Erlanger].” Furthermore, he stated that The Neurosurgical Group “sold its assets to [Erlanger] and ceased conducting business” in April 2015. Dr. Strait also denied he “was negligent in the care and treatment he provided to [the Decedent] or that he was a direct or proximate cause of any alleged injuries and death suffered by [the Decedent].” Lastly, Dr. Strait provided: This defendant reserves the right, should discovery or evidence, including that presented at trial, indicate it appropriate, to plead the comparative negligence of the decedent or any other person or entity, as a proximate or contributing cause of all or a portion of the alleged injuries and damages, and to take into account such evidence in apportioning or comparing negligence or fault, causation or damages, whether in apportionment or mitigation. At this time, this defendant has no knowledge of any persons except parties identified and as set forth in the plaintiff’s Complaint to which this doctrine would apply. (Emphasis added). All of these statements make it clear that Dr. Strait sufficiently asserted comparative fault, triggering Tennessee Code Annotated section 20-1-119’s savings provision. As noted, the Plaintiff alleged claims of direct and vicarious liability against the entities believed to be the physician defendants’ employers. By stating that The Neurosurgical Group was not his employer, that The Neurosurgical Group ceased doing business in 2015, that he was not negligent in his care of the Decedent, and that he was employed by Erlanger at all material times and provided care to the Decedent in the course and scope of his employment with Erlanger, Dr. Strait, much like the county in Austin, clearly identified Erlanger as a potential nonparty tortfeasor and “allege[d] facts that reasonably support a conclusion that [Erlanger] caused or contributed to the plaintiff’s injury.” See Austin, 222 S.W.3d at 358 ; Browder, 975 S.W.2d at 311-12 . Similarly, Dr. Colburn admitted in his answer, filed on September 11, 2017, to providing care to the Decedent at Erlanger “on the dates reflected in the medical records.” He denied that he was an employee or agent of EmCare or Envision, but, - 20 - unlike Dr. Strait, did not expressly name his employer. Yet, Dr. Colburn also asserted in his answer: To avoid waiver and pending further investigation and discovery, Dr. Colburn raises the affirmative defense of comparative fault. Should the evidence, as developed through the course of investigation and discovery, or at trial, indicate that others, including but not limited to the other parties in this matter, were guilty of negligence that caused or contributed to the injuries and damages alleged in the Complaint, if any, then Dr. Colburn reserves the right to amend his Answer and to show the same at trial. (Emphasis added). Although Dr. Colburn did not explicitly identify Erlanger, these statements were sufficient to put the Plaintiff on notice that an entity other than EmCare and/or Envision was Dr. Colburn’s employer. Like the defendant’s answer in Romine, Dr. Colburn’s answer provided “reasonable notice of a third party claim and, coupled with the available . . . discovery tools, the plaintiff had more than adequate opportunity and time to discover the third party’s identity” and to amend his complaint to add Erlanger as a defendant within the ninety-day period Tennessee Code Annotated section 20-1-119 provides.12 Romine, 124 S.W.3d at 605 . For all of these reasons, we hold that Dr. Strait’s and Dr. Colburn’s answers triggered the application of Tennessee Code Annotated section 20-1-119. To hold otherwise would undermine the remedial purpose that section 20-1-119 was enacted to serve and frustrate the concepts of fairness and efficiency that form the basis of our comparative fault jurisprudence and section 20-1-119. See Browder, 975 S.W.2d at 311 . 2. Statutory and Procedural Requirements As such, the Plaintiff had ninety days from the filing of “the first answer . . . alleging [Erlanger’s] fault” to either “amend [his] complaint to add [Erlanger] as a defendant pursuant to [Tennessee Rule of Civil Procedure] 15 and cause process to be issued for [Erlanger]” or institute a separate legal action against Erlanger by filing a summons and complaint. See Tenn. Code Ann. § 20-1-119 (a)(1)-(2). Here, the Plaintiff filed motions to amend his complaint with the trial court rather than simply filing an amended complaint or initiating a separate legal action against Erlanger. This raises the 12 We base this conclusion solely upon the statements contained in Dr. Colburn’s answer. We do not consider statements contained in Dr. Colburn’s affidavit in support of his motion for summary judgment that “[b]etween August 28, 2015 and February 16, 2017, [he] was employed by [Erlanger] and received [his] paycheck and benefits from Erlanger.” See Moreno, 479 S.W.3d at 808 (acknowledging that letters and discovery responses are not “answers” and, therefore, statements contained therein raising comparative fault are not sufficient to trigger Tennessee Code Annotated section 20-1-119). - 21 - question of whether the Plaintiff timely and properly complied with the statutory requirements set forth in section 20-1-119, as well as Tennessee Rule of Civil Procedure 15.01. Prior to 2007, Rule 15.01 stated, in pertinent part, that “[a] party may amend the party’s pleadings as a matter of course at any time before a responsive pleading is served . . . . Otherwise, a party may amend the party’s pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires.” Tenn. R. Civ. P. 15.01 (2006) (emphasis added). Reflecting both the language of section 20-1-119 and of Rule 15.01, this Court stated in Jones v. Professional Motorcycle Escort Service, LLC., 193 S.W.3d 564 , 570 (Tenn. 2006), that “[s]uccessful amendments under section 20-1-119 require four discrete actions within ninety (90) days: (1) the filing and (2) granting of a motion to amend, (3) the filing of an amended complaint, and (4) the issuance of process.” In Jones, the plaintiff completed these four steps within the statutory ninety-day period but did so out of order—filing her amended complaint before filing her motion to amend and obtaining a court order granting her motion to amend. Id. at 566 . Recognizing that the plaintiff had completed all of the required steps and that “[t]he Tennessee Rules of Civil Procedure are intended ‘to [e]nsure that cases and controversies be determined upon their merits and not upon legal technicalities or procedural niceties,’” id. at 573 (quoting Karash v. Pigott, 530 S.W.2d 775 , 777 (Tenn. 1975)), this Court held that the plaintiff substantially complied with the requirements in Tennessee Code Annotated section 20-1-119 and Rule 15.01 of the Tennessee Rules of Civil Procedure and that her delay in filing her motion to amend was not fatal, id. After this Court’s holding in Jones, Tennessee Rule of Civil Procedure 15.01 was amended. As stated previously, the Rule now provides: A party may amend the party’s pleadings once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party’s pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires. For amendments adding defendants pursuant to [Tennessee Code Annotated section] 20-1-119, however, written consent of the adverse party or leave of court is not required. Tenn. R. Civ. P. 15.01 (2008) (emphasis added). The Advisory Commission Comment to the 2007 Amendment explains that “[t]he need for the new third sentence . . . was highlighted by Jones . . . . Because [section] 20-1-119 allows potential comparative tortfeasors pleaded in the answer to be added to the complaint, there is no reason to trouble the trial court with permission to amend.” Thus, the current version of Rule 15.01 - 22 - dispenses with two of the requirements outlined in Jones: (1) the filing of a motion to amend and (2) an order granting the motion to amend. Under the current version of Rule 15.01 and the holding in Jones, a plaintiff relying on section 20-1-119 must satisfy two requirements within ninety days: (1) file an amended complaint and (2) cause process to be issued to the party named in the amended complaint. In the case on appeal, Dr. Strait filed his answer prior to Dr. Colburn on August 28, 2017. The Plaintiff filed two motions for leave to amend—the first on November 3, 2017 and the second on November 20, 2017. Both motions were filed within the ninety-day period provided by section 20-1-119. However, while the record on appeal reflects that the Plaintiff attached his second amended complaint to his second motion for leave to amend,13 he failed to actually amend his complaint within ninety days of Dr. Strait’s answer. Had the Plaintiff simply filed an amended complaint naming Erlanger as a defendant pursuant to section 20-1-119, as Rule of Civil Procedure 15.01 permits, and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer, he would have properly and timely satisfied the statutory requirements of section 20-1-119.14 However, he did not do so, and his motions to amend “simply fail[] to fulfill the unambiguous requirements of the statute.” Ward v. AMI SUB (SFH), Inc., 149 S.W.3d 35 , 39 (Tenn. Ct. App. 2004).15 13 Although his first motion to amend recited that his amended complaint was attached, it is not included in the record on appeal. 14 As discussed by the intermediate appellate court, had the Plaintiff timely and properly complied with the statutory requirements of Tennessee Code Annotated section 20-1-119, his failure to provide Erlanger with pre-suit notice would not have precluded him from pursuing his cause of action against Erlanger. See Tenn. Code Ann. § 29-26-121 (c) (“Once a complaint is filed alleging a claim for health care liability, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant’s alleging comparative fault.”). 15 We recognize that this is a harsh result, and we take this opportunity to urge litigants adding a party pursuant to section 20-1-119 to timely file an amended complaint and cause process to issue as opposed to filing a motion to amend alone. To the extent a litigant is also seeking to amend a complaint on grounds separate from Tennessee Code Annotated section 20-1-119, our holding does not alter the procedure under Rule 15.01 requiring the litigant to receive leave of court or written consent from the adverse party. Thus, in cases like this one, the litigant may need to pursue alternative paths of separately filing an amended complaint naming the comparative tortfeasor and causing process to issue pursuant to section 20-1-119 and Rule 15.01 and also filing a motion to amend requesting leave of court on any additional grounds. - 23 - IV. Conclusion For these reasons, we affirm in part, and reverse in part, the Court of Appeals on the separate grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend. Costs of this appeal are taxed to Mr. Bidwell, for which execution may issue if necessary. _________________________________ CORNELIA A. CLARK, JUSTICE - 24 -
4,491,840
2020-01-17 22:03:05.391629+00
Trammell
null
*1111OPINION. Trammell: The facts were stipulated by the parties substantially as set out in our findings of fact, above. In addition, the parties also stipulated: That the sum of $500,000 is the total deficiency in Federal Estate Tax due by the petitioners by reason of the questions presented in this case, except only the single question * * * whether or not, and if so, to what extent, there may be a deficiency in Federal Estate Tax due by the petitioners, in addition to said sum of $500,000 by reason of the claim of the respondent that the value of the trusts created by said James B. Duke as grantor, by trust instruments dated respectively May 2, 1917, and September 4, 1917, were by him “ intended to take effect in possession or enjoyment at or after his death ” in the sense of those words as used in Sec. 302 (c) of the Revenue Act of 1924; * * * That if the question submitted * * * be finally decided to any extent against the petitioners, then, and in that event only, the deficiency in Federal Estate Tax shall be increased over and above the said sum of $500,000 to the extent of the additional Federal Estate Tax resulting from said decision, such additional tax to be computed as required by the statutes * * * and with due credit for State Inheritance Taxes paid by the petitioners to the extent not theretofore credited. The Revenue Act of 1924, which is the statute applicable in this case, provides in pertinent part as follows: Sec. 302. 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 — ■ * * * * ⅜ * # (c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death, except in case of a bona fide sale for a fair consideration in money or money’s worth. * * * The decedent in this case executed two trust instruments on May 2, 1917 and September 4, 1917, respectively, by which he conveyed to himself as trustee, for the benefit of his daughter Doris Duke and *1112her descendants, the personal property described therein. The decedent also appointed in the respective instruments successor trustees. Each trust instrument, together with the properties embraced therein, was delivered on the day of its date upon the terms and for the purposes stated, and each trust was formally accepted both by the trustee and the successor trustees. The grantor did not reserve the power to alter or revoke either instrument, with or without the consent of the beneficiary. The trust properties were to revert to the grantor only in the event the beneficiary died during his lifetime. Otherwise, the transfers were absolute and complete. The beneficiary survived the grantor, and upon his death the designated successor trustees took possession of the trust properties and have since administered the trusts in accordance with their terms, without any other change by reason of the death of the grantor. As stipulated by the parties, we have found that neither of the trust instruments constituted a transfer or created a trust in contemplation of the grantor’s death. The respondent included the value of the trust properties in the decedent’s gross estate on the sole ground that the trusts were “ intended to take effect in possession or enjoyment at or after his death.” Whether the respondent’s action on this point is correct constitutes the question presented for decision here, and its solution must depend upon the nature and extent of the transfers effected by the trust instruments. The tax in controversy is an excise tax laid upon the transfer of property by death, and is measured by the value of the property so transferred. Therefore, if the decedent in this case by the said trust instruments divested himself fully, completely and irrevocably of all interest in the trust property which might inure to his benefit, no interest therein remained to be transferred as an incident of his death, and there is no basis for the tax. Cf. Saltonstall v. Saltonstall, 276 U. S. 260. In Reinecke v. Northern Trust Co., 278 U. S. 339, where the applicable statute was section 402 (c) of the Revenue Act of 1921, which, so far as material here, is substantially the same as section 302 (c) of the 1924 Act, supra, the court said: In its plan and scope the tax is one imposed on transfers at death or made in contemplation of death and is measured by the value at death of the interest which is transferred. * * * One may freely give his property to another by absolute gift without subjecting himself or his estate to a tax, * * * It is of significance, although not conclusive, that the only section imposing the tax, section 401, does so on the net estate of decedents and that the miscellaneous items of property required by section 402 to be brought into the gross estate for the purpose of computing the tax, * * * are either property transferred in contemplation of death or property passing out of the *1113control, possession or enjoyment of the decedent at his death. The two sections read together indicate no purpose to tax completed gifts made by the donor in his lifetime not in contemplation of death, where he has retained no such control, possession or enjoyment. In the light of the general purpose of the statute * * * we think it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in section 402 (c) “ to take effect in possession or enjoyment at or after his death,” include any others than those passing from the possession, enjoyment or control of the donor at his death and so taxable as transfers at death under section 401. That doubt must be resolved in favor of the taxpayer. The facts of this case bring it squarely within the principles above stated by the Supreme Court. The decedent made an absolute and unconditional gift of the property embraced in the two trusts. It is true the instruments provided that the property should revert to the decedent if the beneficiary predeceased him, but this was.a mere possibility which did not in fact occur. Such possibility of reversion did not prevent the gift from being complete. In the case of Commissioner v. McCormick, 43 Fed. (2d) 277, the Circuit Court of Appeals for the Seventh Circuit held that the fact that the settlor could revoke the trust if the beneficiary predeceased her was a factor to be considered in determining whether the trust was revocable or whether the gift was to take effect in enjoyment or possession at or after death, but the Supreme Court reversed that decision (McCormick v. Commissioner, 283 U. S. 784) on authority of May v. Heiner. In the case at bar the trust was not revocable. We passed on a similar question in the case of Lillian M. Wheeler, Executrix, et al., 20 B. T. A. 695, and the Supreme Court in the case of May v. Heiner, 281 U. S. 238, decided the question adversely to the Commissioner. In this case the trust was actually created and took effect and the property passed to it before decedent’s death. Nothing passed at or after his death. The fact that there was a bare possibility that the property which had already passed to the trust for the beneficiary might revert to the grantor during his lifetime, not by any act on his part, does not have the effect of reserving to the grantor any rights or benefits which passed at or after his death. He might have, by a bare possibility, reacquired the property during his life, but he did not. In the case of any gift by a man to his child or wife there is always a possibility that the donée may die, leaving the grantor sole heir and thus a possibility of the donor reacquiring the property, but clearly this mere possibility is not sufficient to create or reserve in the donor property rights which pass to the donee only at or after the donor’s death where the donee has had both the possession and enjoyment thereof during the donor’s lifetime. This might equally be true whether the trust instrument contained any such provision or not. This contingency or possibility did not give the donor any *1114rights of control over the property. He could not have recalled the property to himself. When he died he was not seized or possessed of the property. Decedent did not retain control over the economic benefits or enjoyment of the property. He retained no control which might inure to his own benefit. He did not reserve the power to change, modify or revoke the trusts. He could not designate a new and different beneficiary. The fact that he appointed himself trustee with power to administer the trust properties for the benefit of his daughter does not change the result. See Lillian M. Wheeler, Executrix , et al., supra. In Reinecke v. Northern Trust Co., supra, the court made this point clear in the following language: Nor did tlie reserved powers of management of the trust save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, hut the transfer would not for that reason have teen incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax. [Italics supplied.] We see no basis for the contention of the respondent that the transfer of the property was contingent. The property was clearly transferred from the decedent, by the trust instruments. As above set out, the fact that he was trustee is of no importance. Any uncertainty or contingency as to who might eventually receive the trust corpus as the result of the named beneficiary dying or the fact that under a certain contingency the legal heirs of decedent might receive the property does not indicate that the decedent had not parted with the property and all economic benefits thereof in his lifetime. We can not overlook the plain fact that the decedent did not own the property or any economic benefits therein when he died or the fact that no economic interests or benefits therein passed at his death. The entire disposition of the property in so far as the decedent was concerned was completed during his lifetime. The death of the decedent was not the generating source of any right in any beneficiary. Nothing moved from him on his death in so far as the property here involved is concerned. It is unimportant that under certain circumstances other or different beneficiaries might eventually, pursuant to the trust instrument, receive the corpus. The decedent, however, did not reserve any right to change beneficiaries or to direct any disposition of the property until his death. We think, the respondent erred in including in the decedent’s gross estate the value of the properties embraced in the two trust *1115instruments in question. His action on this point is, therefore, reversed. See Shukert v. Allen, 273 U. S. 545; May v. Heiner, 281 U. S. 238; Coolidge v. Long, 282 U. S. 582; McCormick v. Commissioner, supra; Lillian M. Wheeler, Executrix, 20 B. T. A. 695. In accordance with the stipulation of the parties, Judgment will be entered that there is a deficiency in the amount of $500,000.
4,654,679
2021-01-26 20:00:15.396965+00
null
http://www.ca4.uscourts.gov/Opinions/204156.U.pdf
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-4156 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VETO OMAR MARTIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:19-cr-00048-MOC-WCM-1) Submitted: December 29, 2020 Decided: January 26, 2021 Before NIEMEYER and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Andrew B. Banzhoff, DEVEREUX & BANZHOFF, Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Veto Omar Martin entered a conditional guilty plea to possession with intent to distribute heroin and cocaine base, in violation of 21 U.S.C. § 841 (a)(1), and was sentenced to 168 months’ imprisonment. On appeal, Martin challenges the district court’s denial of his motion to suppress evidence seized from his vehicle during the execution of a search warrant. Finding no reversible error, we affirm. When considering a district court’s denial of a motion to suppress, “we review factual findings for clear error and legal determinations de novo.” United States v. Wharton, 840 F.3d 163 , 168 (4th Cir. 2016) (internal quotation marks omitted). We consider the evidence in the light most favorable to the Government, as the prevailing party. United States v. Williams, 808 F.3d 238 , 245 (4th Cir. 2015). The Fourth Amendment protects individuals from “unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. An affidavit supporting a warrant that authorizes a search “must provide the magistrate with a substantial basis for determining the existence of probable cause” in light of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 , 239 (1983). This court affords “great deference” to factual determinations made by a magistrate judge regarding probable cause. United States v. McNeal, 818 F.3d 141 , 150 (4th Cir. 2016). In deciding whether probable cause exists, “a judicial officer must simply make ‘a practical, commonsense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be 2 found in a particular place.’” United States v. Allen, 631 F.3d 164 , 172 (4th Cir. 2011) (citing Gates, 462 U.S. at 238 ). In an effort to deter police misconduct, “evidence seized in violation of the Fourth Amendment is subject to suppression under the exclusionary rule.” United States v. Andrews, 577 F.3d 231 , 235 (4th Cir. 2009). However, under the good faith exception, “evidence will not be suppressed if it is obtained by police officers in objectively reasonable reliance on a search warrant, even if that warrant later is determined to be invalid.” United States v. Blakeney, 949 F.3d 851 , 861 (4th Cir. 2020) (citing United States v. Leon, 468 U.S. 897 , 922-23 (1984)). Thus, “evidence obtained from an invalidated search warrant will be suppressed only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Lalor, 996 F.2d 1578 , 1583 (4th Cir. 1993) (internal quotation marks omitted); see also United States v. Wilhelm, 80 F.3d 116 , 122 (4th Cir. 1996) (holding that “the Leon good-faith exception does not apply in the case of a bare bones affidavit”). When a defendant challenges both a probable cause finding and the applicability of the good faith exception, this court may proceed directly to the good faith analysis without first deciding whether the warrant was supported by probable cause. United States v. Legg, 18 F.3d 240 , 243 (4th Cir. 1994). Ordinarily, “searches conducted pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” United States v. Perez, 393 F.3d 457 , 461 (4th Cir. 2004) 3 (internal quotation marks omitted). There are, however, four circumstances in which the good faith exception will not apply: (1) when the affiant based his application on knowing or reckless falsity; (2) when the judicial officer wholly abandoned his role as a neutral and detached decision maker and served merely as a “rubber stamp” for the police; (3) when the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant was so facially deficient that the executing officers could not reasonably have presumed that the warrant was valid. United States v. Wellman, 663 F.3d 224 , 228-29 (4th Cir. 2011). If any of these circumstances are present, evidence gathered pursuant to that warrant must be excluded. See Andrews, 577 F.3d at 236 . In assessing whether the exception applies, “our . . . inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization” in light of “all of the circumstances.” Leon, 468 U.S. at 922 n.23. Martin argues that the good faith exception does not apply because the affidavit lacked any indicia of probable cause and, therefore, the evidence obtained during the search must be excluded under the exclusionary rule. Because our review of the record demonstrates that the affidavit in this case bears sufficient indicia of probable cause to support the search, we find no reversible error in the district court’s denial of Martin’s motion to suppress. The affidavit detailed the training on which the officer relied, including his experience and knowledge relating to the drug trade and the locations where individuals selling drugs often conceal their caches. The affiant attested to his significant training and experience in narcotics investigations, executions of search warrants, 4 surveillance, undercover operations, arrests, and property seizure. The affiant provided firsthand knowledge that a confidential informant was able to purchase drugs from the target residence and then detailed corroborating information of two controlled buys that took place at the residence, including one within 48 hours of requesting the warrant, and the validity of those controlled buys. Considering the totality of this information, the affidavit was not so lacking in indicia of probable cause as to render reliance on the warrant entirely unreasonable. See Wellman, 663 F.3d at 229 ; United States v. Doyle, 650 F.3d 460 , 471 (4th Cir. 2011). Martin also argues the affidavit failed to establish a sufficient nexus between the residence and criminal activity, and between his vehicle, which was parked in the residence’s driveway, and criminal activity. A sufficient nexus between a defendant’s criminal conduct and his residence can exist “even when the affidavit supporting the warrant contains no factual assertions directly linking the items sought to the defendant’s residence.” United States v. Grossman, 400 F.3d 212 , 217 (4th Cir. 2005) (internal quotation marks omitted). Courts may rely on officers’ “assertion[s] of training-and- experience-based knowledge” to support the nexus between criminal activity and a defendant’s residence. Williams, 548 F.3d at 319-20. Here, a direct link existed for the sale of drugs at the residence where the confidential source of information (CSI) conducted two controlled buys at the premises, the officer had knowledge that illegal drugs are often concealed around the residence by those involved in the sale of illegal drugs, and an inference can be reasonably made that a car parked in the driveway of the target residence may be a place where drugs are located. We discern no basis to conclude that “a reasonably 5 well trained officer would have known that the search [of the vehicle] was illegal despite the magistrate’s authorization.” United States v. Williams, 548 F.3d 311 , 317 (4th Cir. 2008) (internal quotation marks omitted). Martin further argues that the search exceeded the scope of the warrant and that the warrant was stale. However, the search warrant explicitly included a search of the residence, its curtilage, and any vehicles within the curtilage. Further, the warrant was executed within a reasonable amount of time considering all the facts and circumstances of the case. See United States v. Richardson, 607 F.3d 357 , 370 (4th Cir. 2010). Over the span of two months, the Asheville Police Department became aware of suspected drug activity at the premises through a CSI, and this information was corroborated through controlled buys a month before the warrant was issued and, again, within 72 hours of the warrant’s issuance, which speaks to an ongoing presence of drug-dealing at the residence. The officers executed the warrant within 48 hours of its issuance. Thus, we find the warrant was timely executed and the search of Martin’s car within the scope of the warrant. Accordingly, we affirm the criminal judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4940 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHELDON MYERS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:18-cr-00095-RGD-DEM-1) Submitted: December 11, 2020 Decided: January 26, 2021 Before NIEMEYER and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge. Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Senior Judge Traxler joined. Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney, Alexandria, Virginia, Suzanne V. Katchmar, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. NIEMEYER, Circuit Judge: When a law enforcement officer finds illegal drugs in an automobile that the officer has legally stopped and searched and none of the occupants claim ownership of the drugs, it is “entirely reasonable” for the officer to infer that all the automobile’s occupants are in a common enterprise and therefore to arrest them on probable cause that they are committing a crime. Maryland v. Pringle, 540 U.S. 366 , 373 (2003). In this case, Sheldon Myers, a passenger in an automobile that was legally stopped and searched, argues that officers, who found over 300 grams of fentanyl in the vehicle, did not have “particularized” probable cause to arrest him because the officers had no information that he, as distinct from the driver, owned the fentanyl. He seeks to distinguish Pringle on the basis that the driver here admitted to owning a loaded gun and three cell phones that were also found in the vehicle. Myers argues that because guns and drugs go together, the driver was the more likely suspect. As he reasons, “the police knew the gun belonged to the driver . . . but still decided that they had probable cause that the fentanyl belonged to [him, Myers].” Thus, he concludes, the officers did not have probable cause particularized to him, but only a “hunch,” which does not support a legal arrest. We conclude, however, that Myers focuses too narrowly on the ownership of the fentanyl. While it is true that the officers did not have any information as to who owned the fentanyl, they did see a distributable amount of it lying on the floorboard of the automobile behind the passenger seat and reasonably believed that, in the absence of any claim to owning it, Myers and the driver were in a common enterprise that involved possession of the fentanyl. Such circumstances, Pringle holds, are sufficient to support 2 particularized probable cause that the two were committing a crime. We thus confirm the legality of Myers’s arrest. I In its efforts to stem the flow of drugs into Norfolk, Virginia, the drug interdiction unit of the Norfolk Police Department, headed by Sgt. William Winingear, regularly surveilled bus stations, the train station, the airport, hotels, motels, parcel facilities, and the highway. On February 1, 2018, Sgt. Winingear was surveilling a parking lot bus station located next to a strip mall from where the New Everyday Bus Company operated an inexpensive bus service between Norfolk and Chinatown, New York City, known locally as “the China bus.” In the past, the China bus had been used to further drug distribution from New York City, and the interdiction unit had previously made drug seizures at that location. At 11:30 p.m. on February 1, a China bus arrived at the bus stop, and Sgt. Winingear saw 20 to 30 passengers exit, including Myers. Myers stuck out as he had no bag, backpack, or luggage — as might be expected for the distance from New York — but was carrying only a “dark” unidentifiable “object” in his hand. Sgt. Winingear observed Myers walk around the front of the bus, look around, and then make a call on a cell phone. Minutes later, a silver Infiniti two-door sedan arrived, and Myers got into the passenger seat. Sgt. Winingear’s suspicion of Myers prompted him to “notif[y] the guys [in his unit] to start observing.” He also told Officer William Gibson of his concern, telling him that 3 the silver Infiniti contained “a possible person of interest” and instructed him to follow the vehicle “[t]o see if they could obtain probable cause so that [they] could stop the vehicle” and ask some questions. As Officer Gibson — along with Officer Donald Todd — began to follow the silver Infiniti, Gibson noted that the vehicle’s windows may have been excessively tinted, in violation of Virginia law. He followed the Infiniti as it passed two 7-Eleven convenience stores and then turned into a third 7-Eleven. After stopping at that 7-Eleven for a “short time,” the Infiniti retraced its route back to where the bus had stopped and then, by a circuitous, if not illogical, route entered Interstate 264, passing up one access to the westbound lanes and then taking another. Officer Gibson found the vehicle’s overall course to be “suspicious,” suggesting that its occupants might have known that they were being followed. After the vehicle entered the interstate, Gibson clocked its speed, and, both because it was speeding and because he believed that the windows were unlawfully tinted, he stopped the vehicle. As Gibson approached the driver’s side, he smelled marijuana, as did Officer Todd when approaching the passenger side. Based on that smell, the officers searched the vehicle and its occupants — the driver and Myers. The search uncovered a “blue Honey Maid graham cracker box on the floorboard behind the front passenger seat.” The box was partially obscured by the seat, and because the automobile was a two-door sedan, the officers had to move the seat forward to see the entire box. The box contained a brick-like substance in a vacuum-sealed plastic bag, which field tested positive for fentanyl. Laboratory testing confirmed that preliminary test and found that the package contained over 300 grams. The search also uncovered three cell 4 phones, one in the driver’s seat and two in the glove box, and a loaded 9mm pistol in the trunk. The driver claimed ownership of those four items. A search of Myers recovered another cell phone and approximately $1,800 in cash. Neither of the automobile’s occupants, however, claimed ownership of the drugs. A test of the Infiniti’s windows confirmed that they were excessively tinted — Virginia law prohibits tinting that screens over 50% of the light, and the Infiniti’s windows blocked 83%. Both Myers and the driver were arrested based on the fentanyl. After Myers was indicted for conspiracy to distribute and possess with intent to distribute fentanyl, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(C), and 846, he filed a motion to suppress evidence, challenging the automobile stop and search, as well as his arrest on the ground that the officers lacked probable cause that Myers had committed a crime. The district court denied the motion, and Myers pleaded guilty pursuant to a plea agreement, reserving his right to challenge on appeal the court’s ruling on his motion to suppress. The district court then sentenced Myers to 75 months’ imprisonment. This appeal followed, challenging only the sufficiency of the evidence to establish probable cause for Myers’s arrest. II On appeal, Myers does not challenge the traffic stop for speeding and excessive tinting or the subsequent search based on the smell of marijuana. He challenges only his arrest, which was based on what the officers uncovered during the search. 5 Myers contends in essence that the officers did not have sufficient knowledge to reasonably believe that he, as distinct from the driver, had anything to do with the fentanyl and therefore that the officers lacked probable cause to arrest him for its possession. Noting correctly that the officers’ belief of his guilt had to be “particularized” as to him, see Pringle, 540 U.S. at 371 , he argues that because the driver admitted to ownership of the gun discovered in the automobile’s trunk and three of the cell phones and because “drugs and guns all too often go hand in hand” (quoting United States v. Lomax, 293 F.3d 701 , 706 (4th Cir. 2002)), the officers could have acted only on a “hunch” in arresting him. Myers’s argument is a familiar one, as drug crimes are frequently uncovered after automobiles with multiple occupants are stopped for traffic violations. His argument therefore merits a careful discussion of the principles governing arrests in such circumstances. The grounding principle flows from the Fourth Amendment, which prohibits unreasonable seizures. Fleshing out that proscription, the Supreme Court has held that, to be reasonable, an arrest of an individual must be supported by probable cause to believe that the individual has committed or is committing a crime. See Atwater v. City of Lago Vista, 532 U.S. 318 , 354 (2001); United States v. Watson, 423 U.S. 411 , 423–24 (1976). The Court has recognized that probable cause is a generalized concept that can be given useful meaning only in context. This is because “it deals with probabilities and depends on the totality of the circumstances.” Pringle, 540 U.S. at 371 . But generally, “probable cause” is characterized as “a reasonable ground for belief of guilt . . . particularized with respect to the person” being arrested. Id. (cleaned up). In that vein, we have noted that the 6 probable-cause inquiry “does not involve the application of a precise legal formula or test but the commonsense and streetwise assessment of the factual circumstances.” United States v. Humphries, 372 F.3d 653 , 657 (4th Cir. 2004); see also Pringle, 540 U.S. at 370 (describing probable cause as a “practical, nontechnical conception that deals with the factual and practical considerations of everyday life” (quoting Illinois v. Gates, 462 U.S. 213 , 231 (1983) (cleaned up)). Thus, in determining whether an arrest was justified by probable cause, we take account of all the relevant facts known to the arresting officer and “the inferences [that may be] drawn by [the officer] on the scene,” including the “officer’s practical experience and the inferences the officer may draw from that experience.” Humphries, 372 F.3d at 657 . In this case, the facts learned by the officers and the inferences that they could draw in light of their practical experience — 21 years as to Sgt. Winingear and 16 years as to Officer Gibson — began with the surveillance of the bus stop in Norfolk. At the time of arrest, the officers thus knew that: • The bus stop, which served ongoing bus service between Norfolk and New York, functioned as an entry point for drugs, as the officers had often seized drugs there on previous occasions. • At 11:30 p.m. on February 1, Myers exited the China bus, carrying no luggage, backpack, or bag but only a “dark object.” And after Myers looked around, he made a cell phone call and was soon picked up by a silver Infiniti sedan. This conduct at that time and place caused Sgt. Winingear, based on his practical experience, to become suspicious. 7 • The silver Infiniti traveled an unusually circuitous route, suggesting to the officers following the vehicle that the occupants knew that they were being followed. • When the automobile was stopped for speeding and excessively tinted windows, the officers smelled marijuana coming from the inside of the automobile. • A search yielded a loaded gun, four cell phones, over 300 grams of fentanyl, and approximately $1,800 in cash. The driver admitted to owning the gun and three cell phones, and the other cell phone and the $1,800 in cash was found on Myers’s person. But neither occupant claimed ownership of the fentanyl, which was found lying on the floorboard behind the passenger seat. Answering the obvious question of what the two occupants of the silver Infiniti were up to, a reasonable officer could conclude (1) that a crime was being committed in his presence, i.e., possession of fentanyl, and (2) that the two occupants were involved in a common enterprise. The two occupants surely knew each other or had a preexisting arrangement with each other, as the Infiniti picked Myers up shortly following his call and there was no indication of a ride-sharing arrangement. The two were present in a vehicle that smelled of marijuana that had apparently been smoked. The two made a trip to a specific 7-Eleven store and both were aware of the route the vehicle pursued thereafter. And neither of the two provided information about ownership of the fentanyl, which was “readily accessible” to both. 8 Thus, this is not a case where “mere propinquity to others independently suspected of criminal activity” is advanced as the basis for probable cause, such as was the case of a customer frequenting a bar being searched by law enforcement for drugs, Ybarra v. Illinois, 444 U.S. 85 , 91 (1979), or where one individual present in an automobile with the defendant has been “single[d] out” as the guilty person, effectively exculpating the defendant, United States v. Di Re, 332 U.S. 581 , 594 (1948). Here, no singling out occurred, as both the driver and Myers failed to provide officers any information about the ownership of the fentanyl. Moreover, the contextual facts revealed clearly that Myers and the driver knew each other, or at least had a preexisting arrangement, and that they proceeded in concinnity with knowledge of each other’s actions. Thus, these circumstances match more closely those in Pringle. In Pringle, the officer stopped an automobile for speeding during the early morning hours, and the vehicle he stopped had three occupants. 540 U.S. at 367–68. Following a consensual search of the vehicle, the officer found $763 and five glassine baggies of cocaine “from between the back-seat armrest and the back seat.” Id. at 368 . When all three occupants denied ownership of the cocaine and money, the officer arrested all three, and the Supreme Court held that the officer had probable cause to do so because he could reasonably infer a common enterprise among the occupants. Id. at 368, 374 . It reached that conclusion because a car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a 9 dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him. Id. at 373 (cleaned up). Despite the similarity of Pringle, Myers nonetheless maintains that the facts here of criminal conduct were not shown to be particularized to him, and, in any event, he seeks to distinguish Pringle because here the driver admitted ownership of the gun and cell phones. But his arguments miss the significance of Pringle’s holding. Because the three occupants in Pringle denied ownership of drugs that were found in the automobile, the officer was justified in inferring that all three were involved in illegal conduct, justifying their arrest. While the role of each occupant was not known to the officer, he well could conclude that the community of conduct suggested by the circumstances particularized the suspicion as to all three and thus justified their arrest. The same is true for Myers and the driver of the silver Infiniti, in which the fentanyl was found. We conclude that the district court properly ruled that the Norfolk police officers had probable cause to arrest Myers — as well as the driver — and affirm the judgment of the district court. AFFIRMED 10
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-6114 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL RODNEY HOLMES, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Senior District Judge. (1:05-cr-01253-MBS-1) Submitted: December 8, 2020 Decided: January 26, 2021 Before GREGORY, Chief Judge, NIEMEYER and KING, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Samuel Rodney Holmes, Appellant Pro Se. Leesa Washington, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Samuel Rodney Holmes appeals the district court’s order granting in part and denying in part his motion under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 . He was convicted by a jury in 2007 of conspiracy to distribute 50 grams or more of cocaine base and distribution of five grams or more of cocaine base. The district court found his Guidelines range was 360 months to life and sentenced him to 360 months. On direct appeal, we concluded the court erred in calculating his criminal history category and applying an enhancement for obstruction; but we found the errors were harmless because even if they were corrected, his Guidelines range would remain 360 months to life. United States v. Holmes, 339 F. App’x 334, 337-38 (4th Cir. 2009). In 2015, the district court granted Holmes’ motion under 18 U.S.C. § 3582 (c)(2) for reduction of his sentence based on Amendment 782, which lowered his base offense level and his Guidelines range to 324 to 405 months. The court had previously denied his request to correct the errors we identified on direct appeal in other § 3582(c)(2) motions. In 2016, his sentence was reduced by an Executive Grant of Clemency to 240 months, which was the mandatory minimum prison sentence that originally applied for the conspiracy. In 2019, Holmes moved for relief under the First Step Act, requesting a sentence of time served and an opportunity to submit evidence as to his post-sentencing rehabilitation and the 18 U.S.C. § 3553 (a) factors. The probation officer prepared an Amended Sentence Reduction Report finding his mandatory minimum sentence for the conspiracy had been reduced to 10 years in prison and 8 years of supervised release; but his Guidelines range remained 324 to 405 months. The district court granted a reduction of his supervised 2 release term but denied a reduction of his prison sentence because his “guidelines range of 324-405 months is greater than his current sentence of 240 months.” On appeal, Holmes argued, among other things, the court should have corrected the errors we identified on direct appeal in calculating his Guidelines range and should have considered his post- sentencing rehabilitation. We previously ordered the parties to submit supplemental briefs addressing the appeal in light of United States v. Chambers, 956 F.3d 667 (4th Cir. 2020). The Government argues that the errors we identified on direct appeal do not have to be corrected under Chambers because they are not retroactive, and we already declined to correct them on direct appeal. However, we conclude that they should now be corrected in light of Chambers because they were errors at the time of the original sentencing. Accordingly, because the district court did not have the benefit of Chambers when it decided Holmes’ First Step Act motion, we vacate the court’s order and remand for its reconsideration after recalculating the Guidelines range in accordance with Chambers and considering Holmes’ post-sentencing conduct. We deny the motion to appoint counsel on appeal as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 3
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71 F.3d 882 Garvin v. Pitts** NO. 94-8996 United States Court of Appeals, Eleventh Circuit. Nov 14, 1995 1 Appeal From: N.D.Ga., No. 91-01353-1-CV-MHS 2 AFFIRMED. ** Local Rule 36 case
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People v Ceballos (2020 NY Slip Op 07143) People v Ceballos 2020 NY Slip Op 07143 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Ind No. 1505N/11 Appeal No. 12493 Case No. 2017-2783 [*1]The People of the State of New York, Respondent, v Deivis Ceballos, Defendant-Appellant. Epstein & Conroy, P.C., Brooklyn (Jason Eldridge of counsel), for appellant. Cyrus R. Vance Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered February 27, 2017, convicting defendant, after a jury trial, of conspiracy in the second degree and criminal possession of a controlled substance in the first and second degrees, and sentencing him to an aggregate term of 13 years, unanimously affirmed. The court providently exercised its discretion in correcting the transcript of the taking of the jury verdict to replace several plainly errant references. The transcript incorrectly made references to weapon possession charges, as opposed to the criminal possession of a controlled substance charges that were contained in the indictment and on which the jury was instructed [*2](see People v Bethune, 29 NY3d 539 [2017]). The totality of the circumstances made it clear that the original transcript misstated the words actually spoken in court. These include the court's own recollection, the information provided to the prosecutor by the court reporter that the error might be attributable to the use of the wrong stenographic macro as well as the absence of any reference to, or evidence of, any weapon charges at any point in the trial. It seems even more unlikely that neither the court, the prosecutor, the defense counsel nor the jurors would have remained silent as the court clerk allegedly announced the wrong charge several times, and that the clerk repeatedly misread an undisputedly correct verdict sheet (see e.g. People v Valdes, 283 AD2d 187 [1st Dept 2001], lv denied 97 NY2d 688 [2001][absurd purported jury charge deemed transcription error]). Accordingly, defendant's claim of ineffective assistance of counsel based upon the assumed accuracy of the original minutes, are unavailing. Defendant's other ineffective assistance claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, regarding counsel's strategy and preparation (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). In the absence of a CPL 440.10 motion before this Court, the merits of defendant's ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence supports the conclusion that defendant knew what drugs were in his possession (see generally People v Reisman, 29 NY2d 278, 285-286 [1971], cert denied 405 US 1041 [1972]), and refutes his claim that he believed he was only transporting marijuana. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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People v Abreu (2020 NY Slip Op 07146) People v Abreu 2020 NY Slip Op 07146 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Ind. No. 1565/18 Appeal No. 12508 Case No. 2019-987 [*1]The People of the State of New York, Respondent, v Jose Frank Santos Abreu, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Gilbert Zelaya of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent. Judgment, Supreme Court, New York County (Laurie Peterson, J.), rendered June 14, 2018, convicting defendant, upon his plea of guilty, of conspiracy in the fourth degree, and sentencing him to a term of one to three years, unanimously affirmed. Defendant challenges the validity of his waiver of indictment. First, he asserts that the record does not reflect that he executed the written waiver in open court. Second, he maintains that the waiver itself did not specify the approximate time that the charged offenses occurred. Third, he contends that the record does not indicate that the waiver was translated into Spanish for him by the interpreter or anyone else. Defendant's claims are without merit. The record indicates that defendant signed the written waiver of indictment in open court in the presence of his attorney. Defendant was asked by the court if that was his signature which appeared on the waiver of indictment and whether he understood the waiver of indictment when he signed it. Defendant responded "yes" to both questions. Defendant's and his attorney's acknowledgement that defendant signed the written waiver of indictment in open court in the presence of his attorney, and the court's order approving the waiver, establishes that defendant validly waived his right to be prosecuted by indictment (see People v Myers, 32 NY3d 18, 21 [2018]). Defendant's suggestion that the waiver may have been signed before the in-court proceeding is speculative and not supported by the record. Defendant did not preserve his claims that his written waiver of indictment was invalid because it failed to specify the approximate times that the charged offenses occurred and because the record does not expressly state that the waiver was translated into Spanish for him by the interpreter. These nonjurisdictional claims were forfeited by defendant's guilty plea (see People v Lang, 34 NY3d 545, 568-570 [2019]). As an alternative holding, we reject these claims on the merits. The superior court information, felony complaint and waiver of indictment provided defendant with reasonable notice of the charges including a written time frame within which the charged offenses occurred. Finally, the record supports no inference other than that the Spanish language interpreter, who was present in court for the purpose of interpreting for defendant, translated the waiver of indictment. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Niche Music Group, LLC v Orchard Enters., Inc. (2020 NY Slip Op 07139) Niche Music Group, LLC v Orchard Enters., Inc. 2020 NY Slip Op 07139 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 650100/18 Appeal No. 12506 Case No. 2019-5556 [*1]Niche Music Group, LLC, Plaintiff-Appellant, v The Orchard Enterprises, Inc. et al., Defendants-Respondents. Fairchild Law, LLC, Brooklyn (Steven R. Fairchild of counsel), for appellant. Jonathan D. Davis, P.C., New York (Johnathan D. Davis of counsel), for respondents. Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 20, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint as against Orchard Enterprises Inc., unanimously affirmed, without costs, and the matter is remanded for a determination of defendants' reasonable attorneys' fees and costs. The contractual claims are governed by California law. Contrary to plaintiff's contention, the 2004 contract in which defendant Orchard agreed to promote and distribute plaintiff's digital music catalogue does not bar Orchard from providing the same services to a [*2]former client of plaintiff. If the parties intended to include a non-compete provision, they should have said so plainly in the agreement (see Chisom v Board of Retirement of Fresno County Empls.' Retirement Assn., 218 CalApp4th 400, 415 [Cal App 2013]). "[A]n implied term may not be found where it would contradict the express terms of the contract" (id.). A further reason not to imply such a term is California's strong public policy against non-compete covenants (see Ann. Cal. Bus. & Prof. Code § 16600; Advanced Bionics Corp. v Medtronic, Inc., 29 Cal4th 697, 706 [2002]). Plaintiff's reliance on Sonoma Tires, Inc. v Big O Tires, LLC, (2013 WL 12173748, *8, 2013 US Dist LEXIS 204314, *27 [ND Cal 2013]), is misplaced, as in that case the agreement contained an "exclusive dealing clause" that was found valid and enforceable because it would not substantially foreclose competition in the industry. The cause of action for breach of the implied covenant of good faith and fair dealing was correctly dismissed because plaintiff cannot identify a specific contractual provision from which the covenant arises (see Citizens of Humanity, LLC v LAB sarl, 2013 WL 12129393, *10, 2013 U.S. Dist LEXIS 201413, * 25 [CD Cal 2013]). The cause of action for tortious interference with contract, which is not governed by California law because it does not arise under the parties' contract, was correctly dismissed because there is no evidence that Orchard intentionally procured the breach of any contract between plaintiff and nonparty Barbershop Harmony Society (BHS) (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]). The record shows that after terminating its contract with plaintiff, plaintiff's former client sought out Orchard and solicited its services. The claim is also barred by the applicable three-year statute of limitations (CPLR 214[4]; American Fed. Group Ltd. v Edelman, 282 AD2d 279 [1st Dept 2001]). The claim accrued no later (and probably earlier) than January 2, 2105, the date plaintiff notified defendant that BHS had terminated its contract with plaintiff. This action was commenced no earlier than January 8, 2018. As the prevailing party, Orchard is entitled under the contract to an award of reasonable attorneys' fees and costs, which, under California law, includes those incurred on appeal (Villinger/Nicholls Dev. Co. v Meleyco, 31 CalApp4th 321, 328 [Cal App 1995]). We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Mendriski v New York City Hous. Auth. (2020 NY Slip Op 07137) Mendriski v New York City Hous. Auth. 2020 NY Slip Op 07137 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 154435/17 Appeal No. 12499 Case No. 2020-01938 [*1]David Mendriski, Plaintiff-Appellant, v New York City Housing Authority, Defendant, URS Corporation, Defendant-Respondent. Cellino & Barnes, P.C., Melville (Joshua B. Sandberg of counsel), for appellant. Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondent. Order, Supreme Court, New York County (Robert D. Kalish, J.), entered October 25, 2019, which, insofar as appealed from as limited by the briefs, granted defendant URS Corporation's (URS) motion for summary judgment dismissing the Labor Law § 200 claim, unanimously affirmed, without costs. Plaintiff was working on a ladder, when his supervisor pulled on a vacuum extension cord, which had wrapped around the foot of the ladder, yanking the ladder from underneath him. Plaintiff was performing renovation work on property owned by NYCHA, which had retained [*2]plaintiff's employer, nonparty Rockmore Contracting Corp. (Rockmore), as the general contractor, and defendant URS as the construction manager. The motion court properly granted URS's motion for summary judgment dismissing the Labor Law § 200 claim. The parties do not dispute that the accident arose out of the means and methods of plaintiff's work, and there is no evidence that defendants controlled or exercised supervisory authority over how plaintiff performed his work. The contract between NYCHA and URS expressly provided that URS was not responsible for the means and methods of Rockmore's work. URS's project superintendent testified that URS was responsible for overseeing "the general construction to make sure it was . . . built per plans and specifications, on schedule and on budget." While he testified that URS performed daily inspections of the work, including that of Rockmore, and had authority to stop work for safety reasons, he also testified that URS did not have "any obligation regarding the methods of the work being performed." He further testified that he did not supervise or instruct Rockmore employees how to perform their work, and plaintiff admitted that he received instructions only from his supervisors at Rockmore. The foregoing establishes that URS had only general supervisory authority over the worksite, and did not control the manner in which the injury-producing work was being performed (Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [1st Dept 2007]; see also Villanueva v 114 Fifth Ave. Assoc. LLC, 162 AD3d 404, 406 [1st Dept 2018]; Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]; Foley v Consolidated Edison Co. of N.Y., Inc., 84 AD3d 476 [1st Dept 2011]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Matter of Seedorf (2020 NY Slip Op 07136) Matter of Seedorf 2020 NY Slip Op 07136 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 SUPREME COURT, APPELLATE DIVISION First Judicial Department Rolando T. Acosta,P.J., Dianne T. Renwick Troy K. Webber Jeffrey K. Oing Lizbeth González, JJ. Motion No. 2020-3033 Case No. 2020-03825 [*1]In the Matter of Marc A. Seedorf, (Admitted as Marc Andrew Seedorf), an Attorney and Counselor-at Law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Marc A. Seedorf, (OCA Atty. Reg. No. 1809870) Respondent. Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on January 18, 1982. Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Raymond Vallejo, of counsel), for petitioner. [*2] Respondent, pro se. Per Curiam Respondent Marc A. Seedorf was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982, under the name Marc Andrew Seedorf. At all times relevant to this proceeding, he maintained an office for the practice of law within the First Judicial Department. On December 6, 2019, respondent pleaded guilty in the United States District Court for the Southern District of New York to tax evasion in violation of 26 USC § 7201, a felony under the United States Code. During his plea allocution respondent acknowledged that from 2009 through on or about October 2019, he knowingly and willfully evaded payment of his federal income taxes, by various means, primarily failing to file personal tax returns. On September 15, 2020, respondent was sentenced to a term of imprisonment of six months, three years of supervised release, and a fine of $55,000. The Attorney Grievance Committee (Committee) seeks an order determining that the crime of which respondent has been convicted is a "serious crime" as defined by Judiciary Law § 90(4)(d); immediately suspending respondent from the practice of law pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.12(b)(2) and Judiciary Law § 90(4)(f); and, directing respondent to show cause before a referee appointed by the Court, who shall hold a hearing and issue a report and recommendation to the Court, why a final order of censure, suspension or disbarment should not be made. Respondent pro se does not oppose his immediate suspension and asks to be allowed to show cause before an appointed referee why a final order of censure, suspension or disbarment should not be made. The crime which respondent was convicted of is a "serious crime" within the meaning of Judiciary Law § 90(4)(d) which defines "serious crime" in pertinent part as follows: "any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns . " The crime of which respondent has been convicted, tax evasion in violation of 26 USC § 7201, is a "serious crime" insofar as it is a felony under the United States Code and this Court has previously held that such conviction constitutes a serious crime within the meaning of the statute (see Matter of Lindenbaum, 165 AD3d 53 [1st Dept 2018]; Matter of Shapiro, 81 AD3d 25, 27 [1st Dept 2011]; Matter of Ruble, 66 AD3d 48, 49 [1st Dept 2009]; Matter of Batalla, 205 AD2d 66 [1st Dept 1994]). With respect to an immediate suspension, Judiciary Law § 90(4)(f) provides that upon receipt of a record indicating that an attorney has been convicted of a "serious crime," this Court will suspend the attorney until a final order is issued, and under 22 NYCRR 1240.12(c)(2)(ii), [*3]once a "serious crime" determination has been made, "the Court may suspend the respondent pending final disposition unless such a suspension would be inconsistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice..." We have consistently held that it is appropriate to suspend an attorney, pursuant to Judiciary Law § 90(4)(f), who has been convicted of a felony, during the pendency of a "serious crime" proceeding and until a final order is issued (see Matter of Lindenbaum, 165 AD3d at 55-56; Matter of Freedman, 109 AD3d 151, 153 [1st Dept 2013]. Specifically, we have suspended attorneys convicted of tax evasion under 26 USC § 7201 and are serving a term of probation or imprisonment (see Matter of Shapiro, 81 AD3d at 27; Matter of Ruble, 66 AD3d at 49). Accordingly, the Committee's motion should be granted and the offense of which respondent has been found guilty deemed a "serious crime" within the meaning of Judiciary Law § 90(4)(d); respondent is suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) and 22 NYCRR 1240.12(c)(2)(ii), effective immediately; and is directed to show cause before a referee appointed by the Court, pursuant to Judiciary Law § 90(4)(g) and 22 NYCRR 1240.12(c)(2)(i) and (iv), who shall hold a hearing within 90 days of respondent's release from prison and issue a report and recommendation to this Court why a final order of censure, suspension, or disbarment should not be made. All concur. It is Ordered that the Committee's motion to deem the offense of which respondent has been found guilty to be a "serious crime" within the meaning of Judiciary Law § 90(4)(d) is granted, and respondent is suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) and 22 NYCRR 1240.12(c)(2)(ii), effective the date hereof, until such time as pending disciplinary matters have been concluded, and until further order of this Court, and, It is further Ordered that during the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that respondent is forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority; that respondent is forbidden to give another an opinion as to the law or this application or any advice in relation thereto. Respondent is directed to fully comply with the provisions of 22 NYCRR 1240.15, of the Rules of this Court, which is made a part hereof, and, It is further Ordered that, pursuant to Judiciary Law § 90(4)(g) and 22 NYCRR 1240.12(c)(2)(i) and (iv), respondent is directed to show cause at a hearing before the referee appointed herein, to be held within 90 days of respondent's release from prison, why a final order of censure, suspension, or disbarment should not be made based on his conviction of a serious crime as defined in Judiciary Law § 90(4)(d), and It is further Ordered that John Warden, Esq, 125 Broad Street, New York, NY 10004, (212) 558-3610; 531 Bedford Hills, NY, 10507, (914) 234-3139, is appointed as referee to hold the hearing, to be held within 90 days of respondent's release from prison, and issue a report and recommendation to this Court, with the report to be submitted within 60 days of the conclusion of the hearing or the submission of post-hearing memoranda. Entered. [December 1, 2020]
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Matter of O'Farrel v Caliber Home Loans (2020 NY Slip Op 07140) Matter of O'Farrel v Caliber Home Loans 2020 NY Slip Op 07140 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 850196/16 Appeal No. 12494 Case No. 2020-02782 [*1]In the Matter of Karl O'Farrel, Petitioner-Respondent, v Caliber Home Loans et al., Respondents-Appellants, John Doe #1 et al., Respondents. Fein, Such & Crane LLP, Westbury (Michael S. Hanusek of counsel), for appellants. Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for respondents. Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 19, 2019, which denied respondents' motion for summary judgment dismissing the petition, unanimously affirmed. Respondents failed to establish prima facie that they sent to petitioner, 90 days prior to the sale of his cooperative shares held as collateral, the additional pre-disposition notice required by UCC 9-611(f) that he was in danger of losing his home. Their supporting affidavit failed to demonstrate the affiant's familiarity with their mailing practices and procedures and do not [*2]provide a foundation for a business records exception to hearsay evidence (CPLR § 4518; see e.g. Wells Fargo Bank, N.A. v Merino, 173 AD3d 491 [1st Dept 2019] [insufficiency of affidavit submitted to show compliance with RPAPL 1304]). Additionally, the affidavit of service for the Notice of Default, required by the loan, failed to include a unit number in this large multi-family building (Wells Fargo Bank, N.A. v. Biedermann, 178 AD3d 508 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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J-A19025-20 2021 PA Super 48 KEITH SPENCER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CLEVELAND JOHNSON, TINA GAINER : No. 2011 EDA 2019 JOHNSON, AND PHILADELPHIA : JOINT BOARD WORKERS UNITED, : SEIU Appeal from the Order Entered April 23, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2016 No. 2136 KEITH SPENCER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEVELAND JOHNSON; TINA GAINER : JOHNSON AND PHILADELPHIA JOINT : BOARD WORKERS UNITED, SEIU : No. 2036 EDA 2019 : : APPEAL OF: TINA GAINER JOHNSON : Appeal from the Judgment Entered May 17, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2016 No. 2136 KEITH SPENCER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CLEVELAND JOHNSON, TINA GAINER : No. 2040 EDA 2019 JOHNSON, AND PHILADELPHIA : J-A19025-20 JOINT BOARD WORKERS UNITED, : SEIU Appeal from the Order Entered April 23, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2016 No. 2136 KEITH SPENCER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEVELAND JOHNSON AND TINA : GAINER JOHNSON AND : PHILADELPHIA JOINT BOARD : No. 2080 EDA 2019 WORKERS UNITED, SEIU : : : APPEAL OF: PHILADELPHIA JOINT : BOARD WORKERS UNITED, SEIU : Appeal from the Order Dated April 23, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2016, No. 2136 BEFORE: PANELLA, P.J., McLAUGHLIN, J., * and McCAFFERY, J. OPINION BY PANELLA, P.J.: Filed: March 18, 2021 This consolidated appeal arises out of an automobile accident that occurred in West Philadelphia, Pennsylvania. On October 16, 2014, the car that Cleveland Johnson (“Cleveland”) was driving struck Appellant/Cross- Appellee, Keith Spencer (“Spencer”), a pedestrian, as he lawfully crossed the street. Spencer suffered permanent, debilitating injuries, which have severely ____________________________________________ * Judge McLaughlin did not participate in the consideration or decision of this case. -2- J-A19025-20 diminished his quality of life. Central to this appeal is the extent to which the owner of the car that Cleveland was driving should be held liable for Spencer’s injuries. The owner, Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU (“PJB”), provided the car to its employee, Appellee/Cross-Appellant, Tina Johnson (“Tina”), who is Cleveland’s wife.1 The parties do not dispute two facts: (1) Spencer was not at fault, and (2) Cleveland was negligent in his operation of the vehicle. However, the parties disagree as to whether Tina was negligent in allowing Cleveland to operate her work vehicle, and whether PJB was negligent under the laws of agency and vicarious liability in failing to maintain reasonable policies and regulations for the vehicles it provides to employees like Tina. As will be discussed in detail below, Spencer instituted a civil action against Cleveland, Tina, and PJB, and the matter eventually went to trial. The jury found that all three defendants shared liability for Spencer’s injuries, and apportioned that liability among the defendants. Spencer sought to mold the verdict to make PJB jointly and severally liable2 for Tina’s negligence. The trial ____________________________________________ 1 On August 15, 2019, this Court entered an order, sua sponte, consolidating the appeals as cross-appeals. Spencer was designated as Appellant/Cross- Appellee. Tina and PJB were designated as Appellees/Cross-Appellants. See Pa.R.A.P. 2136. Cleveland did not file a notice of appeal, and is not a party to this present matter. 2The Pennsylvania Supreme Court defines joint and several liability as follows: “Under the doctrine of joint and several liability, where there is more than one defendant, an injured party may seek to recover his or her entire judgment -3- J-A19025-20 court denied Spencer’s request. Because we conclude that Spencer is legally entitled to this relief, we are constrained to reverse the trial court’s denial of Spencer’s post-trial motion to mold the verdict, and we consequently remand for further proceedings. The essential facts relevant to this appeal are largely undisputed.3 Where there are factual disputes between the parties, we will highlight them. However, one of the parties’ primary disputes concerns the legal consequences of PJB’s act in providing Tina with a car. PJB is small labor union organization that covers the Philadelphia and South Jersey areas. Tina initially volunteered at the union when she worked at an airport magazine shop, but later became a fulltime, paid employee. In 2012, PJB provided Tina with a company car, a 2009 silver Ford Escape, because PJB considered these vehicles “absolutely essential to the ____________________________________________ from either of the defendants.” AAA Mid-Atlantic Ins. Co. v. Ryan, 84 A.3d 626 , 628 n.1 (Pa. 2014). Moreover, the Supreme Court has further stated, “Joint and several liability as a principle of recovery for an indivisible injury caused by multiple tortfeasors lies at the very heart of the common law of tort, and also has a solid foundation in Pennsylvania’s statutory law.” Carrozza v. Greenbaum, 916 A.2d 553 , 565 (Pa. 2007). See also Glomb v. Glomb, 530 A.2d 1362 , 1365 (Pa. Super. 1987) (“Imposition of joint and several liability enables the injured party to satisfy an entire judgment against any one of the tort-feasors, even if the wrongdoing of that tortfeasor contributed only a small part to the harm inflicted.”). 3 The relevant facts and procedural history of this complex case are gleaned from the certified record and the trial court’s Rule 1925(a) opinion, which no party disputes. -4- J-A19025-20 work of organizers and business representatives” since “employees could be required to drive out to job sites at any hour of day or night, twenty-four hours a day.” Trial Court Opinion, 6/24/2019, at 5 (internal quotations marks omitted).4 The car was considered part of the job so unless someone proved “unfit,” the employee would be given a car. N.T., 1/22/2019 p.m., at 51. PJB’s main requirement for providing a company car was that the employee must have a valid driver’s license. See Trial Court Opinion, 6/24/2019, at 5. PJB also considered the employee’s past performance, her reputation, and her work ethic. See id. PJB’s chief of staff at the time was Richard Minter.5 Minter stated that employees are not “automatically given a car on day one, and that PJB vetted its employees by making them prove their credibility through their work performance and history.” Id., at 4 n.1 (quotation marks omitted). Minter communicated that “the process was complex and was not taken lightly, but provided no other details about the process other than running the driver’s license.” Id. (record citation and quotation marks omitted). ____________________________________________ 4 PJB provided six of its seven staff members with company cars. 5 At the time of the incident, Minter was the chief of staff and organizer director for PJB. He oversaw the work of the staff and the organization of projects that the union would undertake. At the time of trial, he transferred positions within the union and his title changed to assistant director. See N.T., 1/25/2019 a.m., at 8-9. -5- J-A19025-20 Notably, PJB did not conduct an interview or a background check prior to issuing the car to Tina. See id., at 4. Lynne Fox,6 the PJB manager, indicated that when Tina started volunteering at the union, Tina was still working at the airport, which conducts “background checks” that were more specific than what PJB would have done and therefore, PJB “relied on those checks.” N.T., 1/22/2019 p.m., at 51. Fox never asked Tina to “submit any type of authorization in order to obtain all the records” from the former employer that would have given Fox the background information because, as she put it, the employer “might just have verified it.” Id., at 52. Moreover, per Fox, PJB did not perform an independent investigation of Tina’s background prior to providing the car because Tina worked for the union “for a number of years.” Id., at 53. PJB’s secretary and treasurer, Mildred Saldana, indicated the union did not have a written employee handbook at that time and “did not provide their vehicle usage policy to employees in writing; [rather,] they verbally instructed employees that the only permissible personal use of company cars was for commuting to and from work and job sites.” Trial Court Opinion, 6/24/2019, at 5 (quotation marks omitted). “PJB supervised company car usage only through employee-submitted time sheets, mileage logs, and expense reports ____________________________________________ 6 Fox is a “formally educated and trained attorney,” and her responsibilities at the union included strategic planning and overseeing the budget. N.T., 1/22/2019 p.m., at 43. -6- J-A19025-20 to cover costs like highway tolls. The auditing was mostly for purposes of compliance with Internal Revenue Service and Department of Labor regulations and for employer reimbursement.” Id., at 6. Fox indicated that “it was the union’s philosophy, as well as the philosophy of other unions in the community, that company [car] use was not strictly monitored because if they could not trust a union rep [representative] with a car, they had no business trusting the employee to represent union members.” Id., at 5-6. When asked, absent an accident where somebody was seriously injured, how would she know if a non-employee was driving the vehicle, Fox responded, “We wouldn’t know.” N.T., 1/22/2019 p.m., at 57. Fox further stated, “Well let’s just say Philadelphia is a small city. I’m sure sooner or later we would find out, someone would see. But we have no formal method for doing it.” Id. Saldana maintained that she provided Tina with “a diagram to help explain the difference between personal and business uses,” and told Tina “several times, as part of repeated seminars for the organization, that the employee was the only person permitted to drive the company car.” Trial Court Opinion, 6/24/2019, at 5. Minter averred that Tina “had attended the regular, mandatory staff meetings and retreats where significant time was spent reviewing Department of Labor and Internal Revenue Service guidelines, which allegedly included discussion of PJB's company car policies.” Id., at 5. He also confirmed, “the -7- J-A19025-20 vehicle use policy was reviewed, at minimum, once per year, occasionally several times per year.” Id. Contrary to these statements by PJB’s leadership, Tina alleged that PJB did not inform her of these policies, and that she “assumed” she could use the vehicle for both business and personal uses. N.T., 1/23/2019 a.m., at 21-22. Tina added that she “would not have used [the vehicle] for personal reasons if she had been informed it was against company policy.” Trial Court Opinion, 6/24/2019, at 6. “There was no written documentation signed by [Tina] to show that she had ever received the policy verbally or in writing, although Lynne Fox testified it was the union’s protocol to get signed receipts from the employees at the yearly meetings where they reviewed the vehicle policy with employees.” Id. Moreover, Fox could not provide any documentation that Tina was at these meetings where the policy was provided. See N.T., 1/22/2019 p.m., at 47. Finally, Tina’s testimony conforms to her behavior: the PJB company car was the only vehicle in the Johnsons’ possession. See N.T., 1/23/2019 a.m., at 114-115. They had a Honda Accord, but it was no longer in their possession after they received the PJB vehicle. See id. Furthermore, Tina noted she was not told or given anything from PJB that family members were not permitted to use the vehicles. See N.T., 1/23/2019 a.m., at 36-37. Tina stated that “the only vehicle use policy she knew of was an understanding that she would not be reimbursed for personal use mileage, and that no one but her was allowed to drive the car.” Trial Court -8- J-A19025-20 Opinion, 6/24/2019, at 6.7 Tina also indicated PJB did not physically monitor her vehicle usage, but rather, PJB supervised the vehicle usage through time sheets and mileage logs. See N.T., 1/23/2019 a.m., at 17, 21-22. Also relevant to our review was the evidence that Tina did not volunteer certain information to PJB. First, she did not inform PJB that her driver’s license had been previously suspended due to failure to pay parking tickets and second, that her husband’s license had been suspended since 1989. See id., at 15-17. Additionally, while employed at PJB, Tina received a citation for failure to stop at a stop sign. See id., at 42. She did not tell PJB about it, but a copy of the ticket was sent to the union. See id., at 41-42. Tina was unsure if PJB required employees to tell the union about that kind of incident. Id., at 44-45. She stated that after PJB received the ticket, Saldana asked Tina if she paid it, but no further reprimand was issued. Id., at 45-46. Tina stated that although she did not let Cleveland drive the vehicle for any reason, she did for an emergency. See id., at 38, However, Cheryle Spencer, Spencer’s older sister, contradicted this account. Cheryle would see the Johnsons on a daily basis because she and Spencer lived on the same street as Tina’s mother and had known the Johnsons for a number of years. See N.T., 1/23/2019 p.m., at 78, 82. Cheryle observed Cleveland driving the ____________________________________________ 7At trial, Tina testified she was not aware of the non-reimbursement policy, but she was impeached with her January 26, 2018, deposition testimony, wherein she acknowledged that she knew about the policy. See N.T., 1/23/2019 a.m., at 34-36. -9- J-A19025-20 PJB car “[a]ll the time.” Id. Cheryle indicated Cleveland would be driving Tina, and in some instances, he would be driving on his own. See id. Cheryle averred, in an affidavit, that she had seen Cleveland and/or Cleveland and Tina driving the car “at least a hundred times[.]” Id., at 90. These policies, actions and inactions taken by PJB and the Johnsons culminated in the events that occurred on October 16, 2014. On that day, Tina drove the PJB vehicle to her mother’s house for a small family gathering. She parked the car on the corner of the street, about six houses away from her mother’s home. The car was situated so that it jutted out onto the sidewalk, obstructing the walkway by a foot or two. That same day, Cleveland was hanging out at a friend’s house in another part of the city. Between 12:00 p.m. and 2:15 p.m., he consumed approximately four 24-ounce beers. See N.T., 1/24/2019 a.m., at 31. Cleveland then left his friend’s home and traveled to his mother-in-law’s home via public transportation. See id., at 32. He proceeded to drink a fifth beer as he walked up to the home. See id., at 36. Approximately five hours later, Cleveland went onto the porch to smoke a cigarette. See id., at 37. He indicated that he was still intoxicated, due to previously consuming 120 ounces of beer. See id., at 38. It was at this point that Cleveland noticed the PJB car parked down the street, and believed that it was obstructing the sidewalk. See id., at 41-42. However, he did not believe the car’s location was an “emergency” situation. Id., at 53. - 10 - J-A19025-20 While walking towards the vehicle, Cleveland observed an open parking spot, and decided to move Tina’s car. See id., at 54. As noted above, since his driver’s license had been suspended, Cleveland was not legally permitted to drive a motor vehicle. Cleveland then went back into the home to grab his wife’s car keys. He did not ask Tina or another family member to move the car. See id., at 54- 55. Cleveland believed he could safely operate the vehicle but acknowledged that based on his level of intoxication, he should not have been driving. See id., at 60. After driving a short distance, Cleveland stopped at a traffic light at the intersection of Baltimore Avenue and 60th Street. In an attempt to make sure that no pedestrians were crossing the street, he waited “30 to 40 seconds” before turning left. Id.at 64. Unfortunately, when he made the turn, Cleveland struck Spencer, who was properly in the crosswalk. See id., at 66-68. Despite believing that he was only traveling at two miles per hour, Cleveland hit Spencer hard enough that Spencer was knocked out of one of his shoes. See id., at 65; see also Trial Court Opinion, 6/24/2019, at 3. Cleveland got out of the car and helped Spencer to a bench while bystanders called 9-1-1. See N.T., 1/24/2019 a.m., at 67. Police arrived and after Cleveland told them that he hit Spencer, they transported him to the police station where he failed a breathalyzer test. Cleveland was subsequently - 11 - J-A19025-20 criminally charged with driving under the influence (“DUI”), but was not charged with theft or unauthorized use of a vehicle. See id., at 74. The investigating officer, Officer Laura Maynard, spoke with Tina after the accident. Tina indicated she told officers that Cleveland did not have permission to drive the car that night. See N.T., 1/23/2019 a.m., 72. When asked if Tina ever mentioned that Cleveland did not have permission to drive the car, Officer Maynard could not recall. See N.T., 1/23/2019 p.m., at 53. Nevertheless, she stated that if Tina had offered that information, it would have been in her crash report and it was not. See id. Later that night, Tina did not contact PJB to inform them about the accident. See N.T., 1/23/2019 a.m., at 72. The following day, Tina attempted to cover-up the incident to PJB.8 She told Saldana that the vehicle had been impounded due to unpaid parking tickets and that she required a letter from PJB granting her permission to recover the vehicle. See N.T., 1/22/2019 p.m., 16-20. Without investigating the issue, Saldana wrote the letter for Tina, and informed Fox about the situation, believing that Fox would do a follow up. See id., at 22. Tina also went into the office without telling anyone to obtain a second copy of the car registration that she kept in her office and took it to ____________________________________________ 8 Tina denied this characterization, admitting only that she “actively delayed” the investigation due to the emotional distress she suffered as a result of the situation. N.T., 1/23/2019 a.m., at 108-109. - 12 - J-A19025-20 the lot to get the car released from the impound. See N.T., 1/23/2019 a.m., at 80. Several days later, the PJB was notified about the crash when police officers showed up at the office. See N.T., 1/22/2019 p.m., at 20. Saldana told Fox, who then interviewed Tina for a lengthy period of time. See id., at 21-23, 63. Tina did not tell Fox how badly Spencer had been injured. See id., at 62-63, 66. Fox reviewed the police report, but did not speak with Cleveland based on his unavailability. See id., at 63. Following the investigation, Fox did not terminate Tina’s employment with the union, but merely suspended her for two weeks and revoked her company car privileges, because she “was a really good and valuable employee.” Id. Fox also stated that PJB did not fire Tina based on Tina’s assertion that she did not give Cleveland permission to drive the car. See id., at 70. PJB did not press charges against Cleveland for theft of the vehicle because Tina said he did not have permission and according to Fox, “there was no need to pursue it any further.” Id., at 72. Nevertheless, on October 23, 2014, Fox wrote an e-mail to Tina, copying Saldana and Minter, in which she stated: I would hope by now you realized Cleveland was driving the car and the events that unfolded were horrible by themselves, but your covering up what happened after the fact, your failure to report the incident and your active misrepresentations have overshadowed all the good work that you’ve done over the past couple of years N.T., 1/22/2019 p.m., at 74-75. - 13 - J-A19025-20 As a result of the accident, Spencer suffered catastrophic injuries, which included a skull fracture, multiple brain injuries, and hemorrhagic contusions. See Trial Court Opinion, 6/24/2019, at 9. Because these injuries have significantly affected his brain function, Spencer is permanently wheel chair bound, and unable to care for his basic daily needs. See id. He requires around the clock supervision and lives in a medical care facility. See id. His brain injuries have significantly affected his cognitive and executive functions. See N.T., 1/23/2019, at 22-40. Spencer also now suffers a seizure disorder and is incontinent. See id. at 24, 26. He was diagnosed with “personality change due to traumatic brain injury[,]” in which his judgment and insight are impaired. Id., at 19. On November 23, 2016, Spencer filed a complaint, claiming “PJB Defendants acted and/or failed to act through their agents, servants, employees, predecessors, successors, and/or workmen, and accordingly, any negligent act and/or omission committed by the Defendants’ agents, servants, employees, predecessors, successors, and/or workmen imposes liability on Defendants under the laws of agency, respondeat superior, and/or vicarious liability.” Complaint, 11/23/2016, at ¶ 5. Moreover, he alleged the accident and his resulting injuries were caused “by the, individual and/or collective, negligence, carelessness, and/or recklessness” of Cleveland, Tina, and PJB. 22. Spencer set forth the following causes of action: (1) negligence (including negligence per se) against Cleveland; (2) negligence against Tina; (3) - 14 - J-A19025-20 negligence/negligent entrustment against Tina; (4) negligence/negligent entrustment against PJB; and (5) negligent hiring, negligent retention, and negligent supervision against PJB. He demanded judgment, jointly and/or severally, against all three defendants. The allegations summarized in Spencer’s complaint are as follows. First, Cleveland owed a duty to operate the vehicle in safe and non-negligent manner and he breached that duty by driving under the influence and while his license was suspended. Id., at ¶¶ 29-33. Second, Cleveland was operating the car with the express or implied permission of Tina and PJB, and Tina was aware that Cleveland had access to the PJB car and that he used it on the night in question. Id., at ¶¶ 44-48. Third, because PJB owned the vehicle, it owed a duty to Spencer to ensure that its vehicle was operated a non- negligent manner. Id., at ¶ 54. Moreover, PJB knew that Tina used the company car in furtherance of its interest and activities as part of her employment, and knew or should have known of Tina’s carelessness and incompetence relating to her use of the company car. Id., at ¶¶ 59-63. Spencer claimed PJB knew or should have known that Tina would give permission to family members, including Cleveland, to operate the vehicle. Id., at ¶ 64-66. Lastly, Spencer asserted PJB failed to enforce its vehicle policy “despite actual or constructive knowledge that its employees, agents, and/or volunteer organizers used PJB vehicles for personal use and/or permitted family members to operate said vehicles.” Id., at ¶ 82. - 15 - J-A19025-20 Tina and PJB initially filed a joint answer with new matter and a cross- claim directed to Cleveland pursuant to Pennsylvania Rule of Civil Procedure 1031.1. See generally Defendants’ Philadelphia Joint Board Workers United, SEIU and Tina Gainer Johnson’s Answer to Plaintiff’s Complaint with New Matter and Crossclaim pursuant to Pa.R.C.P. 1031.1, 4/18/2017. Tina and PJB admitted that it was PJB’s vehicle and that Tina had possession of the vehicle due to the course and scope of her employment, but generally denied the allegations set forth in Spencer’s complaint, including that Cleveland had authorization or permission to use the car and that they were negligent and breached any duty of care. See id., at ¶¶ 1-86. In the new matter, Tina and PJB alleged, inter alia, that Spencer’s claims were barred or limited by the provisions of Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. § 7102 (“Fair Share Act”),9 and the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701, et. seq. See Defendants’ Philadelphia Joint Board Workers United, SEIU and Tina Gainer Johnson’s Answer to Plaintiff’s Complaint with New Matter and Crossclaim pursuant to Pa.R.C.P. ____________________________________________ 9 As will be discussed in more detail below, the Fair Share Act abolished joint and several liability in most tort cases. See 42 Pa.C.S.A. § 7102(a.1)(1). However, the statute provides for several exceptions to this general rule, including where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii). - 16 - J-A19025-20 1031.1, 4/18/2017, at ¶¶ 88-90. Pleadings and discovery were thereafter exchanged.10 On March 5, 2018, Tina and PJB filed separate motions for summary judgment. They both allege that while intoxicated, Cleveland operated the vehicle at issue without Tina’s or PJB’s permission or knowledge, and that Tina was outside the course and scope of her employment at the time of the accident. See Defendant Philadelphia Joint Board Workers United, SEIU’s Motion for Summary Judgment, 3/5/2018, at ¶¶ 39-42.11 Moreover, PJB contended there was no evidence to support Spencer’s claim of vicarious liability against PJB by pointing to the fact that Cleveland was not an employee of PJB, Tina was not acting within her scope of employment at the time of the accident, and Tina did not give Cleveland permission to drive the car. See id., at ¶¶ 46-57. PJB also claimed Spencer failed to put forth evidence supporting a negligent entrustment cause of action because it was not foreseeable that Cleveland would take the car without Tina‘s permission. See id., at ¶¶ 58-77. Lastly, PJB asserted that even assuming PJB and Tina owed a duty to Spencer, and Tina was negligent in leaving her keys in an area where they could be accessed by Cleveland, Cleveland‘s unauthorized and careless use of the car severed the chain of causation. See id., at ¶¶ 79-88. ____________________________________________ 10 During this time, Tina retained her own private counsel. 11 See also Motion for Summary Judgment of Defendant, Tina Gainer Johnson, 3/5/2018, at ¶ 23-36. - 17 - J-A19025-20 On April 27, 2018, after receiving Spencer’s response, the trial court denied both motions. The parties subsequently exchanged numerous motions in limine and answers. After the court issued decisions concerning these evidentiary issues, the matter proceeded to trial. A five-day jury trial began on January 22, 2019.12 Cleveland and Tina both took the stand in addition to Cheryle Spencer, Officer Maynard, Fox, Saldana, and Minter. The jury also heard the following: (1) the testimony of Susan Teresa Morris, Ph.D., a clinical neuropsychiatrist; (2) the testimony of Jody Masterson, RN, MSN, CRRN, a life care planner;13 and (3) the videotaped deposition of Guy Fried, M.D., an expert in physical medicine and rehabilitation medicine. The parties stipulated to Spencer’s past medical expenses, which were in the amount of $683,311.47. See N.T., 1/28/2019, at 107. At the close of Spencer’s case, Tina and PJB both moved for a directed verdict, claiming Spencer failed to make a prima facie case against them. See N.T., 1/24/2019 p.m., at 57-67. The court denied both motions. See id., at 60, 67. ____________________________________________ 12 Shortly before trial, the matter was reassigned to another trial judge. Cleveland represented himself at trial. 13On the morning of January 24th, the defendants opted to not call their medical expert, who was scheduled to give life expectancy testimony. Upon learning this, Spencer’s counsel sent a subpoena to that expert the morning that he was expected to be called to testify. The trial court quashed the subpoena as improper pursuant to Spino v. John S. Tilley Ladder Co., 696 A.2d 1169 (Pa. 1999). - 18 - J-A19025-20 It merits mention while instructing the jury, the court noted that Cleveland had admitted negligence in the case and that in terms of his liability, the jury was to determine what injury, if any, Spencer sustained that was caused by the accident and the amount of damages, if any, to which Spencer was entitled as compensation for such injury. See N.T., 1/28/2019, at 89. In terms of Tina and PJB, the court instructed the jury to determine whether they were negligent and if so, whether their individual negligence was the factual cause in bringing harm to Spencer. See id., at 99 . At the conclusion of the trial, the jury found all three defendants were negligent and their negligence were each factual causes of harm to Spencer. See Jury Verdict Form, 1/28/2019, at 1-2.14 The jury allocated liability as follows: Cleveland (36%), Tina (19%), and PJB (45%). The jury then awarded Spencer $683,311.47 for past medical expenses, $7,300,000 for future medical expenses, and non-economic damages of $5,000,000, for a total verdict amount of $12,983,311.47. After the court read the verdict, Spencer’s counsel stated it was his position that because PJB was Tina’s employer and their combined negligence ____________________________________________ 14 Those were the only questions posed to the jury on the verdict slip. Additionally, the verdict slip was pre-marked “Yes” for the question, “Was Defendant, Cleveland Johnson, negligent?” due to his criminal conviction and the negligence per se claim. See Trial Court Opinion, 6/24/2019, at 10 n.7. The questions as to whether his negligence was the factual cause of Spencer’s harm and if so, the percentage of liability he bore were left for the jury to decide. See id. - 19 - J-A19025-20 was greater than 60%, PJB should be liable for the entire damages award as to all three defendants under a provision of the Fair Share Act. See N.T., 1/28/2019, at 127. The court noted the request on the record, but did not agree to it. See id., at 128 . Tina and PJB both orally requested relief in the form of judgment notwithstanding the verdict (“JNOV”), which the trial court denied. See id., at 128-129 . Spencer filed a post-trial motion for delay damages pursuant to Pa.R.C.P. 238, which he alleged amounted to $1,005,228.44. Spencer alleged that the entire verdict was collectible against the PJB “based upon the jury’s finding that the [PJB] and its employee, Tina Gainer Johnson were more than 60% responsible.” Plaintiff’s Petition for Delay Damages Pursuant to Pa.R.C.P. 238, 2/4/2019, at 2 n.1. Spencer also filed a post-trial motion to mold the verdict. He submitted two bases to hold PJB jointly and severally liable for his harms and losses – one, PJB was directly and vicariously liable for the jury’s allocation of fault on Tina as her employer, and two, Section 1574 of the Motor Vehicle Code subjected PJB to liability. See Plaintiff’s Post-Trial Motion to Mold the Verdict, 2/7/2019, at ¶¶ 74-91. Moreover, he asserted that since the combined negligence of PJB and Tina exceeded 60%, PJB was responsible for the entire amount pursuant to the Fair Share Act. See id., at ¶ 92. Tina and PJB also filed post-trial motions, seeking relief in the form of JNOV, a new trial, and remittitur, or reduction of the amount of, the jury’s - 20 - J-A19025-20 verdict. See Motion for Post-Trial Relief of Defendant, Philadelphia Joint Board Workers United, SEIU, 2/4/2019; see also Motion for Post-Trial Relief of Defendant, Tina Gainer Johnson, 2/15/2019. Both Tina and PJB alleged that the verdict was against the weight of the evidence because Cleveland was unlicensed, intoxicated, and he admitted his actions were the sole contributing cause of the accident at issue. They contended it shocked one’s sense of justice that Cleveland as found to be only 36% liable. They also asserted remittitur is proper because Spencer did not proffer an expert to testify regarding his life expectancy at trial, and therefore, the verdict was excessive as it did not represent reasonable compensation for Spencer’s injuries. Tina separately argued there was insufficient evidence to support the jury’s finding of negligence against her because she alleged that Pennsylvania law did not permit a finding of negligence based on an allegation that she left car keys where they could be accessed by a spouse or any other competent adult. See Motion for Post-Trial Relief of Defendant, Tina Gainer Johnson, 2/15/2019, at ¶ 3. She stated the trial testimony unequivocally established that Cleveland took the keys without her permission or knowledge and therefore, she had not breached a duty to Spencer and her conduct was neither the factual nor the legal cause of his harm. See id. On April 23, 2019, the trial court denied Tina’s and PJB’s post-trial motions. That same day, the court entered the following order, disposing of Spencer’s motion to mold the verdict and his motion for delay damages: - 21 - J-A19025-20 AND Now, this 23rd day of April, 2019, upon consideration of [Spencer]’s Post-Trial Motion to Mold the Verdict …, it is hereby ORDERED and DECREED that said Motion is DENIED. As a matter of law, Defendant Philadelphia Joint Board is liable for compensatory damages only in the amount of $5,842,490.16.1 Furthermore, upon consideration of [Spencer]’s Motion for Delay Damages …, it is hereby ORDERED AND DECREED that said Motion is DENIED IN PART, GRANTED IN PART as follows: Pursuant to Rule of Civil Procedure 238, [Spencer] is entitled to delay damages only as calculated from August 17, 2017 to January 28, 2019, and only as calculated on the compensatory damages for which it is actually liable (see above).Thus the total amount of delay damages is $453, 872.69.2 Adding this amount to the compensatory damages amount above, the full amount of damages attributed to Philadelphia Joint Board is $6,296,362.85. The verdict shall be so molded. ___________________________ 1 45% of the total compensatory damages award of $12,983,311.47 under the jury’s apportionment of liability. 2 136 days of 2017 (from 8/17/17 to 12/31/17) divided by 365 (.0.3726), multiplied by $5,842,490.16 (yielding $2,176,911.83), multiplied by the interest rate (“IR”) of 4.75% = $103,403.31 for 2017 interest; 365 days of 2018, calculated as above on 5.5% IR = $321,336.96 for 2018 interest; and 28 days of 2019 (from 1/1/19 to 1/28/19), calculated as above on 6.5% IR = $29,132.42 for 2019 interest. Order, 4/23/2019, at 1-2. On May 17, 2019, the court entered judgment in favor of Spencer and against PJB in the amount of $6,296,362.85, against Tina in the amount of - 22 - J-A19025-20 $2,466,829.18, and against Cleveland in the amount of $4,673,992.13. Spencer, Tina, and PJB all filed notices of appeal.15, 16 Spencer raises the following issues on appeal: 1. Did the trial court err as a matter of law when it refused to mold the entire verdict against the [PJB] because its direct and vicarious liability (64%) exceeded the 60% threshold under the Fair Share Act? 2. Did the trial court err as a matter of law when it failed to mold the entire verdict against the PJB where the PJB is estopped from retracting its judicial admission that [Tina] acted within the course and scope of her employment “24/7” while possessing and controlling the PJB’s vehicle? 3. Did the trial court err as a matter of law when it failed to mold the entire verdict against the PJB when the PJB is legally responsible for the negligent acts or omissions of [Tina], regardless of whether the negligent conduct occurred within the scope of her employment or outside the course and scope of her employment? 4. Did the trial court commit an abuse of discretion in failing to mold the verdict to impose the full measure of delay damages against the [PJB]? Brief of Appellant, at 3-4. ____________________________________________ 15 After Spencer filed his notice of appeal, he filed an amended post-trial motion for delay damages on May 30, 2019. He alleged the delay damages were awarded only against the PJB, and not Tina and Cleveland, and therefore, he sought an amended order reflecting relief against all three defendants. The trial court did not rule on the amended motion because it no longer had jurisdiction pursuant to Pa.R.A.P. 1701. 16 The court did not order the parties to file concise statements pursuant to Pa.R.A.P. 1925(b). Nevertheless, the court issued a Pa.R.A.P. 1925(a) opinion on June 24, 2019. We also note that the Pennsylvania Association for Justice filed an amicus curiae brief on behalf of Spencer in this matter. - 23 - J-A19025-20 PJB presents the following issues on appeal: A. Did the trial court correctly deny [Spencer]’s request to mold the entire verdict against the [PJB] because there was no evidence to support a determination that [Tina] was acting in the course and scope of her employment at the time of the accident and the jury was never asked to make such a determination? B. Did the trial court correctly deny [Spencer]’s request to mold the entire verdict against the [PJB] where the jury separately assessed the direct and vicarious liability of [Tina] and the [PJB] and where there is no basis to mold the verdict under the Fair Share Act? C. Did the trial court correctly deny [Spencer]’s request to mold the entire verdict against the [PJB] based upon the Restatement (Second) of Torts, Section 317, or Section 1547(B) of the Motor Vehicle Code, because the jury separately assessed the liability of the parties and, therefore, there is no basis to mold the verdict under the Fair Share Act? D. Did the trial court correctly deny [Spencer]’s request to impose the full measure of delay damages as to the [PJB], where the rules of civil procedure and all relevant case law provide that delay damages are only to be awarded on the portion of the verdict attributable to each defendant? E. Did the trial court abuse its discretion in denying the request for a new trial where the jury attributed a greater percentage of liability to the owner of the vehicle involved in the accident than to the other defendants, including the intoxicated driver, who admitted negligence? F. Did the trial court err in denying the request for a remittitur? Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 2-3. Lastly, Tina raises the following claims: 1. Did the trial court err by denying Tina Johnson judgment JNOV or a new trial on all issues, as the verdict was not supported by - 24 - J-A19025-20 sufficient evidence to establish a prima facie case of negligence or causation against Tina Johnson, and, at a minimum, the verdict was against the weight of the evidence? 2. Did the trial court err by denying Tina Johnson a new trial on all issues because the verdict apportioning only 36% liability to Cleveland Johnson was against the weight of the evidence? 3. Did the trial court err by denying a new trial on damages, or alternatively, a substantial remittitur as the verdict of over $13 million was against the weight of the evidence and manifestly excessive, the verdict was not supported by the evidence, there was no expert medical testimony on life expectancy and other matters, and the “punitive” verdict violated basic fairness and due process, could only be the product of highly prejudicial errors, and shocks the conscience? Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 5. Based on the nature of the issues in Spencer’s appeal and PBJ’s and Tina’s cross-appeals, we have divided the arguments by subject matter. I. Vicarious Liability and the Fair Share Act Arguments The polestar of Spencer’s appeal is that Tina’s negligence should be imputed to PJB, as her employer, because she was purportedly acting in the course and scope of her employment at time of the accident. Therefore, Spencer contends PJB should be held vicariously liable for Tina’s actions. Based on this assertion, Spencer argues the court should have molded the verdict under a provision of the Fair Share Act that permits a plaintiff to recover solely from a single defendant, where the defendant has been found to be at least 60% responsible for the plaintiff’s injuries. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii) (“A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in - 25 - J-A19025-20 favor of the plaintiff and against the defendant for the total dollar amount awarded as damages … [w]here the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.”). In support of this central argument, Spencer first contends the court erred in failing to mold the verdict against PJB because PJB and Tina judicially admitted that Tina possessed the PJB car within the course and scope of her employment, and therefore, PJB is vicariously liable for Tina’s negligence. See Brief of Appellant, at 24-25. Additionally, he argues the trial court erred as a matter of law interpreting what constituted the “course and scope of employment” issue because it “focused on the fact that [Tina] had driven to her mother’s home for a family gathering and that the visit was not for union business as the only basis the jury could consider that she was not acting within the course and scope of employment.” Id., at 26. Spencer also asserts the trial court erred in instructing the jury to consider whether Tina acted within the course and scope of her employment. See id. Spencer contends that there was no issue regarding Tina’s conduct as within the course and scope of her employment: Tina’s “24 [hours]/7 [days a week] possession and control” of the car fell within the course and scope of employment “because (1) it was the kind of activity [Tina] had been retained to perform; (2) occurred within the time and space limits of her employment; and (3) was actuated, at least in part, to serve the PJB.” Id., at 27. - 26 - J-A19025-20 Spencer continues, in his second argument, that the court erred in failing to mold the verdict against PJB where the jury determined Tina was an agent of PJB and PJB negligently supervised Tina within the course and scope of her employment. See Brief of Appellant, at 28. Spencer noted the court charged the jury with Pennsylvania Standard Civil Jury Instruction 6.70 (Principal’s Negligent Hiring or Retaining of Employee or Independent Contractor),17 which is based on Restatement (Second) of Agency § 213.18 ____________________________________________ 17 In his brief, Spencer incorrectly cites to Pa. SSJI (Civ), §6.120, which is the former number for this jury instruction. Spencer did reference the correct jury instruction number in his post-trial motion to mold the verdict. See Plaintiff’s Post-Trial Motion to Mold the Verdict, 2/7/2019, at ¶ 85. 18 Section 213 provides: A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders of in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others: (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control. Restatement (Second) of Agency, § 213 (1958). The Pa. SSJI (Civ), §6.70 instruction - 27 - J-A19025-20 See Brief of Appellant, at 28. He states that because the court charged the jury on the question of PJB’s potential negligence within the course and scope of Tina’s employment, and the jury found PJB was liable on the issue, it was obvious that Tina’s liability flowed from her negligent control and possession of the vehicle within the course and scope of her employment as an agent of PJB. See id., at 29. In Spencer’s third issue, he offers a related argument contending that even if PJB and Tina did not concede that Tina’s conduct fell within the course ____________________________________________ is based on Restatement (Second) of Agency section 213, which has been recognized, although not formally adopted, by the Pennsylvania appellate courts. Heller v. Patwil Homes, Inc., 713 A.2d 105 (Pa.Super. 1998). The Pennsylvania Superior Court in Heller recognized that “an action for negligent hiring provides a remedy to injured third parties who would otherwise be foreclosed from recovery under the master-servant doctrine because the wrongful acts of employees in these cases are likely to be outside the scope of employment or not in furtherance of the master’s business.” Id. at 107 . The Superior Court in Heller cited the earlier Pennsylvania Supreme Court decision in Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968), which had also cited section 213. However, the Dempsey court had not formally adopted section 213, and its analysis of the employer’s liability was conducted solely under the Restatement (Second) of Torts section 317. Notably, in Heller, the Superior Court indicated that in order to assess liability under section 213, a “similar inquiry” to the one conducted by the Supreme Court in Dempsey under section 317 must be made in order to assess whether the defendant employer knew, or should have known, of the employee’s propensities. Pa. SSJI (Civ), §6.70, Subcommittee Note. - 28 - J-A19025-20 and scope of her employment, PJB is still vicariously liable for the full verdict because the incident involved the use of PJB’s chattel, the company car, and its negligent supervision of Tina. See Brief of Appellant, at 30-35. He states that Restatement (Second) of Torts § 31719 “provides the basis for holding an employer directly liable for conduct outside the course and scope of employment involving the use of the employer’s chattel.” Id., at 30. Moreover, Spencer contends that both Restatement (Second) of Torts § 317 and Restatement (Second) of Agency § 213 impose a duty on an employer to ____________________________________________ 19 Section 317 provides: A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Restatement (Second) of Torts, § 317 (1965). - 29 - J-A19025-20 exercise reasonable care in selecting and supervising employees. See id., at 31. Spencer states that to prevail on a claim for negligent supervision, “there must be some evidence that had the employer been more diligent in performing a background investigation of the employee or better supervising the employee, the tortious conduct could have been prevented.” Id. (citation omitted). Based on this notion, he points to the following evidence: (1) there was no dispute Tina used the chattel of her employer; (2) at trial, PJB conceded it did not supervise Tina’s use of the car; and (3) the jury concluded that Tina’s actions created a risk of harm to others. See id. Spencer contends PJB was still vicariously liable based on its failure to supervise Tina’s use of the car in a proper manner. See id. Furthermore, he states the inquiry to determine liability under Restatement (Second) of Torts § 317 and Restatement (Second) of Agency § 213 is similar and therefore, the result is the same whether or not Tina was acting within or outside the scope of employment as PJB is legally responsible for her conduct under either scenario. See id., at 32-33. Next, Spencer maintains joint and several liability under the Fair Share Act applies to the present matter based on the theory that Tina was acting within the course and scope of her employment and PJB was vicariously liable for her actions. In this argument, he contends the Fair Share Act does not immunize employers for the negligence of its employees. See Brief of Appellant, at 35. Specifically, he asserts Tina’s liability is attributable to PJB, - 30 - J-A19025-20 and therefore, pursuant to Subsection 7102(a.1)(3)(iii) language of the Fair Share Act, PJB should be fully liable for the entire judgment. See id., at 37. Relying on Livingston v. Greyhound Lines, Inc., 208 A.3d 1122 (Pa. Super. 2019), Spencer also states the Fair Share Act “did not expressly overturn established precedent regarding an employer’s vicarious liability for acts within the course and scope of employment[,]” and “it did not extinguish an employer’s liability for acts inside or outside the scope of employment with the employer’s chattel which are reasonably foreseeable and are the result of negligent supervision.” Brief of Appellant, at 36. Moreover, Spencer contends the Fair Share Act “does not preclude a trial court from molding the verdict when an employer’s negligence is less than 60%.” Id. Pointing again to Livingston, he states a panel of this Court held as a matter of law that the employer in that case “was liable for the full measure of the plaintiff’s damages based on vicarious liability.” Brief of Appellant, at 36. In response to Spencer’s arguments, PJB counters that the trial court correctly denied Spencer’s request to mold the entire verdict against it because there was no evidence to support a determination that Tina was acting in the course and scope of her employment. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 12. PJB states Spencer waived this argument because he never asked that the jury make any specific findings of fact as to whether Tina was acting with the - 31 - J-A19025-20 course and scope of her employment. See id. PJB further asserts that even if the trial court were to decide the course and scope of employment issue rather than the jury, Spencer could not prove that Tina was acting within the course and scope of her employment at the time of the accident. See id., at 13. In this regard, PJB states that Spencer cannot demonstrate it made any judicial admissions that Tina acted within the course and scope of her employment at all pertinent times, and Spencer’s counsel never asked the court to instruct the jury that such an admission had been made. See id.20 Moreover, PJB notes that as for the jury instructions given by the court, Spencer did not object to any of these instructions or the questions on the verdict sheet. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 16-17. PJB also states the court correctly determined that the Fair Share Act applies and mandates that it is only responsible for that portion of the damages attributable to its percentage of liability as determined by the jury. See id., at 19. Our review of a trial court’s denial of a motion for post-trial relief is limited: ____________________________________________ 20 PJB further alleges that the “on call” description regarding the nature of Tina’s job was not a judicial admission, and “this evidence does not support a determination that every action that [Tina] performed 24 hours per day, 7 days per week was considered to be within the course and scope of her employment.” Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 14. Rather, PJB states Tina was “on call” but engaged in non-work related activities at the time of the accident that did not serve the interests of PJB. Id. - 32 - J-A19025-20 Our review is limited to determining whether the trial court abused its discretion or committed an error of law. An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. If the alleged mistake concerned an error of law, we will scrutinize for legal error. On questions of law, our standard of review is de novo and our scope of review is plenary. Zaleppa v. Seiwell, 9 A.3d 632 , 635 (Pa. Super. 2010) (citations and quotation marks omitted). To resolve the question of how the Fair Share Act applies here, we must examine the precise nature of the claims and defenses presented in the trial court. To prove his negligence claim, Spencer was permitted to proceed on theories of direct and vicarious liability. The concepts of vicarious and direct liability are central to the arguments presented by the parties: A plaintiff may pursue a negligence action against a defendant on the theory of direct liability or vicarious liability. Under a direct liability theory, a plaintiff seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing directly to the plaintiff. Vicarious liability, on the other hand, is a policy-based allocation of risk. Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it. Once the requisite relationship (i.e., employment, agency) is demonstrated, the innocent victim has recourse against the principal, even if the ultimately responsible agent is unavailable or lacks the ability to pay. Green v. Pa. Hosp., 123 A.3d 310 , 316 (Pa. 2015) (citations and quotation marks omitted). “Where a corporation is concerned, the ready distinction - 33 - J-A19025-20 between direct and vicarious liability is somewhat obscured because we accept the general premise that the corporation acts through its officers, employees, and other agents. The corporation, as principal, assumes the risk of individual agents’ negligence under the theory of vicarious liability.” Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 , 597 (Pa. 2012) (citations omitted). Under Pennsylvania law, in order to hold an employer vicariously liable for the negligent acts of its employee, these acts must be committed during the course of and within the scope of the employment. [Generally,] [t]he conduct of an employee is considered within the scope of employment for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Ludwig v. McDonald, 204 A.3d 935 , 943 (Pa. Super. 2019) (citations and quotation marks omitted). See also Restatement 2d of Agency, § 228. “Generally, the scope of [an employee’s] employment is a fact question for the jury. Where the facts are not in dispute, however, the question of whether … the [employee] is within the scope of this [] employment is for the court.” Ferrell v. Martin, 419 A.2d 152 , 155 (Pa. Super. 1980). See also Ludwig, 204 A.3d at 943. Additionally, the theory of negligent entrustment is relevant to our review: - 34 - J-A19025-20 It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. ... However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through negligent entrustment. Phillips v. Lock, 86 A.3d 906 , 913 (Pa. Super. 2014) (citation omitted). See also Restatement (Second) of Torts § 308. Here, the trial court found that Spencer’s Fair Share Act argument depended on the premise that PJB was vicariously liable. See Trial Court Opinion, 6/24/2019, at 20. The court rejected this premise because the jury never made a specific finding to that effect, and the court did not conclude that the evidence supported such a finding. See id. The trial court further explained its rationale as follows: Firstly, we note that, despite [Spencer]’s contention that the jury was free to conclude that [Tina] was acting as an employee/agent, and also that she had consented to [Cleveland] driving, the jury simply did not make any specific findings as to either of those issues. The verdict slip, which was drafted with the input of all counsel, had only two questions regarding [Tina]: “Was Defendant Tina Gainer Johnson negligent?” and “Was Defendant Tina Gainer Johnson’s negligence a factual cause of harm to Plaintiff Keith Spencer?” (See verdict slip Questions 3 and 4). There were no specific queries addressing whether [Tina] was acting as a PJB’s agent at the time of the incident, or whether she had authorized [Cleveland] to use the vehicle. [Spencer]’s counsel approved the verdict form as it was given to the jury. The Complaint describes direct negligence/negligent entrustment claims against [Tina] and against PJB, though only PJB was averred to have acted in the course of its employment relationship (“More specifically, the acts and/or omissions of PJB, by and through, Defendant Tina Gainer Johnson or Cleveland Johnson - 35 - J-A19025-20 which constituted negligence, carelessness, and recklessness …..” [Compl. ¶ 56]). As [Spencer] himself admitted in his Motion to Mold the Verdict, “whether a person acted in the course and scope of their employment is ordinarily a question for the jury.” As [Spencer] did not put those specific questions to the jury, the jury did not answer them, and it is not clear from the verdict slip whether they found [Tina] directly liable, directly and vicariously liable, or only vicariously liable. The full sum and substance of the jury’s verdict is the verdict as read and affirmed in Court. The jury’s verdict simply did not include the factual findings [Spencer] needs to say that, after a trial in which [Tina] and PJB were tried as wholly distinct parties with separate defenses and different legal counsel, the jury intended to hold PJB fully liable for [Tina]’s negligence. Furthermore, even if it were appropriate for this Court to decide these questions of fact in the place of the jury, we find it highly unlikely [Spencer] could prevail in arguing that [Tina] was acting within the course and scope of her employment during the incident. It is undisputed that [Tina] was making a family visit at the time of the incident, and she admitted that her driving the car to her mother’s house was personal, rather than business-related. Furthermore, the visit was for recreational purposes, and [Tina] was not normally required by her job to perform such visits. Furthermore, there was no evidence that her visit was actuated, to any degree, by her performance of her work as a union organizer. Therefore, we do not see that there would have been sufficient basis for the jury to find, if it had been specifically queried, that [Tina] was acting in the course and scope of her employment such that PJB must bear vicarious liability for her negligence in permitting [Cleveland] to use the car. Trial Court Opinion, 6/24/2019, at 20-22 (some citations and quotation marks omitted). We are constrained to disagree with the trial court’s rationale based on the following. First, we conclude there was sufficient evidence to support a finding that Tina’s acts were committed during the course of and within the scope of her employment. It is uncontested that Tina and Cleveland were - 36 - J-A19025-20 attending a family gathering at the time of incident. She testified that the purpose of driving the company car to her mother’s house was personal, rather than related to the business of PJB. See N.T., 1/23/2019 a.m., at 47. Furthermore, Tina’s actions were not of the kind and nature that she was employed to perform, she was not acting substantially within the authorized time and space limits of her employer, and her acts were not actuated, in part, by a purpose to serve PJB. See Ludwig, 204 A.3d at 943. None of these undisputed facts alter another undisputed fact: that Tina was on-call “24/7” for her job with PJB. Here, as summarized by the trial court, PJB considered these vehicles “absolutely essential to the work of organizers and business representatives” since “employees could be required to drive out to job sites at any hour of day or night, twenty-four hours a day.” Trial Court Opinion, 6/24/2019, at 5. See also N.T., 1/23/2019 a.m., at 17 (Tina testifying that they were “24-hour workers”). Further, it is undisputed that Tina was continuously on-call and that this was the reason PJB supplied her with a company vehicle. Undoubtedly, the vehicle was provided so that while Tina was at home, engaged in personal, not union, business, she could respond immediately by driving directly to a worksite to respond to union needs. However, nothing in the record indicates that Tina was excused from being on-call if she left her home for non-union reasons. At any time when Tina was not explicitly off-duty (for example, on vacation), she was expected to drive directly from where she was to a - 37 - J-A19025-20 worksite. It was expected that she have the company car nearby when she was on-call, and would therefore use the company car while she was on-duty. This is further supported by the undisputed fact that Tina and Cleveland had only the company car for their personal use, having sold their other car when Tina received the company car. As we stated above, the trial court found that PJB supplied the cars because “employees could be required to drive out to job sites at any hour of day or night, twenty-four hours a day.” Trial Court Opinion, 6/24/2019, at 5. Moreover, it is telling that PJB did not have a written employee handbook at that time and did not provide their vehicle usage policy to employees in writing. See id., at 5. Rather, they alleged that at seminars and meetings, they provided verbal instructions to employees that the only permissible personal use of company cars was for commuting to and from work and job sites. See id. Nevertheless, there was no written documentation signed by Tina to show that she had ever received the policy, and PJB could not provide any documentation that Tina attended those meetings where the policy was provided. See id., at 5-6; see also N.T., 1/22/2019 p.m., at 47. Furthermore, Tina testified that PJB never informed her of the vehicle usage policies. See N.T., 1/23/2019 a.m., at 21-22. Under these circumstances, we agree with Spencer that the jury could have reasonably concluded that Tina was acting in the course and scope of her employment when she drove the company car to her mother’s house on - 38 - J-A19025-20 the day of the accident. Underscoring the undefined nature of Tina’s work obligations, the accident occurred on a Thursday. There was no evidence presented at trial which conclusively disputed that Tina worked the day of the accident. When asked at trial whether she worked on that Thursday, Tina responded that she could not definitively say. See N.T., 1/23/2019 a.m., at 19-20. Additionally, the evidence at trial did not decisively establish Tina was aware of the union’s motor vehicle policy. Accordingly, the jury could have found that PJB was vicariously liable for the negligent acts of Tina. Likewise, the jury could have also concluded that PJB negligently entrusted the vehicle to Tina where it failed to conduct to a background check on Tina and failed to monitor her vehicle usage. See N.T, 1/22/2019 p.m., at 51-53, N.T., 1/23/2019 p.m., at 17, 21-22. Moreover, the jury could have inferred that because of these failures, PJB should have known that Tina intended to use the car in such a manner as to create an unreasonable risk of harm to others, i.e., allowing her non-licensed husband to drive the company car, the only car that was in the couple’s possession. See Phillips, 86 A.3d at 913 . This leads us to the verdict slip. Contrary to the trial court’s determination, while the verdict slip did not set forth specific findings as to vicarious liability, we cannot conclude the lack of special interrogatories should read to narrow the verdict in favor of Spencer. Instead, our research leads us - 39 - J-A19025-20 to conclude that any ambiguity in the verdict is to be construed in Spencer’s favor as the verdict winner. We begin with the Pennsylvania Supreme Court’s decision in Halper v. Jewish Family & Children’s Services, 963 A.2d 1282 (Pa. 2009). In Halper, the plaintiffs filed a civil action against the defendant, alleging two theories of negligence. The jury returned a general verdict finding the defendant was negligent, but the jury was not asked to differentiate between the two theories of negligence. The verdict was problematic because the plaintiff was only able to recover under one of those theories. In addressing the matter, the Halper Court adopted the “general verdict rule,” which provides that “when the jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the verdict will not be reversed on appeal.” Id., at 1289. It further stated that it adopted and applied the rule because it would not shift the burden to the plaintiffs due to the defendant’s failure to request a special verdict slip, and the evidence was clearly sufficient to support at least one of the plaintiffs’ two theories of liability. See id. More recently, in Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225 (Pa. 2019) (“Shiflett II”), the plaintiff couple sued the hospital for negligence in connection with injuries the wife sustained while in the hospital for knee surgery. The plaintiffs presented three claims of negligence: (1) vicarious liability related to a post-surgical unit (“PSU”) nurse-employee; - 40 - J-A19025-20 (2) vicarious liability related to a transitional skills unit (“TSU”) nurse- employee, and one for corporate liability associated to events that occurred in the PSU. The verdict sheet included general questions of negligence regarding the nurses and the hospital. See id., at 229-231. The verdict sheet then provided that if the jury find either nurse or the hospital was negligent, then it should determine the amount of damages. See id., at 231. Neither party’s counsel raised objections. The jury found that the TSU nurse and the hospital were negligent and awarded damages of over two million dollars. The hospital filed a post-trial motion, in which it did not challenge the unallocated nature of the damages, but reiterated a claim it had previously raised that the vicarious liability cause of action, relating to the TSU nurse, was improper because it allowed the time- barred claim to be submitted to the jury.21 See id. A panel of this Court agreed and determined that the vicarious liability (as to the TSU nurse) claim was time-barred and should not have been submitted to the jury. Shiflett v. Lehigh Valley Health Network, Inc., 174 A.3d 1066 , 1086 (Pa. Super. 2017) (“Shiflett I”). The panel then addressed the question of whether the case would have to be remanded. The panel determined that because the verdict sheet did not itemize the award of ____________________________________________ 21The plaintiffs raised the claim regarding the TCU nurse for the first time in their second amended complaint, which was filed more than two years after the incident occurred, thereby invoking the statute of limitations. - 41 - J-A19025-20 damages by claim, it was impossible to ascertain whether a portion of the award was attributable to the finding of negligence on the time-barred claim. See id., at 1092. The panel then concluded that “[i]t is impossible to determine from the verdict sheet (which did not break down damages by claim) whether all of the damages awarded by the jury were caused by [the wife’s] fall in the PSU, or whether some portion of those damages was the result of the negligence found to have taken place in the TSU.” Id. Finding “the general verdict rule” in Halper governed, the Supreme Court reversed the panel’s decision and held that “[w]here a plaintiff has at least one viable theory of recovery supported by competent evidence, a new trial will not be awarded where the issue complained of on appeal would have been avoided but for the defendant’s failure to request a special interrogatory on the verdict sheet that would have resolved the issue.” Shiflett II, 217 A.3d at 234. The Shiflett II Court further stated: As the Superior Court itself recognized in its parenthetical remark, a special interrogatory on the verdict sheet allocating damages by claim would have eliminated this quandary, as it would have clarified whether the jury’s award of damages was for the [h]ospital’s corporate negligence in the PSU, the [h]ospital’s vicarious liability for [nurse-employee]’s negligence in the TSU, or some combination of both. The [h]ospital’s failure to request a special interrogatory allocating damages by claim, despite multiple opportunities to do so, results in a waiver of any right to a new trial. Id., at 235 (footnote omitted). - 42 - J-A19025-20 The Supreme Court noted that the Superior Court panel’s decision to grant a retrial on damages was based on an assumption that the plaintiffs suffered separate and distinct injuries from the hospital’s corporate negligence in the PSU and its vicarious liability in the TSU. See id. However, the Supreme Court determined that the evidence at trial was “entirely consistent” with a finding that the plaintiffs suffered a single injury caused by the hospital’s corporate negligence in the PSU. Id. Moreover, the Court stated that the hospital “never introduced any evidence at trial to support a determination that the [plaintiffs] suffered separate and distinct injuries from its alleged negligence in the PSU and in the TSU.” Id. The Court concluded: As such, it was within the jury’s province, based upon the above- referenced evidence, to find that while [the nurse-employee] was negligent in the TSU, this negligence did not result in any additional damages not already caused by the [h]ospital’s corporate negligence in the PSU. Because the [plaintiffs] have a remaining viable theory of liability (corporate negligence) and a damage award that may be fully attributable to that theory of liability, the jury’s verdict must stand. Id., at 235–236. Lastly, the Court reiterated that like in Halper, it “will not shift to a plaintiff the burden of a new trial based upon a defendant’s failure to request a clarifying special interrogatory.” Id., at 236 (footnote and citation omitted). While the issue here does not include a request for a new trial, we find the same principles in Halper and Shiflett II can be applied. As noted above, Spencer pursued multiple theories of negligence against PJB and Tina, including, but not limited to, negligent entrustment and vicarious liability. - 43 - J-A19025-20 At trial, the court charged the jury, in relevant part, as follows: I will now explain what negligence is. A person, meaning [Tina] and also [PJB] when I say person, must act in a reasonably, careful manner to avoid injuring or harming others. The care required varies according to the circumstances and the degree of danger at a particular time. You must decide how a reasonably, careful person would act under the circumstances established by the evidence in this case. A person or entity who does something that a reasonably, careful person would not do under the circumstances is negligent. A person also can be negligent by failing to act. A person who fails to do something that a reasonably, careful person would do under the circumstances is negligent. In order for [Spencer] to recover in this case, a defendant’s negligent conduct must have been a factual cause in bringing about harm. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. To be a factual cause the conduct must have been the actual real factor in causing the harm, even if the result is unusual or unexpected. A factual cause cannot be an imaginary or a fanciful fact having no connection or only an insignificant connection with the harm. To be a factual cause a defendant’s conduct need not be the only factual cause. The fact that some other causes concur with the negligence of a defendant in producing an injury does not relieve a defendant from liability as long as its own negligence is a factual cause of the injury. Sometimes a person’s negligent conduct combined with other circumstances or other people’s conduct can cause an injury. When a defendant’s negligent conduct combined with other circumstances or the conduct of other persons, the defendant is legally responsib[le] if his or her conduct was one of the factual causes of the harm. In such a case a defendant is fully responsible for the harm suffered by the plaintiff regardless of the extent to which a defendant’s conduct contributed to the harm. Pennsylvania law presumes that the driver of a vehicle has the vehicle owner’s permission to drive the vehicle. In this case [Tina and PJB] offered evidence that they did not give [Cleveland] permission to drive the vehicle. If you find this testimony - 44 - J-A19025-20 believable, then you may find that one or both did not give [Cleveland] permission to drive the vehicle. A person should not authorize or permit his or her vehicle to be driven by someone he or she knows or should have known would create a [un]reasonable risk of harm to others while operating the vehicle or was not licensed to drive the vehicle. The defendant [PJB] is a corporation and can only act through its officers, agents, and employees. Any act or admission of an officer, agent, or employee of the corporation performed within the scope of his or her employment is chargeable to the corporation. The issue here for you to decide is whether [Tina] as a union representative of the defendant corporation was acting as an employee of the corporation and within the scope of her agency or authority. If you find her acts and the situation here involved were such as are customarily performed by one holding a possession of a similar nature and that they … pertain to the ordinary business of the corporation, you may conclude that she was authorized to perform such acts and that the corporation is liable for the consequences of such acts. If you find that she acted without the authority or beyond the scope of her authority but find that her acts were later ratified by the corporation either expressly or either by accepting and retaining the benefits of such acts, you may find the corporation responsible for the consequences of such acts. A person, that is the [PJB], conducting activ[ity] through servants or other agents is liable for harm to others if the person is either negligent or reckless. First, an employee, an improper person in work involving risk of harm to others. And second, supervising the activity. Or third, in permitting or failing to prevent negligence or other wrongful conduct by a person whether or not his or her servants or agents or people is under her or her control. In determining whether the [PJB] was negligent or reckless in hiring, supervising, or retaining [Tina], you should consider whether the [PJB] knew or should have known that [Tina] possessed certain characteristics or propensities in behavior or conduct that rendered her unfit or incompetent to work in a position with the [PJB]. - 45 - J-A19025-20 … As I’ve told you, in order to recover in this case against one or more of the defendants, you must find that the conduct of the defendant whom you have found negligent was a factual cause in bringing about the plaintiff’s damages. If you find that a defendant cause distinct damage from those of another defendant, you must decide what percentage of the plaintiff’s damages was caused by that defendant’s negligence. N.T., 1/28/2019, at 100-104, 109. No one objected to these jury instructions. Notably, the instructions informed the jury that the jury was to decide the issue of whether Tina was acting as an employee of PJB and within the scope of her agency or authority. Furthermore, the instructions imparted that PJB could be found responsible even if Tina’s acts were not within the course and scope of employment if the jury found that PJB subsequently ratified her actions. Likewise, the court’s instructions touched upon both cumulative and independent theories of negligence regarding PJB and Tina. Accordingly, the jury could infer PJB’s and Tina’s negligence based on individual or vicarious liability theories. The verdict slip form revealed a generalized jury determination. The verdict slip had only two special interrogatories regarding Tina: “Was Defendant, Tina Gainer Johnson negligent?” and if so, “Was Defendant, Tina Gainer Johnson’s negligence a factual cause of harm to Plaintiff Keith Spencer?” Jury Verdict Form, 1/31/2019, at 1. Likewise, the slip asked the jury the same two questions regarding PJB– “Was Defendant Philadelphia Joint Board negligent?” and if so, “Was Defendant, Philadelphia Joint Board’s - 46 - J-A19025-20 negligence a factual cause of harm to Plaintiff Keith Spencer?” See id., at 2. We reiterate that the verdict slip was drafted with the consultation of all counsel. Moreover, once the jury’s verdict was read in open court, the parties did not request a clarification or ask for any additional special interrogatories. Given the inherent ambiguity in the verdict slip, the issue is which party suffers from the failure to take steps to clarify the verdict slip. Pursuant to Halper and Shiflett II, we cannot agree with the trial court that Spencer should be precluded from recovery under the theory of vicarious liability simply because the jury was not asked to make specific findings that Tina was acting as an employee/agent. The jury returned a general verdict in favor of Spencer. A special interrogatory on the verdict sheet indicating whether Tina was acting within the course and scope of her employment would have eliminated the predicament we are now faced with, as it would have clarified whether the jury’s award of damages was for PJB’s vicarious liability for Tina’s negligence or its own negligence. However, we cannot disregard the fact that Spencer was the verdict winner and he receives the benefit of doubt in terms of these ambiguities in the verdict sheet. PJB’s failure to request a special interrogatory allocating damages based on individual or vicarious liability, despite several opportunities to do so, constitutes waiver. As indicated in Halper and Shiflett II, we will not shift the burden based upon PJB’s failure to request a clarifying special interrogatory. - 47 - J-A19025-20 Therefore, we constrained to conclude the trial court erred in failing to grant Spencer’s motion to mold the verdict pursuant to the Fair Share Act, as the jury’s general verdict warranted a finding that PJB was vicariously liable for Tina’s negligence and therefore, the theory of joint and several liability applied. PJB’s and Tina’s combined liability exceeded the 60% liability threshold. See 42 Pa.C.S.A. § 7102(a.1)(3)(iii). Accordingly, we reverse the court’s denial of Spencer’s post-trial motion and remand for further proceedings as PJB and Tina remain jointly and severally liable for Spencer’s injuries. Nevertheless, assuming arguendo that the jury’s verdict did not demonstrate PJB was vicariously liable, we would have found the court erred in failing to grant the motion to the mold the verdict as the question of whether the Fair Share Act applies to the present matter remains. In determining the scope of the Fair Share Act, we must always remember that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). See also Green v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 158 A.3d 653 , 662 (Pa. Super. 2017). “The best indication of legislative intent is the plain language of the statute.” Roverano v. John Crane, Inc., 226 A.3d 526 , 535 (Pa. 2020) (quotation marks and citations omitted). Moreover, “[w]e review a question of statutory interpretation de novo, and the scope of - 48 - J-A19025-20 our review is plenary.” Frempong v. Richardson, 209 A.3d 1001 , 1009 (Pa. Super. 2019). To understand the intent behind the Fair Share Act, we must understand what motivated the legislature to enact it. For most of the history of this Commonwealth, our courts adhered to the legal doctrine that if a plaintiff’s negligence contributed even one percent to his injuries, the plaintiff was completely barred from holding any other party liable. See Elder v. Orluck, 515 A.2d 517 (Pa. 1986). The Fair Share Act’s predecessor, the Comparative Negligence Act22 replaced the harsh common law doctrine of contributory negligence. The comparative negligence statute “provide[d] a more reasonable approach to issues of liability and insure[d] that an injured plaintiff will recover against a negligent defendant or defendants even though plaintiff’s negligence contributed to the accident in an equal or lesser way[,] ”but the plaintiff’s recovery was reduced based on his negligence. See id., at 524. Moreover, the former statute provided that, under the rule of joint and several liability, the plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. See Jazbinsek v. Chang, 611 A.2d 227 , 230 (Pa. Super. 1992). ____________________________________________ 22 See July 9, 1976, P.L. 855, No. 152. - 49 - J-A19025-20 In 2002, the legislature amended the Comparative Negligence Act to modify its expansion of joint and several liability into cases involving contributory negligence. See Harsh v. Petroll, 887 A.2d 209 , 218 n.19 (Pa. 2005). See also Act of June 19, 2002, P.L. 394. However, the amendment was subsequently found to be unconstitutional as violative of the single- subject rule. See DeWeese v. Weaver, 880 A.2d 54 (Pa. Cmwlth. 2005). The statute was thereafter re-enacted as the Fair Share Act, effective June 28, 2011. We now turn to the relevant language of Fair Share Act: (a) General rule. —In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. (a.1) Recovery against joint defendant; contribution. (1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2). (2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability. - 50 - J-A19025-20 42 Pa.C.S.A. § 7102 (emphasis added). Immediately, we note the structure of the statute. Subsection (a) provides the “general rule” that a plaintiff’s contributory negligence is not a complete bar to recovery. Instead, the “general rule” provides for two scenarios based upon comparing the plaintiff’s negligence with that of the defendants. First, if the plaintiff’s negligence was a greater cause of her injuries than the defendants’ negligence, then the plaintiff’s recovery is barred. Second, if the defendants’ negligence was a greater cause of the plaintiff’s injuries than the plaintiff’s own negligence, then the plaintiff’s recovery against the defendant will be reduced in proportion to the amount of the plaintiff’s negligence. Importantly, neither scenario deals with the circumstances present here, where there has been no allegation of a plaintiff’s own negligence, let alone no jury finding of contributory negligence. The statute then proceeds to subsection (a.1). Read in context, this subsection only applies when the plaintiff has overcome the obstacles to recovery set forth in section (a). Significantly, subsection (a.1) begins with the phrase, “[w]here recovery is allowed against more than one person …" (emphasis added). This limited construction is also supported by the history of the Comparative Negligence Act. “Joint and several liability as a principle of recovery for an indivisible injury caused by multiple tortfeasors lies at the very heart of the common law of tort, and also has a solid foundation in - 51 - J-A19025-20 Pennsylvania's statutory law.” Carrozza v. Greenbaum, 916 A.2d 553 , 565 (Pa. 2007) (citations omitted). “The policy justification for allocating 100 percent liability (from the plaintiff's perspective) to one who bears only, say, 40 percent of the responsibility is that, as between an innocent injured party and a culpable defendant, the defendant should bear the risk of additional loss.” Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478 , 489 (Pa. 2009) (citation omitted). The Comparative Negligence Act provided “a method for determining how much responsibility should be allocated to the defendant in light of the plaintiff's conduct.” Krentz v. Consol. Rail Corp., 910 A.2d 20 , 28 (Pa. 2006) (emphasis added). Therefore, the legislature, in enacting the Comparative Negligence Act, merely sought to modify which parties bear the risk of additional losses in cases where the plaintiff was not wholly innocent. In contrast, there is no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent. “We should be and are reluctant to disturb the elemental doctrine of joint and several liability in the absence of express direction from the legislature.” Carrozza, 916 A.2d at 565–566 (citation omitted). The subsequent enactment of the Fair Share Act does not alter our conclusion. As noted, the “general rule” of the Fair Share Act continues to be focused on cases where a plaintiff is found to have negligently contributed to her own injuries. The addition of subsection (a.1) does not clearly or explicitly - 52 - J-A19025-20 expand the scope of the Fair Share to include cases where the plaintiff has not been found to be contributorily negligent. Therefore, for the Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case. Here, as noted above, Spencer’s fault was never alleged or raised during litigation, an instruction was not provided to the jury on the matter, nor was a question about Spencer posed to the jury on the verdict form. Rather, it was an undisputed fact that Spencer was “lawfully walking in the crosswalk at the time of the accident[,]” and his actions were not a contributing factor to the incident. Trial Court Opinion, 6/24/2019, at 3. Moreover, Tina and PJB never raised a defense at trial that Spencer may have contributed to his injuries. As such, we decline to disregard the plain language of the statute. The Fair Share Act concerns matters where a plaintiff’s own negligence may have or has contributed to the incident; that set of circumstances does not apply to the present matter. While this case involved multiple tortfeasors, it would have been improper to apply a statute that addresses the scenarios where a claimant may have contributed to the accident and the possible preclusion of recovery based on a plaintiff’s own negligence. Therefore, as an alternative basis, we would have concluded the trial court erred in applying the Fair Share Act to the present matter because Spencer was never alleged or found to have contributed to the accident. Accordingly, PJB and Tina would still be jointly and severally liable for Spencer’s injuries. See Baker v. ACandS, 755 A.2d 664 , 669 (Pa. 2000) - 53 - J-A19025-20 (under the theory of joint and several liability, a plaintiff “may recover the entire damages award from only one of the joint tortfeasors.”). II. Section 1547 Argument As an alternative argument, Spencer claims the court erred in failing to mold the entire verdict against PJB because it is jointly and severally liable pursuant to a section of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. § 1574.23 See Brief of Appellant, at 37. Spencer points to Shomo v. Scribe, 686 A.2d 1292 (Pa. 1996), for the principle that Section 1574 imputes joint and several liability on someone who commits a Section 1574 violation with the driver for any damages caused by the driver’s negligence. See Brief of Appellant, at 38. Shomo provides that “for effective enforcement of the summary offense provision of [S]ection 1574(a), it must be shown that the owner or controller knew, or had reason to know, at the time he entrusted his vehicle to another, that the driver he was authorizing or permitting to drive ____________________________________________ 23 Section 1574 of the Pennsylvania Motor Vehicle Code provides: (a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven. (b) Penalty. — Any person violating the provisions of subsection (a) is guilty of a summary offense and shall be jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle. 75 Pa.C.S.A. § 1574. - 54 - J-A19025-20 his vehicle was unlicensed.” Shomo, 686 A.2d at 1295 (citations omitted). Spencer states both PBJ and Tina are jointly and severally liable because: (1) Tina either directly or indirectly permitted Cleveland to drive the car while intoxicated and without a license; and (2) PJB permitted Cleveland to operate the vehicle by not enforcing its policies and failing to supervise Tina’s use of the car. See Brief of Appellant, at 39. PJB responds by claiming Section 1574 does not apply to the case because the union and Tina offered evidence that they did not give Cleveland permission to drive the car. See id., at 24. Moreover, PJB states that evidence established that it provided the vehicle for the sole use of Tina and she was aware that she was prohibited from allowing any other individual to use the car. See id. PJB asserts that as a result, there cannot be a finding that it was in violation of Section 1574. Furthermore, PJB contends the Fair Share Act specifically sets forth the limited exceptions where joint and several liability apply, and those exceptions do not include Section 1574. See id., at 25-26. As previously stated, we concluded that the jury’s general verdict necessitated a finding that PJB was vicariously liable for Tina’s negligence, and therefore, the theory of joint and several liability applied pursuant to the Fair Share Act. Accordingly, it would be redundant to decide whether the imputation of joint and several liability under Section 1574 applies to the present matter. Therefore, we need not address this claim further. III. Delay Damages Argument - 55 - J-A19025-20 In Spencer’s final argument, he contends the court erred in failing to award him the full measure of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238. See Brief of Appellant, at 40. He notes that original process was first served on August 17, 2016 and August 20, 2016 and the defendants did not make any settlement offer until shortly before closing arguments on January 28, 2019. See id., at 41. Spencer states that if we determine that PJB is jointly and severally liable for any reason, then the court committed an abuse of discretion in failing to award the entire measure of delay damages. See id., at 42. PJB counters Spencer’s argument and states that the trial court properly determined that he was only entitled to delay damages from each defendant in accordance with the percentage of liability for each defendant as determined by the jury. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 27. Our standard of review concerning a motion for delay damages under Rule 238 is whether the court committed an abuse of discretion. See Roth v. Ross, 85 A.3d 590 , 592 (Pa. Super. 2014). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Id., at 592-593 . The rule in question, Rule 238, provides, in relevant part, as follows: - 56 - J-A19025-20 At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, … damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial … and shall become part of the verdict, decision or award. Pa.R.C.P. 238(a)(1) As noted above, the court denied in part and granted in part Spencer’s motion for delay damages. Specifically, the court found he was entitled to delay damages only as calculated from August 17, 2017 to January 28, 2019, and only as calculated on the compensatory damages for which PJB was deemed liable – 45%. The total amount of delay damages assigned to PJB was $453,872.69. The trial court explained its computation as follows: As stated in the Order, the denial was directed towards [Spencer]’s arguments that delay damages should be calculated on the full verdict amount, since (as [Spencer] argued in his Motion to Mold the Verdict) PJB would be liable for the entirety of the damages amount. The Court disagreed, stating that each defendant was only liable for delay damages on the amount of compensatory damages attributed to each based on the jury’s apportionment of liability. Hence, PJB would only be liable for delay damages calculated on 45% of the total verdict amount, rather than 100%. As the Court read the Motion to only request delay damages against PJB and [Tina] (apparently an oversight), it did not award delay damages against [Cleveland]. [Spencer]’s Amended Delay Damages Motion sought to recover delay damages against him as well, but as explained above, the Court was not able to rule on this Motion before the Notice of Appeal was filed and our jurisdiction over the case was removed pursuant to Pa. R.A.P. 1701. Trial Court Opinion, 6/24/2019, at 11 n.9. - 57 - J-A19025-20 Based on our conclusion that PJB was joint and severally liable, we are constrained to disagree with the court’s determination. We are guided by the following: [A]s a general precept[,] Rule 238 damages awarded against all defendants in a negligence action are properly aggregated with the verdict such that the defendants are jointly and severally liable for the aggregated delay damages. The fact that delay damages under Rule 238 may be calculated in the first instance on an individualized basis before being aggregated with the general liability verdict does not alter the analysis. Allen v. Mellinger, 784 A.2d 762 , 766 (Pa. 2001). Accordingly, we are compelled to reverse that portion of the trial court's order that apportioned delay damages to each defendant, and remand for the recalculation of damages. IV. Tina’s Sufficiency Arguments In her first, second, and third arguments, Tina contends the trial court erred in failing to grant her post-trial motion for JNOV because there was insufficient evidence to support prima face cases of negligence or negligent entrustment against her. See Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 22, 30, 36. Tina has a high hurdle to clear to get the trial court’s order reversed: “We will reverse a trial court’s grant or denial of a JNOV only when we find an abuse of discretion or an error of law.” Reott v. Asia Trend, Inc., 55 A.3d 1088 , 1093 (Pa. 2012). When reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there is sufficient competent evidence to sustain the verdict. We must view the evidence in the light most - 58 - J-A19025-20 favorable to the verdict winner and give the verdict winner the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. We apply this standard in all cases challenging the grant of a motion for J.N.O.V. Pennsylvania law makes clear that a judgment notwithstanding the verdict is proper only in clear cases where the facts are such that no two reasonable minds could disagree that the verdict was improper. Questions of credibility and conflicts in evidence are for the fact-finder to resolve. This Court will not substitute its judgment based upon a cold record for that of the fact-finder where issues of credibility and weight are concerned. Dubose v. Quinlan, 125 A.3d 1231 , 1237-1238 (Pa. Super. 2015) (quotation and internal citations omitted). We begin our analysis by noting that all three of Tina’s challenges to the sufficiency of the evidence are premised on accepting her trial testimony as true, while ignoring contradictory testimony. These arguments ignore our standard of review. Further, as we will demonstrate, the record amply supports the jury’s verdict. Tina first focuses on the pure negligence verdict. A negligence cause of action has several elements: To establish a cause of action sounding in negligence, a party must demonstrate they were owed a duty of care by the defendant, the defendant breached this duty, and this breach resulted in injury and actual loss. [T]he determination of whether an act or failure to act constitutes negligence, of any degree, in view of all the evidence has always been particularly committed to determination by a jury. It is an issue that may be removed from consideration by a jury and decided as a matter of law only where the case is entirely free from doubt and there is no possibility that a reasonable jury could find negligence. - 59 - J-A19025-20 Snead v. SPCA, 929 A.2d 1169 , 1183 (Pa. Super. 2007) (citations omitted; brackets in original). Tina argues the uncontroverted evidence established that she was not the driver of the PJB car at the time of the accident. Rather, she continues to assert that Cleveland took the keys and drove the company car without her knowledge or permission and his negligent driving was the sole cause of Spencer’s harm. See Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 23. Tina claims that based on the facts, she did not have a duty nor did she breach any duty. See id., at 24. In support of her argument, Tina relies on her own testimony at trial as well as Cleveland’s statements concerning his procurement of the keys without her knowledge or permission, his intoxication at the time of the accident, and his admission at trial that he was at fault. See id., at 25-29. While Tina’s trial testimony certainly supports her argument, the jury was not required to find it credible. The jury was entitled to find that Tina’s self-interest affected this testimony. Further, it is undisputed that Tina was not immediately truthful with PJB about the circumstances of the accident. Tina explained that she was not intentionally deceitful, but again, the jury was not required to credit this exculpatory testimony. There was also significant testimony that directly contradicted Tina’s testimony. Tina admitted that she and Cleveland had only one car – the company car. See N.T., 1/23/2019 a.m., at 114. Cleveland’s willingness to - 60 - J-A19025-20 move the car for a minor reason on the night of the incident also implies a history of permissiveness in using the car. Finally, Cheryle Spencer testified that she had often observed Cleveland driving the car in the past. See N.T., 1/23/2019 a.m., at 78, 82. Under these circumstances, we cannot conclude that the trial court erred in refusing to grant Tina JNOV on the pure negligence verdict. In her second argument, Tina challenges the negligent entrustment verdict. The tort of negligent entrustment is set forth in Section 308 of the Restatement (Second) of Torts: § 308 Permitting Improper Persons to Use Things or Engage in Activities It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. Restatement (Second) of Torts § 308 (1965). “Under a theory of negligent entrustment, liability is imposed upon a defendant because of his or her own actions in relation to the instrumentality or activity under his or her control. The entrustor’s liability is not dependent on, derivative of, or imputed from the entrustee’s actual liability for damages.” Ferry v. Fisher, 709 A.2d 399 , 403 (Pa. Super. 1998) (citations omitted). “However, our cases do require that the entrustee be causally negligent before the entrustor may be held liable through negligent entrustment.” Christiansen v. Silfies, 667 A.2d 396 , 400 (Pa. Super. 1995). - 61 - J-A19025-20 Tina claims that even if “the jury did find that Tina Johnson permitted her husband to drive the vehicle, simply allowing him to drive was insufficient to find that she negligently entrusted him with the car and that such negligence was the cause of the harm.” See id., at 31. She relies on Gibson v. Bruner, 178 A.2d 145 (Pa. 1961), to support her claim. Tina alleges the court opined that there was evidence Cleveland “often drove the car” with her “knowledge, if not her permission.” Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 33. Tina contends that assuming the jury ignored the evidence that Cleveland did not have permission and believed his wife allowed him to drive, “there was no evidence that she entrusted the vehicle to [Cleveland] when he took the vehicle at the date and time of the accident” and “that she knew or should have known that [Cleveland] was incompetent to drive the vehicle on that date, or at any time, by reason of intoxication or otherwise.” Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 33-34 (quotations marks omitted). She relies on her own testimony that at the family gathering, she and Cleveland “exchanged a few words at most[,]” “she did not know how many drinks he had before arriving at her mother’s house, and was not with him long enough to know if he was intoxicated.” Id., at 34. Moreover, she points to Cleveland’s testimony, in which he stated that “he drank his last beer before he went into the house, that no one was drinking at the gathering, that at - 62 - J-A19025-20 most he exchanged a word with his wife, and there is no evidence that anyone was aware of his state when he took the car.” Id. She further contends the mere fact that his “license had been suspended years ago was insufficient to support a negligent entrustment claim,” and the accident was caused by his drunk driving, and not his lack of driving privileges. See id. Tina concludes that as a result, the trial court erred in failing to grant her motions for JNOV and a new trial. See id., at 35-36. Viewing the evidence in the light most favorable to Spencer as the verdict winner, we concur with the trial court that there was sufficient evidence to support a finding that Tina had negligently entrusted Cleveland to drive her work car. A negligent entrustment cause of action required proof that: (1) Tina was the operator of the work vehicle, (2) Tina permitted Cleveland to use the car, and (3) Tina knew or had reason to know Cleveland intended to or was likely to use the car in a manner which would create an unreasonable risk of harm to others. See Restatement (Second) of Torts § 308. Applying the elements to this case, we note the following: (1) the work vehicle was issued to Tina and she testified she used it for employment and personal reasons; (2) as explained by the trial court, there was ample circumstantial evidence that Cleveland serially drove the car with Tina’s explicit or implicit knowledge despite the fact that he did not have a proper license; and (3) one can reasonably infer that the jury disbelieved Tina’s testimony that she did not know her husband was intoxicated at the time of - 63 - J-A19025-20 the family gathering, and therefore, she had reason to know he would use the car in a manner which would create an unreasonable risk of harm to others. See id. Lastly, Cleveland was causally negligent for Spencer’s injuries. See Christiansen, 667 A.2d at 400 . In her third challenge to the sufficiency of the evidence, Tina returns to the negligence cause of action and claims the trial court erred by denying JNOV because the jury’s verdict that was based on a novel theory of negligence: the “keys on the counter or purse” or “accessibility” theory of negligence was invalid as a matter of law, and therefore, the verdict was supported by insufficient evidence. See id., at 36. She states she did not leave the keys in the ignition or at a public place; rather, she left them in her mother’s home during a private family get-together. Tina asserts the court erred in denying JNOV because Spencer’s theory of negligence on this basis is not recognized in Pennsylvania. See id. Tina contends that Pennsylvania law “does not impose a duty, nor permit a finding of negligence based on the allegation that Tina Johnson/any other person left car keys in a private, family home, where they could be accessed by a spouse or any other competent adult in these circumstances.” Id., at 37. She states that under Spencer’s theory, every vehicle owner would have to keep his or her car keys on their person or inaccessible at all times, which would be an “absurd result.” Id., at 38. Tina further states that case law has held that “the mere fact that a vehicle owner leaves the vehicle accessible to a family - 64 - J-A19025-20 members or friend does not impose liability for harm caused by that driver.” Id., at 38-39. She asserts she did not owe or breach a duty on this basis, and there was no evidence supporting a finding that her conduct in leaving the keys was a cause of Spencer’s harm. See id., at 40. Lastly, Tina argues the jury’s acceptance of “keys on the counter or purse” theory rendered a verdict that was against the weight of the evidence. See id., at 40-42.24 We agree with the trial court’s conclusion. In her post-trial motion for JNOV, Tina alleged the jury’s finding of liability was not supported by sufficient evidence because “Pennsylvania law does not and should not permit a finding of negligence based on the allegation that [Tina] or any other person left car keys where they could be accessed by a spouse or any other competent adult[,]” and in the present matter, “the trial testimony unequivocally established that Cleveland Johnson took the keys without the knowledge or permission of [Tina] (his wife) and [Tina] had made clear that [Cleveland] was not permitted to drive the car at any time.” Motion for Post-Trial Relief of Defendant, Tina Gainer Johnson, 2/15/2019, at ¶ 3. However, as the court correctly points out, the verdict slip did not explain the exact theory the jury relied on to form its verdict, and Tina did not solicit the jury’s rationale on the record or request special interrogatories on the matter. The parties were ____________________________________________ 24 To the extent Tina raises weight arguments, we will address these assertions in the next section, which involves both Tina’s and PBJ’s weight claims. - 65 - J-A19025-20 disputing numerous theories of negligence. Therefore, contrary to Tina’s assertion, the jury’s verdict was not clearly based on a novel “accessibility” theory of negligence. As such, we conclude the trial court did not err in denying Tina’s post- trial motion for JNOV because the facts are such that no two reasonable minds could disagree that the verdict was improper. See Dubose, 125 A.3d at 1237- 1238. V. PJB’s and Tina’s Weight Argument Both Tina and PJB contend that the trial court improperly denied their motions for post-trial relief based on the assertion that the verdict was against the weight of the evidence. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 20; see also Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 42. PJB alleges “the percentage of liability apportioned to [PJB] when compared to the percentage of liability apportioned to co-defendant, [Cleveland], is against the weight of the evidence and resulted in a miscarriage of justice.” Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 20. PJB states that it was an error for the jury to allocate greater liability to it based upon a purported lack of oversight of the use of its vehicle than to Cleveland, who was drunk and took his wife’s keys without her knowledge and permission and hit Spencer. See id., at 21. - 66 - J-A19025-20 Similarly, Tina contends the court erred by denying her a new trial because the jury’s apportionment of only 36% liability to Cleveland was against the weight of the evidence given the record and his admissions that he took the car without Tina’s knowledge or permission. See Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 42-48. Tina states the court merely speculated that the jury found she had negligently authorized Cleveland to drive the PJB car and that he used the car with her express and implied permission, and such a finding was against the weight of the evidence. See id., at 43. When presented with a challenge to weight of the evidence claim, our standard of review is well-settled. Initially, we note the following relevant legal precepts: Appellate review of a weight claim is a review of the [trial court's] exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court may award a judgment notwithstanding the verdict or a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met, - 67 - J-A19025-20 appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. When a fact finder’s verdict is so opposed to the demonstrative facts that looking at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason rebels against the bizarre and erratic conclusion, it can be said that the verdict is shocking. However, [i]f there is any support in the record for the trial court’s decision to deny the appellant’s motion for a new trial based on weight of the evidence, then we must affirm. An appellant is not entitled to a new trial where the evidence presented was conflicting and the fact-finder could have decided in favor of either party. McFeeley v. Shah, 226 A.3d 582 , 594 (Pa. Super. 2020) (citations and quotation marks omitted). In support of their weight arguments, PJB and Tina point to the following facts: at the time of the accident, Cleveland was the sole driver of the vehicle, he was intoxicated, he did not possess a license, and he was not authorized by PJB to drive the vehicle. In addition, they note Cleveland’s assertions at trial that he was the only one at fault, and that the others should bear no blame. Moreover, both PJB and Tina rely on Thompson v. City of Philadelphia, 493 A.2d 669 (Pa. 1985), in an attempt to bolster their argument that the jury’s apportionment of liability was against the weight of the evidence, and warranted a new trial. See Brief of Appellee/Cross- Appellant, Philadelphia Joint Board Workers United, SEIU, at 21; see also Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 45. - 68 - J-A19025-20 Tina and PJB also argue that Thompson stands for the theory that the driver of a vehicle that causes an accident should bear more liability than any other party that is involved in the matter. Turning to the present matter, since Cleveland did not bear the greatest percentage of liability, PJB and Tina contend that the jury’s verdict was against the weight of the evidence. In disposing of PJB’s and Tina’s weight arguments, the trial court held that the jury had properly considered the evidence when they imputed greater liability on PJB than on Cleveland. The court highlighted the following evidence: (1) PJB had given Tina a company vehicle without first checking her background; (2) PJB provided all employees vehicles unless specifically given reason not to do so; (3) Cleveland was known to frequently drive Tina’s company vehicle; and (4) PJB did not conduct mileage tracking or auditing and instead relied on “the honor system” for enforcing vehicle use. Trial Court Opinion, 6/24/2019, at 15-16. Additionally, the trial court pointed to evidence which showed that PJB did not implement any safety measures aside from “periodic reminders of the usage policies and instructions that employees should wear their seatbelts and use other basic road safety practices.” Id., at 16. The trial court further elaborated that this complete lack of oversight regarding vehicle allocation and usage stemmed from PJB’s belief that “they would find out” about any misuse because Philadelphia was “a small town.” Id. - 69 - J-A19025-20 Lastly, the court opined that “overturning a jury’s verdict is a drastic measure” and should not be done unless “an egregious error is manifest or palpably apparent.” Id., at 15 (internal quotation marks omitted). In considering PJB’s lack of enforcement of company car policies and safety measures, the trial court held that the jury’s decision that PJB shared the greatest percentage of fault was supported by evidence and was reasonable. Therefore, it concluded it did not abuse its discretion by denying PJB’s and Tina’s motions for a new trial. As noted above, both PJB and Tina cite Thompson in support of their argument that the driver who causes an accident should bear more liability than any other party. However, contrary to their assertion, Thompson does not stand for the notion that a new trial must be granted when the driver does not bear the largest share of liability. By way of background, Thompson arose from an automobile accident, where a furniture truck driver negligently exited an interstate. Unable to stop, the driver barreled through a guardrail, and toppled off an overpass onto the highway below, crushing and killing the decedent. The plaintiff, the administratrix of the estate of the decedent, subsequently brought suit against the truck driver, his employer, the City of Philadelphia, and the Commonwealth of Pennsylvania. After a jury trial, the Commonwealth and the - 70 - J-A19025-20 City were each found 35% liable, while the driver and his employer, together, were found only 30% liable.25 The trial court granted a new trial on apportionment of liability alone. The court held that the jury’s apportionment of liability was against the weight of the evidence where the driver failed to notice or follow the clearly visible directional signs, traffic speed signs, and multiple stop signs. On direct appeal, a panel of this Court reversed, explaining that expert testimony at trial proved the intersection’s poor design, and justified the jury’s verdict. The panel “determined that the trial court’s order exceed[ed] the limited standards for the grant of a new trial because of the weight of the evidence.” Thompson, 493 A.2d at 672 (citation and quotation marks omitted). On allocator review, the Pennsylvania Supreme Court explained the differences between the standard of review applied by this Court and how it interpreted the standard of review. It agreed with this Court “that the power to grant a new trial is as inherent in a trial court for the apportionment of liability as the power exists for all the traditional reasons for granting a new trial.” Id. However, the Supreme Court determined that in measuring whether ____________________________________________ 25 At trial, the plaintiff averred that the Commonwealth had failed to exercise reasonable care when posting traffic signs on the interstate, which resulted in the driver being confused, and ultimately caused the accident. Although there were numerous traffic signs posted on the exit ramp, expert testimony at trial helped show that poor design may have resulted in the driver not seeing the signs. - 71 - J-A19025-20 a new trial should be granted, the Superior Court panel erroneously “adopted the view that a grant is a most unusual judicial act and if there is any credible evidence which under any reasonable view supports the jury’s findings the verdict should be sustained.” Id. The Supreme Court held: In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail. It is not the place of an appellate court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function. Id., at 673. The Supreme Court then cited to the evidence and rationale offered by the trial court for granting a new trial. See id., at 673-674 (“this court refuses to accept the jury's apportionment of damages to the defendant [driver] where he failed to follow posted traffic directional signs, ignored posted traffic speed signs, and states that he did not see either one of two stop signs even though the evidence clearly establishes that he should have seen those signs.”). In reversing the Superior Court panel’s decision, the Supreme Court opined: The Superior Court panel did not find that these facts were not of record or that if true they would not support a conscious shocking paradigm. The Superior Court instead, countered the argument by finding that expert testimony suggested that the highway junction was ill designed and therefore the jury could find justification for their apportionment of liability. The jury could and did do exactly that. That, however, begs the question before us; the question - 72 - J-A19025-20 being whether the trial judge’s reasons for his act in granting a new trial were justified. If he was supported by facts of record, the very point of his grant is that, notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. We cannot find it wrong to believe that an inattentive driver barreling into a marked exist ramp at 40-45 miles an hour, who did not stop for a clearly visible stop sign because he did not see it, and who was unable to control his vehicle at the intersection, is more at fault than those who maintain the road he was not sure he was on. Id., at 674 (quotation marks omitted). Turning to the present matter, although both cases concern a motor vehicle accident, it is evident that Thompson is distinguishable based on the procedural posture of this case. Here, unlike in Thompson, the trial court denied the motions for a new trial, finding that the jury’s apportionment of fault was not manifestly and palpably against the weight of the evidence. As noted above, the court concluded the verdict reasonably flowed from the actions and omissions of both PJB and Tina, which resulted in Cleveland driving the vehicle on the night in question. As a result, the court found it was not unreasonable for a jury to decide that if PJB would have enforced stricter supervision of the company vehicle, Husband would not have been in control of the vehicle on the night in question. We are reminded that it is not the place of this Court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function. Id., at 673. - 73 - J-A19025-20 We now turn to the record, which reveals the following. At trial, Spencer presented evidence of PJB’s complete lack of oversight over Tina’s fitness as a possessor of a company vehicle. Through questioning, Spencer demonstrated that PJB’s policies surrounding the employee vehicles were extremely lax in nature. Aside from making sure an employee had a valid driver’s license, PJB did little to no investigation into the employee’s prior record as a driver or overall suitability for having control over a vehicle. Rather, according to PJB’s manager, Fox, the company vehicles were simply given to all employees as a right unless they somehow proved otherwise unfit to have one. See N.T., 1/22/2019 p.m., at 51. Moreover, Fox indicated that whether an employee already had a personal car was “irrelevant” to the company’s decision to give someone a car. N.T., 1/22/2019 p.m., at 67. Fox further described the only true requirements for an employee getting a vehicle as follows: “what their work product is like, what members say about them, what results they produce, what their work ethic is, if we have any issues, if there are any complaints.” N.T., 1/22/2019 p.m., at 49. As a result of this organization’s approach, PJB did not evaluate Tina’s fitness for having a company car, and thus failed to discover that she had previously had her license suspended, and that providing her with a vehicle may have been a risk. Additionally, once employees were provided with company vehicles, they were allowed to possess the vehicle at all times, but were not supposed - 74 - J-A19025-20 to drive the cars for personal reasons. However, PJB administered minimal oversight of vehicle usage by employees. For example, PJB did not record or audit mileage usage, or even conduct any sort of periodic or surprise inspections. Rather than attempting to ensure that employees only drove their vehicles for work purposes, PJB simply used “the honor system,” and hoped that employees would follow the rules. N.T., 1/22/2019 a.m., at 107.26 Moreover, PJB held regular meetings as well as retreats where all “policies and procedures are gone over and thoroughly given[.]” N.T., 1/25/2019 a.m., at 23.27 However, PJB had no employee handbook or manual, and gave little to no vehicular safety training. PJB had a two-page vehicle policy document, drafted by Saldana and Fox, that was reviewed orally with employees when they received the car and at meetings. See N.T., 1/22/2019 a.m., at 90-91. PJB failed to produce any documentation at trial that Tina had ____________________________________________ 26 Fox testified: We don’t monitor our employee’s use of the vehicles. No one gets shadowed. No one gets followed. We know what their work is. We would know very quickly if someone was not doing the work, if they were not showing up where they were supposed to be showing up…. So we never had a program. I mean, that’s the general, reasonable protocol that all unions use. If you don’t trust your rep to drive your car, you certainly don’t trust your rep to service your members. N.T., 1/22/2019 p.m., at 53. 27 Minter testified the retreats were mandatory, but employees were excused if they had a personal health crisis or were “caught up in negotiations[.]” N.T., 1/25/2019 a.m., at 23. - 75 - J-A19025-20 signed acknowledging the policy, or even indicated that she had attended any of those meetings when the vehicle policy was discussed. See id. See also N.T., 1/25/2019 a.m., at 46-47; N.T., 1/28/2019, at 13. Furthermore, rather than focusing on any of these safety measures, the company instead concentrated on complying with IRS and DOL regulations, and stood behind the creed that because Philadelphia is “a small city,” PJB simply would find out “sooner or later” about any misuse of the vehicles, including unauthorized use by a family member. N.T., 1/22/2019 p.m., at 57. Under these circumstances, we cannot conclude the trial court abused its discretion in refusing to grant a new trial. The jury could reasonably find that PJB’s failure to manage Tina led to her allowing Cleveland to regularly driving the company vehicle without their knowledge or authorization. It even resulted in Tina’s failure to report to PJB that the company vehicle was impounded after the accident because, as Tina testified, “there was no need to notify [PJB] for that.” N.T., 1/22/2019 a.m., at 74.28 As for Tina’s liability, an examination of the record not only explains how a jury could have found her negligent, but also overwhelmingly justifies the jury’s apportionment of liability to her. First, there was the evidence ____________________________________________ 28 It also merits mentioning that after the accident, PJB did not terminate Tina’s employment with the union, but merely suspended her for two weeks and revoked her company car privileges. Additionally, PJB did not press charges against Cleveland for theft of the vehicle even in light of Tina’s explanation that she did not give me permission to drive the car. - 76 - J-A19025-20 demonstrating Cleveland’s extensive usage of the vehicle. While Cleveland and Tina both admitted that he did have her permission to drive the vehicle in the past, they maintained that this permission only applied to rare occasions for unidentified emergency situations. See N.T., 1/23/2019 a.m., at 38; N.T., 1/24/2019 a.m., at 24-28. Nevertheless, their portrayal of his use of the vehicle was contradicted by Spencer’s sister. Cheryle testified that she had personally seen Cleveland driving the car “[a]ll the time[,]” both with and without Tina in the vehicle. N.T., 1/2/2019 p.m., at 78.29 The jury was free to accept or reject the testimony by these witnesses, and it is obvious the jury found Cheryle’s testimony more credible than Cleveland’s and Tina’s statements. Second, there was the evidence of Tina’s attempt to hide the accident from PJB. The accident occurred on a Thursday night. Tina did not immediately contact PJB to inform them about the accident. The following day, Tina tried to cover-up the incident to PJB by telling Saldana that the vehicle had been impounded due to unpaid parking tickets. See N.T., 1/22/2019 p.m., 16-20. Tina also went into the office without telling anyone in order to obtain a second copy of the car registration that she kept in her office. She needed the car registration to get the car released from the impound lot. See N.T., 1/23/2019 ____________________________________________ 29 Cheryle Spencer provided an affidavit in response to a pleading. See N.T., 1/23/2019 p.m., at 85-86. In the affidavit, she averred she observed Cleveland and/or Cleveland and Tina driving the car at least 100 times. See id., at 90. - 77 - J-A19025-20 a.m., at 80. When PJB questioned Tina after finally being notified about the crash by police officers who showed up at the office, Tina did not tell Fox the severity of Spencer’s injuries. See N.T., 1/22/2019 p.m., at 62-63, 66. We reiterate “it was solely for the [jury], as the finder of fact, to determine the credibility of witnesses and to resolve any conflicts or inconsistencies in the evidence.” Commonwealth v. Upshur, 764 A.2d 69 , 74 (Pa. Super. 2000) (citation omitted). The jury was free to accept all, some, or none of the testimony presented to them. Accordingly, as Thompson sets forth, we conclude the record supports the trial court’s analysis that: (1) PJB’s lack of enforcement of company car policies and safety measures and supervision over the vehicles reasonably led to the jury’s decision that PJB shared the greatest percentage of fault, which finding was supported by evidence and was reasonable; and (2) the evidence could reasonably support a finding that Tina had negligently authorized Cleveland to drive the PJB car and that he used the car with her express and implied permission. While Cleveland may have been the driver of the vehicle that struck Spencer, his fault did not erase the negligent acts of PJB and Tina that contributed to the incident. Therefore, we conclude the trial court did not act capriciously or abuse its discretion in determining that the verdict was not against the weight of the evidence. Accordingly, PJB’s and Tina’s weight claims merit no relief. VI. Remittitur Argument - 78 - J-A19025-20 Lastly, PJB and Tina both argue the court erred in denying the request for a remittitur. They contend the court erred by denying a new trial on damages, or a substantial remittitur, because the over $12,000,000 verdict was against the weight of the evidence, manifestly excessive, and not supported by credible evidence since there was no expert medical testimony on life expectancy and other matters. See Brief of Appellee/Cross-Appellant, Philadelphia Joint Board Workers United, SEIU, at 26-27; see also Brief for Designated Cross-Appellant/Appellee, Tina Gainer Johnson, at 48-51. Tina also points out that Spencer’s life care planning expert, Nurse Masterson, testified to alternate plans for Spencer’s life which she projected for alternative life expectancies of ages 70 and 82, but Nurse Masterson specifically stated she would not give an opinion on life expectancy as it was not within her expertise. See id., at 52. Moreover, Tina contends there was no evidence to support the court’s instruction on life expectancy because there was no expert medical testimony on the subject. See id., at 53. She states the charge was based upon general tables that have no connection with Spencer’s injuries from the accident and his actual medical condition, and therefore, this evidence cannot support the damages award. See id., at 54. Tina further argues that the court erred in opining that a jury may decide on a plaintiff’s life expectancy without expert testimony because the impact of a plaintiff’s serious medical condition on his or her life expectancy would not - 79 - J-A19025-20 be within the common knowledge of a juror. See id., at 54-55. In this regard, she alleges that the court’s reliance on Helm v. Eagle Downs-Keystone Racetrack, 561 A.2d 812 , 813 (Pa. Super. 1989), is misplaced because, as she contends, Helm is not controlling. Tina specifically asserts Helm does not stand for “the proposition that a jury’s award for future medical and noneconomic damages can be sustained where the award is based solely upon a jury instruction as to the life expectancy tables, and in the absence of any life expectancy testimony by medical experts.” Brief for Designated Cross- Appellant/Appellee, Tina Gainer Johnson, at 55. Tina also asserts the award was excessive because of “the disparity between the amount of the out-of-pocket expenses and the amount of the verdict.” Id., at 57 . Tina states the parties stipulated that the amount of past medical bills paid was $683,311.47 and yet, the verdict was more than twelve times that amount for future medical expenses and non-economic damages. See id., at 57-58 . Lastly, she argues the verdict was so grossly excessive that it amounted to an award of punitive damages that violated basic fairness and due process rights. See id., at 58-59 . We begin with our well-settled standard of review: Our standard of review in considering the reversal of a trial court's order denying a remittitur is to determine whether the trial court abused its discretion or committed an error of law in reaching such decision. In that regard, this Court, in Mecca v. Lukasik, 366 Pa. Super. 149 , 530 A.2d 1334 (Pa. Super. 1987), discussed the factors to be considered in determining whether or not a verdict is excessive: - 80 - J-A19025-20 The grant or refusal of a new trial because of the excessiveness of the verdict is within the discretion of the trial court. This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. We begin with the premise that large verdicts are not necessarily excessive verdicts. Each case is unique and dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. A court may consider the following factors, inter alia: (1) the severity of the injury; (2) whether the Plaintiff’s injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of the Plaintiff (and, herein, the court pointed out that where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the courts have counted this in favor of sustaining a verdict); (3) whether the injury will affect the Plaintiff permanently; (4) whether the Plaintiff can continue with his or her employment; (5) the size of the Plaintiff’s out-of-pocket expenses; and (6) the amount Plaintiff demanded in the original complaint. Paliometros v. Loyola, 932 A.2d 128 , 134-35 (Pa. Super. 2007) (some citations omitted). Here, the trial court discussed those “excessive” factors and found the following: At trial, the Court gave the jury Standard Civil Instruction 7.240, which gives the average life expectancy for the plaintiff’s age and demographic group (in this case, 26.5 additional years). It also notes that the jury is free to find that the life expectancy would be longer or shorter based on considerations like the plaintiff’s health status. … In this case, the jury awarded the stipulated amount for the past medical expenses, but also awarded $7.3 million for future - 81 - J-A19025-20 medical expenses and $5 million for noneconomic damages. [PJB and Tina] aver these amounts are excessive on their face, and that the future medical expenses award is unfounded in the absence of expert testimony on life expectancy. Firstly, we address the claim that the verdict is excessive. Looking to the factors enumerated above, we note that [Spencer]’s traumatic brain injury has left him in a wheelchair, unable to attend to his basic daily needs, and that he now suffers recurrent seizures that at one point resulted in hospitalization and medical induction of a coma and mechanical ventilation. He is unaware of his deficits and diminished capabilities, a factor which makes it particularly important that he receive constant supervision and procession care. He also needs frequent doctor visits and medication management, and he has endured frequent hospitalizations. He is also at heightened risk for wounds and infections due to his wheelchair and diaper use, and he suffers osteoporosis that is caused by his anti-seizure medication. According to the expert report of Dr. Guy Fried, [Spencer] reported being able to walk for miles and go dancing every weekend before his injury; now, he can walk perhaps 100 feet with assistance and a rolling walker and is at high risk for fall injuries. He cannot stand independently or drive. His short-term memory is impaired. Dr. Fried opined that his injuries were serious and permanent, and that he would need medical care in a facility setting for the rest of his life. [Spencer]’s injuries are physically manifested, rather than being alleged only through subjective testimony, as his medical records and test results show. Gainful employment is clearly out of the question. His past medical expenses were stipulated to as greater than $680,000. Expert life-care planner Nurse Masterson calculated his costs of living to the age of 70, and separately to the age of 82, both for in-home care and facility care (but excluding medication costs). She opined that, if he lived only to age 70, his minimum living costs would exceed $3million; if he lived to age 82, his costs were estimated at $6.8 million and $7.3 million. Furthermore, Dr. Fried’s report states that [Spencer] reported nonstop, aching pains in his neck, back, arms, and legs, and that he had never had chronic pains prior to the accident. He also has losses of sensation and diminished eyesight. He suffers depression due to his awareness of his loss of quality of life. He reported being a previously active person in reasonable health - 82 - J-A19025-20 who played with his children and children around his neighborhood, and who enjoyed basketball and football. For these reasons, this Court finds the jury’s damages award was not so excessive as to shock our sense of justice. The award for future care costs is not excessive on its face because it accords with Nurse Masterson’s careful accounting of costs, both for in- home and facility care, including costs of diagnostic tests, mobility aids and home modifications, physical/occupational/cognitive therapies, nursing services, and specialized day programs for patients with brain injuries. Additionally, we observe that [Spencer]’s medication costs (which were explicitly omitted from calculations) would significantly add to Nurse Masterson’s estimates. We find the award for noneconomic damages is not excessive because [Spencer]’s quality of life has been drastically reduced, and he is no longer able to live as an independent, active person. For the rest of his life, he will need to rely on others to move him around, feed him, clean him, and attend to his medical needs, and he lives in constant pain. Lastly, we reject [PJB’s and Tina’s] claim that the award for future medical costs is improper because [Spencer]’s experts did not opine on his life expectancy. A jury may decide on a plaintiff’s life expectancy without expert testimony. See Helm v. Eagle Downs–Keystone Racetrack, 561 A.2d 812 , 813-14 (Pa. Super. Ct. 1989) (lay testimony of diminished quality of life, along with approved mortality tables, the appropriate considerations for a jury to determine life expectancy); see also SSJI 7.240 Subcommittee Note (“The jury must make its own determination [of life expectancy] based on all factors that affect the duration of life”), citing Pauza v. Lehigh Valley Coal Co., 80 A, 1126, 1127 (Pa. 1911). Trial Court Opinion, 6/24/2019, at 16-19 (record citations and quotation marks omitted). The trial court thoroughly explains its rationale for denying remittitur and we affirm on the basis of that analysis while adding several comments. First, it merits emphasis that large verdicts are not necessarily excessive verdicts, and each case is unique and dependent on its own special - 83 - J-A19025-20 circumstances. As noted above, Spencer suffered catastrophic injuries as a result of the accident at issue and is wheelchair bound with additional loss of function of his right arm, unable to attend to his basic daily needs, and now suffers from recurring seizures and incontinence. Furthermore, according to Dr. Fried, Spencer will require admission at an acute care facility for the rest of his life, he will need one-on-one supervision for the rest of his life, and he will require ongoing consultations with doctors over a variety of specialties during the course of his life. See Trial Deposition of Guy W. Fried, M.D., 9/11/2018, at 41-42. Spencer will also need ongoing medication, physical and cognitive therapies, a security system, a brain injury support day program, and testing. See id., at 42-43. Lastly, it is obvious Spencer can no longer maintain employment at the bank in which he previously worked, Glenmede Trust. See id., at 33. Second, the trial court instructed the jury in detail that Spencer sought compensation for past medical expenses, future medical expenses, and noneconomic losses. See N.T., 1/28/2019, at 106-107. The court also instructed that if the jury found Spencer was entitled to damages for future pain and suffering, his life expectancy was an additional 26.5 years. According to the statistic complied by the United States Department of Health and Human Services, the average life expectancy of all persons of the plaintiff’s age at the time of the incident, his sex and race was 26.5 additional years. This figure is offered to you only as a guide and you are not bound to accept it if you believe that the plaintiff will live longer or less than the average individual in his category. In reaching this decision, you are to consider the - 84 - J-A19025-20 plaintiff’s health before the incident, his manner of living, his personal habits and other factors that may affect the duration of his life. See id., at 109-110. PJB and Tina did not object to these instructions. Third, while PJB and Tina are alleging there was no expert testimony on life expectancy, they opted to not call their own medical expert, who was scheduled to give life expectancy testimony. Moreover, Spencer did present the testimony of life care planning expert, Nurse Masterson. The expert provided testimony regarding her recommendations for medical and daily costs, which were based on the average needs of Spencer if he were to reside in a nursing facility or at home with his sister and if he lived to age of 70 and then 82. See N.T., 1/24/2019 p.m., at 13-50. The jury was free to believe or reject this expert testimony. See Rettger v. UPMC Shadyside, 991 A.2d 915 , 934 (Pa. Super. 2010). Here, it obviously credited Masterson’s expert testimony. Lastly, we touch upon Tina’s argument that the court erred in relying on Helm because that decision does not stand for the proposition that a jury’s award for future medical and noneconomic damages can be sustained where the award is based solely upon a jury instruction as to the life expectancy tables, and in the absence of any life expectancy testimony by medical experts. We find her argument is misplaced. Helm specifically held: It is well settled that mortality tables are admissible in Pennsylvania for the purpose of determining a plaintiff’s future damages. However, in instructing the jury on the use of such tables, the court is required to instruct the jury that certain - 85 - J-A19025-20 variables must be taken into consideration in determining the possible duration of life. The court’s instructions must include a survey of such matters as sex, prior state of health, nature of daily employment, and its perils, if any, manner of living, personal habits, individual characteristics, and other facts concerning the injured party which may affect the duration of his or her life. Since mortality tables are not to be applied rigidly, failure to adequately instruct the jury on their use constitutes reversible error and warrants the grant of a new trial on the issue of damages. Helm, 561 A.2d at 813 (citations omitted). Additionally, a panel of this Court has also stated that “[w]hen such tables are submitted in a personal injury case, the jury must be permitted to consider individual characteristics that impact on the injured party’s life expectancy.” Kraus v. Taylor, 710 A.2d 1142 , 1144 (Pa. Super. 1998) (citation omitted). As indicated above, while Spencer did not present a life expectancy expert, Spencer did introduce a life care planning expert who testified to future medical and noneconomic damages based on certain life expectancy ages. Tina has not presented any case law nor does our research reveal any support for the notion that a life expectancy expert must testify before a jury can assess damages based on a certain life expectancy. Accordingly, in light of the testimony offered by Dr. Fried and Nurse Masterson, the jury’s award is supported by the record and not excessive, arbitrary or unreasonable in relation to the evidence adduced at trial. Therefore, we conclude the trial court did not erred in denying the request for a remittitur. - 86 - J-A19025-20 Judgment affirmed in part and vacated in part. Order regarding post- trial motion to mold the verdict reversed. Order regarding post-trial motion for delay damages reversed in part and affirmed in part. Case remanded with instructions. Jurisdiction relinquished. Judge McCaffery joins the opinion. Judge McLaughlin did not participate in the consideration or decision of this case. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/18/21 - 87 -
4,638,538
2020-12-01 18:12:36.110441+00
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http://www.pacourts.us/assets/opinions/Superior/out/J-S37045-20m - 104620237121004476.pdf
J. S37045/20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : BRUCE REESE, : No. 2953 EDA 2019 : Appellant : Appeal from the PCRA Order Entered September 26, 2019, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0013539-2011 BEFORE: SHOGAN, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2020 Bruce Reese appeals the September 26, 2019 order, entered in the Court of Common Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm. A previous panel of this court set forth the facts of this case on direct appeal and we need not repeat them here. See Commonwealth v. Reese, No. 52 EDA 2013, unpublished memorandum at 1-3 (Pa.Super. filed June 23, 2015) (en banc). The PCRA court set forth the following procedural history: On October 5, 2012, at the conclusion of his jury trial, [appellant], represented by Jonathan Altschuler, Esq., was found guilty on four counts of robbery, one count of conspiracy and one count of possession of an 1 See 42 Pa.C.S.A. §§ 9541-9546. J. S37045/20 instrument of a crime.[2] On November 20, 2012, [appellant], again represented by Mr. Altschuler, was sentenced to an aggregate period of confinement in a state correctional institution of 15 to 30 years. On December 10, 2012, [appellant], now represented by Jonathan Frisby, Esq., timely filed a direct appeal to the Superior Court of Pennsylvania, at 52 EDA 2013. On August 9, 2014, a divided three judge panel issued an order reversing [appellant]’s judgment of sentence. However, on October 3, 2014, [the] Superior Court withdrew that opinion and, on June 23, 2015, [the] Superior Court issued an en banc order affirming [appellant]’s convictions. However, [the] Superior Court, sua moto, vacated [appellant]’s sentence and remanded the matter back for resentencing, finding [appellant]’s sentence to be illegal, pursuant to Alleyne v. United States, [570] U.S. [99], 133 S.Ct. 2151 (2013), and its progeny[.] On April 25, 2016, the [trial] court, after a hearing, resentenced [appellant], now represented by David M. Simon, Esq., and re-imposed his original sentence. On May 23, 2016, [appellant] timely filed a direct appeal to the Superior Court at 1661 EDA 2016. Subsequently, on October 4, 2016, [the] Superior Court granted [appellant]’s motion to withdraw this appeal. On September 5, 2017, [appellant] filed the subject timely pro se PCRA petition pursuant to 42 Pa.C.S.A. § 9541, et seq., seeking a new trial, alleging ineffectiveness of counsel. On September 27, 2017, Susan V. Buck, Esq., was appointed as counsel to represent [appellant] for the purposes of his PCRA petition. On July 9, 2018, Ms. Buck filed a counseled amended PCRA petition (first amended petition). On July 10, 2018, the [PCRA] court permitted Ms. Buck to withdraw her appearance, and, on July 12, 2018, appointed Peter A. Levin, Esq., to represent [appellant] for the purposes of his PCRA petition. On October 15, 2018, Mr. Levin filed a second counseled amended PCRA petition (second amended petition), 2 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, and 907(a), respectively. -2- J. S37045/20 averring appellate counsel, Mr. Frisby, was ineffective for failing to file a petition for allocator [sic] with the Supreme Court of Pennsylvania. [Hearings on appellant’s PCRA petition were held on June 13 and September 26, 2019.] On September 26, 2019, the [PCRA] court, after [the] hearing and a careful review of the record, issued an order dismissing [appellant]’s PCRA petition as being without merit. On October 10, 2019, [appellant] timely filed the instant direct appeal to the Superior Court of Pennsylvania. On October 18, 2019, [the PCRA] court filed and served on [appellant] an order[,] pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [appellant] to file and serve a statement of errors complained of on appeal, within 21 days of the [PCRA] court’s order. On November 8, 2019, [appellant] timely filed his “Statement of Matters Complained of on Appeal . . .” PCRA court Rule 1925(a) opinion, 1/8/20 at 1-3 (footnote and extraneous capitalization omitted). Thereafter, the PCRA court filed its Rule 1925(a) opinion. On appeal, appellant raises the following issues: 1. Whether appellate counsel was ineffective for not filing an [a]llocatur [petition] to the Pennsylvania Supreme Court? 2. Whether the PCRA court was in error in not allowing [a]ppellant to file a supplemental PCRA? Appellant’s brief at 8. In PCRA appeals, our scope of review “is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed -3- J. S37045/20 in the light most favorable to the prevailing party.” Commonwealth v. Sam, 952 A.2d 565 , 573 (Pa. 2008) (internal quotation omitted). Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d 875 , 878 (Pa. 2009). We defer to the PCRA court’s factual findings and credibility determinations supported by the record. Commonwealth v. Henkel, 90 A.3d 16 , 20 (Pa.Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014). In contrast, where the appellant “raises questions of law, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Rykard, 55 A.3d 1177 , 1183 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013). Appellant claims his appellate counsel was ineffective for failing to file a petition for allocatur to our supreme court following the June 23, 2015 ruling of this court. (Appellant’s brief at 8, 14-21.) In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. To overcome this presumption, [a]ppellant must establish three factors. First, that the underlying claim has arguable merit. Second, that counsel had no reasonable basis for his action or inaction. In determining whether counsel’s action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis. Finally, [a]ppellant must establish that he has been prejudiced by counsel’s ineffectiveness; in order to meet this burden, he must show that but for the act or omission in question, the outcome of the proceedings would have been different. A claim of -4- J. S37045/20 ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs. Commonwealth v. Washington, 927 A.2d 586 , 594 (Pa. 2007) (citations and quotation marks omitted). [A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Spotz, 84 A.3d 294 , 311 (Pa. 2014) (internal quotation marks omitted; some brackets in original), citing 42 Pa.C.S.A. § 9543(a)(2)(ii). “A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.” Commonwealth v. Watson, 835 A.2d 786 , 793 (Pa.Super. 2003). Furthermore, “a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland3 test, the court may proceed to that element first.” Commonwealth v. Lesko, 15 A.3d 345 , 374 (Pa. 2011). “If it is clear that Appellant has not demonstrated that counsel’s act or omission adversely affected the outcome of the proceedings, 3 Strickland v. Washington, 466 U.S. 668 (1984) (holding that to establish ineffectiveness, appellant must show the underlying claim has arguable merit, there was no reasonable basis for counsel’s actions or failure to act, and appellant was prejudiced). -5- J. S37045/20 the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.” Commonwealth v Albrecht, 720 A.2d 693 , 701 (Pa. 1998). Appellant claims his trial counsel was ineffective for not filing a petition for allowance of appeal to our supreme court after this court vacated appellant’s sentence and remanded the matter for resentencing. “[W]hile a defendant does not have an automatic right to an appeal in the [s]upreme [c]ourt, he has a right to file a PAA,4 provided that appellate counsel believes that the claims that a petitioner would raise . . . would not be completely frivolous.’” Commonwealth v. Ellison, 851 A.2d 977 , 979 (Pa.Super.2004), (citations and quotation marks omitted; emphasis in original), appeal denied, 862 A.2d 1253 (Pa. 2004). However, [b]efore a court will find ineffectiveness of counsel for failing to file a direct appeal, the defendant must prove that he requested an appeal and that counsel disregarded that request. Clearly, if a request to file a direct appeal is necessary to sustain an ineffectiveness claim based upon the failure to file a direct appeal, then such a request is also necessary where the alleged ineffectiveness is the failure to file a petition for allowance of appeal. Commonwealth v. Bath, 907 A.2d 619 , 622 (Pa.Super. 2006) (citations and quotation marks omitted), appeal denied, 918 A.2d 741 (Pa. 2007). Attorney Frisby, appellate counsel, testified to his actions after the decision of this court en banc. 4 PAA stands for petition for allowance of appeal. -6- J. S37045/20 I remember sending [appellant] a letter after the en banc panel explaining their holding. I believe I included a copy of the en banc panel decision. And I believe my practice would be to have informed him of my belief as to the viability of the [s]upreme [c]ourt appeal. However, I don’t have a distinct recollection of that letter. And, unfortunately, I provided my file to Mr. Simon and the computer where I drafted those letters has crashed and is now in a forever reboot mode so I can’t actually access my digital copy of that letter anymore either. I remember sending the letter. And it’s a fairly form letter, but I don’t remember the exact contents of it. But I believe I would have told him, [h]ere is the [s]uperior [c]ourt opinion, here is what they decided, we can go to the [s]upreme [c]ourt in this case, I believe I would have said, I don’t believe it is likely to be granted. Id. at 28 (bolding and italics added). He further testified that his letter would have informed appellant of this court’s decision and the reasons for the decision. (Id. at 35.) He would also have instructed appellant as follows: At this point you have a few decisions you can make. You can either request a review by the [s]upreme [c]ourt or you may elect to let it stand and review your matter in any other way including under [the] Post Conviction Relief Act. The decision is up to you. However, if you are going to file a petition for allocatur you must do so within 30 days of the date of the [s]uperior [c]ourt’s opinion. Let me know how you wish to proceed. Id. at 35-36. Attorney Frisby stated: I know I communicated with [appellant] on several occasions. I would have sent him a letter upon my appointment. I would have sent him a letter upon my filing of my initial three panel decision filing. I would have sent him a letter after receiving that three panel – three member panel decision. I would have sent -7- J. S37045/20 him another letter upon the en banc grant. I would have sent him a letter including my brief for the en banc decision. And I would have included a letter after argument to give him my feeling as to how the argument went. And then [he] would have sent him another letter after receiving the en banc decision. Id. at 36-37 (bolding and italics added). Had appellant communicated with Attorney Frisby via letter, if he wanted to do so, Attorney Frisby would have received it. (Id. at 38.) Furthermore, if Attorney Frisby had received correspondence from appellant, it would have been in the file he gave to David M. Simon, Esq., who was subsequently appointed to represent appellant at resentencing. (Id. at 39.) The PCRA court found the issue of Attorney Frisby’s ineffectiveness came “down to a question of credibility.” (PCRA court Rule 1925(a) opinion, 1/8/20 at 10.) The PCRA court noted that: [P]rior to the second evidentiary hearing, the Commonwealth obtained and distributed copies of the correspondence it had obtained from Mr. Simon’s file in his representation of [appellant]. Unfortunately, this correspondence fails to directly address the issue at hand. However, [appellant], in one piece of this correspondence, addressed his concerns regarding the merits of Mr. Simon’s advice as to the withdrawal of his direct appeal, in favor of filing a PCRA petition. [Appellant] stated therein; [sic] ‘I am in receipt of your letter i [sic] been doing a lot of thinking about my decision about the PCRA. So you think a PCRA is a better successful move for us? My other [l]awyer said the same thing i [sic] really don’t know what to do please help me come to a decision please.” (Court’s Exhibit “A”) The [PCRA] [c]ourt finds this comment supports Mr. Frisby’s testimony that he advised [appellant] of his right to file a PAA or, in the alternative, file a PCRA petition. -8- J. S37045/20 Id. at 10-11. The PCRA court found that appellant did not request Attorney Frisby to file a PAA. The PCRA court’s credibility determinations are supported by the record, and its legal conclusions are free of legal error. Accordingly, we agree that appellant’s claim of ineffective assistance of counsel is without merit.5 Appellant avers that the PCRA court erred when it denied him permission to amend/supplement his PCRA petition, thereby violating Pa.R.Crim.P. 905. Appellant’s counsel asserts that the PCRA court should have permitted him to file a supplemental PCRA petition asserting the ineffectiveness claims, raised by Attorney Buck in her amended PCRA petition, with respect to Attorney Scott. (Appellant’s brief at 14, 21-22.) Pennsylvania Rule of Criminal Procedure 905 provides, in relevant part: The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice. Pa.R.Crim.P. 905(A). Our supreme court has stated that the purpose of Rule 905 is “to provide PCRA petitioners with a legitimate opportunity to present their claims to the PCRA court in a manner sufficient to avoid dismissal 5 We further note that appellant has not challenged this court’s “holding on the waiver issue. As the waiver issue does not go to the merits of the appeal but, instead raises an issue of counsel’s ineffectiveness to preserve the issues, it is not reviewable on direct appeal.” Id. at 10. See Commonwealth v. Rosenthal, 233 A.3d 880 , 886 (Pa.Super. June 8, 2020) (finding ineffective assistance of counsel claim not cognizable on direct appeal and must be deferred to collateral review). -9- J. S37045/20 due to a correctable defect in claim pleading or presentation.” Commonwealth v. McGill, 832 A.2d 1014 , 1024 (Pa. 2003), citing Commonwealth v. Williams, 782 A.2d 517 , 526-527 (Pa. 2001). “Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court.” Commonwealth v. Crispell, 193 A.3d 919 , 930 (Pa. 2018), citing Commonwealth v. Flanagan, 854 A.2d 489 , 499-500 (Pa. 2004), affirmed and remanded for trial, 854 A.2d 489 (Pa. 2004), reargument denied, 861 A.2d 254 (Pa. 2004). The Flanagan court further found that it is left to the discretion of the PCRA courts to permit a petition to amend a PCRA petition. Flanagan, 854 A.2d at 500. However, Pennsylvania Rule of Criminal Procedure 902(B) requires that “[e]ach ground relied upon in support of the relief requested shall be stated in the [PCRA] petition. Failure to state such a ground in the petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief.” Pa.R.Crim.P. 902(B). Further, it is clear from [Rule 905(A)]’s text that leave to amend must be sought and obtained, and hence, amendments are not self-authorizing. . . . [A] petitioner may not simply amend a pending petition with a supplemental pleading.” Rather, Rule 905 explicitly states that amendment is permitted only by direction or leave of the PCRA Court. Commonwealth v. Baumhammers, 92 A.3d 708 , 730 (Pa. 2014) (citations and quotation marks omitted). - 10 - J. S37045/20 In addition, “[t]he assertion of a new claim after the court has heard argument and indicated its intent to dismiss the petition militates in favor of the decision to deny leave to amend.” Commonwealth v. Williams, 732 A.2d 1167 , 1191 (Pa. 1999). A petitioner “does not . . . have the right to amend his PCRA petition after the lower court has already denied it.” Commonwealth v. Jones, 815 A.2d 598 (Pa. 2002) (citation omitted). Here, Attorney Buck filed an amended PCRA petition asserting Attorney Simon’s6 ineffectiveness as follows: 21. . . . (1) as a matter of law, Mr. Simon, Esquire, was ineffective at [appellant]’s re-sentencing for advising [appellant] that all of his issues previously raised on appeal were precluded from further review; and (2) assuming Mr. Simon withdrew the appeal at his client’s request, Mr. Simon deprived [appellant] of his appellate rights by withdrawing the appeal. Appellant’s amended PCRA petition, 7/9/18 at unnumbered 4, ¶ 21. Attorney Buck was permitted to withdraw and present counsel, Attorney Levin, was appointed. He filed an amended PCRA petition alleging that “[c]ounsel was ineffective for failing to file an [a]llocatur [p]etition to the Supreme Court of Pennsylvania.” (Amended PCRA petition, 10/15/18 at 4.) In a footnote, Attorney Levin states that if appellant’s issue of allocatur is denied, appellant requests to submit a supplemental PCRA petition on the issue of Attorney’s Simon’s withdrawal of appellant’s appeal. (Id. at 4 n.1.) 6 Resentencing and second direct appeal counsel. - 11 - J. S37045/20 Appellant’s current PCRA counsel was neither precluded from asserting Attorney Simon’s ineffectiveness in his October 15, 2018 amended PCRA petition, nor arguing it at the PCRA hearings. Counsel, however, contends that the matter of the nunc pro tunc appeal to the supreme court had to be decided before any other issues could be litigated. (Appellant’s brief at 22.) At the September 26, 2019 PCRA hearing, Attorney Levin stated as follows: Your Honor, if I am filing for a nunc pro tunc then I am not able to raise any of the other issues. If he’s saying my lawyer never filed an appeal either to Superior Court or Supreme Court and he also listed as pro se, also the lawyer was drunk at trial or he didn’t call a witness or he didn’t do something else, I can’t raise that because my only issue at this point is the nunc pro tunc appeal which is why it was put in there under Rule 905; that if the nunc pro tunc is disallowed, then I am allowed to raise the other issues. So I couldn’t raise what Susan Buck raised about the Superior Court because the DA’s Office is going to say to me, which issue are you going on; the allocatur or the Superior Court? I figure at this point, the allocatur was the better issue. If we lost on that then I want to go on the amended PCRA that Ms. Buck filed which is that David Simon filed the notice of appeal, that [sic] he wrote [appellant]. He said you can’t go forward on it because the issues aren’t good and the appeal was withdrawn and Mr. Simon was wrong in that regard. I -- he told me that and I don’t know if he told -- that’s the issue with Ms. Buck’s appeal. Notes of testimony, 9/26/19 at 10-11. Appellant cites no case law in support of this contention. Claims may be waived, under Pa.R.A.P. 2119(a), for failure to cite to relevant case law or to otherwise develop issues in a meaningful fashion - 12 - J. S37045/20 capable of review. See Commonwealth v. Johnson, 985 A.2d 915 , 924 (Pa. 2009) (indicating that “where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived” (citations omitted)). Furthermore, as noted by the PCRA court: Since [appellant] did not seek to amend his “second amended petition,” filed by Mr. Levin, to include this allegation [as to Attorney Simon’s ineffectiveness], it is deemed waived. Although [appellant] mistakenly asserts that he has preserved this issue simply by making reference to it in his petition, this is insufficient in view of Baumhammers. PCRA court Rule 1925(a) opinion at 12. Thus, the allegation of error in the PCRA court’s denial of a supplemental PCRA petition by appellant is waived.7 For all the foregoing reasons, we affirm the September 26, 2019 order of the PCRA court. Order affirmed. 7 To the extent that appellant would have sought to raise additional issues in his discontinued resentencing appeal, he would not have been permitted to raise any substantive issues involving his conviction, but only issues related to his resentencing. - 13 - J. S37045/20 Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 12/01/2020 - 14 -
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J-A29009-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW MICHAEL PHILLIPS, JR. : : Appellant : No. 1769 MDA 2019 Appeal from the Judgment of Sentence Entered September 10, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001186-2018 BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.* MEMORANDUM BY DUBOW, J.: FILED DECEMBER 01, 2020 Appellant, Andrew Michael Phillips, Jr., appeals from the September 10, 2019 Judgment of Sentence entered in the Lackawanna County Court of Common Pleas following his open guilty plea to Aggravated Assault1. With this appeal, Appellant’s appointed counsel, Donna M. De Vita, has filed an Application to Withdraw as Counsel and an Anders2 Brief. Appellant challenges the discretionary aspects of his sentence. After careful review, we conclude that Appellant has waived this claim. Thus, we affirm Appellant’s Judgment of Sentence and grant counsel’s Application to Withdraw as Counsel. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2702(a)(4). 2 Anders v. California, 386 U.S. 738 (1967). J-A29009-20 Briefly, on November 30, 2018, Appellant entered an open guilty plea to Aggravated Assault. On September 10, 2019, court sentenced Appellant to a term of 27 to 72 months’ incarceration.3 Appellant did not file a Motion for Reconsideration of Sentence. This appeal followed.4, 5 Both Appellant and the trial court complied with Pa.R.A.P. 1925. ____________________________________________ 3 At the time that Appellant committed the instant offense, he was serving a 2-year sentence of probation for Resisting Arrest at Docket Number 1481- 2015. Appellant’s arrest for Aggravated Assault engendered revocation proceedings at Docket Number 1481-2015, resulting in revocation of his probation and resentencing to a new term of 2 years’ probation. Appellant did not file a Notice of Appeal from the sentence of probation entered at Docket Number 1481-2015. 4On October 22, 2019, the trial court appointed Attorney De Vita to represent Appellant on appeal. 5 Appellant filed a pro se Notice of Appeal from prison by letter dated October 7, 2019. The lower court clerk docketed Appellant’s Notice of Appeal on October 16, 2019. The envelope in which Appellant transmitted the Notice of Appeal bears a date stamp reading either October 7, 2019, or October 12, 2019. Although the clerk docketed the Notice of Appeal beyond the 30-day appeal period, we deem Appellant’s pro se appeal timely pursuant to the prisoner mailbox rule. See Commonwealth v. Chambers, 35 A.3d 34 , 38 (Pa. Super. 2011) (explaining that, under the prisoner mailbox rule, an appeal by a pro se prisoner is deemed filed on the date the prisoner deposits the appeal with prison authorities or places it in a prison mailbox). -2- J-A29009-20 Anders Brief Counsel has filed an Anders Brief challenging the discretionary aspects of Appellant’s sentence.6 Anders Brief at 4. Counsel has also filed an Application to Withdraw as Counsel. “When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287 , 290 (Pa. Super. 2007) (en banc) (citation omitted). Prior to withdrawing as counsel on direct appeal under Anders, counsel must file a brief that meets the requirements established by the Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), namely: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. 978 A.2d at 361. ____________________________________________ 6 Appellant has also challenged his revocation sentence entered at Docket Number 1481-2015. However, as noted, supra, Appellant did not file a Notice of Appeal from that sentence. Accordingly, Appellant has waived any challenge to imposition of that sentence. -3- J-A29009-20 In addition, counsel must provide a copy of the Anders brief to his client. “Attending the brief must be a letter that advises the client of his right to: ‘(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.’” Commonwealth v. Orellana, 86 A.3d 877 , 880 (Pa. Super. 2014) (quoting Commonwealth v. Nischan, 928 A.2d 349 , 353 (Pa. Super. 2007)). Counsel has complied with the requirements of Anders as articulated in Santiago and supplied Appellant with a copy of the Anders Brief and a letter explaining the rights enumerated in Orellana. See Anders Brief; Application to Withdraw as Counsel, Exh. A (Letter, dated Sept. 15, 2020). Accordingly, counsel has satisfied the technical requirements for withdrawal.7 Having addressed counsel’s technical compliance with Anders, we will address the substantive issue raised by counsel. In addition, we must conduct “a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266 , 272 (Pa. Super. 2018) (en banc). ____________________________________________ 7 Appellant did not respond to counsel’s Anders Brief. -4- J-A29009-20 Discretionary Aspects of Appellant’s Sentence Appellant challenges the discretionary aspects of his sentence. Anders Brief at 12-13.8 A challenge to discretionary aspects of a sentence is not reviewable as a matter of right. Commonwealth v. Leatherby, 116 A.3d 73 , 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a post-sentence motion; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.; Commonwealth v. Evans, 901 A.2d 528 , 533 (Pa. Super. 2006). Appellant timely appealed. However, this Court’s review of the record indicates that Appellant failed to preserve this issue by raising it at sentencing or in a Post-Sentence Motion. Accordingly, he has waived it. See Commonwealth v. Cartrette, 83 A.3d 1030 , 1042 (Pa. Super. 2013) (explaining that a defendant waives a challenge to the discretionary aspects ____________________________________________ 8 “Where a defendant pleads guilty without any agreement as to sentence, the defendant retains the right to petition this Court for allowance of appeal with respect to the discretionary aspects of sentencing.” Commonwealth v. Brown, 982 A.2d 1017 , 1019 (Pa. Super. 2009) (citation omitted). -5- J-A29009-20 of his sentence if he fails to present the claim to the trial court at sentencing or in a post-sentence motion). Following our review of the issue raised by Appellant in counsel’s Anders Brief, we agree with counsel and conclude that this appeal is wholly frivolous. In addition, following an independent review of the record, we discern no arguably meritorious issues that warrant further consideration. Accordingly, we grant counsel’s Application to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence. Application to Withdraw as Counsel granted; Judgment of Sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 -6-
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http://www.pacourts.us/assets/opinions/Superior/out/J-A27031-20m - 104620238121005182.pdf
J-A27031-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CALVIN PAYNE : : Appellant : No. 3256 EDA 2019 Appeal from the Judgment of Sentence Entered September 26, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006838-2018 BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED DECEMBER 1, 2020 Appellant, Calvin Payne, appeals from the judgment of sentence of 23 months of intermediate punishment, which was imposed after his conviction at a bench trial for simple assault.1 As part of his sentence, Appellant was also ordered to pay restitution in the amount of $11,019.09 to the Victim Compensation Assistance Program and in the amount of $857.20 directly to the victim. After careful review, we are compelled to find that Appellant has failed to preserve any claims and, ergo, to affirm his judgment of sentence. In its opinion, the trial court fully and correctly set forth the relevant facts and underlying procedural history of this case. See Trial Court Opinion, ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 2701(a)(1). J-A27031-20 dated February 21, 2020, at 1-14. Therefore, we have no reason to restate them at length here. For the convenience of the reader, we briefly note that, on August 31, 2018, at 11:01 P.M., police were dispatched to a banquet facility at McCall’s Golf Course; upon arriving at the scene, an officer observed Tiffany Leverich (“the Victim”) lying on the ground. N.T., 6/20/2019, at 13, 17. The Victim immediately identified Appellant as her assailant. Id. at 18. On September 26, 2019, Appellant was sentenced to 23 months of intermediate punishment and ordered “to pay restitution as follows: First, to the Victims Compensation Assistance Program at their address in the amount of $11,019.09.[2] Secondly, to [the Victim], in the amount of $857.21.” N.T., 9/26/2019, at 87. On October 4, 2019, Appellant filed a motion for reconsideration of sentence, including a challenge to the restitution award; the trial court denied the motion on October 11, 2019. Appellant filed this timely direct appeal on ____________________________________________ 2 The $11,019.09 was comprised of four (4) separate awards: January 7, 2019 $5,022.15 March 1, 2019 $1,928.95 April 28, 2019 $1,572.29 June 27, 2019 $2,495.70 Total $11,019.09 Commonwealth’s Sentencing Memo, 9/18/2019, Exh. B. Trial Court Opinion, dated February 21, 2020, at 34. -2- J-A27031-20 November 8, 2019. Appellant thereafter filed his statement of errors complained of on appeal, in which he challenged the weight of the evidence, the discretionary aspects of sentencing, and the amount of restitution awarded.3 The trial court entered its opinion on February 21, 2020. Appellant now presents the following issues for our review: 1. Whether the [Commonwealth] presented sufficient evidence at trial to sustain Appellant’s conviction for Simple Assault beyond a reasonable doubt? 2. Whether the sentencing court abused its discretion when it sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable? ____________________________________________ 3 In its opinion, the trial court stated: “Appellant contends the restitution amount of $11,019.09 payable to the Victim’s Compensation Assistance Program is excessive and there was no evidence to support the award.” Trial Court Opinion, dated February 21, 2020, at 30. However, in his statement of errors complained of on appeal Appellant also explicitly referenced the restitution to be paid to the Victim personally: 23. Additionally, as part of the Appellant’s sentence he was also ordered to pay restitution in the amount of $11,019.09 to Victims Compensation Assistance Program and pay restitution in the amount of $857.20 to the [V]ictim personally. 24. The Appellant respectfully suggests that this amount is excessive as there was no sufficient evidence to support where the amount the Victims Compensation Assistance Program paid out while the case was pending trial came from nor how the specific injury was attributable to the actions of the Appellant. Concise Statement of Matters Complained of on Appeal, 12/11/2019, at ¶¶ 23-24. Accordingly, we find that Appellant’s statement of errors included a challenge to the restitution award of $857.20, as well. -3- J-A27031-20 3. Whether the restitution amount was excessive, as it was not based on the record, and Appellant is not the “but–for” cause of the injuries to the [V]ictim? Appellant’s Brief at 5 (trial court’s answers omitted). Preliminarily, we observe that Appellant failed to challenge the sufficiency of the evidence in his statement of errors complained of on appeal; accordingly he has waived his first appellate claim. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”). His challenge to the weight of the evidence in his statement of errors fails to preserve a challenge to the sufficiency of the evidence, as weight and sufficiency are distinct concepts and, consequently, are not interchangeable. See Commonwealth v. Widmer, 744 A.2d 745 , 751 (Pa. 2000) (delineating the distinction between a claim challenging the sufficiency of the evidence and a claim challenging the weight of the evidence). Next, Appellant challenges the discretionary aspects of his sentence of intermediate punishment. Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e conduct a four- part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). -4- J-A27031-20 Commonwealth v. Manivannan, 186 A.3d 472 , 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018). In the current case, Appellant filed a timely notice of appeal, preserved his issue in a post-sentence motion, and included a statement in his brief pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’s Brief at 25-28. The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, “must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Manivannan, 186 A.3d at 489 (quotation marks and some citations omitted). “As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. An appellant must articulate the reasons the sentencing court’s actions violated the sentencing code.” Commonwealth v. Bebout, 186 A.3d 462 , 470–71 (Pa. Super. 2018) (citations omitted), reargument denied (July 10, 2018). In his Rule 2119(f) Statement, Appellant cites to certain case law, then asserts that this case law applies to his challenge, without articulating how the facts of his matter connect to this case law. See Appellant’s Brief at 25- 28. We cannot accept Appellant’s bald assertions of sentencing errors. Bebout, 186 A.3d at 470–71. To the extent that Appellant suggests that this -5- J-A27031-20 Court look to his statement of errors complained of on appeal for “specific [c]ounts where he asserts the trial court erred or abused its discretion when ordering his judgment of sentence[,]” Appellant’s Brief at 28, we observe that “we cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists.” Commonwealth v. Diehl, 140 A.3d 34 , 45 (Pa. Super. 2016). Ergo, Appellant has failed to “advance[] a colorable argument” that a substantial question exists, and he hence failed to preserve a challenge to the discretionary aspects of his intermediate punishment sentence. Manivannan, 186 A.3d at 489.4 Finally, Appellant challenges the award of restitution. Appellant’s Brief at 33-37. “[A] challenge to the sentencing court’s determination as to the amount of restitution sounds in sentencing discretion and, therefore, must be preserved.” Commonwealth v. Weir, ___ A.3d ___, No. 28 WAP 2019, at 1, 2020 WL 5822534 , at *1 (Pa. filed October 1, 2020) (determining whether a challenge to the amount of restitution imposed pursuant to Section 1106 of ____________________________________________ 4Assuming Appellant had preserved his challenge to the discretionary aspects of his intermediate punishment sentence, we would still find his challenge to be meritless for the reasons discussed in the trial court opinion. See Trial Court Opinion, dated February 21, 2020, at 26-30. -6- J-A27031-20 the Pennsylvania Crimes Code, 18 Pa.C.S. § 1106,5 “implicates the discretionary aspects of sentencing or the legality of the sentence, a dichotomy relevant to the need for issue preservation”). Accordingly, we must conduct the aforementioned four-part analysis prior to reaching the merits of this discretionary sentencing issue. Manivannan, 186 A.3d at 489. Appellant filed a timely notice of appeal and preserved his issue in a post-sentence motion. However, his Rule 2119(f) Statement makes no mention of restitution. See Appellant’s Brief at 25-28. Consequently, he has also failed to preserve a challenge to the discretionary aspects of his sentence of restitution. Manivannan, 186 A.3d at 489. Based on the foregoing, we are constrained to find all of Appellant’s issues waived, and we may not address the merits of those issues. Hence, we affirm his judgment of sentence. Judgment of sentence affirmed. ____________________________________________ 5 Restitution is authorized under both the Crimes Code and under the Sentencing Code. The Crimes Code, in 18 Pa.C.S. § 1106, controls restitution as a direct sentence. The Sentencing Code, in 42 Pa.C.S. § 9754, permits a sentence of probation and offers a non-exclusive list of permissible conditions of probation, including restitution. Commonwealth v. Deshong, 850 A.2d 712 , 715–16 (Pa. Super. 2004). In its opinion, the trial court specifically stated that it ordered the restitution award pursuant to the Crimes Code under 18 Pa.C.S. § 1106. Trial Court Opinion, dated February 21, 2020, at 31. Ergo, it is part of Appellant’s direct sentence. Deshong, 850 A.2d at 715–16. -7- J-A27031-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 -8-
4,489,095
2020-01-17 22:01:39.807463+00
Murdock
null
*1241OPINION. Murdock : The petitioner contends that under the Revenue Act of 1921 it is entitled to deduct the amount of $242,243.08 either as a debt ascertained to be worthless and charged off or as a loss sustained in that year. If the petitioner at the end of 1921 had a building for the construction of which it had just paid $1,218,349.08, certainly it has not sustained a loss merely because it had had a contract guaranteeing the construction of this building for a lesser amount, which contract had been broken by the other party to it. Failure to profit by a favorable bargain for the construction of a building does not occasion a loss within the meaning of the Revenue Act. The petitioner further contends that (1) it had a claim against the F. E. Walters Co. which cost $242,243.08, (2) this amount was expended for the claim and was not a part of the cost of the building, and (3) the claim became worthless, was ascertained to be worthless and was charged off in the year 1921. We disagree with the petitioner on each of these points. That the petitioner paid $242,-243.08, or any other amount for whatever claim it had against the F. E. Walters Co. has not been shown. Where money has been paid to release liens of subcontractors or material men whom the contractor should have paid but did not, a claim against the contractor in a sense has been purchased and a loss may result. See Leichner & Jordan Co., 4 B. T. A. 133. But where the contractor refused to complete a building, as here, it is not accurate to say that a claim *1242was purchased by the expenditures necessary to complete the building. In the latter case the money was spent to complete the building, not to pay for a claim. The claim would have been the same had no money been spent, except that the completion of the building might have been necessary in order to minimize the damages. We do not know how much was paid by the petitioner for the release of liens and as to the balance of the claim we hold that it is not a debt which could form the basis for a deduction under section 234 (a) (5) of the Revenue Act of 1921. The respondent contends that the cost of the building was the amount which the petitioner paid for it and not the amount which the contract guaranteed would not be exceeded in the construction of the building. This contention seems sensible and under sections 235 and 215 (a) (2) it would dispose of this case. But suppose, for the sake of argument, that the Commissioner was in error in regard to the cost of the building and also that the petitioner had a claim against the F. E. Walters Co. which cost $242,243.08, nevertheless, this amount could not be deducted in the year 1921 under any circumstances unless the claim was ascertained to be worthless in that 3rear. From the evidence we are unable to determine that any claim which the petitioner had against the F. E. Walters Co. was ascertained to be worthless in the year 1921. We have found as a fact, from the testimony of a witness, that when the petitioner started suit against the F. E. Walters Co. on May 5, 1921, it expected to recover. Not until December 27, 1921, was the petitioner notified that on December 23, 1921, the F. E. Walters Co. had been adjudicated a bankrupt on its voluntary petition and that only $302.39 of assets were listed on the statement attached to the petition. This, so far as. we have been told, was the first intimation which the petitioner had that the F. E. Walters Co. was unsound financially. The news was no doubt disturbing, yet it seems only reasonable to expect that one having a claim of approximately a quarter of a million dollars would not take the bankrupt’s statement of its assets as conclusive, but would make some more thorough investigation to satisfy itself that its claim was really worthless. We know now that the creditors eventually received nothing, but we have not been told of facts which the petitioner knew in 1921 which would show that it then ascertained the claim to be worthless. Counsel several times asked for such facts, but the witness never gave any satisfactory answer. Judgment will be entered for the-respondent.
4,638,541
2020-12-01 18:12:36.819562+00
null
http://www.pacourts.us/assets/opinions/Superior/out/J-S38013-20m - 104619772120964689.pdf
J-S38013-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY MICHAEL MOYER : : Appellant : No. 204 MDA 2020 Appeal from the Judgment of Sentence Entered January 15, 2020, in the Court of Common Pleas of Lebanon County, Criminal Division at No(s): CP-38-CR-0001274-2018. BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020 In this matter, Jeffrey Michael Moyer appeals from the judgment of sentence imposed after a jury convicted him of strangulation1, endangering the welfare of a child2, and simple assault3. Moyer argues each conviction lacked sufficient evidence, or in the alternative, that his actions were legally justifiable, because they constituted parental discipline under 18 Pa.C.S.A. § 509(1). After review, we affirm. The three convictions stem from a singular incident, which occurred on the evening of July 31, 2018. According to Moyer, he and his eight-year-old ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 2718(a)(1) 2 18 Pa.C.S.A. § 4304(a)(1) 3 18 Pa.C.S.A. § 2701(a)(1) J-S38013-20 son, B.M., were watching television with Moyer’s paramour4, Rebecca (B.M.’s stepmother), B.M.’s step-sister J.H., and his half-siblings C. and K. Moyer claimed B.M. misbehaved by holding a plastic baseball bat between his legs to imitate his genitalia, and then repeatedly poked his step-sister in the buttocks with the bat, despite her repeated demands that he stop. See N.T., 8/27/19, at 101. According to Moyer, because B.M. had previously acted out in a sexual manner, on this night Moyer decided to impose physical discipline. Id. at 95-97; see also Exhibits 6-7. Moyer testified that he physically moved B.M. to another part of the sectional couch, grabbed hold of B.M.’s chin and jaw to raise the child’s face to make eye contact, and then asked how many times he must be asked to stop doing something before he complied. Id. at 101-103. B.M. talked back, saying it would take “a lot” of times. Id. at 103. Moyer then carried B.M. by the arm and leg over the baby gate and out of the room. Moyer testified that he gave his son a light kick on his buttocks with the side of his foot and sent B.M. to his room. Id. at 105-106. Rebecca’s testimony about the altercation corresponded with Moyer’s. Later that evening, B.M. returned to the custody of his mother, Kelly Cole, as part of the normal custody exchange. This was not the version of events the jury believed. ____________________________________________ 4 On a tangential note, we observe an ambiguity within the record. The transcript lists Rebecca’s last name as “Boyer,” while Moyer’s Brief refers to Rebecca as his spouse. Moyer and Rebecca have two children together, C. and K. -2- J-S38013-20 According to other testimony, when Moyer dropped B.M. off at Ms. Cole’s home, Ms. Cole immediately noticed a red mark on B.M.’s neck and questioned Moyer. Moyer told her he had “gripped him up.” Id. at 36. After Moyer left, Ms. Cole took B.M. into her kitchen to show her husband. She took pictures of B.M.’s injury and asked the child what transpired. See Exhibit 1A-H. B.M. told her that Moyer grabbed him by his neck – first by one hand, then by two – and moved him to the other end of the couch. He also told her that Moyer threw him over the baby gate and kicked him in the head and neck, and that he also hit his head off of a door. Id. at 39. B.M. told Ms. Cole that he could not breathe while Moyer had his hands around B.M.’s throat. B.M. also said that he tried to answer Moyer’s questions (“Do you listen?”) during the incident, but he could not physically respond because he could not breathe. Id. at 39-40. Ms. Cole called the authorities that same night, and Pennsylvania State Police Trooper Manuel Cabrera responded. Trooper Cabrera immediately saw the injuries to B.M.’s neck and jaw. Id. at 72. Trooper Cabrera testified that B.M. said Moyer grabbed him by the throat, and lifted him off the ground until he could not breathe. Id. at 73. B.M. said he could not breathe for about 15 seconds. Id. After meeting with B.M. and Ms. Cole, Trooper Cabrera went to Moyer’s residence to interview him. Moyer told Trooper Cabrera that he disciplined B.M., but denied that he injured B.M. Moyer also told Trooper Cabrera that B.M. frequently makes things up. -3- J-S38013-20 Trooper Cabrera also spoke with Rebecca. Trooper Cabrera testified that, although Rebecca said that she was not present during the incident, she claimed B.M. was lying. Id. at 84. This testimony comported with B.M.’s testimony, who also testified Rebecca was not present during the incident. The next day Trooper Cabrera met with B.M. and Ms. Cole at the police station, where he noticed that the bruising appeared more pronounced. Id. at 74. Trooper Cabrera also observed that on the left side of B.M.’s face there were pinpoint marks, red marks along his cheek area that were consistent with broken blood vessels. He took more photographs, which depicted how the injury presented over the course of 24 hours. See Exhibit 2. Ms. Cole also took B.M. to the emergency room the day after the incident occurred. B.M. was seen by physician’s assistant Linda Wenger, who did not recommend further treatment. Moyer was charged with strangulation, endangering the welfare of a child, and simple assault. Following a jury trial on August 27, 2019, Moyer was convicted of all three offenses. On January 15, 2020, the court sentenced Moyer to an aggregate term of incarceration of 12 months to 5 years. Moyer timely appealed and presents three issues for our review: 1. Whether there was sufficient evidence presented at trial to enable the fact-finder to find each element necessary for conviction for the charge of Strangulation under 18 Pa.C.S.A. § 2718(a)(1) since the evidence presented at trial was insufficient to establish that the appellant knowingly or intentionally impeded the breathing or circulation of the blood of the alleged victim by applying pressure to the throat or neck, as required to sustain conviction of the -4- J-S38013-20 offense, where the offense occurred within the boundaries of parental discipline of appellant’s child? 2. Whether there was sufficient evidence presented at trial to enable the fact-finder to find each element necessary for conviction for the charge of Endangering the Welfare of a Child under 18 Pa.C.S.A. § [4304] (a)(1) since the evidence presented at trial was insufficient to establish that the appellant knowingly endangered the welfare of a child by violating a duty of care, protection, or support as required to sustain a conviction of the offense, where the offense occurred within the boundaries of parental discipline of appellant’s child? 3. Whether there was sufficient evidence presented at trial to enable the fact-finder to find each element necessary for conviction for the charge of Simple Assault under 18 Pa.C.S.A. § 2701(a)(1) since the evidence presented at trial was insufficient to establish that the appellant attempted to cause, or intentionally, knowingly, or recklessly caused bodily injury to another as required to sustain a conviction of the offense, where the offense occurred within the boundaries of parental discipline of appellant’s child? Moyer’s Brief at 4-5. Moyer’s three appellate issues correspond to each of his convictions. For all the issues, Moyer presents a hybrid argument. In essence, Moyer contends first that the evidence was insufficient to prove that he committed the respective offense. Alternatively, he claims even if his conduct was otherwise criminal, he is entitled to the parental justification defense to escape criminal liability, pursuant to 18 Pa.C.S.A.§ 509(1). See Moyer’s Brief at 12- 27. “Where applicable, the parental justification defense ‘defines conduct that is otherwise criminal, but which under the circumstances is socially acceptable and which deserves neither criminal liability nor even censure.’” -5- J-S38013-20 Commonwealth v. Yachimowski, 232 A.3d 861 , 866 (Pa. Super. 2020) (citing Wayne R. LaFave, 2 SUBSTANTIVE CRIMINAL LAW § 9.1(a)(3) (3d ed.) (further quotations and citations omitted) (emphasis added). I. For ease of disposition, we first determine whether the Commonwealth presented sufficient evidence to convict Moyer for each of his three offenses. In reviewing sufficiency challenges, we have said: As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. Commonwealth v. Franklin, 69 A.3d 719 , 722-23 (Pa. Super. 2013) (internal quotations and citations omitted). Importantly, “the jury, -6- J-S38013-20 which passes upon the weight and credibility of each witness's testimony, is free to believe all, part, or none of the evidence.” Commonwealth v. Ramtahal, 613 Pa. 316 , 33 A.3d 602 , 607 (2011). We begin with Moyer’s first conviction, strangulation. The offense of strangulation is defined as follows: (a) Offense defined.--A person commits the offense of strangulation if the person knowingly or intentionally impedes the breathing or circulation of the blood of another person by: (1) applying pressure to the throat or neck 18 Pa.C.S.A. § 2718(a). Moreover, “[i]nfliction of a physical injury to a victim shall not be an element of the offense. The lack of physical injury to a victim shall not be a defense in a prosecution under this section.” 18 Pa.C.S.A. § 2718(b). Still, a person is not guilty of this offense unless he acted intentionally or knowingly with respect to each material element of the offense. See 18 Pa.C.S.A. § 302 (minimum requirements of culpability). Section 302(b) provides: (1) A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. -7- J-S38013-20 (2) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. 18 Pa.C.S.A. § 302(b) Moyer argues: If [B.M.’s] breathing was in fact impeded within [the] meaning of the statute, the degree of impediment was still minimal. Against that backdrop, it cannot be said that the occurrence of such a minimal impediment, alone, evidences Moyer’s conscious object to cause that effect or his appreciation that such an effect was certain to happen. Moyer’s Brief at 19. Moyer reasons that there were “no additional factors, like concomitant statements, which prove intentional or knowing conduct designed to impede the child’s breathing.” Id. Moyer premises his argument on his trial testimony that he merely took B.M.’s jaw, and held it up so he could look B.M. in the eye. See id. at 16. Moyer argues further that B.M. “did not sustain any injuries consistent with suffering forceful punishment from his father.” Id. However, the record belies Moyer’s depiction of events. Here, B.M. testified that Moyer strangled him by grabbing his throat with both hands with such force that he could not breathe. B.M. tried to answer Moyer’s questions (“Do you listen?”) but was physically unable to respond. -8- J-S38013-20 See N.T. at 19-20. Afterward, B.M.’s mother, Ms. Cole, immediately observed – and photographed – the physical manifestations of Moyer’s force. So did Trooper Cabrera, who noted that the bruising was even more pronounced the following day, and that on the left side of B.M.’s face, there were pinpoint red marks that were consistent with broken blood vessels. Exhibits 1A-H and 2 bear this out. B.M. said his throat felt like it had holes in it, and that it caused him physical pain for weeks. Id. at 22. In fact, the jury explicitly found Moyer caused bodily injury, even though such a finding was not necessary to convict Moyer. See 18 Pa.C.S.A. § 2718(b), supra. In rendering these findings, the jury was free to believe all, part, or not of the witnesses’ testimony. See Ramtahal, supra. On appeal, we view this evidence and testimony in a light most favorable to the Commonwealth. See Franklin, supra. Thus, for us to agree with Moyer, we would have to substitute our judgment for that of the jury’s – a direct circumvention of our well-established principles. See Franklin, supra. With this factual finding in mind, we cannot accept Moyer’s characterization that the impediment to B.M.’s breathing was minimal. B.M. suffered a physical injury that lasted for weeks. Critically, “a minimal impediment” to one’s breathing is still an impediment. Likewise, we disagree with Moyer’s argument that a conviction requires “additional factors, like concomitant statements.” Moyer cites no legal authority for this argument, and nothing in the statute, or our relevant case law, stands for such a proposition. Nonetheless, Moyer made concomitant statements during the -9- J-S38013-20 act. After B.M. sarcastically retorted that he would need to be told multiple times to stop hitting his sister, Moyer grabbed B.M. with both hands around his throat and asked, “Do you listen?” B.M. attempted to respond but was physically unable. Moyer acknowledged to Ms. Cole that he “gripped him up.” As such, the jury was entitled to infer Moyer was aware that the pressure he applied to B.M.’s throat impeded his breathing. We conclude there was sufficient evidence to support the strangulation conviction. Next, Moyer argues there was insufficient evidence that he knowingly endangered the welfare of the child. See Moyer’s Brief at 20. Our sufficiency analysis for this offense begins with the statutory definition: (1) A parent…supervising the welfare of a child under 18 years of age…commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. 18 Pa.C.S.A. § 4304(a)(1) (emphasis added). Moyer narrows his challenge to the knowledge element. Here, too, Section 302(b)(2) provides guidance. As applied to this offense, our Court has explained that “the accused must be ‘aware that the child is in circumstances that could threaten the child’s physical or psychological welfare[.]’” See Commonwealth v. Smith, 956 A.2d 1029 , 1038 (Pa. Super. 2008) (en banc) (further citation omitted). In other words, the “knowing” element of the crime applies to whether the defendant generally knew that he was endangering the child’s welfare, not whether the defendant knew that his actions would cause any particular result. Id. - 10 - J-S38013-20 On this point, Moyer argues the Commonwealth failed to establish that he knew disciplining of his son would have the opposite effect and endanger the child’s welfare. In making such an argument, Moyer conflates sufficiency of the evidence with the parental justification defense. We address the parental justification defense in detail below, but it is worth reiterating here that such a defense recognizes that the conduct in question is otherwise criminal. See Yachimowski, supra. As Moyer rightly acknowledges, we employ a “common sense of the community approach” to interpret this element of the statute: [W]e find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or of their failure to act. Commonwealth v. Miller, 600 A.2d 988 , 992 (Pa. Super. 1992); see also Moyer’s Brief at 21. In Smith we reasoned, “[i]t takes nothing more than common sense for an adult, let alone an experienced father such as [the appellant], to know that violently shaking an infant child with enough force to cause an abusive head trauma could threaten the child’s physical and/or psychological welfare.” Smith 956 A.2d at 1038-1039 (footnote omitted). In the case at bar, Moyer squeezed B.M.’s throat with such force that he left nail marks on the child’s neck and caused broken blood vessels on the child’s face. Moyer also kicked the child in the head and neck. Afterward, - 11 - J-S38013-20 B.M. became so fearful of Moyer that he told his mother he thought he would die if he went back to Moyer’s home. See N.T., 8/27/19, at 46. Like in Smith, we observe “it takes nothing more than common sense” for Moyer to know that his conduct could threaten the child’s physical and/or psychological welfare. We conclude that the jury could find Moyer’s actions to be beyond the “common sense of the community,” thereby satisfying the knowledge element. Thus, we conclude there was sufficient evidence for the jury to convict Moyer of endangering the welfare of the child. Finally, Moyer contests the sufficiency of evidence for his simple assault conviction. That offense is defined as follows: (a) Offense defined.—[…] a person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.] 18 Pa.C.S.A. § 2701(a)(1). We initially observe that the jury found that bodily injury was actually caused. Inexplicably, Moyer only contends that “[n]o evidence was introduced to show that…that in fact bodily injury resulted.” See Moyer’s Brief at 25. We need not rehash the various evidence and testimony supporting the jury’s findings, nor the well-established body of law that forbids us from substituting our judgment for that of the jury’s. It suffices to say there was sufficient evidence to support this conviction as well. II. - 12 - J-S38013-20 Having concluded sufficient evidence supports all three of Moyer’s convictions, we turn now to the most fervent aspect of Moyer’s appeal – whether the parental justification defense renders Moyer’s actions statutorily excusable. As Moyer correctly notes, Pennsylvania has long acknowledged that parents have a privilege to subject their children to corporal punishment when the children misbehave. See Commonwealth v. Ogin, 540 A.2d 549 , 554 (Pa. Super. 1988). Our Legislature codified this privilege as a parental justification defense at 18 Pa.C.S.A. § 509(1). Recently, this Court reiterated the purpose of this statute. The parental justification defense found in Section 509(1) attempts to balance competing interests. Commonwealth v. Ogin, 540 A.2d 549 , 554 (Pa. Super. 1988). On the one hand, Section 509(1) furthers the “primary role of parents in preparing children to assume the obligations and responsibilities of adults” and society's “need to ensure that the state through its criminal justice system does not unduly interfere with the private realm of family life.” Id. However, balanced against those interests is the state's “powerful interest in preventing and deterring the battering of children.” Id. Yachimowski, 232 A.3d at 866. Section 509(1) provides: The use of force upon or toward the person of another is justifiable if: (1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and: - 13 - J-S38013-20 (i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and (ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. 18 Pa.C.S.A. § 509(1) (emphasis added). The parental justification defense is a three-prong inquiry, which probes (1) the legal relationship of the actors, (2) the purpose of the force, and (3) the degree and nature of the force used. Here, it is self-evident Moyer satisfies the first two prongs of this analysis: Moyer, as a parent of the minor B.M., is a legally qualified actor; and no one disputes that the force Moyer used was for the punishment of B.M.’s misconduct, nor that B.M.’s misbehavior had been an ongoing issue. Only the third prong is in question. Thus, whether Moyer’s force was justifiable depends upon the nature and degree of that force. Moyer cites three cases where the force used was deemed unjustifiable and attempts to distinguish them from his case. In Ogin, supra, this Court concluded that appellant’s discipline was not justifiable, after a 17-month old baby was “flung…like a rag doll” against an outside wall of an apartment building, backhanded in the face, and had a plate of hot food shoved in her face when she would not eat her dinner. See Ogin, 540 A.2d at 551. In Commonwealth v. Douglass, 588 A.2d 52 , 55-56 (Pa. Super. 1991), this Court similarly ruled that a teacher was not justified in his use of corporal - 14 - J-S38013-20 punishment after paddling a first-grader between 50 and 60 times. In Commonwealth v. Tullius, 582 A.2d 1 , 2 (Pa. Super. 1990) a teacher shoved a backtalking sixth-grader against a locker, causing the child to have bruises on his arms, ear, back and neck; we concluded the discipline was not justified.5 Here, Moyer contends “[B.M.] did not sustain any injuries consistent with suffering forceful punishment from his father,” and the “only injuries sustained were faint bruising and minor scratches[.]” See Moyer’s Brief at 16. Moyer concludes that the evidence lacks any showing of extreme pain, mental distress or gross degradation. See id. at 25. In other words, Moyer’s only argument is he inflicted a minimal degree of force. This argument presumes that he did not actually injure B.M., despite the jury’s finding to the contrary – a finding firmly supported by the record, and thus a finding we must view in a light most favorable to the Commonwealth. Significantly, the analysis does not hinge on the degree of force used. Section 509(1)(ii) examines whether the force used is either “designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.” 18 Pa.C.S.A. § 509(1)(ii) (emphasis added). Therefore, we examine the ____________________________________________ 5Although Douglass and Tullius implicate Section 509(2) because the actors were teachers, these cases are still relevant to our analysis of the third prong. The criteria to determine whether the degree of force was justifiable is the same for teachers as it is for parents. See 18 Pa.C.S.A. § 509(2)(ii) (“the degree of force, if it had been used by the parent…would not be unjustifiable under paragraph (1)(ii)”). - 15 - J-S38013-20 nature of Moyer’s force – that is, strangulation – to determine whether such force was designed to cause, or known to create, inter alia, a substantial risk of death. In our review, we are faced with a dearth of case law pertaining to both strangulation under 18 Pa.C.S.A. § 2718(a)(1), as well as the parental justification defense’s “substantial risk of death” provision under 18 Pa.C.S.A. § 509.6 But we are not without guidance. Unlawful corporal discipline is a form of domestic violence. See, e.g., The Protection From Abuse Act, 23 Pa.C.S.A. § 6102(a).7 While domestic violence generally refers to violence between family members, it is most often understood as violence between paramours. Within this realm, strangulation is “known unequivocally” as one of the most lethal forms of domestic violence, and it is “one of the best predictors for subsequent homicide of victims of domestic violence.” G. Strack & C. Gwinn, On the Edge of Homicide: Strangulation as a Prelude, 26 FALL CRIM JUST 32, 33-34 (2011).8 ____________________________________________ 6 Although this Court recently decided Yachimowski, supra, the appeal did not involve strangulation. 7“The provisions of 23 Pa.C.S. Ch. 61 (relating to protection from abuse) are necessary and proper in that they further the Commonwealth’s compelling State interest to protect victims of domestic violence from abuse.” Historical and Statutory Notes, Act 2005-66 legislation, at 1. The Protection From Abuse Act defines “abuse” as “[t]he occurrence of one or more [qualifying] acts between family or household members, sexual or intimate partners or persons who share biological parenthood[.]” 23 Pa.C.S.A. § 6102(a). 8Strack and Gwinn define “strangulation” as the “external compression of the neck [that] can impede oxygen transport by preventing blood flow to or from - 16 - J-S38013-20 The major findings are now common knowledge:  most strangulation cases produce minor or no visible injury;  many victims, however, suffer internal injuries and have documentable symptoms;  most abusers do not strangle to kill – they strangle to show they can kill; [and]  victims often suffer major long-term emotional and physical impacts[.] Id. (Formatting and emphasis original) (some findings omitted).9 Of course, this study revealed strangulation to be a predictor of subsequent homicides in cases involving paramours – in fact, the study indicated that victims of prior attempted strangulation were seven times more likely to become homicide victims. See id. We are careful not to extrapolate this prediction to our case involving a parent and child. Our only focus is on the physical act itself, and whether it was “designed to cause,” or “known to create,” a substantial risk of causing death. We conclude that it was. Unquestionably, the degree and nature of force Moyer employed when he compressed B.M.’s neck was far beyond the justifiable use of parental discipline. ____________________________________________ the brain or direct airway compression.” Id. This definition comports with what happened in this case, as well as Pennsylvania’s legal definition of the offense. See 18 Pa.C.S.A. § 2718(a)(1) (“A person commits the offense of strangulation if the person knowingly or intentionally impedes the breathing or circulation of the blood of another person by: (1) applying pressure to the throat or neck.”). 9 These findings were also published in the Journal of Emergency Medicine as “Review of 300 Attempted Strangulation Cases” (2001). See id. - 17 - J-S38013-20 First, we disagree with Moyer that B.M.’s injury was minimal, as the testimony and properly admitted photographs illustrate otherwise. Moyer employed such force that the child’s blood vessels ruptured, leaving marks. He left fingernail indentations in the child’s neck. Linda Wenger, the physician’s assistant who treated B.M in the emergency room, testified that the cuts on B.M.’s neck were “consistent with fingernail scratches” and the bruises on his neck were “consistent with pressure of fingers[;] [t]hey lined up correctly for finger placement.” See N.T. at 66. B.M. testified that the bruising and pain lasted for weeks. Moreover, even minor injuries, when they occur as a result of a strangulation, are indicative of a substantial risk of death. “Victims may have no visible injuries, yet because of underlying brain damage due to the lack of oxygen during the strangulation assault, they may have serious internal injuries or they may the days – even weeks – later.” G. Strack & C. Gwinn, 26 FALL CRIM JUST at 34-45. Thankfully, there was no evidence of underlying brain damage in this case, but again, we focus on the risk created by the act, not the physical result. Contrary to Moyer’s argument, we are not bound by whether physical injury occurred. After all, the gravity of a strangulation, with or without injury, is made apparent by our Criminal Code’s explicit proclamation: “Infliction of a physical injury to a victim shall not be an element of [strangulation; and t]he lack of physical injury to a victim shall not be a defense in a prosecution under this section.” See 18 Pa.C.S.A. § 2718(b). In concluding that Moyer’s conduct - 18 - J-S38013-20 was both designed to cause and known to create a “substantial risk of death,” we need not address whether the facts of this case satisfied the other definitions of unjustifiable force, (i.e., “mental distress,” “extreme pain,” etc.). We note, however, that B.M. testified that he consequently feared for his life, and that he suffered pain that lasted for weeks.10 In sum, we conclude the Commonwealth presented sufficient evidence to allow a jury to convict Moyer for strangulation, endangering the welfare of a child, and simple assault. Furthermore, we conclude Moyer’s use of force was both designed to cause, and known to create, a substantial risk of death, pursuant to Section 509(1)(ii); consequently, Moyer was not entitled to the parental justification defense. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 ____________________________________________ 10 We also note a conclusion of Strack and Gwinn: “Strangulation is a form of power and control that can have a devastating psychological effect on victims in addition to the potentially fatal outcome, which includes the victim committing suicide.” G. Strack & C. Gwinn, 26 FALL CRIM JUST at 35. - 19 -
4,491,841
2020-01-17 22:03:05.430319+00
Trammell
null
opinion. Trammell: This proceeding is for the redetermination of a deficiency in income tax of $2,114.29 for 1925. The only matter put in controversy by the petition is whether a purchase-money note received by the petitioner in connection with the sale of certain real estate and secured by a mortgage on such property had a fair market value at the time of its receipt in 1925. In 1925 the petitioner sold to the Sanford Bond and Mortgage Company of Sanford, Fla., certain real estate known as the “ Hatfield grove” situated in Orange County, Florida, and which had cost her $35,000. The sale price was $90,000, of which $60,000 was represented by a negotiable promissory note of the purchaser dated September 1, 1925, payable “ On or before fifteen years after date ” and bearing interest at 7 per cent per annum, payable annually. The note was secured by a mortgage on the property. The expense of the sale was $9,648. The Sanford Bond and Mortgage Company was organized in the early part of 1924 and began business in November of that year. That company engaged in the business of making various kinds of loans, accepting notes secured by chattel mortgages and real estate mortgages as well as those having personal security. It was also engaged in building houses and selling them. The company was solvent in 1925, but began to have financial difficulties in subsequent years and by the latter part of 1928 its financial condition was bad. In 1928 this company was consolidated with the Southeastern Se*1116curities Corporation, to whom it transferred all of its assets includ • ing the “ Hatfield grove.” The Southeastern Securities Corporation assumed the mortgage given to the petitioner on that property. At some undisclosed date, but prior to December 4, 1930, the Southeastern Securities Corporation returned to the Sanford Bond and Mortgage Company all of the assets received from it. The evidence indicates that the petitioner, having found a purchaser for the “ Hatfield grove ” at a price less than the amount of the mortgage note held by her and the interest thereon, took back the property with the consent of the company. About December 4, 1930, the remaining assets were sold for about $7,000 by the sheriff at public sale. This amount was insufficient to satisfy the judgment under which the property was sold. In her' income-tax return for 1925 the petitioner reported the sale of real estate for $90,000. She reported having received $30,000 in cash and deferred payments of $60,000, which were shown as having “ no cash value.” She showed the “ unrealized profit ” from the transaction as $45,352, but included in her income no profit from the sale. In determining the deficiency here involved the respondent determined that the note secured by the mortgage on the property had a fair market value of $35,000. He accordingly computed the profit from the sale at $20,352 and increased the petitioner’s taxable income by that amount. While counsel for the petitioner in his brief raises some question as to amount of the first payment, reported as cash, no.issue on this point is raised by the pleadings and no testimony was introduced with respect thereto. On the question of whether the note had a fair market value, three witnesses testified. The testimony of two of them is not shown to have been in connection with the particular notes involved. They were asked, apparently, if any note given by any corporation or individual for $60,000 had a market value if secured by certain property not shown to have been the same or similar to that on which the mortgage herein was given. Another witness, president of the corporation which gave the note, testified that the corporation was solvent in 1925 and that, in his opinion, the note and mortgage were worth their face value when given. His testimony in some respects is also somewhat inconsistent with this testimony and in conflict with the above statements. He also testified that his company could not have sold the note and mortgage because its customers did not deal in this class of security. We do not think that the testimony is sufficient to overcome the presumption of correctness attaching to the Commissioner’s determination. The testimony *1117of the two witnesses as to market value, whose testimony is referred to above, is too general and leads us to the conclusion that the witness did not use the term market value in its generally and legally accepted meaning. If this testimony were accepted at its face value, it is broad enough to mean that, in the witness’s opinion, the note of any corporation or individual, however high in financial standing and reputation, would not have had a market value. We can not accept such an opinion as establishing such a fact. The opinion of the president of the corporation is such that it tends rather to support a market value than to show that there was none for the note. The Commissioner determined that the note had a market value of $35,000 instead of $60,000, the face of the note, and, 'considering all the testimony, we do not think that it is sufficient to show that the note did not have a market value to the extent determined by the Commissioner. Judgment will be entered wider Rule 50.
4,491,842
2020-01-17 22:03:05.46218+00
Trammell
null
SUPPLEMENTAL OPINION. Trammell: In the opinion in this proceeding promulgated June 24, 1931, we did not pass upon one of the issues involved in the proceeding, to wit, whether the Board had jurisdiction for the taxable year 1925. With respect to that issue the evidence discloses that the petitioner, believing and contending that it was exempt from liability for income taxes, but being required to file a return or face a penalty for failing to do so, filed on March 12, 1926, a paper entitled “ Corporation Income Tax Return for Calendar Year 1925,” on which was given most of the information called for thereon in respect to items that represent gross income and deductions therefrom, but omitting to state any net income subject to the tax, any claim for credit as a taxable corporation, any amount of statutory gross income, or any amount as the sum of statutory deductions, and omitting to show any amount as a tax. Attached to this paper designated a return was a written protest signed by the petitioner disclaiming any liability for the filing of the return or the payment of taxes, but claim*1118ing exemption therefrom as a domestic building and loan association. No amount was paid upon the filing of this paper. From the information contained in the aforesaid paper respondent computed and thereafter, without mailing the notice required by section 274 (a), assessed a tax against the petitioner in the amount of $9,288.05 on May 26, 1926. In June, 1926, interest upon said tax was assessed in the amount of $86.87 and thereafter upon notice and demand from the collector the petitioner paid said tax and interest under protest. Thereafter on January 9, 1928, the respondent mailed the petitioner a letter accompanied by a statement upon which was set forth the tax liability of the petitioner for each of the years 1924,1925 and 1926. The petitioner received no communication whatever from the respondent from the date it filed on March 12, 1926, the aforesaid paper entitled “ Keturn ” until it received the letter of January 9, 1928, other than notice and demand for payment from the collector. Within 60 days after the date of the notice of deficiency of January 9, 1928, the petitioner filed its petition with the Board of Tax Appeals. The Commissioner later credited against the taxes he had assessed for 1924 an overassessment and overpayment of $122.51 of the taxes for 1925. The petitioner contends that, as the Commissioner claims a larger amount due than that shown upon the return and admitted to be due, the Board has jurisdiction to hear and redetermine the entire liability; otherwise it has no jurisdiction. We may entirely agree with the taxpayer’s contention that, when it filed its return in which it did not set forth any amount as the tax and accompanied that return with a statement and proteát that no tax was due upon the ground that it was an exempt corporation, and the Commissioner asserted any amount as a tax, the amount so asserted was a deficiency, upon the authority of Continental Accounting & Audit Co., 2 B. T. A. 761; but, conceding this to be true, there is another difficulty in this case. The petitioner has paid all the tax claimed to be due and has not received a notice from the Commissioner asserting any deficiency. Conceding that no amount was shown as a tax by the taxpayer on its return, or that no return was made by the taxpayer, then in order to be a deficiency there must be some amount asserted which exceeds the tax previously assessed or collected without assessment. This is not a case where a claim in abatement was rejected and by the rejection thereof the Commissioner in effect asserted an additional tax liability in excess of that previously paid from which the taxpayer is now appealing, but is a case where the Commissioner is not asserting any amount in excess of that previously paid before the sending of the notice of the defi*1119ciencies which involved the other years only. In the present notice of deficiency the Commissioner merely stated that there had been an overassessment for 1925. Clearly this did not give us jurisdiction to determine the amount of the overassessment. It may well be that the Commissioner acted illegally in collecting the tax for 1925 in that he did not send a notice of deficiency, and it may well be true that the taxpayer could have enjoined the collection of the tax upon that theory, but these are questions with which we have no concern. In any event, the Commissioner has not mailed to the taxpayer a notice of deficiency from which the taxpayer may appeal to the Board for a redetermination. The proceeding, so far as 1925 is concerned, will therefore be dismissed for lack of jurisdiction. Order of dismissal will be entered accordingly.
692,236
2012-04-17 05:16:08+00
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http://bulk.resource.org/courts.gov/c/F3/50/50.F3d.1038.94-6062.html
50 F.3d 1038 U.S. v. Carter* NO. 94-6062 United States Court of Appeals, Eleventh Circuit. Mar 13, 1995 Appeal From: S.D.Ala., No. 93-00110-CR-CB 1 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3
4,638,520
2020-12-01 18:08:53.223279+00
null
http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07134.htm
Matter of Gordon (2020 NY Slip Op 07134) Matter of Gordon 2020 NY Slip Op 07134 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Webber, J.P., Oing, Singh, Mendez, JJ. Index No. 500013/19 Appeal No. 12512-12513-12514 Case No. 2019-04361 [*1]In the Matter of Lauren Burstyn Gordon et al., Petitioners-Respondents, For the Appointment of a Guardian of the Person and Property of Sharon Burstyn Green, An Alleged Incapacitated Person, Renee Burstyn Kaufman, Petitioner. Peter Green, Cross-Petitioner-Appellant. Goetz FitzPatrick LLP, New York (Alison Arden Besunder of counsel), for appellant. Farrell Fritz, P.C., Uniondale (Frank T. Santoro of counsel), for respondents. Order, Supreme Court, New York County (Mary V. Rosado, J.), entered November 25, 2019, which, to the extent appealed from as limited by the briefs, granted petitioners' application for an order appointing a guardian of the person and property of their mother, Sharon Burstyn Green, and appointed a neutral guardian, and denied cross petitioner's petition to dismiss the proceeding, and an order, same court and Justice, entered July 30, 2019, awarding the court [*2]evaluator $58,640 in fees, unanimously reversed, on the law and the facts, without costs, and the matter of guardianship and the court evaluator's fees remanded for a new hearing before a different Justice. Appeals from orders, same court and Justice entered May 13, 2019 and on or about October 18, 2019, unanimously dismissed, without costs as superseded by the appeal from the November 25, 2019 order. The parties do not dispute the court's adjudication of Sharon Burstyn Green as incapacitated within the meaning of Mental Hygiene Law (MHL) § 81.02(b). The issue presented is only whether the appointment of a guardian of her person and property is necessary, or if there are "sufficient available resources," that obviate such need (see MHL §§ 81.02[a][2], 81.03[e]). While we make no determination as to the necessity of a guardian here, review of the record supports cross petitioner's contention that he was deprived of his right to present evidence when the court concluded the hearing at the close of petitioners' case (see MHL §§ 81.11[a][b]; cf. Matter of Panartos, 308 AD2d 350, 351 [1st Dept 1999] [stating that guardianship, as "such a drastic intervention in a person's liberty," must adhere to proper procedural standards]). In appointing an independent guardian, the court made no clear findings that cross petitioner was unfit for the role (see MHL §§ 81.15, 81.17), and, regardless, he should have been provided with the opportunity to rebut those allegations. Accordingly, we remand the matter for a new hearing before a different Justice, as Supreme Court should not have pre-determined prior to holding a hearing that Ms. Green required an independent guardian. In the interim, we appoint Fern J. Finkel, Esq. as temporary guardian of the person as there was no objection by the parties to her appointment. Cross petitioner's claim that the court should have held a hearing on the court evaluator's fees given his objections is unopposed. In any event, we agree. Although the court has the authority to determine reasonable compensation for a court evaluator, it must provide a basis for arriving at the amount awarded (see Matter of Loftman [Mae R.], 123 AD3d 1034, 1036 [2d Dept 2014]). Moreover, in the face of the husband's objections, the court should have held a hearing (see Matter of Specht, 265 AD2d 919, 919 [4th Dept 1999]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
4,638,521
2020-12-01 18:08:53.443676+00
null
http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07127.htm
Matter of Amir A. (Matthew C.--Kristyle Z.) (2020 NY Slip Op 07127) Matter of Amir A. (Matthew C.--Kristyle Z.) 2020 NY Slip Op 07127 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Docket No. NA-08293-16 Appeal No. 12495-12496 Case No. 2019-855 2018-3040 [*1]In the Matter of Amir A., A Child Under Eighteen Years of Age, etc., Matthew C., and Kristyle Z., Respondents-Appellants, Administration for Children's Services, Petitioner-Respondent. The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R. Denman of counsel), for Matthew C., appellant. Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for Kristyle Z., appellant. James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child. Order of disposition, Family Court, Bronx County (Valerie A. Pels, J.), entered on or about November 5, 2018, insofar as it brings up for review a fact-finding order, same court [*2]and Judge, entered on or about May 3, 2018, which, after a hearing, determined that appellant Matthew C. was a person legally responsible for the subject child, and that he and the child's mother, respondent Kristyle Z., abused the subject child, unanimously affirmed, without costs. The evidence supports the court's finding that appellant Matthew C. was a person legally responsible for the subject child within the meaning of the Family Court Act § 1012(g). Appellant Matthew C. testified that he resided with the mother and child for a number of months. According to Matthew C., the child referred to him as "daddy," and he treated the child like his son. He stated that he fed the child, cleaned him, taught him how to speak, and took care of him on at least two occasions for multiple hours (see Matter of Kevin N., 113 AD3d 524 [1st Dept 2014]). Petitioner satisfied its burden of making an initial prima facie showing of abuse by introducing expert medical testimony establishing that the child was hospitalized with trauma to his abdomen, damage to his liver, spleen, and pancreas, and bruising to his ribs, legs, back and cheek, as well as swelling on his scalp, and that his injuries were the result of nonaccidental trauma that would ordinarily not be sustained or exist except by reason of the acts or omissions of the mother or Matthew C. (see Matter of Philip M., 82 NY2d 238, 243 [1993]; Matter of Syriah J. [Esther J.], 153 AD3d 430 [1st Dept 2017]). The agency was not required to establish whether the mother or Matthew C. inflicted the injuries, or whether they did so together (see Matter of Matthew O. [Kenneth O.], 103 AD3d 67, 75-76 [1st Dept 2012]). Respondents failed to rebut the presumption of culpability with a credible and reasonable explanation of how the child suffered injuries to his internal organs, or otherwise demonstrate that they were not guilty of abuse. Respondents' attempts to blame each other or the child's father were insufficient. We see no reason to depart from the general rule of deferring to the hearing court's credibility findings (see Matter of Nasir J. v Naomi J.,35 AD3d 299 [1st Dept 2006]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
4,638,522
2020-12-01 18:08:53.6547+00
null
http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07135.htm
League of Women Voters of New York State v New York State Bd. of Elections (2020 NY Slip Op 07135) League of Women Voters of New York State v New York State Bd. of Elections 2020 NY Slip Op 07135 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Friedman, J.P. Renwick, Webber, González, JJ. Index No. 160342/18 Appeal No. 12397&[M-03397] Case No. 2020-03996 [*1]League of women Voters of New York State, et al., Plaintiffs-Appellants, v New York State Board of Elections, et al., Defendants-Respondents. Law Professors, Amici Curiae. Latham & Watkins LLP, New York (Alexander R. DeLisi of counsel), for appellants. Letitia James, Attorney General, New York (Philip J. Levitz of counsel), for respondents. Frankfurt Kurnit Klein & Selz, P.C., New York (Edward H. Rosenthal and Jared Benjamin of counsel), for Amici Curiae. Order of the Supreme Court, New York County (J. Machelle Sweeting, J.), entered September 25, 2020, which denied plaintiffs' motion for a preliminary injunction to enjoin defendant from enforcing New York Election Law provisions requiring voters to register at least [*2]25 days before elections, including the November 3, 2020 general election, unanimously affirmed, with costs. In seeking to enjoin defendant from enforcing New York Election Law provisions requiring voters to register at least 25 days before elections, including the November 3, 2020 general election, plaintiffs' motion for a preliminary injunction was properly denied to the extent it sought the ultimate relief in the action (see SportsChannel Am. Assoc. v National Hockey League, 186 AD2d 417, 418 [1st Dept 1992] ). Moreover, the motion for a preliminary injunction was properly denied because plaintiffs failed to show a likelihood that they will be able to prevail on the underlying merits of their claim that a 25-day voter registration deadline (or any deadline beyond the 10-day minimum found in the State Constitution) is now unconstitutional (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005] ["[T]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor"]). M-03397 - League of Women Voters of New York State, et al. v New York State Board of Elections, et al., Motion by Law Professors to file amicus curiae brief granted, and the brief deemed filed. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
4,638,523
2020-12-01 18:08:53.883977+00
null
http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07132.htm
Jane Doe v John Doe (2020 NY Slip Op 07132) Jane Doe v John Doe 2020 NY Slip Op 07132 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 158505/18 Appeal No. 12516N Case No. 2020-1554 [*1]Jane Doe, Plaintiff-Appellant, v John Doe, Defendant-Respondent. Thomas LaBarbera Counselors at Law PC, New York (Kathleen R. Thomas of counsel), for appellant. The Law Office of Matthew Galluzzo PLLC, New York (Matthew Galluzzo of counsel), for respondent. Order, Supreme Court, New York County (W. Franc Perry, J.), entered September 23, 2019, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion to vacate (a) an order, dated September 19, 2018 and entered June 4, 2019, sua sponte removing defendant's name from the proposed caption, (b) an ordered entered February 22, 2019 directing that defendant be listed in the caption as "John Doe," and (c) an order entered February 25, 2019 sua sponte directing that the case be sealed, unanimously reversed, on the law and the facts and in the exercise of discretion, with costs, and the motion granted to the extent of directing that defendant's name be listed in the case caption and the matter be un-sealed. Defendant may not proceed anonymously. The default rule is one of openness and disclosure (see CPLR 2101[c]; "J. Doe No. 1" v CBS Broadcasting Inc., 24 AD3d 215 [1st Dept 2005]). There is a statutory exception that operates to keep the identity of any victim of a sex offense confidential (Civil Rights Law § 50-b). However, this exception does not protect the identity of the alleged perpetrator of a sexual offense. There is also a separate common-law exception that empowers a court to "use its discretion in balancing [the party's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [the opposing party]" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks omitted]). However, this exception is not properly applied here. The matter should not be sealed. Plaintiff's privacy interests can equally be protected by allowing her to proceed anonymously (see Doe v New York Univ., 6 Misc 3d 866, 874-881 [Sup Ct, NY County 2004]; Doe v Bellmore-Merrick Cent. High School Dist., 1 Misc 3d 697, 698-701 [Sup Ct, Nassau County 2003]; see also Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382[U], *13 [Sup Ct, NY County 2008] ["a grant of anonymity impacts far less on the public's right to open proceedings than does the closing of a courtroom or the sealing of records"]). We do not reach the issue of the propriety of allowing plaintiff to proceed anonymously, because it is not properly before us. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
4,638,524
2020-12-01 18:08:54.115825+00
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DeGraw Constr. Group, Inc. v HPDC2 Hous. Dev. Fund Co., Inc. (2020 NY Slip Op 07131) DeGraw Constr. Group, Inc. v HPDC2 Hous. Dev. Fund Co., Inc. 2020 NY Slip Op 07131 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 306799/12 Appeal No. 12504 Case No. 2020-00959 [*1]DeGraw Construction Group, Inc., Plaintiff-Respondent, v HPDC2 Housing Development Fund Company, Inc., et al., Defendants, Joy Construction Corp., Defendant-Appellant. Stanley Kalmon Schlein, Bronx, for appellant. Zisholtz & Zisholtz, LLP, Garden City (Stuart S. Zisholtz of counsel), for respondent. Judgment, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered December 18, 2019, bringing up for review an order (same court and Justice), entered on or about December 5, 2019, which, to the extent appealed from as limited by the briefs, held, following a nonjury trial, that plaintiff DeGraw Construction Co. was entitled to breach of contract damages in the amount of $606,987.07, and that defendant Joy Construction Corp. failed to establish its counterclaim for breach of contract, unanimously modified, on the law, to award prejudgment interest to plaintiff, the case remanded to the trial court to determine the proper amount of such interest owing, and [*2]as so modified, affirmed, without costs. The appeal and cross appeal from the order are dismissed as subsumed in the appeals from the judgment. The trial court's decision, which was based largely on credibility determinations, was supported by a fair interpretation of the evidence (DiLorenzo v Windermere Owners LLC, 174 AD3d 102, 107-108 [1st Dept 2019]). Its findings were "warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (id.). Defendant does not dispute that the parties' subcontract provided that extra work might be performed or that plaintiff performed extra work. Instead, defendant takes issue with the technical aspects of approving such work in the subcontract, including the lack of documentation provided with the change orders. However, oral directions to perform extra work, or the general course of conduct between the parties may modify or eliminate contract provisions that require written authorization (Penava Mech. Corp. v Afgo Mech. Servs., Inc., 71 AD3d 493, 494 [1st Dept 2010]). The trial court properly found that the change orders were directed, authorized, and performed, and that plaintiff consented to operating outside of the subcontract's technical requirements. The trial court also properly concluded that defendant failed to prove its counterclaim for breach of contract. Defendant maintains that there were many issues with plaintiff's work and that plaintiff anticipatorily breached the contract by walking off the job on June 28, 2012. While defendant maintains that the trial court's decision ignored substantial evidence of deficiencies, these also were largely credibility determinations that the trial court was within its province to reject (DiLorenzo, 174 AD3d at 107-108). The balance of the evidence supported the trial court's determination that plaintiff's work was performed properly and pursuant to industry standard, and that defendant hired a replacement subcontractor prior to formally terminating plaintiff or giving it an opportunity to cure any deficiencies. Plaintiff has established that it was entitled to prejudgment interest (CPLR 5001, Hanover Data Servs., Inc. v Arcata Natl. Corp., 115 AD2d 403, 404 [1st Dept 1985], lv denied 68 NY2d 602 [1986]). Accordingly, the case is remanded to the trial court to establish a date or dates from which interest should be assessed and determine the amount of interest owing (see Seward Park Hous, Corp. v Greater N.Y. Mut. Ins. Co, 43 AD3d 23 [1st Dept 2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Curacao Oil N.V. v Trafigura Pte. Ltd. (2020 NY Slip Op 07130) Curacao Oil N.V. v Trafigura Pte. Ltd. 2020 NY Slip Op 07130 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 651746/19 Appeal No. 12507 Case No. 2020-01705 [*1]Curacao Oil N.V., Plaintiff-Appellant, v Trafigura Pte. Ltd., Defendant-Respondent. Freehill Hogan & Mahar LLP, New York (Gina M. Venezia of counsel), for appellant. Stroock & Stroock & Lavan LLP, New York (Francis C. Healy of counsel), for respondent. Order, Supreme Court, New York County (Joel M. Cohen, J.), entered February 3, 2020, which granted defendant's CPLR 3211(a)(1) and (7) motion to dismiss the complaint, unanimously affirmed, without costs. The motion court properly dismissed the breach of contract claim based on the independent inspector's "final and binding" quality determination of the fuel oil purchased by plaintiff under the contract (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 208 AD2d 63, 65-66 [2d Dept 1995], affd 87 NY2d927 [1996]). Although plaintiff asserts that this case is distinguishable from Sempra Energy Trading Corp. v BP Prods. N. Am., Inc. (52 AD3d 350 [1st [*2]Dept 2008]) relied on by the motion court, we see no reason to deviate from the contract interpretation principles applied in that case (id. at 350 ["The complaint was properly dismissed, where plaintiff's breach of contract claim was refuted by . . . the pre-discharge inspection report showing that the delivered fuel oil was in compliance with contract specifications"]). Here, although plaintiff maintains that the independent inspector's quality determination did not apply to characteristics not tested, the motion court properly determined that the contract did not provide for such a carveout. For the same reasons, the breach of warranty claim was properly dismissed, as the purported warranty on which plaintiff relies was expressly limited by the independent inspector's determination (see CBS Inc. v Ziff-Davis Publ. Co., 75 NY2d 496, 503-504 [1990]; Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518, 521 [2d Dept 2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Cabrera v Ahmed (2020 NY Slip Op 07129) Cabrera v Ahmed 2020 NY Slip Op 07129 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 21679/18E Appeal No. 12509 Case No. 2020-00884 [*1]Miguel Cabrera, Plaintiff-Appellant, v Faruque Ahmed, Defendant-Respondent. Goldstein & Handwerker, LLP, New York (Jason Levine of counsel), for appellant. Robert D. Grace, Brooklyn, for respondent. Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about January 15, 2020, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's claims of serious injury to his right knee under Insurance Law § 5102(d), unanimously affirmed, without costs. Defendant met his prima facie burden by demonstrating that plaintiff's claimed right knee injury was not causally related to the subject accident, based on the orthopedist's review of plaintiff's own medical records, including an MRI report, which contained findings of degeneration, and the report of a radiologist, who reviewed the MRI scans and opined that they showed tricompartmental osteoarthritis, reflecting a degenerative breakdown of structural [*2]components of the right knee (see Diakite v PSAJA Corp., 173 AD3d 535, 536 [1st Dept 2019]). Accordingly, the burden shifted to plaintiff to explain why the degeneration shown in his medical records was not the cause of his knee conditions for which he underwent arthroscopic surgery (Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). In opposition, plaintiff failed to raise a triable issue of fact. The opinion of his medical expert that the degeneration shown in plaintiff's MRI was noncontributory was conclusory and speculative (see Grate v Rodrigues, 179 AD3d 440, 441-442 [1st Dept 2020]; Diakite v PSAJA Corp., 173 AD3d at 536). The expert first examined plaintiff over two and half years after the accident, and the only medical records he reviewed were those following the accident (see Vaughn v Baez, 305 AD2d 101, 101 [1st Dept 2003]). His opinion was based only on plaintiff's self-reported history of no prior injuries, which is not the same as no prior symptoms (see Giap v Hathi Son Pham, 159 AD3d 484, 486 [1st Dept. 2018]). It was not based on any objective evidence or medical records (see Grate, 179 AD3d at 441-442). Furthermore, the objective evidence fails to support a finding of serious injury, as the medical records from a few weeks after the accident revealed only mild limitations in right knee flexion and normal range of motion in extension (see Mendoza v L. Two Go, 171 AD3d 462 [1st Dept 2019]; Rose v Tall, 149 AD3d 554 [1st Dept 2017]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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Bankers Conseco Life Ins. Co. v KPMG LLP (2020 NY Slip Op 07128) Bankers Conseco Life Ins. Co. v KPMG LLP 2020 NY Slip Op 07128 Decided on December 01, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 01, 2020 Before: Gische, J.P., Webber, Oing, Mendez, JJ. Index No. 653765/19 Appeal No. 12503 Case No. 2020-02387 [*1]Bankers Conseco Life Insurance Company et al., Plaintiffs-Appellants, v KPMG LLP, Defendant-Respondent. Sills Cummis & Gross P.C., New York (Richard H. Epstein of counsel), for appellants. Foley Hoag LLP, New York (Lisa C. Wood of counsel), for respondent. Orders, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 21 and 22, 2020, which, to the extent appealed from as limited by the briefs, granted defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the claim for aiding and abetting fraud, unanimously reversed, on the law, without costs, and the motion denied. We find that the motion court erred in dismissing plaintiffs' claim for aiding and abetting fraud. The complaint adequately alleged an underlying fraud, actual knowledge of the fraud and, substantial assistance (see Oster v Kirschner, 77 AD3d 51, 55 [1st Dept 2010]). The complaint [*2]adequately alleges that defendant had actual knowledge of the fraudulent scheme of nonparties Beechwood Re, Ltd., the Platinum hedge fund, and the individuals associated therewith (see Gansett One, LLC v Husch Blackwell, LLP, 168 AD3d 579, 580 [1st Dept 2019]; William Doyle Galleries, Inc. v Stettner, 167 AD3d 501, 504 [1st Dept 2018]; Weinberg v Mendelow, 113 AD3d 485, 488 [1st Dept 2014]; AIG Fin. Prods. Corp. v ICP Asset Mgt., LLC, 108 AD3d 444, 446 [1st Dept 2013]). The complaint adequately alleges substantial assistance by alleging that defendant enabled the fraud to proceed by coming up with the demand note scheme and providing a letter about Beechwood Re's capitalization and that plaintiffs would not have entered into transactions with Beechwood Re if defendant had not lent it credibility (see William Doyle, 167 AD3d at 504; Weinberg, 113 AD3d at 488). The motion court ruled that defendant's valuation letter did not amount to substantial assistance because it lacked "information sufficient for reliance by defedefe. Assuming, arguendo, that reliance is required for aiding and abetting (as opposed to fraud), the question of what constitutes reasonable reliance is not generally to be resolved as a matter of law on a motion to dismiss (ACA Fin. Guar. Corp. v Goldman, Sachs & Co., 25 NY3d 1043, 1045 [2015]). Unlike Churchill Fin. Cayman, Ltd. v BNP Paribas (95 AD3d 614 [1st Dept 2012]), relied upon by defendant, this is not a case where defendant was merely silent and there is no indication that Beechwood Re's capitalization was a matter of public record. Finally, in Churchill, the plaintiff was specifically advised in the Confidential Information Memorandum of certain unspecified litigation. There was no similar red flag here. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 1, 2020
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[Cite as State v. Ray, 2020-Ohio-5465 .] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 3-20-05 v. CRISTINA M. RAY, OPINION DEFENDANT-APPELLANT. Appeal from Crawford County Common Pleas Court Trial Court No. 16-CR-0001 Judgment Affirmed Date of Decision: November 30, 2020 APPEARANCES: Howard A. Elliott for Appellant Ryan M. Hoovler for Appellee Case No. 3-20-05 ZIMMERMAN, J. {¶1} Defendant-appellant, Cristina M. Ray (“Ray”), appeals the February 20, 2020 judgment entry of sentence of the Crawford County Court of Common Pleas reimposing the balance of Ray’s original prison sentence following the revocation of her judicial release. We affirm. {¶2} On January 4, 2016, Ray waived prosecution by indictment, and the State filed a bill of information in the trial court, charging Ray with one count of possession of drugs in violation of R.C.2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. Nos. 1, 4). That same day, Ray pleaded guilty to the possession-of-drugs charge, the trial court accepted Ray’s guilty plea, and found her guilty.1 (Doc. No. 5). On July 11, 2016, the trial court sentenced Ray, based on the joint-sentencing recommendation of the parties, to five years of community control. (Doc. No. 7). Importantly, Ray did not directly appeal her conviction or sentence. {¶3} On May 1, 2019, the State filed a motion requesting that the trial court revoke Ray’s community control after Ray was “arrested by the Ontario[, Ohio Police Department] for a drug overdose.” (Doc. No. 11). The trial court proceeded to a final-revocation hearing on May 15, 2019 during which it concluded that Ray violated the terms and conditions of her community-control sanctions after she “entered an admission to the violations of Community Control as filed in the 1 The trial court filed its judgment entry of guilt on January 6, 2016. (Doc. No. 5). -2- Case No. 3-20-05 motion.”2 (Doc. No. 18). The trial court revoked Ray’s community control and imposed a 12-month prison term. (Doc. No. 18). Once again, Ray did not directly appeal her community-control revocation or the trial court’s prison-sentence imposition. {¶4} On May 30, 2019, Ray filed a motion for judicial release in the trial court. (Doc. No. 21). On June 19, 2019, the State filed its response to Ray’s motion and recommended that Ray be judicially released from prison. (Doc. No. 22). Thereafter, on July 11, 2019, the trial court granted Ray’s motion for judicial release, suspended the balance of her prison sentence, and released Ray under conditions of judicial release. (Doc. No. 24). {¶5} On January 23, 2020, the State filed a motion requesting that the trial court revoke Ray’s judicial release. (Doc. No. 27). After a probable-cause hearing on January 23, 2020, the trial court proceeded to a final-revocation hearing on February 12, 2020 during which it concluded that Ray violated the conditions of her judicial release after she “entered an admission to the violations.”3 (Doc. No. 34). On February 19, 2020, the trial court reimposed the balance of Ray’s original prison sentence.4 (Doc. No. 36). 2 The trial court filed its judgment entry of revocation on May 17, 2019. (Doc. No. 18). 3 The trial court filed its judgment entry of revocation on February 13, 2020. (Doc. No. 24). 4 The trial court filed its judgment entry of sentence on February 20, 2020. (Doc. No. 36). -3- Case No. 3-20-05 {¶6} Ray filed her notice of appeal on March 16, 2020. (Doc. No. 40). She raises three assignments of error for our review, which we will review together. Assignment of Error No. I When a trial court takes a guilty plea to offenses by the Defendant-Appellant, and fails to advise the Defendant-Appellant of any of the matters as set forth in Criminal Rule 11(C)(2)(c), a proper plea of guilty has not taken place, and the Defendant- Appellant may challenge the plea and conviction in an appeal taken after a probation violation, despite the fact no appeal was taken from the original imposition of sentence. Assignment of Error No. II When a trial court takes a guilty plea to offenses by the Defendant-Appellant, and fails to advise the Defendant-Appellant of any of the matters as set forth in Criminal Rule 11(C)(2)(b), a proper plea of guilty has not taken place, and the Defendant- Appellant may challenge the plea and conviction in an appeal taken after a probation violation, despite the fact no appeal was taken from the original imposition of sentence. Assignment of Error No. III Where the trial court takes a guilty plea to the offense by the Defendant-Appellant and improperly informs the Defendant- Appellant of the penalty for the offense, a proper plea of guilty has not taken place, and the Defendant-Appellant may challenge the plea and conviction in an appeal taken after a probation violation, despite the fact that no appeal was taken from the original imposition of sentence. {¶7} In her assignments of error, Ray argues that her guilty plea was not made knowingly, intelligently, and voluntarily. Specifically, Ray argues that her January 4, 2016 guilty plea was not knowing, intelligent, or voluntary because the -4- Case No. 3-20-05 trial court did not comply with the notifications required by Crim.R. 11(C)(2). Notwithstanding Ray’s failure to file a direct appeal from her conviction and sentence in this case, Ray contends that the defect in her plea colloquy is not barred by the doctrine of res judicata. In other words, Ray contends that her original conviction is “void.” {¶8} In response, the State argues, in part, that Ray’s argument (that her guilty plea was not knowing, intelligent, or voluntary) is not subject to appellate review under R.C. 2953.08(D)(1) since Ray’s sentence was jointly recommended and imposed by the trial court. Nevertheless, and contrary to the State’s contention, appellate review of the propriety of a no-contest or guilty plea is not precluded by R.C. 2953.08(D)(1). See State v. Tillman, 6th Dist. Huron No. H-02-004, 2004- Ohio-1967, ¶ 12 (“Although R.C. 2953.08(D) forecloses review of the actual sentences imposed by the judge pursuant to an agreed sentence upon a plea of guilty, appellate review of the judge’s compliance with the dictates of Crim.R. 11(C), which governs the taking of guilty pleas, is still proper.”), citing State v. Sattiewhite, 8th Dist. Cuyahoga No. 79365, 2002 WL 199900 , *2 (Jan. 31, 2002). See also State v. Spangler, 4th Dist. Lawrence No. 16CA1, 2016-Ohio-8583 , ¶ 14. {¶9} However, before we may review the merits of Ray’s arguments, we must address whether this court has jurisdiction to consider that issue in this appeal. Here, Ray’s assignments of error challenge whether her January 4, 2016 guilty plea -5- Case No. 3-20-05 was knowing, intelligent, and voluntary. Following her January 4, 2016 guilty plea, the trial court filed its judgment entry of conviction and sentence on July 11, 2016. {¶10} “App.R. 3(A) provides that ‘an appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.’” State v. Moore, 3d Dist. Allen No. 1-08-27, 2008-Ohio-6751 , ¶ 22, quoting App.R. 3(A). App.R. 4 provides that “a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.” Under App.R. 5(A), “[a]fter the expiration of the thirty day period provided by App. R. 4(A) * * * an appeal may be taken by a defendant with leave of the court” in criminal proceedings. App.R. 5(A)(1)(a). “A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right. * * * .” App.R. 5(A)(2). {¶11} Importantly, Ray did not directly appeal from her July 11, 2016 judgment entry of conviction and sentence or request a delayed appeal. Compare State v. Hill, 3d Dist. Henry No. 7-18-24, 2018-Ohio-4647 , ¶ 24 (noting that “[t]he trial court filed its judgment entry of sentence for the prior-community-control violation on November 1, 2017 and Hill did not directly appeal that order as he is required to do under App.R. 4(A), or request a delayed appeal”). See State v. Seeley, 3d Dist. Union No. 14-06-38, 2007-Ohio-1538 , ¶ 17 (“Any questions concerning -6- Case No. 3-20-05 the validity of [a prior] entry or matters pertaining [to that entry] should have been raised by direct appeal.”), citing State v. Crutchfield, 3d Dist. Paulding Nos. 11-01- 09 and 11-01-10, 2002 WL 206008 , *2 (Feb. 8, 2002). Accordingly, this court is without jurisdiction to consider the merits of Ray’s arguments regarding whether her guilty plea was knowing, intelligent, and voluntary in this appeal. See Hill at ¶ 24 (concluding that this court was without jurisdiction to determine the merits of Hill’s arguments regarding whether he effectively waived his probable-cause hearing or whether his admission to the prior-community-control violation was knowing, intelligent, and voluntary since Hill did not directly appeal the trial court’s judgment entry of sentence or request a delayed appeal), citing Seeley at ¶ 18, citing App.R. 3, State v. Pringle, 3d Dist. Auglaize No. 2-03-12, 2003-Ohio-4235 , ¶ 11, and State v. Gordon, 5th Dist. Fairfield No. 2-CA-92, 2003-Ohio-1900 , ¶ 9. {¶12} Furthermore, Ray’s contention that her conviction is void does not vest this court with jurisdiction to consider her arguments in this appeal. Importantly, Ray not only failed to directly appeal her conviction and sentence, but Ray failed to provide the trial court with an opportunity to address her concerns. {¶13} Notwithstanding Ray’s failure to raise her concerns in the proper manner, the Supreme Court of Ohio recently “realigned [its] jurisprudence with the traditional understanding of void and voidable sentences” to instill clarity on the topic. State v. Harper, ___Ohio St.3d ___, 2020-Ohio-2913 , ¶ 43. Specifically, the -7- Case No. 3-20-05 Supreme Court clarified that a “sentence is void when a sentencing court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the accused.” Id. at ¶ 42. “And when a specific action is within a court’s subject-matter jurisdiction, any error in the exercise of that jurisdiction renders the court’s judgment voidable, not void.” Id. at ¶ 26. “Generally, a voidable judgment may only be set aside if successfully challenged on direct appeal.” Id. Voidable judgments are “subject to the doctrine of res judicata.” State v. Hudson, ___ Ohio St.3d ___, 2020-Ohio-3849 , ¶ 2. {¶14} Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d 93 , 95 (1996). See also Harper at ¶ 41, 43; State v. Greene, 3d Dist. Crawford No. 3-20-06, 2020-Ohio-5133 , ¶ 13. The doctrine of res judicata generally bars a defendant from raising claims that his or her guilty plea was not knowing, intelligent, or voluntary. See State v. Ketterer, 126 Ohio St.3d 448 , 2010-Ohio-3831 , ¶ 59; State v. Straley, 159 Ohio St.3d 82 , 2019-Ohio-5206 , ¶ 23. {¶15} Nevertheless, even though Ray’s arguments regarding the validity of her guilty plea are not properly before this court, we still may review the trial court’s -8- Case No. 3-20-05 decision revoking Ray’s judicial release and reimposing the remainder of Ray’s original prison sentence since she timely appealed that decision. Standard of Review {¶16} A trial court’s decision to revoke a defendant’s judicial release based on a violation of the conditions of his or her judicial release will not be disturbed absent an abuse of discretion. State v. Arm, 3d Dist. Union Nos. 14-14-03 and 14- 14-04, 2014-Ohio-3771 , ¶ 22, citing State v. Jenkins, 4th Dist. Scioto No. 10CA3389, 2011-Ohio-6924 , ¶ 9. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151 , 157-158 (1980). Analysis {¶17} Ohio’s judicial release statute, R.C. 2929.20, provides, in relevant part: If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the department of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the offender violates the sanction. If the court reimposes the reduced sentence, it may do so either concurrently with, or consecutive to, any new sentence imposed upon the eligible offender as a result of the violation that is a new offense. R.C. 2929.20(K). -9- Case No. 3-20-05 {¶18} “Accordingly, if a defendant violates the conditions of judicial release, the trial court is limited to reimposing the original term of incarceration with credit for time already served.” State v. Jones, 3d Dist. Mercer Nos. 10-07-26 and 10- 0727, 2008-Ohio-2117 , ¶ 15. “The trial court may not alter the defendant’s original sentence except to reimpose the sentence consecutively to or concurrently with a new sentence it imposes as a result of the judicial release violation that is a new criminal offense.” Id. {¶19} However, even though we may review the trial court’s decision revoking Ray’s judicial release and reimposing the remainder of her original prison sentence, Ray did not separately assign any error challenging the trial court’s decision. “[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912 , ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio- 2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R. 12(A)(2) provides that an appellate court ‘may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin No. 14AP-670, 2015-Ohio-3322 , ¶ 11, quoting App.R. 12(A)(2). “Additionally, -10- Case No. 3-20-05 App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.’” Id., quoting App.R. 16(A)(7). {¶20} Because Ray makes no argument in relation to the trial court’s revocation of her judicial release and the reimposition of the balance of her original prison sentence, we will not supply one for her. See State v. Franks, 9th Dist. Summit No. 28533, 2017-Ohio-7045 , ¶ 16 (“Where an appellant fails to develop an argument in support of his assignment of error, this Court will not create one for him.”), citing State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319 , ¶ 6, citing App.R. 16(A)(7) and Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934 , *8 (May 6, 1998). {¶21} For these reasons, Ray’s assignments of error are overruled. {¶22} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW, P.J. and PRESTON, J., concur. /jlr -11-
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[Cite as Goebel v. Minster, 2020-Ohio-5467 .] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY EDWARD GOEBEL, ET AL., PLAINTIFFS-APPELLEES, CASE NO. 2-20-14 v. VILLAGE OF MINSTER, DEFENDANT-APPELLANT, -and- OPINION HELMS & SONS EXCAVATING, INC. DEFENDANT-APPELLEE. Appeal from Auglaize County Common Pleas Court Trial Court No. 2020 CV 0052 Judgment Affirmed Date of Decision: November 30, 2020 APPEARANCES: Jane M. Lynch and Jared A. Wagner for Appellant Sean R. Alto and Jeffrey T. Kenney for Appellee Case No. 2-20-14 SHAW, P.J. {¶1} Defendant-appellant, Village of Minster (“Minster”), brings this appeal from the June 3, 2020 judgment of the Auglaize County Common Pleas Court denying, in part, its Civ.R. 12(B)(6) motion to dismiss the complaint of Edward and Lisa Goebel, et al (collectively, “appellees”). On appeal, Minster argues that it was entitled to sovereign immunity and that the trial court erred by finding that the appellees had pled facts sufficient that, if believed, would defeat a claim of sovereign immunity. Background {¶2} In early 2019, Minster began soliciting bids from area contractors for a project known as “Northeast Sanitary Sewer/Second Street Sewer Project.”1 (Doc. No. 1). “The project was essentially the reconstruction of Second Street and the sewer systems in that area.” (Id.) Helms & Sons Excavating, Inc. (“Helms”) submitted the lowest bid, and the bids were discussed at a Minster Council meeting on April 2, 2019. At that meeting, the Minster Council expressed concerns about Helms “and the ability to do the work called for in the project based upon negative feedback from other municipalities.” (Id.) Nevertheless, Minster entered into a contract with Helms for the reconstruction of Second Street. Minster also hired 1 As this appeal is the review of the denial of a Civ.R. 12(B)(6) motion to dismiss, we cite the factual allegations contained in the complaint because, for the purposes of this appeal only, we must accept them as true. -2- Case No. 2-20-14 “CTL Engineering” to oversee the progress of the project and the quality of work performed by Helms. {¶3} Pursuant to the contract, the work to be performed by Helms “included the installation of storm sewer modifications, water main, sanitary sewer, service laterals, sidewalks, curb and gutter, and installation of a sanitary sewer down a portion of Garfield and Second Streets.” (Id.) Helms began its work on or about April 22, 2019. During the initial construction phase, Helms discovered what was described as an abandoned sewer line on Second Street and Helms reported the discovery to Minster. Thereafter, Minster specifically instructed Helms to remove the abandoned sewer line. {¶4} During the removal—or “destruction” as appellees alleged—of the sewer system, Helms created a “trench box” on Second Street to stop water from the canal from interfering with work. Appellees alleged that Helms negligently constructed the trench box. {¶5} On May 17, 2019, it rained, causing water in the canal to rise. “The rising water and sediment in the canal entered the pipe that was blocked by the trench box.” (Id.) According to the complaint, This negligent construction caused water to flood the trench box and the lift station, which in turn caused the lift station pumps to stop working. Once the pumps at the lift station stopped working, sewage from the lift station flooded into the [appellees’] homes causing substantial damage to the [appellees’] real and personal -3- Case No. 2-20-14 property, as well as the loss of use of their homes for a substantial period of time. (Id.) {¶6} Appellees are a group of individual landowners in Minster who were impacted by the sewage. On April 15, 2020, appellees filed a complaint against Minster and Helms alleging negligence in the destruction of a sewer system pursuant to R.C. 2744.01(G)(2)(d), and breach of contract to a third-party beneficiary. The appellees sought damages in an amount in excess of $25,000. {¶7} Helms filed an answer on May 1, 2020, denying negligence, and asserting that appellees were not third-party beneficiaries and had no privity of contract in this matter. Further, Helms’ answer stated that Helms located a server line, which was not on the plans and, pursuant to the Contract, properly reported it to [Minster] and otherwise accepted instructions from [Minster] and Choice One Engineering. Such instructions included an instruction to remove said server line because it was dead and abandoned and no longer in use, which turned out to be incorrect. (Doc. No. 12).2 {¶8} On May 8, 2020, Minster filed a Civ.R. 12(B)(6) motion to dismiss the complaint filed by appellees arguing that the factual allegations from the complaint demonstrated that the alleged negligence that caused damages occurred within the context of a construction project involving the repair and maintenance of a roadway 2 As this is outside of the complaint, we do not rely on it for anything in this appeal; rather, we use it to provide context to the action. -4- Case No. 2-20-14 and sewer system, both of which were governmental rather than proprietary functions. Thus Minster claimed that it was entitled to sovereign immunity pursuant to R.C. 2744.02, which precluded recovery from Minster in this matter. Further, Minster argued that even if there was an exception to immunity that existed in this case, Minster claimed that under R.C. 2744.03(A)(5), immunity should be reinstated because there were no allegations that the “trench box” was constructed or installed with malice, bad faith, wantonness, or recklessly. (Doc. No. 14). Finally, Minster argued that appellees had no grounds to attempt to enforce the contract between Minster and Helms in the breach of contract claim. {¶9} On May 26, 2020, appellees filed a memorandum contra to Minster’s motion to dismiss arguing that pursuant to their allegations and supporting Ohio case authority, Minster was engaged in a proprietary function for which an exception to immunity applied, namely the destruction of a sewer system “which is explicitly identified as a proprietary function under R.C. § 2744.02(G)(2)(d).” [sic] (Doc. No. 20). Appellees also asserted that Minster was not entitled to reinstatement of immunity pursuant to R.C. 2744.03(A)(5) merely by “baldly” claiming that the actions in this matter did not amount to, at least, recklessness. Finally, appellees argued that they had adequately stated a claim for breach of contract as a third-party beneficiary based on the plain language of the contract at issue. -5- Case No. 2-20-14 {¶10} On June 2, 2020, Minster filed a reply memorandum reiterating previous points and arguing, inter alia, that the “removal” of a “single abandoned sewer line during the course of [the] project involving the reconstruction of a public street and the adjacent sewer system” did not transform a governmental function into a proprietary function. (Doc. No. 24). {¶11} On June 3, 2020, the trial court filed an entry denying Minster’s motion to dismiss with regard to the negligence claim, but granting Minster’s motion to dismiss with regard to the breach of contract claim. The trial court reasoned as follows. [T]he court finds that the Complaint filed herein sets forth sufficient allegations that [Minster] directed and controlled [Helms] with respect to the destruction of a sewer line which apparently was not on the mapped portion of the sewer system but was found during the construction project that included both sanitary and storm sewers. There are sufficient allegations that [Minster] exercised discretion in dealing with the unexpected location of the additional sewer line that falls within a proprietary function as it chose to directly exercise the discretion in the performance of the contract as to this unexpected sewer line. The specifics in this case demonstrate that [Minster’s] action in exercising its proprietary function was not a part of the contract and the “overarching” project. Instead, this was a new, unexpected matter that was decided and acted upon by [Minster] and its officials. The general rule of connecting all laterals and not blocking pre-existing tile was ignored. If Helms * * * would have simply failed to connect existing pipes on its own accord, [Minster’s] role in the overarching project would have been governmental only, and Helms * * * negligence in the manner it dealt with the unexpected pipe would have been solely its problem. -6- Case No. 2-20-14 As it stands based upon the face of the allegations, both the contractor [Helms] and [Minster] played a role in exercising discretion on this sewer line and each might be found negligent upon sufficient proof. (Doc. No. 25). The trial court concluded that there were sufficient allegations made to negate immunity. {¶12} Next, the trial court analyzed whether the allegations, if proven, would establish that Minster’s actions were reckless and the trial court found that the complaint alleged sufficient facts to warrant, if believed, a conscious disregard or indifference to an obvious risk of harm to property of others. {¶13} However, the trial court did find that the appellees’ breach of contract claim was unsupported “as there was no manifestation of any intention to grant [third-party beneficiary] status to the [appellees] or the general public” in the contract between Minster and Helms. (Doc. No. 25). Thus the trial court granted Minster’s motion to dismiss the appellees’ breach of contract claim only. {¶14} Following the denial of its motion to dismiss based on sovereign immunity, Minster filed the instant appeal, seeking review of its immunity claim pursuant to R.C. 2744.02(C). Minster asserts the following assignments of error for our review. Assignment of Error No. 1 Whether the factual allegations in the Complaint demonstrate that Minster’s alleged negligence occurred within the context of a reconstruction project involving the repair and maintenance of a -7- Case No. 2-20-14 roadway and the reconstruction of adjacent sewer and water lines, both of which are governmental rather than proprietary functions, and for which there are no applicable exceptions to immunity. Assignment of Error No. 2 Whether the removal of a single abandoned sewer line constitutes the destruction of a sewer system within the meaning of R.C. 2744.01(G)(2)(d). Assignment of Error No. 3 Whether the Village of Minster is entitled to immunity under R.C. 2744.03(A)(5) on the grounds that the damages [appellees] claimed to have sustained are the result of the alleged negligent construction and installation of a trench box and there are no allegations that the trench box was constructed or installed with malice, bad faith, wantonness, or recklessly. {¶15} As the assignments of error all address the trial court’s denial of Minster’s Civ.R. 12(B)(6) motion to dismiss, we will address them together. First, Second, and Third Assignments of Error {¶16} In its assignments of error, Minster contends that the trial court erred by denying its motion to dismiss the negligence claims brought by the appellees. More specifically, Minster argues that the actions alleged in this matter were governmental rather than proprietary, for which there was no exception to immunity, that the actions regarding the previously unknown sewer line did not constitute the “destruction” of a sewer line within the meaning of proprietary functions under R.C. 2744.01(G)(2)(d), and that even if there was an exception to immunity, it should have been reinstated in this matter under R.C. 2744.03(A)(5) -8- Case No. 2-20-14 because there were no allegations in the complaint that the acts were undertaken in bad faith, with malice, wantonly, or recklessly. Standard of Review {¶17} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests only the legal sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 , 548 (1992). For a court to dismiss on this basis, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” (Emphasis added.) O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In ruling on a Civ.R. 12(B)(6) motion, the court must accept the factual allegations contained in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 , 192 (1988). If there is a set of facts consistent with the complaint that would allow for recovery, the court must not grant the motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143 , 145 (1991). When reviewing a judgment rendered on a Civ.R. 12(B)(6) motion to dismiss, our standard of review is de novo, but we still accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ada Exempted Village School Dist. Bd. of Education v. Ada Wind, LLC, 3d Dist. Hardin No. 6-19-13, 2020- Ohio-4017, ¶ 19, citing Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. -9- Case No. 2-20-14 Franklin No. 14AP-15, 2014-Ohio-2793 , ¶ 9, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 , 2004-Ohio-4362 , ¶ 5. Sovereign Immunity Framework {¶18} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in Chapter 2744 of the Revised Code. Pursuant to the Act, courts engage in a three-tiered analysis to determine whether a political subdivision is immune from liability for damages in a civil action. Plank v. City of Bellefontaine, 3d Dist. Logan No. 8-17-18, 2017-Ohio- 8623, ¶ 11; Molnar v. City of Green, 9th Dist. Summit No. 29072, 2019-Ohio-3083 , ¶ 11. The first tier of the analysis establishes generally that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision * * * in connection with a governmental or proprietary function.” R.C. 2744.02(A)(1). In the second tier of the analysis, we consider the potential applicability of any of the five exceptions to immunity listed in R.C. 2744.02(B)(1)-(5), which would lift the immunity from the political subdivision. Plank at ¶ 11, citing Jones v. Delaware City School Dist. Bd. of Edn., 5th Dist. Delaware No. 2013 CAE 01 0009, 2013– Ohio–3907, ¶ 19. If any of the exceptions in R.C. 2744.02(B)(1)-(5) are applicable to remove immunity from the political subdivision, then we move to the third tier -10- Case No. 2-20-14 of the analysis and consider whether immunity can be restored based on the defenses enumerated in R.C. 2744.03. Id.; Molnar, supra, at ¶ 11 . Analysis {¶19} It is undisputed in this case that Minster is a political subdivision. Therefore, pursuant to the first tier of immunity analysis in R.C. 2744.02(A)(1), Minster would generally have sovereign immunity as a political subdivision. {¶20} Turning to the second tier of the immunity analysis, which concerns potential exceptions to the general grant of immunity, appellees asserted, and the trial court found, that an exception to immunity applied in this situation under R.C. 2744.02(B)(2). It reads as follows. (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: *** (2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. R.C. 2744.02(B)(2). {¶21} Pursuant to the definitions of “proprietary functions” in R.C. 2744.01(G)(2)(d), which the appellees cite in their complaint, “proprietary -11- Case No. 2-20-14 function[s]” specifically include “[t]he maintenance, destruction, operation, and upkeep of a sewer system[.]” Appellees alleged in their complaint that “Minster instructed Helms to remove the abandoned sewer line, which constitutes destruction of a sewer system pursuant to R.C. § 2744.01(G)(2)(d).” (Emphasis added.) Facially, then, the complaint would appear to assert a negligence claim that relates to a proprietary function under the stated definitions, which falls under a statutory exception to immunity under R.C. 2744.02(B)(2) as cited above. {¶22} However, Minster contends that its actions in this matter were not proprietary as the trial court found, but rather governmental under R.C. 2744.01(C)(2)(e) and (l). These statutory provisions read as follows. [C](2) A “governmental function” includes, but is not limited to, the following: *** (e) The regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds; *** (l) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system[.] R.C. 2744.01(C)(2)(e)/(l). {¶23} Minster contends that pursuant to R.C. 2744.01(G)(1)(a), a function cannot be proprietary if it has first been expressly defined as being governmental -12- Case No. 2-20-14 under R.C. 2744.01(C)(2). Minster argues that the contract in this case between Minster and Helms clearly intended for the reconstruction of streets and adjacent sewer and water lines, as well as the installation of a sanitary sewer down a portion of Garfield and Second Streets. Minster contends that the additional sewer line was only discovered during the course and scope of the “reconstruction” project. Minster thus argues that the actual project fell under the “governmental function” definition above, and thus the trial court never should have even proceeded to the “proprietary function” definitions regarding the destruction of a sewer system. {¶24} Contrary to Minster’s arguments, when considering the allegations in the complaint in the light most favorable to the appellees, the “destruction” of a sewer line could fall under a proprietary function as defined above in R.C. 2744.01(G)(2)(d). The legislature specifically listed the “destruction” of a sewer system under a proprietary function, while making the construction or reconstruction a governmental function. Minster makes the argument that the destruction of a single “line” is not the same as the destruction of a sewer itself. However, when applying the appropriate standard and inferences in this case, we cannot simply presume that the phrase “abandoned sewer line” is essentially one pipe. {¶25} Here, the allegations were that once the old sewer lines were discovered, Helms went to Minster and asked what should be done. Minster then -13- Case No. 2-20-14 specifically instructed Helms to remove or destroy the old sewer lines. As the trial court reasoned, “this was a new, unexpected matter that was decided and acted upon by [Minster] and its officials.” (Doc. No. 25). There is no indication that the original project involved the destruction of a sewer or any sewer lines. The allegations that were pled, then, when accepting them as true and drawing all reasonable inferences in favor of the appellees, fall into an immunity exception for a proprietary function. {¶26} Moreover, as appellees argue in their brief, there is some case authority, albeit not exactly on point, that suggests that the actions here dealing with a sewer line could be proprietary rather than governmental, which would fall under the exception listed above in R.C. 2744.02(B)(2). See Lancione v. City of Dublin, 10th Dist. Franklin No. 92AP-244, 1992 WL 249828 , *2 (“decisions regarding sewer lines to be tapped into an existing sewer constitute an operation or management of an existing sewer system.”); Sparks v. Erie Cty. Bd. of Cty. Commrs., 6th Dist. Erie No. E-97-007, 1998 WL 15929 , *6 (“to the extent that appellee acted negligently with regard to the alleged improper tapping of additional sewer lines into the existing sewer system, it may be liable for negligence in performance of that proprietary function.”); City of Salem v. Harding, 121 Ohio St. 412 (1929) (“The construction of sewers by a city is the exercise of a governmental function, and a board of health in the discharge of its duties acts in the exercise of -14- Case No. 2-20-14 the police power of the state, but in the maintenance or destruction of a sewer or any part thereof the city is nevertheless liable for the negligence of its board of health whereby a nuisance is created.”). To counter this authority, Minster cites, inter alia, this Court’s decision in Wanamaker v. Bucyrus, 3d Dist. Crawford No. 3-12-02, 2012-Ohio-5232 , a readily distinguishable case because it was not decided by a Civ.R. 12(B)(6) motion to dismiss, but rather summary judgment where more was considered than just the complaint. {¶27} Based only on the complaint, we agree with the trial court, in our de novo review, that there are sufficient allegations made to negate immunity in this matter when applying all due considerations regarding motions to dismiss. Thus we must proceed to the third tier of the immunity analysis. {¶28} Minster argues on appeal that even if we determined that appellees alleged sufficient facts to establish that their injuries were the result of a proprietary function, Minster’s immunity should be reinstated under R.C. 2744.03(A)(5), which reads as follows. (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: *** -15- Case No. 2-20-14 (5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. {¶29} Minster contends that the construction of the trench box in this case amounted to the use of a piece of equipment, and that “the decision to utilize and install a trench box constituted the positive exercise of judgment portraying the considered adoption of a particular course of conduct in relation to the removal of the abandoned sewer line.” (Appt.’s Br. at 15). Minster argues that there were no allegations whatsoever that the construction of the trench box was malicious, in bad faith, wanton, or reckless, therefore Minster was entitled to the reinstatement of immunity.3 {¶30} Importantly, Minster’s argument focuses on the construction of the trench box, rather than Minster’s decision to remove the sewer line itself, seemingly without further inspection as to whether it was providing some utility, or whether its removal might cause issues. At the very least we must presume as much, and make all reasonable inferences that way when construing the Civ.R. 12(B)(6) motion. 3 As the appellees note in their brief, the bad faith, willful, wanton, or reckless conduct only comes into play if it was determined that there was a specific exercise of judgment or discretion as defined above. -16- Case No. 2-20-14 {¶31} Regardless, even when considering the trench box, the facts pled could establish a “conscious disregard” or “indifference” to obvious risks of harm, even if the actor did not desire harm, which would constitute recklessness. Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , at paragraph four of the syllabus. Here, the trial court found that there were sufficient allegations to warrant, “if believed, a finding that the actions of [Minster] through its agents was a conscious disregard of or indifference to an obvious risk of harm to the property of others by not reconnecting that which was found and cut through by the work being done.” (Doc. No. 25). After conducting a de novo review of the complaint and the applicable legal authority, we agree with the trial court. Therefore Minster would be unable to reinstate immunity in this matter under R.C. 2744.03(A)(5) based solely on what is before us. {¶32} In sum, at this very early stage of the proceeding, we are unable to find that it is “beyond doubt from the complaint that the plaintiff[s] can prove no set of facts entitling [them] to recovery.” O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), at syllabus. This is not a finding that Minster is necessarily liable or even that immunity could not be established later in a summary judgment proceeding if undisputed facts warranted such a finding. But at this stage of the proceeding, given our standard when analyzing a Civ.R. 12(B)(6) motion, we -17- Case No. 2-20-14 cannot find that the trial court erred by overruling Minster’s motion to dismiss. Therefore, Minster’s first, second, and third assignments of error are overruled. Conclusion {¶33} For the foregoing reasons, Minster’s assignments of error are overruled and the judgment of the Auglaize County Common Pleas Court is affirmed. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr -18-
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http://www.pacourts.us/assets/opinions/Superior/out/J-A21017-20o - 104620252121006692.pdf
J-A21017-20 2020 PA Super 278 JANNINE ZITNEY AND STEVE ZITNEY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellants : : : v. : : : WYETH LLC., WYETH : No. 3369 EDA 2019 PHARMACEUTICALS, INC.MORTON : GROVE PHARMACEUTICALS, INC., : TEVA PHARMACEUTICALS USA, INC., : A.K.A IVAX PHARMACEUTICALS, : PLIVA, INC., BARR : PHARMACEUTICALS, LLC., A.K.A : BARR PHARMACEUTICALS, INC FK., : BARR LABORATORIES, INC., : DURAMED PHARMACEUTICALS, INC., : QUALITEST PHARMACEUTICALS, : INC., VINTAGE PHARMACEUTICALS, : LLC., GENERICS BIDO I., LLC, : INDIVIDUAL, A.K.A QUALIITEST : PHARMACEUTICALS., HARVARD : DRUG GROUP, LLC, A.K.A MAJOR : PHARMACEUTICALS, INC., : PHARMACEUTICAL ASSOCIATES, : INC., BEACH PRODUCTS, INC., : UNITED RESEACH LABORATORIES, : INC., MUTUAL PHARMACEUTICAL : COMPANY, INC., SILARX : PHARMACEUTICALS, INC., SANDOZ, : INC., ANIP ACQUISITION COMPANY, : A.K.A A&I PHARMACEUTICALS, A.K.A : ANI PHARMACEUTICALS, A.K.A ANIP : PHARMACEUTICALS, WATSON : LABORATORIES, INC., ACTAVIS : ELIZABETH LLC, INDIVIDUAL, A.K.A : PUREPAC PHARMACEUTICALS DBA., : APP PHARMACEUTICALS LLC., A.K.A : ABRAXIS PHARMACEUTICALS DBA., : AMNEAL PHARMACEUTICALS, LLC., : BEDFORD LABORATORIES, HOSPIRA : INC., MCKESSON CORPORATION, : J-A21017-20 INDIVIDUALLY, A.K.A NORTHSTAR : RX, LLC DBA., NORTHSTAR RX LLC, : RUGBY LABORATORIES, INC., : NORBROOK INC. USA, SMITH & : NEPHEW, INC., VISTAPHARM, INC., : ROXANE LABORATORIES, INC., : INDIV THE CORPORATION TRUST : COMPANY, USL PHARMA, INC., PAR : PHARMACEUTICAL INC., HALSEY : DRUG, LLC INDIVIDUALLY, A.K.A : HALSEY DRUG CO INC, DBA., : SUPERPHARM, INC., PACO : PHARMACEUTICAL SERVICES, INC., : SCHERING CORPORATION, IVAX : PHARMACEUTICALS, INC., GOLDLINE : LABORATORIES INC., INDIVI, A.K.A : IVAX PHARMACEUTICALS DBA., : BRISTOL MYERS SQUIBB CO., A.K.A : APOTHECON INC DBA., APOTHECON, : INC., PFIZER, INC., INVAMED, INC., : KING PHARMACEUTICALS, INC., : A.K.A A.L. PHARMA INC FKA., A.K.A : ALPHARMA INC DBA., A.K.A : ALPHARMA-BARRE NATIONAL., : RICHMOND PHARMACEUTICALS, : INC., KAREN TOBIN, M.D., SCHWARZ : PHARMA, INC., ALAVEN : PHARMACEUTICAL LLC., BAXTER : HEALTHCARE CORPORATION., AND : WOCKHARDT USA. : Appeal from the Order Entered October 16, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 110204100 BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E. OPINION BY DUBOW, J.: FILED DECEMBER 1, 2020 Jannine Zitney (“Mrs. Zitney”) and Steve Zitney (“Mr. Zitney”) (collectively, “Appellants”), appeal from the October 16, 2019 Orders entered in the Philadelphia County Court of Common Pleas granting summary -2- J-A21017-20 judgment in favor of Appellees, PLIVA, Inc. (“PLIVA”) and Teva Pharmaceuticals USA, Inc. (“Teva”) (collectively, “Appellees”). After careful review, we affirm. Background Wyeth, LLC (“Wyeth”) manufactures the drug Reglan. Teva and PLIVA1 manufacture Reglan’s generic equivalent, metoclopramide. In the 1980s, the Food and Drug Administration (“FDA”) approved Reglan and metoclopramide for the treatment of chronic digestive disorders. Physicians also used metoclopramide “off-label”2 to treat nausea associated with a range of illnesses, including migraines. Since the 1980s, Reglan’s label contained a warning that its use was associated with an increased risk of tardive dyskinesia.3 In July 2004, Wyeth updated the Reglan label to include language indicating that metoclopramide should not be used for longer than 12 weeks. In June 2005, Teva sought FDA approval to update its metoclopramide label to mirror the Reglan label. On January 17, 2017, the FDA approved Teva’s label update.4 ____________________________________________ 1 PLIVA is a wholly-owned subsidiary of Teva. 2 The term “off-label” refers to the use of a FDA-approved drug for an unapproved use. 3 Tardive dyskinesia is a neurological disorder characterized by involuntary movements of the face and jaw. 4 The record is unclear as to when PLIVA updated its label to conform to the July 2004 Reglan label. -3- J-A21017-20 In early 2010, the Philadelphia County Court of Common Pleas formed the Reglan/metoclopramide mass tort litigation. See In Re Reglan®/metoclopramide Litigation, January Term 2010 No. 1997, Case Management Order 1, docketed on February 16, 2010. Pursuant to Case Management Order 1, a Master Long-Form Complaint was filed asserting allegations common to all plaintiffs in the litigation. See Case Management Order 1 at § III(A). Thereafter, the trial court required each individual plaintiff to file only a case-specific short-form Complaint, which incorporated by reference the Master Long-Form Complaint and set forth the factual circumstances unique to that individual plaintiff. See id. at § III(C). The Instant Litigation Mrs. Zitney has suffered from debilitating migraine headaches for more than forty years. Between 2004 and 2009, Dr. Karen Tobin, Mrs. Zitney’s neurologist, prescribed metoclopramide to treat the nausea associated with Mrs. Zitney’s migraines. Dr. Tobin instructed Mrs. Zitney to take metoclopramide on an as-needed basis. Mrs. Zitney’s pharmacist dispensed metoclopramide manufactured by PLIVA on four occasions from October 31, 2004, to December 4, 2006. The pharmacist also dispensed metoclopramide manufactured by Teva on four occasions between December 28, 2007, and November 21, 2008. In December 2009, Mrs. Zitney complained of an eye twitch to Dr. Tobin. Additionally, on multiple occasions starting in 2009, Mrs. Zitney complained of muscle spasms in her back and neck. Dr. Vernon Neppe, a -4- J-A21017-20 neuropsychiatrist, opined that Appellant suffers from tardive dyskinesia caused by her metoclopramide use.5 On February 28, 2011, Appellants commenced this action by filing a 14- count short-form Complaint against 50 defendants. Appellant’s claims included: (1) strict liability failure to warn; (2) strict liability design defect; (3) negligence; (4) negligence per se; (5) fraud and intentional misrepresentation; (6) constructive fraud; (7) breach of implied warranty; (8) unfair trade practices; (9) unjust enrichment; (10) negligent misrepresentation; (11) civil conspiracy; (12) loss of consortium; (13) gross negligence/malice; and (14) punitive damages. See Complaint, 2/28/11. By January 2019, all defendants other than PLIVA and Teva had settled with Appellants or had been dismissed from the case. On April 3, 2019, the trial court granted partial summary judgment in favor of Teva on the basis of federal preemption as to Appellants’ claims for: (1) strict liability failure to warn; (2) strict liability design defect; (3) fraud and intentional misrepresentation; (4) constructive fraud; (5) breach of implied warranty; (6) unfair trade practices, and (7) negligent misrepresentation.6 ____________________________________________ 5 Dr. Neppe examined and observed Mrs. Zitney, reviewed the video of her deposition to observe her symptoms over a period of hours, and reviewed her medical and pharmacy records. He opined to a reasonable medical probability that Mrs. Zitney’s metoclopramide exposure caused her movement disorder. See Motion for Summary Judgment, 4/25/19, at 4. 6 PLIVA did not seek summary judgment on the basis of federal preemption. -5- J-A21017-20 On April 25, 2019, Appellants filed a Motion for Partial Summary Judgment asserting that they were entitled to judgment as a matter of law against Teva on Appellants’ failure to warn claim. In particular, Appellants argued that Teva was negligent because it failed to inform Dr. Tobin about the July 2004 updates to the Reglan label and the corresponding updates to its metoclopramide label through a “Dear Health Care Provider” (“DHCP”) letter. See Motion for Summary Judgment, 4/25/19, at 7; Letter Brief, 7/10/19, at ¶ 13. Stated differently, Appellants based their failure to warn claim on the manner in which Appellees notified Dr. Tobin of the warnings, not on the warnings themselves. On June 3, 2019, PLIVA filed a Motion for Summary Judgment in which it argued that it was entitled to judgment as a matter of law on all of Appellants’ claims. Two days later, on June 5, 2019, Teva filed a similar Motion for Summary Judgment. On July 10, 2019, Appellants filed a “Reply Brief in Support of [Appellants’] Motion for Summary Judgment; Response Brief to Defendant’s Motion for Summary Judgment on Preemption, State Duty to Warn and Causation; and [Appellants’] Response to Defendant’s Motion to Strike Testimony of Vernon Neppe, M.D., Ph.D.” Reply Brief, 7/10/19. On July 25, 2019, Appellees’ filed a Reply in support of their Motions for Summary Judgment. After considering the Motions filed by the parties, the trial court concluded that Pennsylvania law does not impose a duty on drug -6- J-A21017-20 manufacturers to convey safety warnings in any manner other than by including them in a product’s package insert shipped with the product. Consequently, it found that because PLIVA and Teva had undisputedly complied with that mandate, they had not breached their duty to warn Appellant by not providing Dr. Tobin with a DHCP letter. Therefore, on October 16, 2019, the trial court entered Orders granting PLIVA’s and Teva’s Motions for Summary Judgment and dismissing Appellants’ claims against them with prejudice. This timely appeal followed. Both Appellants and the trial court have complied with Pa.R.A.P. 1925. Appellants raise the following issue on appeal: [D]oes a prescription drug manufacturer’s duty to provide product warnings extend to doctors who foreseeably rely on a manufacturer’s product information when prescribing a medication, even if the prescription was filled with the generic version of the prescribed? Appellants’ Brief at 4. Appellants challenge the trial court’s Orders granting summary judgment in favor of PLIVA and Teva. Our Supreme Court has clarified our role as the appellate court as follows: On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a -7- J-A21017-20 question of law, we shall review the grant of summary judgment in the context of the entire record. Summers v. Certainteed Corp., 997 A.2d 1152 , 1159 (Pa. 2010) (citations and quotation omitted). A trial court may grant summary judgment “only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Id. (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2(1). “When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party.” Summers, supra at 1159 (citation omitted). “In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.” Id. (citation and internal quotation marks omitted). The party moving for summary judgment bears the burden of showing that no genuine issue of material doubt exists and that it is entitled to judgment as a matter of law. Ford v. American States Ins. Co., 154 A.3d 237 , 244 (Pa. 2017). Appellants claim the trial court erred in finding that Appellees had not breached their duty to warn Appellants of the dangers of metoclopramide. Appellant’s Brief at 13-15. Appellants assert that Appellees’ conduct fell short of Pennsylvania law requiring drug manufacturers to provide warnings and related prescribing information to physicians because Appellees did not convey -8- J-A21017-20 the required safety information directly to Dr. Tobin through a DHCP Letter. Id. Appellants further argue that the trial court erred in concluding that, by updating their drug labels, Appellees’ had adequately warned Dr. Tobin of the dangers posed by metoclopramide. Id. at 15-18. Last, Appellants aver that entry of summary judgment was inappropriate because whether PLIVA and Teva breached their duty to notify Dr. Tobin of metoclopramide’s known risks is a question of fact for the jury and not a question of law for the court to decide. Id. at 24-26. “[W]here the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.” Hahn v. Richter, 673 A.2d 888 , 891 (Pa. 1996). With respect to negligence, a plaintiff in a products liability case must show that: (1) the product was defective; (2) the defect caused the plaintiff’s injury; and (3) the defect existed at the time the product left the manufacturer. Demmler v. SmithKline Beecham Corp., 671 A.2d 1151 , 1153-54 (Pa. Super. 1996). “A product may be deemed defective if it lacks adequate warnings or instructions necessary for safe use of the product.” Id. at 1154 (citation omitted). However, a pharmaceutical product, when “accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.” Id. (citing Restatement (Second) of Torts, § 402A, Comment k). -9- J-A21017-20 “Pennsylvania applies the learned intermediary doctrine to claims for failure to warn involving pharmaceutical drugs.” Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d 356 , 368 (Pa. Super. 2009). Under the learned intermediary doctrine, drug manufacturers must direct required drug- safety warnings to physicians, and not to patients. Id. See also Dion v. Graduate Hosp. of Univ. of. Penna. 520 A.2d 876 , 879 (Pa. Super. 1987) (noting that “where the drug is available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.”) “Thus, in an action against a drug manufacturer based upon inadequate warnings, the issue to be determined is whether the warning, if any, that was given to the prescribing physicians was proper and adequate.” Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909 , 924 (Pa. Super. 2011) (citations and quotation omitted). As noted above, Appellants do not dispute that the contents of the Reglan and metoclopramide labels were adequate to satisfy Appellees’ duty to warn. Instead, citing the learned intermediary doctrine’s requirement that pharmaceutical companies direct drug warnings to physicians and not to the general public, Appellants challenge the trial court’s conclusion that by merely including warning labels containing warnings about metoclopramide’s safety in the drugs’ packaging, Appellees had satisfied their legal duty to warn. In support of this claim, Appellants baldly assert, without citation to any authority, that the learned intermediary doctrine imposes upon Appellees a - 10 - J-A21017-20 duty to warn Dr. Tobin individually through a DHCP letter of the risks posed by Mrs. Zitney’s use of metoclopramide. In explaining its conclusion that Appellees were entitled to judgment as a matter of law, the trial court noted as follows: Here, [Appellants] do not argue Teva or PLIVA distributed their metoclopramide without the FDA approved label. Similarly, [Appellants] conceded the contents of [Appellees’] warnings was proper and adequate. Accordingly, since Teva and PLIVA distributed their metoclopramide with labels containing warnings that [Appellants] concede are sufficient, [Appellees] have fulfilled their duty to warn under Pennsylvania law. Trial Ct. Op. at 10. We agree with the trial court. Moreover, and contrary to Appellants’ claim, Pennsylvania law does not impose on drug manufacturers a duty to send DHCP letters to prescribing physicians like Dr. Tobin. Because Pennsylvania law does not impose upon Appellees the heightened duty advocated by Appellants, and because Appellants conceded that Appellees fulfilled their duty to provide content-appropriate warning labels in their metoclopramide packaging, the trial court properly found that Appellees had not breached their duty to Appellants. Accordingly, Appellees were entitled to judgment as a matter of law and the trial court, therefore, did not err in entering summary judgment in favor of Appellees.7 ____________________________________________ 7 With respect to Appellants’ contention that whether PLIVA and Teva breached their duty to notify Dr. Tobin of metoclopramide’s known risks is a question of fact for the jury and not a question of law for the court to decide, this Court’s review of the record indicates that Appellants failed to preserve - 11 - J-A21017-20 Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 ____________________________________________ this issue before the trial court and, instead, raised this issue for the first time on appeal. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”) They have, therefore, waived this claim. Moreover, it is axiomatic that whether the law imposes a duty on a defendant is a question of law. See Truax v. Roulhac, 126 A.3d. 991, 1000 (Pa. Super. 2015) (“While the existence of a duty is a question of law, whether there has been a neglect of such duty is generally for the jury.”). Thus, even if Appellants had not waived this claim, it would fail. - 12 -
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J-S37003-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOSE ANTONIO CRUZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GLENNIS L. CLARK : : Appellant : No. 159 EDA 2020 Appeal from the Order Dated December 13, 2019 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2017-C-2672 JOSE ANTONIO CRUZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : GLENNIS L. CLARK : No. 387 EDA 2020 Appeal from the Judgment Entered on February 21, 2020. In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2017-C-2672 BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020 After review of these consolidated appeals, we affirm the December 13, 2019 order in the appeal at Superior Court Docket Number 159 EDA 2020, and we affirm February 21, 2020 judgment in the appeal at Superior Court Docket Number 387 EDA 2020. By way of background, we note that prior to the civil action underlying these consolidated appeals, Attorney Glennis L. J-S37003-20 Clark (“Clark”) represented Jose Antonio Cruz (“Cruz”)1 in a criminal matter in 2011. Complaint, 8/29/17. At the conclusion of the criminal trial, Cruz was found guilty and incarcerated. Id. On August 29, 2017, Cruz filed a pro se complaint against Clark for legal malpractice and breach of contract in connection with Clark’s representation of Cruz in the criminal matter. Clark failed to file a timely response to Cruz’s complaint, and on October 19, 2017, the trial court entered a default judgment in favor of Cruz and against Clark in the amount of $17,200. On October 30, 2017, Clark filed an answer with new matter and counterclaim, and on October 31, 2017, he filed a petition to open or strike the default judgment. On November 6, 2017, the trial court granted Clark’s petition and struck the default judgment. On December 7, 2017, Cruz appealed the order striking the default judgment. Clark filed an application to quash Cruz’s appeal on January 30, 2018. On February 21, 2018, this Court granted Clark’s application and quashed Cruz’s appeal. Order, 2/21/17.2 Therefore, the matter returned to the trial court. On December 17, 2018, Cruz filed a motion for summary judgment. On April 23, 2019, Cruz filed a motion for sanctions against Clark pursuant to ____________________________________________ 1 Cruz has proceeded pro se throughout the litigation and appeals of these civil matters. 2 Cruz’s prior appeal appeared at Superior Court docket number 3993 EDA 2017. -2- J-S37003-20 Pa.R.C.P. 1023.1-1023.4. In his motion for sanctions, Cruz alleged that Clark, as a party-defendant, filed documents in this matter without serving or notifying Cruz, a party-plaintiff, in violation of Pa.R.C.P. 1023.1-1023.4. Motion, 4/23/19, at 1-2. Clark did not respond to Cruz’s motion for sanctions. The trial court denied Cruz’s motion for summary judgment on May 9, 2019, and held a hearing on June 10, 2019. On September 10, 2019, the trial court granted Cruz’s motion for sanctions against Clark, and it ordered Clark to pay Cruz $350 on or before November 1, 2019. On September 17, 2019, the trial court disposed of Cruz’s August 14, 2017 complaint against Clark in favor of Clark. On October 1, 2019, Cruz filed a motion for post-trial relief and a request for transcripts. The trial court granted Cruz’s motion for transcripts, and provided Clark until October 11, 2019, to file a post-trial motion. Order, 10/4/19. On November 12, 2019, Cruz filed a motion asking the trial court to find Clark in contempt because Clark had not complied with the September 10, 2019 order to pay Cruz the $350. On November 17, 2019, Clark filed a motion asking the trial court to reconsider the September 10, 2019 order. In response, the trial court concluded that Clark’s November 17, 2019 motion for reconsideration was filed more than thirty days after the September 10, 2019 -3- J-S37003-20 order, divesting the trial court of jurisdiction to reconsider its prior order pursuant to 42 Pa.C.S. § 5505.3 Order, 11/25/19. On November 26, 2019, Clark filed an answer to Cruz’s November 12, 2019 motion. Despite the trial court’s November 25, 2019 order explaining that it lacked jurisdiction to reconsider the September 10, 2019 order, Clark filed a motion on December 3, 2019, again asking the trial court to reconsider the September 10, 2019 order. On December 13, 2019, the trial court denied Clark’s motion. Order, 12/13/19 (“First December 13, 2019 Order”). In the First December 13, 2019 Order, the trial court reiterated that Clark filed his motion for reconsideration more than thirty days after the entry of the September 10, 2019 order. Id. The trial court filed a separate order on December 13, 2019, granting Cruz’s motion for civil contempt. Order, 12/13/19 (“Second December 13, 2019 Order”). The Second December 13, 2019 Order also enforced the September 10, 2019 order directing Clark to pay Cruz $350 and noted: “This Order is not intended to modify the terms of the September 10, 2019 Order.” Id. at n.1. ____________________________________________ 3 Section 5505 provides as follows: “Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505. -4- J-S37003-20 On January 3, 2020, the trial court denied Cruz’s motion for post-trial relief. On that same day, Clark filed an appeal from the trial court’s December 13, 2019 order.4 Notice of Appeal, 1/3/20. Clarks’ appeal was docketed at Superior Court Docket Number 159 EDA 2020. On January 8, 2020, the trial court directed Clark to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, Clark filed his Pa.R.A.P. 1925(b) two days late on January 31, 2020. On January 30, 2020, the trial court filed its Pa.R.A.P. 1925(a) opinion concluding that Clark waived all of his issues on appeal due to his failure to file a timely Pa.R.A.P. 1925(b) statement.5 Trial Court Opinion, 1/30/20, at 1-2. On January 13, 2020, Cruz filed an appeal from the trial court’s September 17, 2019 order that was entered in favor of Clark and against Cruz in Cruz’s legal malpractice suit. Cruz’s appeal was docketed at Superior Court Docket Number 387 EDA 2020. On January 23, 2020, the trial court directed ____________________________________________ 4 Although Clark states in his notice of appeal that he is appealing one of the December 13, 2019 orders, Clark inexplicably attached to his notice of appeal the January 3, 2020 order denying Cruz’s post-trial motion. 5 After Clark filed his untimely Pa.R.A.P. 1925(b) statement, the trial court filed a supplemental opinion reiterating its conclusion that Clark waived his issues on appeal. However, the trial court briefly addressed the issues Clark sought to raise in case this Court disagreed with the trial court’s finding of waiver and Clark’s violation of the bright-line rule concerning waiver due to an untimely Pa.R.A.P. 1925(b) statement. Supplemental 1925(a) Opinion, 2/12/20, at 3-5. -5- J-S37003-20 Cruz to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Cruz complied on February 5, 2020. The trial court filed its Pa.R.A.P. 1925(a) opinion on February 12, 2020. On February 10, 2020, this Court informed Cruz that no judgment had been entered on the September 17, 2019 verdict in favor of Clark in Cruz’s legal malpractice action. We issued an order on February 10, 2020, directing Cruz to praecipe for the entry of judgment. Cruz complied, and the trial court entered judgment in favor of Clark and against Cruz on February 21, 2020.6 On February 7, 2020, Cruz filed a motion to consolidate the appeals at 159 EDA 2020 and 387 EDA 2020. On March 11, 2020, this Court granted Cruz’s motion and consolidated the appeals. In Clark’s appeal at 159 EDA 2020, we conclude that he failed to properly preserve any issues for appeal. As the trial court noted, Clark failed to file a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and waived his issues for appellate review. Trial Court Opinion, 1/30/20, at 1-2; Supplemental 1925(a) Opinion, 2/12/20, at 1-3. Rule 1925 provides that “[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are ____________________________________________ 6 An appeal in a civil case in which post-trial motions are filed lies from the entry of judgment. K.H. v. J.R., 826 A.2d 863 , 871 (Pa. 2003). As stated, judgment was entered on February 21, 2020. We have corrected the appeal paragraph in 387 EDA 2020 accordingly. -6- J-S37003-20 waived.” Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415 , 719 A.2d 306 (1998), our Supreme Court held that “from this date forward, in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Lord, 719 A.2d at 309 ; see also Commonwealth v. Castillo, 585 Pa. 395 , 888 A.2d 775 , 780 (2005) (stating any issues not raised in a Rule 1925(b) statement are deemed waived). This Court has held that “[o]ur Supreme Court intended the holding in Lord to operate as a bright-line rule, such that ‘failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.’” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222 , 224 (Pa. Super. 2014) (en banc) (emphasis in original) (internal quotation marks and citation omitted). Due to Clark’s failure to comply with Pa.R.A.P. 1925(b), all of his issues are waived.7 ____________________________________________ 7 In criminal cases, the untimely filing of a court-ordered Pa.R.A.P. 1925(b) statement resulting in waiver is per se ineffective assistance of counsel, and the defendant is entitled to prompt relief. In re Estate of Boyle, 77 A.3d 674 , 679 n.6 (Pa. Super. 2013) (citing Commonwealth v. Burton, 973 A.2d 428 , 432-433 (Pa. Super. 2009) and Pa.R.A.P. 1925(c)(3)). “However, the instant case is a civil matter, in which the parties have no corresponding right to counsel and effective assistance of counsel.” Boyle, 77 A.3d at 679 n.6. -7- J-S37003-20 Therefore, we affirm the December 13, 2019 order that Clark purports8 to appeal.9 In Cruz’s appeal at 387 EDA 2020, we are constrained to conclude that there are no issues for this Court to review. Our Pennsylvania Rules of Appellate Procedure and our case law provide the well-established requirements for preserving a claim for appellate review. See Pa.R.A.P. 2111-2119 (discussing required content of appellate briefs and addressing specific requirements of each subsection of brief on appeal). An appellate court will address only those issues properly presented and developed in an appellant’s brief as required by our Rules of ____________________________________________ 8 It remains unclear which December 13, 2019 order Clark seeks to appeal. 9 Were we to endeavor to reach the merits of Clark’s appeal, we conclude that there would be a number of barriers to appellate review. In his notice of appeal, Clark did not specify which December 13, 2019 order he sought to appeal, and he instead attached an order that was filed on January 3, 2020. In both his untimely Pa.R.A.P. 1925(b) statement, and in his brief on appeal, Clark challenges aspects of the September 19, 2019 order and both of the December 13, 2019 orders. Appealing separate orders in a single notice of appeal is improper pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Moreover, in our February 25, 2020 order to show cause, we explained that it was not clear which order Clark challenged on appeal. Order, 2/25/20. In his response to the order to show cause, Clark conceded deficiencies in his filings but alleged that his issues “are preserved reasonably well in the 1925(b) concise statement of matters complained of on appeal.” Clark’s Response to Rule, 3/5/20, at unnumbered 2-3. However, in Clark’s untimely Pa.R.A.P. 1925(b) statement, he challenged aspects of the September 10, 2019 order and both of the December 13, 2019 orders. We reiterate that Clark filed a single appeal and this is improper pursuant to Walker, supra. Additionally, in his March 5, 2020 Response to Rule, Clark attempts to narrow the focus of his appeal, and he alters and restates the issues raised in his untimely Pa.R.A.P. 1925(b) statement. Id. at unnumbered 2. This is wholly improper. As stated, issues not raised in the Rule 1925(b) statement are waived; moreover, issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Estate of Boyle, 77 A.3d at 679 ; Pa.R.A.P. 302(a). -8- J-S37003-20 Appellate Procedure, Pa.R.A.P. 2101. Where defects in a brief “impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.” Commonwealth v. Hardy, 918 A.2d 766 , 771 (Pa. Super. 2007). See also Commonwealth v. Williams, 557 Pa. 207 , 732 A.2d 1167 , 1175 (1999) (recognizing “the unavailability of relief based upon undeveloped claims for which insufficient arguments are presented on appeal”); Commonwealth v. McDermitt, 66 A.3d 810 , 814 (Pa. Super. 2013) (stating “[i]t is a well settled principle of appellate jurisprudence that undeveloped claims are waived and unreviewable on appeal.” (citation omitted)). As this Court has made clear, we “will not act as counsel and will not develop arguments on behalf of an appellant.” Hardy, 918 A.2d at 771 . Sephakis v. Pennsylvania State Police Bureau of Records and Identification, 214 A.3d 680 , 686-687 (Pa. Super. 2019). Although Cruz filed a motion to consolidate these appeals, and despite this Court granting Cruz an extension of time in which to file his brief as the appellant in 387 EDA 2020, Cruz submitted no argument relative to this docket. In his consolidated brief, Cruz argues only as the appellee in the appeal filed by Clark at 159 EDA 2020. Cruz has not provided any argument as the appellant in his appeal at 387 EDA 2020. Accordingly, due to the absence of argument, we conclude that Cruz waived his issues on appeal. Sephakis, 214 A.3d at 686-687. Therefore, we affirm the February 21, 2020 judgment entered on the September 17, 2019 verdict in favor of Clark. Order affirmed at Docket Number 159 EDA 2020. Judgment affirmed at Docket Number 387 EDA 2020. -9- J-S37003-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 - 10 -
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J-S28039-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GABRIEL TYLER WOOD : : Appellant : No. 73 MDA 2020 Appeal from the Judgment of Sentence Entered May 28, 2019 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-SA-0000010-2019 BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 01, 2020 Gabriel Tyler Wood (“Wood”) appeals from the judgment of sentence imposed following his conviction of driving while operating privilege is suspended or revoked.1 We affirm. On October 16, 2018, at approximately 7:43 a.m., Pennsylvania State Trooper Jeffrey Black (“Trooper Black”) was dispatched to a disabled vehicle, which was pulled over to the side of Exit 77, Linglestown Road, on Interstate 81. When he arrived at the disabled vehicle, Trooper Black observed a single male individual standing near the vehicle. Upon exiting his cruiser, and approaching the disabled vehicle, Trooper Black spoke with the man, who identified himself as Wood. Wood told Trooper Black that he was driving to ____________________________________________ 1 75 Pa.C.S.A. § 1543(a). J-S28039-20 work when his vehicle broke down. After speaking with Wood, Trooper Black checked the vehicle’s registration and Wood’s driving history. Upon doing so, Trooper Black discovered that Wood’s license had been suspended2 and that Wood had no insurance. Trooper Black issued Wood citations for both driving while operating privilege is suspended or revoked and operation of a motor vehicle without required financial responsibility.3 On January 10, 2019, Wood appeared before a magisterial district judge and proceeded to a hearing on both citations. The magisterial district judge found Wood guilty of the above-mentioned offenses and sentenced him to 30 days in the Dauphin County Prison. Wood filed a timely summary appeal to the Court of Common Pleas, challenging his conviction of driving while operating privilege is suspended or revoked. On May 28, 2019, the trial court conducted a trial de novo, during which Wood was represented by Elizabeth A. Close, Esquire (“Attorney ____________________________________________ 2 Wood’s certified driving record reveals that his driver’s license was to be restored on June 27, 2016. See Commonwealth Exhibit 1 (Certified Driving Record), at 2. However, on June 25, 2016, Wood was charged with driving while operating privilege was suspended or revoked and an additional one- year suspension became effective on September 15, 2016. Id. Since that violation, Wood’s driver’s license has been continuously suspended through a series of four more incidents of driving while operating privilege is suspended or revoked, among other Motor Vehicle Code violations. See id. at 2-5. Wood’s certified driving record indicates that, prior to the instant case, his license was suspended through October 5, 2021. Id. at 5. 3 75 Pa.C.S.A. § 1786(f). -2- J-S28039-20 Close”). The Commonwealth presented the testimony of Trooper Black and admitted Wood’s certified driving record into evidence. Wood presented the testimony of Hailey Mehaffie (“Mehaffie”), his then- girlfriend. Mehaffie testified that she, not Wood, was driving the vehicle that morning. Mehaffie stated that after the vehicle broke down, she called a friend to pick her up and left the scene because she was late for work. Wood also testified on his own behalf. In his testimony, Wood confirmed that Mehaffie was driving the vehicle when it broke down, and that Mehaffie had a friend pick her up from that location. Wood testified that he called for a tow truck and elected to stay with the vehicle until the tow truck arrived. Wood agreed that, sometime after he had called for the tow truck, Trooper Black arrived on scene and issued the above-mentioned citations. At the conclusion of the trial de novo, the trial court found Wood guilty of driving while operating privilege is suspended or revoked. On the same day, the trial court sentenced Wood to a period of 60 days to 6 months in the Dauphin County Prison, and ordered Wood to pay a fine of $1,000.00. Wood, through Attorney Close, filed a Notice of Appeal on June 28, 2019. Attorney Close filed a Statement of Intent to file an Anders4 Brief in lieu of a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court declined to file a Pa.R.A.P. 1925(a) Opinion. On August ____________________________________________ 4 Anders v. California, 386 U.S. 738 (1967). -3- J-S28039-20 16, 2019, in a per curiam Order, this Court quashed Wood’s appeal as untimely filed. Subsequently, on August 26, 2019, James J. Karl, Esquire, entered his appearance on behalf of Wood and timely filed a Petition for Relief pursuant to the Post Conviction Relief Act (“PCRA”).5 The PCRA Petition alleged that Attorney Close was per se ineffective for failing to file a timely notice of appeal for Wood. On December 30, 2019, the PCRA court granted the PCRA Petition and reinstated Wood’s post-sentence motion and direct appeal rights, nunc pro tunc. After some deliberation, the trial court re-appointed the Dauphin County Public Defender’s Office to represent Wood. Attorney Close re-entered her appearance on behalf of Wood and filed the instant timely Notice of Appeal.6, 7 ____________________________________________ 5 42 Pa.C.S.A. §§ 9541-9546. 6 Attorney Close did not file a post-sentence motion on Wood’s behalf. 7 On January 8, 2020, Attorney Close filed a Statement of Intent to file an Anders Brief in lieu of a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Attorney Close subsequently filed, in this Court, an Anders Brief and an Application to Withdraw as Counsel. During this Court’s independent review of the record, we determined that a non-frivolous issue existed as to whether Wood had actual notice that his license was suspended. Commonwealth v. Wood, 73 MDA 2020 (Pa. Super. filed September 24, 2020) (unpublished memorandum at 11-12). We ordered Attorney Close to file either an appellate brief, or a new application to withdraw from representation and an Anders brief addressing this issue. Id. at 12. The parties supplemented the record with Wood’s certified driving record. Additionally, Wood has filed an appellate brief with this Court. -4- J-S28039-20 Wood now presents the following claim for our review: “In a prosecution for driving under suspension, was not the evidence insufficient to sustain the conviction when the Commonwealth failed to prove that [Wood] had actual notice of the suspension?” Brief for Appellant at 4 (some capitalization omitted). Wood argues that the Commonwealth failed to present sufficient evidence that Wood had actual notice of his license suspension. Id. at 15-17. Wood acknowledges that his driving record reveals that the Pennsylvania Department of Transportation (“PennDOT”) mailed him a notice of license suspension. Id. at 21. However, Wood, relying on this Court’s decision in Commonwealth v. Crockford, 660 A.2d 1326 (Pa. Super. 1995) (en banc), asserts that merely demonstrating that the notice of license suspension was mailed is insufficient to establish actual notice. Brief for Appellant at 16-18. Additionally, Wood asserts that the “rebuttable presumption” set forth in Crockford8 is inapplicable to his case and, instead, this Court should view the “totality of the evidence.” Id. at 20-21. Wood claims that the Commonwealth’s only evidence is his certified driving record. Id. at 19. Wood acknowledges that he did not present a driver’s license to Trooper Black, but contends that this is not dispositive of his claim, because the “Commonwealth ____________________________________________ 8 In Crockford, this Court applied a rebuttable presumption analysis to determine whether the Commonwealth had proven beyond a reasonable doubt that the defendant had actual notice of his license suspension. Crockford, 660 A.2d at 1334 . -5- J-S28039-20 … did not produce any evidence concerning [] Wood’s possession or non- possession of a driver’s license at the scene.” Id. When examining a challenge to the sufficiency of the evidence, we adhere to the following standard of review: The standard we apply in reviewing the sufficiency of the evidence is whether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact- finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence. Commonwealth v. Smith, 97 A.3d 782 , 790 (Pa. Super. 2014) (citation omitted). In order to establish a violation of driving while operating privilege is suspended or revoked, section 1543(a) of the Motor Vehicle Code provides that, “[e]xcept as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a -6- J-S28039-20 summary offense[.]” 75 Pa.C.S.A. § 1543(a). Additionally, the Commonwealth must demonstrate that the defendant had actual notice that his license was suspended or revoked. Commonwealth v. Baer, 682 A.2d 802 , 805 (Pa. Super. 1996); see also Commonwealth v. Kane, 333 A.2d 925 , 927 (Pa. 1975) (stating that it is necessary for the Commonwealth to prove that the accused had actual notice of suspension in order to sustain a conviction of driving while under suspension); Commonwealth v. McDonough, 621 A.2d 569 , 572 (Pa. 1993) (explaining that the Kane Court’s holding applies to the current statute, 75 Pa.C.S.A. § 1543). In determining what factors may be considered to determine whether an individual had actual notice of license suspension, our Supreme Court has stated the following: Factors that a finder of fact may consider in determining circumstantially or directly whether a defendant had actual notice of his or her suspension include, but are not limited to, evidence that the defendant was verbally or in writing apprised of the license suspension during the trial or a plea, statements by the accused indicated knowledge that he or she was driving during the period in which his or her license had been suspended, evidence that PennDOT sent by mail the notice of the suspension to appellant’s current address, evidence that PennDOT’s notice of suspension was not returned as undeliverable, attempts by the accused to avoid detection or a citation, and any other conduct demonstrating circumstantially or directly appellant’s knowledge of the suspension or awareness of guilt. Commonwealth v. Zimmick, 653 A.2d 1217 , 1221 (Pa. 1995) (citation omitted); see also Kane, 333 A.2d at 926 (stating that mailing the notice of suspension, without more, is insufficient to prove actual notice). Actual notice -7- J-S28039-20 “may take the form of a collection of facts and circumstances that allow the fact finder to infer that a defendant has knowledge of suspension.” Crockford, 660 A.2d at 1330-31 . Here, at the trial de novo, Wood did not challenge whether the Commonwealth had presented sufficient evidence that Wood had actual notice of his license suspension. The Commonwealth presented a single piece of evidence regarding notice of Wood’s suspension: his certified driving record. See N.T. (Summary Appeal), 5/28/19, at 9; see also Commonwealth Exhibit 1 (Certified Driving Record), at 5. Wood’s certified driving record reveals a history of six license suspensions and indicates that all of the notices of suspension were mailed to Wood. See Commonwealth Exhibit 1 (Certified Driving Record), at 1-5; see also Commonwealth v. Harden, 103 A.3d 107 , 114 (Pa. Super. 2014) (stating that an appellant’s history of suspensions for previous violations, as detailed in his driving record, supports an inference of actual knowledge of his license suspension). Additionally, Wood testified in his defense, and stated that he did not produce a driver’s license to Trooper Black when requested. See N.T. (Summary Appeal), 5/28/19, at 25; see also Commonwealth v. Dietz, 621 A.2d 160 , 162-63 (Pa. Super. 1993) (holding that a defendant’s failure to possess a current license at the time of the incident is presumptive knowledge of suspension); Harden, 103 A.3d at 114-15 (stating that sufficient evidence of actual notice existed where the defendant “had a long history of license suspensions, [had] failed to present -8- J-S28039-20 a driver’s license during the traffic stop” and the certified driving record reflected that notice of the driver’s license suspension had been mailed to the defendant). Evidence that PennDOT mailed the notice of suspension to Wood, together with the surrounding circumstances, is sufficient to establish that Wood had actual notice that his license was suspended. See Smith, supra; Crockford, 660 A.2d at 1330-31 ; Harden, 103 A.3d at 114-15. Accordingly, we cannot grant Wood relief on this claim. Judgment of sentence affirmed. Judge Olson joins the memorandum. Judge Bowes concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 -9-
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http://www.pacourts.us/assets/opinions/Superior/out/J-S37010-20m - 104620209121002801.pdf
J-S37010-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLIFFORD WEAL : : Appellant : No. 727 EDA 2019 Appeal from the PCRA Order Entered February 28, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008578-2012 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLIFFORD WEAL : : Appellant : No. 729 EDA 2019 Appeal from the PCRA Order Entered February 28, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300779-2006 BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020 Appellant, Clifford Weal, appeals from the orders denying his petitions for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, in the above-captioned consolidated cases. In addition, counsel for Appellant filed a motion to withdraw as counsel and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and J-S37010-20 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We grant counsel’s motion to withdraw and affirm the orders of the PCRA court. The PCRA court set forth the history of these cases as follows: On July 24, 2003 at 1 a.m., [Appellant] met the victim near Broad and Cumberland Streets in Philadelphia. The two agreed to have sexual intercourse in exchange for drugs. They walked to an abandoned warehouse nearby with the use of a candle to see. Upon arrival, [Appellant] blew out the candle, put an extension cord around the victim’s neck, and began strangling her. [Appellant] directed the victim to unbutton her pants. She attempted to fight off [Appellant]. The more the victim struggled, the tighter [Appellant] pulled the cord around her neck. The victim told police that she went in and out of consciousness and that [Appellant] made her suck his penis with her mouth until he ejaculated. The police were called and the victim filed a report. The police recorded several bruises around the victim’s neck as well as severely bloodshot eyes. The victim identified [Appellant] in a photo array that same day. Aff, of Probable Cause, 4/6/2006; see also N.T. VOP 9/11/2012, p. 11. On November 29, 2006, [at trial court docket number CP- 51-CR-1300779-2006, Appellant] entered a negotiated guilty plea before the Honorable Pamela Pryor Dembe on the charges of sexual assault, simple assault, and possession of an instrument of crime. [Appellant] agreed with the Commonwealth’s recitation of the facts. This conviction represents the second incident for which [Appellant] obtained a conviction for forcing a sex worker to perform oral sex on him by choking and strangling the victim with an electrical cord. N.T. VOP 9/11/2012, p. 11. On February 28, 2007, a sentencing hearing was held before Judge Dembe. The [c]ourt found [Appellant] to be a Sexually Violent Predator [(“SVP”)]. Judge Dembe sentenced [Appellant] to a maximum term of 15 years [of] probation. [Appellant] did not appeal his judgment of sentence. On September 11, 2012, a violation of probation hearing was held before the Honorable Joan A. Brown. [Appellant] entered an open guilty plea on the charge of failing to register as a sex offender with the Pennsylvania State Police [at trial court docket number CP-51-CR-0008578-2012] and was found in violation of -2- J-S37010-20 probation. [Appellant] was sentenced to an additional 3 to 6 years [of] incarceration to run consecutive to his existing sentences. No appeal was filed. On September 14, 2017, [Appellant] filed [identical] pro se PCRA petition[s at each of the above captioned trial court docket numbers]. On July 9, 2018, [Appellant’s counsel] filed an Amended PCRA petition. On October 15, 2018, the Commonwealth filed a Motion to Dismiss. On November 15, 2018, [Appellant] filed a Response to the Commonwealth’s Motion to Dismiss. On January 29, 2019, [the PCRA c]ourt sent [Appellant] a 907 Notice of Intent to Dismiss. On February 6, 2019, [Appellant] sent a pro se Response to the 907 Notice. On February 28, 2019, [the PCRA c]ourt dismissed [Appellant’s] PCRA petition[s] as untimely and without merit. PCRA Court Opinion, 10/4/19, at 2-3. These timely appeals followed. Appellant was not directed to file a statement pursuant to Pa.R.A.P. 1925(b). The trial court complied with Pa.R.A.P. 1925(a). On February 3, 2020, this Court entered an order that sua sponte consolidated the above captioned appeals. On March 4, 2020, PCRA counsel filed a no-merit letter with this Court requesting permission to withdraw. Prior to addressing the merits of Appellant’s matter on appeal, we must first decide whether counsel has fulfilled the procedural requirements for withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795 , 797 (Pa. Super. 2008). This Court has listed the following conditions to be met by counsel in seeking to withdraw in a collateral appeal: Counsel petitioning to withdraw from PCRA representation must proceed ... under [Turner, supra and Finley, supra and] ... must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal -3- J-S37010-20 to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. * * * [W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the court-trial court or this Court-must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. Commonwealth v. Doty, 48 A.3d 451 , 454 (Pa. Super. 2012) (citation omitted) (brackets in original). In the application filed with this Court and the documents appended thereto, counsel explained that he had been appointed to represent Appellant at the PCRA proceedings and that he reviewed the case, evaluated the issues, conducted an independent review of the record, and concluded there were no issues of merit. Counsel also presented the issues relevant to this appeal in his no-merit letter and explained why the appeal is without merit. In addition, counsel averred that he served upon Appellant a copy of the application to withdraw, the “no-merit” letter, and a letter addressed to Appellant accompanying those documents. Thus, we will allow counsel to withdraw if, after our review, we conclude that the issues relevant to this appeal lack merit. We have discerned the following issues noted by PCRA counsel on behalf of -4- J-S37010-20 Appellant in the Turner/Finley letter: (1) whether the PCRA petition was timely filed; and (2) whether there exists a valid exception to the timeliness requirement. Turner/Finley Letter at 4-7. When reviewing the propriety of an order denying PCRA relief, we consider the record “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Stultz, 114 A.3d 865 , 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16 , 20 (Pa. Super. 2014) (en banc)). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson, 139 A.3d 178 , 185 (Pa. 2016). The PCRA court’s findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095 , 1100 (Pa. Super. 2014). A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649 , 651 (Pa. Super. 2013). -5- J-S37010-20 However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.1 See Commonwealth v. Perrin, 947 A.2d 1284 , 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-year time- bar, the PCRA demands that the petitioner properly plead all required elements of the relied-upon exception). Our review of the record reflects that, with regard to the conviction at trial court docket number CP-51-CR-1300779-2006, Appellant’s judgment of sentence became final on March 30, 2007, thirty days after the trial court imposed the judgment of sentence, and Appellant failed to file a timely direct ____________________________________________ 1 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii). -6- J-S37010-20 appeal with this Court.2 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). See Commonwealth v. Hutchins, 760 A.2d 50 , 54 (Pa. Super. 2000) (reiterating that judgment of sentence becomes final upon conclusion of direct review or upon expiration of time for seeking review and holding the appellant’s judgment of sentence became final after the expiration of the thirty-day period in which the appellant was permitted to seek further review in our Supreme Court). Thus, in order to be timely under the PCRA, Appellant needed to file his PCRA petition on or before March 31, 2008.3 Appellant did not file the ____________________________________________ 2 Appellant violated the terms of his probation, and the trial court revoked his probation and resentenced him to a term of incarceration in September of 2012. Because Appellant challenges his SVP designation and registration requirements, which arose out of his initial guilty plea and sentence, the resentencing hearing did not reset the clock for the purposes of determining when Appellant’s judgment of sentence became final. Thus, the operative date when examining timeliness under the PCRA with regard to trial court docket number CP-51-CR-1300779-2006 is February 28, 2007, the original date of sentencing on the guilty plea. See Commonwealth v. Anderson, 788 A.2d 1019 , 1021-1022 (Pa. Super. 2001) (stating that “[p]robation revocation does not materially alter the underlying conviction such that the period available for collateral review must be restarted,” and holding that “the time for seeking PCRA relief following the revocation of probation and the imposition of a new sentence runs for one year from the conclusion of direct review of that new sentencing order, but only as to the issues of the validity of the revocation proceedings and the legality of the new sentence.” (emphasis in original)). 3 We note that a PCRA petition needed to be filed on or before Monday, March 31, 2008, because March 30, 2008, was a Sunday. See 1 Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day of any such period shall fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from the computation). -7- J-S37010-20 PCRA petition until September 14, 2017. Accordingly, the PCRA petition filed at trial court docket number CP-51-CR-1300779-2006 is patently untimely. Concerning the conviction at trial court docket number CP-51-CR- 0008578-2012, Appellant’s judgment of sentence became final on October 11, 2012, thirty days after the trial court imposed the judgment of sentence, and Appellant failed to file a timely direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). See Hutchins, 760 A.2d at 54 (reiterating that judgment of sentence becomes final upon conclusion of direct review or upon expiration of time for seeking review and holding the appellant’s judgment of sentence became final after the expiration of the thirty-day period in which the appellant was permitted to seek further review in our Supreme Court). Therefore, in order to be timely under the PCRA, Appellant needed to file his PCRA petition on or before October 11, 2013. Appellant did not file the PCRA petition until September 14, 2017. Hence, the PCRA petition filed at trial court docket number CP-51-CR-0008578-2012 is patently untimely. As stated, if a petitioner does not file a timely PCRA petition, his petition may be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner asserts -8- J-S37010-20 one of these exceptions, he must file his petition within sixty days of the date that the exception could be asserted.4 42 Pa.C.S. § 9545(b)(2). Appellant attempts to satisfy the “newly recognized constitutional right” exception to the time-bar under Section 9545(b)(1)(iii) by arguing that the registration requirement imposed upon him pursuant to the Sexual Offenders Notification Act (“SORNA”) is unconstitutional under our Supreme Court’s July 19, 2017 decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding SORNA’s registration provisions are punitive, and retroactive application of SORNA’s provisions violates the ex post facto clause of the Pennsylvania Constitution). Regarding this exception, our Supreme Court explained: Subsection (iii) of Section 9545(b)(1) has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be ____________________________________________ 4 On October 24, 2018, the General Assembly amended section 9545(b)(2), extending the time for filing a petition from sixty days to one year from the date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018- 146 (S.B. 915), effective December 24, 2018. The amendment applies only to claims arising one year before the effective date of this section, which is December 24, 2017, or thereafter. Here, Appellant’s alleged claim arose on July 19, 2017, the date that the decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), was filed. Therefore, the amendment is inapplicable because the decision in Muniz preceded December 24, 2017. -9- J-S37010-20 retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Copenhefer, 941 A.2d 646 , 649-650 (Pa. 2007) (quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497 , 501 (Pa. 2002)) (emphases added). We have held that Muniz created a substantive rule of constitutional law that must apply retroactively in timely PCRA proceedings. Commonwealth v. Rivera–Figueroa, 174 A.3d 674 , 678 (Pa. Super. 2017). Thereafter, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), appeal denied, 195 A.3d 559 (Pa. 2018), we stated the following: [W]e acknowledge that this Court has declared that, “Muniz created a substantive rule that retroactively applies in the collateral context.” Commonwealth v. Rivera-Figueroa, 174 A.3d 674 , 678 (Pa. Super. 2017). However, because Appellant’s PCRA petition is untimely (unlike the petition at issue in Rivera- Figueroa), he must demonstrate that the Pennsylvania Supreme Court has held that Muniz applies retroactively in order to satisfy section 9545(b)(1)(iii). See [Commonwealth v.] Abdul- Salaam, [ 812 A.2d 497 , 501 (Pa. 2002)]. Because at this time, no such holding has been issued by our Supreme Court, Appellant cannot rely on Muniz to meet that timeliness exception. Murphy, 180 A.3d at 405-406. Thus, in Murphy we held that the substantive rule recognized in Muniz does not establish a timeliness exception to the PCRA. Hence, no exceptions apply to exempt Appellant from failing to meet the timeliness requirement of the PCRA. In conclusion, because Appellant’s PCRA petitions were untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the issues - 10 - J-S37010-20 presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396 , 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack the authority to address the merits of any substantive claims raised in the PCRA petitions. Furthermore, upon our independent review, no relief is due. Having determined that Appellant is not entitled to PCRA relief, we allow counsel to withdraw under the precepts of Turner/Finley. Motion to withdraw as counsel granted. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 - 11 -
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http://www.pacourts.us/assets/opinions/Superior/out/J-S48018-20m - 104620189121001211.pdf
J-S48018-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEON WASHINGTON, : : Appellant : No. 3250 EDA 2018 Appeal from the PCRA Order Entered October 11, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014192-2008 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEON WASHINGTON : : Appellant : No. 3251 EDA 2018 Appeal from the PCRA Order Entered October 11, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015916-2008 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEON WASHINGTON : : Appellant : No. 3252 EDA 2018 Appeal from the PCRA Order Entered October 11, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015917-2008 J-S48018-20 BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J. MEMORANDUM BY KING, J.: FILED DECEMBER 1, 2020 Appellant, Leon Washington, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his first petition under the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm in part, vacate in part, and remand for further proceedings consistent with this decision. The relevant facts and procedural history of this appeal are as follows. Appellant’s convictions stem from two shootings that took place in West Philadelphia on July 24, 2008 (“the Robinson Street Shooting”) and July 30, 2008 (“the Ruby Street Shooting”). The instant appeal concerns the Ruby Street Shooting only, which the trial court described as follows: [O]n July 30, 2008, a second shooting took place in the neighborhood. This time it was on Ruby Street between Ludlow and Chestnut. Near sundown, eyewitness Levi Green walked toward the front door of his home at 40 South Ruby Street to call his ten-year-old daughter, Victoria, to come inside. The girl was playing up the street on the front steps of a friend’s house at 30 South Ruby, near the Ruby– Ludlow intersection. Before she turned around to go home, Victoria looked down the block and noticed several people arguing outside a bar at the corner of Ruby and Chestnut. Aware of mounting tension, Victoria and her friend decided to go inside the friend’s house immediately, but before they were safely inside, one of the men outside the bar, dressed in all black, pulled something out of his pocket and pointed north toward Ludlow Street. Victoria saw flashes, and a bullet pierced her left leg as she ran for cover. ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. -2- J-S48018-20 From a half block away, the initial shots sounded like firecrackers to Victoria’s father, Levi Green. But when he reached his front door, he heard several loud cannon-like booms coming from the opposite direction. As he ducked, Green saw light flashes as gunfire erupted near 36 South Ruby, in between his home and the steps where Victoria had been playing. The second round of shots was aimed south toward Ruby and Chestnut where the man dressed in black had been standing as he fired north toward Ludlow. When the shooting stopped, Levi Green looked up and saw a man on the ground outside his house. The man had been shot. Meanwhile, Green ran to help his daughter Victoria. Within minutes, patrolling officers arrived on the scene. They found a man later identified as Anthony Mitchell, walking near Ruby and Ludlow with a gunshot wound to the leg. Although several bystanders warned officers that Mitchell was armed, a search revealed no gun. Officers then transported Mitchell to a hospital. At approximately the same time, additional responding officers were flagged down near 113 South Ruby, just south of the Chestnut Street intersection. There, they found [Appellant] laying on the sidewalk in a white t-shirt and boxer shorts with gunshot wounds to his arm and side. Police later discovered 113 South Ruby was [Appellant’s] aunt’s residence. The officers placed [Appellant] in the back of their car and rushed him to the hospital. On the way, [Appellant] claimed he was simply walking down Ruby Street when he suddenly heard gunshots and got hit. Back at the Ruby Street crime scene, other police officers found eight .45 caliber cartridge casings and one live round outside the corner bar where the gunman who shot Victoria had been standing. Subsequent analysis by Officer John Cannon of the Philadelphia police Firearms Unit (who testified as a firearms expert at trial) concluded those shell casings were fired by the same gun used to shoot Lyndon McBride six days earlier. See N.T. 6/10/10 at 99–100. No shell casings were found near 36 South Ruby, suggesting that the second gunman had used a revolver which, unlike the semiautomatic handgun used outside the corner bar, does not expel fired cartridges. -3- J-S48018-20 When detectives arrived at the hospital to question Mitchell and [Appellant], they found the two men gesturing back and forth as they received treatment in beds just a few feet apart. Both men initially refused to give formal statements, but each was arrested for shooting the other. The following day, [Appellant] changed his mind and decided to talk to police. His new account of the events the night before on Ruby Street differed significantly from what he told the officers as they drove him to the hospital. [Appellant] now claimed he was at 113 South Ruby, the home of his aunt, Sophia Dessus, when he noticed two women arguing near Ludlow Street. He claimed that he and a friend walked to the corner of Ruby and Chestnut and began arguing with the women, further antagonizing them. According to [Appellant], one of the women phoned a man named Jameer, who drove up moments later and started shooting. Unpersuaded by [Appellant’s] story and knowing that the cartridge casings found at the July 24 and July 30 shootings were from the same gun, detectives executed a search warrant on [Appellant’s] house at 413 South Ruby approximately eighteen hours after the second shooting. The house had been unguarded by the police during the interim and the gun was not found. (Trial Court Opinion, dated December 28, 2012, at 3-5). The Commonwealth charged Appellant in connection with both shootings with three counts each of attempted murder, aggravated assault, conspiracy to commit murder, violations of the Uniform Firearms Act (“VUFA”), carrying a firearm on public property in Philadelphia, possessing instruments of crime (“PIC”), terroristic threats, simple assault, and recklessly endangering another person (“REAP”). The trial court granted the Commonwealth’s motion to consolidate the cases, and Appellant proceeded to a jury trial in June 2010. At the conclusion of the Commonwealth’s evidence, the trial court -4- J-S48018-20 granted Appellant’s motion for judgment of acquittal on the attempted murder charges relating to the Ruby Street Shooting, but denied it as to all other counts. Ultimately, the jury found Appellant guilty on the aggravated assault, PIC, and VUFA charges. On August 17, 2010, the trial court sentenced Appellant to an aggregate term of fifteen to thirty years’ imprisonment, followed by five years of state-supervised probation. This Court affirmed the judgment of sentence on May 16, 2014, and Appellant did not file a petition for allowance of appeal. See Commonwealth v. Washington, 104 A.3d 50 (Pa.Super. 2014) (unpublished memorandum). On May 7, 2015, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on December 3, 2016. On May 18, 2017, the Commonwealth filed a motion to dismiss the petition without an evidentiary hearing. On June 7, 2018, the PCRA court issued its Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. Appellant did not respond to the Rule 907 notice, and the PCRA court dismissed the petition without a hearing on October 11, 2018. On November 8, 2018, Appellant timely filed separate notices of appeal for each of the underlying dockets.2 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and none was filed. Appellant raises the following issue on appeal: ____________________________________________ 2 This Court subsequently consolidated the appeals sua sponte. -5- J-S48018-20 Where a PCRA petition raises substantial issues of material fact should the court hold an evidentiary hearing to determine whether relief should be given? (Appellant’s Brief at 11). Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687 , 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754 , 932 A.2d 74 (2007). We do not give the same deference, however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing. We stress that an evidentiary hearing is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness. Commonwealth v. Roney, 622 Pa. 1 , 17-18, 79 A.3d 595 , 604-05 (2013), cert. denied, 574 U.S. 829 , 135 S.Ct. 56 , 190 L.Ed.2d 56 (2014) (internal citations and quotation marks omitted). Although Appellant includes one issue in his statement of questions presented, he actually raises two distinct arguments. In his first argument, Appellant asserts that trial counsel was ineffective for failing to call an -6- J-S48018-20 eyewitness, Denya Martin. Appellant posits that Martin would have testified that she witnessed the Ruby Street Shooting, and she saw that Appellant did not have a firearm. Appellant further asserts that Martin was available and willing to testify on his behalf at trial. Based upon the foregoing, Appellant maintains trial counsel’s decision not to call Martin was unreasonable. Appellant also avers that the PCRA court erred in denying relief on this claim, because it speculated about whether trial counsel had a rational basis for not calling Martin. Appellant concludes some relief is warranted. We agree. Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109 , 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299 , 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra. “The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit….” Commonwealth v. Pierce, 537 Pa. 514 , 524, 645 A.2d 189 , 194 (1994). “Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim.” -7- J-S48018-20 Commonwealth v. Poplawski, 852 A.2d 323 , 327 (Pa.Super. 2004). Once this threshold is met we apply the ‘reasonable basis’ test to determine whether counsel’s chosen course was designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. Pierce, supra at 524 , 645 A.2d at 194-95 (internal citations omitted). “[T]he PCRA court does not question whether there were other more logical courses of action which counsel could have pursued; rather, [the court] must examine whether counsel’s decisions had any reasonable basis.” Commonwealth v. Mason, 634 Pa. 359 , 388, 130 A.3d 601 , 618 (2015) (citation and quotation marks omitted). “Where matters of strategy and tactics are concerned, [a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Id. (citations and quotation marks omitted). Importantly, “the reasonableness of an attorney’s strategic or tactical decision making is a matter that we usually consider only where evidence has been taken on that point” by the PCRA court. Commonwealth v. DuPont, 860 A.2d 525 , 533 (Pa.Super. 2004). In general, to enable appellate review, PCRA courts must provide a “legally robust discussion, complete with clear findings of fact where required.” Commonwealth v. Montalvo, 631 Pa. 516 , 531, 114 A.3d 401 , 410 (Pa. 2015). Prejudice is established when [an appellant] demonstrates -8- J-S48018-20 that counsel’s chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] 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. In [Kimball, supra], we held that a criminal [appellant] alleging prejudice must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Commonwealth v. Chambers, 570 Pa. 3 , 21-22, 807 A.2d 872 , 883 (2002) (some internal citations and quotation marks omitted). For claims of ineffectiveness based upon counsel’s failure to call a witness: A defense attorney’s failure to call certain witnesses does not constitute per se ineffectiveness. In establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove the witnesses existed, the witnesses were ready and willing to testify, and the absence of the witnesses’ testimony prejudiced petitioner and denied him a fair trial. Commonwealth v. Cox, 603 Pa. 223 , 267-68, 983 A.2d 666 , 693 (2009) (internal citations omitted). A petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 597 Pa. 402 , 441, 951 A.2d 1110 , 1134 (2008). Further, a PCRA petitioner’s request for an evidentiary hearing must include a certification, signed by the petitioner, as to each intended witness, identifying the witness’s name, address, date of birth, the expected substance of his or her testimony, and any documents material to that testimony. 42 Pa.C.S. § 9545(d)(1). Failure to substantially comply -9- J-S48018-20 with this requirement will render the proposed witness’s testimony inadmissible. Id. Commonwealth v. Lippert, 85 A.3d 1095 , 1097 (Pa.Super. 2014) (quoting Commonwealth v. Robinson, 596 Pa. 580 , 581, 947 A.2d 710 , 711 (2008)). Instantly, Appellant’s amended PCRA petition includes an affidavit by Denya Martin, claiming she was an eyewitness to the Ruby Street Shooting. Martin alleged that Appellant did not possess or use a firearm that day. Further, Martin averred that she informed the police that Appellant did not have a firearm. With respect to the Ruby Street Shooting, Appellant’s petition argued he was present at the scene but he was a mere victim. No one directly identified Appellant as the shooter, nor was there any direct evidence that Appellant possessed or used a firearm. Instead, the Commonwealth proved its case by circumstantial evidence, linking Appellant’s presence at the scene with a casing that matched a firearm that Appellant was seen using several days before. Thus, the main issue at trial was whether Appellant was a victim or a participant in the Ruby Street Shooting. According to Appellant, Martin’s testimony would bolster his claim that he was a victim. The PCRA court evaluated Appellant’s claim and found that trial counsel had a reasonable basis for failing to call Martin as a witness, because the proposed testimony in her affidavit was inconsistent with her July 30, 2008 police statement. In its current state, however, the record does not support such a finding. We emphasize that Martin’s July 30, 2008 statement to police - 10 - J-S48018-20 provided the following: I got off work at [2:30] and went home. I went to get my daughter at 55th and Chestnut around 6:00 pm. I went over to Ruby street to see my Grandmother who lives at unit [S] Ruby Street. My stepsister Deleah lives right there also at 25 S. Ruby Street. I was at Ruby and Ludlow when I saw a group of guys walking toward me. There was another group coming from behind me. I had a feeling they were gonna fight. I had [my] daughter with me and there were other kids outside playing. I went to stop the fight that was gonna happen. They were arguing and talking about getting guns. There was a fat guy there arguing with a taller guy with braids. [A] guy I know as “Hatty” walked off like he was going to get a gun. He walked towards Chestnut Street. I went to go into the house cause I knew there would be a shooting. I heard gunshots and ran inside. I looked out and saw the fat [guy3] on the ground. He had a silver gun in his hand. I went back to my grandmother’s house and the police arrived and came and got me. (Commonwealth’s Motion to Dismiss, filed 5/18/17, at Appendix A) (emphasis added). After providing the above narrative, the police asked Martin the following series of questions: Q. You were also shown a single photo. Do you recognize it? A. Yes, that’s “Hatty” (Indicating [Appellant]). Q. Did you see him with a gun? A. No. (Id.) (emphasis added). Although the PCRA court found that Martin’s subsequent affidavit ____________________________________________ 3 The “fat guy” identified in this statement references Anthony Mitchell. - 11 - J-S48018-20 contradicted her statement to the police, the affidavit specifically provided: I was an eyewitness to the shooting which happened on 7- 30-2008 at Ruby Street between [Chestnut] and Ludlow in Philadelphia. I gave a statement to the police that day on 7-30-2008. After the shooting that I witnessed with my own eyes. I know for a fact that Haddee a/k/a [Appellant] who was a shooting victim that day. Was not a person shooting a gun. Nor, did I see him with a gun. As I told the police I saw Haddee a/k/a [Appellant] standing at the corner of Chestnut in front of the bar. When shots were fired. I saw him turn around to run when he was shot in his back. There were two separate crowds on both corners of Chestnut and Ruby. And another crowd of individuals at [Ruby] and Ludlow. I’ve known Haddee a/k/a [Appellant] several years before this incident. And I specifically told the police that Haddee never had a gun in his hand at the time of the shooting on the day it happened. I heard Haddee a/k/a [Appellant] was convicted for the shooting. Being that I was “eyewitness” who made a statement the day of the shooting to the police about what I witnessed. I was available and willing to testify on Haddee a/k/a [Appellant’s] behalf. I was never contacted by anyone after giving my statement. I am available and willing to testify for [Appellant] to assist him to be exonerated of a crime that he never committed. I witnessed the shooting with my own eyes and bullets flew in my directions. … The shooter looks nothing like Haddee a/k/a [Appellant]. It is imperative that his lawyer contact me in a timely manner to appear at a hearing in court. (Amended PCRA petition, filed 12/3/16, at Exhibit “B”). The PCRA court found that Martin’s statement to the police that Appellant “walked off like he was going to get a gun,” contradicted her statement in the affidavit claiming Appellant did not have a gun. According to the PCRA court, Martin’s police statement established that Appellant was - 12 - J-S48018-20 not merely an innocent bystander, but rather he was “someone she thought was going to be a participant in a street fight with guns.” (PCRA Court Opinion, filed 8/30/19, at 2). However, Martin’s police statement never indicated that she saw Appellant use or possess a firearm. In fact, when the police officer specifically asked Martin if she saw Appellant with a gun, Martin replied “No.” (See Martin’s Police Statement, 7/30/08, at R. 175). Nothing in Martin’s police statement concerning whether Appellant used or possessed a firearm actually contradicts the content of her affidavit. Therefore, contrary to the PCRA court’s conclusion, the two statements are consistent. Because the PCRA court did not hold an evidentiary hearing, the best resolution of this issue is to remand for a hearing on trial counsel’s decision not to call Martin as a witness. See Montalvo, supra; DuPont, supra. Following the hearing, the PCRA court can make the credibility determinations and factual findings necessary for a proper evaluation of trial counsel’s effectiveness. In his second argument, Appellant argues that trial counsel was ineffective for failing to have the clothing that Appellant wore during the Ruby Street Shooting tested for gunshot residue. Appellant claims that because his defense was that he was not the shooter, the absence of gunshot residue “could have been a major factor in bringing about a different verdict….” (Appellant’s Brief at 22). Appellant concludes the PCRA court erred in finding that he failed to explain how this evidence could have altered the outcome of - 13 - J-S48018-20 trial. We disagree. Boilerplate allegations, without more, cannot provide the basis for PCRA relief. See Commonwealth v. Spotz, 587 Pa. 1 , 896 A.2d 1191 , 1250 (2006) (finding ineffectiveness claim insufficient when appellant “failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 264 , 273 n. 4, 795 A.2d 935 , 940 n. 4 (2001) (“[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief”). In making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective. See Commonwealth v. Durst, 522 Pa. 2 , 5, 559 A.2d 504 , 506 (1989). Ineffectiveness of counsel claims may not be raised in a vacuum. Commonwealth v. Morris, 546 Pa. 296 , 312, 684 A.2d 1037 , 1045 (1996). Instantly, in support of his argument, Appellant merely cites to a published report by Dr. Boris deKorczak, dated November 3, 1999. Dr. deKorczak’s report is not specific to the facts and issues in this case. Instead, it appears that Appellant is attempting to offer a generic expert report in support of his claim. Thus, Appellant failed to comply with the PCRA’s requirement that he include a signed certification regarding an expert witness who would have favorably testified for him on this issue. See Lippert, supra. - 14 - J-S48018-20 Additionally, the PCRA court found that this claim was weakened by the trial evidence establishing that Appellant was wearing only a t-shirt and boxers at the time of his arrest. Specifically, Dessus testified that Appellant was wearing shorts and a t-shirt, and not just his underwear when he left her home. However, after the shooting, Appellant was found wearing only a t- shirt and boxers—he was not wearing his shorts. Based upon this evidence, the PCRA court found that a reasonable inference could be drawn that Appellant removed his clothing after the shooting occurred. The PCRA court determined that Appellant failed to establish how the absence of gunshot residue would have changed the outcome of his trial. As the record supports the PCRA court’s determination, we conclude that the court made no legal error in this regard. See Boyd, supra. Therefore, Appellant is not entitled to relief on his second argument. Based upon the foregoing, we affirm the order dismissing Appellant’s PCRA petition in part, vacate in part, and remand for an evidentiary hearing limited to the issue of trial counsel’s decision not to call Martin as a witness. Order affirmed in part, reversed in part, and case remanded. Jurisdiction relinquished. - 15 - J-S48018-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 - 16 -
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J-A27032-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN LEE STILLMAN : : Appellant : No. 3354 EDA 2019 Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002267-2018 BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.* JUDGMENT ORDER BY COLINS, J.: FILED DECEMBER 1, 2020 Appellant, Kevin Lee Stillman, appeals from the aggregate judgment of sentence of nine to eighteen years of confinement, which was imposed after his convictions at a bench trial for two counts of illegal sale or transfer of firearms, four counts of recklessly endangering another person, two counts of terroristic threats with intent to terrorize another, two counts of simple assault, two counts of aggravated assault, and one count of manufacture, delivery, or possession with intent to manufacture or to deliver a controlled substance by a person not registered.1 We affirm on the basis of the trial court opinion. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 118 Pa.C.S. §§ 6111(g)(1), 2705, 2706(a)(1), 2701(a)(3), and 2702(a)(6) and 35 P.S. § 780-113(a)(30), respectively. J-A27032-20 In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. See Trial Court Opinion, dated May 13, 2020, at 1-7. Therefore, we have no reason to restate them.2 Appellant presents the following issue for our review: Whether the trial court erred in finding there was sufficient evidence to convict Appellant of two counts of Unlawful Sale or Transfer of Firearms1 where evidence adduced at trial supported that there was only a single transfer. 1 18 Pa.C.S. § 6111(g)(1) Appellant’s Brief at 4.3 This Court’s standard for reviewing sufficiency of the evidence claims is as follows: We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Commonwealth v. Izurieta, 171 A.3d 803 , 806 (Pa. Super. 2017) (citations omitted). ____________________________________________ 2 On November 22, 2019, Appellant filed this timely direct appeal. Appellant filed his statement of errors complained of on appeal on December 9, 2019. The trial court entered its opinion on May 13, 2020. 3 Appellant had raised an additional claim before the trial court that, assuming that there were two transfers and two separate criminal acts, these convictions should merge for sentencing. Appellant has dropped this argument on appeal. Appellant’s Brief at 13 n.4. -2- J-A27032-20 As Appellant’s challenge also requires interpretation of the statutory language of 18 Pa.C.S. § 611(g)(1), we further note: In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law. In making this determination, we are guided by the Statutory Construction Act, which dictates: . . . (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions. (b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921. As a general rule, the best indication of legislative intent is the plain language of a statute. In re Steele, 177 A.3d 328 , 333 (Pa. Super. 2017) (internal quotation marks and some citations omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas C. Branca, we conclude Appellant’s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that question. See Trial Court Opinion, dated May 13, 2020, at 8-14 (finding: as a matter of Pennsylvania law, the sale of two firearms even though in a single transaction constitutes a first and second offense under 18 Pa. C.S. § 6111(g)(1); the language of Section 6111(g)(1) is unambiguous, as its use of the article “a” before “a firearm” plainly means “a single firearm”; case law -3- J-A27032-20 has interpreted similar phrasing of “a firearm” in another section of the Pennsylvania Uniform Firearms Act to refer to a single firearm; thus, Appellant’s two convictions for illegal sale or transfer of firearms constitute a first and second offense for grading purposes; accordingly, Appellant’s first conviction (Count 1) was properly graded as a misdemeanor of the second degree, while his second conviction (Count 2) was appropriately graded as a felony of the second degree). Accordingly, we affirm on the basis of the trial court’s opinion. The parties are instructed to attach the opinion of the trial court in any filings referencing this Court’s decision. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 -4-
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J-S37006-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HERNANDO C. ROSA : No. 2568 EDA 2019 Appeal from the Order Entered July 26, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001458-2019 BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020 The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County granting the pretrial suppression motion filed by Appellee, Hernando C. Rosa. After careful review, we reverse and remand for further proceedings. The trial court summarized the factual and procedural history of this case as follows: On January 24, 2019[,] around 9:00 p.m., Officer Jeremy Olesik (“Olesik”) and his partner were patrolling the area of 6100 Delancy [Street] in Philadelphia. Olesik described that particular area as residential and generally “pretty quiet.” On that date, Olesik was assigned to a “victor unit,” which “basically, addresses gun violence, robberies, burglaries, priority calls, stuff like that.” Olesik also explained that part of his responsibility in that unit is to be “proactive,” stop people, and initiate arrests. Olesik testified that on January 24, 2019, he was driving his marked patrol vehicle westbound on Delancy [Street] (a one-way street) when he observed a grey 2009 Chevy Malibu with the J-S37006-20 license plate “KDK-8933” pull onto the sidewalk. The officer explained that the vehicle pulled onto the north side of Delancy [Street], where vehicles are not permitted to park. He further stated that the driver paused momentarily before pulling back onto Delancy [Street] and fail[ed] to activate her turn signal. On cross-examination, Olesik stated that he did not notice the vehicle until he was driving on the 6100 block of Delancy [Street]. He also explained that the officers followed the vehicle for about one block before activating their lights and sirens and stopping the vehicle for investigation. Conversely, the operator of the vehicle, Dalina Hayes (“Hayes”), testified that she did activate her turn signal before driving off the sidewalk and that the officers were following her for about three blocks. Hayes believed that the officers were following her because “they made every turn she made” and did not pass her when she stopped on Delancy [Street]—despite the fact that the officers had room to do so. Specifically, Hayes testified: So that evening, I was traveling westbound on Pine Street. I approached the stop sign. I made a complete stop. As I continued to cross over 60th Street, the police officers were coming from west, I believe. They made a right behind me. I got to the next stop, which was 61st and Pine. I made a right turn. They made a right turn. I made a left onto Delancy. They made a left onto Delancy. Once I got onto Delancy, I realized I was being followed. I, actually, got to my destination, so I pulled over to the left side of the curb where you’re not supposed to park. I pulled behind another car who was parked and had their brake lights on. I pulled up. As soon as I pulled up, I realized the cop stopped in the middle of the street and did not pass me. So I put my turning signal on to get back . . . . into traffic to go find a parking space. As I got to the corner of 62nd and Delancy, I put my signal on to make a left, also. He then put his lights on and pulled me over. -2- J-S37006-20 Hayes also explained that she was very “tense” and assumed the officers were going to pull her over because she had tinted windows. Upon stopping the vehicle, Olesik observed [Appellee], who was seated in the front passenger seat, “make a movement towards the front of the vehicle. . . . He leaned toward the glove box area. I couldn’t see what he was doing with his hands, but his body was moving towards that area. That’s all I could see from my angle.” Olesik further elaborated, explaining that he saw [Appellee] “lean forward[] towards the front of the vehicle” but he could not see what [Appellee] was doing with his hands, legs, or head. The officers exited their patrol car. Olesik approached the driver’s side of the vehicle and his partner approached [Appellee’s] side of the vehicle. Olesik testified that he smelled the “fresh odor of marijuana inside the vehicle.” However, Hayes testified that no one smoked marijuana in her vehicle and that her vehicle did not smell like marijuana. Hayes cooperatively produced her license, registration, and proof of insurance for Olesik. The officers then asked [Appellee] for “his information.” [Appellee] told the officers that he did not have Pennsylvania ID and stated that his name was Christopher Hayes and that his date of birth was June 5, 1993. The officers searched the name “Christopher Hayes” but the search “didn’t come back to anybody.” At that point, the officers removed [Appellee] from the vehicle, patted him down, and placed him in the rear of their police car “to determine his identity.” [Appellee] also provided the officers with the names “Cortez Rosa,” with the birthdate 6/5/93 and “Hernando Rosa,” also with the birthdate 6/5/93. After searching both names the officers discovered that there was an outstanding arrest warrant for [Appellee], for gun violations in a different county. [Appellee] was then handcuffed and arrested. After arresting [Appellee], the officers went back to Hayes’ vehicle and searched the glove box, where they recovered a black firearm, [Appellee’s] wallet, and [Appellee’s] identification. The officers also searched the vehicle’s center console, where they recovered a small glass tube with a red cap, which contained a small amount of marijuana. Olesik testified that the glass tube was sealed with a lid and only contained about $10 worth of marijuana. No other paraphernalia was recovered from the vehicle. The officers did not issue a traffic citation for Hayes’ -3- J-S37006-20 temporary parking on the sidewalk, her alleged failure to signal, or for the marijuana that was recovered from the vehicle. Based on these facts, [Appellee] was arrested and charged with carrying a firearm without a license, carrying firearms in public in Philadelphia, furnishing false identification to a law enforcement officer, and possessing a prohibited firearm.1 On April 26, 2019, [Appellee] filed a motion to suppress. On July 26, 2019, following a hearing, this court granted that motion, stating: THE COURT: Now, that’s where I am right there just about the initial stop and then everything else. . . . I think [Hayes] signaled. I think she did the signal. That’s why I said, for me, it’s that initial stop. I’m not saying that all the other things are not true, but I have to suppress as fruit of the poisonous tree. Because I think the initial stop - that’s the problem right there. And I do believe her that she did signal, and it was just not enough. * * * I reserve the right to supplement the record with additional findings of facts and conclusions of law. (N.T. 7/26/19, at 72, 76). 1 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. § 6108, 18 Pa.C.S.A. § 4914, and 18 Pa.C.S.A. § 6105(a)(1), respectively. Trial Court Opinion, 2/26/20 at 1-4 (some internal cites to the record omitted). The Commonwealth filed an interlocutory notice of appeal on August 26, 2019.1 The Commonwealth and the trial court complied with Pa.R.A.P. 1925. ____________________________________________ 1 The Commonwealth may appeal an interlocutory order suppressing evidence when it provides a certification with its notice of appeal that the order terminates or substantially handicaps the prosecution. Commonwealth v. -4- J-S37006-20 On appeal, the Commonwealth presents the following issue for our review: “Did the lower court err in concluding that the police were not justified in stopping the car in which [Appellee] was riding as a passenger and in which they found a firearm?” Commonwealth’s Brief at 4. The Commonwealth notes that the trial court “has since recognized that the police acted lawfully in stopping the car and that it erred in ruling otherwise. Because the police, in fact, were justified in stopping the car, the lower court’s suppression order should be reversed.” Id. at 13. When considering a Commonwealth appeal from an order granting a defendant’s motion to suppress, the following applies: When the Commonwealth appeals from a suppression order, this Court follows a clearly defined scope and standard of review. We consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the [. . . ] record, remains uncontradicted. This Court must first determine whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. In appeals where there is no meaningful dispute of fact, as in the case sub judice, our duty is to determine whether the suppression court properly applied the law to the facts of the case. Commonwealth v. Arthur, 62 A.3d 424 , 427 (Pa. Super. 2013) (internal citations and quotation marks omitted). “It is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the ____________________________________________ Petty, 157 A.3d 953 , 954 n.1 (Pa. Super. 2017); Pa.R.A.P. 311(d). The Commonwealth included the required certification in its notice of appeal. -5- J-S37006-20 weight to be given their testimony.” Commonwealth v. Gallagher, 896 A.2d 583 , 585 (Pa. Super. 2006). Moreover, our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing. In re L.J., 79 A.3d 1073 , 1087 (Pa. 2013). In the case sub judice, Appellee filed a motion to suppress the gun found in the vehicle. In his motion to suppress, Appellee made the following assertions: 2. The arrest of [Appellee] was unlawful in that it was without probable cause and that it violated his Pennsylvania and United States Constitutional rights. * * * 3. On or about the time of [Appellee’s] illegal arrest, a search and seizure was conducted by members of the Philadelphia County Police Departments or persons working in conjunction with them. Said search and seizure and the fruits thereof should be suppressed for one or more of the following reasons: (a) Said search and seizure was the fruit of [Appellee’s] illegal arrest; (b) Said search and seizure was conducted without a search warrant; (c) Said search and seizure was conducted without the consent of [Appellee]; and, (d) Said search and seizure was conducted without probable cause. Motion to Suppress, 4/26/19, at 1-2. At the suppression hearing, Appellee’s counsel made the following argument: -6- J-S37006-20 The basis of our argument is that it was—or the Commonwealth, through its agents, the police officers, in this case, lacked any and all reasonable suspicion to search—to stop, search and remove my client from the vehicle and search, then, the vehicle. In the vehicle, was found—a firearm was found, and I’m asking Your Honor to suppress that firearm as a result of the illegal stop and search. In addition, Your Honor, it’s our argument that while my client was in the custody of the police, he—the police officers elicited a statement from him, so I’ll ask for that to be suppressed as well. N.T., 7/26/19, at 3. At the end of the hearing, the trial court made the following ruling: I think she signaled. I think she did the signal. That’s why I said, for me, it’s that initial stop. I’m not saying that all the other things are not true, but I have to suppress as fruit of the poisonous tree. Because I think the initial stop – that’s the problem right there. And I do believe that she did signal, and it was just not enough. * * * And I agree that everything else happened but the problem is the initial stop. But I do think that that was his gun, everything is illegal – all of that, but I do have to suppress it because of the that [sic] initial stop. N.T., 7/26/19, at 77. In its subsequent Pa.R.A.P. 1925(a) opinion, however, the trial court explained: In the case at bar, despite its initial ruling, this court concedes that [Officer] Olesik lawfully stopped Hayes’ vehicle;2 however, this court nonetheless finds that it properly granted [Appellee’s] motion to suppress. However, the record contains no express findings of facts or conclusions of law relating to this court’s additional reasons for granting [Appellee’s] motion to suppress. -7- J-S37006-20 Thus, this court respectfully requests that the Superior Court remand this matter for an issuance of further findings of facts and conclusions of law. 2 Pennsylvania law unequivocally mandates that officers have probable cause to stop a motor vehicle if the officer observes a traffic code violation, even if it is a minor offense. Commonwealth v. Harris, 176 A.3d 1009 , 1019 (Pa. Super. 2017). Further, 75 Pa.C.S.A. § 3703 states “no person shall drive any vehicle except a human-powered vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.” Here, both Olesik and Hayes testified that Hayes briefly drove onto the sidewalk. Even though Hayes’ actions constitute a minor traffic violation, Oliesik had probable cause to stop the vehicle on that basis. Trial Court Opinion, 2/26/20, at 4-5. We agree with the conclusion reached by the trial court as outlined in its Pa.R.A.P. 1925(a) opinion. The evidence presented at the suppression hearing established that Hayes had driven onto the sidewalk, in violation of 75 Pa.C.S. § 3703.2 Thus, Hayes committed a traffic code violation, and Olesik had probable cause to stop the vehicle on this basis. See Harris, 176 A.3d at 1019 (“Pennsylvania law makes clear that a police officer has probable cause to stop a motor vehicle if the officer observes a traffic code violation, ____________________________________________ 2 Section 3703(a) of the Motor Vehicle Code provides: “Except as provided in subsection (b) [pertaining to mobility-related devices for persons with disabilities] or (c) [related to electric personal assistive mobility device (EPAMD)], no person shall drive any vehicle except a human-powered vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway.” 75 Pa.C.S. § 3703(a). -8- J-S37006-20 even if it is a minor offense.”). Therefore, the initial stop was lawful. The trial court erred at the time of its ruling at the suppression hearing in concluding that the gun should be suppressed because it was obtained as a result of an unlawful stop. Accordingly, we reverse the trial court’s ruling granting Appellee’s motion to suppress the gun on this basis. 3 Order reversed. Matter remanded for proceedings consistent with this Memorandum. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 ____________________________________________ 3 We note that the trial court requests that the case be remanded to it “for an issuance of further findings of facts and conclusions of law” in support of its assertion that despite its initial conclusion that the vehicle was not lawfully stopped, it nonetheless finds that “it properly granted [Appellee’s] motion to suppress.” Trial Court Opinion, 2/26/20 at 5-6. Our review is limited to the specific issue raised on appeal by the Commonwealth as outlined above. -9-
4,669,278
2021-03-18 20:00:38.217034+00
null
http://media.ca11.uscourts.gov/opinions/unpub/files/202012553.pdf
USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-12553 Non-Argument Calendar ________________________ D.C. Docket No. 4:19-cv-00163-SCJ WILLIAM BENJAMIN DANNER, JR., MARY DANNER, Plaintiffs-Appellants, versus TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (March 18, 2021) Before JORDAN, GRANT, and BRASHER, Circuit Judges. PER CURIAM: USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 2 of 6 In this insurance coverage dispute, the parties ask us to define and apply the term “accident” as used in an automobile insurance policy. William Danner was involved in a multi-car wreck in which he was hit twice—once by a truck and once by an SUV. Afterward, he and his wife filed a declaratory judgment action against their insurer, Travelers Property Casualty Insurance Company, asserting that their policy limits were applicable to each collision separately because each collision was a separate “accident” under the policy. The district court granted summary judgment for Travelers, holding that the collisions were one single “accident” under the policy. For the reasons below, we affirm. I. We presume familiarity with the factual and procedural history of this case. We describe it below only to the extent necessary to address the issues raised in this appeal. William B. Danner Jr. was driving home one afternoon when a white pickup truck crossed into his lane and hit him head-on. Danner had no time to react in a way that would have avoided the truck. Then, shortly after the initial crash, a blue sport utility vehicle struck Danner’s car from behind. Importantly, Danner had not yet regained control of his car when he was hit by the blue SUV. He was not even aware that there had been a second collision at the time he left the scene. Later, he testified 2 USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 3 of 6 that he could not recall being hit by the blue SUV. Nor could he recall how much time passed between colliding with the white pickup and being hit by the blue SUV. At the time of the wreck, Danner was insured by an automobile insurance policy issued by Travelers. The policy included coverage for injuries caused by uninsured motorists with limits of $250,000 per “any one person in any one auto accident.” The policy defined “uninsured” motor vehicles to include those that are insured at the time of the accident by policies that cap liability at a lower amount than the Travelers policy. The policies on the pickup and SUV that collided with Danner each covered less than $250,000. The Danners filed an action in state court seeking, among other things, a declaratory judgment regarding the amount of uninsured motorist coverage available under their Travelers policy. They alleged that under the policy each collision was a distinct “accident,” meaning that the $250,000 limitation on uninsured motorist liability applied separately to each collision for a total of $500,000. Travelers removed to federal court. Shortly after removal, the Danners filed a motion for summary judgment. The district court denied that motion as premature and without prejudice. After several months of discovery, the Danners filed a renewed motion for summary judgment. Shortly thereafter, Travelers filed its own motion for summary judgment and responded to the Danners’ motion. Days later, the Danners filed a 3 USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 4 of 6 “Supplemental Argument” in support of their renewed motion but did not respond to Travelers’ motion or statement of material facts. After considering the filings, the district court denied the Danners’ renewed motion, granted Travelers’ motion, and declared that the policy “provide[d] $250,000 in uninsured motorist coverage . . . for Plaintiff’s claims arising out of the May 31, 2018 accident[.]” The Danners appealed. II. The Danners argue that, under the Travelers policy, there was not one “accident,” but two. Accordingly, they argue the uninsured motorist coverage limitations should apply twice—once to each collision, rather than once to the entire sequence of collisions—effectively doubling the applicable limit on liability. Moreover, they argue that the district court erred by granting summary judgment before a jury could apportion fault for the accident. Upon consideration, we disagree. We review the district court’s grant of summary judgment de novo, applying the same legal standards as the district court. United States v. Mortg. Invs. Corp., 985 F.3d 825 , 830 (11th Cir. 2021). Summary judgment is appropriate if the record 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). When reviewing the record, all reasonable inferences are to be drawn in favor of the non-moving party. Mortg. Invs. Corp., 985 F.3d at 830 (citing Ryder Int’l Corp. v. First Am. Nat’l Bank, 943 F.2d 1521 , 1523 (11th Cir. 1991)). 4 USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 5 of 6 The parties agree that Georgia law controls the interpretation of the insurance policy. Courts applying Georgia law rely on the “‘cause’ theory” to “aid in the construction of the word ‘accident[.]’” State Auto Prop. & Cas. Co. v. Matty, 690 S.E.2d 614 , 617 (2010). Under this theory “the number of accidents is determined by the number of causes of the injuries, with the court asking if ‘there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage.’” Id. (quoting Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 , 61 (3rd Cir. 1982) (citations omitted)). Where an automobile accident involves a sequence of collisions, “courts look to whether, after the cause of the initial collision, the driver regained control of the vehicle before a subsequent collision, so that it can be said there was a second intervening cause and therefore a second accident.” Matty, 690 S.E.2d at 617 . Here, the district court correctly determined that there was one “accident.” Danner was injured when the white pickup crossed the center line and hit him head- on. Because of that collision Danner’s car was stopped in the road, at which point he was rear-ended by the blue SUV. Danner himself testified that at no point between the first and second collision did he regain control of his car. As he put it: “I had no control over it at all.” Based on these undisputed facts, the district court determined that there was one “proximate, uninterrupted, and continuing cause” of Danner’s injuries, and thus one “accident” under the policy. And as the district court noted, 5 USCA11 Case: 20-12553 Date Filed: 03/18/2021 Page: 6 of 6 there is no evidence in the record that the second collision caused any separate and distinct injury to Danner. The Danners’ argument that the district court invaded the province of the jury is similarly without merit. The district court was not required to wait for a jury to apportion fault for the wreck before applying the “cause theory” to determine the number of accidents under the policy. Juries resolve disputes of material fact. In this declaratory judgment action, there are none. The undisputed facts support the district court’s determination that the two impacts Danner suffered were part of the same “accident.” III. For these reasons, we conclude that the district court did not err when it granted Travelers’ motion for summary judgment. Accordingly, the district court is AFFIRMED. 6
4,539,197
2020-06-05 07:03:47.587573+00
null
https://efast.gaappeals.us/download?filingId=f4379dc5-0af8-4df0-a816-f9edde9f965e
Court of Appeals of the State of Georgia ATLANTA,____________________ May 26, 2020 The Court of Appeals hereby passes the following order: A20A1528. DEVIN LEONARD GRANT v. THE STATE. After fleeing from a traffic stop, Devin Leonard Grant was involved in a high speed police chase during which he fired multiple shots at officers. As a result, a jury found him guilty of fifteen counts of aggravated assault on a police officer, aggravated assault, and possession of a firearm during the commission of aggravated assault on a police officer. Grant received consecutive twenty-year sentences for the 16 aggravated assault convictions and a consecutive five-year sentence on the possession of a firearm charge.1 Years later, Grant filed a motion to vacate a void sentence, arguing that his sentences should have merged because all convictions arose from a single incident. “Motions to vacate a void sentence generally are limited to claims that – even assuming the existence and validity of the conviction for which the sentence was imposed – the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.” von Thomas v. State, 293 Ga. 569 , 572 (2) (748 SE2d 446) (2013). A direct appeal may lie from an order denying a motion to vacate or correct a void sentence only if the defendant raises a colorable claim that the sentence is, in fact, void. See Harper v. State, 286 Ga. 216 , 217 (1), n. 1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118 , 119 (676 SE2d 465) (2009). Grant’s merger claim is a challenge to his convictions, and not his sentences, and thus does not state a valid void-sentence 1 Grant’s convictions were affirmed in an unpublished opinion. See Grant v. State, (Case No. A04A0728, decided May 19, 2004). claim. See Williams v. State, 287 Ga. 192 , 193-194 (695 SE2d 244) (2010). To the extent that Grant’s motion could be construed as seeking to vacate or modify his convictions, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” Harper, 286 Ga. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532 , 532 (690 SE2d 150) (2010). Accordingly, we lack jurisdiction to consider this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/26/2020 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.
4,489,081
2020-01-17 22:01:39.371672+00
Smith
null
*1193OPINION. Smith: Although the petitioner has appealed to this Board from deficiencies in income tax for both 1922 and 1923, it has assigned no errors with respect to the determination of a deficiency in income tax for 1922. In Belvidere Lumber Co., 6 B. T. A. 84, we held that a corporation filing a separate return for 1922 may not subsequently file a consolidated return for that year. The deficiency determined for 1922 is therefore sustained. The petitioner and the Syracuse Baseball Club filed separate income-tax returns for 1922, although affiliated within the meaning of section 240(c) of the Revenue Act of 1921 for a portion of the year. The two corporations filed a consolidated return for 1923, without in anywise requesting the Commissioner for permission to change the" basis for the filing of returns. Petitioner contends that inasmuch as it was not affiliated with the Syracuse Baseball Club for the entire calendar year 1922, the fact that the two corpofations filed separate returns for that year is no bar to their filing a consolidated return for 1923, even though no consent for the change of a basis of filing returns had been secured from the respondent. The respondent contends that since no permission for the filing of a consolidated return for 1923 was obtained, the filing of separate returns for 1922 is a bar to the filing of a consolidated return for 1923. Section 240(a) of the Revenue Act of 1921 provides as follows: That corporations which are affiliated within the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns or, under the regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner. Section 200(1) of the Revenue Act of 1921 defines the term “ taxable year ” as follows: The term “ taxable year ” means the calendar year, or the fiscal year ending during such calendar year, upon the basis of which the net income is computed *1194under section 212 or section 232. The term “ fiscal year ” means an accounting period of twelve months ending on the last day of any month other than December. It will be noted from the foregoing that corporations which are affiliated may “make separate returns or, under regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, * * Pursuant to such authority the Commissioner, with the approval of the Secretary, promulgated on February 15, 1922, ^Regulations 62, which provide in article 634 as follows: Change in ownership during taxable pear. — (a) Where corporations are affiliated at the beginning of a taxable year but due to a change in stock ownership or control during the year the affiliated status is terminated, or (&) where corporations are not affiliated at the beginning of the taxable year but through change of stock ownership or control during the year become affiliated, a full disclosure of the circumstances of such changes of stock ownership shall be submitted to the Commissioner. Ordinarily in such cases the parent or principal company, under the conditions described in (a) above, should exclude from its return the income and invested capital of such subsidiary or subordinate company from the date of the change of stock ownership, and under the conditions described in (5) above, should include in its return the income and invested capital of such subsidiary or subordinate company from the date of the change of stock ownership. In either case the subsidiary or subordinate corporation whose status is changed during the taxable year should make a separate return for that part of the taxable year during which it was outside of the affiliated group. Where, in accordance with the procedure set forth above, a return is made by a corporation for a period less than a year, the tax shall be computed in accordance with sections 22G and 239 and the articles thereunder. In any case in which the change of consolidated status is for a period so short as to be negligible, a consolidated return or separate returns for the entire period, as the case may be, may be filed; in such cases, however, there should accompany the return a complete statement setting forth the changes in the affiliated status occurring during the taxable year. So far as the year 1923 is concerned, this proceeding is distinguishable from Belvidere Lumber Co., supra. In that case the taxpayer had filed a separate return for 1922 and thereafter requested permission to file a consolidated return with another corporation with which it was affiliated for a portion of the year 1922. The permission was denied upon the ground that the separate return which had already been filed was a correct and proper return under the statute and that the statute did not provide for the filing of an amended return. The only advantage to be gained by corporations which are affiliated in the filing of separate returns is that they may then obtain the benefit of a specific credit for each corporation as provided in section 236(b). If they were affiliated for a taxable year beginning on or after January 1,1922, and filed separate returns for that taxable year, *1195they are required by the statute thereafter to file separate returns unless permission to change the basis shall be granted by the Commissioner. The petitioner and the Syracuse Baseball Club were not affiliated for the “ taxable year ” 1922. Counsel for the petitioner in his brief suggests that no consolidated return was filed for 1922 because the corporations were not affiliated for the “ taxable year,” namely, the calendar year 1922, and that the corporations under their interpretation of the law could not file a consolidated return for that year. There is no question in this proceeding but that the corporations were affiliated from July 3, 1922. Furthermore, there is no question but that if the petitioner had requested the Commissioner to permit the filing of a consolidated return for 1923, such permission would have been granted. The petitioner and the Syracuse Baseball Club not having been affiliated for the entire calendar year 1922, the petitioner’s “taxable year,” the filing of separate returns for 1922 was not an election on their part to thereafter file on a separate basis. The calendar year 1923 was the first “ taxable year ” for which an election of basis could be made. The corporations elected to file a consolidated return for T923. The tax liability for 1923 should be computed upon the basis of such consolidated return. Reviewed by the Board. J'udgnnent mil he entered wider Rule 50. Trammell and ArtjNdell dissent.
4,638,491
2020-12-01 18:01:45.959546+00
null
https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0004-74-0
In the United States Court of Federal Claims No. 19-04C (E-Filed: December 1, 2020) ) JUSTIN TAROVISKY, et al., ) ) Motion to Dismiss; RCFC 12(b)(6); Plaintiffs, ) Fair Labor Standards Act (FLSA), 29 ) U.S.C. §§ 201-19; Anti-Deficiency Act v. ) (ADA), 31 U.S.C. §§ 1341-42 ; ) Government Employees Fair THE UNITED STATES, ) Treatment Act of 2019 (GEFTA); Pub. ) L. No. 116-1, 133 Stat. 3 (2019). Defendant. ) ) Heidi R. Burakiewicz, Washington, DC, for plaintiff. Robert Depriest, Michael Robinson, and Judith Galat, of counsel. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19 , by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 17 at 2-3 (second amended complaint, hereinafter referred to as the complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief can be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42 , prohibited the government from paying employees. See ECF No. 28. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 17; (2) defendant’s motion to dismiss, ECF No. 28; (3) plaintiffs’ response to defendant’s motion, ECF No. 31; (4) defendant’s reply in support of its motion, ECF No. 35; (5) defendant’s first supplemental brief in support of its motion, ECF No. 37; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 38; (7) defendant’s second supplemental brief in support of its motion, ECF No. 46; (8) plaintiffs’ response to defendant’s second supplemental brief, ECF No. 54; (9) defendant’s third supplemental brief in support of its motion, ECF No. 56; and (10) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 57. The motion is now fully briefed and ripe for ruling. 1 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background Beginning at 12:01 a.m. on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 17 at 2, 8. The named plaintiffs in this case were, at the time of the shutdown, employees of one of the following fourteen agencies: (1) the Bureau of Prisons; (2) the Federal Emergency Management Agency; (3) the United States Immigration and Customs Enforcement; (4) Voice of America; (5) the National Park Service; (6) the National Weather Service; (7) the United States Secret Service; (8) the United States Customs and Border Protection; (9) the Federal Bureau of Investigation; (10) the Bureau Alcohol, Tobacco, Firearms, and Explosives; (11) the Transportation Security Administration; (12) the Drug Enforcement Administration; (13) the Food Safety Inspection Service; and (14) the Indian Health Service. See id. at 4-8 . In their complaint, plaintiffs allege that they are “excepted employees,” a term which refers to “‘employees who are funded through annual appropriations who are nonetheless excepted from the furlough because they are performing work that by law, 1 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure to state a claim upon which relief may be granted.” ECF No. 28 at 6. In one of its supplemental briefs, defendant suggests that a recent decision issued by the Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” ECF No. 56 at 2. In the same brief, defendant acknowledges binding precedent from the United States Court of Appeals for the Federal Circuit to the contrary. See id. (citing Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was made for the first time in defendant’s third supplemental brief, and which defendant acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction to continue exercising its authority in this case, it may file a motion properly raising the issue. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 2 may continue to be performed during a lapse in appropriations.’” Id. at 2 (quoting the United States Office of Personnel Management Guidance for Government Furloughs, Section B.1 (Sept. 2015)). Plaintiffs also allege that, in addition to being excepted employees required to work during a shutdown, they were also “classified as non-exempt from the overtime requirements of the [FLSA].” Id. at 2-3 . As a result of being categorized as non-exempt, excepted employees, plaintiffs were required to work during the shutdown, but were not paid minimum or overtime wages on their regularly scheduled paydays in violation of the FLSA. See id. at 2-3 . According to plaintiffs, defendant’s failure to timely pay their minimum and overtime wages was “willful, and in conscious or reckless disregard of the requirements of the FLSA.” Id. at 14, 15 . In support of this allegation, plaintiffs cite this court’s decision in Martin v. United States, 130 Fed. Cl. 578 (2017), and allege that “[u]pon information and belief, [d]efendant conducted no analyses to determine whether its failure to pay [e]xcepted [e]mployees on their regularly scheduled payday complied with the FLSA.” Id. at 11 . Plaintiffs now “seek payment of wages owed, liquidated damages, and all appropriate relief under the FLSA.” Id. at 3 . II. Legal Standards When considering a motion to dismiss brought under RCFC 12(b)(6), the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373 , 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271 , 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252 , 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). III. Analysis A. Relevant Statutes This case fundamentally concerns the intersection of two statutes, the ADA and the FLSA. The ADA states that “an officer or employee” of the federal government “may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341 (a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the 3 protection of property.” 31 U.S.C. § 1342 . In 2019, Congress amended the ADA, adding, in relevant part, the following: [E]ach excepted employee who is required to perform work during a covered lapse in appropriations[2] shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341 (c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of “not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. § 1350 . And federal employees who violate the ADA “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. § 1349 (a). Defendant separately has obligations to its employees pursuant to the FLSA, which governs minimum wage and overtime wage compensation for certain employees. 3 See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 , 707 (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay provisions, the employer is “liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 U.S.C. § 216 (b). The employer may also be liable “in an additional equal amount as liquidated damages,” id., unless “the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. § 260 . 2 The statute defines “covered lapse in appropriations” to mean “any lapse in appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341 (c)(1)(A). 3 The FLSA initially applied only to the private sector when enacted in 1938, but was amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). 4 B. The Court’s Reasoning in Martin Applies In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees—even excepted employees who were required to work. See ECF No. 28 at 12-14. This mandate, in defendant’s view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues: When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] would result in additional compensation as damages to federal employees. Id. at 13 . The court has previously ruled on the intersection of the ADA and the FLSA in the context of a lapse in appropriations. See Martin, 130 Fed. Cl. 578 . In Martin, plaintiffs were “current or former government employees who allege[d] that they were not timely compensated for work performed during the shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the right to liquidated damages with regard to both the government’s failure to timely pay minimum wages and its failure to pay overtime wages. See id. In its motion for summary judgment, the government argued that “it should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly scheduled pay days during the shutdown] because it was barred from making such payments pursuant to the ADA.” See id. at 582 . The government summarized its argument in Martin as follows: The FLSA and the Anti-Deficiency Act appear to impose two conflicting obligations upon Federal agencies: the FLSA mandates that the agencies “shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206 (a) (emphasis added), which has been interpreted by the courts to include a requirement that the minimum wage be paid on the employees’ next regularly scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 707 n.20 [ 65 S. Ct. 895 , 89 L. Ed. 1296 ] (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund for the expenditure . . . .” 31 U.S.C. § 1341 (A)(1)(A) (emphasis added). Thus, when Federal agencies are faced with a lapse in appropriations and 5 cannot pay excepted employees on their next regularly scheduled payday, the question arises of which statutory mandate controls. Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in original). After reviewing applicable precedent and persuasive authority, the court concluded that “the issue is more complex than simply a choice between whether the FLSA or the ADA controls.” Id. at 583 . In the court’s view: the appropriate way to reconcile the [ADA and the FLSA] is not to cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied. Rather, the court would require that defendant demonstrate a good faith belief, based on reasonable grounds, that its actions were appropriate. As such, the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages. Id. at 584 . The court noted that plaintiffs’ claims survived a motion to dismiss because they had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly scheduled payday.” Id. at 584 . On summary judgment, the court concluded that plaintiffs had proven this claim. See id. The court then concluded that the evidence supported an award of liquidated damages because the government failed to satisfy the court that it acted in good faith and on reasonable grounds when it failed to make the payments required under the FLSA. 4 See id. at 585-86 . Both parties acknowledge that the plaintiffs in Martin were “situated similarly to plaintiffs here.” ECF No. 28 at 14 (defendant’s motion to dismiss); see also ECF No. 31 at 15 (plaintiffs noting that “[i]t is undisputed that [p]laintiffs’ claims in this case are nearly identical to those raised in Martin v. United States, Case No. 13-8[34]C” 5). As 4 In Martin, the defendant also argued that it should avoid liability for liquidated damages with regard to overtime wages due to its inability to calculate the correct amounts due. See Martin v. United States, 130 Fed. Cl. 578 , 586-87 (2017). This argument was based on a bulletin from the Department of Labor, and involves an issue that has not been raised in the present case. The absence of this argument, however, has no bearing on the application of the court’s reasoning in Martin with regard to the structure of the proper analysis in this case. 5 Plaintiffs cite to Martin v. United States as case number 13-843C. The court assumes that plaintiffs’ citation contained a typographical error; the correct case number is 13-834C. 6 plaintiffs outline in their response to defendant’s motion, “[a]s in Martin, the [p]laintiffs are federal employees who were designated ‘excepted’ and required to perform work during the government shutdown.” ECF No. 31 at 19. In addition, plaintiffs here, like the plaintiffs in Martin, have alleged that “[u]pon information and belief, [d]efendant conducted no analyses to determine whether its failure to pay [e]xcepted [e]mployees on their regularly scheduled payday complied with the FLSA.” ECF No. 17 at 11. In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they were required to work during the shutdown, or that the plaintiffs were not paid during that time due to the lapse in appropriations. See ECF No. 28. Defendant characterizes the issue now before the court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7 . In arguing its position, defendant reiterates the arguments advanced in Martin, but does not present any meaningful distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States concluded that plaintiffs situated similarly to plaintiffs here could recover liquidated damages under FLSA,” but states that it “respectfully disagree[s] with that holding.” Id. at 14 . Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here. 6 As it did in Martin, “the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.” 7 Martin, 130 Fed. Cl. at 6 Defendant also argues that its obligations under the FLSA are limited by the ADA because “a congressional payment instruction to an agency must be read in light of the [ADA].” ECF No. 28 at 16. In support of this argument, defendant cites to Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166 , 1171 (Fed. Cir. 1995). See id. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171 . The United States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was consistent with statutory requirements.” Id. The case did not address FLSA claims, and found that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the analysis in this case. The United States District Court for the District of Columbia’s combined decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its supplemental filings, see ECF No. 46, is likewise unhelpful. Although it involved facts that arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 7 The parties both claim that the Supreme Court of the United States’ decision in Maine Community Health, 140 S. Ct. 1308 , supports their position in this case. See ECF No. 56, ECF No. 57. Maine Community Health does not address the FLSA, and only includes a limited 7 584. The court will, of course, consider the GEFTA amendment to the ADA as part of its analysis. C. Waiver of Sovereign Immunity Before analyzing the sufficiency of plaintiffs’ allegations, the court must address defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.’” ECF No. 28 at 18 (quoting Lane v. Pena, 518 U.S. 187 , 192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor of the sovereign.’” Id. at 19 (quoting Lane, 518 U.S. at 192 ). Defendant concedes that the FLSA includes a waiver of sovereign immunity, but argues that the claims made by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. United States, 112 Fed. Cl. 396 , 399 (2013) (stating that “there is no question that sovereign immunity has been waived under the FLSA”). Defendant argues that the FLSA “does not require that employees be paid on their regularly scheduled pay date or make damages available when compensation is not received on a pay date.” ECF No. 28 at 19. As a result, defendant contends, the scope of the FLSA’s waiver of sovereign immunity does not extend to the category of claims alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ claims in this case. See id. at 19-21 . According to defendant, the GEFTA confirms its long-standing belief that the government’s payment obligations under the FLSA are abrogated by a lack of appropriations: The [GEFTA] provides that “each excepted employee who is required to perform work during a . . . lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. No. 116-1, 133 Stat. 3 . Congress has thus spoken directly to the question of when compensation should be paid. There can be no basis for inferring that discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the decision does not dictate the outcome here. To the extent that the case informs the present discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that “the [ADA] confirms that Congress can create obligations without contemporaneous funding sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs pursuant to the normal operation of the FLSA even when funding is not available. 8 compensation made in accordance with that explicit directive subjects the United States to liquidated damages. Id. at 20-21. Defendant also asserts that the scope of its waiver of sovereign immunity for FLSA claims does not cover the claims asserted here. See ECF No. 35 at 13-14. It argues, without citation to any authority, that: a cause of action under the FLSA cannot per se accrue against the United States when federal agencies fail to pay employees on their regularly scheduled paydays during a lapse in appropriations because a federal statute expressly provides for when and at what rate federal employees will be paid under those circumstances. Id. at 14. The court disagrees. The claims brought by plaintiffs in this case are straightforward FLSA minimum wage and overtime claims under the FLSA. See ECF No. 31 at 16, 34-37; see also ECF No. 17 at 14-15. Because the FLSA does not specify when such claims arise, courts have interpreted the statute to include a requirement that employers make appropriate wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . Contrary to defendant’s suggestion, the court is unpersuaded that this judicially-imposed timing requirement transforms ordinary FLSA claims into something analytically distinct, and beyond the scope of the statute’s waiver of sovereign immunity. Accordingly, the court finds that defendant has waived sovereign immunity as to plaintiffs’ claims, as it has with all FLSA claims, and the court will review the sufficiency of plaintiffs’ allegations as it would in any other FLSA case. D. Plaintiffs State a Claim for FLSA Violations As noted above, the FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). And although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . 9 In their complaint, plaintiffs allege that during the lapse in appropriations, they and all putative class members: “(a) were classified by [d]efendant as ‘[e]xcepted [e]mployees,” (b) performed FLSA non-exempt work for [d]efendant . . . after 12:01 a.m. on December 22, 2018, 8 and (c) were not paid for such work on their [s]cheduled [p]ayday.” ECF No. 17 at 4. Plaintiffs allege specific facts demonstrating how the allegations apply to each named plaintiff. See id. at 4-8. Defendant does not contest any of these allegations, and in fact, concedes that “plaintiffs [were] employees of agencies affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” ECF No. 28 at 12, 13. Defendant also admits that “[p]laintiffs are federal employees who performed excepted work during the most recent lapse in appropriations.” Id. at 15. In short, defendant does not claim that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully complied with its statutory obligations to plaintiffs.” Id. at 16. The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274 ). 8 Defendant argues that “[t]o the extent that plaintiffs claim any FLSA violation for failing to pay FLSA minimum wages or overtime wages to [Transportation Security Officers], or to other FLSA-exempt employees, those claims must be dismissed.” ECF No. 28 at 15 n.3. In support of this statement, defendant cites to Jones v. United States, 88 Fed. Cl. 789 (2009). See id. In Jones, the court stated: “The ‘precise question at issue’ is whether Section 111(d) of the [Aviation and Transportation Security Act] exempts [Transportation Security Administration (TSA)] from compliance with the FLSA when establishing overtime compensation for security screeners. Because we find that the plain language of Section 111(d) is unambiguous, we conclude that TSA need not comply with the FLSA.” 88 Fed. Cl. at 792 (emphasis added). This case is not binding precedent, and appears to be limited in application to security screeners. Plaintiffs, on the other hand, argue that the TSA’s handbook explicitly contemplates that some employees may be non-exempt from the FLSA. See ECF No. 31 at 37, 39-40 (quoting from the TSA handbook). In the complaint, plaintiffs allege that one named individual is a TSA employee, and assert that she is “classified as FLSA non-exempt,” but do not identify her specific job responsibilities. ECF No. 17 at 7. Because the court’s decision in Jones does not hold that all TSA employees are necessarily FLSA-exempt, and because plaintiffs have offered evidence to the contrary, the court will not dismiss the claims of all TSA employees at this time. Plaintiffs, however, ultimately bear the burden of proving that any TSA employees asserting claims in this case are, in fact, FLSA non-exempt in order for such employees to recover any damages that may be awarded. 10 E. Liquidated Damages Defendant insists that its failure to pay plaintiffs was a decision made in good faith, in light of the ADA. See ECF No. 35 at 14-15. It further urges the court to find that its good faith is so clear that the recovery of liquidated damages should be barred at this stage in the litigation. See id. at 14-18. But as the court held in Martin: [I]t would be inappropriate to determine, on motion to dismiss, whether the government had reasonable grounds and good faith. It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at trial. Moreover, even if the court were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled. Martin v. United States, 117 Fed. Cl. 611 , 627 (2014). Accordingly, the court declines to rule at this time on the issue of whether defendant can establish a good faith defense against liability for liquidated damages in this case. IV. Conclusion Accordingly, for the foregoing reasons: (1) Defendant’s motion to dismiss, ECF No. 28, is DENIED; (2) On or before January 29, 2021, defendant is directed to FILE an answer or otherwise respond to plaintiffs’ complaint; and (3) On or before January 29, 2021, the parties are directed to CONFER and FILE a joint status report informing the court of their positions on the consolidation of this case with any other matters before the court. IT IS SO ORDERED. s/Patricia E. Campbell-Smith PATRICIA E. CAMPBELL-SMITH Judge 11
4,489,093
2020-01-17 22:01:39.752483+00
Millieen
null
*1229OPINION. Millieen: Counsel for the respondent objected to the introduction of any evidence in this proceeding on the ground that the doctrine of res adjudicata precludes the introduction of any proof as competent evidence in this appeal and asks us to affirm the deficiencies now asserted on the basis of the decision in Charles M. Monroe Stationery Co., 3 B. T. A. 69. We have heretofore passed on this question adversely to the respondent’s contentions in Union Metal Manufacturing Co., 4 B. T. A. 287. Counsel for the petitioner at the hearing had in this proceeding stated that the principal error to be alleged was as concerns the claim for a loss deduction by reason of the abandonment of the mail-order business. No testimony was introduced relative to the loss claimed as concerns trade-marks or trade-brands or other intangibles, Petitioner claims it is entitled to *1230a deduction of $5,000 for each of the years in question due to the loss of the mail-order business which it discontinued in the year 1918. There was paid to Monroe the sum of $25,000 for trade-marks, trade-brands, and the mail-order business which that individual had built up prior to the organization-' of petitioner and which upon incorporation he sold to petitioner. The mail-order business was discontinued, due to the inability to secure merchandise with which to carry on the same. Petitioner believed that it would take five years to sell the merchandise then on hand and hence the cost of the assets purchased from Monroe should be deducted over a period of five years. The decision in the prior proceeding, 3 B. T. A. 69, was consistent with the facts there presented and the contention of the petitioner. In this proceeding we have a different state of facts with reference to the continuance of the mail-order business, as well as different contentions of the petitioner. The evidence is now clear that prior to the' years in question the mail-order business had ceased to function and not one cent was derived therefrom by petitioner during the years in controversy. In fact, the mail-order department ceased to be an income-producing factor in the business in the year 1918. The loss, if any, was sustained prior to the years before us. The mail-order business, along with certain valuable trade-marks and trade-brands, was purchased from Monroe for the lump sum of $25,000. We do not know the amounts specifically paid for the mail-order business. The petitioner has continued to use, and still uses, in its business many of the trade-marks and trade-brands which it acquired from Monroe and from all we know, the chief value represented in the purchase may relate and attach to the same. The respondent did not err in failing to allow the deduction claimed. Petitioner seeks a deduction of a loss incident to the sale of an automobile truck. We do not know the cost of the truck, the depreciated cost at date of sale, or the price at which the truck was sold by petitioner. Respondent sustained. Petitioner also seeks a deduction representing cost of a furnace which it installed in the building which it rented. Petitioner had a lease on the building which it rented. The cqst of the furnace should be spread over the life of the lease. We do not know the terms or conditions of the lease or other valuable concessions which petitioner may haveNeceived from the lessor that would have an important bearing as concerns the deductibility of the item in question. Respondent sustained. Relative to\the other errors alleged, no evidence was introduced and respondent is accordingly sustained. Judgment will be entered for the respondent.
4,489,094
2020-01-17 22:01:39.782791+00
Littleton
null
*1236OPINION. Littleton: The first issue as to the claimed deduction for obsolescence of good will, trade-brands, etc., is decided in favor of the Commissioner on the authority of Red Wing Malting Co. v. Willcuts, 15 Fed. (2d) 626; Manhattan Brewing Co., 6 B. T. A. 952; Frederick C. Renziehausen, 8 B. T. A. 87; affd., 31 Fed. (2d) 675. During the taxable year petitioner paid a fine of $6,035 for violation of Federal laws regulating the interstate shipment of intoxicating liquors, and it is insisted on behalf of petitioner that such fine represented an inherent hazard of the business and constituted an ordinary and necessary expense incident to the carrying on of its business and is, therefore, a proper deduction from gross income. The claim is without merit. Payments of fines and penalties do not result from ordinary and necessary acts incident to the lawful conduct of the business, but from violations of the law, and are not deductible as an ordinary and necessary business expense. The action of the Commissioner in disallowing the amount claimed as a deduction is approved. Columbus Bread Co., 4 B. T. A. 1126; Great Northern Railway Co., 8 B. T. A. 225; Atlantic Terra Cotta Co., 13 B. T. A. 1289. As to the attorney’s fee of $21,526.08, we are of the opinion that the petitioner is entitled to a deduction on account thereof. The Commissioner disallowed the deduction of any portion of this fee upon the ground that the fee provided in the contract was a contingent one and that it was not definitely determinable within the taxable year 1919. No question is raised as to the propriety of the deduction as a proper business expense. The attorney was employed after the taxpayer had made its return for 1918 showing a large tax for that year, in the belief that by proper presentation and prosecution of certain claims in respect of its 1918 tax liability a reduction in the tax shown on the return could be obtained and that a considerable saving to the petitioner would thereby be effected. In September, 1919, peti-(ioner received advice from the Treasury Department of its determination in respect of its 1918 tax and actually received a check for refund of a portion of the total tax which had already been paid. When this occurred all the events necessary under the terms of the contract had happened so as to fix the amount of the attorney’s fee and to enable the computation thereof. This was done and the amount of the fee determined in accordance with the contract, totaling $21,526.08, was accrued on petitioner’s books as an expense for the year 1919. Petitioner paid a portion of this fee to the attorney at various times subsequent to the receipt of the refund check, but before the fee had been entirely paid the Commissioner, subsequent *1237to his determination and the making of the refund, reconsidered the case and made adjustments in petitioner’s income for the year 1918 and notified it of an additional tax. The first notice of this adjustment was given the petitioner by the Commissioner on March 4, 1924, and, since petitioner had not fully paid the fee to its attorney, made an adjustment thereof as indicated in the findings of fact which reduced the same to $19,818.31, which it paid. Although petitioner was justified in entering upon its books as a liability the total amount of the fee computed upon the basis of the Commissioner’s determination of its tax liability at that time for the year 1919, in view of the fact that petitioner’s tax liability for the year 1919 is now before us for determination and in view of the fact that petitioner adjusted the accrued item for attorney’s fee upon its books and has finally settled the same by payment of a lesser amount than that originally entered upon the books, the amount of $19,818.31 finally determined should be allowed as a deduction from income for the year 1919. Cf. Producers Fuel Co., 1 B. T. A. 202; Josiah Wedgwood & Sons, Ltd., 3 B. T. A. 355. The invested capital of petitioner should not be reduced on account of a tentative tax computed in determining earnings available for the payment of dividends on June 14, 1919. L. S. Ayers & Co., 1 B. T. A. 1135. In any event, the evidence in this proceeding shows that the current earnings to the dividend date were more than sufficient to pay the same. Petitioner abandons the last assignment of error with reference to the reduction of invested capital on account of income and profits tax for prior years. Judgment will Toe entered under Rule 50.
4,491,843
2020-01-17 22:03:05.496264+00
Murdock
null
*1123OPINION. Murdock : The deficiency notice which forms the basis of this proceeding had to do with the years 1922 to 1924, inclusive. It notified the petitioner that there was no deficiency in tax for the year 1922 and that there were deficiencies for the years 1928 and 1924. It contained the following statement: 1922. The loss of $429,184.95 in liquidation, Middle Tennessee Railroad Company claimed on your return, has been allowed by this office and your return accepted as filed. However, the net loss of $305,392.72 as shown by your return for 1922 and carried forward as a credit on your returns for 1923 and 1924 has been disallowed as a credit for those years. It is held by this office that the loss sustained in 1922 was not the result of the operation of your trade or business and is, therefore, not such a loss as to constitute a net loss under the provisions of section 204 of the Revenue Act of 1921. The petitioner’s assignment of error is as follows: The respondent erroneously determined that the loss resulting to the petitioner in 1922 from the liquidation of an enterprise carried out through a corporation known as Middle Tennessee Railroad Company, was not a net loss under the provisions of section 204 of the Revenue Act of 1921. The issue raised by the pleadings is, Did the Commissioner, having determined that the petitioner sustained a loss in 1922 of $429,184.95 in the liquidation of the Middle Tennessee Railroad Company, and having accepted the petitioner’s return as filed for 1922, err in not carrying forward some certain amount for the years 1923 and 1924 *1124as a statutory net loss under the provisions of section 204 of the Revenue Act of 1921 and section 206 of the Revenue Act of 1924? The petitioner relied upon the statement in the deficiency notice that the Commissioner had allowed the loss of $429,184.95 for 1922 in connection with the liquidation of the Middle Tennessee Railroad Company. We think he was justified in so doing. He did not come to trial prepared to prove that he had sustained a loss in this amount from this cause in 1922. The deficiency notice was dated November 3, 1927, the petition was filed December 30, 1927, the answer was filed February 29, 1928, and there were no further pleadings or requests to plead further until the date of the hearing on September 3, 1930. At that late date counsel for the respondent moved to amend his answer by adding a paragraph as follows: Respondent admits tliat in the year 1922 the petitioner sustained • a loss upon the liquidation of the Middle Tennessee Railroad Company in the sum of $210,600 and denies that he sustained any loss in excess of that amount. This motion was objected to and the objection was sustained. This was not a claim for any increased deficiency. It was an untimely attempt to reverse the position theretofore taken by. the Commissioner and relied upon by the petitioner. Therefore, it will be assumed in the decision of this case that the petitioner sustained a loss in 1922 of $429,184.95 in the liquidation of the Middle Tennessee Railroad Company, and it will be further assumed that his return for 1922, as filed, was correct. However, it was incumbent upon the petitioner to prove that he sustained in 1922 a statutory net loss under the provisions of sections 204 of the Revenue Act of 1921 and 206 of the Revenue Act of 1924 and the amount of such net loss. The deficiency notice contains no determination or admission on the part of the respondent that the loss of $305,392.72, as shown on the petitioner’s return for 1922, was a net loss within the meaning of section 204. It merely states that the loss, as shown by the return, has been disallowed as a credit for 1923 and 1924. It further states that the loss sustained in 1922 was not a statutory net loss because it did not result from the operation of the petitioner’s trade or business. If the Commissioner’s stated reason for the disallowance was in fact no reason for the disallowance, there would still be the question of the computation of the amount of the statutory net loss. Cf. Edgar M. Carnrick, 21 B. T. A. 12. Section 204 specifies the manner in which this amount must be computed, and it is obvious that the amount may not be the same as the amount of loss shown on a correct return. Julius Mendelson, 21 B. T. A. 958. The figures necessary to compute any possible statutory net loss are not in evidence. The petitioner’s return for 1922 has not been offered in evidence. Thus we are unable to compute or direct a correct computation of *1125any statutory net loss under Rule 50. Cf. H. J. Schlesinger, 5 B. T. A. 943; B. Estes Vaughan, 15 B. T. A. 596; Lawrence J. Montgomery, 17 B. T. A. 1308; Orr & Sembower, Inc., 20 B. T. A. 605. But, aside from this difficulty, the evidence does not show that the alleged loss resulted from the operation of any trade or business regularly carried on by the taxpayer. It is not contended that the petitioner was regularly engaged in the operation or construction of railroads. A loss sustained in an isolated business transaction is not to be carried forward by an individual under section 204, nor, except under circumstances not shown in this case, is a loss from the liquidation of a corporation to be carried forward by an individual. Anderson v. United States, 48 Fed. (2d) 201. Cf. Fridolin Pabst, 6 B. T. A. 843; affd., 36 Fed. (2d) 614; certiorari denied, 281 U. S. 741; Louis M. Goldberg, 9 B. T. A. 1355; affd., 36 Fed. (2d) 551; J. L. Washburn, 16 B. T. A. 1091; A. Lynton Jones, 19 B. T. A. 447, and cases there cited; Albert T. Scharps, 20 B. T. A. 246; Wyatt C. Hedrick, 20 B. T. A. 258. Judgment will be entered for the respondent.
4,600,693
2020-11-20 19:26:08.13754+00
null
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PARKER GRAVEL CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Parker Gravel Co. v. Commissioner Docket No. 38348. United States Board of Tax Appeals October 15, 1930, Promulgated 1930 BTA LEXIS 1936">*1936 1. A gravel pit or deposit is not a "mine" within the meaning of that word as used in section 204(c)(1) of the Revenue Act of 1926, and may not be the subject matter of a deduction for depletion based on discovery value. 2. Deduction allowable for depreciation determined from the record. 3. Miscellaneous expenditures analyzed and held to be part capital, and part expense deductible from income. John J. Finnorn, Esq., for the petitioner. A. S. Lisenby, Esq., for the respondent. TRAMMELL 21 B.T.A. 51">*51 This is a proceeding for the redetermination of a deficiency in income tax for an eight-month period ended December 31, 1925, in the amount of $1,009.31. The petitioner in its return for said period claimed deductions as follows: For depletion of a gravel pit, based upon discovery value, $5,124.79; for depreciation, $3,367.84; for "organization expenses," $433.96. The respondent disallowed the deductions claimed for depletion based upon discovery value and for "organization expenses," and of the deduction claimed for depreciation allowed $1,162.70 and disallowed $2,205.14. The action of the respondent in these respects is assigned by the petitioner1930 BTA LEXIS 1936">*1937 as error. FINDINGS OF FACT. The petitioner is a Louisiana corporation, organized May 4, 1925, with its principal office at Shreveport. Prior to the beginning of 1925, J. E. Morgan, who had theretofore had 20 years experience in the gravel business, was confidentially informed by one Ross that a deposit of gravel showed in the sides of a well located on a tract of land in Webster Parish, Louisiana, owned by Joe R. Miller. Morgan thereupon sought out C. A. Parker, a railroad conductor and proposed to him that they combine Morgan's experience with Parker's capital, acquire mineral rights from Miller, and proceed to prospect the property for deposits of gravel. At that time a railroad ran through the Miller property, having been constructed 18 to 20 years before for the purpose of hauling gravel from what was known as he "Jarrett" pit, located about 2 1/2 miles away. In previous years holes had been drilled on the Miller land, but the tests were barren of discoveries of any considerable 21 B.T.A. 51">*52 quantity of gravel. However, small outcroppings of gravel were visible. Under date of January 2, 1925, a partnership agreement was entered into by and between Parker and Morgan1930 BTA LEXIS 1936">*1938 as follows: ARTICLE 1. The parties do hereby declare they have associated themselves together informally as a Partnership, for the purpose of acquiring leases, options and contracts upon prospective mining properties and lands; to engage in the prospecting and developing of such leases and options in the search for gravel and sand deposits in commercial quantities; to purchase the necessary steam shovels, locomotives, cars, dredges and other equipment requisite for the full development of any such deposits as may be found by them or either of them, and to develop the necessary organization and facilities for the production, transportation and marketing of such products. ARTICLE 2. The parties further agree that it is their intention to form a corporation under the laws of the State of Louisiana, in the event their activities hereunder are successful in locating deposits of sand or gravel in commercial quantities, and that all of their activities hereunder, jointly and severally, shall be considered as performed on behalf of such corporation and inuring to the benefit thereof; but in the event such exploration work is not successful, then such acts shall have been considered1930 BTA LEXIS 1936">*1939 as having been performed under this informal partnership agreement. ARTICLE 3. It is further understood and agreed that the entire cost of such preliminary exploration and development work shall be borne by C. A. Parker, who hereby assumes and agrees to pay all expenses of every kind or character incident thereto up to the date of incorporation as hereinabove set forth; that a careful record of such expenditures shall be kept and maintained, and upon perfecting of said corporate organization, such corporation shall assume said indebtedness and make settlement thereof from the net earnings which otherwise would be available for dividends; said payments to be made at such times and in such manner as the Board of Directors of said corporation may authorize. ARTICLE 4. Upon the Organization of such corporation, it is agreed that C. A. Parker shall be entitled to ownership of two thirds of the capital stock, and J. E. Morgan shall be entitled to ownership of the remaining one third of the capital stock of said corporation. Under date of January 13, 1925, Parker and Morgan entered into a lease contract with Miller which provided in material part as follows: Said J. R. Miller1930 BTA LEXIS 1936">*1940 agrees and authorizes said Parker and Morgan to mine excavate, remove, ship and sell all the sand and gravel and clay gravel from the property said Miller owns or may acquire in Sections 28, 29, 31, and 32, Township 18, Range 9, Webster Parish, La. Said Miller is to receive in payment 7 1/2 cents per cubic yard for all gravel, sand, clay gravel, either washed or pit run removed from said land, and 1/2 of the amount of money receive dfrom any over burden sold by them. Said Parker and Morgan agree to remove not less than ten thousand yards of gravel, sand or clay gravel during the present year and every year hereafter. The amount of over burden not to be considered, or pay to said Miller the amount of $750.00 on or before the close of the year. And the amount of $300.00 cash is at this time advanced to said Miller as part of this year's payment. The advance payment of $300 was made to Miller in accordance with the terms of the contract. The cost of the lease to Parker and Morgan was nothing. 21 B.T.A. 51">*53 After securing the lease from Miller some 20 or 30 test holes were bored on the land by Parker and Morgan, and in accition tests were made on adjoining lands leased1930 BTA LEXIS 1936">*1941 by them. Tests on the adjoining lands did not disclose gravel in commercial quantities, but gravel deposits below the surface were indicated on the Miller lands, varying in thickness from 10 to 35 feet over an area of slightly less than 30 acres. The thickness of the overburden varied. An engineer was employed to map and estimate the extent of the deposit. The engineer's report estimated the probable content of the gravel deposit at 524,000 cubic yards. Suitable equipment, in part second hand, was purchased by Parker and Morgan and a gravel pit known as the "Heard" pit was opened about 200 yards from the railroad which ran to the "Jarrett" pit. The first shipment of gravel was made on or about March 20, 1925, and production was continuous thereafter. The "Heard" pit was located advantageously with reference to deliveries in Shreveport, La., 30 miles away, where the best prospective market was located. Two railroads were available for shipments. A trackage agreement was affected with the railroad company which allowed delivery to the competitive point, Sibley, La., and under this arrangement, the railroad absorbed the switching charges, thus giving an advantage to Parker1930 BTA LEXIS 1936">*1942 and Morgan on Shreveport deliveries of from $3 to $5 per car according to capacity and weight. The prices of the petitioner's products, delivered in Shreveport, were as follows: Road gravel, if billed to the Parish, $1.65 per cubic yard; to private parties, $2.18 per cubic yard; for washed gravel, $2.83 per cubic yard. Included in these prices were freight rates, which were the same on all grades, of 2 1/2 cents per 100 pounds for public good roads materials, and 3 1/2 cents per 100 pounds for private parties, or a cost for the freight of 75 cents per yard and 94 1/2 cents per yard, respectively. Market prices at the pit were 60 cents per cubic yard for sand ballast, 90 cents per cubic yard for road gravel, and $1.75 per cubic yard for washed gravel. An average price at the pit for the entire output was about 95 cents per cubic yard. The prevailing royalty rate on gravel in this territory was 7 1/2 cents per cubic yard. In this vicinity, the operation of a gravel pit was fraught with considerable risk and uncertainty. However, the Heard pit was always profitable, while operated by the petitioner. The petitioner operated another pit which proved to be unprofitable. The1930 BTA LEXIS 1936">*1943 petitioner was incorporated on May 4, 1925, and on that date the Miller lease and equipment were transferred to it in exchange for its entire capital stock. Thereafter, the petitioner operated the business of extracting and selling gravel and sand. The 21 B.T.A. 51">*54 capital stock of the petitioner was issued to Parker and Morgan as provided in the partnership agreement. The gravel pit was operated at night as well as during the day whenever orders for material justified it, as frequently occurred. The deduction for depletion was computed and claimed by the petitioner in its return as follows: Gross income from Heard pit$48,567.34 Deductions: Royalties paid$5,013.15 Depreciation2,752.52 Organization and development expense1,288.12 Various ordinary and necessary expenses (itemized in return)29,263.97 38,317.76 Net profit before deducting depletion10,249.58 Production, 68,058 cubic yards. Depletion deduction claimed allowable, 50% of $10,249.58, of net amount, $5,124.79. A reasonable allowance for depreciation of the petitioner's assets, computed on the record, is as follows: AssetCostRateAnnual amount Per cent Railroad spur$9,497.505$474.87 Locomotive3,671.3510367.13 Steam shovel16,353.27203,270.65 Dredge4,971.7020994.34 Grading equipment237.082047.42 Light plant75.00107.50 Total for 12 months5,161.91 Proportion for 8 months3,441.27 1930 BTA LEXIS 1936">*1944 In 1925 the expenditures for the petitioner included the following: (1) Legal services and recording fees relative to a chattel mortgage on equipment acquired, $13; (2) legal services and other organization expenses aggregating $194.63; (3) expenses of traveling for business purposes, $104.33; and (4) engineering services in mapping territory and estimating the extent of gravel deposit, $122. In determining the deficiency, the respondent computed petitioner's net income as follows: Net income as shown by return$2,879.65 Additions: 1. Depletion disallowed$5,124.79 2. Excessive depreciation2,205.14 3. Oranization expense433.96 7,763.89 Adjusted net income10,643.54 21 B.T.A. 51">*55 OPINION. TRAMMELL: The deficiency involved in this proceeding results from the action of the respondent in disallowing certain deductions claimed by the petitioner in its return as follows: (1) A deduction for depletion of a gravel deposit or pit, based on discovery values, in the amount of $5,124.79; (2) in part, a deduction for depreciation in the amount of $3,367.84; and (3) a deduction for "organization expenses" in the amount of $433.96. The petitioner1930 BTA LEXIS 1936">*1945 alleges that the respondent's action constitutes error. The issue of depletion will be first considered. The statute applicable here is the Revenue Act of 1926, which provides in pertinent part as follows: SEC. 234. (a) In computing the net income of a corporation * * * there shall be allowed as deductions: * * * (8) In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; * * * In the case of leases, the deductions allowed by this paragraph shall be equitably apportioned between the lessor and lessee. SEC. 204. (c) The basis upon which depletion, exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be the same as is provided in subdivision (a) or (b) for the purpose of determining the gain or loss upon the sale or other disposition of such property, except that - (1) In the case of mines discovered by the taxpayer after February 28, 1913, the basis for depletion shall be the fair market value of the property at the date of discovery or within thirty days thereafter, if such mine were1930 BTA LEXIS 1936">*1946 not acquired as the result of purchase of a proven tract or lease, and if the fair market value of the property is materially disproportionate to the cost. The depletion allowance based on discovery value provided in this paragraph shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property upon which the discovery was made, except that in no case shall the depletion allowance be less than it would be if computed without reference to discovery value. Discoveries shall include minerals in commercial quantities contained within a vein or deposit discovered in an existing mine or mining tract by the taxpayer after February 28, 1913, if the vein or deposit thus discovered was not merely the uninterrupted extension of a continuing commercial vein or deposit already known to exist, and if the discovered minerals are of sufficient value and quantity that they could be separately mined and marketed at a profit. (2) In the case of oil and gas wells the allowance for depletion shall be 27 1/2 per centum of the gross income from the property during the taxable year. Such allowance shall not exceed 50 per centum of the net1930 BTA LEXIS 1936">*1947 income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance be less than it would be if computed without reference to this paragraph. 21 B.T.A. 51">*56 The petitioner here contends that it is entitled to a deduction for depletion of its gravel pit based on discovery value, while the respondent asserts that a gravel pit is not a "mine" within the meaning of that term as used in the taxing statute, and hence does not come within the purview of the provisions above quoted. If the petitioner is to prevail in its contention, the term "mines" as used in the statute must be construed to comprehend a gravel pit. What, then, is the meaning of this term as it is used in the Revenue Act of 1926, supra? At the outset it will be noted that the statute provides generally in section 234(a)(8) for a reasonable allowance for depletion in the case of (1) "mines," (2) oil and gas wells, (3) other natural deposits and (4) timber. It is apparent Congress did not intend the word "mines" as used in this section to embrace oil and gas wells, or other natural deposits, since these are separately specified, nor would it, of1930 BTA LEXIS 1936">*1948 course, include timber. That the owrd "mines" is used in this statute not in its broadest significance, but in a restricted sense, is still more apparent from a reading of section 204(c), where it is provided in subdivision (1) that the basis for depletion "in the case of mines," with certain restrictions, shall be the fair market value of the property at the date of discovery or within thirty days thereafter, and in subdivision (2) special provision is made for depletion "in the case of oil and gas wells." In its primary and restricted sense, the word "mine" denotes an underground excavation made for the purpose of getting minerals. Sovereign Camp Woodmen of the World v. Arthur,222 S.W. 729">222 S.W. 729; People v. Bell,86 N.E. 593">86 N.E. 593; Northern Pacific Ry. Co. v. Mjelde,137 P. 386, 389; Kreps v. Brady,133 P. 216, 220; Barton v. Wichita River Oil Co.,187 S.W. 1043">187 S.W. 1043. A mineral is any substance not of the animal or vegetable kingdom and, therefore, the word "mines" in its broadest significance would include "oil and gas wells" and "other natural deposits." Yet, as we have just shown, 1930 BTA LEXIS 1936">*1949 it is apparent from a reading of the taxing statute that the term is not there used in that sense. In Marvel v. Merritt,116 U.S. 11">116 U.S. 11, the court, referring to mines and minerals, says: The words used are not technical, either as having a special sense by commercial usage or as having a scientific meaning different from their popular meaning. They are the words of common speech, and as such their interpretation is within the judicial knowledge, and therefore matter of law. Again, it has been said that the word "mineral" is a word of general language which, in the scientific division of matter, includes every substance not of the animal or vegetable kingdom, and its usage may not, therefore, be determined by the ordinary definitions 21 B.T.A. 51">*57 of the dictionaries in given cases, but its meaning must be derived from the intention with which it is used in a particular instrument or statute. Northern Pacific R.R. Co. v. Soderberg,188 U.S. 526">188 U.S. 526; Dingess v. Huntington, etc., Co.,271 F. 864. Since it is at once apparent that in the Revenue Act Congress did not use the word "mines" in its broadest sense, what, then, 1930 BTA LEXIS 1936">*1950 is the judicial interpretation of the term when used in a restricted sense? In Wheeler v. Smith,32 P. 784, the court states that the word "mines," as that term is known to the mineral laws of the United States, "embraces nothing but deposits of valuable mineral ores, and does not include mere masses of non-mineralized rock, whether rock in place or scattered about through the soil." Ordinarily, the extraction of oil or gas from the earth is not spoken of as mining, nor is an oil or gas well a mine in the primary and restricted sense of the word. Hollingsworth v. Berry,192 P. 763; Guffey Petroleum Co. v. Murrel,53 So. 705">53 So. 705; Carter v. Phillips,212 P. 747. In its broadest sense, as belonging to one of the three great divisions of matter, viz., animal, vegetable, and mineral, gravel, like oil and gas, may be considered to be a mineral, but in its restricted sense it is not a mineral. Hender v. Lehigh Valley R.R. Co.,58 A. 486; United States v. Aitken, 25 Philippine 7, 14; 1930 BTA LEXIS 1936">*1951 Sult v. Oil Co.,61 S.E. 307">61 S.E. 307. In United States v. Aitken, supra, the Government sought to eject the appellees from a parcel of land located by them under the mining laws as a placer mining claim, valuable for the gravel it contained. The issue involved was whether the material which induced the appellees to apply for a patent was susceptible of location under the mining laws relating to the occupation and purchase of public lands containing valuable "mineral" deposits. Thus, the specific question before the court was whether gravel was a "mineral." The court in its opinion said: It is true that commercial gravel belongs to the mineral kingdom in that it is inorganic and that it is formed by nature alone. But there is an important distinction between it and any of the so-called minerals as recognized by the authorities. Practically speaking, all the definitions of the word "mineral" agree that such a substance must always have a definite chemical composition by which it can be easily recognized, in whatever part of the earth it may be found. There can be no such uniformity in the chemical content of gravel deposits, for the reason that this depends1930 BTA LEXIS 1936">*1952 entirely upon the character of the mineral deposits which have contributed to their formation. And upon the character, quantity, and proximity of the minerals to the gravel deposit, their susceptibility to erosion, the violence with which the erosion is accompanied, the duration of the eroding process, as well as various other facts, depends the size of the pebbles and the quality of the deposit as commercial gravel. There is nothing constant in the character of commercial gravel by which to identify it 21 B.T.A. 51">*58 as a mineral, except that it consists of broken fragments of rock mingled with finer material, such as sand and clay. Nothing definite can be said of its chemical composition as can be said of the minerals. Commercial gravel is simply a jumbled mass of fragments of various minerals (rocks). Science, at least, cannot accept as a distinct subdivision of the mineral kingdom any substance whose character and attributes are so composite and fluctuating. It is true that beds of sandstone and limestone may possibly owe their origin in some instances to deposits of ordinary gravel. (Barringer and Adams on The Laws of Mines and Mining in the United States; Enc. Brit., 11th1930 BTA LEXIS 1936">*1953 ed. Title "Gravel.") But commercial gravel has not yet reached that stage. So far as scientific classification goes, then, commercial gravel can not be considered as a mineral. * * * But it is clear that it can not be legitimately considered as a mineral in any scientific sense of the word, because it has been persistently ignored in all the treatises on mineralogy and kindred subjects. And to hold that the term "mineral" as used in the Act of July 1, 1902, includes commercial gravel, it would seem necessary to conclude that Congress intended to include within it a substance which, despite its frequency and the variety of uses to which it was put at the time of the passage of the Act, had never been considered as coming within the term by any recognized authority. * * * In Zimmerman v. Brunson (39 L.D. 310, 1911), the United States Land Department was called upon to decide for the first time whether commercial gravel could be located as a placer mineral claim. In that case it was said: "Conceding that the twenty acres are chiefly valuable for gravel and sand, which can be used in connection with cement forming concrete, used in the construction of1930 BTA LEXIS 1936">*1954 buildings, does such a deposit confer upon them a mineral character so as to except them from homestead entry? * * *" A search of the standard American authorities has failed to disclose a single one which classifies a deposit such as claimed in this case as mineral, nor is the Department aware of any application to purchase such a deposit under the mining laws. This, taken into consideration with the further fact that deposits of sand and gravel occur with considerable frequency in the public domain, points rather to a general understanding that such deposits, unless they possess a peculiar property or characteristic giving them special value, were not to be regarded as mineral. The Revenue Act of 1926, supra, provides generally for the allowance of reasonable deductions for depletion in the case of "mines, oil and gas wells, other natural deposits and timber," and it is axiomatic to say that no kind of property may be the subject matter of an allowance for depletion which does not fairly come within one of these four classifications. Inclusio unius est exclusio alterius. In addition to this general provision, the statute provides a specific basis for computing depletion1930 BTA LEXIS 1936">*1955 in the case of "oil and gas wells," and also contains a special provision for depletion on the basis of discovery value only in the case of "mines." It is apparent, we think, that Congress no more intended the word "mines" as used in this statute to include "other natural deposits" than it was intended to include oil and gas wells or timber. We can not assume that Congress was engaged in idle expression when it employed the words "oil and gas wells" and "other natural deposits" 21 B.T.A. 51">*59 in association with the word "mines," and in order to give meaning to all of the words used, it is obvious that the word "mines" must be read in its restricted sense as including only what is generally included under the word "minerals." If it be held that the word "mines" is here used in its broad sense to embrace a gravel pit, it must be held that gravel in the same sense is a "mineral." We would then be unable to attach any significance to the words "other natural deposits" used in the statute, since any natural deposit is within the broad meaning of the word a "mineral" and an excavation to recover such mineral is a "mine." Water, in the broad sense of the word, is a mineral, and a well in1930 BTA LEXIS 1936">*1956 that sense might then be called a "mine," but certainly the word "mine" is not generally so understood. If such a construction be given to the statute, not only would the words "other natural deposits" have no meaning or effect, but a direct conflict in terms would result, for the reason that there could be no natural deposits other than mines. If Congress had intended such meaning, the statute could easily have been framed to read: "mines, including oil and gas wells, and other natural deposits," but we can not supply what has been thus omitted. It is our conclusion, therefore, that a gravel pit or deposit is not embraced within the term "mines" as used in the sections of the Revenue Act of 1926, above quoted. The allowance for depletion based upon discovery value being authorized only in the case of mines, such a deduction is as effectively prohibited in the case of property not coming within that classification as if the statute specifically so stated. Here again we apply the maxim, inclusio unius est exclusio alterius. From what we have said above, it follows that the petitioner is not entitled, under section 204(c)(1), supra, to a deduction for depletion of its1930 BTA LEXIS 1936">*1957 gravel pit based upon discovery value. The respondent's determination on this issue is approved. We may point out, however, that, on the state of the record before us we would be compelled to deny allowance of the deduction claimed by the petitioner for depletion on other grounds also. The statute authorizes the depletion allowance only in the case of mines "discovered by the taxpayer." The gravel pit here in question, even if it should be conceded to be a "mine," was discovered by Parker and Morgan apparently some time during the months of January, February, or March, 1925. We are unable to determine from the evidence the exact date of the discovery. At any rate, active operation of the property was commenced on or about March 20, 1925, after which date production was continuous, and the taxpayer corporation was not organized until May 4, 1925. In the light of 21 B.T.A. 51">*60 these facts, it is our opinion that the taxpayer did not discover the gravel deposit, and is therefore not entitled to a depletion allowance based on discovery value. 1930 BTA LEXIS 1936">*1958 Evangeline Gravel Co.,13 B.T.A. 101">13 B.T.A. 101, 13 B.T.A. 101">104. See also Melville G. Thompson,10 B.T.A. 25">10 B.T.A. 25. The statute further provides that in the case of mines discovered by the taxpayer, the basis for depletion shall be "the fair market value of the property at the date of discovery or within thirty days thereafter." The record not only fails to show that the gravel pit involved here was discovered by the taxpayer, but it fails to establish definitely the date of the discovery, and wholly fails to establish "the fair market value of the property at the date of discovery or within thirty days thereafter." Some testimony was offered to prove the amount of profit per cubic yard which it was anticipated could be realized from the excavation and sale of gravel and other material from the petitioner's pit. But such testimony alone affords no sound basis for determining the fair market value of the property at date of discovery or within thirty days thereafter, even if discovered by the taxpayer, nor was any effort made otherwise to establish such value. See 1930 BTA LEXIS 1936">*1959 Charles Warner Co.,8 B.T.A. 1112">8 B.T.A. 1112. And, lastly, the petitioner failed to prove the amount of its production for the taxable year, and even if the requirements of the statute had been met and the other essential factors proved, we would be unable to determine the amount of the deduction for depletion to which the petitioner would be entitled, and on this ground alone would be compelled to deny the relief sought. Robert Roberts,20 B.T.A. 345">20 B.T.A. 345. On the second issue, involving the deduction claimed by the petitioner for depreciation, the evidence is more definite and satisfactory. The depreciable assets consisted of (1) railroad spur, (2) locomotive, (3) steam shovel, (4) dredge, (5) grading equipment, and (6) light plant. The parties are in disagreement only with respect to the rates to be applied, and as to the last item, the light plant, each has used an annual rate of 10 per cent. In reference to the railroad spur, the evidence is insufficient to enable us to determine the probable period of useful life, and hence the rate fixed by the respondent will not be disturbed. There was testimony that the rails had a useful life of approximately 101930 BTA LEXIS 1936">*1960 years from date of acquisition, but this is not sufficient to justify us in holding that the railroad spur as a whole, consisting not only of the rails but also of fittings, crossties, grade and probably other parts, had a useful life other than the period of 20 years determined by the respondent. The petitioner in its return claimed depreciation on a locomotive at the rate of 10 per cent; the respondent allowed 5. There is some 21 B.T.A. 51">*61 testimony to show that the period of useful life may have been between 5 and 7 years, but it is not, in our opinion, of a quality to convince us that this period should be adopted. From all of the evidence we conclude that the petitioner has established the reasonableness of the rate of 10 per cent originally claimed, but no more; and this is sufficient to prove that the respondent's rate of 5 per cent is inadequate. On the steam shovel, dredge, and grading equipment, the testimony establishes periods of useful life of approximately five years each, and as to these items we have fixed the rate at 20 per cent. In recomputing the deficiency a deduction for depreciation will be allowed in the amount of $3,441.27, as set out in our findings1930 BTA LEXIS 1936">*1961 of fact, above. The third issue involves a question of the deductibility of various expenditures which were mistakenly claimed in the return to be "organization expenses." The evidence now enables a proper designation of these expenditures. An amount of $194.63, expenses incident to the organization of the petitioner, is not deductible from income. Hershey Manufacturing Co.,14 B.T.A. 867">14 B.T.A. 867, 14 B.T.A. 867">877, and cases there cited. An amount of $122 paid for engineering services in ascertaining the extent and character of the gravel deposits is, in our opinion, a capital expenditure. Cf. C. M. Nusbaum,10 B.T.A. 664">10 B.T.A. 664. The amounts of $13 and $104.33 expended for various items are ordinary and necessary business expenses properly deductible from income. Reviewed by the Board. Judgment will be entered under Rule 50. TRUSSELL and SEAWELL dissent.
4,638,542
2020-12-01 18:12:37.029057+00
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http://www.pacourts.us/assets/opinions/Superior/out/J-S41013-20m - 104619760120963973.pdf
J-S41013-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WARREN DARNELL MATTHEWS : : Appellant : No. 125 MDA 2020 Appeal from the Judgment of Sentence Entered November 25, 2019, in the Court of Common Pleas of York County, Criminal Division at No(s): CP-67-CR-0001519-2019. BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.* MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020 Warren Darnell Matthews appeals from the judgment of sentence imposed following his conviction for three counts of driving under the influence (“DUI”) controlled substances, and one count of general lighting requirements.1 We affirm. The relevant factual and procedural history can be summarized as follows. In the early morning hours of October 7, 2018, Trooper David Petrosky was on routine patrol when he began to follow a black Porsche SUV. While following the Porsche, other state troopers passed Trooper Petrosky’s police cruiser and advised him that the driver’s side headlight on the Porsche ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 See 75 Pa.C.S.A. §§ 3802(d)(1)(i), (iii), (2), 4303(a). J-S41013-20 was out. Trooper Petrosky continued to follow the Porsche and observed it touch both sides of the center dividing line and the fog line on the right side of the road multiple times. Trooper Petrosky activated his lights and sirens, and initiated a traffic stop. As he approached the Porsche, Trooper Petrosky detected the odor of marijuana emanating from the vehicle and noticed that the driver, Matthews, had ashes on his shirt. Trooper Petrosky began to converse with Matthews, who indicated that he had smoked marijuana approximately thirty minutes prior to the stop. Trooper Petrosky requested that Matthews step out of his vehicle to further examine him. The trooper noticed that Matthews had red conjunctiva, a green tongue with raised taste buds, and the odor of marijuana was emanating from his person. Trooper Petrosky performed two Advanced Roadside Impairment Detention Enforcement (“ARIDE”) exercises on Matthews. He first performed the lack-of-convergence test in which he noticed Matthews’ eyes failed to converge. He also performed the Modified Romberg test, in which Matthews’ estimation of thirty seconds was significantly off and Trooper Petrosky observed eyelid tremors. Matthews informed the trooper that he had no medical conditions with his eyes that would impede his ability to perform the tests. Trooper Petrosky placed Matthews under arrest. He then searched the Porsche and found suspected marijuana, a partially burnt marijuana cigar, and an unopened Dutch Masters cigar. Matthews was taken to central booking -2- J-S41013-20 where he was read the DL-26(b) (implied consent) form and consented to a blood draw. The blood was sent to a lab for analysis. The parties stipulated to the accuracy of the blood test results, which showed Matthews had THC (active marijuana metabolite) in his system. Matthews was charged with three counts of DUI (Schedule I controlled substance, metabolite of a controlled substance-Schedule I, and under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive), possession of a small amount of marijuana, possession of drug paraphernalia, driving while operating privilege is suspended or revoked, driving on roadways laned for traffic, and general lighting requirements (no headlight).2 The matter proceeded to a non-jury trial in October 2019. At the conclusion of trial, the trial court found Matthews guilty of the three counts of DUI and general lighting requirements. On November 25, 2019, the trial court sentenced Matthews to six months of county immediate punishment, the first three days of which were to be served on house arrest and the first ten days to be served with an alcohol monitor, subject to random drug testing. The court also imposed a $1,000 fine and assessed the costs of prosecution. Matthews filed post-sentence ____________________________________________ 2 The Commonwealth withdrew the charge of possession of drug paraphernalia. The trial court found Matthews not guilty of the remaining charges. -3- J-S41013-20 motions for a new trial and stay of sentence/bail pending appeal. 3 On December 16, 2019, the trial court denied Matthews’ motion for a new trial, but ordered that Matthews’ original bail be reinstated during the pendency of his direct appeal. On January 14, 2020, Matthews filed a timely notice of appeal. Both Matthews and the trial court complied with Pa.R.A.P. 1925. Matthews raises one issue for our review: “Whether the trial court erred in denying . . . Matthews’ challenge to the weight of the evidence where the Commonwealth might have shown ingestion of marijuana, but failed to prove actual impairment in light of . . . Matthews’ driving, coherence, and cooperation.” Matthews’ Brief at 4. Matthews challenges the weight of the evidence supporting his conviction for DUI under 75 Pa.C.S.A. § 3802(d)(2).4 The following legal principles apply when a challenge to the weight of the evidence supporting a conviction is presented to the trial court: A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a ____________________________________________ 3 In his motion for new trial, Matthews challenged the weight and sufficiency of the evidence supporting the verdict. 4 Matthews does not challenge his other DUI convictions. -4- J-S41013-20 juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Commonwealth v. Widmer, 744 A.2d 745 , 751-52 (Pa. 2000) (citations, footnotes and quotation marks omitted). Thus, to allow an appellant “to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the [trial] court.” Commonwealth v. Talbert, 129 A.3d 536 , 545 (Pa. Super. 2016) (internal citation omitted). An appellate court’s standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court: Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. Commonwealth v. Clay, 64 A.3d 1049 , 1055 (Pa. 2013) (emphasis in original, internal citations omitted). In evaluating the trial court’s exercise of discretion, we are guided by the following principles. -5- J-S41013-20 The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Widmer, 44 A.2d at 753. This Court may not substitute its judgment for that of the fact-finder as to credibility issues or the weight to be given to evidence. Commonwealth v. Furness, 153 A.3d 397 , 404 (Pa. Super. 2016). These standards apply even when the trial judge rendered the verdict at issue as the finder of fact. See, e.g., Commonwealth v. Konias, 136 A.3d 1014 , 1023 (Pa. Super. 2016) (applying the above standards to a weight challenge following a bench trial) The Vehicle Code provides, in relevant part, as follows: “An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances . . . [t]he individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(d)(2). Matthews claims that a conviction of DUI under section 3802(d)(2) requires a showing of substantial impairment of “the normal mental and physical faculties required to safely operate [a] vehicle.” Commonwealth v. -6- J-S41013-20 Palmer, 751 A.2d 223 , 228 (Pa. Super. 2000) (holding that substantial impairment is a “diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions”). Matthews asserts that, while he admitted to smoking marijuana and the lab results confirmed the presence of THC in his system, no evidence was offered regarding what the presence of those substances or their levels might indicate. Matthews maintains that a DUI based on general drug impairment requires more than mere ingestion, as culpability based solely on marijuana consumption is addressed by other DUI statute subsections. While Matthews concedes that most studies show marijuana can impair driving, he claims that the impairment appears to be more akin to driving with a blood-alcohol level between 0.01 and 0.05, which is legal in all states. Matthews also argues that marijuana’s effect on a particular person is difficult to measure because marijuana metabolizes at different rates among different people, and the way it affects a person depends on several subjective factors, including frequency of use, method of ingestion, amount ingested, and time of last use. Matthews claims that, unlike alcohol impairment, which can be reliably gauged by an individual’s blood-alcohol concentration, the amount of THC present in the blood is not indicative of the level of THC found in the brain, which is where the impairment of psychomotor skills and other necessary functions required to safely drive would be impacted. -7- J-S41013-20 Matthews argues that the weight of the evidence shows that the presence of marijuana in his system did not impair his driving. He points out that he did not speed or engage in any erratic driving, and the trial court acquitted him of the moving violation charge. Matthews asserts that he was coherent and cooperative with the trooper when pulled over, and there was no evidence that his speech was slurred or his reactions were slow. Matthews contends that the two ARIDE examinations conducted by Trooper Petrosky are a mere subset of typical twelve steps of the standardized Drug Recognition Expert protocol. Matthews argues that the trooper did not perform any of Standard Field Sobriety Tests (“SFSTs”) that police normally use to determine lack of coordination and concentration associated with intoxication. Matthews claims that Trooper Petrosky was not a certified drug recognition expert ("DRE") and thus could not testify about what physical signs Matthews exhibited during the examinations, and what they could potentially could indicate. Matthews further argues that Trooper Petrosky could not recall if Matthews had vision issues or needed glasses, which would have interfered with his performance on the tests. Matthews contends that Trooper Petrosky’s belief that Matthews was impaired should be given less weight because the trooper was not an expert and made his determination based on limited and incomplete information. For these reasons, Matthews argues that the trial court abused its discretion in denying his challenge to the weight of the evidence. -8- J-S41013-20 The trial court considered Matthews’ weight challenge and determined that the verdict was not against the weight of the evidence. It reasoned: Considering the presence of THC in [Matthews’] system; his own admission that he smoked marijuana half an hour before driving; his failure in his performance of the field of sobriety tests; and Trooper Petrosky’s observation regarding the odor of marijuana, [Matthews’] appearance, as well as the presence of suspected marijuana in [Matthews’] car, this [c]ourt finds that the verdict for a conviction of driving under the influence of controlled substance . . . under 75 P[a.C.S.A.] § 3802(d)(2) was amply supported by competent evidence. [Matthews] has failed to show that the evidence provided at trial was so tenuous, vague and uncertain that the verdict shocks the conscience of the court . . .. Trial Court Opinion, 4/24/20, at 11-12. As discussed above, we give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is not against the weight of the evidence. In this matter, we discern no abuse of discretion by the trial court in arriving at its conclusion that the verdict of guilt did not shock the conscience. In reaching its conclusion, the trial court relied on numerous pieces of credible and uncontested evidence that cannot be dismissed as tenuous, vague, or uncertain; namely, Matthews’ admission that he had smoked marijuana thirty minutes prior to the traffic stop, the smell of marijuana in his car and on his person, the appearance of ashes on his shirt, two failed field drug recognition ARIDE tests, physical indicators of intoxication observed by Trooper Petrosky, the marijuana and half burnt marijuana cigar found in his car, and lab results indicating THC in his blood. Given the evidence of record supporting the -9- J-S41013-20 verdict, we cannot conclude that the judgment is manifestly unreasonable or the result of partiality, prejudice, bias or ill will. Matthews’ reliance under Palmer is also unavailing. Palmer did not involve a challenge to the weight of the evidence. Nor did Palmer involve a conviction under 75 Pa.C.S.A. § 3802(d)(2) for an individual under the influence of marijuana. Instead, Palmer involved a challenge to the sufficiency of the evidence supporting a conviction for alcohol-related DUI under 75 Pa.C.S.A. § 3731(a). In any event, the Palmer Court specifically held that Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving. Palmer, 751 A.2d at 228 . Thus, even if Matthews was not driving erratically or unsafely, Palmer undermines his argument that the verdict was contrary to the weight of the evidence because he failed two drug recognition ARIDE tests. Further, while Trooper Petrosky may not have been trained as a certified drug recognition expert, he was nevertheless competent to closely observe Matthews’ behavior, demeanor, and inability to perform drug recognition ARIDE tests, all of which led him to request laboratory tests for the detection of controlled substances in Matthews’ blood. See Commonwealth v. Griffith, 32 A.3d 1231 , 1240 (Pa. 2011) (holding that the evidence was - 10 - J-S41013-20 sufficient to establish a conviction under section 3802(d)(2)). Matthews stipulated at trial that the laboratory tests did, in fact, detect THC in Matthews’ blood, as the officer suspected. Moreover, our Supreme court has declined to impose a requirement for expert testimony to establish a conviction under section 3802(d)(2). See Griffith, 332 A.3d at 1238-39. Indeed, in interpreting section 3802(d)(2), the Court specifically ruled that “[t]his provision by its plain text does not require that a drug be measured in the defendant’s blood, nor does it specify any particular manner by which the Commonwealth is required to prove that the defendant was under the influence of a drug.” Id. at 1239. Thus, the Commonwealth was not required to present an expert to interpret or explain the lab results, or their bearing upon Matthews’ level of impairment. Finally, the fact that the court, sitting as fact-finder, acquitted Matthews of a moving violation entitles him to no relief. Pennsylvania courts have long recognized that acquittals may not be interpreted as specific factual findings with regard to the evidence, as an acquittal does not definitively establish that the fact-finder was not convinced of a defendant’s guilt. Moore, 103 A.3d at 1246. Rather, it has been the understanding of the courts of this Commonwealth that an acquittal may merely show lenity on the fact-finders’ behalf. Id. Accordingly, Matthews’ weight challenge merits no relief. Judgment of sentence affirmed. Judge McLaughlin joins the memorandum. - 11 - J-S41013-20 Judge Strassburger files a concurring memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 - 12 -
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http://www.pacourts.us/assets/opinions/Superior/out/J-S48016-20m - 104620285121009884.pdf
J-S48016-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CHRISTOPHER FAUST : : Appellant : No. 1254 EDA 2020 Appeal from the PCRA Order Entered May 27, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002079-2008 BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J. MEMORANDUM BY KING, J.: FILED DECEMBER 1, 2020 Appellant, Christopher Faust, appeals pro se from the order entered in the Delaware County Court of Common Pleas, which dismissed his petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We vacate and remand for the appointment of counsel. The relevant facts and procedural history of this case are as follows. On February 24, 2008, Appellant shot at three men, killing one of them and seriously injuring another. On September 9, 2010, at the conclusion of a bench trial, the court found Appellant guilty of third-degree murder, attempted murder, and related offenses. For the third-degree murder conviction, the trial court sentenced [Appellant] to seventeen to forty years’ incarceration, with the first five years of the sentence served ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. J-S48016-20 as a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712(a). Additionally, for the attempted murder conviction, the trial court sentenced [Appellant] to five to ten years’ incarceration, which was also a mandatory minimum sentence pursuant to § 9712(a). Therefore, [Appellant’s] aggregate sentence was twenty-two to fifty years’ imprisonment followed by a four-year probationary sentence. [Appellant] appealed. This Court affirmed [Appellant’s] convictions; the Supreme Court of Pennsylvania subsequently denied allowance of appeal. On May 21, 2014, [Appellant] filed, pro se, a timely PCRA petition. The PCRA court appointed counsel, who filed a “no merit” letter and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court later issued a notice of its intent to dismiss [Appellant’s] petition without a hearing and granted counsel’s petition to withdraw. [Appellant] filed a response, generally objecting to PCRA counsel’s “no-merit” letter. Nevertheless, the PCRA court dismissed Appellant’s petition without a hearing. [Appellant] timely appealed. Commonwealth v. Faust, No. 3386 EDA 2015, unpublished memorandum at 3-4 (Pa.Super. filed April 18, 2017). On April 18, 2017, this Court reversed the order denying PCRA relief in part, vacated the judgment of sentence, and remanded for resentencing on the third-degree murder and attempted murder convictions, pursuant to Alleyne v. United States, 570 U.S. 99 , 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013). Upon remand, the court appointed new counsel to represent Appellant. The court conducted the resentencing hearing on September 19, 2017. At the conclusion of the hearing, the court resentenced Appellant to seventeen (17) to thirty-five (35) years’ imprisonment for third-degree murder and a consecutive term of five (5) to ten (10) years’ imprisonment for -2- J-S48016-20 attempted murder. On October 3, 2017, counsel filed an untimely post-sentence motion on Appellant’s behalf. That same day, counsel filed a petition for leave to withdraw. The court conducted a hearing on the post-sentence motion on October 19, 2017. At the conclusion of the hearing, the court denied the post- sentence motion as untimely and without merit. In a separate order entered that same day, the court permitted counsel to withdraw. Appellant filed a pro se notice of appeal on October 30, 2017,2 which this Court quashed for lack of jurisdiction. Appellant subsequently filed a petition for allowance of appeal, which our Supreme Court denied on January 7, 2020. On March 2, 2020, Appellant filed a pro se PCRA petition, alleging ineffective assistance of prior counsel in conjunction with the resentencing proceedings. The petition also averred that Appellant remained indigent, and it explicitly requested the appointment of counsel. (See PCRA Petition, filed 3/2/20, at 8(B)). The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing on April 22, 2020. Appellant timely filed a pro se response to the Rule 907 notice, but the PCRA court dismissed his petition on May 27, 2020. Appellant timely filed a pro se notice of appeal on June 19, 2020. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and none was ____________________________________________ 2 On November 17, 2017, the court appointed new counsel to represent Appellant on appeal. (See Order, entered 11/17/17). -3- J-S48016-20 filed. Appellant raises one issue for our review: Whether the determination of the PCRA court was supported by the record. (Appellant’s Brief at 2). As a prefatory matter, Appellant’s current pro se status presents a question of whether he was effectively deprived of his right to counsel. “[W]hen an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first petition for post-conviction collateral relief.” Pa.R.Crim.P. 904(C) (emphasis added). While a PCRA petitioner does not have a Sixth Amendment right to assistance of counsel during collateral review, this Commonwealth, by way of procedural rule, provides for the appointment of counsel during a [petitioner’s] first petition for post conviction relief. Pursuant to our procedural rule, not only does a PCRA petitioner have the “right” to counsel, but also he has the “right” to effective assistance of counsel. The guidance and representation of an attorney during collateral review should assure that meritorious legal issues are recognized and addressed, and that meritless claims are foregone. Commonwealth v. Haag, 570 Pa. 289 , 307-08, 809 A.2d 271 , 282-83 (2002), cert. denied, 539 U.S. 918 , 123 S.Ct. 2277 , 156 L.Ed.2d 136 (2003) (internal citations and some quotation marks omitted). This rule-based right to counsel persists throughout the PCRA proceedings, even if the petition is untimely or the petition does not present a cognizable claim. Commonwealth v. Smith, 572 Pa. 572 , 818 A.2d 494 (2003). -4- J-S48016-20 “[A] successful first PCRA petition does not ‘reset the clock’ for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neither restored a petitioner’s direct appeal rights nor disturbed his conviction, but, rather, affected his sentence only.” Commonwealth v. McKeever, 947 A.2d 782 , 785 (Pa.Super. 2008). Nevertheless, a petitioner may file a PCRA petition asserting claims related to resentencing proceedings within one year of the date that the new judgment of sentence becomes final. See Commonwealth v. Lesko, 609 Pa. 128 , 177, 15 A.3d 345 , 374 (2011). Instantly, the court resentenced Appellant in 2017. Thereafter, Appellant was allowed to pursue a direct appeal and PCRA relief related to his resentencing. See id. See also McKeever, supra at 786 (explaining appellant had absolute constitutional right to appeal judgment of sentence entered after federal court’s grant of habeas corpus relief; in that appeal, appellant could raise issues pertaining to resentencing procedure only). As such, Appellant’s current petition effectively amounts to a “first” petition challenging his resentencing, and the PCRA court should have appointed counsel to assist Appellant. See Haag, supra; Pa.R.Crim.P. 904(C). Further, any assessment concerning the timeliness of Appellant’s current PCRA petition would be premature at this juncture given that Appellant has not enjoyed the assistance of counsel. See Smith, supra. See also Commonwealth v. Ramos, 14 A.3d 894 , 896 (Pa.Super. 2011) (reiterating -5- J-S48016-20 that although a PCRA petition may appear to be untimely and petitioner may appear to be ineligible for relief, “counsel … may be able to overcome both of those hurdles through an examination of all of the relevant circumstances”). Accordingly, we vacate the order dismissing Appellant’s current PCRA petition and remand this case for the appointment of counsel, or for a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9 , 713 A.2d 81 (1998), so that Appellant may appropriately waive his right to counsel. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 -6-
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http://www.pacourts.us/assets/opinions/Superior/out/J-S41002-20m - 104619767120964441.pdf
J-S41002-20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : V. : : : KEYON BERTRAND COWAN : : Appellant : No. 389 MDA 2020 Appeal from the Judgment of Sentence Entered January 23, 2020, in the Court of Common Pleas of Lancaster County, Criminal Division at No(s): CP-36-CR-0003930-2019. BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.* MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020 Keyon Bertrand Cowan appeals from the judgment of sentence imposed following the entry of his guilty pleas to possession of a small amount of marijuana, possession of drug paraphernalia, turning movements and required signals, and driving while operating privilege suspended.1 Additionally, Cowan’s appellate counsel has filed an application to withdraw from representation and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 , 744, (1967) (hereinafter the “Anders brief”). We grant counsel’s application, and affirm the judgment of sentence. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 See 35 P.S. §§ 780-113(a)(31), (32); 75 Pa.C.S.A. §§ 3334(a), 1543(a). J-S41002-20 The relevant factual and procedural history are summarized as follows. On June 25, 2019, Lancaster City police were conducting surveillance detail. During the detail, police observed a silver Buick Regal make multiple turn signal violations. They initiated a traffic stop. Cowan was the driver of the vehicle. During the course of the stop, Cowan was found to be in possession of a .9mm semi-automatic pistol, a clear plastic bag of marijuana, and a silver marijuana grinder containing marijuana residue. Police also determined that Cowan was operating the vehicle with a suspended driver’s license, and had a prior conviction for driving with a suspended license. The Commonwealth charged Cowan with multiple vehicle and drug offenses.2 On January 23, 2020, the trial court conducted a plea hearing at which Cowan was represented by counsel. Prior to the hearing, Cowan had executed a written guilty plea colloquy, which both Cowan and his counsel signed. Cowan also signed a Guilty Plea slip listing the charges to which he was pleading guilty, and a form entitled Acknowledgment of Post-Sentence Procedures Following Guilty Plea, which advised him of his appellate rights upon entering a guilty plea. During the hearing, Cowan admitted to the trial court that he was in possession of marijuana and drug paraphernalia on the ____________________________________________ 2 The Commonwealth also charged Cowan with firearms not to be carried without a license. However, that charge was eventually nolle prossed, as it was determined that Cowan had a valid license to carry the firearm. The Commonwealth also nolle prossed two additional counts of turning movements and required signals. -2- J-S41002-20 date in question. The trial court conducted a brief colloquy on the record before accepting Cowan’s guilty pleas to possession of a small amount of marijuana, possession of drug paraphernalia, turning movements and required signals, and driving while operating privilege suspended. At the conclusion of the hearing, the trial court imposed costs of prosecution and fines totaling $225. Cowan did not file a post-sentence motion. Cowan thereafter filed a timely notice of appeal. The trial court ordered Cowan to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, Cowan’s appellate counsel3 filed a timely statement of intent to file an Anders brief in lieu of a statement of errors complained of on appeal. The trial court then filed a statement in lieu of a Pa.R.A.P. 1925(a) opinion. In this court, Cowan’s appellate counsel filed an application to withdraw from representation and an Anders brief. Cowan did not retain independent counsel or file a pro se response to the Anders brief. Before we may consider the issues raised in the Anders brief, we must first consider counsel’s application to withdraw from representation. See Commonwealth v. Garang, 9 A.3d 237 , 240 (Pa. Super. 2010) (holding that, when presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to ____________________________________________ 3 In both the trial court and in this Court, Cowan received representation from the Office of the Public Defender. However, a different public defender represented Cowan at his plea hearing. -3- J-S41002-20 withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw from representation, counsel must do the following: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention. Commonwealth v. Edwards, 906 A.2d 1225 , 1227 (Pa. Super. 2006) (citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second requirement of Anders, i.e., the contents of an Anders brief, and required that the brief (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders requirements, it is then this Court’s responsibility “to conduct a simple review of the record to ascertain if there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266 , 272 (Pa. Super. 2018). -4- J-S41002-20 Here, appellate counsel has complied with each of the requirements of Anders. Counsel indicated that he conscientiously examined the record and determined that an appeal would be frivolous. Further, counsel’s Anders brief comports with the requirements set forth by our Supreme Court in Santiago. Finally, the record includes a copy of the letter that counsel sent to Cowan stating counsel’s intention to seek permission to withdraw, and advising Cowan of his immediate right to proceed pro se or retain alternate counsel and file additional claims. Accordingly, counsel has complied with the procedural requirements for withdrawing from representation, and we will conduct an independent review to determine whether Cowan’s appeal is wholly frivolous. In the Anders Brief, counsel raises the following issues: 1. Was Cowan’s guilty plea entered knowingly, voluntarily, and intelligently? 2. Did the trial court impose an illegal sentence? 3. Did plea counsel render ineffective assistance to Cowan? Anders Brief at 8-11.4 ____________________________________________ 4 In the Anders brief, counsel framed the sole issue for our determination as whether he should be permitted to withdraw from representation on the basis of frivolity; however, the brief’s argument section identifies three discrete issues that Cowan wished to raise and explains why counsel concluded the issues were frivolous. Thus, we have identified the issues discussed by counsel in the brief. -5- J-S41002-20 The first issue raised in the Anders brief concerns the validity of Cowan’s guilty plea, and whether it was entered knowingly, voluntarily, and intelligently. When determining whether a defendant has entered into a guilty plea knowingly, voluntarily, and intelligently, the trial court should consider the oral and written plea colloquy and off-the-record communications between the defendant and counsel. Commonwealth v. Allen, 732 A.2d 582 , 588- 89 (Pa. 1999). During a guilty plea, the trial court must conduct an inquiry with a defendant on the record which addresses the following: (1) does the defendant understand the nature of the charges; (2) is there a factual basis for the plea; (3) does the defendant understand his right to a jury trial; (4) does the defendant understand he is presumed innocent until proven guilty; (5) is the defendant aware of the permissible range of sentences; and (6) is the defendant aware the judge is not bound by the terms of any plea agreement. See Commonwealth v. Muhammad, 794 A.2d 378 , 383 (Pa. Super. 2002); see also Commonwealth v. Hallock, 722 A.2d 180 , 182 (Pa. Super. 1998); Pa.R.Crim.P. 590 Comment. The express purpose for conducting this colloquy is to ensure a defendant understands the nature of the charges to which he is pleading guilty and the rights he is waiving by pleading guilty. Commonwealth v. Carter, 656 A.2d 463 , 465 (Pa. 1995). The questioning of a defendant may be conducted by the judge, an attorney for either party, or by written colloquy. Commonwealth v. Harris, 589 A.2d 264 , 265 (Pa. Super. 1991). If the written colloquy is used, it must -6- J-S41002-20 be completed and signed by the defendant and made part of the record. Id. It must also be supplemented by some oral explanation. Id. In the Anders brief, counsel indicates that Cowan wished to challenge his guilty plea because he did not realize that, by pleading guilty to the possessory charges filed against him, he would lose his license to carry a firearm. Counsel indicates that he reviewed the notes of testimony from the guilty plea hearing and determined that there was a factual basis for the guilty plea, and that it was entered knowingly, voluntarily, and intelligently by Cowan. Counsel points out that Cowan completed and signed a written guilty plea colloquy. Counsel further points out that Cowan responded affirmatively when asked by the trial court if he possessed marijuana and drug paraphernalia on the date in question. Counsel additionally notes that the trial court confirmed that Cowan had reviewed the guilty plea colloquy with counsel and that he signed the guilty plea colloquy. Counsel indicates that the trial court also conducted a brief colloquy on the record to confirm that Cowan fully understood his rights, and that it was his decision to plead guilty. Finally, counsel notes that Cowan signed the Guilty Plea slip, indicating that he understood he was entering a plea of guilty to the charges. For these reasons, counsel submits that Cowan’s challenge to his guilty plea is wholly frivolous. Our review of the record discloses that Cowan completed a written guilty plea colloquy covering all necessary topics for a valid plea colloquy. The -7- J-S41002-20 written colloquy indicated the nature of the charges against Cowan, and specified the maximum fines and penalties associated with each offense. Guilty Plea Colloquy, 1/23/20, at 2. Cowan indicated that he had reviewed with his counsel a sentencing guidelines worksheet prepared by the district attorney. Id. at 2. Cowan indicated that he understood his right to a jury trial, and that he is presumed innocent until proven guilty. Id. at 1. Cowan further indicated that he understood that the trial judge would not be bound by the terms of any plea agreement. Id. Cowan also signed a Guilty Plea slip indicating the charges to which he was pleading guilty, and an Acknowledgment of Post Sentence Procedures Following Guilty Plea, which advised him of his appellate rights. Our review further confirms that the trial court conducted a brief colloquy on the record wherein Cowan admitted that he was in possession of marijuana and paraphernalia on the date in question. N.T., 1/23/20, at 3. The trial court informed Cowan that the maximum sentences and fines that could be imposed for the charges of possession of a small amount of marijuana and possession of drug paraphernalia were one year and one month in prison, and $3,000 in fines. Id. at 3.5 In response, Cowan indicated that he ____________________________________________ 5 The written guilty plea colloquy indicates that the maximum aggregate sentence that the trial court could impose for all four charges pending against Cowan was one year and seven months in prison, and the maximum fines for all four charges totaled $4,025.00. See Written Guilty Plea Colloquy, 1/23/20, at 2. -8- J-S41002-20 understood the penalties and fines that could be imposed by the court for the possessory offenses. Id. At the hearing, defense counsel informed the court that Cowan had a previous conviction for driving while operating privileges suspended, but noted that there was no mandatory jail time for that offense. Id. at 4. The trial court inquired whether Cowan had reviewed all of his rights with his counsel, and whether it was his signature on the written guilty plea colloquy and appellate rights form. Id. Cowan answered in the affirmative to each of the trial court’s questions. Id. The trial court then asked Cowan if he had any questions regarding his rights, and Cowan responded in the negative. Id. at 3-4. Based on our review of the record, we find no basis to conclude that Cowan’s guilty pleas were entered unknowingly, involuntarily, or unintelligently. That the written and oral colloquies did not specifically advise Cowan that he would lose his license to carry a firearm as a result of his guilty pleas to the possessory drug charges is not a basis for relief. As our Supreme Court has explained, a defendant’s lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea. See Commonwealth v. Abraham, 62 A.3d 343 , 350 (Pa. 2012); see also Commonwealth v. Barndt, 74 A.3d 185 , 193 (Pa. Super. 2013) (holding that collateral consequences are irrelevant to the determination of whether a guilty plea was entered voluntarily or knowingly); Commonwealth v. Brown, 680 A.2d 884 , 887 (Pa. Super. 1996) (holding that the appellate -9- J-S41002-20 courts of the Commonwealth consistently have ruled that a defendant’s lack of knowledge of collateral consequences to the entry of a guilty plea does not render a plea unknowing or involuntary). “[T]the distinction between a direct and collateral consequence of a guilty plea . . . [is] the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control.” Commonwealth v. Abraham, 62 A.3d 343 , 350 (Pa. 2012) (quoting Commonwealth v. Leidig, 956 A.2d 399 , 404 (2008)). Importantly, “the collateral consequences of pleading guilty include loss of the right to vote, enlist in the armed services, own a firearm, hold a fishing license, inherit property, or practice a particular profession.” Id. at 350 n.8 (emphasis added); see also Commonwealth v. Duffey, 639 A.2d 1174 , 1176 (Pa. 1994). As the loss of Cowan’s license to own a firearm was a collateral consequence of his guilty pleas over which the trial court had no control, his ignorance of this consequence has no bearing on the validity of his pleas. Thus, we agree with counsel that this issue is wholly frivolous. The second issue raised in the Anders brief concerns the legality of Cowan’s sentence. Counsel indicates that, upon Cowan’s arrest for the charges in question, Cowan spent ten days less than two months in jail, until he posted bail. Counsel notes that Cowan had a prior record score of zero. - 10 - J-S41002-20 Counsel maintains that he reviewed Cowan’s sentence, and finds no basis to challenge its legality.6 Based on the record before us, we agree with counsel’s conclusion that any challenge to the legality of Cowan’s sentence would be frivolous. Although the trial court could have sentenced Cowan to more than one and one-half years in prison for his offenses, the court imposed no incarceration. The trial court could have imposed fines up to $4,025; however, the trial court merely assessed Cowan with the costs of prosecution and imposed fines on two of his offenses totaling $225.00. Given these considerations, we discern no basis to challenge the legality of the sentence imposed. Accordingly, we agree with counsel that any such challenge would be frivolous. The final issue raised in the Anders brief concerns Cowan’s belief that his plea counsel was ineffective for failing to advise him that a collateral consequence of his guilty pleas to possession of a small amount of marijuana and possession of drug paraphernalia would be the loss of his license to carry a firearm. Counsel concluded that this issue was frivolous because claims of ineffective assistance of counsel are generally not reviewed on direct appeal, ____________________________________________ 6 We observe that Cowan did not preserve any challenge to the discretionary aspects of his sentence at the time of sentencing or in a post-sentence motion. See Commonwealth v. McAfee, 849 A.2d 270 , 275 (Pa. Super. 2004) (holding that a challenge to the discretionary aspects of a sentence must be raised in a post-sentence motion or during the sentencing proceedings, and absent such efforts, any such challenge is waived). Thus, any challenge to the discretionary aspects of Cowan’s sentence could not be pursued in this direct appeal. - 11 - J-S41002-20 and are to be deferred to collateral review under the Post Conviction Relief Act (“PCRA”). “[A]s a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 813 A.2d 726 , 738 (Pa. 2002). Our Supreme Court has recognized two very limited exceptions to the general rule: (1) in extraordinary circumstances where claims of trial counsel’s ineffectiveness are apparent from the record and immediate consideration best serves the interests of justice and/or; (2) where there is good cause shown and review of the claim is preceded by a waiver of the right to seek collateral review. Commonwealth v. Holmes, 79 A.3d 562 , 563-64 (Pa. 2013). More recently, our Supreme Court also adopted a third exception, which requires “trial courts to address claims challenging trial counsel’s performance where the defendant is statutorily precluded from obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d 352 , 361 (Pa. 2018) (holding that that where a defendant is statutorily ineligible for PCRA review as a result of a sentence that imposed only a fine, due process requires that an exception be made to the general rule barring review of collateral claims on direct review). Here, the first two exceptions to the general deferral rule do not apply. Plea counsel’s ineffectiveness is not apparent from the record, and Cowan never executed a waiver of his PCRA rights. With respect to the third exception, Cowan is not eligible for PCRA relief because his sentence consisted - 12 - J-S41002-20 of only fines and costs. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible for PCRA relief, the petitioner must, in part, “plead and prove by a preponderance of the evidence that the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted . . . currently serving a sentence of imprisonment, probation or parole for the crime”). Thus, the third exception may apply in this case. However, the three exceptions to the general deferral rule contemplate the allowance of trial court discretion to entertain ineffectiveness claims prior to collateral review when an exception applies. See Delgros, 183 A.3d at 360-61; see also Holmes, 79 A.3d at 576 (stating, “unitary review effectively advances a PCRA attack to the post-verdict stage”). Thus, it is for trial court, in the first instance, to decide ineffectiveness claims in those limited instances in which an exception applies. Notably, in Delgros, the defendant was convicted of receiving stolen property, but was not sentenced to any term of imprisonment, probation, or parole. Instead, the trial court imposed a fine and ordered him to pay restitution. 183 A.3d at 345. The defendant obtained new counsel and filed a post-sentence motion challenging, inter alia, trial counsel’s infectiveness. Id. The trial court declined to review the ineffectiveness claims under the Grant general deferral rule, and on direct appeal, this Court affirmed on the basis that neither of the Holmes exceptions applied. Our Supreme Court vacated the judgment of sentence and remanded for the trial court to consider - 13 - J-S41002-20 the ineffectiveness claims raised in the defendant’s post-sentence motion. Id. at 363. In so doing, the Court adopted the third exception to the Grant general deferral rule, requiring trial courts to address claims challenging trial counsel’s performance where the defendant is statutorily precluded from obtaining subsequent PCRA review. Id. at 361. Here, unlike in Delgros, Cowan did not raise a claim of plea counsel ineffectiveness before the trial court. We have found no authority allowing for appellate review of an ineffectiveness claim when the defendant has failed to raise it before the trial court in the first instance. See Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Rather, our Supreme Court has repeatedly emphasized the importance of allowing meaningful consideration of an ineffectiveness claim by the trial court prior to appellate review. In Grant, in which our Supreme Court announced the general deferral rule, the Court observed that appellate review is impractical without an adequate record in the court below. See Delgros, 183 A.3d 360 -61. We therefore conclude that, in the instant case, any claim of plea counsel’s ineffectiveness is waived, and cannot be addressed by this Court.7 ____________________________________________ 7 Even if Cowan had preserved his ineffectiveness claim, he would not be entitled to relief. The appellate courts of this Commonwealth have consistently held that plea counsel is not constitutionally ineffective for failing to advise a defendant of the collateral consequences of a guilty plea. Commonwealth v. Abraham, 62 A.3d 343 , 350 (Pa. 2012) (citing - 14 - J-S41002-20 Finally, as required by Anders, we have independently reviewed the record in order to determine whether there are any non-frivolous issues present in this case. Our independent review of the record discloses no other non-frivolous issues that Cowan could raise that his appellate counsel overlooked. See Dempster, supra. Having concluded that there are no meritorious issues, we grant counsel’s application to withdraw and affirm Cowan’s judgment of sentence. Application to withdraw granted. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 ____________________________________________ Commonwealth v. Frometa, 555 A.2d 92 , 93 (Pa. 1989) (noting that defense counsel need only advise a criminal defendant of the direct consequences of pleading guilty)). As explained above, the loss of the right to own a firearm is a collateral consequence of pleading guilty. See Abraham, 62 A.3d at 350 n.8. Thus, Cowan’s plea counsel was not ineffective for failing to advise Cowan that, by pleading guilty to the possessory drug charges, he would lose his license to carry a firearm. - 15 -
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2020-12-01 18:12:37.812176+00
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http://www.pacourts.us/assets/opinions/Superior/out/J-S37036-20m - 104620150120997063.pdf
J.S37036/20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES B. CANADY, : No. 972 EDA 2018 : Appellant : Appeal from the PCRA Order Entered March 14, 2018, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0015102-2007 BEFORE: SHOGAN, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2020 James B. Canady pro se appeals the March 14, 2018 order, entered in the Court of Common Pleas of Philadelphia County, dismissing his first petition1 filed pursuant to the Post Conviction Relief Act (“PCRA”).2 After careful review, we affirm. The underlying facts of this case are set forth in the PCRA court’s Rule 1925(a) opinion and need not be repeated here. (See PCRA court Rule 1925(a) opinion, 4/30/18 at 2-3.) The PCRA court set forth the following procedural history: [Appellant], James Canady, was convicted[,] on March 31, 2009, of first-degree murder, robbery, graded as a felony of the first degree, criminal 1 The PCRA court also granted PCRA counsel’s motion to withdraw. 2 See 42 Pa.C.S.A. §§ 9541-9546. J. S37036/20 conspiracy, and possessing instruments of crime,[3] generally, following a jury trial before [the trial] court and was sentenced March 31, 2009, to life imprisonment followed by a consecutive sentence of twenty-two and one half to forty-five years[’] incarceration on the other charges. [Appellant] thereafter filed a notice of appeal, to the Superior Court, which[,] on March 28, 2011, affirmed the judgment of sentence. (1192 EDA 2009). On July 9, 2013, the Pennsylvania Supreme Court vacated [appellant]’s life without parole sentence and remanded the matter for re-sentencing in accordance with the holding of Commonwealth v. Batts, 66 A.2d 286 (Pa. 2013). Commonwealth v. Canady, 71 A.3d 248 (Pa. 2013). The Supreme Court, however, did not vacate the sentences imposed on the other charges and at [appellant]’s sentencing hearing, [the trial] court ordered that the aggregate sentence of twenty-two and one-half years’ incarceration previously imposed be served consecutive to the sentence of thirty-five years to life imposed on the first degree murder conviction. [Appellant] appealed to the Superior Court following the re-imposition of sentence and on May 24, 2016, the Superior Court affirmed the judgment of sentence. (2373 EDA 2015). [Appellant] thereafter unsuccessfully sought review by the Pennsylvania Supreme Court, which[,] on October 6, 2016,[4] denied his petition for allowance of appeal. On December 30, 2016, [appellant] timely filed a pro se petition pursuant to the Post-Conviction Act, (PCRA) 42 Pa.C.S.[A.] §9541 et seq., following which counsel was appointed to represent him. On February 13, 2018, appointed counsel filed a “no-merit” letter in accordance with Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), and a 3 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively. 4The order denying appellant’s petition for allowance of appeal is dated October 5, 2016. -2- J. S37036/20 motion to withdraw as counsel. [The PCRA] court carefully reviewed the entire record and upon determining that [appellant] was not entitled to relief, it sent [appellant] Pa.R.Crim.P. 907 notice of intent to dismiss. On March 13, 2018,[5] [the [PCRA] court, having again reviewed the entire record, issued an order dismissing [appellant]’s PCRA petition and granting appointed counsel’s motion to withdraw. Subsequent thereto, [appellant] filed a timely notice of appeal. PCRA court Rule 1925(a) opinion, 4/30/18 at 1-2 (extraneous capitalization omitted). Appellant was not ordered to file a concise statement of errors on appeal pursuant to Pa.R.A.P. 1925(b). However, the PCRA court filed a Rule 1925(a) opinion. The following issues are raised by appellant on appeal: 1. Was PCRA counsel ineffective for failing to properly raise, preserve, and challenge the trial court’s imposition of a de facto life sentence in violation of Miller v Alabama[6] and Commonwealth v. Batts?[7] 2. Did the PCRA court err by failing to provide appellant additional time to respond to PCRA counsel’s no merit/Finley[8] letter and the court’s Rule 907 notice prior to dismissal of his PCRA petition in violation of his right to due process? 5 The order of March 13, 2018, dismissed appellant’s PCRA petition and granted PCRA counsel’s motion to withdraw. However, the order failed to advise appellant of his appellate rights. Therefore, on March 14, 2018, the PCRA court filed a second order which advised appellant of his appellate rights. 6 Miller v. Alabama, 567 U.S. 460 (2012). 7 Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017). 8 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). -3- J. S37036/20 Appellant’s brief at 4 (extraneous capitalization omitted; some bolding and italics added). In reviewing the denial of a PCRA petition, this court’s standard of review is limited “to whether the PCRA court’s determination is supported by evidence of record and whether it is free of legal error.” Commonwealth v. Pew, 189 A.3d 486 , 488 (Pa.Super. 2018). When reviewing the denial of a PCRA petition without an evidentiary hearing, we “determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing.” Commonwealth v. Burton, 121 A.3d 1063 , 1067 (Pa.Super. 2015) (citation omitted), affirmed, 158 A.3d 618 (Pa. 2017). “[W]hen there are no disputed factual issues, an evidentiary hearing is not required . . . .” Commonwealth v. Morris, 684 A.2d 1037 , 1042 (Pa. 1996). We review the PCRA court’s legal conclusions de novo. See Burton, 121 A.3d at 1067. Appellant first contends that PCRA counsel was ineffective for failing to challenge his re-sentence as a de facto life sentence. Initially, we note that appellant first raises PCRA counsel’s ineffectiveness in the instant appeal. [A]bsent recognition of a constitutional right to effective collateral review counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of appeal has been taken from the underlying PCRA matter. A petitioner’s failure to raise an ineffectiveness of counsel claim after receiving Rule 907 notice results in waiver of the claim. -4- J. S37036/20 Commonwealth v. Smith, 121 A.3d 1049 , 1054 (Pa.Super. 2015) (citations and quotation marks omitted), appeal denied, 136 A.3d 981 (Pa. 2016). Thus, appellant has waived his ineffectiveness claim. Even if we were to address the claim, no relief is merited. A claim that has been previously litigated is not cognizable for collateral relief. 42 Pa.C.S.A. § 9544(a)(2). The PCRA defines a matter as having been previously litigated when “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” Id. “[T]he fact that a petitioner presents a new argument or advances a new theory in support of a previously litigated issue will not circumvent the previous litigation bar.” Commonwealth v. Burkett, 5 A.3d 1260 , 1270 (Pa.Super. 2010), citing Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super. 2000). Commonwealth v. Roane, 142 A.3d 79 , 94 (Pa.Super. 2016). In the present case, the issue of whether appellant’s sentence was, in effect, a de facto life sentence was previously raised and addressed by this court. On August 8, 2015, appellant filed a timely direct appeal, from his resentencing. The trial court ordered appellant to file a Rule 1925(b) statement and appellant timely complied. Therein, appellant asserted that “[t]he [trial c]ourt’s aggregate sentence violates Miller v. Alabama, supra[,] and Commonwealth v. Batts, supra, since it essentially amounts to a life sentence.” Commonwealth v. Canady, No. 2373 EDA 2015, appellant’s Pa.R.A.P. 1925(b) statement, 8/12/15 at unnumbered 3. The trial court addressed the issue as follows: -5- J. S37036/20 In his final claim, [appellant] argues that the aggregate sentence imposed upon him should be vacated because it is essentially a life sentence, in violation of Miller, supra, and Batts, supra. It is submitted that no relief should be granted on this claim because a life sentence without the possibility of parole was not imposed on defendant. The sentence imposed upon him will provide him with an opportunity for parole and thus, does not facially violate the holdings of the above cases. Moreover, the sentence reflected a consideration of the numerous factors heretofore discussed and manifests an attempt to protect the public from [appellant]’s violent proclivities, which [the trial c]ourt experienced during [appellant]’s first sentencing hearing. In Commonwealth v. Mouzon, 828 A.2d 1126 , 1128, (P[a.]Super. 2003), the Superior Court determined that maximum, consecutive sentences on five robbery convictions, two conspiracy convictions, and one possessing an instrument of crime convictions were not manifestly excessive, even though the sentence represented essentially a life sentence for a defendant who was only 21. In affirming the judgment of sentence the Superior Court reasoned that the sentence was commensurate with the crime, that the sentencing court witnessed [appellant] during the proceedings, knew his history, and considered his prospects of rehabilitation. Instantly, while [appellant], unlike Mouzon, was a juvenile when he committed the crimes herein, he was already a hardened criminal who exhibited his true character at the previous sentencing. Regardless, as noted above, [the trial c]ourt did consider all salient factors in deciding upon a sentence. No abuse of discretion occurred here and it is suggested that this claim be rejected. Trial court Rule 1925(a) opinion, 8/24/15 at 7-8 (some citations omitted). In his appellate brief, filed at No. 2373 EDA 2015, appellant phrased the issue as follows: -6- J. S37036/20 Is the appellant entitled to a remand for resentencing since his sentence of 35 years to life is excessive, not reflective of his character, history and condition and[,] therefore, manifestly unreasonable? Commonwealth v. Canady, No. 2373 EDA 2015, appellant’s brief at 4. Appellant argued that: [the] sentence imposed fails to properly balance the factors set forth in Miller v. Alabama, 567 U.S. [460], 132 S.Ct. 2455 (2012) and Commonwealth v. Batts, supra. The Court erred when it refused to impose the sentences, 35 years to life and 22½ to 45 years, concurrently rather than consecutively. The way in which the sentences are presently structured will result in the appellant having to serve 57½ years[’] incarceration before he can be even be considered by the Parole Board for release. The [trial c]ourt’s aggregate sentence violates Miller v. Alabama, supra[,] and Commonwealth v. Batts, supra, since it essentially amounts to a life sentence. Id. at 20-21 (some bolding and italics added); see also id. at 23-24. In this court’s memorandum, a panel of this case reached the following conclusion: Appellant claims that because he will be required to serve 57½ years before he can be considered for parole, the aggregate sentence violates Miller and Batts II because it is essentially a life sentence. (Appellant’s brief at 21, Pa.R.A.P. 2119(f) statement.) Appellant’s reliance on those cases is misplaced, and the proposition he claims the cases stand for is misguided. Neither case concerned the imposition of consecutive sentences for multiple crimes committed by a juvenile. Both cases, however, concerned the requisite considerations a sentencing court must take when a juvenile faces a life sentence for murder. Thus, neither case stands for the proposition that a sentencing court is prohibited from sentencing a juvenile to life imprisonment, as appellant would like -7- J. S37036/20 us to believe. Contrary to appellant’s contention, then, the sentence imposed does not violate Miller or Batts II. In summary, because appellant has advanced no plausible argument as to why his sentencing is unreasonable considering the nature of his crime and the length of his sentence, he has failed to raise a substantial question. Commonwealth v. Canady, No. 2373 EDA 2015, unpublished memorandum at 12-13 (Pa.Super. filed May 24, 2016). Appellant filed a timely petition for allowance of appeal, which was denied by our supreme court on October 5, 2016. See Commonwealth v. Canady, No. 246 EAL 2016. Appellant did not seek certiorari. We, therefore, find that appellant’s issue has been previously litigated, having been decided by a previous panel of this court, and is not cognizable under the PCRA. Accordingly, no relief can be granted. Lastly, appellant maintains that the PCRA court violated his due process rights by not granting him additional time to respond to the PCRA court’s Rule 907 notice prior to the dismissal of his PCRA petition. Appellant claims that when he received the PCRA court’s Rule 907 notice, he wrote the PCRA court judge “a letter requesting additional time to respond to the [n]otice.” (Appellant’s brief at 17.) The certified record does not reflect that appellant’s request was filed of record. Assuming, arguendo, that the PCRA court received and denied appellant’s request, the PCRA court’s Rule 907 notice checked the following -8- J. S37036/20 box as the reason for the dismissal: “The issues raised in the [PCRA] petition filed by your attorney are without merit.” (Pa.R.Crim.P. 907 notice, 6/25/19.) Appellant states that he “simply wrote [the PCRA court] a letter requesting additional time to respond to the [n]otice.” (Appellant’s brief at 17.) Further, appellant’s only explanation of what specific issue he would have raised in a Rule 907 response is “a claim of ineffective assistance of PCRA counsel, or to correct the “defects” in his petition, or amend his petition to include a challenge to the Court’s imposition of a de facto life sentence in violation of Miller and Batts.” (Id. at 18.) Appellant has not shown prejudice because, as noted above, the issue appellant seeks to raise was previously litigated. We find the PCRA court did not err or abuse its discretion in denying appellant additional time to respond to the Rule 907 notice. See Commonwealth v. Sanabria, 2020 WL 1673787 *2 (Pa.Super. April 6, 2020) (unpublished memorandum) (finding PCRA court did not err in dismissing request for additional time to respond to Rule 907 notice). Therefore, appellant’s claim is without merit. For the reasons given above, and having discerned no error of law, we affirm the order of the PCRA court. Order affirmed. -9- J. S37036/20 Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 12/01/2020 - 10 -
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2020-12-01 18:12:38.042234+00
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http://www.pacourts.us/assets/opinions/Superior/out/J-S41005-20m - 104619787121009250.pdf
J-S41005-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT WAYNE BROWN : : Appellant : No. 1972 MDA 2019 Appeal from the Order Entered November 6, 2019, in the Court of Common Pleas of Cumberland County, Criminal Division at No(s): CP-21-CR-0003516-2010. COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT WAYNE BROWN : : Appellant : No. 1973 MDA 2019 Appeal from the Order Entered November 6, 2019, in the Court of Common Pleas of Cumberland County, Criminal Division at No(s): CP-21-CR-0000029-2011. BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.* MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020 Robert Wayne Brown appeals pro se from the order denying his motion for post-conviction DNA testing filed pursuant to section 9543.1 of the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S41005-20 Brown’s convictions are the result of forty-one charges he faced at two different criminal dockets. Previously, this Court has detailed the pertinent facts and procedural history as to each docket as follows: Brown’s convictions arise from his sexual abuse of his grandchildren and step grandchildren. On December 1, 2010, Brown was babysitting his granddaughters, T.W. (age three) and K.W. (age four). When T.W. and K.W.’s mother, T.N. went to Brown’s home in Newville, Pennsylvania to pick up the girls, she observed Brown with his pants unbuttoned and unzipped. T.W. was standing between Brown’s legs with her pants undone, and K.W., was facing the wall with her pants around her ankles. T.N. immediately removed the children from Brown’s home, and took them to Carlisle Regional Medical Center. At the hospital, Joey Wisner, PA, examined the children and noticed three “warty lesions” near K.W.’s upper lip. Wisner took external mouth swabs from both children, which Pennsylvania State Police Corporal Bryan Henneman took into evidence along with K.W.’s pants. Laboratory testing later revealed the presence of seminal fluid on K.W.’s pants, and the swab from K.W.’s mouth contained spermatozoa. However, due to the breakdown and mixing of genetic material, the lab could not conclusively match those samples with Brown’s DNA. On the same evening, Corporal Henneman went to Brown’s residence, identified himself, and asked to speak with Brown. Corporal Henneman was dressed in formal business attire. Corporal Henneman told Brown that he was not under arrest. Brown agreed to speak with Corporal Henneman, and invited him inside the home. Corporal Henneman digitally recorded the audio of his ensuing conversation with Brown. In that conversation, Brown admitted that K.W. and T.W. had touched his penis on multiple occasions. He also stated that both K.W. and T.W. had performed oral sex on him, and that he had performed oral sex on K.W. on one occasion. Brown told Corporal Henneman that he had a wart-like growth on [his] penis, but did not know what it was. At the conclusion of the interview, Corporal Henneman left Brown’s home. -2- J-S41005-20 On December 2, 2010, Corporal Henneman arrested Brown and charged him with two counts each of involuntary deviate sexual intercourse (“IDSI”), IDSI with a child less than thirteen years of age, unlawful contact with a minor, sexual assault, indecent assault, indecent assault of a child less than thirteen years of age, and corruption of minors. Those charges were filed and docketed at CP-21-CR-3516- 2010. Commonwealth v. Brown, 135 A.3d 652 (Pa. Super. 2015), unpublished memorandum at 2-4 (footnote and citation to the record omitted). This Court summarized the pertinent facts and procedural history regarding the remaining docket number as follows: On December 6, 2010, Brown’s step grandchildren, [siblings] J.H. and M.H, after hearing about Brown’s arrest and the sexual abuse allegations against him, reported to [the] police that Brown had sexually assaulted them as well. On that same day, Corporal Henneman interviewed J.H. and M.H. J.H. told Corporal Henneman that, on multiple occasions when he was approximately ten to twelve years old, Brown performed oral sex on J.H. Brown also forced J.H. to perform oral sex on him. J.H. told Corporal Henneman that Brown had inserted his fingers, various sex toys, and his penis into J.H.’s anus. M.H. corroborated her brother’s allegations. She told Corporal Henneman that, on multiple occasions when she was approximately eight to ten years old, Brown performed oral sex on her. Brown also forced M.H. to perform oral sex on him. Brown penetrated M.H.’s vagina and anus with his fingers and with various sex toys. M.H. also told Corporal Henneman that, on one occasion, Brown inserted his penis into her anus. On December 9, 2010, Corporal Henneman filed a second criminal complaint, charging Brown with rape of a child, IDSI, IDSI with a child less than thirteen years of age, indecent assault, aggravated indecent assault, unlawful contact with a minor, and corruption of minors. Those charges were filed and docketed at CP-21-CR-29- 2011. -3- J-S41005-20 Brown, unpublished memorandum at 4-5 (footnotes omitted). Prior to trial, the Commonwealth filed notice of its intent to seek mandatory minimum sentences if a jury convicted Brown of several of the sex offenses. The Commonwealth consolidated the two dockets for trial, which began on August 20, 2012. Two days later, the jury convicted Brown on all of the charges. On April 4, 2013, the trial court sentenced Brown to an aggregate term of 40 to 120 years of imprisonment. Brown did not file a direct appeal, however, after he filed a PCRA petition, his right to appeal was reinstated nunc pro tunc. On appeal, Brown’s counsel filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that Brown’s appeal was wholly frivolous. This Court disagreed, concluding that Brown’s aggregate sentence included mandatory minimums, which this Court in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), had declared unconstitutional. See Brown, unpublished memorandum at 15-19. Thus, this Court vacated Brown’s judgment of sentence and remanded for resentencing. On August 23, 2016, our Supreme Court denied the Commonwealth’s petition for allowance of appeal. Commonwealth v. Brown, 145 A.3d 723 (Pa. 2016). Following remand, at resentencing, the trial court expressly stated that it had not imposed any mandatory minimums as part of its original aggregate sentence. See Resentencing Order, 11/15/16, at 1. The court therefore reimposed its 40 to 120 year sentence. Brown filed a timely appeal to this -4- J-S41005-20 Court in which he challenged the discretionary aspects of his sentence. In an unpublished memorandum filed on August 23, 2017, we concluded that Brown’s failure to file a post-sentence motion waived his sentencing claim. We therefore affirmed his judgment of sentence. Commonwealth v. Brown, 175 A.3d 1107 (Pa. Super. 2017). On February 5, 2018, our Supreme Court denied Brown’s petition for allowance of appeal. Commonwealth v. Brown, 181 A.3d 284 (Pa. 2018). On August 26, 2019, Brown filed the petition at issue, titled a “Petition to Retest DNA.” In his one-page petition, Brown requested that the DNA in his case be retested pursuant to Section 9543.1 of the PCRA because “certain results were deemed inconclusive,” and the newly amended statute allowed for testing “with Newer Technology that could produce [substantially] more Accurate and Probative results.” Petition, 8/26/19, at 1. The Commonwealth filed a response. By order entered November 5, 2019, the PCRA court denied the petition. On October 7, 2019, Brown filed an amended petition, in which he specified the evidence to be retested and asserted his innocence. This pro se appeal followed.1 Both Brown and the PCRA court have complied with Pa.R.A.P. 1925. ____________________________________________ 1No violation of our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) occurred in this case. Brown filed separate notices of appeal for each docket, and, although he included both docket numbers on each appeal, this fact is no longer a basis for quashal. See generally, Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc). -5- J-S41005-20 Brown raises the following issues: 1) Did [Brown] state his request under [Section] 9543.1 clearly? 2) Was the original DNA test inconclusive? 3) Does [Brown] have [the] right to DNA testing? 4) Did [Brown’s] trial counsel consult [an] expert in the case or seek comparative testing? 5) Did [Brown] receive[a] raw data report and DNA original test results with his discovery? 6) Did the [victims] in the case make a complaint or statement saying they were abused? 7) Are there conflicting statements and interviews and property records regarding evidence collected? 8) Did the trial court [err] in denying motion to test DNA? Brown’s Brief at 2 (excess capitalization omitted). As noted by the Commonwealth, only the issues involving the DNA testing are properly before this Court. See Commonwealth’s Brief at 6-10. See also Commonwealth v. Walsh, 125 A.3d 1248 , 1252 (Pa. Super. 2015) (explaining, “Section 9543.1 cannot be used to raise extraneous issues not related to DNA testing in an effort to avoid the one-year [PCRA] time bar”). Thus, we limit our review to the denial of Brown’s petition for DNA testing. Our standard of review is well settled: Generally, the trial court’s application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law. When reviewing an order denying a motion for post-conviction DNA testing, this Court determines whether the [applicant] satisfied the statutory requirements listed in Section 9543.1. We can affirm the court’s decision if there is any -6- J-S41005-20 basis to support it, even if we rely on different grounds to affirm. Walsh, 125 A.3d at 1252-53. Petitions for post-conviction DNA testing are governed by statute. Section 9543.1 of the PCRA provides, in pertinent part: § 9543.1. Postconviction DNA testing (a) Motion.— (1) An individual convicted of a criminal offense in a court of this Commonwealth may apply by making a written motion to the sentencing court at any time for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction. (2) The evidence may have been discovered either prior to or after the applicant’s conviction. The evidence shall be available for testing as of the date of the motion. If the evidence was discovered prior to the applicant’s conviction, the evidence shall not have been subject to the DNA testing requested because the technology for testing was not in existence at the time of the trial or the applicant’s counsel did not seek testing at the time of the trial in a case where the verdict was rendered on or before January 1, 1995, or the evidence was subject to testing, but newer technology could provide substantially more accurate and substantively probative results, or the applicant’s counsel sought funds from the court to pay for the testing because he was indigent and the court refused the request despite the client’s indigency. (3) A request for DNA testing under this section shall be by written petition and shall be filed with the clerk of courts of the judicial district where the sentence is imposed. -7- J-S41005-20 (4) DNA testing may be sought at any time if the motion is made in a timely manner and for the purpose of demonstrating the applicant’s actual innocence and not to delay the execution of sentence or administration of justice. 42 Pa.C.S.A. § 9543.1(a). Section 9543.1(c)(3), provides, in pertinent part, that, when filing a motion for post-conviction DNA testing, an applicant must present a prima facie case demonstrating that the: (i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant’s conviction and sentencing, and (ii) DNA testing of the specific evidence, assuming exculpatory results, would establish: (A) the applicant’s actual innocence for which the applicant was convicted[.] 42 Pa.C.S.A. § 9543.1(c)(3). Finally, as provided in Section 9543.1(d)(2)(i), the PCRA “court shall not order the testing requested in a motion under subsection (a) if, after review of the record of the applicant’s trial, . . . the court determines that there is no reasonable probability, that the testing would produce exculpatory evidence that . . . would establish the applicant’s actual innocence of the offense for which the applicant was convicted[.]” 42 Pa.C.S.A. § 9543(d). Here, the PCRA court found that Brown failed completely to establish a prima facie case in his one-page motion. Initially, the court explained: The facts leading to the obtaining of the original samples alone were incriminatory before any testing. Specifically, -8- J-S41005-20 [Brown] was caught in his home office with his pants undone and a four year old child, who[se] pants were also undone, standing between his legs and with a three year old child in the same room standing facing a wall with her pants down to her ankles and those children were immediately taken to a hospital where the samples were collected and subsequently tested for DNA. Now, [Brown] untimely requests the DNA evidence used in his cases be re-tested; without legal foundation he claims newer DNA technology can produce substantially more accurate and probative results. PCRA Court Opinion, 1/3/20, at 1-2. The PCRA court then cited the relevant provisions of Section 9543.1 and concluded: Instantly, [Brown] fails to meet the requirements of subsection (a)(2) because his convictions are well after January 1, 1995, DNA testing was available and performed in his case, and he provides no explanation how DNA testing now is any different than the testing performed less than ten (10) years ago. The one sample collected was too diluted for viable DNA results and the second could not exclude [Brown] from the pool of sample genetic material found. Further, after considering the credible testimony of the eyewitness who discovered [Brown] in the act of sexually assaulting his grandchildren, and review of the record of [Brown’s] trial, there is no reasonable probability that the requested testing would produce exculpatory evidence establishing [Brown’s] actual innocence. [Brown’s] request is merely to delay the execution of a lawful sentence and administration of justice. As [Brown’s] appeal is meritless, it should be denied. Id. at 3. -9- J-S41005-20 Our review of the record supports the PCRA court’s conclusions that Brown’s post-conviction DNA testing is untimely and that he cannot meet the requirements of Section 9543.1(a). Section 9543.1(d)(iii) requires the applicant to make a timely request for DNA testing. “In analyzing timeliness for purposes of Section 9543(d)(1)(iii), the court must consider the facts of each case to determine whether the applicant’s request for post-conviction DNA testing is to demonstrate his actual innocence or to delay the execution of sentence or administration of justice.” Walsh, 125 A.3d at 1255 (citation omitted). Here, our review of testimony from Brown’s trial amply supports the PCRA court’s conclusion that the purpose of Brown’s petition was only to delay further the execution of his sentence. An applicant for post-conviction DNA testing “does not meet the requirements of § 9543.1(a)(2) [if] the technology existed at the time of trial, the verdict was rendered after January 1, 1995, and the court never refused funds for the testing.” Commonwealth v. Perry, 959 A.2d 932 , 938-39 (Pa, Super. 2008) (citation omitted). We agree with the PCRA court that all of these conditions are satisfied in this case. As noted by the PCRA court, Brown was convicted well after 1995, and DNA testing was actually performed in his case. In essence, Brown mistakenly believes the newly amended section’s reference to “newer technology” permits him to seek retesting without establishing a prima facie case. - 10 - J-S41005-20 Finally, we agree with the PCRA court that, given the eyewitness testimony regarding the sexual offenses, as well as Brown’s own statements to Corporal Brenneman, see supra, “there is no reasonable probability that the requested testing would produce exculpatory evidence establishing [Brown’s] actual innocence.” PCRA Court Opinion, 1/3/20, at 3. In sum, our review of the record supports the PCRA court’s conclusion that Brown’s petition for post-conviction DNA testing is untimely, and Brown failed to allege a prima facie case to support the DNA test he requested. We therefore affirm the order denying the petition. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2020 - 11 -
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http://www.pacourts.us/assets/opinions/Superior/out/J-S06035-20m - 104620145120996509.pdf
J. S06035/20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LEWIS BROWN, : No. 596 EDA 2018 : Appellant : Appeal from the Judgment of Sentence, October 25, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0003952-2012 BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2020 Lewis Brown appeals nunc pro tunc from the October 25, 2012 judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction of aggravated assault and simple assault.1 After careful review, we affirm. The following procedural history can be gleaned from the certified record: The Commonwealth charged appellant with, inter alia, aggravated assault and simple assault as the result of an incident that took place on February 15, 2012, at the Curran Fromhold Correctional Facility in Philadelphia. On October 25, 2012, appellant pleaded guilty to the aforementioned offenses. After accepting appellant’s guilty plea, the trial 1 18 Pa.C.S.A. §§ 2702(a)(3) and 2701(a), respectively. J. S06035/20 court sentenced appellant to a term of 2-4 years’ imprisonment, to be followed by one year of probation. Appellant did not file any post-sentence motions, nor did he file a direct appeal. On December 20, 2012, appellant filed a pro se petition pursuant to the Post-Conviction Relief Act (“PCRA”).2 On November 5, 2013, the PCRA court appointed David Rudenstein, Esq., to represent appellant. Attorney Rudenstein filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), on January 25, 2017, along with an accompanying motion to withdraw as counsel. The PCRA court filed a notice of intent to dismiss appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 on April 6, 2017. On June 19, 2017, upon learning that trial counsel failed to file a direct appeal despite being requested to do so, Attorney Rudenstein filed an amended PCRA petition on appellant’s behalf. On January 22, 2018, the PCRA court reinstated appellant’s direct appellate rights nunc pro tunc. Appellant filed a timely notice of appeal on February 21, 2018. The trial court ordered appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant timely complied. The trial court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a). Appellant raises the following issue for our review: 2 42 Pa.C.S.A. §§ 9541-9546. -2- J. S06035/20 Should [appellant] be entitled to withdraw his plea and go to trial or, in the alternative, have his case remanded to the trial/PCRA court for a full evidentiary hearing, where his guilty plea was not rendered in a knowing, intelligent and voluntary fashion and where his trial attorney failed to file a requested appeal? Appellant’s brief at 3 (extraneous capitalization omitted). In his brief, appellant raises the issue of whether his guilty plea was knowing, intelligent, and voluntary; however, he does so by way of a claim of ineffective assistance of counsel. (See appellant’s brief at 6-10.) Put another way, appellant avers that his guilty plea was involuntary due to ineffective assistance on the part of his trial counsel. As a general rule, ineffective assistance of counsel claims can only be raised on collateral review. Commonwealth v. Holmes, 79 A.3d 562 , 576 (Pa. 2013). Even in cases where nunc pro tunc relief is granted, this court has stated that ineffective assistance of counsel claims may be raised by filing another PCRA petition following the disposition of the nunc pro tunc direct appeal. Commonwealth v. Fransen, 986 A.2d 154 , 158 (Pa.Super. 2009), citing Commonwealth v. Liston, 977 A.2d 1089 , 1094 (Pa. 2009). Our supreme court identified three exceptions to the general rule prohibiting the consideration of ineffective assistance of counsel claims on direct appeal. As summarized by our supreme court, the first two exceptions to the general rule are as follows: The first exception [] affords trial courts discretion to entertain ineffectiveness claims in extraordinary circumstances where a discrete claim of trial counsel -3- J. S06035/20 ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interest of justice. [Holmes, 79 A.3d at 563.] The second exception [] gives trial courts discretion to address ineffectiveness claims on post-sentence motions and direct appeal if there is good cause shown and the defendant knowingly and expressly waives his entitlement to seek subsequent PCRA review of his conviction and sentence. Id. at 564. Commonwealth v. Delgros, 183 A.3d 352 , 360 (Pa. 2018). In Delgros, our supreme court recognized a third exception, holding that a defendant may raise an ineffective assistance of counsel claim in cases where he or she would be statutorily precluded from raising an ineffectiveness claim on collateral review. Id. at 361. The Delgros court, however, limited its holding to cases in which the defendant has raised ineffective assistance of counsel claims in post-sentence motions. Id. at 362-363; see also Commonwealth v. Whitehead, 2020 WL 119661 at *2 (Pa.Super. filed January 10, 2020) (unpublished memorandum). The instant case is distinguishable from Delgros. In Delgros, our supreme court was considering a case where the defendant was convicted of receiving stolen property and was sentenced to pay a fine and restitution. Delgros, 183 A.3d at 354. The defendant filed post-sentence motions alleging ineffective assistance of counsel. Id. Based on the plain language of the PCRA, the defendant would never be eligible for relief under the PCRA because he would never serve a sentence of imprisonment, probation, or -4- J. S06035/20 parole as a result of his conviction of receiving stolen property. See 42 Pa.C.S.A. § 9543(a)(1)(i). Here, appellant was sentenced to 2-4 years’ imprisonment on October 25, 2012. On December 20, 2012, appellant filed a timely PCRA petition. The PCRA court took no final action on appellant’s petition until January 22, 2018, when it reinstated appellant’s direct appellate rights nunc pro tunc. While appellant’s PCRA petition was pending before the PCRA court, his October 25, 2012 sentence expired, thereby statutorily precluding appellant from collateral relief.3 Therefore, based on the unique procedural posture of this case, we shall review appellant’s ineffective assistance of counsel claim on its merits. On appeal, appellant contends that his guilty plea was not voluntary because his trial counsel “did not adequately consult with him” or provide discovery. (Appellant’s brief at 6.) 3 We recognize that appellant was not eligible for PCRA relief at the time the PCRA court granted appellant’s petition to reinstate his direct appellate rights nunc pro tunc. See 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Rivera, 802 A.2d 629 , 633 (Pa.Super. 2002) (holding that a petition to reinstate direct appellate rights nunc pro tunc must be raised within a PCRA petition). This court has noted that the eligibility requirements under the PCRA do not raise a jurisdictional question. Commonwealth v. Fields, 197 A.3d 1217 , 1223 (Pa.Super. 2018) (en banc) (plurality), appeal denied, 206 A.3d 1025 (Pa. 2019); see also Commonwealth v. Kirwan, 221 A.3d 196 , 199 n.9 (Pa.Super. 2019). Because appellant’s eligibility for relief, or lack thereof, does not implicate the jurisdiction of this court, and because the PCRA court’s order granting appellant’s petition to reinstate his direct appellate rights nunc pro tunc is not before us, we shall proceed to review appellant’s issue on its merits. -5- J. S06035/20 We presume counsel is effective. Commonwealth v. Cox, [] 983 A.2d 666 , 678 ([Pa.] 2009). To overcome this presumption, “a [defendant] must show underlying claim has arguable merit, counsel’s actions lacked any reasonable basis, and counsel’s actions prejudiced the [defendant].” Commonwealth v. Escobar, 70 A.3d 838 , 841 (Pa.Super. 2013) (citing Commonwealth v. Cox, [] 983 A.2d 666 , 678 ([Pa.] 2009).) “Prejudice means that, absent counsel’s conduct, there is a reasonable probability the outcome of the proceedings would have been different.” Id. A claim will be denied if the [defendant] fails to meet any one of these prongs. See [Commonwealth v.] Jarosz, 152 A.3d [344,] 350 [(Pa.Super. 2016)] (citing Commonwealth v. Daniels, [] 963 A.2d 409 , 419 ([Pa.] 2009)). “[A] criminal defendant’s right to effective counsel extends to the plea process, as well as during trial.” [Commonwealth v.] Wah, 42 A.3d [335,] 338 [(Pa.Super. 2012)] (citations omitted). ... “[A]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused [the defendant] to enter an involuntary or unknowing plea.” [Commonwealth v.] Fears, 86 A.3d [795,] 806-807 [(Pa. 2014)] (citation omitted). “Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” Wah, 42 A.3d at 338-3[3]9 (citations omitted). “[T]o establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Commonwealth v. Barndt, 74 A.3d 185 , 192 (Pa.Super. 2013) (citations and internal quotation marks omitted). This is not a stringent requirement. Id. The reasonable probability test refers to “a probability sufficient to undermine confidence in the outcome.” Id. (citations omitted). -6- J. S06035/20 Commonwealth v. Velazquez, 216 A.3d 1146 , 1149-1150 (Pa.Super. 2019). Further, a defendant must satisfy all three prongs of the test for ineffective assistance of counsel as set forth in Velazquez and Escobar. “A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.” Commonwealth v. Gribble, 863 A.2d 455 , 460 (Pa. 2004); see also Commonwealth v. Morrison, 878 A.2d 102 , 104-105 (Pa.Super. 2005) (en banc), appeal denied, 887 A.2d 1241 (Pa. 2005). In his brief, appellant, through his counsel, admits the following: The undersigned well recognizes that [appellant] did participate in an on-the-record guilty plea colloquy, with [a] written guilty plea colloquy provided to the judge. If the colloquy is looked at upon its face, [appellant’s] claims would seem to not be meritorious. However, [appellant] has still claimed that trial counsel was ineffective and that he was pressured/coerced into taking the open plea. Appellant’s brief at 6 (extraneous capitalization and citation omitted). At no point, however, does appellant aver that but for his plea counsel’s errors and alleged ineffectiveness, he would not have pleaded guilty and would instead have insisted on going to trial. See Barndt, 74 A.3d at 192 . Accordingly, appellant has not satisfied the prejudice prong of the test set forth in Velazquez, and his claim must be rejected. See Gribble, 863 A.2d at 460. Judgment of sentence affirmed. Lazarus, J. and McLaughlin, J concur in the result. -7- J. S06035/20 Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 12/01/2020 -8-
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http://www.pacourts.us/assets/opinions/Superior/out/J-S40012-20m - 104620268121008132.pdf
J-S40012-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA BENTON : : Appellant : No. 3432 EDA 2019 Appeal from the Judgment of Sentence Entered December 4, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009508-2016 BEFORE: SHOGAN, J., KING, J., and COLINS, J.* MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2020 Appellant, Joshua Benton, appeals nunc pro tunc from the judgment of sentence entered on December 4, 2017, in the Philadelphia County Court of Common Pleas. After review, we affirm. The trial court summarized the relevant facts and procedural history of this matter as follows: I. FACTUAL HISTORY On January 14, 2016, then 61-year-old Charles Jackson was riding the Broad Street line subway returning home from a doctor’s appointment. Notes of Testimony (“N.T.”)3, 08/21/2017, at 12-13. Due to his bad knees, Mr. Jackson was unable to stand for an extended amount of time. Id. at 13. The 21-year-old, athletically built Appellant was already seated on board when Mr. Jackson approached and asked him to move his small green bag which was occupying a seat on the subway. Id. at 13, 54. Appellant responded by telling Mr. Jackson to not “touch my shit.” ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S40012-20 Id. at 14. Appellant then stood up in front of Mr. Jackson and said “get the fuck out of my face.” Id. When Appellant stepped aside, Mr. Jackson then slid into the seat, previously occupied by Appellant, by the window. Id. Appellant then sat directly behind Mr. Jackson. Id. at 31. At some point, Appellant moved next to the outer seat, where he continued to curse at Mr. Jackson. Id. at 15. As Mr. Jackson turned his head Appellant began “pummeling” his face. Id. at 16. Appellant beat him with both hands and struck him multiple times. Id. at 17. Mr. Jackson’s head swung left and right like a “bobblehead.” Id. Eventually, Appellant stopped hitting Mr. Jackson and walked to the rear of the subway car. Mr. Jackson was bleeding profusely from his nose, his foot as well as his eyes were hurting, and his knee was swollen. Id. at 20. He also received a lump on his head which he still has to this day. Id. 3 The [t]rial [c]ourt heard the testimony of Mr. Jackson, Sgt. Horn, and the Appellant and watched the video of the incident. This Court found the Appellant incredible in his testimony. Mr. Jackson testified he “got some pride” and rose to confront Appellant but found that he was unable to steady himself and stumbled. Id. at 18. Whilst he was bent over and trying to straighten his body, Appellant re-engaged Mr. Jackson and started to beat him in the face again, knocking him down. Id. at 18, 21, 32, 39. Due to his sore knees, Mr. Jackson could not quickly move. Id. at 18. Once again Appellant ran to the other side of the train, and, again, Mr. Jackson turned to face him. Id. For a third time, Appellant approached Mr. Jackson and beat him in his head and face. Id. During the altercation, Mr. Jackson lost his shoe and went to retrieve it. At that moment, Appellant ran off the subway but not before taunting Mr. Jackson by stating, “look at you, you’re all bleeding and everything.” Id. at 19. The victim had injuries to his nose as well as his mouth and he was covered in blood. Id. at 43. Mr. Jackson received so many injuries to his face that he could not recall if he was additionally injured in the second and third attack. Id. at 21. Because of the amount of blood, the conductor stopped the train. Id. at 23. Mr. Jackson was taken to Hahnemann Hospital where he was treated and released. Id. at 23-24. For the next couple of days, Mr. Jackson was unable to breathe until a large blood clot discharged from his nose. Id. at 25. -2- J-S40012-20 II. PROCEDURAL HISTORY Appellant was held for court on October 11, 2016. On August 21, 2017, Appellant proceeded via non-jury trial and was found guilty of Aggravated Assault and related charges.[1] On December 14, 2017, he was sentenced to 6 (six) to 12 (twelve) years of state incarceration.[2] Post[-]sentence motions were not filed, and no direct appeal was taken. On November 29, 2018, Appellant filed a Petition for Post-Conviction Relief. Appellant’s direct appellate rights were reinstated by agreement on November 4, 2019. A timely appeal was filed on December 2, 2019. Trial Court Opinion, 6/8/20, at 2-3. Both the trial court and Appellant complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following issue: A. Did the trial court err, when it found that there was sufficient evidence to prove, beyond a reasonable doubt, that Appellant … was guilty of the criminal offense of aggravated assault (f1) (18 Pa.C.S.A. § 2702 (a) (1)), as [Appellant] did not cause the complainant to suffer serious bodily injury, nor did [Appellant] attempt to cause serious bodily injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life? Appellant’s Brief at 2 (full capitalization omitted). ____________________________________________ 1 The trial court adjudged Appellant guilty of aggravated assault, simple assault, recklessly endangering another person, harassment, and disorderly conduct. 18 Pa.C.S. §§ 2702(a)(1), 2701(a), 2705, 2709(a)(1), and 5503(a)(1), respectively. At trial, Appellant admitted his guilt with respect to simple assault, recklessly endangering another person, harassment, and disorderly conduct. N.T. (Trial), 8/21/17, at 10-11. The sole issue at trial was whether Appellant possessed the requisite intent necessary to establish the crime of aggravated assault. Id. 2 The trial court sentenced Appellant solely on the aggravated assault conviction. N.T. (Sentencing), 12/4/17, at 24. -3- J-S40012-20 We review a challenge to the sufficiency of the evidence under the following parameters: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder[’s]. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Estepp, 17 A.3d 939 , 943-944 (Pa. Super. 2011) (citation omitted). The crime of aggravated assault is set forth at 18 Pa.C.S. § 2702 and provides, in relevant part, as follows: (a) Offense defined.--A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.] 18 Pa.C.S. § 2702(a)(1). Serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent -4- J-S40012-20 disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301. Appellant contends that the evidence was insufficient to support his conviction of aggravated assault. Appellant’s Brief at 11. The thrust of Appellant’s argument is that the Commonwealth failed to prove Appellant caused or attempted to cause serious bodily injury. Id. At trial, the Commonwealth conceded that the victim did not sustain serious bodily injury. N.T. (Trial), 8/21/17, at 47. Rather, the Commonwealth’s theory of the case was that Appellant intended to and did attempt to cause Mr. Jackson serious bodily injury as defined in 18 Pa.C.S. § 2702(a). Id. at 47-48. An “‘attempt’ is found where an ‘accused who possesses the required, specific intent acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another.’” Commonwealth v. Fortune, 68 A.3d 980 , 984 (Pa. Super. 2013) (quoting Commonwealth v. Gray, 867 A.2d 560 , 567 (Pa. Super. 2005)). “An intent ordinarily must be proven through circumstantial evidence and inferred from acts, conduct or attendant circumstances.” Id. (citation omitted). The Pennsylvania Supreme Court in Commonwealth v. Alexander, 477 Pa. 190 , 383 A.2d 887 (1978)[,] created a totality of the circumstances test to be used to evaluate whether a defendant acted with the necessary intent to sustain an aggravated assault conviction. In Commonwealth v. Matthew, 589 Pa. 487 , 909 A.2d 1254 (2006), that Court reaffirmed the test and articulated the legal principles which apply when the Commonwealth seeks to prove aggravated assault by showing -5- J-S40012-20 that the defendant attempted to cause serious bodily injury. Specifically, the Court stated, in relevant part, that: Alexander created a totality of the circumstances test, to be used on a case-by-case basis, to determine whether a defendant possessed the intent to inflict serious bodily injury. Alexander provided a list, albeit incomplete, of factors that may be considered in determining whether the intent to inflict serious bodily injury was present, including evidence of a significant difference in size or strength between the defendant and the victim, any restraint on the defendant preventing him from escalating the attack, the defendant’s use of a weapon or other implement to aid his attack, and his statements before, during, or after the attack which might indicate his intent to inflict injury. Alexander, at 889. Alexander made clear that simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault. Matthew, 909 A.2d at 1257 (citation and quotation marks omitted). The Court indicated that our case law does not hold that the Commonwealth never can establish a defendant intended to inflict bodily injury if he had ample opportunity to inflict bodily injury but did not inflict it. Rather, the totality of the circumstances must be examined as set forth by Alexander. Id. Fortune, 68 A.3d at 984 . Moreover, because direct evidence of the assailant’s intent is often unavailable, intent to cause serious bodily injury may be shown by the circumstances surrounding the attack. Commonwealth v. Bruce, 916 A.2d 657 , 661 (Pa. Super. 2007) (citing Commonwealth v. Caterino, 678 A.2d 389 (Pa. Super. 1996)). In determining whether the attendant circumstances prove intent, the fact finder is free to conclude “the accused intended the natural and probable consequences of his actions to result -6- J-S40012-20 therefrom.” Id. (citing Commonwealth v. Rosado, 684 A.2d 605 , 608 (Pa. Super. 1996)). Circumstances deemed probative in this inquiry have included evidence that the assailant was disproportionately larger or stronger than the victim, that the assailant had to be restrained from escalating his attack, that the assailant had a weapon or other implement to aid his attack, or that the assailant made statements before, during, or after the attack which might indicate his intent to inflict further injury. Commonwealth v. Alexander, 477 Pa. 190 , 194, 383 A.2d 887 , 889 (1978). Depending on the circumstances, “even a single punch may be sufficient.” [Commonwealth v. ]Dailey, 828 A.2d [356] at 360 [(Pa. Super. 2003)]. See also Alexander, 477 Pa. at 194 , 383 A.2d at 889 (“We hasten to add that a simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault.”). Bruce, 916 A.2d at 661-662 . In finding that the evidence was sufficient to prove that Appellant attempted to cause Mr. Jackson serious bodily injury, the trial court explained as follows: Here, the testimony by Mr. Jackson and the video evidence shown at trial, clearly evidenced that Appellant knew what he was doing when he intentionally, repeatedly struck Mr. Jackson with his fists. When Mr. Jackson asked Appellant to move his bag so that he may sit; Appellant told him “don’t touch my shit and get the fuck out of my face.” N.T. at 14. Appellant then purposefully moves to the seat directly behind Mr. Jackson. Id. After a few moments, he positions himself in the aisle next to the open seat he previously occupied and where Mr. Jackson was now seated. Id. at 15. Whilst standing next to the seated victim, he used both of his hands to “pummel his face.” Id. at 16. By Appellant’s own admission, Mr. Jackson, whom he was much faster than, never laid hands on him. Id. at 55. This [c]ourt believes that these facts alone would be enough to prove aggravated assault beyond a reasonable doubt. However, -7- J-S40012-20 the assault continued, and Appellant re-engaged Mr. Jackson not once, but two more times. During each of these times, Mr. Jackson was in a prone position when Appellant repeatedly struck the victim in the face and head. Id. at 18, 21, 32, 39. Indeed, to add insult to Mr. Jackson’s injury, whilst disembarking from the subway, Appellant, in what this [c]ourt deemed to be him taking pride in the assaults and bragging about his “accomplishment,” boasted “look at you, you’re all bleeding and everything.” Id. at 19. The combination of the perceived disrespect by Appellant, the repeated threats of violence, the obvious disparity in age, strength, speed, and health, along with words that more violence would follow, elevated the attack on this elderly victim to the level of an aggravated assault. These facts satisfy the elements with sufficient evidence to support the conviction. See Commonwealth v. Bruce, 916 A.2d 657 , 663 (Pa. Super. 2007) (evidence was sufficient to show that the defendant intended to cause serious bodily injury to victim, so as to support conviction for aggravated assault, even though defendant used his bare hands to strike victim.) Trial Court Opinion, 6/8/20, at 6-7. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we agree with the trial court’s conclusion. The record reflects that Appellant and Mr. Jackson were in the confines of a train car. N.T. (Trial), 8/21/17, at 54. Appellant was an athletically built, twenty-one year-old man. Id. Conversely, the victim in this case, Mr. Jackson, was in his sixties and had physical limitations including diabetes and problems with his knees that prevented him from standing and caused him to move slowly. Id. at 13, 18-20. Appellant waited for Mr. Jackson to turn his back, and he attacked Mr. Jackson from behind causing injuries to Mr. Jackson’s head and face. Id. at 16. Appellant ceased his attack, but he then chose to assault the -8- J-S40012-20 victim again and struck Mr. Jackson repeatedly in the face and head. Id. at 18-20. Appellant again stopped hitting the victim; however, Appellant then re-engaged and began punching the already-injured victim in the head and face a third time. Id. In sum, Appellant, who was younger, stronger, and faster, attacked Mr. Jackson from behind. Appellant assaulted Mr. Jackson three separate times, and on each occasion, Appellant repeatedly beat Mr. Jackson about the head, eyes, nose, and mouth. Under the totality of the circumstances, the evidence satisfied the elements of attempt—Appellant possessed the specific intent and acted in a manner constituting a substantial step toward causing serious bodily injury. Fortune, 68 A.3d at 984 . Accordingly, we conclude the evidence was sufficient to prove Appellant guilty of aggravated assault. 18 Pa.C.S. § 2702(a)(1). For the reasons set forth above, Appellant is entitled to no relief. Therefore, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/01/2020 -9-
4,638,550
2020-12-01 18:12:58.389659+00
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http://www.tsc.state.tn.us/sites/default/files/goffgregoryopn.pdf
11/30/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON October 6, 2020 Session STATE OF TENNESSEE v. GREGORY GOFF Appeal from the Circuit Court for Madison County No. 19-465 Roy B. Morgan, Jr., Judge ___________________________________ No. W2020-00153-CCA-R3-CD ___________________________________ A Madison County jury convicted the defendant, Gregory Goff, of especially aggravated robbery and aggravated assault for which he received an effective thirty-five-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s jury instruction regarding self-defense. After a thorough review of the record, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined. Jessica F. Butler, Assistant Public Defender, Tennessee District Public Defenders Conference, Franklin, Tennessee (on appeal) and Jeremy B. Epperson, Assistant Public Defender, Jackson, Tennessee (at trial), for the appellant, Gregory Goff. Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Facts and Procedural History On March 8, 2019, the defendant attacked the victim, Marshall DeBerry, with a hatchet as the two conversed at a bus stop located near the In Town Apartments in Jackson, Tennessee. After doing so, the defendant took $13.00 and a $20.00 bus card from the victim’s pocket. Apart from Joe Taylor, a mutual acquaintance of both the victim and the defendant, no one else was in the area at the time of the attack. For his actions, a Madison County grand jury indicted the defendant for especially aggravated robbery and aggravated assault. Tenn. Code Ann. §§ 39-13-102(a)(1)(A), -403. The defendant proceeded to trial where the following facts emerged. The victim used crack cocaine on the morning of March 8, 2019, before meeting Mr. Taylor at approximately 2:00 p.m. As the two talked, the defendant, whom the victim did not know, joined them. The victim soon left the group in order to buy alcohol at a nearby liquor store. Prior to purchasing a $2.00 bottle of vodka, the victim had $15.00 and a $20.00 bus pass in his front jacket pocket. Thus, when he left the liquor store and rejoined the defendant and Mr. Taylor, the victim had $13.00 and the bus pass in his pocket. The victim, the defendant, and Mr. Taylor proceeded to drink the bottle of vodka after which the defendant asked the victim for $5.00. The victim responded that he “didn’t have it” and began walking away. As he did, the defendant approached the victim from behind and hit the victim in the head three times with a hatchet. At the time, the victim did not know what type of weapon the defendant used as he had not seen the defendant with a weapon prior to the attack. However, the victim recalled the defendant’s fist was clenched and it appeared the defendant was holding something inside his jacket sleeve. The victim described the attack in further detail, stating the defendant first hit the left side of the back of his head. The defendant then immediately hit the right side of the back of the victim’s head. Finally, the defendant hit the victim’s ear, causing the victim to fall and briefly lose consciousness. When the victim woke, he was still on the ground, his head was burning, and he felt dazed. The victim saw Mr. Taylor “holding [the defendant] back” and shouting “why you hit him.” As the defendant, who was holding a hatchet with a wooden handle, attempted to break free of Mr. Taylor’s grasp, the victim fled the scene. The victim testified that he did not see the defendant take $13.00 or his bus pass, but both items were missing after the attack and he believed the defendant took them. The victim stated though the attack happened quickly, he feared for his life. After leaving the area, the victim stopped Officer Will Seward of the Jackson Police Department and reported he was attacked by a black male wearing black clothing. The victim did not report any missing property to Officer Seward at the time. At trial, Officer Seward described his interactions with the victim, noting that when the victim approached him, the victim “was bleeding from his head from a large laceration.” Officer Seward photographed the victim’s injuries, copies of which were entered into evidence. In addition to the injuries, Officer Seward also observed signs of intoxication on the victim, including the smell of alcohol, and noted the victim admitted to drinking though he did not disclose any drug use. Officer Seward prepared a police report within which he described the victim as “extremely intoxicated.” However, at trial, Officer Seward explained he did not know the victim’s level of intoxication at the time of the crimes, noting the victim did not have -2- slurred speech but his eyes were glassy and the victim was “a little unsteady, but he also had a head wound.” The victim testified that he did not consider himself “extremely intoxicated” at the time as he was no longer high and only had one drink of vodka before the crimes. Due to his injuries, EMS responded to the scene and provided first aid to the victim. The victim initially refused medical attention and did not go to the hospital because he was angry. After approximately four hours, however, the victim experienced significant bleeding and ultimately went to the hospital where he remained overnight. The victim received nearly thirty staples to his head and ear and suffered a skull fracture as a result of three separate lacerations. At the time of trial, the victim stated he is able to function and maintain employment though he still experiences pain and occasional dizziness and his head remains scarred and disfigured in areas. The victim also acknowledged a 2015 theft conviction. Regarding the investigation, Officer Seward testified he was unable to identify a suspect on March 8, 2019. However, the investigation progressed after Investigator Joey Williams of the Jackson Police Department interviewed and obtained written statements from both the victim and Mr. Taylor. During the interviews, the victim provided a description of his attacker as a “black male, stocky build, 40 to 50 years of age,” and Mr. Taylor stated the defendant carried a hatchet. As a result, Investigator Williams developed the defendant as a suspect, created a photographic lineup which included the defendant’s picture, and presented the lineup to the victim. The victim identified the defendant as his attacker and on the back of the lineup, wrote, “that’s who attacked me with a hatchet. He took $13.00 and my $20.00 bus card.” Investigator Williams testified the victim was “very positive” in his identification of the defendant. The photographic lineup was entered into evidence. Investigator Williams did not locate the weapon during the investigation but obtained the victim’s medical records, certified copies of which were entered into evidence. Investigator Williams acknowledged the records described the victim’s level of pain as “moderate” and indicated the victim “admits to ETOH use today.” Investigator Williams did not know to what “ETOH use” referred but noted the victim was forthcoming about his alcohol and cocaine use on the day of the incident. Mr. Taylor also testified. On March 8, 2019, he and the defendant drank gin together before they encountered the victim around 2:00 p.m. After their initial gathering, Mr. Taylor and the defendant went to the liquor store where Mr. Taylor bought more alcohol. Mr. Taylor and the defendant returned to the area of the In Town Apartments and reunited with the victim. At the time, Mr. Taylor was the only person drinking and did not recall if the victim had a bottle of vodka that was passed among the men. -3- While his back was turned to the victim and the defendant, Mr. Taylor heard a “commotion” that “sounded like something like you just picked up and just dropped it.” When he turned around, Mr. Taylor saw the victim lying on the ground surrounded by a pool of blood. The defendant was standing over the victim, and no one else was in the area at the time. Mr. Taylor “got in between” the defendant and the victim, and the defendant yelled to the victim, “Get your hands out your pocket.” Mr. Taylor believed the defendant “felt threatened . . . as if [the victim] might have had something in his pocket.” However, Mr. Taylor did not see the victim with a weapon and did not see the victim threaten the defendant. After separating the two, Mr. Taylor told the defendant to leave the victim alone, and the three men dispersed. Mr. Taylor did not know why the defendant attacked the victim, noting he did not witness a disagreement between the victim and the defendant. Further, Mr. Taylor testified he did not see the defendant attack the victim, did not see the weapon used by the defendant, and did not see the defendant take anything from the victim. After reviewing his written statement, Mr. Taylor acknowledged he told Investigator Williams that the defendant usually carried a hatchet. Mr. Taylor, however, clarified he did not see the defendant with a hatchet on March 8, 2019, or at any other time. Finally, Mr. Taylor stated that the defendant called him from jail, the two began yelling, and Mr. Taylor hung up the phone. At the conclusion of the proof, the jury convicted the defendant of especially aggravated robbery and aggravated assault. The trial court subsequently merged the convictions and imposed an effective sentence of thirty-five years. After the trial court denied the defendant’s motion for a new trial, this timely appeal followed. Analysis I. Sufficiency of the Evidence The defendant contends the evidence is insufficient to support his convictions for especially aggravated robbery and aggravated assault because “there is no evidence that [the victim] was deprived of any property, and his injuries did not rise to the level of serious bodily injury that is statutorily required for either offense.” The State submits that it presented ample evidence to support both convictions as the defendant “used a deadly weapon to attack [the victim], [] [the defendant] stole [the victim’s] money and bus card, and [] [the victim] suffered serious bodily injury as a result of the attack.” Upon our review of the record, we agree with the State. -4- When the sufficiency of the evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 , 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185 , 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600 , 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620 , 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474 , 476 (Tenn. 1973). Our Supreme Court has stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Bolin v. State, 405 S.W.2d 768 , 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913 , 914 (Tenn. 1982). Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776 , 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329 , 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895 , 897 (Tenn. 1961)). The standard of review for sufficiency of the evidence “‘is the same whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370 , 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265 , 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331 , 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292 , 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence, and the extent to which the circumstances are -5- consistent with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646 , 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence, shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id. The defendant was convicted of especially aggravated robbery. Robbery is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. An aggravated robbery occurs when a robbery is “[a]ccomplished with a deadly weapon . . . or [w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402. When “accomplished with a deadly weapon” and when “the victim suffers serious bodily injury,” a robbery is elevated to especially aggravated robbery. Tenn. Code Ann. § 39-13-403. The defendant was also convicted of aggravated assault. Tennessee Code Annotated sections 39-13-101(a)(1) and 39-13-102(a)(1)(A)(i) provide that a person commits aggravated assault by intentionally or knowingly committing an assault that results in serious bodily injury to another. A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another. Tenn. Code Ann. § 39-13- 101(a)(1). As it relates to both convictions, “[s]erious bodily injury” is defined as bodily injury that involves: (A) a substantial risk of death; (B) protracted unconsciousness; (C) extreme physical pain; (D) protracted or obvious disfigurement; (E) protracted loss or substantial impairment of function of bodily member, organ or metal faculty; or (F) a broken bone of a child who is twelve (12) years of age or less. Tenn. Code Ann. § 39-11-106(a)(36). “Protracted” in this context means “‘delayed or prolonged in time.’” State v. Ronald L. Carroll, No. E2013-01781-CCA-R3-CD, 2014 WL 1759101 , at *5 (Tenn. Crim. App. Apr. 30, 2014) (quoting State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338 , at *5 (Tenn. Crim. App. Aug. 2, 1996)). In contrast, “bodily injury” involves “a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily members, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(3). Concerning these definitions, this Court has stated: While the phrase “serious bodily injury” . . . is not susceptible to precise legal definition, it must describe an injury of a greater or more serious character than that involved in a simple assault. The distinction between “bodily injury” and “serious bodily injury” is generally a question of fact for the jury and not one of law. State v. Barnes, 954 S.W.2d 760 , 765-66 (Tenn. Crim. App. 1997). -6- This Court has explained that when determining whether a victim’s injuries amount to serious bodily injury the “subjective nature of pain is a question of fact to be determined by the trier of fact.” State v. Ryan Love, No. E2011-00518-CCA-R3-CD, 2011 WL 6916457 , at *4; see State v. Eric A. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL 448653 , at *5 (Tenn. Crim. App. Feb. 23, 2006) (“The difference between ‘physical pain’ and ‘extreme physical pain’ is analogous to the difference between ‘bodily injury’ and ‘serious bodily injury,’ and as such, determining the severity of pain suffered is within the province of the jury.”); see also State v. Holly Lack Earls, No. 01C01-9612-CC-00506, 1998 WL 15896 , at *7 (Tenn. Crim. App. Jan. 16, 1998) (finding serious bodily injury where the victim’s injuries included a broken finger, a broken arm, requiring a metal plate, injuries to the victim’s shoulder, legs, and ankles, loss of “a lot of blood,” was in pain “for a long time,” and was hospitalized “for a couple of days”); State v. Darren Matthew Lee, No. M1999-01625-CAA-R3-CD, 2000 WL 804674 , at *4 (Tenn. Crim. App. June 23, 2000) (holding serious bodily injury occurred where the victim was kicked “repeatedly” in the face, resulting in two black eyes, severe facial swelling and a torn lip, was unable to work for a week, suffered headaches for three to four weeks, and suffered “extreme physical pain”); State v. Chester Dale Gibson, NO. M2005-01422-CAA-R3-CD, 2006 WL 770460 , at *11 (Tenn. Crim. App. Mar. 24, 2006) (finding the victim suffered serious bodily injury after experiencing repeated blows to the face causing fractures to the nasal and eye area, two black eyes, a bruise to the right temple, a bruised lip and swollen and bloody nose, and was in “extreme physical pain”), perm. to appeal denied (Tenn. Aug. 28, 2006). Here, the evidence is sufficient to sustain the defendant’s convictions for especially aggravated robbery and aggravated assault. Viewing the evidence in a light most favorable to the State, the record indicates the defendant hit the victim in the back of the head three times with a hatchet. After hitting the victim with the hatchet, the defendant stole $13.00 and a bus pass from the victim’s pocket. The victim testified he saw the defendant holding the hatchet. In both his written statement and at trial, Mr. Taylor provided the defendant was known to carry a hatchet. The victim identified the defendant in a photographic lineup as the man who attacked him with a hatchet and then took $13.00 and his bus pass. As a result of the attack, Officer Seward testified the victim was bleeding from a “large laceration” and required medical attention, and the victim testified he lost consciousness, suffered a skull fracture, received nearly thirty stitches, remains scarred and disfigured, and continues to experience pain and dizziness. The defendant argues that the victim’s injuries did not rise to the level of serious bodily injury and that the State failed to prove the defendant “knowingly obtained or exercised control over the victim’s property” as neither the victim nor Mr. Taylor testified that they saw the defendant “take any items out of [the victim’s] pockets.” However, based upon the verdicts returned by the jury, it is clear the jury found the victim’s skull fracture, -7- scars, disfigurement, and continued pain and dizziness sufficient to find the defendant inflicted serious bodily harm on the victim, a finding which was within their province as the trier of fact. Barnes, 954 S.W.2d 760 , 765-66. The jury’s verdict also makes clear the jury found the victim’s testimony, detailing that he no longer had $13.00 or his bus pass immediately after the defendant attacked him with a hatchet, sufficient to find the defendant committed the especially aggravated robbery of the victim. As noted, the jury determines the credibility of witnesses and the weight afforded to the evidence, and this Court does not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. See Campbell, 245 S.W.3d at 335 ; Dorantes, 331 S.W.3d at 379 . Thus, the evidence is sufficient to support the defendant’s convictions for especially aggravated robbery and aggravated assault. The defendant is not entitled to relief. II. Jury Instructions The defendant contends the trial court failed to properly instruct the jury concerning the defense of self-defense. Specifically, the defendant argues the trial court committed reversible error in charging the jury on self-defense by relying on an outdated jury charge “which incorrectly permitted the jury to nullify the entire theory of self-defense if it believed that [the defendant] was engaged in unlawful activity.” The defendant requests plain error review of this issue, acknowledging he failed to object to the instruction during trial and failed to raise the issue in his motion for new trial. The State concedes the trial court provided an erroneous instruction based upon State v. Perrier, 536 S.W.3d 388 (Tenn. 2017), but asserts the defendant is not entitled to plain error relief “because the defendant cannot establish that the issue was not waived for tactical reasons and because reversal is not necessary to do substantial justice.” Upon our review, we conclude the defendant is not entitled to relief. Relying on State v. Perrier, 536 S.W.3d 388 (Tenn. 2017), the defendant contends the trial court erred in instructing the jury concerning self-defense. In Perrier, our supreme court clarified that “the phrase ‘not engaged in unlawful activity’ is a condition on a person’s statutory privilege not to retreat” rather than a complete bar to self-defense. Id. at 401. “[A] duty to retreat does not mean that a person cannot defend herself or himself.” Id. at 404 . Consistent with the common law duty to retreat, a defendant engaged in unlawful activity “‘must have employed all means in his power, consistent with his own safety, to avoid danger and avert the necessity of’” using force. Id. at 404 (quoting State v. McCray, 512 S.W.2d 263 , 265 (Tenn. 1974)). Furthermore, when the defendant’s unlawful activity is what provokes the other individual’s use of force, the defendant must “abandon[ ] the encounter or clearly communicate[ ] to the other the intent to do so.” Tenn. Code Ann. § 39-11-611(e)(2)(A); see also Perrier, 536 S.W.3d at 399 (noting that the portion of the “no-duty-to-retreat rule” that required the defendant be “without fault in provoking the confrontation” is presently codified in Tenn. Code Ann. § 39-11-611(e)(2)). -8- We hold that a person is entitled to a jury instruction that he or she did not have to retreat from an alleged attack only when the person was not engaged in unlawful activity and was in a place the person had a right to be. Perrier, 536 S.W.3d at 401 . As applicable to the defendant’s claim on appeal, the trial court charged the jury, in pertinent part, with self-defense as, Now, included in the [d]efendant’s plea of not guilty is his plea of self-defense. If a defendant was not engaged in unlawful activity and was in a place where he or she had a right to be, or he or she would have a right -- Strike that. If a defendant was not engaged in unlawful activity and was in a place where he or she had a right to be, he or she would have a right to threaten or use force against the alleged victim when and to the degree that the defendant reasonably believed the force was immediately necessary to protect against the alleged victim’s use or attempted use of unlawful force. The defendant would[] also have no duty to retreat before threatening or using force. If a defendant was not engaged in unlawful activity and was in a place where he or she had a right to be, he or she would also have a right to threaten or use force intended or likely to cause death or serious bodily injury. If the [d]efendant had a reasonable belief that there was an imminent danger of death or serious bodily injury, the danger created the belief of imminent death or serious bodily injury was real or honestly believed to be at the time and the belief of danger was founded upon reasonable grounds, the [d]efendant would also have no duty to retreat before threatening or using force likely to cause death or serious bodily injury. Based upon our supreme court’s holding in Perrier that a defendant’s engagement in unlawful activity for the purpose of the self-defense statute is a threshold determination to be made by the trial court, the trial court’s instruction in this case was erroneous. However, it is undisputed that the defendant failed to challenge the self-defense instruction at trial and raised the issue for the first time on appeal. Accordingly, we review this issue under plain error. Under the plain error doctrine, a defendant may obtain relief only if all of the following criteria are satisfied: (1) the record clearly establishes what occurred in the trial court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the issue was not waived for tactical reasons, and (5) consideration of the error is necessary to do substantial justice. State v. Martin, 505 S.W.3d 492 , 504 (Tenn. 2016); State v. Hester, 324 S.W.3d 1 , 56 (Tenn. 2010). -9- The defendant argues he was prejudiced by the trial court’s failure to make a threshold determination regarding whether he was engaged in unlawful activity and is entitled to relief under the plain error doctrine. The State contends the defendant is not entitled to plain error relief because the defendant “cannot establish that the issue was not waived for tactical reasons,” and consideration of the error is not necessary to do substantial justice because “the defendant did not present any self-defense theory, so the instruction had no impact on the jury’s verdict.” Upon our review and as detailed above, it is clear the trial court failed to make the threshold determination regarding whether the defendant was engaged in unlawful activity for the purpose of the self-defense statute and as a result, provided an erroneous jury instruction. However, the record is absent any evidence that the defendant was engaged in unlawful activity at the time of the assault. Rather, the victim and Mr. Taylor testified that the defendant, the victim, and Mr. Taylor were simply gathered in the area of the In Town Apartments drinking alcohol. The only additional testimony regarding the defendant’s activity prior to the crimes came from the victim who testified the defendant asked him for $5.00 prior the attack. As a result, no reasonable juror would have found the defendant was engaged in unlawful activity prior to the crimes. While the trial court erred in instructing the jury concerning self-defense, the defendant was clearly not engaged in unlawful activity, and thus, any error on the part of the trial court is harmless beyond a reasonable doubt. Accordingly, consideration of the error is not necessary to do substantial justice, and the defendant cannot satisfy the criteria under the plain error doctrine. Martin, 505 S.W.3d at 504 ; Hester, 324 S.W.3d at 56 . The defendant is not entitled to relief. Conclusion Based on the foregoing, we affirm the judgments of the trial court. ____________________________________ J. ROSS DYER, JUDGE - 10 -
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Case: 20-60152 Document: 00515655687 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-60152 December 1, 2020 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Richard B. Lucas, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:06-CR-1-1 Before Davis, Stewart, and Dennis, Circuit Judges. Per Curiam:* Richard B. Lucas was convicted of one count of conspiring to commit wire fraud, nine counts of wire fraud, and one count of conspiring to commit money laundering. The district court imposed concurrent sentences for the offenses, which resulted in a total term of 168 months of imprisonment and * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 20-60152 Document: 00515655687 Page: 2 Date Filed: 12/01/2020 No. 20-60152 five years of supervised release. It also ordered Lucas to pay a $1,100 special assessment and $1,326,737.40 in restitution, due in monthly installments of $1,500, beginning 30 days after Lucas’s release from prison. Lucas began serving his term of supervised release on November 2, 2018. In 2019, the district court revoked Lucas’s supervised release for failing to comply with conditions of his release requiring him to pay the financial obligations arising from his special assessment and order of restitution. It sentenced him to four months of imprisonment for each of his counts of conviction, to run concurrently, with 32 months of supervision to follow as to each count, also to run concurrently. Lucas appeals that decision. He argues that the district court violated his due process rights as set forth in Bearden v. Georgia, 461 U.S. 660 , 672-73 (1983), and imposed a plainly unreasonable sentence by ordering a term of imprisonment without first ascertaining whether he willfully refused to pay or failed to make sufficient bona fide efforts to acquire the resources to pay his special assessment and restitution. Because Lucas did not raise his arguments in the district court, review is only for plain error. See Puckett v. United States, 556 U.S. 129 , 135-36 (2009). Contrary to Lucas’s assertions, the district court’s inquiry was not insufficient to meet the requirements in Bearden, 461 U.S. at 672-73 . The district court gave Lucas several opportunities at his revocation hearings to explain why he had not met his payment obligations. After hearing testimony suggesting that Lucas purposefully remained underemployed, it implicitly concluded that Lucas had willfully failed to make sufficient bona fide efforts legally to acquire the resources to pay his obligations. That conclusion is not clearly erroneous in light of the record as a whole. See id. at 668. The district court did not violate Lucas’s due process rights or impose a plainly unreasonable sentence when it sentenced Lucas to a term of imprisonment. 2 Case: 20-60152 Document: 00515655687 Page: 3 Date Filed: 12/01/2020 No. 20-60152 See id. at 672-73; United States v. Winding, 817 F.3d 910 , 913-14 (5th Cir. 2016). Lucas has not shown error, much less “clear or obvious error” on the part of the district court. See Puckett, 556 U.S. at 135 ; United States v. Fuentes, 906 F.3d 322 , 325 (5th Cir. 2018). The district court’s judgment is AFFIRMED. 3
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Case: 20-20229 Document: 00515656236 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 20-20229 Summary Calendar Lyle W. Cayce Clerk Taajwar Ali, Plaintiff—Appellee, versus Rodney Sneed, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-25 Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:* Taajwar Ali, an educational aide at Harris County Department of Education Academic Behavior School, brought a Fourth Amendment excessive-force claim under 28 U.S.C. § 1983 against Rodney Sneed, his co- worker who is a contract sheriff’s deputy at the school. Sneed moved for * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 20-20229 Document: 00515656236 Page: 2 Date Filed: 12/01/2020 No. 20-20229 summary judgment, asserting qualified immunity. When ruling on Sneed’s motion for summary judgment, the district court flagged, in a footnote, “the possibility that Sneed was not acting under the color of state law when he allegedly punched Ali.” The district court noted that “defendants appear to have conceded the issue” of state action. 1 Although the district court did not determine whether Ali had pleaded state action to maintain his § 1983 claim, it nevertheless denied Sneed’s motion for summary judgment. Sneed timely appealed. We need not address the merits of Sneed’s appeal because the district court did not first determine whether it had subject-matter jurisdiction over the case. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507 , 511 (5th Cir. 1980) (providing that state action “is required in order to invoke the district court’s jurisdiction). “Subject-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134 , 141 (2012). Moreover, “[w]hen a requirement,” such as state action, “goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.” Id. (citation omitted). Because the district court did not determine whether the use of force was related to Sneed’s state-granted authority, the district court did not fulfill its obligation to determine if it had subject-matter jurisdiction over this case. Accordingly, we REMAND the case to the district court with instructions to determine if the district court has subject-matter jurisdiction. 1 However, the record reflects that Sneed did not concede the state action. In his answer, Sneed “denies that he was acting within the scope of his employment at the time of the alleged incident.” 2
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Case: 20-10480 Document: 00515655902 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 20-10480 Lyle W. Cayce Clerk Sue Richter, Plaintiff—Appellant, versus Carnival Corporation; Roger Frizzell, Defendants—Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No 3:18-CV-2172 Before Davis, Stewart, and Dennis, Circuit Judges. Per Curiam:* Sue Richter sued Carnival Corporation (“Carnival”) alleging that Carnival unlawfully utilized Richter’s reality television concept SeaGals (the “Concept”) to create its own reality television show, Vacation Creation. Richter asserted claims for breach of contract, quantum meruit, fraud, and breach of confidence or misappropriation of confidential information based * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 20-10480 Document: 00515655902 Page: 2 Date Filed: 12/01/2020 No. 20-10480 on Carnival’s alleged theft and use of her “proprietary Concept and trade secrets relating to its production.” The district court granted Carnival’s motion for dismissal under Fed. R. Civ. P. 12(b)(6), finding that Richter had failed to state a plausible breach of contract claim and that her state law fraud and quantum meruit claims were preempted by the Texas Uniform Trade Secret Act (“TUTSA”). On appeal Richter asserts that the district court erred in determining that no implied contract had been formed between Carnival and herself and in finding her state law claims preempted. Finding no error, we AFFIRM. I. This court reviews a district court’s dismissal for failure to state a claim upon which relief can be granted de novo. See Leffall v. Dallas Independent School Dist., 28 F.3d 521 , 524 (5th Cir.1994). To survive a 12(b)(6) motion, the plaintiff’s complaint must assert “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007). The facts asserted must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). Limiting its review to the face of the pleadings, this court accepts as true all well-pleaded facts and views them in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772 , 774 (5th Cir. 1999). Nevertheless, the plaintiff must provide more than “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776 , 780 (5th Cir. 2007). The factual bases for the plaintiff’s complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555 . 2 Case: 20-10480 Document: 00515655902 Page: 3 Date Filed: 12/01/2020 No. 20-10480 II. Even viewing the facts in the light most favorable to Richter, we find no error in the district court’s holding that Richter failed to plausibly plead the formation of an implied contract between the parties. Richter alleges that a contract arose between Carnival and herself stemming from oral “discussions suggesting she expected payment in the form of an industry standard salary, retention of the title Creative Director, and Show Host for Concept” and terms provided in an email from Carnival. She contends that the existence of an implied contract is evidenced by the July 2014 e-mail. This e-mail, which is addressed not to Richter but to an individual named “Alex”1 states that Carnival was “onboard with the reality show,” that “Carnival Corp. w[ould] provide cabins aboard [thei]r ships, the contest, contestants, and shore excursions associated with our fleet,” and that “[o]ther details w[ould] be outlined in a formal contract.” We agree that this e-mail allows a plausible inference that the parties engaged in preliminary negotiations as to the terms of a potential contract, but, without more, does not allow the court to reasonably infer that the parties mutually intended to be bound. To plausibly allege the existence of a valid contract, a complaint must assert facts that, if proven, demonstrate that there was “(1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding.” DeClaire v. G & B McIntosh Fam. Ltd. P’ship, 260 S.W.3d 34 , 44 (Tex. App. 2008). While an express contract normally contains specific terms, an implied contract is formed when the parties’ acts and conduct 1 Richter asserts in her brief that she was blind copied in on this-e-mail but does not provide evidence of this. 3 Case: 20-10480 Document: 00515655902 Page: 4 Date Filed: 12/01/2020 No. 20-10480 create an inference of mutual intention to enter into and be bound by contract. Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607 , 609 (Tex. 1972). Even assuming arguendo that Richter was the intended recipient of the proffered e-mail, it does not alone establish assent by both parties to be bound in contract. While Richter alleged that the parties also engaged in oral discussions, the actions of the parties objectively indicate that neither party believed themselves to be bound in contract by this email in July 2014. In November 2015, over a year after Richter claims that an implied contract had been formed, the parties exchanged a letter of intent. The letter stated that it was to be construed as securing a “preliminary understanding” between the parties and to serve as “a preliminary basis for negotiating a written agreement that will contain additional material terms, conditions and provisions not yet agreed upon by the parties.” The letter explicitly stated that it did not constitute a binding contract. We agree with the district court that this renders implausible any inference that the prior 2014 e-mail was intended by the parties to represent assent to be bound by contract, and that as such Richter failed to plausibly plead that an implicit contract existed upon which she can base any claim for breach of contract related to Carnival’s ultimate decision to produce a substantially dissimilar2 reality television show without Richter.3 III. Richter also argues that the district court erred in holding that her quantum meruit, fraud, and misappropriation claims were preempted by 2 As the District Court noted, there appears to be little in common between Richter’s concept for SeaGals and Carnival’s ultimate production Vacation Creation apart from that they are both reality television shows which take place on cruise ships. 3 Richter also asserts that the district court erred by “requiring all terms of the contract be disclosed.” However, the district court discussed the unsettled terms of the alleged contract only in its analysis of whether Richter and Carnival had entered into an 4 Case: 20-10480 Document: 00515655902 Page: 5 Date Filed: 12/01/2020 No. 20-10480 TUTSA. TUTSA preempts “conflicting tort, restitutionary and other law of this state providing civil remedies for the misappropriation of a trade secret.” Tex. Civ. Prac. & Rem. Code § 134A.007(a).4 Although Richter contends here that her pleading sought damages not for misappropriation of a trade secret but “for the value of the goods and services she provided to Carnival that were used to create Vacation Creation,” Richter fails to identify any goods and services she provided to and were used by Carnival that did not involve the alleged misappropriation of her television show concept. In her complaint, Richer repeatedly referred to the concept for SeaGals as a “trade secret” in alleging that Carnival had misappropriated the Concept in its creation of Vacation Creation. Although Richter asserts in her appeal to this court that the SeaGals concept “is likely not a trade secret,” she raises the argument here for the first time. This court does not consider arguments on appeal that were not raised below. See Stanley Educational Methods, Inc. v. Becker C.P.A. Review Course, Inc., 539 F.2d 393 , 394 (5th Cir. 1976). As such, we assume without deciding that the Concept was a trade secret and find no error in the district court’s determination that these claims are preempted under TUTSA.5 IV. For these reasons, the judgment of the district court is AFFIRMED. express contract, finding that “Richter’s pleadings and attached emails d[id] not establish that either party assented to express, binding terms.” Richter does not challenge on appeal the district court’s finding that no express contract existed between the parties. 4 In other words, all claims under Texas state law for misuse of trade secrets must be brought under TUTSA. 5 Because Richter does not challenge the District Court’s finding that she failed to state a claim under TUTSA, we do not review that issue. See United States v. Martinez, 263 F.3d 436 , 438 (5th Cir. 2001) (“[A] defendant waives an issue if he fails to adequately brief it.”) 5
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Case: 19-60207 Document: 00515656094 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 19-60207 Lyle W. Cayce Clerk Mirta C. Cordero Frances, also known as Mirta Caridad Cordero Frances, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A215 615 316 Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges. Per Curiam:* Mirta Cordero Frances (“Cordero Frances”) petitions for review of an order issued by the Board of Immigration Appeals (“BIA”). Cordero Frances, a native and citizen of Cuba, applied for asylum, withholding of removal, and protection under the Convention Against Terror (“CAT”). * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 19-60207 Document: 00515656094 Page: 2 Date Filed: 12/01/2020 No. 19-60207 The Immigration Judge (“IJ”) denied Cordero Frances’s application, the BIA dismissed her appeal of the denial, and she was removed from the United States on June 7, 2019. We GRANT the petition for review, VACATE the BIA’s decision, and REMAND with instructions to reconsider Cordero Frances’s application for asylum and protection under the CAT. I. Without any entry documents, Cordero Frances applied for admission to the United States at the El Paso Port of Entry in May 2018. The Department of Homeland Security served her with a Notice to Appear that charged her as removable because she had no valid entry documents. In her preliminary hearing before an IJ, she expressed her wish to apply for asylum. Accordingly, the IJ provided her an asylum application and explained the requirements. He informed Cordero Frances that she must prepare and attach to her asylum application “a written declaration of facts about what happened to [her] in [her] home country that forced [her] to leave or makes it impossible for [her] to return.” The IJ added that in most cases the law requires that applications be supplemented “with other reasonably available evidence,” such as affidavits from witnesses, friends, or family members who are familiar with the facts of the applicant’s case. But, the IJ clarified, “[l]etters are not sufficient.” “Because only sworn testimony is admissible in court[,] . . . . [i]t must be an affidavit.” At her subsequent merits hearing, Cordero Frances appeared pro se and submitted her application for asylum, withholding of removal, and protection under the CAT. In support of her application, she proffered a declaration of facts in which she described decades of mistreatment— including threats, fines, beating, surveillance, and police detention—inflicted on her by the Cuban government because of her political activism. She also provided personal identification documents, publications detailing general 2 Case: 19-60207 Document: 00515656094 Page: 3 Date Filed: 12/01/2020 No. 19-60207 conditions in Cuba, and three letters from Cuban friends describing her political activism and related persecution by the Cuban government. Significantly as it turned out, the corroborating letters were not in affidavit form and did not state that they were made under penalty of perjury— although they did employ formal language saying that they “attest[ed]” or gave “testimony.” The IJ denied Cordero Frances’s application, concluding that “the court must and will order her removal.” He pronounced his decision orally and subsequently issued a written decision that contained some modifications but conveyed the same result. Repeatedly, he indicated that he found her account reliable, noting that he “ha[d] no credibility concerns in particular” and that he thought she was “being credible in [her] statements.” In his written opinion, he stated that she “ha[d] established prima facie eligibility for asylum” and that she “ha[d] testified credibly in the court’s opinion.” Notwithstanding that assessment of her credibility, the IJ determined that Cordero Frances’s corroborating letters did “not meet the necessary legal requirements for testimony under the federal regulations, which require[] . . . all testimony to be sworn or made under penalty of perjury.” Accordingly, he determined that “the court will not provide them any evidentiary . . . weight.” Because Cordero Frances “did not corroborate her testimony with reasonably available corroborative evidence,” he denied her application “for that reason[] alone.” In reaching this conclusion, the IJ relied on Yang v. Holder, 664 F.3d 580 (5th Cir. 2011), which he understood to require “that [an applicant] ha[s] to support an application for asylum with reasonably available corroborative evidence,” and “by law” all such evidence “has to be under oath or under something similar to oath.” He told Cordero Frances that Yang “mandates” this evidentiary standard and, “for that reason,” he concluded “I have to deny your application. I don’t know 3 Case: 19-60207 Document: 00515656094 Page: 4 Date Filed: 12/01/2020 No. 19-60207 what else to do.” But he again emphasized: “I am only denying your application because you don’t meet the required burden of proof under a federal circuit court decision called Rui Yang v. Holder. That’s the only reason I’m denying the application.” Cordero Frances appealed the IJ’s decision to the BIA. She contended that the IJ committed legal error by (1) determining that she was legally required to submit corroborating evidence even though the IJ found her account credible and (2) refusing to consider the supporting letters she submitted to corroborate her application for relief from removal because there is no requirement that such corroborating evidence be in affidavit form or made under penalty of perjury. The BIA found these arguments unavailing and affirmed the IJ’s decision. Despite the credibility of Cordero Frances’s testimony, the BIA determined that she failed to satisfy her burden of producing reasonably available corroborating evidence. First, the BIA interpreted the IJ’s decision to require corroborating evidence of otherwise credible testimony as a permissible exercise of his discretion. Second, it noted that “[w]hile [Cordero Frances] correctly observes that there is no requirement under the Act and its implementing regulations for evidence to be presented in any particular format, an Immigration Judge has broad discretion to accept and assign evidentiary weight to evidence.” And, in the BIA’s view, the IJ simply declined to assign evidentiary weight to the letters because they were not in affidavit form or made under penalty of perjury, which constituted a discretionary decision he was permitted to make. In sum, the BIA concluded that the IJ was entitled to make discretionary decisions about these matters and that he chose to do so here. Cordero Frances filed a timely petition for review of the BIA’s order. 4 Case: 19-60207 Document: 00515656094 Page: 5 Date Filed: 12/01/2020 No. 19-60207 II. We generally review only decisions of the BIA. Zhu v. Gonzales, 493 F.3d 588 , 593 (5th Cir. 2007). But when the IJ’s ruling affects the BIA’s decision, as it does here, we review the decisions of both the BIA and the IJ. Cantarero-Lagos v. Barr, 924 F.3d 145 , 149 (5th Cir. 2019). We review factual findings for substantial evidence, and we review conclusions of law de novo, according deference to the BIA’s reasonable interpretations of immigration statutes and regulations. Id. III. Cordero Frances contends that the IJ legally erred by applying the wrong standard of proof and refusing to consider the letters she submitted to corroborate her application. She asserts that the IJ denied her application under the mistaken belief that, although he was satisfied of her credibility, she was nonetheless required to submit corroborating evidence to support her application and that, if her corroborating evidence took the form of letters, the letters must be in affidavit form or made under penalty of perjury. Furthermore, she claims that the BIA erred when it determined that the IJ merely exercised his discretion not to afford evidentiary weight to the letter evidence and affirmed the IJ’s erroneous application of the law. An applicant for asylum bears the burden of demonstrating eligibility for relief. 8 U.S.C. § 1158(b). Sometimes the applicant’s testimony alone is enough to sustain her burden of proof. 8 U.S.C. § 1158(b)(1)(B)(ii) (stating that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration”). If, however, an applicant’s testimony is credible but insufficient to satisfy the burden of proof, the IJ may require the submission of reasonably available corroborating evidence , id., and failure to comply can be fatal to a claim for relief, Avelar-Oliva v. Barr, 954 F.3d 757 , 764 (5th Cir. 2020). 5 Case: 19-60207 Document: 00515656094 Page: 6 Date Filed: 12/01/2020 No. 19-60207 But nothing in the statutes or regulations governing asylum proceedings sets forth any specific form requirements that corroborating evidence must meet. Indeed, rules governing the admissibility of evidence in asylum proceedings are, if anything, more relaxed than in other contexts— and for intuitive reasons: those who genuinely need asylum are often acutely disadvantaged in their ability to obtain carefully documented and authenticated evidence. Accordingly, “the sole test for admission of evidence at a deportation proceeding is whether it is probative and its admission is fundamentally fair,” and “[t]he rules of evidence, including those that exclude hearsay, do not govern.” Bouchikhi v. Holder, 676 F.3d 173 , 180 (5th Cir. 2012) (internal quotation marks and citations omitted). Thus, while lack of formal authentication could affect the evidentiary weight afforded, see Dube v. Holder, 553 F. App’x 420, 421 (5th Cir. 2014) (noting that unsworn and typed letters without any indication of authenticity may be of “dubious” evidentiary value), it is no categorical bar to admissibility, see Qiu v. Sessions, 870 F.3d 1200 , 1205 (10th Cir. 2017) (“There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn.”); Zuh v. Mukasey, 547 F.3d 504 , 509 (4th Cir. 2008) (“[N]o statute or case law suggests that documents at immigration hearings must be sworn. Rather, without so much as pausing to note the unsworn nature of a document, numerous courts . . . have relied on such documents when considering claims of asylum applicants.”). In this proceeding, the IJ concluded that Yang v. Holder required Cordero Frances to support her testimony with reasonably available corroborating evidence and that any corroborating letters must be in affidavit form or made under penalty of perjury. In Yang, we upheld the BIA’s interpretation of 8 C.F.R. § 1208.13(a) to allow an IJ to require reasonably available corroborating evidence even where there was credible testimony and even without first determining credibility. 664 F.3d at 584-86 . We also 6 Case: 19-60207 Document: 00515656094 Page: 7 Date Filed: 12/01/2020 No. 19-60207 noted that a similar rule had been codified at 8 U.S.C. § 1158(b)(1)(B)(ii). Id. at 586. In short, an applicant’s uncorroborated credible testimony may be enough to satisfy her burden of proof, but the IJ retains discretion to require the submission of reasonably available corroborating evidence if he determines that her testimony is insufficient. Accordingly, the IJ acted within his discretion to require Cordero Frances to supply such corroborating evidence, although the record plainly suggests he did not understand that doing so is not mandated in every case so long as the IJ is satisfied that the applicant’s testimony is credible, persuasive, and specific enough to demonstrate refugee status. See 8 U.S.C. § 1158(b)(1)(B)(ii). Nonetheless, the IJ did err by refusing to admit the letters merely because they were not in affidavit form or made under penalty of perjury. 1 In this respect, he misplaced his reliance on Yang because nothing in that decision requires corroborating letters to take a particular format as a criterion for admissibility. See Yang, 664 F.3d at 584-86 . In its opinion on appeal, the BIA expressly agreed that there is no requirement to present corroborating evidence in a particular format, but it affirmed the IJ’s decision by characterizing it as an exercise of his discretion not to assign evidentiary weight to the letters. We disagree with that portrayal of the IJ’s legal conclusion. Refusing to admit evidence is very different from assigning that evidence limited or even no weight because evidence that cannot be considered cannot be weighed. The IJ did not simply assign the letters no evidentiary weight: he refused to admit them altogether, insisting that he was precluded by law from considering them. To the extent that he made any 1 Because we conclude that the IJ legally erred by dismissing Cordero Frances’s application on the basis of an incorrect evidentiary standard, we need not consider her contention that she was deprived of due process. 7 Case: 19-60207 Document: 00515656094 Page: 8 Date Filed: 12/01/2020 No. 19-60207 credibility determination, his statements indicate that he considered Cordero Frances’s account credible and that he denied her application only because he was obligated to do so. Furthermore, he stated that the letters “d[id] not meet the necessary legal requirements for testimony;” that “[b]y law, all testimony has to be under oath or something similar to oath;” that the letters “d[id not] qualify as testimony and they d[id not] qualify as supportive evidence;” and that the letters “d[id not] exist for evidentiary reasons.” Accordingly, he treated the letters as if they were not before him. That constitutes a refusal to admit evidence, not a discretionary assignment of minimal credibility. In any event, the record plainly suggests that not even he understood his actions to involve any discretionary weighing of evidence. And it cannot be said that he made a discretionary decision where he did not understand his decision to be discretionary. The IJ excluded the letters without addressing the sole test for admission of evidence: he never suggested that the evidence was not probative or that its admission would be somehow unfair. See Bouchikhi, 676 F.3d at 180 . Moreover, he applied his heightened admissibility standard as a dispositive criterion to deny Cordero Frances’s application. His statements suggest that, absent the erroneous evidentiary rule, he may well have granted Cordero Frances’s application. Because we cannot determine the complete extent to which the IJ’s legal error refusing to consider the corroborating letters influenced the final determination as to Cordero Frances’s eligibility for asylum or protection under the CAT, the IJ’s and the BIA’s rulings cannot stand. VACATED and REMANDED. 8
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https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/03/18/20-15995.pdf
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PAUL TUFANO, Individually and on behalf No. 20-15995 of all others similarly situated, D.C. No. Plaintiff-Appellant, 2:18-cv-03281-MCE-DB v. MEMORANDUM* STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Submitted March 12, 2021** Las Vegas, Nevada Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges. Paul Tufano appeals the district court’s order granting State Farm Mutual Automobile Insurance Company’s (“State Farm”) motion to dismiss his first amended complaint for failure to state any plausible claims. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 pursuant to 28 U.S.C. § 1291 and affirm. This case concerns State Farm’s refusal to pay Tufano for the diminished value of his car after it was fully repaired. In 2017, Tufano was involved in a collision with another driver, Rosalio Acero. Both Tufano and Acero were insured by State Farm. Tufano’s policy includes collision coverage that gave State Farm the choice between repairing or replacing the car, and State Farm elected to, and did, repair Tufano’s car. Tufano’s policy coverage excluded recovery for “any reduction in the value of the covered vehicle after it has been repaired, as compared to its value before it was damaged.” Nonetheless, Tufano filed an insurance claim for the diminished value of his repaired car, which State Farm denied. Tufano then brought this putative class action, alleging breach of contract (on both his own and Acero’s policies) and various state and federal fraud claims. The district court dismissed Tufano’s complaint because the claims under his own policy were precluded by applicable case law, he had no basis to bring claims under Acero’s policy, and the fraud claims lacked the requisite particularity. We review de novo the district court’s order granting the motion to dismiss for failure to state a claim. Whitaker v. Tesla Motors, Inc., 985 F.3d 1173 , 1175 (9th Cir. 2021). We may affirm the district court’s dismissal on “any ground supported by the record.” Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969 , 975 (9th Cir. 2008). 2 Tufano argues that his policy’s exclusion of coverage for the diminished value of his car violates California law and public policy. But California courts have consistently held that such insurance policies are permissible. See Baldwin v. AAA N. Cal., Nev. & Utah Ins. Exch., 204 Cal. Rptr. 3d 433 , 441–42 (Ct. App. 2016); Carson v. Mercury Ins. Co., 148 Cal. Rptr. 3d 518 , 533 (Ct. App. 2012); Ray v. Farmers Ins. Exch., 246 Cal. Rptr. 593 , 596 (Ct. App. 1988). Our nonprecedential decision in Copelan v. Infinity Insurance Co., 728 F. App’x 724 (9th Cir. 2018), did not suggest otherwise. See id. at 726 (holding that insurer’s “‘election to repair is conclusive,’ regardless of any diminution in value” (quoting Ray, 246 Cal. Rptr. at 595)). Tufano further contends that State Farm breached the implied covenant of good faith and fair dealing. But in Baldwin, the court explained that “[a]n insurer does not act in bad faith by repairing, as promised in the policy, the insured’s vehicle,” and rejected the plaintiff’s argument that his insurer improperly excluded coverage for his car’s diminished value. 204 Cal. Rptr. 3d at 444 (citing Carson, 148 Cal. Rptr. 3d at 533–34). Thus, Tufano has not plausibly alleged bad faith here. Because Tufano’s claim under his own policy is based on the contract (and there is no bad faith), California Civil Jury Instruction No. 3903J, which allows litigants to recover the diminished value of a car in tort actions, is irrelevant. See id. at 445 n.6. Tufano also attempts to recover diminished value from State Farm under 3 Acero’s liability coverage. However, to directly sue State Farm based on Acero’s policy, Tufano must first obtain a court judgment against Acero. Cal. Ins. Code § 11580 (b)(2). Otherwise, he is a stranger to Acero’s insurance policy with State Farm and lacks standing to enforce Acero’s contractual rights. See Coleman v. Republic Indem. Ins. Co., 33 Cal. Rptr. 3d 744 , 746 (Ct. App. 2005) (“[T]he coincidental fact that plaintiffs are insured by the same insurer as the other party does not change plaintiffs’ position as strangers to the other party’s insurance policy . . . .”). Here, there is no evidence that Tufano has obtained a judgment against Acero. Rather, Tufano contends that he does not need a judgment, because his position is like that of an excess insurer in an equitable subrogation action, who can proceed without a judgment against a primary insurer. But “actions between liability insurers are not based on contract,” so insurers may resolve disputes between themselves “without the limits imposed in other contexts by the direct-action proscription.” Fortman v. Safeco Ins. Co. of Am., 271 Cal. Rptr. 117 , 119 (Ct. App. 1990). Because Tufano’s action against State Farm is based on Acero’s insurance contract, he lacks standing to sue based on Acero’s policy. Finally, Tufano alleges that State Farm misrepresented its products as “insurance,” which led him to think he was purchasing coverage for the diminished value of his car. Based on these allegations, he contends that State Farm violated California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and 4 Consumer Legal Remedies Act (“CLRA”), as well as the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). The UCL and FAL claims are implausible under the “reasonable consumer” standard. See Ebner v. Fresh, Inc., 838 F.3d 958 , 965 (9th Cir. 2016). The reasonable consumer would not think the term “insurance” means that the policy will always cover diminished value, because consumers know that insurance policies are customizable and contain all types of exclusions. The CLRA claim fails because the CLRA applies only to transactions involving tangible goods and services, and insurance is neither a tangible good nor a service. See Fairbanks v. Superior Ct., 205 P.3d 201 , 202 (Cal. 2009). The RICO claim is predicated on Tufano’s allegation that State Farm’s advertising of its products as “insurance” constitutes mail fraud or wire fraud. Tufano has not plausibly alleged that State Farm’s advertising was misleading, so he has not shown that State Farm formed a scheme to defraud him, as required to establish mail or wire fraud. See Rothman v. Vedder Park Mgmt., 912 F.2d 315 , 316–17 (9th Cir. 1990). Without plausible allegations of mail or wire fraud, there is no predicate racketeering activity, and Tufano’s RICO claim fails. See 18 U.S.C. §§ 1961 (1), 1962. AFFIRMED. 5
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https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/09/04/14-73635.pdf
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE CONTRERAS MADRIGAL, No. 14-73635 Petitioner, Agency No. A094-874-391 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 02, 2020** Before: SCHROEDER, TROTT, and SILVERMAN, Circuit Judges. Jorge Contreras Madrigal, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). withholding of removal, and protection under the Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252. Garcia v. Lynch, 798 F.3d 876 880 (9th Cir. 2015). We review de novo constitutional claims and questions of law, Vargas-Hernandez v. Gonzales, 497 F.3d 919 , 921 (9th Cir. 2007), and we review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182 , 1184-85 (9th Cir. 2006). We review for abuse of discretion the agency’s particularly serious crime determination. Arbid v. Holder, 700 F.3d 379 , 383 (9th Cir. 2012). Review is “limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.” Avendano-Hernandez v. Lynch, 800 F.3d 1072 , 1077 (9th Cir. 2015) (internal quotation marks omitted). We deny the petition for review. Contreras Madrigal’s 2013 plea of guilty to possession for sale of 2.63 pounds of methamphetamine in violation of California Health and Safety Code § 11378 is presumptively a “particularly serious crime,” which renders him ineligible for withholding of removal. See Rendon, 520 F.3d at 976 (“[A]n aggravated 1 Contreras Madrigal conceded before the IJ that he was ineligible for asylum due to his aggravated felony conviction. See Rendon v. Mukasey, 520 F.3d 967 , 973 (9th Cir. 2008) (an applicant for asylum is not eligible for this form of relief if he has been convicted of an aggravated felony). 2 14-73635 felony containing a drug trafficking element is presumed to be a particularly serious crime which would make [the applicant] ineligible for withholding of removal.”). The agency did not abuse its discretion. It relied on the appropriate factors and proper evidence in determining that Contreras Madrigal had not rebutted this “extraordinarily strong presumption.” See Miguel-Miguel v. Gonzales, 500 F.3d 941 , 947 (9th Cir. 2007). Substantial evidence supports the agency’s denial of CAT protection because Contreras Madrigal failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Mairena v. Barr, 917 F.3d 1119 , 1125-26 (9th Cir. 2019). PETITION FOR REVIEW DENIED. 3 14-73635
4,563,224
2020-09-04 20:00:52.747203+00
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https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/09/04/19-16719.pdf
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DEUTSCHE BANK NATIONAL TRUST No. 19-16719 COMPANY, as Trustee for Holders of the BCAP LLC Trust 2007-AA1, D.C. No. 2:16-cv-02603-RFB-CWH Plaintiff-Appellant, v. MEMORANDUM* MADEIRA CANYON HOMEOWNERS ASSOCIATION; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding Submitted September 2, 2020** Seattle, Washington Before: HAWKINS and McKEOWN, Circuit Judges, and KENDALL,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. Deutsche Bank National Trust Company (“Deutsche Bank”) appeals the district court’s adverse grant of summary judgment in a declaratory judgment action. The parties are familiar with the facts and we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, Branch Banking & Trust Co. v. D.M.S.I., LLC, 871 F.3d 751 , 759 (9th Cir. 2019), and affirm. The non-judicial foreclosure sale and all notices relating to it took place during the pendency of the original property owner’s bankruptcy. A bankruptcy triggers a “self-executing” and “automatic stay of actions by all entities to collect or recover on claims.” Burton v. Infinity Cap. Mgmt., 862 F.3d 740 , 746 (9th Cir. 2017) (citing 11 U.S.C § 362(a); In re Gruntz, 202 F.3d 1074 , 1081 (9th Cir. 2000) (en banc)). Although we have “not had occasion to decide whether notices filed pursuant to Nevada’s non-judicial foreclosure statute” violate the stay, “acts that immediately or potentially threaten the debtor’s possession of its property” do. CitiMortgage, Inc. v. Corte Madera Homeowners Ass’n, 962 F.3d 1103 , 1110 (9th Cir. 2020) (quotation marks and citation omitted). While recognizing “violations of the automatic stay are void, not voidable,” In re Schwartz, 954 F.2d 569 , 571 (9th Cir. 1992), the district court correctly concluded that Deutsche Bank—a creditor, rather than a debtor or trustee—lacked standing to challenge the violation of the stay. See In re Pecan Groves of Ariz., 2 951 F.2d 242 , 245 (9th Cir. 1991) (holding that “a creditor has no independent standing to appeal an adverse decision regarding a violation of the automatic stay”). Notwithstanding Deutsch Bank’s attempts to narrow In re Pecan Groves’s holding, it applies by its own terms to all actions “seek[ing] to enforce the protections of the automatic stay,” id., and forecloses these arguments. Deutsche Bank’s assertions about the purportedly inequitable nature of the sale due to the low purchase price, and thus Elmer’s status as a bona fide purchaser, are similarly unavailing. Nevada law requires “proof of some element of fraud, unfairness, or oppression as accounts for and brings about the inadequacy of price.” Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 405 P.3d 641 , 643 (Nev. 2017) (citation omitted). Here, such proof is lacking. AFFIRMED. 1 1 Appellant’s Motion to Extend Time to File Reply Brief (Dkt. 35) is granted. Appellant’s Motion to Supplement the Record on Appeal (Dkt. 38) is denied. Appellant’s Stipulated Motion to Dismiss Madeira Homeowners Association from the appeal (Dkt. 42) is granted. 3
4,654,687
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http://www.ca4.uscourts.gov/Opinions/201141.U.pdf
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1141 EDWARD GELIN; DEBORAH GELIN, as personal representatives of the Estate of Ashleigh Gelin, and for themselves, Plaintiffs - Appellants, v. KYLE SHUMAN, individually and as an agent/employee of Baltimore County, Maryland; ROSELOR SAINT FLEUR, individually and as an agent/employee of Baltimore County, Maryland; VICTORIA TITUS, individually and as an agent/employee of Baltimore County, Maryland; JENNIFER SEVIER, individually and as an agent/employee of Baltimore County, Maryland; DIANE BAHR, individually and as an agent/employee of Baltimore County, Maryland, Defendants - Appellees, and JAY R. FISHER, Sheriff of Baltimore County, individually and in his representative capacity; JOHN DOE 1-10; CORRECT CARE SOLUTIONS, LLC; BALTIMORE COUNTY, MARYLAND; JOHN AND JANE DOES, 1-8; MICHAEL SALISBURY, II, individually and in his official capacity; MICHELLE RAWLINS, individually and in her official capacity; NICHOLAS QUISGUARD, individually and in his official capacity; MYESHA WHITE, individually and in her official capacity; JOSEPH LUX, individually and his official capacity; GREGORY LIGHTNER, individually and in his official capacity; CARL LUCKETT, individually and in his official capacity; DEBORAH J. RICHARDSON, Director of Baltimore County Detention Center, individually and as an agent/employee of Baltimore County, Maryland, Defendants. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge; Albert David Copperthite, Magistrate Judge. (1:16-cv-03694-ADC) Submitted: January 14, 2021 Decided: January 26, 2021 Before THACKER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Steven R. Freeman, Lee B. Rauch, FREEMAN RAUCH, LLC, Towson, Maryland, for Appellants. Eric M. Rigatuso, Lauren E. Marini, ECCLESTON & WOLF, P.C., Hanover, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Edward Gelin and Deborah Gelin (the “Gelins”), individually and as personal representatives of the Estate of Ashleigh Gelin, appeal from the district court’s August 1, 2018 memorandum order granting Appellees’ motions to dismiss pursuant to Fed. R. Civ. P. 4(m), 12(b)(5), and from the magistrate judge’s April 9, 2019 memorandum opinion and order denying the Gelins’ Fed. R. Civ. P. 60(b) motion. * On January 31, 2020, the magistrate judge entered an order granting the Gelins’ Fed. R. Civ. P. 54(b) motion and certifying the August 1, 2018 memorandum order and the April 9, 2019 memorandum opinion and order as a final judgment. Because the January 31, 2020 certification order entered pursuant to Rule 54(b) is deficient in two significant respects, we dismiss this appeal. We have an independent duty to confirm that a Rule 54(b) certification is proper and that we may exercise appellate jurisdiction predicated thereon. Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331 , 1334-35 (4th Cir. 1993). We generally review a Rule 54(b) certification for abuse of discretion. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849 , 855 (4th Cir. 2010). We have explained that “a Rule 54(b) certification involves two steps.” Braswell Shipyards, Inc., 2 F.3d at 1335. “First, the district court must determine whether the judgment is final.” Id. A judgment is final for Rule 54(b) purposes when it constitutes “an * After the district court entered the August 1, 2018 memorandum order, the parties consented to proceed before the magistrate judge pursuant to 28 U.S.C. § 636 (c). 3 ultimate disposition of an individual claim entered in the course of a multiple claims action.” Id. (internal quotation marks omitted). “Second, the district court must determine whether there is no just reason for the delay in the entry of judgment.” Id. In determining whether there is no just reason for delaying the entry of judgment, we have instructed district courts to assess a number of factors. Id. at 1335-36 . When conducting the two-step certification process under Rule 54(b), a district court is obliged to state the findings that support certification on the record or in the certification order. Id. at 1336 . In these proceedings, the magistrate judge’s Rule 54(b) certification order is significantly deficient in two respects. First, the certification order does not contain an express determination that there is no just reason for delaying the entry of judgment. The language of Rule 54(b) and our precedent interpreting the Rule are clear, however, that the magistrate judge was required to make such an express determination before certification. See Fed. R. Civ. P. 54(b) (“[T]he court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”); Braswell Shipyards, Inc., 2 F.3d at 1335 (ruling that district court “must determine” that there is no just reason for delaying entry of judgment). Second, contrary to our precedents, the certification order does not contain any findings or rationale in support of the Rule 54(b) certification. See Culosi v. Bullock, 596 F.3d 195 , 203-04 (4th Cir. 2010); Braswell Shipyards, Inc., 2 F.3d at 1336. 4 In light of the defects in the Rule 54(b) certification order, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 5
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2021-01-26 20:00:40.656164+00
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https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cv0172-3
FILED 1/26/2021 UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy FOR THE DISTRICT OF COLUMBIA Court for the District of Columbia ALEX MARTINEZ, ) ) Plaintiff, ) ) Civil Action No. 21-172 (UNA) v. ) ) UNITED STATES OF AMERICA et al., ) ) Defendants. ) MEMORANDUM OPINION This matter, brought pro se, is before the court on review of plaintiff’s complaint, ECF No. 1, and application to proceed in forma pauperis, ECF No. 2. The court will grant plaintiff’s application and dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss an action “at any time” it determines that subject matter jurisdiction is wanting). A party seeking relief in the district court must plead facts that bring the suit within the court’s jurisdiction. Fed. R. Civ. P. 8(a). Plaintiff is a resident of Toronto, Canada, who has sued the United States, Canada, the Embassies of Israel, Spain and Chile, and German Ambassador to the United States Emily Haber. See Compl. at 2, 8. 1 Plaintiff seeks “compensation for damages, injury, declaration of legal rights and for causing harm to [him] and his family for medical abuse, pedophilia and circulating stolen images of him and his brother that constitute child pornography.” Compl. at 3. Plaintiff demands $500 million for defendants’ 1 The initial pleading consists of two separate form complaints that are identical except as to the named defendants. The page citations are the numbers assigned by the electronic case filing system. 1 “negligence” and “intentional” and “unreasonable” conduct, id. at 5, but he has not alleged specific facts about any one defendant. In addition to damages, plaintiff seeks an injunction “to stop all investigations, financial suppression, medical abuse, observation and monitoring across Canada and internationally for him and his family and the children involved.” Id. With respect to the embassies and Ambassador Haber in her official capacity, the Foreign Sovereign Immunities Act (FSIA) “holds foreign states and their instrumentalities immune from the jurisdiction of federal and state courts,” save exceptions set out in the Act. Opati v. Republic of Sudan, 140 S. Ct. 1601 , 1605 (2020); see Roeder v. Islamic Republic of Iran, 646 F.3d 56 , 58 (D.C. Cir. 2011) (“The FSIA provides generally that a foreign state is immune from the jurisdiction of the United States courts unless one of the exceptions listed in 28 U.S.C. § 1605 (a) applies”) (internal quotation marks and citation omitted)). Plaintiff’s conclusory allegations do not establish jurisdiction under the FSIA. The complaint against the United States fares no better. The subject matter jurisdiction of the federal district courts is limited and is set forth generally at 28 U.S.C. § 1331 (federal question ) and § 1332 (diversity). Plaintiff invokes diversity jurisdiction, Compl. Sec. II, which confers jurisdiction when the parties are citizens of different states or a foreign country and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332 . Because the United States has no citizenship, “courts cannot proceed under diversity jurisdiction when the defendants are the United States government or an agency thereof.” Whittaker v. Court Servs. & Offender Supervision Agency for D.C., 401 F. Supp. 3d 170 , 177-78 (D.D.C. 2019). To the extent that plaintiff invokes the court’s federal question jurisdiction, see Compl. Sec. II. A., the Federal Tort Claims Act (FTCA) waives the United States’s immunity for certain claims for damages. However, “the FTCA’s ‘foreign country’ exception preserves the United 2 States’s sovereign immunity with regard to ‘[a]ny claim arising in a foreign country.’” Galvin v. United States, 859 F.3d 71 , 73 (D.C. Cir. 2017) (quoting 28 U.S.C. § 2680 (k)). The instant complaint is vague on where the alleged wrongdoing occurred, but the allegations, attachments and plaintiff’s residence point to Canada as the most likely location. Finally, to the extent that plaintiff seeks to halt an international investigation that may include the United States, this court generally lacks jurisdiction over such matters. See Shoshone Bannock Tribes v. Reno, 56 F.3d 1476 , 1480 (D.C. Cir. 1995) (“In both civil and criminal cases, courts have long acknowledged that the Attorney General’s authority to control the course of the federal government’s litigation [and investigation] is presumptively immune from judicial review.”). Accordingly, this case will be dismissed. A separate order accompanies this Memorandum Opinion. _________/s/_______________ TANYA S. CHUTKAN Date: January 26, 2021 United States District Judge 3
4,654,690
2021-01-26 20:02:27.083128+00
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https://www.courts.ca.gov/opinions/nonpub/H047537.PDF
Filed 1/26/21 P. v. Wilbarn CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H047537 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS102036B) v. JOEL WILBARN, Defendant and Appellant. Proposition 64 was approved by the voters in 2016 and is known as “the Control, Regulate and Tax Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act’).” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)1 text of Prop. 64, § 1, p. 178.) Health and Safety Code section 11362.1 was added by Proposition 64.2 (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) Subject to specified statutory exceptions, section 11362.1, subdivision (a) (section 11362.1(a)) declares it “lawful under state and local law . . . for persons 21 years of age or older to” “[p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any 1 The Voter Information Guide cited in this opinion is available at the website of the California Secretary of State. ( [as of Jan. 26, 2021], archived at: .) 2 All further statutory references are to the Health and Safety Code unless otherwise stated. compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis.” Section 11361.8, which was also added by Proposition 64 (Voter Information Guide, supra, text of Prop. 64, § 8.7, pp. 207-208), establishes a postjudgment procedure for filing a petition “for recall or dismissal of sentence . . . to request resentencing or dismissal” when “[a] person currently serving a sentence for a conviction . . . would not have been guilty of an offense, or . . . would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense.”3 (§ 11361.8, subd. (a) [§ 11361.8(a)].) Pursuant to section 11361.8, Joel Wilbarn filed a petition seeking to dismiss a conviction of possession of a controlled substance in prison (Pen. Code, § 4573.6). Penal Code section 4573.6 makes unauthorized possession of a controlled substance, “the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code,” in prison—among other custodial settings—a felony.4 The trial court denied the petition. 3 Upon receiving such a petition, the court must “presume the petitioner satisfies the criteria in [section 11361.8(a)] unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria.” (§ 11361.8, subd. (b).) If there is not an adequate showing that the petitioner does not satisfy that criteria, the court must “grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.” (Ibid.) Section 11361.8 also permits “[a] person who has completed his or her sentence for a conviction under [s]ections 11357, 11358, 11359, and 11360 . . . , who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense, [to] file an application . . . to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with [s]ections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.” (§ 11361.8, subd. (e).) 4 All further references to Division 10 are to Division 10 of the Health and Safety Code. Division 10 is known as the Uniform Controlled Substances Act. (§ 11000) 2 The California Courts of Appeal have split on the issue of whether after Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail is unlawful under Penal Code section 4573.6. (Compare People v. Perry (2019) 32 Cal.App.5th 885 (Perry), review denied June 12, 2019, S255148, People v. Whalum (2020) 50 Cal.App.5th 1 (Whalum), review granted Aug. 12, 2020, S262935, and People v. Herrera (2020) 52 Cal.App.5th 982 (Herrera), review granted Oct. 14, 2020, S264339, with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review granted Aug. 21, 2019, S256978.) The California Supreme Court has granted review of several of these cases so that it may resolve the issue.5 On appeal, Wilbarn argues that Perry was “wrongly decided” and that contrary to the Perry decision, the plain statutory language of “the relevant statutes” establishes that possession of marijuana in prison “does not violate” section 11362.45, subdivision (d) (11362.45(d)). He maintains that the “plain language” of section 11362.45(d), which states an exception to the declaration of lawfulness in section 11362.1(a), “applies only to ingesting or smoking marijuana in prison.” In Raybon, the Third District Court of Appeal held that section 11362.45(d) plainly did not encompass laws governing possession (Raybon, supra, 36 Cal.App.5th at p. 122, review granted) and that accordingly, under “the plain language” of section 11362.1(a), “possession of less than an ounce of cannabis in prison is no longer a felony.” (Raybon, at p. 113.) Consistent with our recent decision in People v. Taylor (2021) ___ Cal.App.5th ___ (Taylor), this court again concludes that the phrase “[l]aws pertaining to 5 The California Supreme Court has indicated that Raybon “presents the following issue: Did Proposition 64 [the ‘Adult Use of Marijuana Act’] decriminalize the possession of up to 28.5 grams of marijuana by adults 21 years of age or older who are in state prison as well as those not in prison?” In Whalum, S262935, and in Herrera, S264339, the Supreme Court ordered briefing deferred pending its decision in Raybon, S256978. 3 smoking or ingesting cannabis or cannabis products” in section 11362.45(d) encompasses laws that govern possession of cannabis. Consequently, although section 11362.1(a) partially decriminalizes possession of cannabis, “[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt” (§ 11362.45) laws governing the possession of cannabis “on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” (§ 11362.45(d).) Accordingly, Wilbarn was not eligible for relief under section 11361.8. We affirm the order denying Wilbarn’s petition pursuant to section 11361.8. I Procedural History A criminal complaint filed on August 31, 2010 alleged in count 1 that on or about August 28, 2010, Wilbarn committed the crime of possession of a controlled substance in prison in violation of Penal Code section 4573.6 by willfully, unlawfully, and knowingly possessing marijuana while in Salinas Valley State Prison. The complaint also alleged that Wilbarn had a prior conviction—carjacking in violation Penal Code section 215— within the meaning of Penal Code section 1170.12. On September 8, 2010, Wilbarn pleaded no contest to the charge of possession of a controlled substance in prison.6 Wilbarn admitted the Three Strikes allegation that he had a prior conviction within the meaning of Penal Code section 1170.12. The trial court sentenced Wilbarn to a four-year term—a two-year term that was doubled pursuant to Penal Code section 1170.12, subdivision (c)(1)—and ordered the term to be served consecutive to the sentence that Wilbarn was then serving. 6 Nothing in the record of conviction that is part of the appellate record reflects the amount of marijuana involved. 4 On August 29, 2019, Wilbarn filed a petition for resentencing or dismissal pursuant to section 11361.8. On September 11, 2019, counsel for Wilbarn filed a notice of motion and motion pursuant to section 11361.8 and supporting points and authorities. Counsel urged the trial court to follow Raybon because the decision “adhere[d] to the plain language of the relevant statutes.” The People opposed the petition, citing Perry, supra, 32 Cal.App.5th 885 . Perry held that Proposition 64 “did not remove possession of marijuana in prison from the reach of Penal Code section 4573.6, the statute under which appellant [Perry] was convicted.” (Perry, supra, 32 Cal.App.5th at p. 887.) The People argued in their opposition papers that the holding in Perry controlled because the Supreme Court had granted review in Raybon but not in Perry. They did not assert that Wilbarn had possessed more than 28.5 grams of marijuana in prison. A hearing on Wilbarn’s petition was held on November 7, 2019. The trial court denied the petition. A notice of appeal was filed on November 7, 2019. II Discussion A. Statutory Construction This case presents a question of statutory construction or interpretation. “Statutory interpretation is a question of law that we review de novo. [Citation.]” (Bruns v. E- Commerce Exchange, Inc. (2011) 51 Cal.4th 717 , 724.) We are asked again to consider the proper construction of section 11362.45(d). “ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal 5 interpretation would result in absurd consequences [that] the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375 , 381.) “[O]ur interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.]” (People v. Park (2013) 56 Cal.4th 782 , 796.) “ ‘Thus, “we turn first to the language of the statute, giving the words their ordinary meaning.” [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ (People v. Rizo (2000) 22 Cal.4th 681 , 685.) In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ (In re Littlefield (1993) 5 Cal.4th 122 , 130.)” (People v. Briceno (2004) 34 Cal.4th 451 , 459.) We turn now to Proposition 64 and the parties’ competing statutory constructions of section 11362.45(d). B. Proposition 64 Section 11362.1 was added by Proposition 64. (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) Former section 11362.1, as added by Proposition 64, made it largely lawful under state and local law for persons 21 years of age or older to “[p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever” (1) “not more than 28.5 grams of marijuana not in the form of concentrated cannabis” and (2) “not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana 6 products.”7 (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) A 2017 amendment of section 11362.1 replaced the word “marijuana” with the word “cannabis.”8 (Stats. 2017, ch. 27, § 129, eff. June 27, 2017.) Section 11362.1(a) does not make it universally lawful for a person 21 years of age or older to possess 28.5 grams or less of cannabis. Section 11362.1(a) begins: “Subject to [s]ections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law . . . .” Importantly, the mere existence of a statutory exception to section 11362.1’s general declaration of lawfulness does not by itself create a criminal offense subject to statutorily prescribed punishment. 7 Section 11362.1(a), as added by Proposition 64, made it lawful under state and local law, subject to exceptions, for “persons 21 years of age or older to: [¶] (1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis; [¶] (2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products; [¶] (3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants; [¶] (4) Smoke or ingest marijuana or marijuana products; and [¶] (5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.” (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) 8 Section 11018 now defines “cannabis” to mean “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.” The definition “does not include either of the following: [¶] (a) Industrial hemp, as defined in [s]ection 11018.5. [¶] (b) The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.” (§ 11018.) Former section 11018, as amended by Proposition 64, defined “marijuana.” (Voter Information Guide, supra, text of Prop. 64, § 4.1, p. 180.) In 2010, when Wilbarn committed the crime of which he was convicted, section 11018 defined “marijuana” as “cannabis” is now defined, but the exceptions to the basic definition were different. (See Stats. 1972, ch. 1407, § 3, p. 2989.) 7 “ ‘The statutory phrase “notwithstanding any other provision of law” has been called a “ ‘term of art’ ” [citation] that declares the legislative intent to override all contrary law.’ [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969 , 983.) Accordingly, the prefatory phrase “notwithstanding any other provision of law” has a broad sweep. But it renders inapplicable “only those provisions of law that conflict with the act’s provisions” (ibid.) and not “every provision of law.” (Ibid.) Moreover, the “notwithstanding any other provision of law” proviso in section 11362.1 is expressly limited by the stated exceptions. Accordingly, section 11362.45(d), one of the provisions to which section 11362.1(a) is subject, necessarily overrides its “notwithstanding any other provision of law” language. Section 11362.45 was also added by Proposition 64. (Voter Information Guide, supra, text of Prop. 64, § 4.8, p. 182.) Section 11362.45(d), as enacted, made clear that “[n]othing in [s]ection 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting marijuana or marijuana products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in [s]ection 4573 of the Penal Code.” (Voter Information Guide, supra, text of Prop. 64, § 4.8, p. 182, italics added.) In 2017, section 11362.45 was amended to refer to “cannabis” and “cannabis products” instead of “marijuana” and “marijuana products.” (Stats. 2017, ch. 27, § 133, eff. June 27, 2017.) Wilbarn recognizes that section 11362.45(d) is an exception to section 11362.1(a). Wilbarn frames the issue as whether the crime of which he was convicted, which he describes as possession of less than 28.5 grams of marijuana, remains unlawful pursuant to section 11362.45(d). Wilbarn insists that the only issue is the scope of section 11362.45(d) and that “the plain language of [section 11362.45(d)] must be interpreted to exclude possession of marijuana.” He maintains that the “plain language” 8 of section 11362.45(d) “leads to the inevitable conclusion that possession of marijuana in prison is no longer criminal, while smoking or ingesting marijuana in prison remains a felony.” Wilbarn insists that “Perry was wrongly decided because it re-wrote section 11362.45” by inserting the word “possession” into its subdivision (d). In support of his “plain meaning” argument, Wilbarn points out that section 11362.1(a) separately uses the word “possess” and the phrase “smoke or ingest.” (See ante, fn. 7.) He maintains that this language establishes that “the drafters of Proposition 64 knew how to differentiate between possession and ingestion and applied this distinction in [section 11362.45(d)].” In his reply brief, Wilbarn contends that “the import” of People v. Fenton (1993) 20 Cal.App.4th 965 (Fenton) is that an appellate court “must follow the plain meaning of a statute when such meaning is clear.” He asserts that “[h]ere, the plain meaning of [section 11362.45(d)] is clear and this court must follow it.”9 The People argue that “[t]he text of [section 11362.45(d)] is dispositive.” Focusing on the phrase “[l]aws pertaining to smoking or ingesting cannabis or cannabis products,” they assert that given the broad definition of the word “pertain,” “it is reasonable to assume that voters intended to save not only laws focused narrowly on prohibiting smoking or ingesting cannabis in custodial institutions, but also laws that relate to, are concerned with, or are adjunct to such activity.” They argue that the language of section 11362.45(d) is a “savings clause,” which “establish[es] that the voters did not intend to repeal or otherwise affect contraband laws prohibiting the possession of 9 Recently, in Taylor, supra, ___ Cal.App.5th ___, this court concluded that in Fenton, supra, 20 Cal.App.4th 965 , the Third District incorrectly construed Penal Code section 4573. (Taylor, at p. ___.) This court determined that under Penal Code section 4573.6, cannabis is a controlled substance, the possession of which is prohibited by Division 10. (Taylor, at pp. ___-___.) 9 cannabis in prison.”10 The People further assert that Penal Code “[s]ection 4573.6 and the other contraband statutes are well within the broad language of the savings clause [in section 11362.45(d)].” Citing Perry, supra, 32 Cal.App.5th 885 , the People suggest that “there is little purpose for possessing 28.5 grams or less of cannabis in a custodial institution other than for someone in that institution ultimately to smoke or ingest it.” The People reason that “if the voters meant to limit [section 11362.45(d)] to laws that are focused narrowly on smoking or ingesting, one would expect the exception to cover ‘[l]aws prohibiting smoking or ingesting marijuana’ in the custodial context, rather than laws ‘pertaining to’ the same.” They maintain that “the only way to make the savings clause [of section 11362.45(d)] effectual is to construe it as saving laws predating Proposition 64 that relate to cannabis use in prison, as section 4573.6 and other contraband statutes do.” The People ask us to consider related statutes (see Pen. Code, §§ 4573, 4573.5, 4573.6, 4573.8, 4573.9; Welf. & Inst. Code, §§ 871.5, 1001.5) that are aimed at controlling contraband—including controlled substances or drugs—in prisons or other custodial settings. They argue that the prohibitions in these statutory provisions “ ‘pertain to’ smoking or ingesting cannabis in a custodial institution[] because they are all part of the prophylactic approach of interdicting cannabis, [and] thereby preventing its use.” The People point out that “the analyses [of] Proposition 64 [in the Voter Information Guide] . . . did not mention the contraband statutes or suggest that [the proposition] would amend or repeal them.” They argue that therefore “[t]he most careful of voters would have had no reason to believe that Proposition 64 would alter the comprehensive statutory scheme addressing cannabis and other controlled substances as 10 On appeal, the People do not dispute that the marijuana possessed by Wilbarn in violation of Penal Code section 4573.6 meets the current definition of “cannabis.” (See § 11018; ante, fn. 8.) 10 contraband in custodial institutions.” The People claim that the “ballot materials” for the proposition “confirm that the voters did not intend to legalize the possession of cannabis in custodial institutions.” The People suggest that their assessment of voters’ intent is bolstered by the fact that Penal Code section 4573.6 is not one of the specific statutory provisions, in accordance with which a person “may petition for a recall or dismissal of sentence . . . to request resentencing or dismissal” (§ 11361.8(a)). The People further contend that construing section 11362.45(d) “as preserving [Penal Code] section 4573.6 and the other contraband statutes” avoids the “unreasonable and unintended consequences” of a contrary construction making it lawful to possess 28.5 grams or less of cannabis in custodial settings. The People reiterate their claim that such consequences “were not disclosed to, or intended by, those who voted in favor of Proposition 64.” This court remains convinced that the analysis recently articulated in Taylor, supra, ___ Cal.App.5th ___ is correct. We adopt that reasoning here. Wilborn’s argument and the analysis of the Third District in Raybon fail to account for differences in the language used in various subdivisions of section 11362.45, such as the use of the phrase “[l]aws making it unlawful to” in subdivision (a) and the use of the phrase “[l]aws prohibiting” in subdivisions (b) and (c).11 We continue to adhere to the previous conclusion of this court that “[t]he use of the phrase ‘pertaining to’ in subdivision (d) [of section 11362.45], in contrast to the language used in subdivisions (a) 11 Section 11362.45 provides in part: “Section 11362.1 does not amend, repeal, affect, restrict, or preempt: [¶] (a) Laws making it unlawful to drive or operate a vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis products, including, but not limited to, subdivision (e) of Section 23152 of the Vehicle Code, or the penalties prescribed for violating those laws. [¶] (b) Laws prohibiting the sale, administering, furnishing, or giving away of cannabis, cannabis products, or cannabis accessories, or the offering to sell, administer, furnish, or give away cannabis, cannabis products, or cannabis accessories to a person younger than 21 years of age. [¶] (c) Laws prohibiting a person younger than 21 years of age from engaging in any of the actions or conduct otherwise permitted under Section 11362.1.” 11 through (c) [of that section], indicates an intent to carve out laws beyond those that only make unlawful or only prohibit the smoking or ingesting of cannabis. [Citations.]” (Herrera, supra, 52 Cal.App.5th at p. 992.) We agree with the other cases finding that the phrase “pertaining to” in section 11362.45(d) has a wide scope. (See Herrera, supra, 52 Cal.App.5th at p. 991, review granted; Whalum, supra, 50 Cal.App.5th at pp. 11-12, review granted; Perry, supra, 32 Cal.App.5th at p. 891.) The word “pertain” has been broadly defined to mean “to have some connection with or relation to something: have reference: relate.” (Merriam-Webster Unabridged Dict. [as of Jan. 26, 2021], archived at: .) We concur with the Perry court, which stated: “While section [11362.45(d)] does not expressly refer to ‘possession,’ its application to possession is implied by its broad wording—‘[l]aws pertaining to smoking or ingesting cannabis.’ Definitions of the term ‘pertain’ demonstrate its wide reach: It means ‘to belong as an attribute, feature, or function ( [as of Feb. 28, 2019]), ‘to have reference or relation; relate’ ( [as of Feb. 28, 2019]), ‘[b]e appropriate, related, or applicable to’ ( [as of Feb. 28, 2019] ). We would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.” (Perry, supra, 32 Cal.App.5th at p. 891.) As the Perry court observed, “[i]n the context of possession in prison, it is particularly obvious that possession must ‘pertain’ to smoking or ingesting. For what purpose would an inmate possess cannabis that was not meant to be smoked or ingested by anyone?” (Id. at p. 892.) In Perry, the First District Court of Appeal found that “Proposition 64, in sections 11362.1 and 11362.45, was intended to maintain the status quo with respect to the legal status of cannabis in prison.” (Perry, supra, 32 Cal.App.5th at p. 893.) It 12 determined that “a conclusion that [D]ivision 10 [of the Health and Safety Code] does not prohibit the possession of not more than 28.5 grams of cannabis for purposes of Penal Code section 4573.6 would make meaningless the express provision of Proposition 64 that its legalization of cannabis did not ‘amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting cannabis’ in penal institutions. (§ 11362.45, subd. (d).)” (Id. at p. 894.) We agree. Following Proposition 64, smoking or ingesting cannabis remains unlawful in many locations in California. (See, e.g., §§ 11362.3, subds. (a)(1) [“in a public place, except in accordance with [s]ection 26200 of the Business and Professions Code”], (a)(2) [“where smoking tobacco is prohibited”], (a)(3) [with specified exceptions, “within 1,000 feet of a school, day care center, or youth center while children are present”], (a)(5) [“in or upon the grounds of a school, day care center, or youth center while children are present”], 11362.4, subds. (a), (b), (c) [penalties for certain conduct described in section 11362.3, subd. (a)]; see also § 11357, subd. (c).) In addition, the declaration of lawfulness in section 11362.1 “does not permit any person to: [¶] . . . [¶] . . . [s]moke or ingest cannabis or cannabis products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation; [or to] [¶] . . . [s]moke or ingest cannabis or cannabis products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation [with a specified exception].” (§ 11362.3, subd. (a)(7), (a)(8).) Under legislation passed in 2017, smoking or ingesting marijuana while driving or riding as a passenger in a motor vehicle on highways or specified lands is punishable as an infraction. (Veh. Code, §§ 23220, 23221.) However, nothing in the laws enacted or amended by Proposition 64 makes smoking or ingesting marijuana or cannabis in prison or other custodial settings subject to punishment. Further, nothing in Penal Code sections 4573 to 4573.9—or Welfare and Institutions Code sections 871.5 and 1001.5—which were not amended by 13 Proposition 64, makes it a crime, subject to punishment, to smoke or ingest cannabis or marijuana in prison or other custodial settings. Significantly, section 11362.45(d) does not establish a new offense subject to punishment. Rather, section 11362.45 establishes that “[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt” certain types of laws. “ ‘Statutes must be interpreted, if possible, to give each word some operative effect.’ [Citation.] ‘We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.’ [Citation.]” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381 , 390.) Wilbarn’s proposed construction of section 11362.45(d) would leave the provision without any operative effect. Therefore, it should be rejected because there is a contrary reasonable construction that gives that provision effect. In Whalum, the Fourth District Court of Appeal concluded that the crime of violating Penal Code section 4573.812 (unauthorized possession of drugs, related paraphernalia, or alcoholic beverages in prison, jail, and other specified custodial settings) was “not affected by Proposition 64” and that “the trial court properly determined that Whalum was not entitled to relief [pursuant to section 11361.8].” 12 Penal Code section 4573.8 states in pertinent part: “Any person who knowingly has in his or her possession in any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any place where prisoners of the state are located under the custody of prison officials, officers, or employees, or in any county, city and county, or city jail, road camp, farm, or any place or institution, where prisoners or inmates are being held under the custody of any sheriff, chief of police, peace officer, probation officer, or employees, or within the grounds belonging to any jail, road camp, farm, place, or institution, drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages, without being authorized to possess the same by rules of the Department of Corrections, rules of the prison or jail, institution, camp, farm, or place, or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison, jail, institution, camp, farm, or place, is guilty of a felony.” 14 (Whalum, supra, 50 Cal.App.5th at p. 3.) The court reasoned: “[L]ong before Proposition 64 was adopted, case law recognized that although ‘the ultimate evil with which the Legislature was concerned was drug use by prisoners,’ the Legislature ‘ “chose to take a prophylactic approach to the problem by attacking the very presence of drugs and drug paraphernalia in prisons and jails.” ’ [Citation.] Thus, even though Penal Code section 4573.8 criminalizes possession rather than use of drugs in a correctional institution, it is nevertheless properly described as a law ‘pertaining to smoking or ingesting cannabis’ in such a setting, as it is part of [a] prophylactic approach to prevent prisoners from using drugs.” (Id. at p. 12, fn. omitted.) The court found: “[I]t does not strain the meaning of ‘pertaining to’ for someone to say that a law criminalizing the possession of cannabis is a law ‘pertaining to’ the smoking or ingestion of cannabis, as one has a causal relationship to the other. Specifically, it is necessary to possess cannabis in order to smoke or ingest it, and cannabis is usually possessed in prison because someone wants to use it.” (Id. at p. 12, fn. 8.) In Herrera, a direct appeal from a judgment, this court concluded that “[the] defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail.” (Herrera, supra, 52 Cal.App.5th at p. 985.) This court determined that “Proposition 64 did not decriminalize the possession of cannabis in a penal institution” (ibid.) and that the “defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail” after Proposition 64. (Herrera, supra, 52 Cal.App.5th at p. 987.) Agreeing with the analysis in Perry, this court observed that “in order for section 11362.45(d), which carves out “ ‘[l]aws pertaining to smoking or ingesting” cannabis in prison or jail, to have any meaning in view of the preexisting statutory scheme, section 11362.45(d) must be construed as having a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail, as no such law exists.’ ” (Id. at p. 992.) We continue to adhere to that view. 15 Nothing in the legislative history undermines our construction of section 11362.45(d). As the Perry court observed: “The Voter Guide did not in any way address the subject of cannabis possession or use in prison.” (Perry, supra, 32 Cal.App.5th at p. 895; see Voter Information Guide, supra, analysis of Prop. 64 by the Legislative Analyst, pp. 9-97; id., argument in favor of Prop. 64 and rebuttal to the argument in favor of Prop. 64, p. 98; id., argument against Prop. 64 and rebuttal to the argument against Prop. 64, p. 99.) Wilbarn was not eligible for relief pursuant to section 11361.8. DISPOSITION The order denying the petition brought pursuant to section 11361.8 is affirmed. 16 _________________________________ ELIA, ACTING P.J. WE CONCUR: _______________________________ BAMATTRE-MANOUKIAN, J. _______________________________ DANNER, J. People v. Wilbarn H047537
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https://www.courts.ca.gov/opinions/nonpub/B304108.PDF
Filed 1/26/21 P. v. Reyes CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE THE PEOPLE, B304108 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA120197) v. ALFREDO E. REYES, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ Alfredo Reyes challenges the trial court’s summary denial of his petition for resentencing under Penal Code section 1170.95.1 To be eligible for relief under the statute, a defendant must make a prima facie case that he was convicted of murder under the natural and probable consequences doctrine, or of felony murder in a case in which he either was not a major participant in the felony or did not act with reckless indifference to human life. (See People v. Allison (2020) 55 Cal.App.5th 449 , 460-462, review denied Dec. 23, 2020, S265450 (Allison); People v. Galvan (2020) 52 Cal.App.5th 1134 , 1139-1140, review granted Oct. 14, 2020, S264284 (Galvan).) Reyes contends the trial court erred in denying his petition because he established a prima facie case for relief by alleging he was not the actual killer and was prosecuted as an aider and abettor to felony murder. We disagree and affirm. At Reyes’s 1997 trial, the jury found true a felony murder special circumstance allegation under section 190.2, subdivision (a)(17), which required proof of the same elements that all felony murder charges must meet under current law. Therefore, Reyes is ineligible for resentencing under section 1170.95 as a matter of law. Reyes’s remaining arguments are without merit. FACTUAL AND PROCEDURAL SUMMARY In an unpublished opinion involving Reyes’s direct appeal (People v. Reyes (June 29, 1998, B114256)), we described the facts of the case as follows. “At about 11:30 p.m. on August 2, 1995, Reyes and a cohort entered the Club Casbah bar and told those present, ‘This is a 1 Subsequent statutory references are to the Penal Code. 2 robbery, everyone down on your knees, give me all your money.’ Reyes then fired a rifle, wounding an employee (Priscilla Villalobos), who fell to the floor. Robert Hirtle (a patron) saw Reyes point his rifle toward the ceiling and saw Villalobos fall. Hirtle, his eye on Reyes (who was wearing a baseball cap backwards and a bandanna covering the lower part of his face), put his wallet on the bar, then continued to watch as Reyes took money from two other patrons while Reyes’s cohort went to the cash register. When the perpetrators left, one was overheard telling the other, ‘you should have fucking shot them all.’ An expended .22-caliber casing was found at the scene. “At about 1:45 a.m. on August 5, Reyes and a cohort entered the Kopper Keg. Olga Gutierrez (an employee who was behind the bar) heard gunshots, looked up, and saw two men with their faces partially covered. While the man with the rifle stayed at the entrance, Reyes (gun in hand) approached Gutierrez, said it was a robbery, and asked for the money in the cash register. When Gutierrez told him to take the money himself, Reyes threatened to kill her, then shot her in the arm. Reyes then jumped over the bar, grabbed another employee (Joaquin Lopez) by the shirt, put his gun to the back of Lopez’s neck, and told Lopez to open the cash register. Lopez complied, and Reyes took $80, then jumped back over the bar. Gutierrez heard another shot and saw Antonia Gonzalez fall (she died at the scene from a single gunshot wound). Five .22-caliber casings were found at the scene. “At about 8:20 p.m. on August 5, Reyes and Anthony Rognlie entered Topper’s Bar. Reyes quickly approached Jose Guarderas (the bartender), jumped over the bar, took out a handgun, pointed it at Guarderas, and took money from the cash 3 register. Rognlie, with a bandana on his head and a .22-caliber rifle in his hand, told everyone to get down. John Kowalski (a customer) saw Rognlie holding the rifle and also saw the culprits run out together. “Reyes was identified by Hirtle (at a photo lineup) as one of the perpetrators at the Club Casbah, by Guarderas (at a live lineup) as one of the perpetrators at Topper’s, and by Gutierrez (following a live lineup) as resembling one of the perpetrators at the Kopper Keg. . . . At trial, the People presented evidence of the facts summarized above, plus evidence that Reyes and Rognlie lived at separate locations in the vicinity of the Club Casbah, and that the three bars were located within three miles of each other. A criminalist testified that the casings recovered at the Club Casbah and the Kopper Keg were fired from the same firearm. Hirtle and Guarderas identified Reyes with certainty, and Gutierrez testified that Reyes ‘resemble[d]’ one of the robbers.” (People v. Reyes, supra, B114256.) In 1997, a jury convicted Reyes of murder (§ 187, subd. (a)), three counts of robbery (§ 211), and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury also found true the special circumstance allegation that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)). The verdict form indicates the jury found Reyes guilty of murder, but it did not include a finding that the crime was first or second degree murder. The prosecutor conceded this was a drafting error. As a result, the murder was deemed to be second degree murder by operation of law. (See § 1157.) The trial court sentenced Reyes to 15 years to life for second degree murder, plus 38 years on the remaining charges. 4 We affirmed the conviction. Our decision did not address any issues related to the special circumstance finding. In March 2019, Reyes petitioned for resentencing under section 1170.95. He alleged that he was prosecuted under a now- invalidated theory of felony murder. He also requested the appointment of counsel. On December 16, 2019, on considering a response filed by the People, and without appointing counsel, the trial court summarily denied the petition in a brief order that found Reyes ineligible for resentencing “because he was the actual killer.” Reyes timely appealed. DISCUSSION A. Senate Bill No. 1437 and Section 1170.95 In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which eliminated the natural and probable consequences doctrine in cases of murder, and limited the application of the felony-murder doctrine. (People v. Verdugo (2020) 44 Cal.App.5th 320 , 323, review granted Mar. 18, 2020, S260493 (Verdugo).) The legislation also enacted section 1170.95, which provides a vehicle for persons who were convicted of murder pursuant to a now-invalidated theory to petition to have their conviction vacated and to be resentenced. (Ibid.; see § 1170.95, subd. (a).) A person convicted of felony murder may petition the trial court for resentencing “when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial 5 or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a), italics added.) To obtain relief, a defendant must file a declaration affirming that he is eligible for resentencing under the new law. (See § 1170.95, subd. (b)(1).) The trial court considers the petition according to a three-step process. First, the court “review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.” (§ 1170.95, subd. (c).) This is “a preliminary review of statutory eligibility for resentencing,” akin to an initial review of a petition for resentencing under Propositions 36 and 47. (Verdugo, supra, 44 Cal.App.5th at p. 329.) “The court’s role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.” (Ibid.) If the petition survives this first stage of review, the court must appoint counsel if the petitioner has so requested. (§ 1170.95, subd. (c).) The prosecutor then files a response, and the petitioner may file a reply. The review at this stage “is equivalent to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings, which typically follows an informal response to the habeas corpus petition by the Attorney General and a reply to the informal response by the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) Under this standard, “[i]f the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall 6 issue an order to show cause” and conduct an evidentiary hearing. (§ 1170.95, subds. (c) and (d).) “[I]f the petitioner’s ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties’ briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.) B. Reyes Is Ineligible for Resentencing Senate Bill No. 1437 amended section 189 to authorize a conviction for felony murder only if the defendant was the actual killer, aided and abetted in a first degree murder with the intent to kill, or was a major participant in the underlying crime who acted with reckless indifference to human life. (Verdugo, supra, 55 Cal.App.4th at p. 326; see § 189, subd. (e).) “These are identical to the requirements of a felony-murder special circumstance now and in 1997” at the time of Reyes’s trial, as reflected in the instructions received by the jury in his case. (Allison, supra, 55 Cal.App.5th at p. 457.) Thus, as in Allison, the special circumstance finding shows as a matter of law that Reyes still could be convicted of felony murder even under the newly amended version of section 189, and prevents Reyes from making a prima facie case that he is eligible for resentencing. (Ibid.) Reyes argues that he is eligible for resentencing due to changes in the law regarding special circumstance allegations. In 2015 and 2016, the California Supreme Court clarified the circumstances under which a defendant could be deemed a major 7 participant in an underlying felony who acted with reckless indifference to human life. (People v. Clark (2016) 63 Cal.4th 522 (Clark); People v. Banks (2015) 61 Cal.4th 788 (Banks).) Reyes contends that special circumstance findings which predate Banks and Clark are eligible for resentencing relief under section 1170.95. We rejected this argument in Galvan and Allison, and decline to revisit those decisions here. The argument that pre- Banks/Clark special circumstance findings are not sufficient to preclude resentencing under section 1170.95 fails because it does not depend on Senate Bill No. 1437’s changes to the felony- murder rule. Rather, as we concluded in Galvan and Allison, it depends on “the clarification of the requirements for the special circumstance finding in Banks and Clark,” and not “ ‘‘because of changes’ made by Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142; see § 1170.95, subd. (a)(3); accord, Allison, supra, 55 Cal.App.5th at p. 458.) Where, as here, “the prior [special circumstance] finding shows the petitioner meets the requirements for murder liability under amended sections 188 and 189, then it is not true that the petitioner could not be convicted of murder because of the changes to sections 188 and 189, and the petition must be denied.” (Allison, supra, 55 Cal.App.5th at pp. 461-462, italics omitted.) Reyes next argues that we must disregard the jury’s robbery special circumstance finding under section 190.2, subdivision (a)(17), because there was no first degree murder conviction to which the special circumstance finding lawfully could attach. The lack of a jury finding of first degree murder does not by itself demonstrate that Reyes is entitled to 8 resentencing under section 1170.95. Reyes was not convicted of first degree murder due to an error in drafting the verdict form; not “ ‘because of changes’ made by Senate Bill No. 1437.” (Galvan, supra, 52 Cal.App.5th at p. 1142.) “By finding a special circumstance allegation true, the jury ma[de] precisely the same finding it must make in order to convict a defendant of felony murder under the new law.” (Id. at p. 1141.) This finding is left undisturbed and remains valid, even though the trial court was unable as a matter of law to impose sentence consistent with the finding. Based on this finding, Reyes could still be convicted of murder, and thus he is ineligible as a matter of law to have his murder conviction vacated. (Ibid.; accord, Allison, supra, 55 Cal.App.5th at p. 457.) Finally, Reyes argues we must reverse because the trial court based the denial of his petition on its erroneous finding that he was the “actual killer.” He notes that our opinion on direct appeal did not determine the identity of the actual killer, but rather inferred it was not Reyes. He also references our decision on direct appeal by his codefendant, Rognlie, in which we stated that an “unidentified man shot and killed Antonia Gonzales.” (People v. Rognlie (June 29, 1998, B115889) [nonpub. opn.].) We need not decide whether the trial court erred in finding that Reyes was the actual killer. “ ‘ “ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936 , 972.) Because Reyes’s petition 9 was correctly denied for the reasons explained above, this argument fails. C. Appointment of Counsel Reyes also argues the trial court’s failure to appoint counsel is structural error that requires reversal because a petitioner under section 1170.95 is entitled to the appointment of counsel once the trial court asks for briefing from the People. (See Verdugo, supra, 44 Cal.App.5th at p. 330 [“if the petitioner’s ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties’ briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief”]; People v. Lewis (2020) 43 Cal.App.5th 1128 , 1140, review granted Mar. 18, 2020, S260598 [the requirement to appoint counsel arises “after the court determines that the petitioner has made a prima facie showing that [the] petitioner ‘falls within the provisions’ of the statute, and before the submission of written briefs and the court’s determination whether [the] petitioner has made ‘a prima facie showing that he or she is entitled to relief’ ”].) While we agree with Reyes that the trial court should have appointed counsel after it asked for briefing from the People, we do not agree that it amounts to structural error. Rather, the trial court’s failure to appoint counsel after accepting briefing from the People and prior to the issuance of an order to show cause is subject to review for harmless error. (See People v. Daniel (2020) 57 Cal.App.5th 666 , petn. for review pending, petn. filed Dec. 29, 2020, S266336; People v. Law (2020) 48 Cal.App.5th 811 , 826, 10 review granted July 8, 2020, S262490.) Here, the trial court’s error was “harmless under any standard of review.” (People v. Edwards (2020) 48 Cal.App.5th 666 , 675, review granted July 8, 2020, S262481, citing Chapman v. California (1967) 386 U.S. 18 , 24 [ 87 S.Ct. 824 , 17 L.Ed.2d 795 ] [constitutional error] and People v. Watson (1956) 46 Cal.2d 818 , 836 [state law error]; see also Daniel, supra, at p. 678 [applying harmless error standard under Watson]; Law, supra, at p. 826 [applying harmless beyond a reasonable doubt standard under Chapman].) Had counsel been appointed below, the result would be no different. As noted ante, Reyes failed to demonstrate eligibility under the statute. Moreover, “[h]is arguments contesting that failure have all been fairly presented by his appellate counsel, and an appellate record preserved.” (People v. Swanson (2020) 57 Cal.App.5th 604 , 618, petn. for review pending, petn. filed Dec. 24, 2020, S266262.) DISPOSITION The trial court’s order is affirmed. NOT TO BE PUBLISHED FEDERMAN, J.* We concur: *Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 11 ROTHSCHILD, P. J. BENDIX, J. 12
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Filed 1/26/21 P. v. Gonzales CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B304024 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. NA072796) v. ROBERT GONZALES, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos, Supervising Deputy Attorney General, Seth M. Friedman and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Robert Gonzales appeals from an order summarily denying his petition for resentencing under Penal Code section 1170.951 after the appointment of counsel, briefing, and a hearing. He contends that the trial court erred by relying on statements made in the appellate opinion from his direct appeal from the judgment of conviction. We conclude that the trial court appropriately relied on our prior opinion, in which we held that sufficient evidence supported defendant’s second degree murder conviction based on a theory that defendant was an actual killer who acted with malice aforethought. We affirm the order. FACTUAL BACKGROUND2 1. Prosecution Evidence Defendant was part of a group of gang members who killed Christopher Ash, a 204th Street gang member accused of “snitching” on another 204th Street gang member (Jonathan Fajardo) regarding the murder of Cheryl Green. In separate proceedings, Fajardo, Daniel 1 Undesignated statutory references are to the Penal Code. 2 We previously granted defendant’s request to take judicial notice of the prior appellate record and opinion to “establish the facts and circumstances underlying [his] conviction.” We recite the factual and procedural background from the record on appeal in this case, and from defendant’s prior appeal in People v. Gonzales (Aug. 13, 2013, B237860) [nonpub. opn.] (Gonzales I). 2 Aguilar, and Raul Silva were convicted for first degree murder in connection with Ash’s murder.3 A. The Green Murder On December 15, 2006, Fajardo fired on a group of individuals gathered in the driveway of a home, killing Green and wounding three other individuals. As part of an investigation, police officers executed search warrants and searched the residences of various individuals connected to the 204th Street gang. During the search of Ash’s apartment, the police took Ash into custody for questioning and escorted seven other individuals, including Fajardo, Aguilar, and Jose Covarrubias, out of Ash’s apartment. B. The Ash Murder Covarrubias, another member of the 204th Street gang and accomplice in Ash’s killing, was the key prosecution witness at trial.4 According to Covarrubias, Ash was murdered inside Silva’s residential garage on December 28, 2006. 3 At defendant’s trial, gang experts established that despite being a member of a different gang (the Fries Street gang), defendant acted for the benefit of the 204th Street gang during the commission of Ash’s murder. 4 In exchange for testifying truthfully against his accomplices, Covarrubias pled guilty to voluntary manslaughter and was sentenced to 22 years imprisonment. 3 In the late afternoon of December 28, 2006, Covarrubias and three other 204th Street gang members (Silva, Aguilar, and Eugenio Claudio) drove to Silva’s house. The men entered the garage and saw defendant (who Covarrubias had never met before) and an unidentified woman. When the woman left a few minutes later, Fajardo and Juan Carlos Pimentel, another member of the 204th Street gang, arrived at the garage. Pimentel pulled Covarrubias aside, at which time Covarrubias told him that he believed Ash was a snitch. According to Covarrubias, all seven men—including defendant— discussed the matter together. Pimentel stated, “[w]e’re gonna [sic] take care of Christopher Ash because of some snitching.” Pimentel told Covarrubias to follow his lead and “tear up” Ash’s body whenever he arrived. Everyone agreed that Aguilar would bring Ash to the garage, where he would be killed. Defendant offered to drive Aguilar to pick up Ash, and before leaving, defendant gave Covarrubias and Pimentel a knife.5 Approximately 20 minutes later, defendant and Aguilar returned to the garage with Ash. After Ash entered the garage, Fajardo struck him from behind with the butt of a shotgun. According to Covarrubias, Ash replied, “What the fuck? I’m not a snitch” before defendant, Aguilar, Silva, and Claudio rushed over and began punching him. Pimentel told everyone to calm down. As he walked Ash toward a Pepsi machine, Pimentel stabbed Ash in the neck, causing him to fall down. 5 Covarrubias provided ambiguous and conflicting statements about defendant furnishing a knife. 4 Pimentel stabbed Ash in the chest, and Covarrubias stabbed Ash in the stomach before vomiting and dropping the knife. Defendant then “pushed [Covarrubias] to the side,” picked up the knife, and rapidly stabbed Ash “a lot of times” in the stomach before Pimentel turned Ash over and stabbed him in the back. The men wrapped Ash’s body in a tarp and blanket, and placed the body inside a van. Fajardo and Pimentel left in the van while the other men, including defendant, stayed behind to clean up the garage with water and paint thinner. The police discovered Ash’s body the same evening on December 28. Ash died of stab wounds, 11 to the chest and 32 to the abdomen. The prosecution played for the jury a February 7, 2007 interview between defendant and the police wherein defendant provided inconsistent and false statements about the murder. Defendant first denied that he had been at Silva’s home the night of December 28, 2006, and he denied meeting Ash, Covarrubias, and Aguilar. Later, defendant admitted that he had seen Ash at Silva’s residence and that the murder had occurred, but claimed that he was inside the home when Ash was killed. Finally, defendant admitted that he had heard the other men talk about a snitch; that he and Aguilar had picked up Ash; and that when they returned, someone hit Ash with a stick, at which time defendant left the garage. 2. Defense Evidence Defendant testified on his own behalf and denied any involvement in Ash’s murder. Defendant denied hearing a conversation about 5 planning to stab someone. Defendant agreed to pick up Aguilar’s “friend,” and when they arrived at the garage, defendant saw someone hit Ash in the back of the head with an object. At that point, defendant left and went inside Silva’s residence. 3. Information, Verdict, and Sentence Defendant was charged with first degree murder (§ 187, subd. (a)), three special circumstances allegations, an allegation of personal use of a deadly weapon (a knife) (§ 12022, subd. (b)(1)), and a gang enhancement (§ 186.22, subd. (b)(1)(C)). The jury was instructed on multiple theories of culpability for murder, including first degree premeditated murder, second degree murder based on malice aforethought but without deliberation and premeditation, and a homicide that was the natural and probable consequences of an intentional act—either assault with a deadly weapon or intimidating a witness by force—committed with conscious disregard for human life. By general verdict on May 3, 2011, the jury acquitted defendant of first degree murder, but convicted him of second degree murder. The jury found the gang enhancement to be true, but found the personal use of a deadly weapon not to be true. The court sentenced defendant to 15 years to life. PROCEDURAL BACKGROUND Defendant challenged his conviction on two grounds in his direct appeal in Gonzales I. As relevant here, defendant argued that his 6 murder conviction should be reversed because there was insufficient evidence to support liability for second degree murder.6 He argued that the jury, by acquitting him of first degree murder, “necessarily rejected Mr. Covarrubias’ testimony” that defendant was part of a group that agreed to kill Ash. He asserted that “[n]o jury could have reached a second degree murder conviction based upon the testimony of Mr. Covarrubias, who was clearly out to pin the murder on [defendant] to preserve the benefit of his bargain with the prosecution.” Similarly, defendant argued the jury could have only reached its verdict on second degree murder based on the natural and probable consequences doctrine to which no evidence was presented that defendant intended to aid and abet an assault or witness intimidation. We rejected these arguments and affirmed defendant’s conviction. Because the jury’s general verdict did not disclose which theory of liability it had relied upon to convict defendant of second degree murder, we began with the premise that defendant’s conviction could be sustained on any theory presented to the jury that was supported by substantial evidence. (People v. Curtin (1994) 22 Cal.App.4th 528 , 531.) Without determining whether the evidence supported the conviction on a natural and probable consequences theory, we concluded that “substantial evidence support[ed] the theory of second degree murder based upon the theory of a homicide committed with malice aforethought.” (Gonzales I, supra, at p. 6.) Our conclusion was based 6 Defendant also contended that the trial court erred when it denied his motion for new trial based on a claim of juror misconduct. 7 on “more than ample evidence” from which the jury “reasonably could have concluded that after defendant, Aguilar and Ash returned to the garage and Fajardo hit Ash on the back of the head . . . defendant joined in the fatal assault upon Ash by stabbing him multiple times.” (Id. at p. 6, original italics.) Our conclusion, we held, was not undermined by the jury’s not true finding on the personal use of a deadly weapon. (Id. at p. 6, fn. 15, citing People v. Brown (1989) 212 Cal.App.3d 1409 , 1421 [inconsistent verdicts are “within the province of the jury as an exercise of their mercy. It does not compel reversal of the conviction”], overruled on another ground in People v. Hayes (1990) 52 Cal.3d 577 , 628, fn. 10; People v. Santamaria (1994) 8 Cal.4th 903 , 911; People v. Lewis (2001) 25 Cal.4th 610 , 654–656].) Following the enactment of Senate Bill No. 1437 (S.B. 1437), defendant filed a petition for resentencing under section 1170.95, which provides that persons who were convicted under theories of felony murder or murder under the natural and probable consequences doctrine, and who could no longer be convicted of murder following the enactment of S.B. 1437, may petition the sentencing court to vacate the conviction and resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) In his petition for resentencing, defendant stated that an information had been filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; at trial, he was convicted of second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; and he could not now be convicted of 8 second degree murder because of the changes made to sections 188 and 189. Defendant requested that counsel be appointed on his behalf. The trial court appointed counsel for defendant, the People filed an opposition, and defendant filed a reply. At a hearing on the petition, defense counsel argued that the jury’s not true finding on the personal use deadly weapon enhancement meant that it had rejected the factual theory that defendant stabbed Ash. Consistent with our opinion in Gonzales I, the court rejected the argument, reasoning that the jury could well have convicted defendant of second degree murder as an actual killer who acted with malice aforethought. In the alternative, the court found that defendant could have been convicted of direct aiding and abetting murder and conspiracy to commit murder, though neither theory was presented to the jury. The court summarily denied the petition for resentencing. Defendant timely filed a notice of appeal. DISCUSSION 1. Governing Law The legislature enacted S.B. 1437 “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) S.B. 1437 also “added a crucial limitation to section 188’s definition of malice for purposes of the crime of murder.” (People v. 9 Verdugo (2020) 44 Cal.App.5th 320 , 326 (Verdugo), rev. granted, S260493, Mar. 18, 2020.) Under the revised section 188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43 Cal.App.5th 1128 , 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.) Section 1170.95, as enacted by S.B. 1437, permits individuals who were convicted of felony-murder or murder under the natural and probable consequences doctrine, but who could not be convicted of murder following S.B. 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1170.95, subd. (a); see People v. Johns (2020) 50 Cal.App.5th 46 , 54 [“Now, a person so accused must have killed the victim, aided the person who did kill the victim with the intent to kill [them], or acted as a major participant in the felony with reckless indifference to human life”].) A petition for relief under section 1170.95 must include a declaration by the petitioner that he is eligible for relief under section 1170.95 based on all the requirements of subdivision (a), the superior court case number and year of the petitioner’s conviction, and a request for appointment of counsel, should the petitioner seek appointment. (§ 1170.95, subd. (b)(2).) If the petition includes the required information, subdivision (c) of section 1170.95, prescribes “a two-step process” for the court to determine if it should issue an order to show cause. (Verdugo, supra, 44 Cal.App.5th at p. 327.) The court first “review[s] the petition and determine[s] if the petitioner has made a prima facie showing that the 10 petitioner falls within the provisions of this section.” (§ 1170.95, subd. (c).) The court then appoints counsel, if requested, and reviews the petition a second time after briefing by the parties to determine if petitioner has established a prima facie case for relief. (Ibid.; see Lewis, supra, 43 Cal.App.5th at p. 1140.) At this stage, the court may review the petitioner’s record of conviction to determine whether the allegations set forth in the petition are untrue as a matter of law. (Verdugo, supra, at p. 333; Lewis, supra, 43 Cal.App.5th at p. 1138, quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23–150 to 23–151.) If the court concludes the petitioner has made a prima facie showing, it must issue an order to show cause. (§ 1170.95, subd. (c); Verdugo, supra, at p. 328.) “Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95, subd. (d)(1).) 2. Analysis Defendant contends the trial court erred by relying on our prior opinion to summarily deny his petition for resentencing. He asserts this was error because the opinion contains hearsay statements that do not fall within an exception to the hearsay rule, and because the trial court made independent factfinding beyond the theories on which the jury was instructed. 11 We agree that the trial court should not have engaged in judicial factfinding to find defendant culpable of theories that were neither charged by the People nor presented to the jury. The court’s error is of no moment, however, as our prior opinion establishes that defendant is ineligible for relief as a matter of law. (People v. Chism (2014) 58 Cal.4th 1266 , 1295, fn. 12 [“‘we review the ruling, not the court’s reasoning, and, if the ruling was correct on any ground, we affirm’”]; People v. Edwards (2020) 48 Cal.App.5th 666 , 675 [any procedural errors by the trial court “were harmless under any standard of review [citations] and remand would be an idle act” because defendant did not fall within the provisions of § 1170.95 as a matter of law].) The trial court properly utilized Gonzales I to determine the basis of defendant’s conviction—that defendant was an actual killer who acted with malice aforethought—to determine whether the allegations in his petition were untrue as a matter of law. “A court of appeal opinion, whether or not published, is part of the appellant’s record of conviction” that may be reviewed when ruling on a section 1170.95 petition. (Verdugo, supra, 44 Cal.App.5th at p. 333; People v. Cruz (2017) 15 Cal.App.5th 1105 , 1110.) Analogous petitioning procedures for resentencing under sections 1170.18 and 1170.126 contemplate a similar gatekeeping function in which trial courts review the record of a petitioner’s conviction to determine if the allegations set forth by the petitioner are untrue as a matter of law. (See People v. Washington (2018) 23 Cal.App.5th 948 , 955 [§ 1170.18]; People v. Oehmigen (2014) 232 Cal.App.4th 1 , 6–7 [§ 1170.126].) As section 1170.95 makes clear, petitions under this new law are no exception. (See § 1170.95, subd. 12 (b)(2) [“[i]f any of the information required” under subdivision (a) is missing, the court may deny the petition unless the information can be “readily ascertained by the court”]; Cooley v. Superior Court (2002) 29 Cal.4th 228 , 249 [to “readily ascertain[]” missing information, court must be permitted to consider documents outside the petition, including the record of conviction].) When considering defendant’s record of conviction during the prima facie stages of review, the trial court should have limited its review to determining whether the petitioner is ineligible for relief as a matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 328–330.) To do so, the trial court could (and did) look at Gonzales I “for the nonhearsay purpose of determining the basis of” defendant’s conviction. (People v. Woodell (1998) 17 Cal.4th 448 , 459.) The “basis of the conviction” may be established when an appellate opinion “logically shows what the original trial court found,” including “the issue the jury has to resolve in determining whether the conviction is a qualifying one.” (Id. at p. 460; accord, People v. Trujillo (2006) 40 Cal.4th 165 , 180 [“an appellate court decision . . . can be relied upon to determine the nature of a prior conviction because it may disclose the facts upon which the conviction was based”].) Here, defendant was required to make a prima facie showing that he “could not be convicted of first or second degree murder because of changes to Section 188 or 189” following the enactment of S.B. 1437. (§ 1170.95, subd. (a)(3), italics added.) Our prior opinion in Gonzales I makes clear—and defendant does not dispute—that the jury was 13 instructed on a theory of culpability for second degree murder based on defendant acting with malice aforethought as an actual killer. S.B. 1437 did not alter the law regarding criminal liability for this category of offender. (Stats. 2018, ch. 1015, § 1, subds. (f), (g).) Indeed, we rejected defendant’s argument on direct appeal that substantial evidence did not support a theory that he was an actual killer. We held that “substantial evidence supports the theory of second degree murder based upon the theory of a homicide committed with malice aforethought.” (Gonzales I, supra, at p. 6.) Such basis for defendant’s conviction means that defendant cannot demonstrate, as a matter of law, that he could not now be convicted of second degree murder. We shall not disturb our prior holding in this appeal. (See Lewis, supra, 43 Cal.App.5th at pp. 1138–1139; People v. Garcia (2020) 57 Cal.App.5th 100 , 108; People v. Gray (2005) 37 Cal.4th 168 , 196– 197.) Therefore, the court did not err in denying the petition for resentencing. // // // // // // // // // 14 DISPOSITION The order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS WILLHITE, Acting P. J. We concur: COLLINS, J. CURREY, J. 15
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Filed 1/26/21 Lee v. Park CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE KYUNG HWAN LEE, B300015 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 18STCV06972) v. YOUNG CHUN PARK et al., Defendants and Respondents. APPEAL from an order of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed. Henry M. Lee for Plaintiff and Appellant. Daley & Heft, Lee H. Roistacher, Robert W. Brockman, Jr., and Kimberly A. Sullivan for Defendants and Respondents. ____________________________ The dispute underlying this appeal of an order granting defendants’ anti-SLAPP1 motion is a war between factions in a church and competing pastors. Plaintiff is one of those pastors. In prior litigation, defendants filed a cross-complaint accusing plaintiff of sex crimes, adultery and bribery, among other bad acts. After the trial court dismissed that cross-complaint without prejudice, plaintiff filed a slander suit against defendants who had brought the cross-complaint. Those defendants filed the anti-SLAPP motion before us asserting that their cross-complaint is within the ambit of the anti-SLAPP statute as petitioning activity in a judicial proceeding. They further argue that because the litigation privilege2 bars plaintiff’s slander claim on the merits, plaintiff cannot show a probability of succeeding on his slander claim, which probability is part of the anti-SLAPP analysis. As set forth below, we agree with defendants both as to the applicability of the anti-SLAPP statute and plaintiff’s inability to show probability of success on the merits of his slander claim. Plaintiff seeks to avoid application of the anti-SLAPP statute by relying on statements outside of the operative complaint. Because application of the anti-SLAPP statute is framed by the existing pleadings and because these purported other statements have no support in the record, plaintiff’s effort fails. Finally, we reject plaintiff’s argument that the trial court 1 SLAPP is an acronym for “ ‘[s]trategic lawsuit against public participation.’ ” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924 , 929, fn. 1.) 2 Civil Code section 47, subdivision (b). 2 erred in exercising its discretion to consider defendants’ late anti- SLAPP motion. In sum, we affirm. BACKGROUND This matter follows on the heels of litigation over the rightful pastor and ownership of a church. We first describe the prior litigation and then turn to the current litigation. 1. L.A. Dong San Church Corp., et al. v. Young Chun Park, et al. (BC654597) On March 22, 2017, the Los Angeles Dong San Church Corporation, The Korean Methodist Church, and The Korean Methodist Church of the Americas sued Young Chun Park, Los Angeles Dong San Church Corporation, Ki Hyung Han, Mee Young Koba, and Eric Soo Chul Kang (referred to as the Church Defendants). The plaintiffs asserted causes of action for declaratory relief, breach of fiduciary duty, accounting, and quiet title. a. Operative cross-complaint In its first amended cross-complaint (referred to as the cross-complaint), filed October 5, 2017, the Church Defendants (who include defendants in the current case) alleged causes of action for negligence, intentional infliction of emotional distress, and breach of fiduciary duty. The cross-complaint alleged that Park was the church’s head minister and chief executive officer. The Church Defendants recognized that another faction of the church membership wanted to appoint Lee as head minister. According to the cross-complaint, “in or about 2000, Lee had embezzled 3 approximately USD $200,000 while he was the head of the Finance Team of a district conference of the Korean Methodist Church (‘KMC’) in Korea; . . . Lee spent such funds at hostess bars; . . . [Lee] was charged with committing rape including possibly gang rape of female patrons or hostesses at bars; and that Lee then resigned from his pastor position leaving KMC entirely.” (Some capitalization omitted.) Lee “was known . . . as a repeat offender of sexual harassment and sex crime . . . .” The cross-complaint also alleged that the church did not want Lee as pastor. On December 27, 2017, the trial court entered a dismissal of the cross-complaint without prejudice.3 b. Operative complaint The following allegations are from the second amended complaint. There was a rift among church members, with some supporting Young Chun Park as pastor and others supporting Kyung Hwan Lee (the plaintiff and appellant in the current case).4 The plaintiffs accused Park “of misusing public funds, embezzling, pastoral malpractice, forging documents, and committing other faults.” “Park has no authority of any kind to act as Pastor” of the church. The plaintiffs further alleged that the Church Defendants breached their fiduciary duties and embezzled money from the church. According to the operative 3 The order of dismissal was included in Lee’s request for judicial notice, which we granted. There is nothing in the record indicating why the trial court dismissed the cross-complaint. 4 While the record contains various spellings of the plaintiff’s name, we refer to him using the spelling indicated in his operative complaint. 4 complaint, the Church Defendants unlawfully encumbered church property and unlawfully sold church property. The plaintiffs sought several declarations from the trial court in the operative pleading, including that Park’s actions as a pastor were void. The plaintiffs alleged that “[t]here is an immediate threat of substantial irreparable harm to the church and its members because having two Pastors attempting to hold services at the same time shall cause significant and irreparable harm . . . . And there is substantial and immediate risk that [the Church] Defendants shall encumber, sell and transfer all or part of the church’s real property . . . .” (Some capitalization omitted.) The plaintiffs sought an accounting of all church finances. The plaintiffs also sought to quiet title as to all church property. c. Judgment On September 5, 2018, the trial court entered a judgment quieting title and granting declaratory relief, including a declaration that the Church Defendants had no right to title or interest in the assets of the church. The trial court ordered that the Church Defendants “return to Pastor Lee on behalf of Dong San . . . any and all Dong San property in their possession or which is able to be acquired or reacquired by them if now deposited with another, including but not limited to all assets . . . .” The trial court further found “non-withdrawing” church members had determined that Pastor Lee (appellant in the current litigation) was the pastor of the church. The trial court found it was bound by that determination. 2. Lee’s pleadings in the current litigation On December 3, 2018, Lee sued Park, Koba, and Kang (referred to as defendants) for slander, intentional infliction of 5 emotional distress, and negligence. Lee served defendants on or before February 12, 2019. On March 25, 2019, Lee filed a first amended complaint, also alleging causes of action for slander, intentional infliction of emotional distress, and negligence. In his first amended complaint, Lee alleged “on or about October 5, 2017, [the date the Church Defendants filed their cross-complaint in the prior litigation] and continuing thereafter to the present, with additional slanderous statements being added” defendants Park, Koba, and Kang made the following slanderous statements: “A. That Plaintiff had committed multiple acts of adultery, and engaged in the criminal acts to solicit and pay for prostitutes; “B. That Plaintiff had committed multiple criminals [sic] acts to sexually harass, batter, assault females/prostitutes in an illegal brothel while drunk; “C. That Plaintiff had committed multiple criminal acts of embezzlement of church funds; “D. That Plaintiff had bribed, extorted, and/or engaged in criminal behavior to obtain his position as a pastor; “E. That Plaintiff was conspiring to steal Church assets, to sell Church properties, and to personally profit from the sales of Church assets.” Lee further alleged that defendants acted with “malice, oppression and fraud” to prevent Lee from becoming the senior pastor at the Los Angeles Dong San Church. Lee’s causes of action for intentional infliction of emotional distress and negligence were based on the identical allegedly false and slanderous statements. 6 3. Defendants’ anti-SLAPP motion On May 10, 2019, defendants filed an anti-SLAPP motion. Defendants argued that Lee’s claims were premised on the October 5, 2017 cross-complaint filed in the previous lawsuit. Defendants further argued “plaintiff specifically seeks redress for claims set forth by Koba, Park, and Kang in their cross-complaint filed on October 5, 2017 in the prior action.” According to defendants, the filing of the cross-complaint fell within the ambit of the anti-SLAPP statute because it was based on their petitioning and speech activities. Defendants also contended that Lee could not show a probability of prevailing because the litigation privilege in Civil Code section 47 constituted a complete defense. Defendants asserted: “The litigation privilege undoubtedly applies because the communications plaintiff complains of in this litigation were made by defendants in the prior action via their cross-complaint.” Defendants acknowledged that they filed the anti-SLAPP motion past the 60-day deadline in Code of Civil Procedure section 425.16, subdivision (f), but argued that the trial court should, in its discretion, permit its filing.5 Defendants explained that “[a]lthough this motion was not filed within 60 days of service of the complaint, it was filed within 60 days of defense counsel of record substituting into the litigation.” Defendants argued that their anti-SLAPP motion satisfied the purpose of the anti-SLAPP statute to dispose of meritless lawsuits 5 Code of Civil Procedure section 425.16, subdivision (f) provides in pertinent part: “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” 7 expeditiously. Defendants also sought their attorney fees and costs. 4. Lee’s opposition to the anti-SLAPP motion Lee moved ex parte to continue the hearing on the anti- SLAPP motion for 22 days and to grant Lee additional time to file an opposition. In his ex parte motion for an extension of time, Lee’s counsel stated that he “was unaware of the existence of Defendants’ Motion due to an assistant’s calendaring mistake.” The trial court granted Lee’s motion. In his opposition to the anti-SLAPP motion, Lee challenged the timeliness of defendants’ anti-SLAPP motion, arguing that it was 27 days too late. In his opposition, Lee stated that “the origin and communication of the slanderous remarks occurred outside the cross complaint and papers generated in the Prior Lawsuit . . . .” Lee further stated “there exists numerous witnesses that can confirm that the origin of the defamatory remarks and the repeating of those remarks occurred outside the Prior Lawsuit and were discussed with non-parties, non-litigants, without attorneys present, in private settings including telephone calls, private facilities and Church facilities.” Lee argued he could demonstrate a probability of prevailing on the merits. According to Lee, he “has identified witnesses and documents that support his claim of the ongoing defamation against Defendants and will be likely to prevail on his claims at trial.” Lee did not cite to evidence of any such witnesses or documents. Lee did attach a declaration to his opposition. Lee averred he held the title of senior pastor. Lee stated his lawsuit was based on statements that “originated from outside the Prior Lawsuit and were communicated outside the Cross Complaint 8 [that] was filed in that case.” Lee referenced conversations with Park Tae-Seok, Young Sook Yang, Man Soon Baek, Young Min Kim, and Bishop Eun Higon. Lee identified no conversation with, or statement made by, any defendant in this case. In his declaration, Lee also averred that Sungil Choi wrote a letter stating, “I have heard and know of your past so quit your hopeless dreams and serve the church you were serving.” Lee attached a copy of a letter written by Sungil Choi in Korean without an English translation. 5. Defendants’ reply In their reply, defendants attached an English translation of Choi’s letter dated February 13, 2017. Choi stated: “I know your past since I already heard about your past to a certain extent so you should serve the church you are serving currently without having any false expectation.” Choi also stated “you or Bishop Park should understand that we have been already preparing a legal case for the things you and he caused by coming to our church.” 6. The trial court granted defendants’ anti-SLAPP motion After a hearing, the trial court granted defendants’ anti- SLAPP motion. The trial court found that the lawsuit arose from the cross-complaint filed on October 5, 2017 in prior litigation. The court awarded defendants attorney fees in the amount of $5,883 and costs in the amount of $149. Lee timely appealed. 9 DISCUSSION Under Code of Civil Procedure6 section 425.16, known as the anti-SLAPP statute, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) “The Legislature enacted section 425.16 to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 , 192.) “ ‘Section 425.16, subdivision (b)(1) requires the trial court to engage in a two-step process when determining whether to grant a motion to strike. First, it decides whether defendant has made a prima facie showing that the acts of which plaintiff complains were taken in furtherance of defendant’s constitutional 6Undesignated statutory citations are to the Code of Civil Procedure. 10 rights of petition or free speech in connection with a public issue. If defendant satisfies this threshold burden, plaintiff must then demonstrate a reasonable probability of prevailing on the merits. On appeal, we review these legal issues de novo.’ ” (Workman v. Colichman (2019) 33 Cal.App.5th 1039 , 1047.) In evaluating an anti-SLAPP motion, we may consider the parties’ pleadings as well as affidavits describing the basis for liability. (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096 , 1104 (Symmonds).) Section 425.16, subdivision (e) defines, in pertinent part, an act in furtherance of speech or petition rights to “include[ ]: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, . . . or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Section 425.16 requires that courts construe the anti-SLAPP statute broadly. (Symmonds, supra, 31 Cal.App.5th at p. 1103.) We may limit our review to Lee’s cause of action for slander because on appeal, Lee does not challenge the portion of the trial court’s order striking his causes of action for intentional infliction of emotional distress and negligence. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211 , 216, fn. 4 (Tiernan) [argument not raised on appeal is forfeited].) Lee acknowledges “[a]ll causes of action are based on the same statements constituting slander.” 11 1. Defendants Made a Prima Facie Showing that the Allegations In the Complaint Fall Within the Ambit of Section 425.16 Lee argues that he is “not suing based on the written false statements contained in the Cross Complaint.” Lee does not challenge that the anti-SLAPP statute would apply if the allegations in his operative complaint were based on the cross- complaint in the earlier litigation. Instead, Lee argues “the lower court ignored the evidence before it that reflected the slanderous verbal remarks originated before the 10/5/2017 cross complaint was even filed, and disseminated outside of the litigation to non- litigant third parties.” Lee also asserts that slanderous statements about him “were disseminated” orally in January 2017 and in a letter in February 2017 prior to the filing of the cross-complaint in October 2017. According to Lee the “slanderous oral statements were communicated outside of the cross complaint, to non-party litigants, and had no relation to the cross complaint other than they were repeated in the cross complaint. Thus, the first step of the SLAPP analysis was never satisfied.” Lee’s argument lacks merit for two independent reasons. First, anti-SLAPP jurisprudence required the trial court to assess the allegations in the complaint, and not base its ruling on unpleaded claims. Second, the record does not support Lee’s assertion that defendants disseminated slanderous remarks about Lee prior to their filing the cross-complaint. 12 a. The trial court properly relied on the allegations in Lee’s complaint, and not unpleaded purported prior slander “[T]he pleading . . . provides the outer boundaries of the issues that are to be addressed in an anti-SLAPP motion . . . .” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869 , 889). The trial court thus properly based its analysis on the allegations in Lee’s operative complaint. There is no merit to Lee’s argument that the trial court should have instead relied on unalleged “slanderous verbal remarks originated before the 10/5/2017 cross complaint was even filed . . . .” To do otherwise would, in effect, allow an oral amendment of the operative complaint in derogation of the very purpose of the anti-SLAPP statute. (Medical Marijuana, Inc., at p. 898.) “ ‘Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend. [¶] By the time the moving party would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. [Citation.] This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. [Citation.]’ ” (Ibid.) 13 b. Lee presented no evidence that defendants disseminated slanderous statements prior to filing their cross-complaint Lee admitted that in discovery he asserted “the only documents reflecting the oral slander was the Cross Complaint.” Lee argues he presented evidence that defendants made slanderous statements prior to filing their cross-complaint in the earlier litigation. The record does not support Lee’s assertion. Although Lee asserts that slanderous statements about him “were disseminated” orally in January 2017 and in a letter in February 2017, the record contains no allegation or evidence that any defendant in this case made slanderous remarks in January and February 2017. Although in his declaration Lee refers to conversations with, and a letter from persons other than defendants, he identifies no slanderous statement by a defendant in the current litigation. c. Defendants’ allegedly slanderous statements made in their cross-complaint fall within the ambit of the anti-SLAPP statute The allegations in the operative complaint fall within the ambit of the anti-SLAPP statute because they constitute “written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . .” (§ 425.16, subd. (e)(2).) Lee does not argue otherwise. Lee’s remaining arguments are not a model of clarity. Although Lee references the “public interest,” he fails to explain the relevance of determining whether defendants’ statements in the cross-complaint were in the public interest. “[S]tatements, 14 writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28 , 35 (Rohde).) To the extent Lee is attempting to argue that the allegations in the cross-complaint were unrelated to the underlying litigation, the argument lacks merit. The underlying litigation involved whether Lee was the pastor of the church and whether Lee had control over the church’s assets. Defendants’ allegedly slanderous statements concerned Lee’s lack of qualification to be pastor and to be in charge of the church assets. 2. Lee Demonstrates No Probability of Prevailing If a defendant demonstrates that the plaintiff’s claim arises from protected activity under section 425.16, the burden shifts to the plaintiff to “ ‘demonstrate the merit of the claim by establishing a probability of success.’ ” (Symmonds, supra, 31 Cal.App.5th at p. 1103.) Here, defendants argue that Lee cannot demonstrate a probability of prevailing because the litigation privilege bars Lee’s claims. “While defendants bear the burden of proof on any affirmative defense, [the plaintiff] retains the burden to show, under the second step of the anti-SLAPP analysis, that he has a probability of prevailing on the merits of the claim. (Laker v. Board of Trustees (2019) 32 Cal.App.5th 745 , 769.) “The litigation privilege is codified in Civil Code section 47 (section 47): ‘[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . .’ (§ 47, subd. (b).)” (Rusheen v. Cohen (2006) 37 Cal.4th 1048 , 1057.) The litigation privilege “applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the 15 litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [¶] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi- judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ . . . It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen, at p. 1057.) The litigation privilege “ ‘immuniz[es] participants from liability for torts arising from communications made during judicial proceedings’ ” except for a claim of malicious prosecution. (Flatley v. Mauro (2006) 39 Cal.4th 299 , 322; see also Kettler v. Gould (2018) 22 Cal.App.5th 593 , 607 [“The litigation privilege ‘precludes liability arising from a publication or broadcast made in a judicial proceeding or other official proceeding.’ ”].) The litigation privilege also shields statements made in anticipation of litigation. (Rohde, supra, 154 Cal.App.4th at p. 35.) Defendants argue that the litigation privilege is a complete defense and prevents Lee from showing a probability of prevailing. We agree. Here, litigants allegedly made the slanderous statements in a judicial proceeding to achieve the objects of that litigation— statements that had an obvious connection to achieving the goals of that litigation. As set forth in the Background, defendants alleged in the cross-complaint that Lee committed a series of sexual crimes and harassment, financial crimes, and other corrupt acts. As also set forth in the Background, the cross- complaint was a weapon in a war for control of a Korean church 16 forged in the courts. The same or similar accusations in the cross-complaint are the subject of Lee’s slander claims in the case before us. Thus, the litigation privilege immunizes defendants from plaintiff’s slander claim. Further, as we have explained earlier, Lee’s reliance on his declaration for unalleged slanderous remarks is misplaced. Even assuming arguendo the truth of all of the statements in Lee’s declaration, there is no support in the record for Lee’s assertion that any defendant (Park, Koba, or Kang) made slanderous statements outside of the cross-complaint. 3. The Trial Court Acted Within Its Discretion in Allowing Defendants to file an anti-SLAPP motion 27 days after the 60-day deadline On appeal, Lee argues that the anti-SLAPP motion filed 87 days after the last defendant was served with the original complaint was untimely.7 We review the trial court’s ruling on an application to file a late anti-SLAPP motion for abuse of discretion. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 , 782.) We conclude that the trial court did not abuse its discretion in granting that application.8 7 Although defendants argue that they filed their motion within 80 days of service of the last defendant, the seven-day difference is immaterial. 8 We agree with defendants that Lee has forfeited the timeliness issue by failing to identify any alleged abuse of discretion. (Tiernan, supra, 33 Cal.3d at p. 216, fn. 4 [argument not raised on appeal is forfeited].) Lee simply repeats the same arguments he made in the trial court without considering our standard of review. He neither argues nor shows that the trial 17 An anti-SLAPP motion must be filed within 60 days of service of the complaint or at any later time the court deems proper. (See fn. 4, ante; Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637 , 639.) “The purpose of the time limitation is to permit ‘ “the defendant to test the foundation of the plaintiff’s action before having to ‘devote its time, energy and resources to combating’ a ‘meritless’ lawsuit. . . .” ’ [Citation.] The statutory deadline also seeks ‘ “to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings.” ’ ” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611 , 624.) For example, a trial court acts within its discretion in denying defendant the opportunity to file an anti-SLAPP motion two years after the original complaint when it was “far too late for the anti-SLAPP statute to fulfill its purpose of resolving the case promptly and inexpensively.” (Newport Harbor, supra, 4 Cal.5th at p. 645.) The trial court did not abuse its discretion in considering defendants’ anti-SLAPP motion, filed 87 days after service on the last defendant. Defendants’ counsel represented that defendants filed the motion within 60 days of counsel substituting into the litigation. More significantly, no appreciable litigation activity occurred during that 27-day period. Nor did the 27-day delay undermine the anti-SLAPP statute’s purpose of resolving the case promptly and inexpensively. Lee’s timeliness argument rings somewhat falsely in light of his own request for a 22-day extension because of his calendaring mistake. Lee neither argues nor shows that he suffered any prejudice from the late motion, let court abused its discretion. We, however, choose to consider the issue on the merits. 18 alone that the relatively brief delay here is comparable to the two-year delay in Newport Harbor. DISPOSITION The order granting defendants’ anti-SLAPP motion is affirmed. Young Chun Park, Mee Young Koba, and Eric Soo Chul Kang are awarded their costs on appeal. NOT TO BE PUBLISHED. BENDIX, J. We concur: ROTHSCHILD, P. J. FEDERMAN, J.* * Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 19
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https://www.courts.ca.gov/opinions/nonpub/A156445.PDF
Filed 1/26/21 Ezeokoli v. Uber Technologies CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE BENEDICT EZEOKOLI et al., Plaintiffs and Appellants, A156445 v. UBER TECHNOLOGIES, INC., (Alameda County Super. Ct. No. RG14747166) Defendant and Respondent. Plaintiff taxi drivers Benedict Ezeokoli, Zine Salah and Leon Slomovic appeal from a summary judgment in favor of defendant Uber Technologies, Inc. (Uber) on their action for false advertising under the Lanham Act ( 15 U.S.C. §1125 (a) et seq.). We conclude, as did the trial court, that (1) Uber established a prima facie showing that plaintiffs could not prove they were harmed by the alleged false advertising, and (2) plaintiffs failed to rebut that showing. We therefore affirm the judgment. BACKGROUND I. The Complaint Plaintiffs’ fifth amended complaint, the operative pleading, alleges that Uber disseminated four categories of false or misleading statements and that plaintiffs lost ridership and income as a result. 1 More specifically, the complaint alleged four general categories of misrepresentations: that Uber: (1) misrepresented the availability and proximity of rides through cartoon images of cars displayed on its consumer app; (2) misrepresented the safety of its service; (3) misrepresented the legality of its operations at certain airports; and (4) made false and misleading statements about driver gratuities. Plaintiffs alleged these misrepresentations induced members of the public to use Uber’s services rather than plaintiffs’ taxis. Plaintiffs also sought to certify a plaintiffs’ class of 4,000 taxi drivers in eight California cities. II. Summary Judgment Motion Uber moved for summary judgment on grounds including that plaintiffs could not show they had suffered harm or that any harm was caused by the alleged false advertising. Uber also argued plaintiffs lacked standing because they lacked necessary permits or licenses during some of the relevant period. At the same time, it opposed plaintiffs’ motion for class certification on the ground that none of the elements of the alleged Lanham Act violations were susceptible to class treatment. In support of summary judgment, Uber provided evidence that (1) the plaintiffs could not show reduced income from driving taxis during the relevant period; and (2) they could not show that any economic harm was caused by the alleged misrepresentations. Plaintiffs could not establish proximate cause, Uber argued, because their alleged losses “could have resulted from any number of reasons other than customer reliance on the challenged statements,” and, as to the challenged statements related to safety concerns, only a very small percentage—fewer than 2.5 percent—of Uber users would have seen them. 2 In opposition, plaintiffs argued Uber failed to show they were unable to establish injury and causation. Alternatively, they argued that even if Uber satisfied its initial burden to show a lack of injury and causation, they responded with sufficient evidence on those issues to defeat summary judgment. Plaintiffs’ opposition relied heavily on deposition testimony from Salah, Ezeokoli and Slomovic that (1) they were working more, but earning less, than before Uber became a competitor for ride services; (2) they suffered injury to their business goodwill; and (3) these changes were due to Uber’s false advertising.1 In addition, plaintiffs submitted an expert report from economist Leslie Shafer, Ph.D., that proposed a methodology for estimating their damages based on data “that was known to be available or . . . likely to be available” after anticipated surveys were performed, data was collected, an econometric model was developed, and appropriate variables were identified. Survey data regarding consumer deception was to be provided at some future date. Alternatively, plaintiffs argued that Merck Eprova AG v. Gnosis S.p.A. (2d Cir. 2013) 760 F.3d 247 (Merck) and related cases provided a presumption of injury and causation when direct competitors make deliberately false comparative statements. Plaintiffs argued this presumption applied to their claims, and relieved them of the need to prove causation and harm because Uber’s summary judgment motion did not contest their status as competitors or their allegations of false advertising. Plaintiffs subsequently abandoned their claims of harm to their 1 businesses as taxi owners and now apparently seek redress only for alleged lost income in their work as taxi drivers. 3 III. The Trial Court’s Ruling The trial court disagreed. It found that (1) Uber met its burden of showing a prima facie absence of evidence regarding causation; and (2) plaintiffs failed to respond with admissible evidence that any injury they suffered was caused by the alleged misrepresentations or that the presumption of harm and causation should apply. The court found plaintiffs’ deposition testimony inadmissible “insofar as the Plaintiffs offer answers asserting that Defendants’ misstatements caused Plaintiffs to lose business. Plaintiffs’ deposition transcripts uniformly offer no foundation for Plaintiffs’ belief that it was Uber’s false statements, rather than the new competition Uber brought to the market, that caused Plaintiffs’ taxi business to decline.” The court also sustained hearsay objections to news articles plaintiffs offered as evidence of a number of the alleged misleading statements. “Although the statements of Uber representatives quoted in the stories might qualify as party admissions, the statements by the authors of the articles themselves are not subject to any hearsay exception and are not adopted or authenticated by their authors.” Next, the court found Uber established a prima facie showing of absence of causation through evidence, also offered in its opposition to plaintiffs’ contemporaneous motion for class certification, “that few to no passengers even saw the misrepresentations at issue and that they therefore cannot have caused Plaintiffs’ injuries.” When it considered plaintiffs’ rebuttal evidence, the court found their “very limited testimony regarding the causation of their injuries is speculative. Although Plaintiffs are competent to testify to the fact that the number of passengers they picked up declined after Uber entered the market, Plaintiffs offer no foundation for how they know that those passengers are 4 leaving because of Uber’s false advertisements. In short, Plaintiffs offer no reason to believe that their loss of business is the result of false statements, rather than mere competition.” The court also rejected plaintiffs’ reliance on the presumption of injury and causation. First, plaintiffs alleged only two instances of false advertising that directly compared Uber to the taxi industry. The court explained, “Plaintiffs do not show evidence that Uber made actionable comparative statements in the context of advertising. ‘Statements made to the media and published in a journalist’s news article concerning a matter of public importance are not commercial speech and are protected under the First Amendment.’ ” One of the two direct comparisons was a statement by Lane Kasselman, Uber’s Head of Communications for the Americas, to a local news affiliate that Uber was “ ‘confident that every ride on the Uber platform is safer than a taxi.’ ” The court found that plaintiffs failed to offer evidence that Kasselman actually made the statement, or that it was “made as part of a coordinated advertising campaign or with the intent to influence consumer opinion.” The court then turned to the second comparative statement that allegedly caused plaintiffs to lose business, Kasselman’s comment in a blog post that “[u]nlike the taxi industry, [Uber’s] background checking process and standards are consistent across the United States and often more rigorous than what is required to become a taxi driver.” Here, too, the court found plaintiffs offered “no evidence that th[is] statement was made.” Finally, the court found that the presumption of injury and causation could not be based on implied, rather than express, comparisons to taxis, such as statements that Uber offered the “ ‘safest rides on the road’ ” and “ ‘always the safest experience,’ ” employed “ ‘an industry leading background 5 check process,’ ” and “ ‘thoroughly screened’ ” its drivers “ ‘through a rigorous process we’ve developed using industry-leading standards.’ ” The court explained the presumption can apply to such statements, which merely imply a comparison to another product, only where “a typical consumer would nevertheless know who was being referenced,” such as in a “ ‘two-player market.’ ” Here, the evidence showed that Uber “exists in a complex market for personal transportation, and taxis are not its only, or even its primary, competitor” so any business gained by Uber did not necessarily mean lost business for taxi drivers. Accordingly, the presumption did not apply to relieve plaintiffs of their burden to show causation and injury. The trial court granted summary judgment and entered judgment in favor of Uber. Plaintiffs’ motion for class certification was dropped as moot. This timely appeal followed. DISCUSSION I. Summary Judgment Standards “ ‘To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff’s cause of action [citations] or show that an element of the cause of action cannot be established [citations]. [Citation.] The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” [Citation.] [¶] The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial. [Citation.] . . . Once the moving party has met its burden, the opposing party bears the burden of presenting evidence that there is any triable issue 6 of fact as to any essential element of a cause of action.’ ” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480 , 1485 (Ochoa).) “In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. [Citation.] The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law.” (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699 , 703−704.) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798 , 805.) “While ‘[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact’ [citation], it is also true ‘[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.’ [Citation.] ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ ” (M.B. v. City of San Diego, supra, at p. 704.) “[I]t is well settled that on appeal following summary judgment the trial court's reasoning is irrelevant, and the matter is reviewed on appeal de novo. [Citations.] We exercise our independent judgment as to the legal effect of the undisputed facts [citation] and must affirm on any ground supported by the record.” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133 , 140.) 7 II. False Advertising under the Lanham Act Section 43(a) of the Lanham Act ( 15 U.S.C. § 1125 (a)) creates liability for false advertising or promotion that misrepresents the nature, characteristics, qualities, or geographic origin of goods, services, or commercial activities ( 15 U.S.C. § 1125 (a)(1)(B)).2 “ ‘The elements of a Lanham Act § 43(a) false advertising claim are: (1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products.’ ” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313 , 347–348.) III. Analysis It is the fifth element of section 43(a) liability that concerns us here. “To invoke the Lanham Act’s cause of action for false advertising, a plaintiff must plead (and ultimately prove) an injury to a commercial interest in sales or business reputation proximately caused by the defendant’s 2“(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— ¶ . . . (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.” ( 15 U.S.C. § 1125 (a)(1).) 8 misrepresentations.” (Lexmark Int’l., Inc. v Static Control Components, Inc. (2014) 572 U.S. 118 , 140 (Lexmark).) To do so, “a plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.” (Id. p. 133.) Here, Uber satisfied its initial burden with evidence showing plaintiffs could not establish the alleged false advertising caused them to lose riders. According to a report by Uber’s finance, accounting and business valuation expert Terry Lloyd, “there are too many ‘moving parts’ in the ride-for-hire market and trying to isolate the effect of just one of them is simply not possible. The multitude of simultaneous independent variables are what statisticians refer to as ‘confounding factors.’ ” Plaintiffs’ theory of causation, Lloyd pointed out, merely assumed without any factual basis that “former taxi riders switched to Uber simply because of the disputed statements.” To the contrary, a survey that even plaintiffs’ expert relied on found that riders chose Uber over taxis and other modes of transportation for a variety of reasons, including safety, comfort, ease of use and payment, time savings, and reliability. Observing that plaintiffs’ proposed models for establishing damages failed to account for all the reasons people choose one kind of transportation over another, Lloyd opined that to conclude “a quantifiable amount of money earned by Uber from 2012 to 2017 in the affected jurisdictions was diverted from the putative classes as a result of Uber’s allegedly false statements is simplistic and contrary to facts and common sense. It’s like saying that Big Band artists should be able to sue Elvis Presley and Chuck Berry for lost record sales after rock-and-roll displaced 1940’s pop music. While some 9 consumers stayed with the old genre most others migrated for different reasons.”3 Dr. Maronick, the expert whom plaintiffs asserted was to provide survey evidence of actual consumer deception had yet to provide evidence of anything. As Uber observed, “[a] promise of evidence isn’t evidence.” Moreover, Maronick failed to explain how his survey design would eventually assess the impact of the alleged misrepresentations on potential riders and distinguish it from other reasons riders might choose one mode of transportation over another. Uber also adduced expert evidence that only a small percentage of riders saw the category of alleged misstatements related to the safety of its service. Focusing on this latter point, plaintiffs mistakenly suggest that Uber’s showing on the lack of proximate cause pertained solely to the safety-related comments, and disregarded the alleged false advertising that concerned the availability and proximity of rides, the legality of Uber’s airport operations, and gratuities. True, Uber’s expert analysis of viewer “hits” was limited in scope to the safety-related statements. However, Lloyd’s analysis that plaintiffs were unable to separate out the impacts of the alleged false 3 As observed in a different legal context, “[j]ust as some people prefer cats to dogs, some people prefer Uber to Yellow Cab, Flash Cab, Checker Cab, et al. They prefer one business model to another.” (Il. Transp. Trade Association v. City of Chicago (7th Cir. 2016) 839 F.3d 594 , 598.) Judge Posner identified a number of factors that might account for such preferences, such as “the storage of payment information, so that one does not need to be carrying cash or a credit card; the ability to see a time estimate of how long a pickup will take and also a driver’s rating by past users; and the ability to request a ride from wherever one is (e.g., from the comfort of home, inside during the rain rather than by hailing on a street). (Id. at p. 596.) 10 statements from the effect of multiple other factors pertained to each of the four groups of alleged false advertising. Plaintiffs also argue the court erred in relying on Uber’s expert evidence that few potential riders actually saw the challenged statements because that point was not raised in Uber’s motion or separate statement of undisputed facts. Not so. Uber made the point in its summary judgment memorandum, albeit briefly, and referred to a fuller discussion and supporting evidence provided in its opposition to class certification filed the same day. Although plaintiffs were thus on notice, plaintiffs failed to object that the relevant evidence was not included in Uber’s separate statement. “Whether to consider evidence not referenced in the moving party's separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 , 315−316; Code Civ. Proc., § 437c, subd. (b) [failure to comply with separate statement requirement “may in the court’s discretion” constitute sufficient ground to deny motion (italics added)]; but see United Community Church v. Garcin (1991) 231 Cal.App.3d 327 , 337.) Here, plaintiffs were on fair notice of the omission but raised no objection. The court’s consideration of the evidence was not an abuse of discretion. Plaintiffs alternatively argue that, if Uber established a prima facie lack of causation, they responded sufficiently to defeat summary judgment “via direct evidence in the form of their Plaintiffs’ testimony, expert testimony, and the presumption of causation that arises where the defendant makes false comparative statements.” We agree with the trial court that plaintiffs’ evidence was insufficient to show the existence of a triable issue of material fact. 11 As noted, the court excluded plaintiffs’ deposition testimony on causation because it was lacking foundation and too speculative. We agree. Asked how he thought Uber’s conduct had harmed him, plaintiff Slomovic said Uber has “an unfair advantage” because it operates “essentially illegally with very little, if any, oversight.” But he conceded he did not know why a consumer will choose Uber over a taxi (“I have no way of reading somebody else’s mind”), except that it seemed “inevitable” based on unidentified data and analyses that “Uber is the main cause and that misrepresentation by Uber to passengers and regulator is the reason why those opinions happen and why people think the way they do.” The other two plaintiffs’ testimony on causation was equally speculative. Salah testified he knew the challenged statements caused him losses “from my— from what happened with other drivers and what happened to other businesses, taxi business industry” and because “it’s all out there to the public and everybody is reading it.” When Ezeokoli was asked how he could measure the effect of Uber’s false advertising on his business, he responded, “the way I can say is that, you know, my income is dropping, and that’s a way, telling me that something is really not going right” and “I just know it’s because of Uber.” And he conceded he did not know why passengers would pass up cabs at airports in favor of Uber. “A triable issue of material fact may not be created by speculation or a ‘stream of conjecture and surmise’ ” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214 , 220.) Summary judgment may be affirmed where the plaintiff’s evidence is little more than guesswork “ ‘ “in the realm of mere speculation and conjecture.” ’ ” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1 , 15].) The trial court properly found plaintiffs’ testimony failed to establish the existence of a material issue as to causation. 12 Taking a different tack, plaintiffs contend their testimony that they “believed” Uber’s misrepresentations caused them to lose riders was legally sufficient proof of causation. They observe the Lanham Act expressly authorizes suit by a person who “who believes that he or she is likely to be damaged” ( 15 U.S.C. § 1125 (a) (italics added) by false advertising.4 Accordingly, they contend, to defeat summary judgment they were only required to supply evidence that they believed Uber’s advertising caused them harm—not that it actually did so. Here, too, they are mistaken. As the Supreme Court made clear in Lexmark, the Lanham Act incorporates a requirement of proximate causation “its broad language notwithstanding.”5 (Lexmark, supra, 572 U.S. at p. 132.) “While the statute gives the right to sue to a person who ‘believes that he is or will be damaged,’ it is clear that to prevail in such a suit or even, if there is a question, to establish his standing, 4 Under section 1125(a)(1), “Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—[¶] (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or [¶] (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, [¶] shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (Italics added.) 5 Lexmark is primarily addressed to Article III standing to bring a Lanham Act claim. While standing and proximate cause are closely related in this context, they are not interchangeable constructs. (See Lexmark at pp. 129, 134 fn. 6 [“Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct”].) 13 there must be a real possibility of his being damaged and not the mere assertion of a belief.” (D.M. & Antique Import Corp. v. Royal Saxe Corp. (S.D.N.Y. 1969) 311 F.Supp. 1261 , 1269 fn. 6; Chromium Industries, Inc. v. Mirror Polishing & Plating Co., Inc. (N.D. Ill. 1978) 448 F.Supp. 544 , 554.) Plaintiffs’ reliance on the principle that parties are generally competent to testify to losses in value of their own property or business (see, e.g., Newhart v. Pierce (1967) 254 Cal.App.2d 783 , 789) does not solve their problem. While true as far as it goes, this principle has no bearing on whether plaintiffs’ losses were caused by the challenged statements. Plaintiffs also propose they satisfied their burden through evidence from their expert economist. Dr. Schafer’s report described the market of regulated passenger transportation providers and proposed “a regression analysis which permitted calculating how much of the taxi[] industry’s loss . . . was attributable to Uber exclusively (factoring out all other competitors’ impact).” This, they assert, “when viewed with the uncontested allegations that Uber made false statements about its competitors, was sufficient” to trigger the presumption of causation and thus defeat summary judgment. Not so. At most, Dr. Schafer’s proposed analysis would show losses attributable to competition from Uber generally, not to those losses caused by the challenged advertising. Dr. Schafer expressly acknowledged the limits of her proposed work: “[o]nce the baseline of Uber’s impact on taxi service is established, the next step is to identify the share of that impact associated with each of the four [categories of] false representations in Los Angeles.” She did not claim to be able to measure that impact. Instead, she intended to rely on the anticipated results of another expert’s survey that had yet to be undertaken. 14 Once the burden shifts to the party opposing summary judgment, “[i]t is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098 , 1105.) Dr. Schafer’s proposed study is plainly not “adequate . . . for a reasonable jury to conclude that Plaintiffs suffered actual injury as a result of Defendants’ advertisements.” (Southland Sod Farms v. Stover Seed Co. (9th Cir. 1997) 108 F.3d 1134 , 1146 (Southland Sod); see also Lindy Pen Co., Inc. v. Bic Pen Corp. (9th Cir. 1993) 982 F.2d 1400 , 1411 (Lindy Pen) [plaintiff in trademark infringement action offered “ ‘credible proof of the fact of damage’ ” based on evidence a wholesale distributor switched products].) Alternatively, plaintiffs argue they are not required to show a factual dispute over injury or causation because those elements are presumed under the Lanham Act when deliberately false statements are made by a competitor. “Since Uber did not contest the falsity of its statements,” they maintain, “it has failed to negate the presumption of causation [and] injury.” We disagree. As the trial court found, plaintiffs failed to show the presumption applies here. Merck, supra, 760 F.3d 247 , discusses the relevant principles. “In McNeilab, Inc. v. American Home Prods. Corp., 848 F.2d 34 , 38 (1988) we distinguished two types of false advertising cases and the presumptions they permit: (1) ‘misleading, non-comparative commercials which touted the benefits of the products advertised but made no direct reference to any competitor's product,’ and (2) ‘a false comparative advertising claim.’ We noted that ‘[a] misleading comparison to a specific competing product necessarily diminishes that product's value in the minds of the 15 consumer.’ [Citation.] In the first type of case (i.e., non-comparative advertising), the injury ‘accrues equally to all competitors; none is more likely to suffer from the offending broadcasts than any other.’ [Citation.] In those types of cases, ‘some indication of actual injury and causation’ would be necessary in order to ensure that a plaintiff's injury is not speculative.” (Merck at p. 259; Harper House, Inc. v. Thomas Nelson (9th Cir. 1989) 889 F.2d 197 , 209-210 [rebuttable presumption does not apply where defendant misrepresents its own product without targeting any other specific product]; see Balance Dynamics Corp. v. Schmitt Industries, Inc. (6th Cir. 2000) 204 F.3d 683 , 694-695 (Balance Dynamics); Porous Media Corp. v. Pall Corp. (8th Cir. 1997) 110 F.3d 1329 , 1335 (Porous); but see ThermoLife Intern., LLC v. Gaspari Nutrition Inc. (9th Cir. 2016) 648 Fed.Appx. 609 , 615−616 [unpublished memorandum opinion].) In contrast, where a defendant falsely compares its product to a competitor’s, “injury may be presumed, because there was not the same concern of awarding damages for merely speculative injury.” (Merck, supra, 760 F.3d at p. 259.) The “classic instance of comparative advertising” is “where one company’s advertisement mentions a competitor’s product by name” (id. at p. 261), but the presumption also applies where, although the comparison to a competing product is not express, the configuration of the relevant market is such that the defendant’s gain necessarily comes at the plaintiffs’ expense. This is so because, in such situations, the “utilization of a presumption of injury carries no risk of speculative injury.” (Id. at p. 259−261 [presumption applies in two-player markets; Time Warner Cable, Inc. v. DIRECTV, Inc., (2d Cir. 2007) 497 F.3d 144 , 162-163 (Time Warner) [satellite television provider falsely advertised its service was better than 16 “cable;” the presumption applied because the plaintiff was the sole provider of cable in the relevant market].) Here, plaintiffs assert the presumption applies because Uber made false statements that, without referring to taxis, implied that Uber rides are safer than cabs. Such implied comparisons include statements that Uber offered “the safest rides on the road” and “always the safest experience,” employed “an industry-leading background check process,” and screened every driver “using industry-leading standards.” 6 Plaintiffs provided no admissible evidence showing the presumption applies to these implied comparisons. To the contrary, Uber’s expert evidence established that the parties compete in a complex market for personal transportation with multiple competitors that include personal transportation services such as Lyft, ZipCar, public transportation, and private shuttles. The court properly distinguished this situation from those in Merck and Time Warner, where any business the defendant gained from its false advertising necessarily meant a loss of business for the plaintiff. Plaintiffs urge that the presumption extends broadly beyond the boundaries described in Merck and Time Warner to any situation involving false statements by competitors, but the authorities they cite do not support 6 The complaint also alleged numerous instances of false advertising regarding airport pickups, the proximity of rides, and tipping, but those statements cannot reasonably be construed as implied comparisons to the taxi industry. “[W]here a defendant is guilty of misrepresenting its own product without targeting any other specific product, it is erroneous to apply a rebuttable presumption of harm in favor of a competitor. Otherwise, a plaintiff might enjoy a windfall from a speculative award of damages by simply being a competitor in the same market.” (Porous, supra, 110 F.3 at p. 1334.) Our discussion of implied comparisons is therefore limited to Uber’s safety-related statements. 17 such a broad application. In TrafficSchool.com, Inc. v. EDriver Inc. (9th Cir. 2011) 653 F.3d 820 (TrafficSchool), the plaintiffs introduced “ample” evidence that “sales gained by one [were] . . . likely to come at the other’s expense.” The Ninth Circuit held this was sufficient proof of injury-in-fact to establish plaintiffs’ Article III standing to enjoin the defendant’s false advertising under the Lanham Act. (TrafficSchool at p. 825.) Such “[e]vidence of direct competition is strong proof that plaintiffs have a stake in the outcome of the suit, so their injury isn’t ‘conjectural’ or ‘hypothetical.’ ” (Id. at pp. 825−826.) Even so, the plaintiffs were not entitled to recover lost profits because they produced no proof of past injury or causation and the challenged advertising did not expressly compare the competitors’ products. (Id. at p. 831.) Plaintiffs’ other authorities are also unpersuasive here. In Southland Sod, supra, 108 F.3d at p.1146, the defendant expressly claimed its product performed better than the plaintiffs’, and, in any event, the plaintiffs opposed summary judgment with evidence sufficient for a jury to find they were in fact harmed by the defendants’ advertisements. In U-Haul Intern., Inc. v. Jartran, Inc. (9th Cir. 1986) 793 F.2d 1034 , 1036, 1040−1041, the challenged advertising explicitly compared Jartran to U-Haul. Lindy Pen, supra, 982 F.2d 1400 , concerns trademark infringement claims, not false advertising, and the plaintiff provided “credible proof” that it was harmed by the infringing conduct. (Id. at p. 1411.) None of these decisions apply the Lanham Act presumption of causation to implied comparisons beyond the boundaries discussed in Merck and Time Warner. What, then, of the alleged deceptive statements that expressly compare Uber to taxis? Our review confirms the trial court’s determination that the complaint alleged only two such statements: Kasselman’s statement to a 18 journalist that “every ride on the Uber platform is safer than a taxi,” and his comment in a blog post that Uber’s background checking was more consistent and often more rigorous than the taxi industry’s. 7 But Uber’s evidentiary showing that plaintiffs cannot demonstrate those statements caused them to lose ridership rebutted any presumption of harm that could have arisen from them. (See Balance Dynamics, supra, 204 F.3d at pp 694−695.) Moreover, as the court found, plaintiffs failed to offer evidence that either statement was actually made. “[A] party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context. [Citations.] The basic purpose of summary judgment is to provide a means by which the court determines whether ‘the triable issues apparently raised by [the complaint and answer] are real or merely the product of adept pleading.’ [Citation.] Hence, the moving party must demonstrate the presence or absence of a genuine triable issue by ‘affidavit’ or other competent means.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704 , 720, fn. 7.) Plaintiffs did not do so.8 The trial court got it right. Uber established a prima facie case that plaintiffs could not prove the alleged false statements caused them harm. Plaintiffs, in response, failed to offer evidence of actual causation or show the Lanham Act’s presumption of causation should be applied in this case. Summary judgment was properly granted. 7 For this reason, we need not also address whether, as plaintiffs assert, the trial court erred when it sustained multiple hearsay objections to evidence of a number of unalleged impliedly comparative statements. 8 A plaintiffs’ expert’s analysis of plaintiffs’ allegations about the various challenged statements does not compensate for their failure to produce evidence authenticating the alleged statements. 19 DISPOSITION The judgment is affirmed. 20 _________________________ Siggins, P.J. WE CONCUR: _________________________ Fujisake, J. _________________________ Jackson, J. Ezeokoli v. Uber A156445 21
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evidence extrinsic to the original proceedings is admissible only to resolve an ambiguity, not to create one. Therefore, the water court erred in relying on the 1936 photograph to find the decree ambiguous. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203 2021 CO 6 Supreme Court Case No. 20SA32 Appeal from the District Court Alamosa County District Court, Water Division 3, Case No. 17CW3003 Honorable Pattie P. Swift, Water Judge In the Matter of the Application for Water Rights of the Mike and Jim Kruse Partnership in Saguache County. Applicant-Appellee: Mike and Jim Kruse Partnership, v. Opposer-Appellants: Craig W. Cotten, Division Engineer, Water Division 3; and Kevin G. Rein, State Engineer, and Opposer-Appellees: The United States of America Fish and Wildlife Service and The Rio Grande Canal Water Users Association, and Concerning Intervenor-Appellee: S&T Farms, LLC. Judgment Reversed en banc January 25, 2021 Attorneys for Applicant-Appellee: Porzak Browning & Bushong LLP Steven J. Bushong Cassidy L. Woodard Boulder, Colorado Attorneys for Opposer-Appellants: Philip J., Weiser, Attorney General Philip E. Lopez, Senior Assistant Attorney General Marc D. Sarmiento, Assistant Attorney General Denver, Colorado Attorneys for Intervenor-Appellee: Petros & White, LLC David S. Hayes Denver, Colorado Attorneys for Amicus Curiae The Rio Grande Canal Water Users Association: Carlson, Hammond & Paddock, LLC William A. Paddock Mason H. Brown Katrina B. Fiscella Denver, Colorado No appearance on behalf of: The United States of America Fish and Wildlife Service. JUSTICE HOOD delivered the Opinion of the Court. 2 ¶1 Water cases frequently call on courts to interpret decisions from bygone eras. By placing a 1933 decree center stage, this case is no exception: Shortly before the decree at issue here took effect, Franklin Delano Roosevelt became president of the United States, proclaiming a “new deal” in part to combat the ravages of the Great Depression, and war-weary Americans debated how much to worry about a political upstart named Adolf Hitler becoming chancellor of Germany. All the while, farmers in the San Luis Valley sought the right amount of water to till their lands. ¶2 Those farmers, at least in the pocket of the Valley we’ll discuss, tapped sources that first flowed from the Continental Divide in the San Juan Mountains to the land below. The ditches they deployed for irrigation became fodder for a dispute that reemerges now, the better part of a century later. ¶3 This direct appeal from the District Court for Water Division 3 (the “water court”) requires us to decide whether certain creek water is a decreed source for a ditch and whether the water court below improperly consulted extrinsic evidence when it answered that question. The water court conducted a four-day trial with thousands of pages of exhibits and clashing experts to decide the meaning of a decree finalized in April 1933. Grasping for guidance, the water court seized upon a 1936 photograph and declared the decree ambiguous. Then, to cure the 3 ambiguity, the court consulted additional evidence extrinsic to the original proceedings. Ultimately, it found that the water is decreed to the ditch. ¶4 We reverse. A conflict exists in our case law as to which materials a court may rely on when deciding whether a decree is ambiguous. Some cases say that a court may look beyond the four corners of a decree only when the words on the page are ambiguous. Other cases state that courts may review the statements of claim and transcripts of testimony from the original proceedings to expose latent ambiguities in facially unambiguous decrees. Still others suggest that courts may look at an even greater range of materials from the proceedings that produced the decree. While future litigation may require us to reconcile these cases, we leave that problem for another day. Each method leads to the same result here: The creek water at issue is not decreed to the ditch. And, since the photograph was extrinsic to the proceedings that birthed the decree, the water court erred by relying on it to characterize the decree as ambiguous. Under any of the three interpretive approaches, evidence extrinsic to the underlying proceedings is admissible only after a finding of ambiguity, not to create the ambiguity. I. Facts and Procedural History ¶5 The parties dispute whether water from La Garita Creek (the “Creek”) that passes through a siphon under a canal is a decreed source for the Rocky Hill Seepage and Overflow Ditch (the “Ditch”). If it is, then the Mike & Jim Kruse 4 Partnership (the “Partnership”), a part-owner of the Ditch, has a right to some of that water. ¶6 The Creek starts in the mountains on the west side of the San Luis Valley and flows east onto the plain. The Creek deposits sediment, and, historically, this sediment piled up, causing the Creek to continually change course and to split into distributaries. Since 1884, the east-flowing Creek has intersected perpendicularly with the north-running Rio Grande Canal (the “Canal”). ¶7 To keep Creek water from spilling into the Canal, the Creek was channelized for about a mile west of the Canal and a siphon (the “Siphon”) was installed below the Canal to funnel the Creek underneath it and into another channel that continues eastward. The water court found that the Siphon has existed since 1914 and possibly earlier.1 The picture below (an exhibit at trial) shows the Siphon, where it empties into the eastern channel: 1 According to the water court, the Siphon may have originally existed as a structure that carried water over the Canal. We agree with the water court that this possibility is irrelevant to the disposition of this case. 5 ¶8 The parties disagree about the identity of the eastern channel that starts at the mouth of the Siphon. The Division and State Engineers (the “Engineers”) say that it is the continuation of the Creek’s channelized bed. The Partnership says that the channel is the Ditch’s second branch. Whatever it is, this eastern channel now runs directly into the Ditch, and the water court found that the channel isn’t hydrologically connected to a stretch of the Creek that occasionally restarts some three-and-a-half miles east of the Canal. ¶9 On the map below (another trial exhibit), the solid green line depicts the Ditch’s current location, although this image reflects the Partnership’s position that the segment east of where the Creek intersects the Canal is part of the Ditch: 6 ¶10 When the Canal was built, seven decreed diversions existed downstream of the Canal on this part of the Creek. In 1926, the Saguache County District Court granted petitions to move several of these diversion points to the west of the Canal. Those transfers left only three decreed appropriations from the Creek immediately east of the Canal: McLeod Ditches 3, 4, and 5. Today, those three ditches divert water from the contested channel east of the Siphon, and they have appropriation dates of 1878, 1880, and 1880, respectively. 7 ¶11 In 1933, the court conducted a general adjudication of water rights in the vicinity of the Canal. Several parties filed competing claims for various ditches, and, after a day of testimony, they informed the court that they had settled. They had executed a contract (the “Contract”) that combined several ditches to create the Ditch and that resolved their competing claims to the Ditch’s water. They offered the court a stipulated decree, which became the 1933 decree (the “Decree”) that controls here.2 ¶12 The Decree does not mention the Creek or the Siphon; instead, it describes the source of the Ditch as “waste, seepage and spring waters, which are independent of and non-tributary to any natural running stream or water course, and are not capable of being used upon the lands where the waters first arise.” The Decree traces the Ditch’s layout and locates its three “headgates,” which, in this context, refer to termini of the Ditch rather than typical headgates that divert water off a source. It also specifies that the Ditch is entitled to 44.6 cubic feet of water per second with a priority date of November 17, 1891. The Decree assigns the Ditch “Priority No. 1 on its source of supply.” 2 The Decree also awards water to two other ditches that aren’t relevant to our resolution of this case. 8 ¶13 At the time of the Decree, farmers in this area practiced “sub-irrigation,” meaning that they saturated the land so that the groundwater would rise to their crops’ roots. Today, however, most of the region’s irrigation happens through center-pivot sprinklers, a more water-efficient method. The water court found that this switch has reduced seepage into the Ditch, so that it now depends on Siphon water for most of its supply. Siphon water generally consists of water that has returned to the Creek after use by upstream irrigators, but sometimes it includes untouched Creek water and snowmelt. ¶14 At least from 1975 to 2016, the water commissioner administered the water exiting the Siphon by giving the first 3.77 cubic feet per second to McLeod Ditches 3, 4, and 5 (the three remaining appropriations diverting downstream of the Siphon and with the Creek as their decreed source). The commissioner allowed the balance of the Siphon water to flow down the eastern channel that either connects to the Ditch or is itself part of the Ditch. Thus, the owners of the Ditch have had unfettered access to Siphon water, minus the McLeod diversions, for more than forty years. ¶15 In 2016, the U.S. Fish and Wildlife Service (“FWS”) placed a call on the Creek, as it owns another ditch with a headgate on the disconnected stretch of the Creek that restarts much farther east. Soon after that call, the Division Engineer told the owners of the Ditch, including the Partnership, that they have no right to 9 the water exiting the Siphon because the Decree names only “waste, seepage and spring waters” as sources. When the owners refused to stop taking Siphon water, the Division Engineer had a gate installed to block the Siphon and to redirect the Creek into the Canal. The Division Engineer then tried, but failed, to maneuver the water from the Canal and through other ditches to FWS’s ditch. ¶16 The Partnership then filed an application asking the water court to interpret the Decree to include the water that once flowed through the Siphon as a source for the Ditch, with a priority second only to McLeod Ditches 3, 4, and 5. ¶17 At first, the water court ruled that “[t]he [Decree] is clear on its face that [the Creek] is not a source of water for the [D]itch.” The court “agree[d] with the Engineers that the [D]ecree would likely mention water being siphoned under the [Canal] and placed in [the Ditch] if that water were intended to be included as a source of the water right under the [D]ecree.” The court also noted that, if the Creek had been a decreed source, the correct priority for the appropriation would have been number seventy-five, not number one. Therefore, “under a plain reading” of the Decree, it “could not include [the Creek] as a source.”3 3 The water court did, however, agree with the Partnership that FWS had no right to call for Creek water. FWS’s predecessor in interest had agreed to never claim rights under its priority. Thus, the court found “the Division Engineer [had] attempted to satisfy a call under [a] decreed right which was no longer valid.” But 10 ¶18 Upon reconsideration, the water court reversed itself. Although the court still believed “the [Decree] is clear on its face that [the Creek] is not a source of water for the [D]itch,” it nonetheless found “the [Decree] is ambiguous with respect to” whether the Creek was “an intended source of the [decreed] waste and seepage water.” Using logic we decline to detail here because it has since been undermined by the late discovery of an additional filing statement, the court held that the Creek water exiting the Siphon “was what the [D]ecree intended when it granted the [Ditch] the right to divert waste or seepage water.” ¶19 Upon further reconsideration, the water court concluded that summary judgment had been inappropriate because the parties disagreed about material facts. The court set the case for trial, where both parties presented evidence extrinsic to the Decree, including dueling historical maps, aerial photographs beginning in 1936, water administration records, pleadings and testimony from pre-1933 litigation, and the Contract. ¶20 In the water court’s third and final resolution of this matter, it again acknowledged that “[t]he Decree[’s text] unambiguously does not include [the Creek] as a source of water for the [Ditch]” while also finding that the Decree was that decision (which has not been appealed) has not benefitted the Partnership because the Division Engineer claims that the Siphon water must be used to replenish aquifers for the benefit of junior groundwater users. 11 ambiguous as to whether the Creek was the intended source of the decreed “waste, seepage and spring waters.” The ambiguity involved the location of the Ditch’s second headgate. ¶21 The Decree describes the location of that headgate “at about the North side of the West Half of the Southeast Quarter Of Section 8, . . . just East of the [Canal].” As shown in the map above, Section 8 is a square mile of land in Saguache County that contains the Siphon. The water court initially observed that “[t]he decreed location of Headgate No. 2 . . . appears to be located approximately one-quarter mile north of the . . . [S]iphon”—the spot marked “Headgate 2 (Decreed)” on the map. But the water court ultimately reasoned “that the [D]ecree language could [also] be construed to place Headgate No. 2 in a variety of locations,” including exactly at the Siphon. ¶22 Next, the court relied on evidence extrinsic to the Decree to conclude that the second headgate was, in fact, right at the Siphon in 1933. Specifically, the court pointed to an aerial photograph from 1936 that shows things as they look today; namely, a channel at the Siphon and no other possible branches of the Ditch in Section 8. Placing the second headgate at the Siphon generated the ambiguity: If the headgate was decreed there, that would be an odd place for it unless Siphon water was intended as a source. 12 ¶23 Finally, having found the second headgate to be “so located as to capture all the water that empties from” the Siphon, the court addressed the ambiguity by “look[ing] at [more] extrinsic evidence” to determine whether the phrase “waste, seepage and spring waters” was meant to include Siphon water. Ultimately, the water court answered that question in the affirmative, holding that the Decree “entitles the [Ditch] to 44.6 [cubic feet per second] of the water that is siphoned under the [Canal] from the channelized portion of [the Creek], second only to the right of the McLeod Ditches 3, 4, and 5 to 3.77 [cubic feet per second] of that water.” ¶24 The Engineers now appeal the water court’s order, arguing that the Decree unambiguously excludes the Creek as a source and that the court erred in using the aerial photograph to label the Decree ambiguous.4 II. Analysis ¶25 After identifying the standard of review, we discuss some tension in our jurisprudence on decree interpretation. We do not resolve that tension here 4We also have the benefit of briefs from intervenor-appellee S&T Farms, LLC and amicus curiae (and party below) The Rio Grande Canal Water Users Association. S&T Farms asks us to reverse the water court’s judgment to protect its water rights upstream of the Siphon and west of the Canal. The Rio Grande Canal Water Users Association argues that the Decree shouldn’t be read to compel the Association to supply the Ditch with water left over after irrigation. 13 because the Decree does not award Siphon water to the Ditch under any method of interpretation available to us under our precedents. A. Standard of Review ¶26 “We review de novo a water court’s interpretation of a decree. A water court’s conclusions of law are likewise subject to de novo review. But we ‘accept the water court’s factual findings on appeal unless they are so clearly erroneous as to find no support in the record.’” Dill v. Yamasaki Ring, LLC, 2019 CO 14 , ¶ 23, 435 P.3d 1067 , 1074 (citations omitted) (quoting Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., 2016 CO 75 , ¶ 21, 386 P.3d 452 , 460). B. Decree Interpretation ¶27 “[B]y virtue of a person taking action that makes beneficial use of water,” an “appropriator’s water right vests.” Id. at ¶ 24, 435 P.3d at 1074. “Any individual who holds a water right may file an application with the appropriate water court and request that his or her water right be . . . memorialized in a water decree.” Id. at ¶ 25, 435 P.3d at 1074. “It is the decree that recognizes the scope of a water right, and any asserted right must appear on the face of the decree or result from a proper construction of its express provisions.” Select Energy Servs., LLC v. K-LOW, LLC, 2017 CO 43 , ¶ 16, 394 P.3d 695 , 699. ¶28 So, if the Partnership has an enforceable right to the Siphon water, that right must derive from the Decree. The parties disagree, however, about how to read 14 decrees. The Engineers say that courts may not consult evidence extrinsic to a decree’s text unless the words on the page are ambiguous. The Partnership counters that courts may look at certain extrinsic evidence to contextualize the language of seemingly unambiguous decrees. Both parties can fairly claim that the law is on their side because our case law on ambiguity is itself ambiguous. ¶29 “When interpreting a water decree, this court looks first to the plain language,” id. at ¶ 13, 394 P.3d at 698 , “constru[ing] it in accordance with the plain and generally accepted meaning of the words employed,” Dill, ¶ 26, 435 P.3d at 1074. This court has sometimes stated that this first step is also the last unless the decree is facially ambiguous: “[A]bsent a determination of ambiguity, we will not look beyond the four corners of the decree.” Id.; accord Select Energy, ¶ 14, 394 P.3d at 698–99 (“Because the decree is unambiguous, we need not look to extrinsic evidence to clarify its meaning.”). ¶30 The four corners approach to decree interpretation builds on case law involving stipulations approved by water courts that had implicated “general principles of contract law.” USI Props. E., Inc. v. Simpson, 938 P.2d 168 , 173 (Colo. 1997); see City of Golden v. Simpson, 83 P.3d 87 , 93 (Colo. 2004) (“Courts interpret a stipulated change decree as they would interpret a contract. . . . If the terms are clear, a court will neither look outside the four corners of the instrument, nor admit extrinsic evidence to aid in interpretation.”); Farmers High Line Canal & Reservoir 15 Co. v. City of Golden, 975 P.2d 189 , 199 n.14 (Colo. 1999) (involving two court- approved consent decrees for changes in use and reasoning that “[i]t is well-settled that when a document is unambiguous, it cannot be varied by extrinsic evidence”). ¶31 We have not, however, addressed whether this approach, grounded in contract law as it is, has been affected by our observation that “our courts no longer apply a rigid ‘four corners’ rule” to contracts, especially “ancient” ones. Dill, ¶ 39, 435 P.3d at 1077 (quoting E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969 , 974 (Colo. 2005)). But see Am. Fam. Mut. Ins. Co. v. Hansen, 2016 CO 46 , ¶ 4, 375 P.3d 115 , 117 (“An ambiguity must appear in the four corners of the document before extrinsic evidence can be considered.”). ¶32 In contrast to the four corners approach, a parallel line of cases has “consistently recognized ‘that statements of claim and transcripts of testimony in adjudication proceedings are admissible evidence’” that “place the decree in context and are relevant to our interpretation,” even when decrees are facially unambiguous. Dill, ¶ 40, 435 P.3d at 1077 (quoting Orchard City Irrigation Dist. v. Whitten, 361 P.2d 130 , 134 (Colo. 1961)); accord Grand Valley, ¶ 51, 386 P.3d at 466 (“[W]e have consistently held that an applicant’s statement of claim and the transcripts of testimony in adjudication proceedings are admissible evidence in other actions involving the construction or interpretation of water decrees.”); In re 16 Water Rights of Cent. Colo. Water Conservancy Dist., 147 P.3d 9 , 16 (Colo. 2006); Farmers Reservoir & Irrigation Co. v. City of Golden, 44 P.3d 241 , 248 n.6 (Colo. 2002). ¶33 This other strand of case law dates back to “the advent of Colorado water law.” In re Water Rights, 147 P.3d at 16; see Orchard City, 361 P.2d at 133–34; Hinderlider v. Canon Heights Irrigation & Reservoir Co., 185 P.2d 325 , 327 (Colo. 1947); Arthur Irrigation Co. v. Strayer, 115 P. 724 , 726 (Colo. 1911); New Mercer Ditch Co. v. Armstrong, 40 P. 989 , 990 (Colo. 1895) (“These statements [of claim] may be likened to a pleading upon which a judgment is based, and they are proper to be introduced along with the decree, to enable the court to interpret or construe the latter in the light of the claimant’s own assertion of his demand.”). ¶34 Finally, our case law has sometimes suggested a third approach: Courts may look at materials from the underlying proceeding beyond statements of claim and transcripts of testimony. In Hinderlider, we indicated that whatever “evidence upon which [a] decree was based” is admissible. 185 P.2d at 327 (“A decree is not woven of thin air; . . . it must be construed in the light of the facts which gave it birth . . . .”). Indeed, if transcripts of testimony are admissible because they’re “part of the permanent records of the [original] court,” Orchard City, 361 P.2d at 134, the same might fairly be argued for the exhibits referenced in that testimony. And we recently held that certain items could not influence the interpretation of a decree because they hadn’t been “before the court in the [original] proceedings 17 and therefore could not have factored into the rights confirmed in the [decree].” Grand Valley, ¶ 25, 386 P.3d at 461 . ¶35 But we do not have to pick among these approaches today because we reach the same result under all three. Whether we limit our inquiry to the text of the Decree, or we sweep in the statements of claim and the transcript of testimony, or we examine all the materials that were before the 1933 court, we conclude that the Decree unambiguously excludes the Creek water that, until recently, flowed through the Siphon into the Ditch. Since the Decree is unambiguous under all three methods of interpretation, the water court erred in looking at the 1936 photograph. Even under the most expansive interpretive approach, the photograph was inadmissible because it was extrinsic to the 1933 proceedings. Such evidence may be consulted only after a finding of ambiguity, not to create the ambiguity. C. The Decree and the 1933 Proceedings Unambiguously Exclude the Creek 1. The Decree’s Text ¶36 The Decree describes the Ditch’s source as “waste, seepage and spring waters, which are independent of and non-tributary to any natural running stream or water course, and are not capable of being used upon the lands where the waters first arise.” The Engineers argue that this language unambiguously excludes the Creek water that flowed through the Siphon until the gate was 18 installed. The Partnership claims that this language refers to Siphon water because the appropriators saw the Creek as a nuisance that flooded their lands until they built the Ditch to drain it, and because the Decree places the Ditch’s second headgate at or near the Siphon. We agree with the Engineers. ¶37 The first problem with the Partnership’s argument is that the Decree doesn’t mention the Siphon, which existed in 1933, or even the Creek. It is hard for us to imagine anyone describing the water coming out of the Siphon without mentioning either the Siphon or the Creek that fed water through it. ¶38 Further, it would have been unnatural for the parties to the 1933 proceedings to describe a watercourse funneled through the Siphon as “waste” or “seepage.”5 “Waste water” refers to water, left over after some use, that flows over the land’s surface. See Burkart v. Meiberg, 86 P. 98 , 99 (Colo. 1906) (equating “waste water” with “water which has been spread upon the [land], but not entirely consumed, in the process of irrigation”); City of Boulder v. Boulder & Left Hand Ditch Co., 557 P.2d 1182 , 1185 (Colo. 1976) (describing “[t]hat portion [of irrigation water] which is not absorbed into the earth” and “is collected in a waste ditch” as a “typical example” of “waste water”). And the word “seepage,” “[a]s understood by Western irrigators” in the early 20th century, “applied particularly to the water 5 The Partnership does not argue that Siphon water is spring water. 19 which begins to appear in spots below irrigation canals and fields cultivated by irrigation” and below other “artificial” sources like reservoirs. 2 Clesson S. Kinney, Treatise on the Law of Irrigation and Water Rights, § 1207 (2d ed. 1912); see Burkart, 86 P. at 99 (contrasting waste water with “water which, by seepage or percolation, first arises upon . . . lands after having been applied to the irrigation of other lands”). When it reaches the Siphon, the Creek is a creek, not surplus water flowing over the land or pushing up from the ground. ¶39 It is true, however, that Siphon water primarily consists of Creek water diverted and then returned to the Creek by upstream irrigators, but it is immaterial whether this water ever temporarily qualified as waste or seepage during its journey from those fields back to the Creek. Once waste or seepage waters merge into a natural watercourse, “they become part of its volume” and are no longer waste or seepage. La Jara Creamery & Live Stock Ass’n v. Hansen, 83 P. 644 , 645 (Colo. 1905). For that reason, we interpreted the Spring and Seepage Act, which is now codified at section 37-82-102, C.R.S. (2020), and which governs appropriations of “waste” and “seepage,” as inapplicable to waters that have already “reached the channel, or bed, of a natural stream.” La Jara Creamery, 83 P. at 645. Since the Creek is a natural watercourse, Siphon water isn’t waste or seepage. ¶40 The Decree’s number one priority date is another textual obstacle for the Partnership. The water court found that the appropriators should have received 20 priority number seventy-five if the Creek had been a source for the Ditch. Taking water from the Siphon is essentially a direct diversion from the Creek, so the number one priority for “waste, seepage and spring waters” is evidence that the Decree does not award Creek water to the Ditch. Further, the Partnership concedes that the Ditch is entitled to Creek water only after McLeod Ditches 3, 4, and 5 receive their decreed Creek water, also through the Siphon. But the Decree is silent on the McLeod appropriations. Given this first-but-second-but-should- be-seventy-fifth-priority conundrum, it is far cleaner to read the Decree as awarding the Ditch priority one on whatever actual “waste, seepage and spring waters” collect there. ¶41 Finally, the water court made much of the Decree’s uncertain placement of the Ditch’s second headgate because the presence of a headgate at the Siphon would suggest that Siphon water was decreed to the Ditch. But the headgate’s imprecise location in the Decree does not amount to ambiguity about the source of the Ditch’s water. ¶42 Recall that the Decree puts the Ditch’s second headgate “at about the North side of the West Half of the Southeast Quarter Of Section 8, . . . just East of the [Canal].” We agree with the water court and the Partnership that this description doesn’t necessarily refer, as the Engineers say it does, to a specific location a quarter mile north of the Siphon (i.e., just east of where the Canal intersects the 21 north side of the west half of the southeast quarter of Section 8). That language could also refer to anywhere just east of the Canal in the north half of the west half of the southeast quarter of Section 8. The bottom line is this: The Decree doesn’t foreclose the possibility that the second headgate existed at the Siphon in 1933. But the fact that the Decree does not eliminate the Siphon as the location is not evidence that the headgate was there. ¶43 Moreover, it is unlikely that the Decree would have described the headgate as it did if that’s where it was. If the headgate was at the Siphon, why not say so? And why not mention the Creek? We hesitate to interpret the Decree as placing the headgate at the Siphon since the parties that wrote it had the option of describing the headgate’s location in terms of conspicuous landmarks but instead expressed the location as “at about” the north side of the west half of the southeast quarter of Section 8, just east of the Canal. Indeed, the reference to the Canal shows that the parties mentioned landmarks when available. ¶44 Lastly, if the Decree does describe a range of possible locations for the second headgate, the Siphon is on the very edge of that zone. We are skeptical that the parties would describe the location of the headgate in terms of an area that just barely includes the Siphon if that’s where the headgate was. ¶45 To recap, Creek water emerging from the Siphon isn’t waste or seepage; the priority number makes no sense if Creek water were an intended source given the 22 McLeod Ditches’ senior priorities to this water; and the textual evidence regarding the second headgate’s location suggests the headgate probably wasn’t at the Siphon. Thus, the water court was correct: The Decree’s text unambiguously excludes Siphon water as a source for the Ditch. ¶46 We now review the 1933 proceedings to see whether they reveal a latent ambiguity in the Decree notwithstanding its plain language. Because they do not, we defer choosing among the competing methods of decree interpretation. 2. The Testimony Transcript ¶47 The Partnership argues that L.R. Sims’s testimony from the 1933 proceedings sufficiently exposes an ambiguity as to whether the Siphon water is decreed to the Ditch. We disagree, so the resolution of this case does not depend on whether transcripts of testimony are admissible when a decree is facially unambiguous.6 ¶48 In the 1933 proceedings, Sims filed statements of claim for two of the ditches that the Decree consolidated into the Ditch. He testified that, before he built his section of the Ditch, his land was “watered from . . . one of the branches of the [C]reek,” but “there was to[o] much of it” and he “could’nt [sic] control it,” so he 6We do not review the 1933 statements of claim because the Partnership does not argue that they contribute to the alleged ambiguity. 23 “went in and drained it so as to contro[l] the water.” The water court relied on this testimony to conclude that the Ditch was built to drain the Creek, which tends to support the possibility that the Decree assigned the Siphon water to the Ditch. ¶49 But Sims also testified that he wasn’t familiar with the area until 1905 at the earliest and that he didn’t own his land there until 1910 or 1911, so his statements shed little light on the 1891 appropriation that the Decree recognized. See Harvey v. Davis, 655 P.2d 418 , 421 (Colo. 1982) (dismissing testimony about conditions in the 1930s as poor evidence of the conditions that prevailed when a 1909 decree was entered). Thus, the Sims testimony is weak evidence that “waste, seepage and spring waters” means Siphon water. Indeed, Sims testified that he didn’t build this Creek-draining section of the Ditch until 1925, so his testimony doesn’t address the scope of the 1891 appropriation that the Decree memorialized. ¶50 Although Sims’s testimony does suggest that a distributary of the Creek sometimes drained into the Ditch starting in 1925, we agree with the Engineers that this doesn’t reveal an ambiguity in the Decree. Rather, given Sims’s timeline and the clarity with which the Decree excludes Creek water, his testimony suggests the existence of an un-decreed water right. The water court seemed to resist that conclusion, doubting that “farmers appropriating water in an arid area such as the San Luis Valley would not appropriate all the water that became available to them.” But water rights vest through beneficial use, not availability. 24 Farmers High Line Canal, 975 P.2d at 198 (“[A]ward[ing] rates of flow in excess of the amounts necessary for the petitioner’s beneficial use . . . is inconsistent with one of the most basic tenets of water law, namely, that water rights are usufructuary.”). If the water court’s assumption were the rule, the beneficial use requirement would become a nullity. ¶51 Finally, we note that Frank Goudy (a former president of The Rio Grande Canal Water Users Association) testified that he was familiar with the area since 1891 and that the Ditch’s “source” was “overflow and seepage water from the irrigation of certain land . . . and certain seepage water developed from irrigation of land through the [Canal].” That explanation is more consistent with the Decree’s plain language. ¶52 Thus, the 1933 testimony, which never mentions the Siphon, does not require us to reevaluate our construction of the Decree, the plain text of which excludes Siphon water unambiguously. 3. The Contract ¶53 The Partnership also argues that an ambiguity is exposed by the Contract, the agreement executed on the eve of the Decree and then disclosed to the 1933 court. The Contract might be relevant under the third, most expansive, theory of decree interpretation. But we do not have to decide whether this document is 25 admissible because, even assuming it is, it does not reveal an ambiguity as to whether the Decree awards Siphon water to the Ditch. ¶54 The Partnership points to a passage referencing the signatories’ intent “that a Decree be entered to the [Ditch] for all of the waters found to have been developed thereby.” Even assuming that some or all of the water exiting the Siphon in 1933 eventually made its way into the Ditch, “developed” is a “term[] of art to the water law” that excludes water that is “naturally part of the river system” like native Creek water. Ready Mixed Concrete Co. v. Farmers Reservoir & Irrigation Co., 115 P.3d 638 , 644–45 (Colo. 2005). “Developed water” is “water extracted from an underground source unrelated to the natural flow of the stream.” City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 , 66 n.59 (Colo. 1996); see Kinney, supra, § 320 (defining “developed water” as water “discovered and developed through the agency of man, and which, under ordinary conditions, would not have appeared at the surface, or have contributed to the flow of any stream or body of water”). ¶55 Elsewhere, the Contract allocates among the signatories “all of the waters accumulated” in the Ditch, but that language is equally unavailing because it does not speak to the appropriators’ intent in 1891. An agreement in 1933 to divide water that possibly included Siphon water does not inform the scope of the rights the Decree memorialized as having vested more than forty years earlier. 26 ¶56 The Contract does, however, state that the purpose of the Ditch was to “secure adequate surface drainage for [the signatories’] lands, and for the further purpose of controlling and properly distributing the waters arising therefrom theretofore overflowing said lands.” (Emphasis added.) In other words, the purpose of the Ditch was to drain water arising on their lands, not to drain a watercourse like the Creek that descends from the mountains. ¶57 The Contract is insufficiently compelling evidence that the Decree’s text conceals an ambiguity. D. The Water Court Erred by Consulting Evidence Extrinsic to the 1933 Proceedings ¶58 To summarize, the Decree’s text categorically excludes Siphon water as a source for the Ditch, and the 1933 proceedings expose no latent ambiguities that require us to doubt our construction of the Decree. So ends our work: Under any of the three available approaches to decree interpretation, courts may not look at evidence extrinsic to the original proceedings when, given the admissible materials, the decree is reasonably susceptible to only one interpretation.7 7 We also reject the Partnership’s contention that this exercise amounts to a collateral attack on the 1933 court’s supposed finding that Siphon water is “waste, seepage and spring water.” That argument assumes the Partnership’s interpretation of the Decree is right, and we have already concluded that it is not. 27 ¶59 The water court erred when it invoked evidence extrinsic to the 1933 proceedings in finding the Decree ambiguous. The court used an aerial photograph from 1936 to definitively place the Ditch’s second headgate at the Siphon in 1933. That finding, the court said, made the Decree ambiguous since it suggested Siphon water was a decreed source. In turn, that ambiguity opened the door to further evidence extrinsic to the proceedings. But the Decree is unambiguous based on its text and the 1933 proceedings, so the photograph is irrelevant under any of the three possible interpretative methodologies. III. Conclusion ¶60 Because we conclude the Decree and the 1933 proceedings unambiguously exclude the Creek water that previously flowed through the Siphon, we reverse the water court’s order and remand the case for further proceedings consistent with this opinion. 28
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http://courts.delaware.gov/Opinions/Download.aspx?id=315910
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE inVENTIV HEALTH CLINICAL, LLC, ) ) Plaintiff / Counterclaim Defendant, ) ) v. ) C.A. No. N19C-12-033 ) PRW CCLD ODONATE THERAPEUTICS, INC., ) ) Defendant / Counterclaim Plaintiff. ) Submitted: November 20, 2020 Decided: January 26, 2021 MEMORANDUM OPINION AND ORDER Upon Plaintiff inVentiv Health Clinical, LLC’s Motion to Dismiss GRANTED IN PART, DENIED IN PART. Jody C. Barillare, Esquire, MORGAN, LEWIS & BOCKIUS LLP, Wilmington, Delaware; Brian W. Shaffer, Esquire, MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, Pennsylvania; John A. Vassallo, III, Esquire, MORGAN, LEWIS & BOCKIUS LLP, New York, New York, Attorneys for Plaintiff/ Counterclaim Defendant inVentiv Health Clinical, LLC. Catherine A. Gaul, Esquire, ASHBY & GEDDES, Wilmington, Delaware; Shireen Barday, Esquire, GIBSON DUNN, New York, New York; Joshua H. Lerner, Esquire, GIBSON DUNN, San Francisco, California, Attorneys for Defendant/ Counterclaim Plaintiff Odonate Therapeutics, Inc. WALLACE, J. This case arises from a dispute between the parties to pharmaceutical drug trial agreements. inVentiv Health Clinical, LLC (“Syneos”1), is a privately owned global provider of biopharmaceutical services that includes Contract Research Organization services. Odonate Therapeutics, Inc., is a biotechnology company that focuses on development of therapeutics for cancer patients; it has primarily focused on the development of a drug called tesetaxel, a treatment drug for patients with breast cancer. Each party, among other counts, alleges that the other breached the several agreements between them. Syneos alleges that Odonate owes it nearly $12 million in unpaid invoices.2 Odonate alleges that Syneos overbilled for more than $7 million, is not honoring $4.65 million in credits for missed milestones, and that it fraudulently induced the contracts.3 Before the Court now is Syneos’s motion to dismiss Odonate’s counterclaims. Syneos’s Motion is DENIED as to Counterclaim Count I (breach of contract) and is GRANTED as to Counterclaim Counts II and III (breach of the implied covenant of good faith and fair dealing and fraud in the inducement). 1 In 2018, inVentiv Health rebranded as Syneos Health. In most of the parties’ briefing, inVentiv is referred to as Syneos. So the Court uses that new name herein to avoid confusion. 2 Pl.’s Compl. at ¶ 1, Dec. 12, 2019 (D.I. 1). 3 Def.’s Am. Countercl. at ¶ 1, Mar. 9, 2020 (D.I. 15). -1- I. FACTUAL BACKGROUND In early 2017, Odonate was looking for a contract research organization (“CRO”) to provide Phase III clinical drug study and regulatory approval services for its cancer drug study, CONTESSA—a multinational study of the novel therapeutic agent, tesetaxel, for patients with breast cancer.4 Odonate began discussions with Syneos, during which Syneos made specific representations as to its expertise, ability to hit mutually agreed upon timelines, ability to complete CONTESSA enrollment by February 2019 and to provide continuity of Clinical Research Associates (“CRAs”) during the entire study.5 Based on Syneos’s representations of its expertise and capability, the parties entered into a Start-Up Services Agreement (“SUSA”) in February 2017 and Odonate formally awarded the management of CONTESSA to Syneos on March 26, 2017.6 The parties entered into a Master Services Agreement (“MSA”) in April 2017.7 And in May 2017, Syneos announced it was merging with INC Research.8 By that time, Odonate had already invested a half-million dollars into its deal with Syneos.9 4 Id. at ¶ 2. 5 Id. at ¶¶ 25, 116. 6 Id. at ¶ 28. 7 Id. at ¶ 29. 8 Id. at ¶ 5. 9 Id. -2- The parties entered an Individual Project Agreement (“IPA”) in August 2017.10 The IPA specified that Odonate would pay Syneos $29.6 million in exchange for its services to “successfully manage CONTESSA through its completion.”11 The IPA included bonus and penalty incentives for Syneos to complete certain work by objective milestones.12 The milestones included dates when a number of clinical sites would become activated or when a number of patients had been introduced to the study.13 Syneos’s merger with INC Research was completed on August 1, 2017.14 This merger, Odonate believes, severely impacted Syneos’s ability to manage CONTESSA.15 More specifically, the merger allegedly caused Syneos to shift corporate priorities and the allocation of necessary resources away from its duties under the IPA.16 Due to this shift, Odonate says, Syneos failed to live up to the 10 Id. at ¶ 30. 11 Id. at ¶ 31. 12 Id. at ¶ 66. 13 Id. at ¶ 68. 14 Id. at ¶ 38. 15 Id. at ¶ 39. 16 Id. at ¶¶ 34, 36. -3- representations of its capacity to successfully manage CONTESSA.17 Syneos’s alleged deficiencies in its management of CONTESSA caused it to miss every single agreed-upon milestone by an average of 101 days.18 Additionally, during this time, CONTESSA experienced a high rate of turnover for its CRAs, despite Syneos’s representations of its goal for CRA continuity for the lifetime of the CONTESSA project.19 Despite these deficiencies in performance, Odonate tried to work with Syneos to improve its performance from October 2018 to April 2019.20 When these attempts failed, Odonate invested in the infrastructure to take over some of the management activities of CONTESSA.21 On May 7, 2019, Odonate informed Syneos of this change, and Syneos agreed to create a transition plan in order to minimize disruption to the CONTESSA project.22 On May 13, 2019, Syneos suspended its services without providing any transition plan and informed its testing sites that Odonate had taken over full 17 Id. at ¶ 39. 18 Id. at ¶¶ 67-68. 19 Id. at ¶ 40. 20 Id. at ¶ 71. 21 Id. at ¶ 72. 22 Id. -4- responsibility for CONTESSA.23 Despite this suspension of service, Syneos continued to send Odonate monthly invoices of $217,717.82 for six months (totaling $1,303,306.92) after the May suspension date.24 On November 25, 2019, Odonate exercised its right of early termination under Section 5.2(a) of the MSA.25 Upon this termination, Syneos was obligated to account for the number of fully-completed or partially-completed units of work it had performed pursuant to Section 5.3(c)(i) of the MSA and Section 4 of the IPA.26 Syneos never did so.27 As of the November 25 termination date, Syneos had invoiced Odonate approximately $25.5 million.28 Odonate’s own calculation, based on the amount of units of work recorded, suggested that Syneos had performed approximately $18.4 million of services, and thus overbilled $7.1 million.29 Further, according to 23 Id. at ¶¶ 73-74. 24 Id. at ¶ 88. 25 Id. at ¶ 59. 26 Id. 27 Id. 28 Id. at ¶ 42. 29 Id. ¶¶ 43, 46-47. -5- Odonate, Syneos’s missed milestones resulted in payment penalties worth $4.65 million.30 II. PARTIES’ CONTENTIONS A. SYNEOS’S COMPLAINT In December 2019, Syneos filed its Complaint against Odonate for breach of contract, equitable estoppel, promissory estoppel, and unjust enrichment.31 It alleges Odonate refused payment required by a number of different contractual provisions of the MSA and IPA, amounting to at least $12 million in compensatory and other damages for monthly fees, milestones, compensable expenses, and late fees.32 B. ODONATE’S COUNTERCLAIMS In its answer, Odonate filed counterclaims against Syneos for breach of contract, breach of implied covenant of good faith and fair dealing, and fraud in the inducement.33 In Counterclaim Count I, Odonate asserts that Syneos breached the MSA and IPA through overbillings, missed contractual milestones, continued billings after suspending services, and unreturned grant funds.34 30 Id. at ¶ 68. 31 Pl.’s Compl. at ¶¶ 63-75. 32 Id. at ¶¶ 144-45, 159. 33 Def.’s Am. Countercl. at ¶¶ 83-126. 34 Id. at ¶¶ 84, 88, 91. -6- Counterclaim Count II again alleges that Syneos arbitrarily inflated time spent working, missed milestones, and continued billing after suspending services. This time labeling them as breaches of the implied covenant of good faith and fair dealing.35 Lastly, Counterclaim Count III alleges that Syneos fraudulently induced Odonate into the contract by representing that it would hit the discussed timelines, complete CONTESSA enrollment by February 2019, and provide the continuity of CRAs during the entire study.36 Odonate says it justifiably relied on these statements and representations when entering into the MSA and IPA.37 C. SYNEOS’S MOTION TO DISMISS According to Syneos, all three of Odonate’s counterclaims should be dismissed in part or in whole.38 First, Syneos posits that Odonate’s breach-of-contract counterclaim should be dismissed in part. It argues that it did not inflate its units of time spent working; claiming that these alleged bills do not exist and that the grounds of the claim are 35 Id. at ¶ 99. 36 Id. at ¶116. 37 Id. 38 Pl.’s Mot. to Dismiss Countercls. at 10-34, Apr. 10, 2020 (D.I. 20). -7- baseless.39 It also counters that it did not violate the MSA’s Termination Provision because the dispute concerning millions of dollars’ worth of unpaid invoices from Odonate preempted any calculation of a potential termination payment.40 In response to Odonate’s allegation about the suspension of services, Syneos claims that there was no provision in either agreement that obligates it to cease invoicing for its contractually-guaranteed fixed monthly services fees before termination of the contracts.41 Additionally, Syneos claims it did not violate any Investigator Grant provisions because the controlling agreement provides that these retainers will be held until the end of the study and applied against the final invoices.42 Next, Syneos says that Odonate’s count for breach of the implied covenant of good faith and fair dealing fails because its claims are merely duplicative of its breach-of-contract count.43 In making this argument, Syneos emphasizes the near identical language of the two claims when describing overbilling, missed milestones, and suspension of services.44 39 Id. at 23. 40 Id. at 27. 41 Id. at 28. 42 Id. at 31. 43 Id. at 32. 44 Id. -8- Finally, Syneos posits that Odonate’s claim for fraud fails because any representations the company made were true in light of its proven experience, expertise, and capabilities.45 It also argues that contractual language bars the claim because it explicitly states the services would not guarantee any outcome of CONTESSA.46 What’s more, Syneos asserts, Odonate fails to allege any misrepresentations with sufficient specificity to satisfy Delaware Superior Court Civil Rule 9(b)’s pleading requirement. 47 III. STANDARD OF REVIEW “Under Superior Court Civil Rule 12(b)(6), the legal issue to be decided is, whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.”48 Under that Rule, the Court will (1) accept all well pleaded factual allegations as true, (2) accept even vague allegations as “well pleaded” if they give the opposing party notice of the claim, (3) draw all reasonable inferences in favor of the non-moving party, and (4) not dismiss the claims unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances.49 45 Id. at 10. 46 Id. at 13-14. 47 Id. at 15. 48 Vinton v. Grayson, 189 A.3d 695 , 700 (Del. Super. Ct. 2018) (quoting Superior Court Civil Rule 12(b)(6)). 49 Id. (quoting Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531 , 535 (Del. 2011)). -9- “If any reasonable conception can be formulated to allow Plaintiffs’ recovery, the motion must be denied.”50 And these well-established rules applied to the suit-initiating plaintiff’s claims are of the same utility when assessing an answering defendant’s (i.e. counter-plaintiff’s) counterclaims. The Court must accept as true all well-pleaded allegations for Rule 12(b)(6) purposes.51 And every reasonable factual inference will be drawn in the non-moving party’s favor.52 If the claimant may recover under that standard, then the Court must deny the motion to dismiss.53 This is because “[d]ismissal is warranted [only] where the plaintiff has failed to plead facts supporting an element of the claim, or that under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.”54 Delaware law requires those pleading fraud and misrepresentation to do so with particularity—a heightened pleading standard.55 To satisfy Rule 9(b), a 50 Id. (citing Cent. Mortg. Co., 27 A.3d at 535 ). 51 Anderson v. Tingle, 2011 WL 3654531 , at *2 (Del. Super. Ct. Aug. 15, 2011). 52 Wilmington Sav. Fund Soc’y, F.S.B. v. Anderson, 2009 WL 597268 , at *2 (Del. Super. Ct. Mar. 9, 2009) (citing Doe v. Cahill, 884 A.2d 451 , 458 (Del. 2005)). 53 Spence v. Funk, 396 A.2d 967 , 968 (Del. 1978). 54 Hedenberg v. Raber, 2004 WL 2191164 , at *1 (Del. Super. Ct. Aug. 20, 2004). 55 Super. Ct. Civ. R. 9(b). -10- fraud or misrepresentation claim must allege: (1) the time, place, and contents of the false representation; (2) the identity of the person making the representation; and (3) what the person intended to gain by making the representations. Essentially, the plaintiff is required to allege the circumstances of the fraud with detail sufficient to apprise the defendant of the basis for the claim.56 IV. DISCUSSION The MSA provides that the Court shall apply New York law for any “claim, controversy, or dispute arising under or related to this Agreement.”57 Delaware courts will generally respect parties’ rights to freedom of contract, and their choice of law to control that contract.58 A. COUNTERCLAIM COUNT I – BREACH OF CONTRACT Syneos contends that Odonate’s breach-of-contract counterclaim should be dismissed in part. To state a claim for breach of contract, a plaintiff must adequately allege “the existence of a contract, the plaintiff’s performance pursuant to that contract, the defendant’s breach of its contractual obligations, and damages resulting from that breach.”59 Dismissal based on differing contractual interpretations is 56 Abry Partners V, L.P. v. F&W Acquisition LLC, 891 A.2d 1032 , 1050 (Del. Ch. 2006). 57 Pl.’s Compl., Ex A at 17 (MSA). 58 Ascension Ins. Holdings, LLC v. Underwood, 2015 WL 356002 , at *2 (Del. Ch. Jan. 28, 2015). 59 Webb v. Greater N.Y. Auto. Dealers Ass’n, Inc., 123 A.D.3d 1111 , 1112 (N.Y. App. Div. 2014). -11- proper only if the movant’s interpretation is the sole reasonable construction as a matter of law.60 So if any reasonable conception allows Odonate’s recovery for breach of contract, Syneos’s motion to dismiss must be denied.61 Here, Syneos invokes Rule 12(b)(6) to seek “dismissal” of but a few of Odonate’s theories of recovery supporting its breach-of-contract counterclaim. But at the pleading stage of a case, a trial judge is not a robed gardener employing Rule 12(b)(6) as a judicial shear to prune individual theories from an otherwise healthily pled claim or counterclaim. Odonate asserts five theories to support its breach-of-contract counterclaim against Syneos. First, it claims that Syneos improperly overbilled Odonate through its invoices and Monthly Service Fees.62 Second, it says that these billing practices breached the MSA and IPA resulting in damages.63 Third, Odonate alleges that Syneos missed all of the IPA milestones.64 Fourth, it contends that Syneos improperly suspended services and failed to provide adequate transition support.65 60 L&L Broad. LLC v. Triad Broad. Co., LLC, 2014 WL 1724769 , at *3 (Del. Super. Ct. Apr. 8, 2014) (quoting Deere & Co. v Exelon Generation Acquisitions, LLC, 2014 WL 904251 , at *4 (Del. Super. Ct. Mar. 7, 2014)). 61 Cent. Mortg. Co., 27 A.3d at 535 . 62 Def.’s Am. Countercl. at ¶¶ 87-88. 63 Id. at ¶¶ 89-90. 64 Id. at ¶ 91. 65 Id. at ¶ 92. -12- Finally, it claims that Syneos breached the IPA by failing to return unused Investigator Grants.66 Syneos addresses only a few of these theories in its dismissal motion—disputing the allegations of overbilling,67 termination payment breach,68 and retainer of grant payments69—but readily admitting that it cannot claim that the entire breach-of contract claim fails. The Motion itself reads that the counterclaim should be “dismissed in part.”70 Syneos concedes that there is no Delaware state court decision on point regarding the propriety of a partial dismissal of a claim via Rule 12(b)(6).71 Rather, Syneos claims that the Court’s inherent powers allows it “to take actions reasonably necessary to administer justice efficiently, fairly, and economically.”72 Syneos contends that by declining to parse theories of a single claim, parties would be “highly incentivized” to move for dismissal of counts in their entirety, including 66 Id. at ¶ 93. 67 Pl.’s Mot. to Dismiss Countercls. at 23. 68 Id. at 27. 69 Id. at 30-31. 70 Id. at 22. 71 Pl.’s Suppl. Letter at 1, Nov. 20, 2020 (D.I. 43). 72 Id. at 2 (quoting 20 Am. Jur. 2d Courts § 36). -13- those counts that do not support dismissal.73 According to Syneos, this would result in a waste of both judicial and party resources.74 The Court is unconvinced. If the benefits of such a 12(b)(6) exercise were so obvious, surely Delaware courts would regularly engage it. But neither the parties’ nor the Court’s research revealed a single Delaware state court that allowed partial dismissal by plucking out individual allegations in of a single claim on a Rule 12(b)(6) motion.75 And the Court declines Syneos’s invitation to do so here. The Court joins good company.76 It seems most courts addressing the practice disfavor parties’ using of Rule 12(b)(6) to dismiss only parts of a claim.77 Courts have recognized that the Federal 73 Id. 74 Id. 75 Id. at 1; Def.’s Suppl. Letter at 1, Nov. 20, 2020 (D.I. 42). 76 Though Syneos urges that this Court is parting ways with one of its closest siblings— Delaware’s Court of Chancery—the few samplings of that Court’s claim-culling Syneos digs up are hardly of the same species Syneos suggests abounds. E.g., Snyder v. Brady, et al, Del. Ch., C.A. No. 2017-0072-VCL (transcript op.) (provided as Pl.’s Post-Br. Letter, Ex. A (D.I. 37)) (court, when deciding a motion to dismiss a claim of a violation of fiduciary duty and determining whether plaintiff could bring a derivative claim under the pleading requirements of Chancery Rule 23.1, found demand futility was satisfied for only two of four discrete alleged acts of wrongdoing); Overdrive, Inc. v. Baker & Taylor, Inc., 2011 WL 2448209 , at *7 (Del. Ch. June 17, 2011) (dismissing a claim that defendant allegedly breached a contract’s dispute resolution provision because it was clearly time-barred by the contract’s express terms while allowing concomitant claims derived from two other contractual obligations to go forward). 77 See Federal Trade Commission v. Nudge, LLC, 430 F. Supp. 3d 1230 , 1246 (D. Utah 2019) (“As many courts have recognized, parties may not use rule 12(b)(6) to dismiss only parts of a claim.”); M.N. v. United Healthcare Ins., 2020 WL 1644199 , at *3 (D. Utah Apr. 2, 2020); In re Netopia, Inc., Secs. Litig., 2005 WL 3445631 , at *3 (N.D. Cal. Dec. 15, 2005). -14- Rules of Civil Procedure78 allow for dismissal of a complaint for failure to state a claim, but they provide no basis “for striking individual legal theories.”79 Indeed, courts do not, under Rule 12(b)(6), dismiss only some of the claim’s allegations if the claim otherwise survives.80 This issue was addressed squarely in BBL, Inc. v. City of Angola, when a party in the suit tried to split a single claim into multiple components based on the elements of the applicable constitutional test.81 There the United States Court of Appeals for the Seventh Circuit explained, “[a] motion to dismiss under Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of claims; the question at this stage is simply whether the complaint includes all factual allegations that state a plausible claim for relief.”82 78 The Court knows well that the Delaware Superior Court Rule 12(b)(6) standard is “conceivability” while the Federal Rules follow the “plausibility” standard. Central Mort. Co., 27 A.3d at 536-37 . But that distinction is of no moment here. That’s because the issue addressed here is not the ultimate survivability test to be applied to a given claim, but whether the Court applies its adopted survivability test to a claim (or counterclaim) as a whole or to its parts. And on this issue Delaware and the federal courts are in agreement that they do reach the merits of a survivability argument when a party inappropriately uses a motion to dismiss as a vehicle to remove just one or another theory of liability from a single claim. 79 Zidek v. Analgesic Healthcare, Inc., 2014 WL 2566527 , at *2 (N.D. Ill. June 6, 2014). 80 Redwind v. Western Union, LLC, 2019 WL 3069864 , at *4 (D. Or. June 21, 2019). 81 BBL, Inc. v. City of Angola, 809 F.3d 317 , 324 (7th Cir. 2015). 82 Id. (citation omitted) (emphasis in original); see also M.N., 2020 WL 1644199 , at *3. But see Int’l Bus. Machs. Corp. v. Priceline Grp. Inc., 2017 WL 1349175 , at *6-7 (D. Del. Apr. 10, 2017) (where federal district court discussed BBL but found it inapplicable to the Rule 12(b)(6) examination of “separate sets of operative facts making up what should be separate claims of -15- Put simply, the Court must consider a claim or counterclaim its entirety when ruling on a Rule 12(b)(6) motion to dismiss.83 And so, the Court will not at this point parse the several individual theories comprising Odonate’s breach-of-contract counterclaim.84 Syneos’s Motion to Dismiss (or, more aptly, to trim down) Odonate’s Amended Counterclaim Count I under this Court’s Rule 12(b)(6) is DENIED. B. COUNTERCLAIM COUNT II – BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING Under New York law, a claim for breach of the implied covenant of good faith and fair dealing cannot be maintained if it is “intrinsically tied to the damages allegedly resulting from the breach of contract.”85 So where the conduct and resulting injury alleged in the implied covenant claim are identical to the inequitable conduct” subject to Rule 9(b) pleading standards, because to do otherwise, the district court felt, “would frustrate the very purpose of Rule 9(b)’s requirement that an inequitable conduct claim be pleaded with particularity.”). 83 See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 , 322-23 (2007); see also Nudge, LLC, 430 F. Supp. 3d at 1245-47 (“Rule 12(b)(6) permits a party to seek dismissal of a claim for ‘failure to state a claim upon which relief can be granted.’ Here, Defendants do not seek to dismiss Plaintiffs’ claims in their entirety.”). 84 Nudge, LLC, 430 F. Supp. 3d at 1246 (“[C]ourts may not dismiss only some of the claim’s allegations if the claim otherwise survives.”) (internal quotations omitted). 85 Deer Park Enters., LLC v. Ail Sys., Inc., 870 N.Y.S.2d 89 , 90 (N.Y. App. Div. 2008) (quoting Canstar v. Jones Constr. Co., 622 N.Y.S.2d 730 ). -16- breach-of-contract claim, the implied covenant claim should be dismissed.86 Here, the conduct and resulting damages alleged in Odonate’s breach of the implied covenant of good faith and fair dealing claim mirrors its breach-of-contract claim. Both Odonate’s breach-of-contract counterclaim and breach of the implied covenant of good faith and fair dealing counterclaim complain that Syneos’s over-billing, missed milestones, and improper suspension of service, caused Odonate’s injuries.87 Both claims arise from the same underlying conduct that Syneos inflated the amount of clinical sites used for the CONTESSA study.88 Further, both claims use the exact same language about the missed milestones and the alleged breach of the MSA. In regards to the missed milestones, Odonate’s amended counterclaim states: “Syneos missed 100% of the contractually-agreed upon milestones in the IPA that were tied to a payment bonus or penalty, including missing the 600 patients randomized milestone by 6 months.”89 Regarding the breach of the MSA, the amended counterclaim states: “[i]n breaching the MSA by fraudulently overbilling Odonate, causing significant delinquencies and missing 86 Id.; see also Friedman v. Maspeth Fed. Loan & Sav. Ass’n, 30 F. Supp. 3d 183 , 195 (E.D.N.Y. 2014) (“Under New York law, the same facts cannot give rise to both a claim for breach of contract and a claim for breach of implied duty of good faith and fair dealing.”). 87 Def.’s Am. Countercl. at ¶¶ 83-97, 98-113. 88 Id. at ¶¶ 86, 99. 89 Id. at ¶¶ 91, 101. -17- milestones, improperly suspending its services under the MSA and IPA, all while unilaterally failing to terminate the agreements, Syneos acted with intentional, willful, indifferent, conscious, or voluntary disregard of foreseeable injury and harm to Odonate.”90 Odonate argues that Delaware Superior Court Rule 8(e)(2) allows a party to plead its breach of the implied covenant claim in the alternative to its breach-of-contract claim.91 And Odonate cites Hard Rock Café, Int’l., (USA), Inc. v. Hard Rock Hotel Holdings, LLC to support this contention, arguing that “where the existence or meaning of a contract is in doubt, a party may plead a claim for breach of the covenant of good fair and fair dealing in the alternative.”92 But Odonate’s argument fails here because the contracts between these parties are neither in doubt nor are they potentially void. Because Odonate’s claim for breach of the implied covenant mirrors its breach-of-contract claim, Syneos’s Motion to Dismiss Count II of Odonate’s Amended Counterclaims is GRANTED. 90 Id. at ¶¶ 97, 113. 91 Def.’s Opp’n. Br. at 32, May 13, 2020 (D.I. 21). 92 Hard Rock Café, Int’l., (USA), Inc. v. Hard Rock Hotel Holdings, LLC, 808 F. Supp. 2d 552 , 567 (S.D.N.Y. 2011). -18- C. COUNTERCLAIM III – FRAUD IN THE INDUCEMENT While New York substantive law governs this matter, Odonate’s fraudulent inducement claim must meet Delaware Superior Court Civil Rule 9(b)’s heightened pleading standard. Moreover, no choice of law analysis is necessary here as there is no conflict between the Delaware and New York law that must be applied here.93 Under New York law, when the alleged fraud “is indistinguishable from the breach of contract, no fraud cause of action arises.”94 Likewise, in Delaware, “where an action is based entirely on a breach of the terms of a contract between the parties, and not on a violation of an independent duty imposed by law, a plaintiff must sue in contract and not in tort.”95 Syneos argues that Odonate’s fraudulent inducement claim fails on multiple grounds. First, Syneos contends that Odonate fails to satisfy the Rule 9(b) heightened pleading standard as Syneos made no false representations, the alleged misrepresentations are opinions of value, not fact, and Odonate failed to plead knowledge of falsity.96 Second, Syneos insists that the MSA and IPA contain 93 Lagrone v. American Mortell Corp., 2008 WL 4152677 , at *5 (Del. Super. Ct. Sept. 4, 2008). 94 Todd v. Grandoe Corp., 302 A.D.2d 789 , 791 (N.Y. App. Div. 2003). 95 ITW Glob. Invs. Inc. v. Am. Indus. P’rs Capital Fund IV. L.P., 2015 WL 3970908 , at *6 (Del. Super. Ct. June 24, 2015) (citing Midland Red Oak Realty, Inc. v. Friedman, Billings & Ramsey & Co., 2005 WL 445710 , at *3 (Del.Super.2005)). 96 Pl.’s Mot. to Dismiss Countercls. at 15-20. -19- specific language of disclaimer that forecloses Odonate’s fraudulent inducement claim.97 Lastly, Syneos argues that Odonate’s fraudulent inducement claim is duplicative of its breach-of-contract claim.98 This last argument is dispositive here. 1. Odonate’s Fraudulent Inducement Claim Pleads Separate and Distinct Conduct. A breach-of-contract claim and a fraudulent inducement claim may coexist where the plaintiff alleges “that the defendant breached a duty that is independent of the duties imposed by the contract.”99 But Delaware courts will not allow a plaintiff to “bootstrap” a breach-of-contract claim into a fraud claim by baldly alleging the defendant never intended to perform its obligations.100 “[A] fraud claim alleged contemporaneously with a breach of contract claim may survive, so long as the claim is based on conduct that is separate and distinct from the conduct constituting breach.”101 Fraud claims focused on the inducement to contract, rather than the performance of a contract, are considered separate and distinct conduct.102 97 Id. at 12-13. 98 Id. at 21-22. 99 Brasby v. Morris, 2007 WL 949485 , at *7 (Del. Super. Ct. Mar. 29, 2007) (citation omitted). 100 ITW Glob. Invs. Inc, 2015 WL 3970908 , at *6 (quoting Furnari v. Wallpang, Inc., 2014 WL 1678419 , at *8 (Del. Super. Ct. Apr. 16, 2014). 101 Furnari, 2014 WL 1678419 , at *8 (citation omitted). 102 ITW Glob. Invs. Inc, 2015 WL 3970908 , at *6. -20- Odonate’s fraudulent inducement claim alleges that Syneos’s misrepresentations and omissions induced it to choose Syneos as its CRO and to enter into the MSA and IPA for management of CONTESSA.103 In its best light, Odonate’s fraudulent inducement claim is read to allege that Syneos knowingly and intentionally: (1) held itself out to be highly qualified and experienced to manage CONTESSA; (2) assured Odonate of its abilities to hit the discussed milestones and timelines; (3) engaged in pre-contractual concealment of its pending merger with INC Research; and (4) did all of this to induce Odonate into entering into the MSA and IPA.104 Odonate alleges that it would not have entered into the MSA and IPA if it had known that Syneos did not have the capabilities and expertise it represented it had.105 Odonate has met the heightening pleading standard imposed by Rule 9(b) to address the time, place, and content elements of fraud claims. Further, under the specific circumstances presented here, it has pled enough to distinguish its fraudulent inducement claim from its breach-of-contract claim. But separate and distinct conduct is just one hurdle Odonate’s fraudulent inducement claim must pass over. 103 Def.’s Am. Countercls. at ¶ 121. 104 Id. at ¶¶115-18 105 Id. at ¶ 117. -21- 2. Odonate Fails to Plead Separate Damages to Sustain its Fraudulent Inducement Count. Even if the conduct pled by Odonate is separate and distinct, it must still plead separate damages. Failure to do so is an independent ground for dismissal.106 Under Delaware’s pleading standard, the damages may not simply “rehash” the damages allegedly caused by the breach-of-contract.107 Here Odonate’s damages for the fraudulent inducement and breach-of-contract claims appear to be identical. Odonate’s categorization of these damages under the guise of replacement costs is not enough to distinguish it from its contract damages. Because Odonate fails to plead damages that are separate from those of its breach-of-contract claim, its claim for fraudulent inducement should be dismissed.108 Odonate urges that it has adequately pled distinct damages arising separately from its contract claims because the damages pled regarding the fraudulent inducement claims it says “related to Syneos’s inability to manage CONTESSA, such as ‘replacement costs borne by Odonate’ for taking over the operation of the 106 Cornell Glasgow, LLC v. La Grange Props. LLC, 2012 WL 2106945 , at *9 (Del. Super. Ct. June 6, 2016) (“[Plaintiff] has failed to plead fraud damages separate and apart from its breach damages. The fraud claim, therefore, must be dismissed for this reason as well.”). 107 Khushaim v. Tullow Inc., 2016 WL 3594752 at *6 (Del. Super. June 27, 2016) (internal quotation marks and citations omitted); Cornell Glasgow, LLC, 2012 WL 2106945 at *8. 108 Khushaim, 2016 WL 3594752 , at *6-7 (dismissing claim for fraud where plaintiff “merely pled identical damages”); ITW Global Invs., Inc., 2015 WL 3970908 , at *5 (dismissing claim for fraud where plaintiff pleaded materially identical damages); Cornell Glasgow, LLC, 2012 WL 2106945 , at *8 (dismissing fraud claims where breach-of-contract claim alleged identical damages). -22- project.”109 Odonate insists that these replacement costs are separate and distinct as they are due to “Syneos’s significant delinquencies, missed milestones and poor performance” in regards to “what would have been the term of the IPA.”110 Whereas, Odonate contends, the damages pled arising out of its breach-of-contract claim include the inflated payments made, credits for missed milestones, and the failure to return the investigator retainer.111 Odonate’s drawn distinctions are illusory; the harm alleged under both claims is the same. Both the replacement costs and overbilling are a rehashing of damages resulting from the alleged breach-of-contract. Odonate’s fraudulent inducement claim is not separate and distinct from the breach-of-contract claim. So Odonate’s claims with mirrored damages cannot survive.112 Accordingly, Syneos’s Motion to Dismiss Count III of Odonate’s Amended Counterclaims is GRANTED. 109 Def.’s Opp’n. Br. at 23-24; Def.’s Am. Countercls. at ¶¶ 122-23. 110 Def.’s Am. Countercls. at ¶¶ 122-23. 111 Def.’s Opp’n. Br. at 24; Def.’s Am. Countercls. at ¶¶ 100-02, 108. 112 EZLinks Golf, LLC v. PCMS Datafit, Inc., 2017 WL 1312209 , at *7 (Del. Super. Ct. Mar. 13, 2017); ITW Global Invs., Inc., 2015 WL 3970908 , at *5; Cornell Glasgow, LLC, 2012 WL 2106945 , at *8. -23- V. CONCLUSION Because the Court will not, when deciding this Rule 12(b)(6) motion, parse the individual breach-of-contract theories Odonate propounds, Syneos’s Motion to (Partially) Dismiss Odonate’s Amended Counterclaim I is DENIED. Because Odonate’s pleadings of breach of the implied covenant of good faith and fair dealing claim and of fraud in the inducement impermissibly mirror that surviving breach-of- contract claim, Syneos’s Motion to Dismiss is GRANTED as to Odonate’s Amended Counterclaims II and III. IT IS SO ORDERED. Paul R. Wallace _______________________ Paul R. Wallace, Judge Original to Prothonotary cc: All Counsel via File and Serve -24-
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2021-01-26 20:02:50.250989+00
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http://courts.delaware.gov/Opinions/Download.aspx?id=315890
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE WILLIAM WEST, ) ) Plaintiff, ) ) v. ) ) C.A. No. N17C-11-137 MMJ CCLD ACCESS CONTROL RELATED ) ENTERPRISES, LLC; LLR EQUITY ) PARTNERS, IV, L.P.; LLR EQUITY ) PARTNERS PARALLEL IV, L.P.; ) SETH LEHR, an individual; ) DAVID STIENES, an individual; ) GREG CASE, an individual; ) ROBERT CHEFITZ, an individual; and ) JOSEPH GRILLO, an individual. ) ) Defendants. ) Submitted : January 19, 2021 Decided: January 26, 2021 ORDER DENYING CERTIFICATION OF INTERLOCUTORY APPEAL (1) Plaintiff William West has moved for an order certifying an interlocutory appeal to the Delaware Supreme Court. The determination of whether to certify an interlocutory appeal lies within the discretion of the Court and is analyzed under the criteria set forth in Supreme Court Rule 42(b). Rule 42(b)(i) states: “No interlocutory appeal will be certified by the trial court or accepted by this Court 1 unless the order of the trial court decides a substantial issue of material importance that merits appellate review before final judgment.” Rule 42(b)(ii) admonishes: “Interlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources. Therefore, parties should only ask for the right to seek interlocutory review if they believe in good faith that there are substantial benefits that will outweigh the certain costs that accompany an interlocutory appeal.” (2) Assuming that the gating requirement of Rule 42(b)(i) has been satisfied, an application also must meet one or more of the eight factors set forth in Rule 42(b)(iii). Rule 42(b)(iii) counsels: “After considering these factors and its own assessment of the most efficient and just schedule to resolve the case, the trial court should identify whether and why the likely benefits of interlocutory review outweigh the probable costs, such that interlocutory review is in the interests of justice. If the balance is uncertain, the trial court should refuse to certify the interlocutory appeal.” (3) In this action, Plaintiff filed a Motion to Maintain Transfer Order and to Dismiss Without Prejudice. The Court held argument on December 9, 2020. (4) At the conclusion of the hearing, this Court issued its findings on the record. In sum, the Court held that it had considered the interests of comity and judicial economy, and that the related case pending in California was on appeal, with 2 no trial date in the near future. The Court’s findings in the January 20, 2020 transcript were incorporated by reference, including Delaware’s strong interest in governing Delaware LLCs. The Court discussed the juxtaposition of the Superior Court and the Court of Chancery with regard to jury trials and the adjudication of legal and equitable issues. The Court already had found that the parties had agreed to a forum selection clause. Ultimately, the Court denied the Motion to Dismiss, without prejudice. The Motion to Transfer to the Court of Chancery previously had been mooted because the fiduciary duty claims had been voluntarily dismissed. (5) Plaintiff argues that interlocutory appeal pursuant to Supreme Court Rule 42(b) is justified because all eight factors in Rule 42(b)(iii) have been met. (6) Defendants oppose certification of the interlocutory appeal. Defendants argue, inter alia, that Plaintiff filed this case in Superior Court in 2017, and repeatedly resisted transfer to the Court of Chancery. Plaintiff now seeks to litigate in California, and is relying on the California court’s misapprehension that Plaintiff cannot obtain a jury trial in Delaware. (7) Denial of a motion to dismiss is not ordinarily a decision of substantial and material importance sufficient to justify interlocutory appeal. 1 This is particularly appropriate when the order denies voluntary dismissal from the forum originally 1 In re Tesla Motor, Inc., 2018 WL 2006678 , at *1 (Del. Ch.). 3 chosen by the plaintiff and litigation has been proceeding for several years. The Court holds that its findings, as set forth at the conclusion of the December 9, 2020 hearing, do not meet any of the Rule 42(b)(iii) factors. THEREFORE, Plaintiff has failed to demonstrate that any of the eight criteria set forth in Delaware Supreme Court Rule 42(b)(iii) require that the Court exercise its discretion to certify interlocutory appeal. The Application for Certification of an Interlocutory Appeal is hereby DENIED. IT IS SO ORDERED. /s/ Mary M. Johnston The Honorable Mary M. Johnston 4
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2021-01-26 20:02:51.152997+00
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http://courts.delaware.gov/Opinions/Download.aspx?id=315900
IN THE SUPERIOR COURT OF THE STATE OF DELWARE M. DENISE TOLLIVER, : C.A. No. K20C-08-008 WLW Plaintiff, V. DELAWARE FUTURES, INC., and : HAROLD INGRAM and PATRICIA : DOWNING, in their official and individual capacities, Defendants. SUBMITTED: October 20, 2020 DECIDED: January 26, 2021 ORDER Upon Defendants’ Motion to Dismiss. Granted. M. Denise Tolliver, pro se Michael C. Heyden, Jr., Esquire and Tianna Bethune, Esquire of Gordon & Rees, LLP, Wilmington, Delaware; attorneys for Defendants. WITHAM, R.J. M. Denise Tolliver v. Delaware Futures, Inc., et al. C.A. No. K20C-08-008 WLW January 26, 2021 Before the Court is Defendants, Delaware Futures, Inc., Harold Ingram, and Patricia Downing (hereafter collectively “Defendants”) Motion to Dismiss the Complaint filed by Pro Se Plaintiff, Denise Tolliver (hereafter “Tolliver”) pursuant to Superior Court Civil Rule 12(b)(6). For the reasons that follow, the Motion is granted. Factual and Procedural Background On August 17, 2020, Tolliver filed her complaint as a pro se plaintiff with this Court alleging three counts against the Defendants. First, Tolliver alleges “unlawful hiring” against Delaware Futures, Inc. specifically. Second, Tolliver alleges breach of fiduciary duties on the part of Harold Ingram and Patricia Downing. Lastly, Tolliver alleges Workers' Compensation Retaliation against Delaware Futures, Inc. The facts of this case have been derived from Tolliver's Amended Complaint and the Defendants’ Motion to Dismiss. On or about August 7, 2018, Tolliver effected delivery of an application for employment by certified mail with Delaware Futures, Inc. before an announced application-close date of August 30, 2018. Delaware Futures, Inc. declined to consider this employment application on the grounds that the means of transmission did not conform to its preferred method, which for this particular job announcement was through the professional social media website “Linked In” (sic). Tolliver learned that Delaware Futures, Inc. declined her application on or about August 23, 2018. The denial of the application was for being “inconsistent with Delaware Futures' policy for M. Denise Tolliver v. Delaware Futures, Inc., et al. C.A. No. K20C-08-008 WLW January 26, 2021 application submission.”! This spurred Tolliver to file a three count complaint on August 7, 2020. Ten days after that, Tolliver filed her Amended Complaint on August 17, 2020. Tolliver has pursued Delaware Futures, Inc. in previous litigation dating back to August 8, 2014. She has filed complaints against Delaware Futures, Inc. in U.S. District Court for the District of Delaware and Superior Court for New Castle County, Delaware. The complaint filed with New Castle County Superior Court was removed to the U.S. District Court and Summary Judgment was entered in behalf of Delaware Futures, Inc. on August 2, 2017. That order was affirmed by the U.S. Court of Appeals for the Third Circuit on January 26, 2018. On March 8, 2018, Tolliver then filed a motion to remand her original complaint back to Delaware Superior Court, to which the U.S. District Court “placed [Tolliver] on notice that future similar motions will be docketed, but not considered.” Standard of Review When considering a motion to dismiss under Superior Court Civil Rule 12(b)(6), a court must determine whether “the plaintiff may recover under any reasonable conceivable set of circumstances susceptible to proof under the complaint.” Further, while the court must afford the plaintiff “all reasonable inferences that logically flow from the face of the complaint,” the court need not “accept every strained interpretation of the allegations.” 1 Def.'s Motion to Dismiss at 3. 2 Hedenberg v. Raber, 2004 WL 2191164 *1 (Del. Super. Aug. 20, 2004). 3 Id. 3 M. Denise Tolliver v. Delaware Futures, Inc., et al. C.A. No. K20C-08-008 WLW January 26, 2021 Discussion Count I of Tolliver's Amended Complaint Tolliver's first count is for “unlawful hiring” and alleges that Delaware 1 66 Futures' “policy of posting job openings exclusively on ‘Dina Melchiorre's “Linked In” (sic) account discourages the exercise of equal employment opportunity rights of job applicants.”* The Defendants argue that Tolliver's complaint in Count I does not state an actionable claim. At best, the Defendants argue, is that Tolliver is attempting to make a discrimination claim. However, Tolliver's complaint in Count I does not satisfy a claim for failure to hire on the grounds of discrimination. Citing to a Third Circuit case, the Defendants’ list the elements for such discrimination as “1) applicant is a member of a protected class; 2) applicant was qualified for the position sought; 3) applicant was subject to an adverse employment action despite being qualified; and 4) under the circumstances that raise an inference of discriminatory action, the employer continued to seek out individuals with qualifications similar to the plaintiff to fill the position.”° Tolliver fails to satisfy these elements because, as the Defendants argue, her application was not submitted in the proper format and therefore could not be considered, thus not making her an applicant for the purposes of the Third Circuit's elements for actions of discriminatory hiring. Additionally, Tolliver admitted to not submitting the application accordingly. The Defendants also argue that Tolliver cannot allege that the events laid out in her Amended Complaint equate to an “inference of discriminatory action” 4 Plaintiffs Amended Complaint at 5. 5 Def.'s Motion to Dismiss at n. 1; citing Sarullo v. U.S. Postal Service, 352 F. 3d 789 at 797 (3rd Cir. 2003). 4 M. Denise Tolliver v. Delaware Futures, Inc., et al. C.A. No. K20C-08-008 WLW January 26, 2021 because “people who are not users of LinkedIn are not members of a protected class under the Delaware Discrimination in Employment Act.”° This Court agrees with the arguments presented by Defendants with regard to Tolliver's Count I of her Amended Complaint. Employers use a variety of methods to reach prospective applicants seeking employment and LinkedIn is but one of those methods. It is not improper to designate a reasonable method of obtaining applications for employment. Count II of Tolliver's Amended Complaint Tolliver's Count II of her Amended Complaint alleges breach of Fiduciary Duties on the part of Delaware Futures, Inc. board members without any elaboration as to how a fiduciary duty was owned to her and how that duty might have been breached. Just on the face of Tolliver's Count II, this Court has to conclude that there has not been sufficient allegations raised to warrant a response by Defendants. Count III of Tolliver’s Amended Complaint Tolliver's Count III alleges a Workers! Compensation Retaliation against Delaware Futures, Inc. Tolliver attempts to link the refusal to accept her application by Delaware Futures, Inc. with a retaliation on the part of Delaware Futures, Inc. for Tolliver seeking Workers' Compensation in the months leading up to her attempted application submission. This is simply incomprehensible, and devoid of any merit. Tolliver was not employed by Delaware Futures, Inc. during the time in which she was awaiting final judgment from the Delaware Supreme Court on a 6 Def.'s Motion to Dismiss at 4 — 5. M. Denise Tolliver v. Delaware Futures, Inc., et al. C.A. No. K20C-08-008 WLW January 26, 2021 Workers' Compensation matter. As the Defendants point out in their Motion to Dismiss, Tolliver was not an “employee” as defined in Delaware's Workers' Compensation statute, 19 Del. C. § 2301. Finally, the Court recognizes that the underlying complaint and issues raised by Tolliver are similar to those raised in the past, particularly in the U.S. District Court for Delaware. That complaint and those issues were levied against the Defendants and a final judgment has been reached that is adverse toward Tolliver. On these grounds alone, Tolliver's complaint filed with this Court would not survive Res Judicata and would be dismissed irrespective of the reasons stated above. Conclusion Wherefore, based on the reasons stated above, this Court GRANTS Defendants' Motion to Dismiss on the basis of Superior Court Civil Rule 12(b)(6). IT IS SO ORDERED. /s/_ William L. Witham, Jr. Resident Judge WLW/dmh
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2020-12-01 19:00:16.484789+00
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http://www.ca5.uscourts.gov/opinions/unpub/19/19-50975.0.pdf
Case: 19-50975 Document: 00515656063 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 19-50975 Lyle W. Cayce Clerk Joe Leon Lanier, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. 4:04-CV-8 Before Willett, Ho, and Duncan, Circuit Judges. Per Curiam:* Joe Leon Lanier, Texas prisoner # 866198, seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s order construing his Federal Rule of Civil Procedure 60(b)(6) motion as an unauthorized successive 28 U.S.C. § 2254 application and transferring it to this court. In * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 19-50975 Document: 00515656063 Page: 2 Date Filed: 12/01/2020 No. 19-50975 his motion, Lanier alleged: (1) he was denied the assistance of counsel after his sentencing during the period for seeking a new trial; (2) his appellate counsel rendered ineffective assistance; and (3) he was denied counsel during his state habeas proceeding to assist in raising a claim that his trial counsel rendered ineffective assistance. By moving to proceed IFP on appeal, Lanier is challenging the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197 , 202 (5th Cir. 1997). To obtain IFP status, Lanier must show both financial eligibility and a nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562 , 586 (5th Cir. 1982). Even if Lanier can satisfy the financial-eligibility requirement, he has not shown a nonfrivolous appellate issue. See id. Lanier contends that his Rule 60(b)(6) motion was not a successive § 2254 application because the motion alleged defects in the integrity of his first § 2254 proceeding. In particular, he contends that he was entitled to Rule 60(b)(6) relief in light of three Supreme Court cases that issued after the proceeding and were favorable to him: Buck v. Davis, 137 S. Ct. 759 (2017); Trevino v. Thaler, 569 U.S. 413 (2013); and Martinez v. Ryan, 566 U.S. 1 (2012). Lanier’s case is distinguishable from these three decisions, given that his Rule 60(b)(6) motion did not seek to overcome a procedural default. See Buck, 137 S. Ct. at 767 , 779-80; Trevino, 569 U.S. at 417 ; and Martinez, 566 U.S. at 17 . Further, we have held that neither Martinez nor Trevino have been made retroactively applicable to cases on collateral review. See Clark v. Davis, 850 F.3d 770 , 784 (5th Cir. 2017). Thus, Buck, 137 S. Ct. at 779-80 , is inapposite. Also, contrary to Lanier’s arguments, a motion filed in a habeas proceeding asserting that a change in the law is a reason justifying relief, although labeled a Rule 60(b)(6) motion, is in substance a successive habeas application. See Gonzalez v. Crosby, 545 U.S. 524 , 530, 531 (2005). Further, 2 Case: 19-50975 Document: 00515656063 Page: 3 Date Filed: 12/01/2020 No. 19-50975 Lanier concedes that his Rule 60(b)(6) motion presented claims that were unavailable to him when he filed his initial § 2254 petition. A motion presenting new claims is likewise a successive habeas application in substance. See id. at 531-32. For these reasons, the district court did not err in construing Lanier’s Rule 60(b)(6) motion as an unauthorized successive § 2254 application and transferring it to this court. See id.; United States v. Fulton, 780 F.3d 683 , 686 (5th Cir. 2015). We, therefore, need not consider Lanier’s challenge to the district court’s alternative timeliness ruling. See Hinojosa v. Horn, 896 F.3d 305 , 310 n.2 (5th Cir. 2018) Accordingly, we DENY the motion to proceed IFP on appeal and DISMISS Lanier’s appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th Cir R. 42.2. Lanier is WARNED that future frivolous, repetitive, or otherwise abusive filings will invite the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction. 3
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2020-12-01 19:00:16.849014+00
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http://www.ca5.uscourts.gov/opinions/unpub/20/20-30002.0.pdf
Case: 20-30002 Document: 00515655633 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 1, 2020 No. 20-30002 Lyle W. Cayce Clerk James Million; Gloria Million, Plaintiffs—Appellants, versus Exxon Mobil Corporation, Exxon Chemical Company/ Exxon Refining ; Supply Company; Protherm Services Group, L.L.C.; Brock Services, L.L.C., Defendants—Appellees. Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:17-CV-60 Before Davis, Stewart, and Dennis, Circuit Judges. Per Curiam:* Appellants argue that it was error for the district court to deny their motions for leave to amend and to extend scheduling order deadlines, and to * Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4. Case: 20-30002 Document: 00515655633 Page: 2 Date Filed: 12/01/2020 grant Appellees’ motions for summary judgment. Finding no error, we AFFIRM the district court in all respects, for the following reasons. I. Appellant James Million worked in the chemical industry for forty years, including for Appellees Brock Services, LLC (“Brock”) and Protherm Services Group, LLC (“Protherm”), subcontractors for Appellee Exxon Mobil (“Exxon”). Million was diagnosed with cancer and pulmonary embolisms in February of 2016. He and his wife, Gloria Million, filed suit on February 1, 2017, pleading claims of negligence and strict liability. The complaint alleges that Million was exposed to hazardous chemicals, including benzene and vinyl chloride, during his employment. The district court issued a Scheduling Order setting, among other things, the deadline to amend pleadings and join other parties as December 5, 2017; the deadline to complete expert discovery as June 7, 2019; and the deadline to file dispositive motions as August 6, 2019. On January 9, 2019, more than a year after the deadline, Appellants sought leave to amend their complaint to add new defendants, Cos-Mar and Harmony LLC, claiming that the new defendants and their potential contribution to Million’s injuries came to light during his November 8, 2018 deposition. On January 18, 2019, the district court denied the motion on the grounds that Appellants failed to plead the citizenship of the proposed defendants. Protherm and Brock then filed motions for summary judgment on January 23 and 25, respectively, based on the exclusivity provision of the Louisiana Workers Compensation Act (“LWCA”). LA. REV. STAT. § 23:1032 (“[t]he rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages[]”). On January 26, 2 Case: 20-30002 Document: 00515655633 Page: 3 Date Filed: 12/01/2020 Appellants submitted a motion for reconsideration with the required citizenship information. Brock and Protherm opposed the amendment on the grounds that Appellants, for the first time, made allegations that Appellees intentionally caused Million’s exposure to toxic chemicals. Intentional torts are excepted from LWCA exclusivity. See id. §23:1032(B) (“Nothing in this Chapter shall affect the liability of the employer. . . resulting from an intentional act.”). The district court denied Appellants’ motion because it did not address Rule 16(b)(4)’s good cause requirements. Appellants filed another motion to amend addressing the good cause requirement on February 19, 2019. Appellants contended that Million’s aggressive chemotherapy and medications caused forgetfulness, and that, as a result, he only identified the new defendants and the new intentional tort allegations against Brock and Protherm for the first time during his deposition, which occurred after the deadline to amend. Appellants also filed a motion to extend the discovery deadlines, arguing that amendments to their complaint would necessitate new discovery and more time to obtain expert reports. The district court denied both motions. The court found Appellants’ good cause arguments implausible and uncorroborated, and noted Appellants’ lack of diligence in seeking leave to amend and lack of explanation for failure to identify experts before the deadline. The court also noted that Appellants waited until after Brock and Protherm filed motions for summary judgment on the grounds of LWCA exclusivity before seeking to add intentional tort allegations in an attempt to avoid workers’ compensation immunity. On July 16, 2019, the district court granted Brock and Protherm’s motions for summary judgment based on Appellants’ failure to show any genuine issues of material fact that Appellees’ acts fell under the LWCA’s intentional tort exception. Exxon moved for summary judgment on August 6, 2019 on the ground that Appellants did not have the requisite medical 3 Case: 20-30002 Document: 00515655633 Page: 4 Date Filed: 12/01/2020 evidence to prove causation for the cancer at issue. The district court granted the motion on December 5, 2019 because Appellants did not present sufficient evidence to demonstrate a genuine dispute as to medical causation. II. This court reviews the denial of a motion to amend for abuse of discretion. Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344 , 347 (5th Cir. 2008). “A district court abuses its discretion if it (1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.” Thomas v. Chevron U.S.A., Inc., 832 F.3d 586 , 590 (5th Cir. 2016) (quoting Villareal v. Wells Fargo Bank, N.A., 814 F.3d 763 , 767 (5th Cir. 2016)). “A schedule may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The movant must “show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.” Filgueira v. U.S. Bank Nat. Ass’n, 734 F.3d 420 , 422 (5th Cir. 2013). The four factors relevant to a determination of good cause include: “(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.” Id. When leave to amend is sought after a scheduling order has expired, only upon the movant’s demonstration of good cause will the more liberal standard of Rule 15(a) apply to the decision to grant or deny leave. S&W Enterprises, LLC v. SouthTrust Bank of Alabama, NA, 315 F.3d 533 , 536 (5th Cir. 2003). Having carefully reviewed the record, we find no abuse of discretion in the district court’s denial of Appellants’ motion for leave to amend their complaint. The district court reasonably determined that the Appellants failed to show good cause. As the district court noted, Appellants failed to exercise diligence, waited more than two months after Million’s deposition 4 Case: 20-30002 Document: 00515655633 Page: 5 Date Filed: 12/01/2020 to seek leave to amend, and gave explanations for their failure to amend timely that were implausible and uncorroborated. Next, this court reviews a district court’s decision to grant or deny a motion to modify a discovery schedule for abuse of discretion. See Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253 , 257 (5th Cir. 1997). Again, having reviewed the record, we find the district court did not abuse its discretion in denying Appellants’ motion to extend the discovery deadline. As the district court noted, Appellants failed to show diligence in identifying and disclosing experts, and Appellants’ speculation that their motion for leave to amend would be granted and necessitate additional discovery did not constitute good cause. “This court reviews de novo a district court’s grant of summary judgment, applying the same standard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326 , 328 (5th Cir. 2017). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Austin, 864 F.3d at 328 (internal quotation marks and citation omitted). All facts and reasonable inferences are construed in favor of the nonmovant, and the court should not weigh evidence or make credibility findings. Deville v. Marcantel, 567 F.3d 156 , 163–64 (5th Cir. 2009). Under LWCA, workers’ compensation is an employee’s exclusive remedy against his or her employer for work-related injuries or illness resulting from negligence. See Bazley v. Tortorich, 397 So. 2d 475 , 479 (La. 1981). However, there is an intentional tort exception to LWCA exclusivity. To prove “intent,” the employee must show that the employer either (1) “conscientiously desire[d] the physical result of his act, whatever the 5 Case: 20-30002 Document: 00515655633 Page: 6 Date Filed: 12/01/2020 likelihood of that result happening form his conduct”, or (2) “kn[ew] that the result [was] substantially certain to follow from his conduct, whatever his desire[].” Bazley 397 So. 2d at 481 . This is a high bar to meet. Appellants’ complaint alleged that Brock and Protherm failed to provide adequate safety gear to employees, failed to ensure proper ventilation of work areas, failed to properly train employees, failed to follow applicable safety regulations, and other similar allegations. We agree with the district court that Appellants’ allegations, even if accepted as true, amount to negligence, not intentional torts. Therefore, the district court did not err in granting summary judgment on the grounds of LWCA exclusivity. Finally, Appellants argue that the district court erred in granting Exxon’s motion for summary judgment because the district court failed to take judicial notice when requested of medical causation regarding Million’s injuries. Appellants’ claims against Exxon required them to show proof of causation, which required medical testimony. See Maranto v. Goodyear Tire & Rubber Co., 650 So. 2d 757 , 759 (La. 1995). Yet Appellants contend that they did not obtain an expert or provide the court with any expert testimony “for the sake of judicial efficiency and cost efficiency.” Judicial notice is proper only where the facts are “not subject to reasonable dispute.” Fed. R. Evid. 201. That is not the case here. Accordingly, the district court did not err in granting Exxon’s motion for summary judgment. AFFIRMED. 6
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http://www.ca5.uscourts.gov/opinions/unpub/19/19-10782.0.pdf
Case: 19-10573 Document: 00515655921 Page: 1 Date Filed: 12/01/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-10573 December 1, 2020 consolidated with Lyle W. Cayce No. 19-10782 Clerk Summary Calendar Christopher Wooten, Plaintiff—Appellant, versus Stan Parker, Howard County Sheriff; Timothy D. Yeats, Howard County Judge, 118th District; Colleen Barton, Howard County District Clerk; FNU Averett, Howard County Deputy Sheriff; FNU Buchanan, Howard County Deputy Sheriff; Robert H. Moore, III, Judge; Timothy Green, Magistrate, Howard County; FNU Green, Judge, Howard County, Defendants—Appellees. Appeals from the United States District Court for the Northern District of Texas No. 1:17-CV-12 Case: 19-10573 Document: 00515655921 Page: 2 Date Filed: 12/01/2020 No. 19-10573 No. 19-10782 Before King, Smith, and Wilson, Circuit Judges. Per Curiam:* Christopher Wooten, Texas prisoner # 2089854, appeals the dismis- sal without prejudice, under Federal Rule of Civil Procedure 41(b), of his 42 U.S.C. § 1983 complaint and the denial of his postjudgment motion under Federal Rule of Civil Procedure 60(b). We review both for abuse of discre- tion. See Coleman v. Sweetin, 745 F.3d 756 , 766 (5th Cir. 2014); Wilson v. Johns-Manville Sales Corp., 873 F.2d 869 , 871 (5th Cir. 1989). On appeal, Wooten primarily realleges the substantive claims that he asserted in his § 1983 complaint. He does not discuss the application of Rule 41(b) or otherwise meaningfully address the reasons why his complaint was dismissed or his Rule 60(b) motion was denied. Though we review pro se briefs with the benefit of liberal construction, see Haines v. Kerner, 404 U.S. 519 , 520 (1972), even pro se litigants must brief their arguments to preserve them, see Yohey v. Collins, 985 F.2d 222 , 224−25 (5th Cir. 1993); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744 , 748 (5th Cir. 1987). By not identifying an error in the disposition of his § 1983 complaint or Rule 60(b) motion, Wooten has abandoned any claim related to those rulings. See Yohey, 985 F.2d at 224 −25; Brinkmann, 813 F.2d at 748 . Thus, the judgment is AFFIRMED. Wooten’s motion for appoint- ment of counsel is DENIED because he has not demonstrated exceptional circumstances. See Naranjo v. Thompson, 809 F.3d 793 , 799 (5th Cir. 2015). * 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. 2